Volume 219 — Massachusetts Reports

<p>Practice, Criminal, Conduct of trial. Jury and Jurors. Homicide, Mental responsibility.</p> <p>During the empanelling of the jury at the trial of an indictment for murder in the first degree, after nine jurors had been accepted, the judge, in addressing the next person drawn as a juror who had expressed an unwillingness “to send a man to the chair,” said, in the course of his remarks in regard to the duty of the .judge and jury in capital cases, “Neither your life nor mine is safe unless we try capital cases.” The juror, although declared qualified by the judge, was excluded on a peremptory challenge by the Commonwealth. The defendant was convicted of murder in the first degree, and alleged an exception to the words of the judge signifying in substance “Unless we try capital cases our lives are not safe,” contending that the remark tended to prejudice the jury against him. Held, that it did not appear that the discretionary powers of the judge had been exercised to the defendant’s prejudice.</p> <p>At the trial of an indictment for murder in the first degree, where the elements of that crime as defined in R. L. c. 207, § 1, had been proved, unless the defendant was so deficient in reason as to be relieved from criminal responsibility, it appeared by the testimony of experts that the defendant was constitutionally defective or possessed of weak and diminished will power and self control, but the experts were not in agreement as to whether he lacked sufficient capacity to distinguish between right and wrong. The judge refused a request of the defendant to rule that, if “the jury find the defendant had the mental disorder called 'constitutional inferiority,’ and if the jury find that such disorder carries with it a limited, that is, a diminished degree of responsibility for the act, he cannot be found guilty of murder in the first degree.” Held, that the refusal of the ruling was proper.</p> <p>At the trial of an indictment for murder in the first degree, upon the issue whether the defendant was so deficient in reason as to be relieved from criminal responsibility, it is proper for the presiding judge to refuse to allow the defendant to ask a witness, qualified as an expert, whether in his opinion the defendant appreciated the enormity of his crime.</p> <p>A person abnormally deficient in will power and of retarded mental development, who has killed another person under circumstances that would constitute murder in the first degree if he was mentally responsible, upon an indictment for that crime can be found to have been fully conscious of the criminal character and consequences of his act. That question and also the question, whether he was so mentally diseased that he felt impelled to act by a power which overcame his reason and judgment and to him was irresistible, are questions of fact for the jury under proper instructions from the judge in regard to the law.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Specifications.</p> <p>In an action by a workman against his employer for personal injuries, the declaration as originally filed alleged negligence of a superintendent. In response to a motion of the defendant the plaintiff filed a specification alleging that the plaintiff’s injuries were due to the negligence of one P entrusted with and exercising superintendence. It appeared by the evidence that P was a person acting as superintendent in the absence of the superintendent, and at the close of the evidence the plaintiff was permitted to amend his declaration by alleging negligence of an acting superintendent of the defendant under St. 1909, c. 514, § 127, cl. 2. The judge refused to rule that the plaintiff could not recover on the declaration as amended and the specification. Held, that the refusal was right, because when a new ground of liability was set forth by the amendment to the declaration the allegation in regard to P contained in the specification no longer was applicable.</p> <p>In an action against a corporation engaged in the manufacture of electric cables by a workman in its employ for personal injuries sustained by reason of an electric shock received by the plaintiff when in obedience to an order of an acting superintendent he was connecting a cable with a current of electricity for the purpose of testing the cable, there was evidence that the superintendent entrusted with the supervision of the work was temporarily absent and that in his absence the acting superintendent was authorized by the defendant to take charge of the work. There was conflicting evidence as to whether the method used by the plaintiff in making the connection was a safe and proper one, and there was evidence on which it could have been found that the acting superintendent was negligent in giving the order to make the connection for testing the cable without causing the current to be removed from an overhead wire. Held, that the case properly was submitted to the jury.</p> <p>In an action by a workman against his employer for personal injuries alleged to have been caused by the negligence of a person acting as superintendent with the authority of the defendant in the absence of a superintendent whose sole or principal duty was that of superintendence, as provided in St. 1909, c. 514, § 127, cl. 2, the statute does not require the plaintiff to prove, in order to hold the defendant liable, that the sole or principal duty of the acting superintendent was that of superintendence.</p> <p>Where, in an action by a workman against his employer for personal injuries alleged to have been caused by the negligence of a person acting as superintendent with the authority of the defendant in the absence of a superintendent, it appears that the absence of the superintendent was brief and temporary, this is not necessarily decisive against the plaintiff. It still may be the duty of the jury, as it was in the present case, to determine under proper instructions whether during such an absence the acting superintendent was expected to assume the direction of the work with the authority or consent of the defendant.</p> <p>A workman does not assume by his contract of employment the risk of an injury arising from the negligence of an acting superintendent.</p>

<p>Tort by the administratrix of the estate of John B. Grenier, against the proprietors of a liquor saloon in the village of Mill-ville in the town of Blackstone for personal injuries to the plaintiff’s intestate resulting in his death alleged to have been caused by the unlawful acts and negligence of the defendants. Writ dated April 20, 1912.</p> <p>The plaintiff’s declaration as amended contained five counts, which are described briefly in the opinion. The third count, which is held by the court to contain, a sufficient allegation of an assault by the defendants on the plaintiff’s intestate, was as follows: "Count 3. And the plaintiff says that on or about the 15th day of November, 1911, the defendants, who were retail dealers in spirituous and intoxicating liquors in Blackstone in said Commonwealth, well knowing that John B. Grenier, the plaintiff’s intestate, was incapable of consenting to the receiving and drinking of liquors owing to his besotted and dazed conditian, and well knowing that the said Grenier had an irresistible and uncontrollable appetite for liquor, so that he had become a habitual drunkard and wholly incapable of resisting his appetite for intoxicating drinks, and the defendants, well knowing that the continued use of liquors would cause mental and physical injury and death, did, nevertheless, furnish the said John B. Grenier, the plaintiff’s intestate, with intoxicating liquor, and said defendants or their agents did assault and beat the said Grenier; and said defendants or their agents, well knowing the said Grenier’s dazed, besotted, unconscious condition, did then permit and allow said Grenier to lie and remain upon the floor of their saloon in said Blaclcstone without care or attention, for a long time, to wit, from eight o’clock in the evening until seven o’clock in the morning, and the said Grenier remaining in said saloon suffering from cold and exposure and being unattended for several hours, through the negligence and wantonness of the said defendants, as aforesaid, to the damage of the plaintiff as she says in the sum of ten thousand dollars.”</p> <p>In the Superior Court the case was tried before Sanderson, J. At the close of the plaintiff’s evidence, which is described in the opinion, the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Tort against a corporation carrying on a department store on Front Street in Worcester, for personal injuries sustained on May 4, 1911, when the plaintiff was thirteen years of age and had been sent by her mother to the defendant’s millinery department to bring back a hat, the injuries being alleged to have been caused by the negligence of the defendant in permitting a large pasteboard hat box to remain in an aisle between the ends of the counters of the millinery department, over which the plaintiff stumbled and fell, breaking her leg. Writ dated October 13, 1911.</p> <p>In the Superior Court the case was tried before Raymond, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to rule that the plaintiff could not recover; that there was no evidence of due care on the part of the plaintiff; and that there was no evidence of negligence on the part of the defendant.</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 $1,564. The defendant alleged exceptions to the refusal of the judge to give the rulings requested and also to his limiting the cross-examination of the plaintiff in regard to the exact time at which she arrived at the defendant’s store.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>If a woman, who is about to cross a street containing parallel street railway tracks, on each of which a street railway car is approaching in plain sight, watches the car on the farther track and then, without looking in the direction of the car approaching on the nearer track, steps in front of that car and is struck by it instantly, or if she pauses for a moment on the nearer track for the car to pass on the other track and then is struck, she is negligent as matter of law and cannot recover against the street railway company for her injuries thus sustained.</p>

<p>Equity Jurisdiction, Accounting between partners. Partnership. limitations, Statute of. Account Stated. Assignment. Words, “Assets.”</p> <p>Where the assets of a partnership, consisting of two persons, are transferred to a corporation, which assumes all liabilities of the partnership, the unsettled claims of the partners against one another upon an accounting do not pass to the corporation as a part of the assets, and a claim of one partner against the other properly may be settled in a suit in equity for an accounting between them.</p> <p>In a suit for an accounting between partners, where the defendant has set up the statute of limitations and a master has found that the plaintiff’s claim to the balance due to him from the defendant did not accrue until the date of the dissolution of the partnership, it is not inconsistent with this finding that on the books of the firm a balance of the amount drawn out by the defendant in excess of his agreed salary was struck against him in each year and the amount charged off to profit and loss instead of being carried over into the next year; as this does not show necessarily a settlement between the partners and can be explained, as it was in the present case, by showing that the other partner did not acquiesce in the bookkeeping entries as a correct statement of the amounts due to him from the defendant.</p> <p>An account stated is an agreement between parties having mutual claims by which after an examination of their respective claims a balance is struck in favor of one of them.</p> <p>As affecting the running of the six year statute of limitations, the right to an accounting between partners and to the balance due on 'such accounting accrues at the date of the dissolution of the partnership.</p> <p>Under R. L. c. 202, § 10, if a member of a former partnership dies before the expiration of the six years after the dissolution of the partnership within which he was entitled to maintain a suit in equity for an accounting against his co-partner, the administrator of his estate may maintain such suit at any time within two years after his giving bond for the discharge of his trust; and an assignee of the rights of such administrator under R. L. c. 173, § 4, may maintain such suit in his own name within the same period.</p>

<p>Equity Jurisdiction, Defamation, Remedy at law. Libel and Slander.</p> <p>A bill in equity cannot be maintained by a corporation against two other corporations to restrain them from publishing libellous matter concerning the plaintiff and to compel them to publish a retraction of charges, where no breach of trust or of contract is involved, the exclusive remedy for such a wrong being an action at law for damages.</p> <p>A court of equity is not given jurisdiction to restrain the publication of a libel, alleged to have been published by two defendant corporations, by allegations that one of the defendants is controlled by the other so that they are substantially the same and that the periodical in which the alleged libel was published was transferred for a nominal sum by one of the defendant corporations to the other which had no visible property. The facts thus alleged, if they exist, can be dealt with adequately at law.</p>

<p>Flag. Constitutional Law, Police power.</p> <p>Under St. 1913, c. 678, § 2, which provides that “No red or black flag, and no banner, ensign or sign having upon it any inscription opposed to organized government, or which is sacrilegious, or which may be derogatory to public morals, shall be carried in parade within this Commonwealth,” the carrying in a parade of a flag entirely red on one side and on the other side of the same color, except for a harmless inscription of another color consisting of the name of a society, may be found to have been a violation of the statute. ■</p> <p>St. 1913, c. 678, § 2, which prohibits the carrying of a red flag in a parade, is constitutional as a proper exercise of the police power.</p>

<p>Contract upon an account annexed for labor and materials performed and furnished by the plaintiff for the defendant. Writ in the Central District Court of Worcester dated June 16, 1913.</p> <p>On appeal to the Superior Court the case was submitted to Dubuque, J., upon an agreed statement of facts as follows:</p> <p>The labor and materials in question were performed and used in doing certain plumbing work for the defendant. At the time the contract was made, under which they were performed and used, “an estimate was made by the plaintiff to the defendant, for the entire work, which included labor and materials.</p> <p>“No separate estimate was given for material alone, nor was any estimate given for the labor alone. The entire work, including labor and materials, was treated by both the plaintiff and the defendant as being one entire job or contract, and was never divided by them, and was one entire contract.</p> <p>“The plaintiff, himself, was not and never has been registered as a master plumber, nor licensed as a journeyman plumber.</p> <p>“The plaintiff, however, was in the plumbing business, as a contracting or employing plumber, taking contracts for plumbing work. The plaintiff, himself, did not actually personally do the plumbing work, but men in his employ, receiving weekly wages, did the actual work. The plaintiff conducted a plumbing business, with a regular place of business, at which place he also conducted a tinsmithing business.</p> <p>"A permit was issued to the plaintiff by the city of Worcester for the performance of the plumbing work involved in this action. Said work was inspected and accepted by the plumbing inspector of the city of Worcester, which city had accepted the provisions of R. L. c. 103, requiring inspection and permit.</p> <p>“If the fact is considered material, it is further agreed, that the men in the employ of the plaintiff and receiving weekly wages from him, and who actually performed the work involved in this action, had been licensed by the Commonwealth of Massachusetts, one as a journeyman plumber and the other as a master plumber, and did said work while licensed as aforesaid.</p> <p>“If, upon the above facts, the plaintiff is entitled to recover only for the materials, it is agreed that a verdict should be entered for the plaintiff for $28.39, and costs of suit.</p> <p>“If, upon the above facts, the plaintiff is entitled to recover for both labor and materials, it is agreed that a verdict should be entered for the plaintiff for $48.39, and costs of suit.</p> <p>“If, upon the above facts, the plaintiff is not entitled to recover for either labor or materials, it is agreed that a verdict should be entered for the defendant and his costs of suit.</p> <p>“It is hereby agreed, that for the purposes of this case, the facts above stated are true.</p> <p>“It is agreed that the court may draw such inferences as seem probable from the agreed statement of facts.</p> <p>“If considered material it may be found to be a fact that the plaintiff was conducting a plumbing business with permission of the board of health of the city of Worcester. It is also agreed that the declaration and pleadings in this case be made a part of this statement of agreed facts.”</p> <p>The defendant asked the judge to rule that upon the: agreed. statement of facts the plaintiff was not entitled to recover and that judgment should be entered for the defendant. The judge refused to make this ruling and found for the plaintiff, filing the following memorandum of decision: “The plaintiff agreed, according to the statement of agreed facts, to furnish material and labor to do work for the defendant. It may be inferred from the facts agreed that he (the plaintiff) intended to do his work or perform his contract legally, since he actually did so by employing only licensed plumbers to do the work. Under such circumstances I rule that the plaintiff is entitled to recover the whole amount sued for. ... It cannot be that a contract to build a house and furnish the plumbing therein, if the latter is furnished by a licensed plumber, is invalid or illegal; and a contract to repair stands on the same footing. I, therefore, find for the plaintiff and assess damages in the sum of $48.39 and costs of suit.”</p> <p>The defendant alleged exceptions.</p> <p>The case was submitted on the defendant’s brief.</p>

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

<p>Two petitions in the Probate Court for the County of Berkshire, the first filed on January 10, 1913, under R. L. c. 141, § 13, by certain persons alleged to have claims against the estate of Francis T. Owen, who died testate on March 29, 1909, founded upon a bond executed by the testator on July 16, 1896, whereby he covenanted, for himself and his heirs, executors and assigns, to pay the petitioners and the survivor of them the sum of $10,000 three years after the date of his death, praying that the executor of the will might be ordered to retain in his hands sufficient assets to satisfy the petitioners’ claims, and the second petition, filed on February 24, 1913, under R. L. c. 150, § if, as amended by St. 1907, c. 438, praying that the account of the executor of the will of Francis T. Owen, which was settled in the absence of the petitioners and without notice to them, might be opened.</p> <p>The executor of the will of Francis T. Owen filed pleas in abatement in which he averred that the estate had been fully administered and that the petitions came too late.</p> <p>In the Probate Court Slocum, J., sustained the pleas and made decrees that the petitions be dismissed. The petitioners appealed.</p> <p>The appeals came on to be heard before Morton, J., who on December 3, 1913, reserved them for determination by the full court. The material facts reported by the justice are stated in the opinion.</p>

<p>Appeal from a decree of the Probate Court for the County of Berkshire, allowing the second and final account of the petitioner as administrator of the estate of Oscar S. Roberts, late of Pitts-field.</p> <p>The appeal was heard by Crosby, J. At the hearing the counsel for the appellants expressly waived all objections to the account except to the charges of the administrator for services, and to the action of the administrator in making a sale of the interest of the estate in certain partnership accounts for the sum of $450. The justice found that the charges of the administrator for services amounting to $3,500 in view of the character of the services rendered were fair and reasonable. He found that the administrator sold the interest of the estate in the partnership accounts for what it was reasonably worth, and that in making such sale he acted in good faith and in the exercise of a sound discretion.</p> <p>The justice made all the rulings which were requested by the appellants, and denied their requests for findings. He ordered that a decree should be entered affirming the decree of the Probate Court and remanding the case to that court for further proceedings, and reported the case for determination by the full court.</p> <p>It was conceded by the appellants that the evidence was sufficient to justify the findings in regard to the value of the administrator’s services.</p> <p>Upon the question of the good faith and sound discretion of the administrator in the sale of the accounts, it appeared that the intestate was a physician and in his lifetime had been in partnership with one Frederick A. Roberts, his nephew, and that at the time of his decease there were outstanding upon the books of the partnership accounts amounting on their face in the aggregate to $15,663.97; and that, two weeks after the appointment of the administrator, he sold the interest of the estate in these accounts to 'Frederick A. Roberts, the other member of the partnership, for the sum of $450, which was the valuation at which such interest was appraised in the inventory filed by the plaintiff as administrator. Other evidence on this question is described in the opinion.</p>

<p>Fire District. Tax, Exemption.</p> <p>A fire district, although composed of a part or parts of one or more towns, is a quasi municipal corporation of definitely restricted powers.</p> <p>A tax levied by a fire district under R. L. c. 32, § 59, upon all the real and personal property within the district is a general burden imposed for the support of government rather than a special assessment for peculiar benefits, and therefore under St. 1909, c. 490, Part I, § 5, cl. 3, the real estate of "literary, benevolent, charitable and scientific institutions, owned and occupied by them . . . for the purposes for which they are incorporated” is exempted from such taxation.</p>

<p>Contract, Construction, Performance and breach, Rescission. Damages, In contract. Practice, Civil, Appeal.</p> <p>Where three separate agreements relating to the same subject matter are made and executed between the same parties at the same time “as parts of one transaction,” the rights of the parties are the same as if all the agreements had been embodied in the same instrument.</p> <p>In an action by the inventor of certain devices for use upon automobiles for a breach of a contract in writing, by which the defendant agreed to pay. $2,500 for one thousand sets of the devices manufactured by the plaintiff, having paid $300 in advance at the making of the contract, it appeared that the contract, as interpreted, further provided that, after the one thousand sets of the devices had been manufactured and paid for, the plaintiff was to be employed by the defendant to manufacture the devices, and was to make a conditional assignment to the defendant of his rights to the patents upon his inventions. It further appeared that the plaintiff had manufactured and offered to the defendant in accordance with the terms of the contract four hundred sets of the devices, which the defendant refused to accept or pay for, whereupon the plaintiff notified the defendant in writing that he terminated the contract and should hold the defendant liable in damages for all loss caused to the plaintiff by the defendant’s breach of it. It also appeared that the plaintiff before he gave this notice had been ready and willing to carry out the terms of the contract. Held, that the plaintiff had not rescinded the contract but on the contrary sought to enforce its terms by demanding damages, he being excused from further performance by the defendant’s breach.</p> <p>In the same action, it was held, that the defendant was liable for the amount of the contract price diminished by the cost of the six hundred sets of the devices not manufactured, the cash payment of $300, the amount received by the plaintiff from the sale of sets which the defendant refused to accept and the value of the unsold sets, it having been the duty of the plaintiff, when the defendant refused to accept the four hundred sets, to exercise reasonable diligence to sell them at the best price obtainable and to credit the proceeds to the defendant.</p> <p>Where the record in an action at law shows that an entry of judgment improperly was made while exceptions were pending, this does not show the existence of any judgment from which an appeal could have been taken and an attempted appeal must be dismissed.</p>

<p>Tort for personal injuries sustained on December 26, 1907, when the plaintiff was a passenger on an electric street railway car operated by the defendant at or near the corner of Liberty and Genessee Streets in Springfield. Writ dated May 26, 1908.</p> <p>In the Superior Court the case was tried before Pierce, J., who, at the close of the plaintiff’s evidence, the material part of which is described in the opinion, ruled that there was no sufficient evidence of any negligence on the part of the defendant to entitle the plaintiff to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Two petitions, filed in the Superior Court on May 25, 1914, one by Silvio Martinelli as the administrator of the estate of Umberto Alivernini, and the other by the same petitioner as the administrator of the estate of Settimio Angelini, each alleging ihat a claim for the death of the petitioner’s intestate in the course of his employment on August 8, 1913, was pending before the Industrial Accident Board, and praying that letters rogatory might be issued by the Superior Court addressed to any court in the Kingdom of Italy having jurisdiction for the taking of depositions and that the depositions might be taken of his honor the mayor of Mentana in the Province of Rome in that Kingdom and of certain other persons named of Castelchiodato in the Province of Rome, whose testimony was alleged to be material and necessary for proving the claims of the petitioners.</p> <p>The petitions were heard by Aiken, C. J., who in each case made an order granting the petition and ordering that letters rogatory should issue; and the Contractors Mutual Liability Insurance Company, which appeared as the insurer in the proceedings under the workmen’s compensation act pending before the Industrial Accident Board, alleged exceptions. The insurer also filed an appeal from the order.</p> <p>The cases were submitted on briefs.</p>

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

<p> Devise and Legacy. </p> <p>In interpreting a will, although the court can give effect to any intention of the testator that is shown by the words of the will, however informal they may be, such an intention cannot be inferred from mere silence, and still less can such an inference be founded upon a bare conjecture as to what the testator would have said if he had foreseen the events that have happened since his death.</p> <p>A testator by his will left a certain fund to his wife in trust, with a provision that she should allow his son to have so much of the income and also so much of the principal as she should deem best from time to time, and that she might at any time, according to her own judgment and discretion, pay to him any part or the whole of the trust fund. He provided that his wife might by her will appoint a trustee to hold the fund for his son “with the same power and authority” which he had given to her, and that, if she made no such appointment, the trust should end at her death and the trust fund should pass to his “said son in fee simple.” The testator further provided that, if his son should die leaving a widow, the trust fund should be divided into two equal shares, of which one share should be given to the widow and the other share should be given half to his son’s surviving child or children, if any, and half to the surviving child or children, if any, of the testator’s daughter, or, if either his son or his daughter died childless, then the whole of this half share was to be given to the testator’s other grandchildren. The will contained no provision as to what should be done if the testator’s son died leaving no widow. At the time of the making of the will and at the time of the testator’s death the son had a wife and a child. The testator’s wife survived him and died before the son, appointing by her will a new trustee for the son under the provision of her husband’s will. The son died, leaving no widow and survived by his child. Held, that the will gave the son only an equitable life estate, unless his mother or her successor should choose to pay the whole of the fund to him, which she or her successor did not do, or unless she failed to appoint á new trustee by her will, which she did not fail to do, and that the testator had omitted to dispose of the trust fund in the event, which had happened, of his son dying leaving no widow, so that the fund must-be treated as intestate property and descended and should be distributed to the persons entitled to such property under the statutes in force at the time of the testator’s death.</p>

<p>Practice, Civil, Appeal, Finding of judge. Contract, Construction, Implied in law, Performance and breach, Consideration.</p> <p>An appeal from an order made by a judge of the Superior Court, like other appeals, raises only such questions of law as appear by the record, and facts which do not appear by the record cannot be supplied by statements in the appeal itself.</p> <p>Where a trial judge, before whom an action of contract has been tried without a jury upon a declaration containing five counts, makes a general finding for the plaintiff in a certain sum, the finding must stand if the evidence will support it on any count. In the present case it was apparent from the record that the finding must have been made on one or more of three counts out of the five of the declaration and that at least on one of them the finding was warranted by the evidence.</p> <p>A contract, giving an option to pinchase a parcel of land for $4,410, of which $100 was to be paid on delivery of the option and $300 was to be paid on delivery of the deed, contained the following provision as to the payment of the balance of the purchase money: “The purchaser may obtain as large a loan as possible from some savings bank and said [vendor] will take back a mortgage for the balance, securing a note of the purchaser.” Held, that this provision meant that, if the purchaser was unable to procure a loan on the property from a savings bank, he could give his own note and mortgage for the entire balance of the purchase money.</p> <p>In an action for $100 had and received by the defendant to the plaintiff’s use, there was evidence that $100 was paid by the plaintiff for a contract of option in writing to purchase a strip of land from the defendant for $4,410, the $100 to form a part of the purchase money if the conveyance was made, and to be retained by the defendant as liquidated damages if the plaintiff failed to exercise his option within the time named, that $300 was to be paid on the delivery of the deed and the balance was to be paid by a note secured by mortgage, that the plaintiff paid the $100 at the date of the agreement, that on the last day of the option he was at the office where the papers were to be passed with $300 ready to carry out the terms of the agreement, and that he so informed the defendant by telephone, whereupon the defendant refused to come to the office or to carry out the contract. Held, that a finding was warranted that the plaintiff was entitled to the return of the $100.</p> <p>A contract under seal requires no consideration.</p>

<p>Equity Jurisdiction, To compel conveyance of real estate. Fraud. Equity Pleading and Practice, Master’s report.</p> <p>If one desiring to purchase a parcel of land, in order to avoid an apprehended attachment or levy of execution, has the deed made to a third person who pays the purchase money, and takes from such third person a bond to convey the land to him on repayment of the amount of the purchase money with interest, and then gives a quitclaim deed of the premises to another person, and after-wards the whole of the amount of the purchase money with interest and all sums paid for taxes are repaid to the third person in whose name the title was taken, the grantee under the quitclaim deed can maintain a suit in equity against the holder of the title to compel a conveyance of the land to him, found- . ing his suit on the bond given by the defendant to the plaintiff’s grantor, which gives him a right against the defendant independent of any possible claim of fraud that might be made by the creditors of his grantor.</p> <p>Where a suit in equity is referred to a master “to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request,” the master has no authority to make rulings of law, and, if he attempts to do so, an exception to his assumed ruling does not bring the question of the correctness of such ruling before the court.</p>

<p>Tort by the administrator of the estate of Nellie Tripp, for causing the death of the plaintiff’s intestate, a child seven years of age, on September 20, 1912, by knocking her down with an automobile driven by the defendant on West Boylston Street in Worcester as she was crossing that street at about 8.45 a.m. to reach the West Boylston Street School, where she was a pupil. Writ dated October 31, 1912.</p> <p>In the Superior Court the case was tried before Dana, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to make fourteen rulings. Of these the judge gave four as instructions to the jury, and refused to make the other ten rulings in the form requested.</p> <p>Among the rulings refused by the judge were the following, which are referred to in the opinion:</p> <p>“1. Upon all the evidence and pleadings the plaintiff is not entitled to recover against the defendant.</p> <p>“2. The plaintiff cannot recover in this action because it has not been proven that the plaintiff’s intestate was in the exercise of due care, nor* is there any evidence of negligence on the part of the defendant.”</p> <p>“14. There is no absolute or fixed speed limit at which automobiles may be operated in this Commonwealth, and it is for the jury to find that the rate of speed was reasonable and proper, having regard to the traffic, use of the way and safety of the public, no. matter at what particular rate of speed the defendant operated his car at the time of the accident.”</p> <p>The judge submitted the case to the jury in a charge which is described generally in the opinion. The jury returned a verdict for the plaintiff in the sum of $750; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort by the New York Central and Hudson River Railroad Company, as the lessee of the Boston and Albany Railroad Company, which succeeded to the rights of the Western Railroad Company, against the Central Massachusetts Electric Company, for wrongfully erecting and maintaining wires for the transmission of electricity across the tracks of the Boston and Albany Railroad Company above the bridge by which those tracks are carried over Maple Street in the town of Warren and within the location of that railroad company. Writ dated February 11, 1914.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts to Dubuque, J., who ruled that the plaintiff was entitled to maintain its action, and, the parties having stipulated that, if the plaintiff was entitled to recover, the damages should be $1, found that the plaintiff was entitled to recover that sum, and at the request of the parties reported the case for determination by this court. If the ruling of the judge was correct the plaintiff was to have judgment for $1; otherwise, judgment was to be entered for the defendant.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to have been sustained by reason of a defect in the sidewalk on the north side of George Street, a public way of the defendant, near its intersection with Main Street, on the evening of December 12, 1910. Writ dated January 26, 1911.</p> <p>In the Superior Court the case was tried before Sanderson, J. At the close of the plaintiff’s evidence, which is described in the opinion, the judge ruled that there was not sufficient evidence to warrant a finding for the plaintiff, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability, Open trap door.</p> <p>It is not the duty of the proprietor of a brewery toward one of four engineers employed in his engine room, who knows that there is a trap door in the floor of the engine room covering a pit to receive waste water, which usually is kept closed but which has to be opened from time to time when the pipe in the pit needs repairs or clearing out, to give him notice or warning that the trap door has been opened by plumbers who were working in the pit and that afterwards it was suffered to remain open by another of the engineers who was on duty in the engine room; and, if the engineer thus unwarned walks into the open pit on his way to the engine, he cannot hold his employer liable for his injuries thus sustained in an action at common law for alleged negligence in leaving the pit open and unguarded. Following Young v. Miller, 167 Mass. 224.</p>

<p>Petition under R. L. c. 109, § 52, filed in the Superior Court on August 7, 1913, by the Idan Liitto Temperance Society, a corporation organized under the laws of this Commonwealth, acting by a majority of its members, for a final order of the court dissolving that corporation.</p> <p>The answer of the minority of the members, consisting of nine, alleged among other things that all the property of the corporation was “held in trust for the members of the society in accordance with its expressed purposes, and the majority have no right to in any way interfere with its use for those purposes.”</p> <p>The case was referred to William J. Taft, Esquire, as master. The findings contained in his report included the facts which are stated in the opinion.</p> <p>The case was heard upon the respondents’ exceptions to the master’s report by Dubuque, J., who made an interlocutory decree as follows:</p> <p>“First. That said corporation is entitled to dissolution as prayed for in its petition, and the said corporation is hereby dissolved.</p> <p>“Second. Alexander B. Campbell, Esquire, is hereby appointed receiver to take charge of the estate and effects of the said corporation, and to collect its debts and all property due and belonging to it; with power to prosecute and defend suits in the name of said corporation, or otherwise, to appoint agents under him, .and to do all other acts which might be done by said corporation, if in being, which may be necessary for the final settlement of its "unfinished business; the aforesaid powers of said receiver to continue until otherwise ordered by this court.</p> <p>“Third. And said receiver is hereby especially authorized and empowered to make sale of all real estate belonging to the said corporation, and to make, execute and deliver in pursuance of this decree and in the name of the said corporation by himself as receiver any deed or deeds that may be necessary to [pass the legal title to said real estate to the purchaser or purchasers thereof. 'The purchase price for the said real estate thereupon to become in the hands of the said receiver a part of the estate and effects ■of said corporation.</p> <p>“Fourth. The respondents’ exceptions are overruled.”</p> <p>The respondents appealed; and the judge, being of opinion that the question of law involved in the interlocutory decree ordering a dissolution of the corporation so affected the merits of the controversy that the matter ought, before further proceedings, to be determined by this court, reported the case for such ■determination.</p>

<p>Tort for personal injuries sustained by the plaintiff on January 10,1913, from falling down a part of a staircase in the defendant’s building numbered 390 on Maid Street in Worcester, by reason of her toe being caught by the brass edging on one of the two top steps of the flight, when she was returning from Gard’s jewelry store, one flight up in that building, where she had gone to get some jewelry that had been left there to be repaired. Writ dated February 12, 1913.</p> <p>In the Superior Court the case was tried before Dana, J. The evidence is described in the opinion. The plaintiff testified that she was in Gard’s store perhaps ten or fifteen minutes on the day of the accident and got the jewelry, and then testified as follows: “When I came out I started to go down and I caught my foot in the brass and it threw me down, causing the injuries for which suit was brought. I felt as if it caught my toe at the top of the stairs on the landing. The stairs were not very light; they were rather dark; it is a dark entrance. I did not notice any artificial light in there.”</p> <p>At the close of the evidence the defendant asked the judge to rule as follows:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. There is no evidence that the defendant knew of the existence of the defective condition which the plaintiff claims existed, nor that the defect claimed by the plaintiff had existed long enough so that the defendant, by the exercise of reasonable care, might have known that the defect alleged by the plaintiff existed.”</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 $1,850. The defendant alleged exceptions.</p>

<p> Fraternal Beneficiary Corporation. Mandamus. </p> <p>On a petition by the administrator of the estate of a member of a fraternal beneficiary corporation for a writ of mandamus to compel the officers of the corporation to pay a sick benefit and a funeral benefit, it appeared that the constitution of the corporation provided that “any member whose dues are not paid in advance shall not be permitted ... to receive any sick or funeral benefits” and that “no member who is taken sick while in arrears can, by paying his arrearage, become entitled to benefits during such sickness,” that the petitioner’s intestate was in arrears when he fell sick, that afterwards the monthly dues then in arrears which should have been paid in advance were paid before his death, and that at the time of his death the dues for two other months that became due after this payment remained unpaid. Held, that no sick benefit or funeral benefit was due to the petitioner from the corporation, and that therefore it was not necessary to consider whether, if such benefits had been due, a petition for a writ of mandamus would have been the proper remedy.</p>

<p>Marriage and Divorce. Evidence, Presumptions and burden of proof.</p> <p>Upon a libel for divorce under R. L. c. 152, § 1, on the ground that the libellee, being of sufficient ability, grossly or wantonly and cruelly refused or neglected to provide suitable maintenance for the libellant, the burden is upon the libellant to prove that the libellee was of sufficient ability and that the neglect to provide maintenance was gross or wanton and cruel, and the fact that the evidence warrants a finding for the libellant on both of these issues and that such evidence is uncontradicted does not compel the trial judge, who hears and sees the witnesses and has the right to disbelieve them, to make such a finding.</p> <p>Upon a libel for divorce under R. L. c. 152, § 1, on the ground that the libellee, being of sufficient ability, neglected grossly, wantonly and cruelly to provide suitable maintenance for the libellant, evidence that the libellee was a carpenter and contractor, who at the time he abandoned the libellant had $600 and several contracts for work which would have brought him an income, on which the judge found that at the time of the abandonment the libellee was of sufficient ability to provide suitable maintenance for his wife, does not require the judge also to find that the libellee’s ability to provide suitable maintenance for the libellant continued indefinitely, and it is right for him to refuse to rule as matter of law that on this evidence the libellee’s sufficient ability was presumed to-continue.</p>

<p>Libel, filed on December 11,1913, for an annulment of marriage on the ground that, at the time of the marriage of the libellant to the libellee, two years had not elapsed from the time of the entry of a final decree of divorce upon a libel against the libel-lee brought by his former wife, and that the libellant and the libellee, for the purpose of evading the prohibition contained in R L. c. 152, § 21, procured their marriage to be solemnized in the State of New Hampshire, intending to return to this Commonwealth and reside here, which they did.</p> <p>In the Superior Court the case was heard by Wait, J. At the hearing, the petitioner offered evidence that the libellee, Louis W. Ewald, had been married previously to one Louise E. Ewald; that Louise E. Ewald on October 18, 1909, had. filed a libel for divorce in the Superior Court for Suffolk County against Louis W. Ewald, alleging gross and confirmed habits of intoxication; and that on March 29,1910, a decree nisi was entered on that libel, which decree became absolute on September 29, 1910.</p> <p>The libellant testified in her own behalf that she married the libellee, Louis W. Ewald, in New Hampshire on October 1, 1910; that previous to such marriage she. consulted her counsel, John Noble, Esquire, as to whether if she and Ewald were married in this Commonwealth such marriage would be legal; that Mr. Noble advised her that Ewald could not marry lawfully in Massachusetts within two years from the date when the decree on his wife’s petition became absolute and that a marriage contracted with him in Massachusetts within that time would be illegal; that thereafter she and the libellee talked the matter over and determined to go to New Hampshire and have their marriage solemnized there; that such determination was made on her part for the purpose of evading the prohibition of the Massachusetts law and returning thereafter to reside in Massachusetts; and that in her talks with the libellee he stated that such was his intention; that the marriage between her and the libellee was contracted in New Hampshire pursuant to such determination; and that at the time of such determination and marriage both she and the libellee were residents of Boston.</p> <p>The libellant also called as a witness Mr. Noble. He testified that on February 2, 1910, the libellant consulted him as to her intended marriage with the libellee; that upon learning of the facts as to the pendency of the libel which had been brought by Louise E. Ewald against the libellee, he advised her that, if a divorce were granted to Louise E. Ewald, the libellee could not remarry legally within this Commonwealth until two years after •such decree became absolute; that she then mentioned the possibility of evading that prohibition by going into another State and being married there; and that he advised her against that course although expressing the opinion that such a marriage would be valid.</p> <p>This was all the material evidence offered in behalf, of the libellant. The libellee did not appear, and the libel was uncontested. Proof of notice by registered mail having been given, the judge ordered that the libellee be defaulted. Being of the opinion that upon the foregoing evidence the libellant was not entitled to a decree of nullity, he dismissed her petition, and at her request reported the case for determination by this court.</p>

<p>Contract by an attorney at law to recover compensation for his services. Writ dated July 12, 1912.</p> <p>The declaration contained two counts. The first count alleged that the plaintiff on December 31, 1909, made an oral contract with the defendant to try as attorney for him a certain petition for damages, which the plaintiff theretofore had brought for the defendant against the Norwich and Worcester Railroad Company and which then was pending before the county commissioners of the county of Worcester, for the compensation of one and a half per cent of the amount which the county commissioners should find to be the damages to which the defendant was entitled as against the railroad company, together with all the cash disbursements and expenses which the plaintiff might incur and the taxable costs allowed by Jaw before the county commissioners; that in pursuance of this contract the plaintiff tried the case before the county commissioners, and that on July 10, 1910, the county commissioners found the amount of the damages to which the defendant was entitled upon the petition to be $13,-928.83, of which one and a half per cent was $208.93; and that the costs allowed by law before the county commissioners amounted to $48.49; also alleging certain disbursements amounting to $9.94; the whole claim under the first count amounting to $267.38 with interest from July 12, 1910.</p> <p>The second count was on an account annexed containing charges for alleged services rendered by the plaintiff to the defendant and disbursements connected therewith, amounting to $1,197.56, relating to various matters, chief among which was the trial before a jury in the Superior Court, upon appeal from a decree of the county commissioners, of the same case against the Norwich and Worcester Railroad Company which was the foundation of the first count.</p> <p>The defendant’s answer as amended contained a general denial, and alleged that the agreement declared on in the first count of the plaintiff’s declaration was unlawful, illegal, champertous and against public policy; and that the compensation sought in the second count of the plaintiff’s declaration was for a continuation of the same services declared on in the first count by way of a special contract, which was alleged to be unlawful, illegal, champertous and against public policy. There also was an allegation of payment.</p> <p>In the Superior Court the case was tried before Raymond, J.</p> <p>The following facts, which were found by the judge, were shown by the evidence:</p> <p>That before the making of the contract referred to in the first count, the Norwich and Worcester Railroad Company had taken according to law, and not by virtue of any contract with the defendant, certain real estate of the defendant for the purpose of extending a spur track of its railroad over it; that, also, before the making of the contract, the plaintiff had brought a petition to the board of county commissioners of Worcester County under St. 1906, c. 463, Part II, §§ 82 et seq., for an assessment of the damages for the land so taken, which petition then was pending before the county commissioners; that, for the purpose of coming to an agreement relative to the trial of the case before the county commissioners, the plaintiff and the defendant, knowing and agreeing that there was no question as to the liability of the railroad corporation, but only as to the amount of the damages which might be recovered, and believing that, according to their best judgment, the amount probably would be from $12,000 to $15,000, mutually agreed, as the method by which they would determine how much the plaintiff should receive for his services in trying the case before the county commissioners, that he should receive one and a half per cent of the amount which the county commissioners should find to be the damages to which the defendant was entitled against the railroad company, together with all the cash disbursements and expenses which the plaintiff might incur and the taxable costs allowed by law before the county commissioners; that the cash disbursements of the plaintiff in this case during the trial amounted to $9.94; that the costs of the petitioner Rosenberg, as taxed before said county commissioners, amounted to $48.49; that one and a half per cent of the amount at which the county commissioners assessed the damages ($13,928.83) was $208.93.</p> <p>The special contract referred to in the first count related only to the trial of the case before the county commissioners.</p> <p>It was agreed that the charges of the plaintiff for the services rendered and declared for in the second count were reasonable.</p> <p>On August 3, 1912, when the amount recovered by the petitioner Rosenberg was received and paid out in settlement of all the mortgages upon the land in question, there was left in the hands of the plaintiff in this case the sum of $148.72 which he credited upon his account against the defendant Rosenberg.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. The contract which the plaintiff declared on in Count 1 is illegal and invalid with reference to the law of champerty. .</p> <p>“2. The fact, that the plaintiff was to receive his cash disbursements and expenses which he might incur, is immaterial and does not make the contract, if otherwise champertous, valid.</p> <p>“3. Neither can the plaintiff recover under a quantum meruit for his services if he claims a special contract which has been declared invalid.</p> <p>“4. If the evidence shows that the defendant employed the plaintiff as counsel under an agreement, by the terms of which the plaintiff’s fees and compensation were contingent upon the recovery of some part of the money and were to be paid out of the fund so recovered, and that such proportionate share was to be the only compensation which the plaintiff should receive, then the contract is illegal and invalid.”</p> <p>The judge refused to make any of these rulings, and found for the plaintiff in the sum of $1,391.98. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, In making unfit appointment, Proximate cause. Actionable Tort. Proximate Cause. Corporation, Sole.</p> <p>A declaration in an action of tort against a Roman Catholic Bishop as a corporation sole states no cause of action, if it alleges that the defendant appointed as a parish priest a man who, as he knew or by the exercise of reasonable care ought to have known, was of bad character and of gross sexual proclivities and would be likely to attempt successfully to debauch the female members of the parish, and that this priest by reason of the opportunity given him by his appointment dragged the plaintiff from the altar to the vestry of the church and there committed a rape upon her; because, even if the alleged negligence of the defendant in appointing such an unfit person could be regarded as the proximate cause of a crime committed by him of his own volition entirely outside the scope of his duties, yet it does not appear by the averments of the declaration that the defendant was at all chargeable with negligence toward the plaintiff in failing to foresee that the man appointed parish priest would commit a rape, especially under the circumstances of sacrilege alleged.</p> <p>A girl cannot maintain an action of tort against a defendant, whose alleged negligence caused the plaintiff when about eighteen years of age to be seduced and debauched by a third person through successful persuasion; because the plaintiff, by whatever stress of temptation she was impelled, shared in the commission of the wrongful acts alleged to have been caused by the defendant’s negligence.</p>

<p>Municipal Corporations, By-laws and ordinances. Ice. License. Hawkers and Pedlers. Evidence, Matters of common knowledge. Equity Jurisdiction, To enjoin enforcement of void ordinance.</p> <p>Under St. 1906, c. 345, hawkers and pedlers may sell ice without a license; and the provision of that statute that their sales shall not be “made in violation of an ordinance or by-law of the city or town,” does not authorize a city or town to require a license for such sales of ice within its limits. Consequently an ordinance of a city, which provides that “No person . . . shall sell at retail . . . or hawk or peddle any ice, within the limits of the city . . ., without having first obtained a license therefor, from the board of mayor and aldermen,” is void as to hawkers and pedlers.</p> <p>It seems, that this court will take judicial notice as a matter of common knowledge of the method of delivering ice to purchasers at retail which prevails in this Commonwealth.</p> <p>It may be doubted, whether the provision of R. L. c. 57, § 44, that “whoever, being engaged in the business of selling ice at retail, refuses to sell, from any place or vehicle engaged in the regular distribution of ice at retail, a piece of ice at the fair value thereof to any person, other than an ice dealer, shall, if such person tenders in payment therefor the amount of five cents or any multiple thereof not more than fifty cents in legal money of the United States, be punished by a fine of not more than one hundred dollars,” in view of the method of delivering ice to purchasers at retail which prevails in this Commonwealth, does not make every seller of ice at retail a hawker or pedler of it; but this question here was not decided.</p> <p>Assuming that there are retail dealers in ice who are not hawkers or pedlers and who may be required by an ordinance of a city to obtain a license from the board of mayor and aldermen before selling any ice within the limits of the city, an ordinance, which requires that every applicant for such a license “shall answer under oath and in writing, if requested, such questions as said board or any committee thereof may deem necessary to secure the protection of the public health,” is invalid and void, no authority being given to a city by any statute to confer on its mayor and aldermen, still less upon a committee of them, the power to determine what questions are “necessary to secure the protection of the public health.”</p> <p>A city has no authority to confer by an ordinance upon its mayor and aldermen the power to determine what is a “fair and reasonable price” for selling ice at retail.</p> <p>A city has no authority to confer by an ordinance upon its mayor and aldermen discretionary power to increase the penalty fixed by statute for a violation of the provisions of R. L. c. 57, § 44, in regard to the sale of ice at retail.</p> <p>Where the greater part of an ordinance attempted to be passed by a city is invalid, and the rest of the ordinance is so connected with the void portion as to constitute with it an entirety from which it is not separable, the whole ordinance is void.</p> <p>A suit in equity may be maintained to enjoin the officers of a city from enforcing an ordinance which is void because the city had no authority to pass it, if its enforcement would affect injuriously the property rights of the plaintiff.</p>

<p> Watercourse. Worcester. Bearer Brook. Nuisance. </p> <p>In an action of tort by an owner of land in Worcester that formerly abutted on a natural watercourse called Beaver Brook against that city for changing the channel of the brook and thus depriving the plaintiff of the use of its waters and impairing the value of his land, it appeared that St. 1901, c. 72, authorized the defendant “for the purpose of preserving the public health” to “straighten, deepen, widen, wall and improve the channel of Beaver Brook,” and for that purpose to take any land within one thousand feet of the brook on either side thereof and to “take any easements and rights in any of said lands,” and provided that the city within thirty days after any such taking should cause to be recorded in the registry of deeds a description of the property taken and a statement of the taking under the act signed by the mayor, that in November, 1908, the city council passed an order approved by the mayor purporting to take “all water rights and easements in and to the waters of Beaver Brook” and that in October, 1910, in accordance with another order, likewise passed and approved, the waters of the brook were diverted by the defendant into a new channel constructed by the defendant in land that had been taken by it under the act in 1905, but that after the order of taking of 1908 no description or statement as required by the act ever was caused to be recorded in the registry of deeds. Held, that there had been no valid taking of the water rights and easements of the plaintiff, so that he retained his property unaffected by the attempted taking; and that the orders and acts of the defendant could not be justified as constituting the abatement of a nuisance, because the plaintiff had been given no notice or opportunity to be heard before the passage of the orders and there had been no adjudication that any nuisance existed; and therefore that the plaintiff was entitled to go to the jury.</p>

<p>Insurance, Fire. Mortgage, Mortgagee’s insurance. Election. Waiver.</p> <p>The Massachusetts standard form of fire insurance policy contains the following provision: “When this company shall be liable to a mortgagee for any sum for loss under this policy, for which no liability exists to the mortgagor, or owner, and this company shall elect by itself, or with others, to pay to the mortgagee the full amount secured by such mortgage, then the mortgagee shall assign and transfer to the companies interested, upon such payment, the said mortgage, together with the note and debt thereby secured.” In an action on such a policy by a mortgagee to whom the insurance money was made payable in ease of loss, it appeared that the mortgagor after taking out the policy sold and conveyed his interest in the insured property without the assent of the defendant, thereby making the policy void as to the mortgagor, but that the defendant had no notice of this conveyance, that thereafter the insured property was damaged by fire and that two months and ten days after the fire the plaintiff foreclosed his mortgage, becoming the purchaser of the property under its terms and talcing a deed of the property, that the plaintiff gave the defendant no notice of the foreclosure proceedings and that the defendant did not know of them until the foreclosure was completed and the plaintiff had recorded his deed. Held, that the plaintiff could not recover, because he had put it out of his power to comply with the provision of the policy which gave the defendant the right, on paying the debt to the plaintiff, to an assignment of the mortgage and of the note thereby secured, and because the defendant had not failed to exercise its right of election within a reasonable time, having had no notice of the facts that gave it the right to make such an election, and for the same reason had not waived its right.</p>

<p>Workmen’s Compensation Act. Practice, Civil, Appeal, Costs. Words, “Incapable of use,” “Whole cost.”</p> <p>Under the provision of the workmen’s compensation act contained in St. 1911, e. 751, Part II, § 11, as amended by St. 1913, c. 445, that the additional compensation to be paid “in case of the loss of a hand, foot, thumb, finger or toe ” shall also be paid “in case the injury is such that the hand, foot, thumb, finger or toe is not lost but is so injured as to be incapable of use,” where the evidence before the Industrial Accident Board shows that the hand of a workman was cut across and that most of the flexor tendons were severed, and that those of the thumb were cut, so that the hand was permanently disabled, although some things might be carried on the thumb as a hook and a steel splint might be used on the hand which would be much better than amputation, the board are warranted in finding that the normal use of the hand had been taken away entirely, and consequently that it was “so injured as to be incapable of use.”</p> <p>Where under the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 11, as amended by St. 1913, c. 445, additional compensation has been awarded to a workman for an injury to his right hand that rendered i it incapable of use, he also may be awarded further additional compensation for incapacity to use the little finger of his left hand by reason of an injury sustained at the same time.</p> <p>Whether in the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part III, § 14, that “If . . . any court before whom any proceedings are brought under this act determines that such proceedings have been brought, prosecuted, or defended without reasonable ground, it shall assess the whole cost of the proceedings upon the party who has so brought, prosecuted or defended them,” the words “whole cost” mean all the expenses which reasonably have been incurred, or whether they include only the amounts that would be included in the taxable costs of ordinary civil actions, it here was unnecessary to determine; because the court were of opinion that in the present case it could not be said that the appeal of the insurer was prosecuted without reasonable ground.</p>

<p>WorJcmen’s Compensation Act, Dependency.</p> <p>The widow of an employee, whose husband died before the enactment of St. 1914, e. 708, § 3, if at the time of her husband’s death she was living apart from him for justifiable cause, cannot “ be conclusively presumed ” to have been “ wholly dependent for support” upon her husband at the time of his death within the meaning of St. 1911, c. 751, Part II, § 7 (a), and the question of her-dependency must be determined under the last clause of § 7.</p>

<p>Negligence, Of one maintaining swinging door.</p> <p>The proprietor of a retail dry goods store cannot be found to be negligent toward his customers in maintaining at the entrance to the store a swinging door whose hinges permit it to be pushed open in either direction, which is of ordinary construction and substantially like those that have been in general use for many years; and a woman whose forefinger projected beyond the edge of such a door so that, when another customer passed ahead of her and pushed the door open and it swung back by its natural recoil, her finger was caught between the edge of the door and the door frame and injured, has no cause of action against the proprietor, even if she was in the exercise of due care.</p>

<p>Negligence, Employer’s liability, Open trap door.</p> <p>A sign painter, who, before the workmen’s compensation act took effect, was employed in a room that had a trap door in the floor, which was opened frequently for the purpose of raising and lowering signs through it and had been used many times for this purpose by the employee himself, assumed as a part of his contract of employment the obvious risk of falling through the opening in the floor when the trap door was raised, and if, while he was engaged in conversation with a fellow employee, he stepped backward into the opening and was killed, his employer was not liable for causing his death or his suffering.</p> <p>The foreman of a master sign painter, who had full charge of raising and lowering signs through a trap door in the floor of the shop, in doing which an employee had been instructed to assist him, who sometimes did commercial work outside the shop, in most cases taking one man with him, sometimes two and occasionally three and exercising supervision over them as a journeyman does over a helper, who sometimes, when an order was transferred to him by his employer, would give orders to the men working under him and who received somewhat more pay than the men working under him, cannot be found on these facts alone to have been a superintendent whose principal duty was that of superintendence within the meaning of St. 1909, c. 514, § 127, cl. 2.</p>

<p>Insurance, Against accident.</p> <p>In an action on a policy of accident insurance, payable in case of death to the plaintiff, insuring a certain person against death resulting from “bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means,” it appeared that the insured was using a nasal douche as he had been in the habit of doing, that he “snuffed” or drew breath into his nostril more violently than he usually did, and that consequently there passed through his nostril and thence by way of the Eustachian tube through ahole in the mastoid bone in the middle ear into his brain streptococcus germs, which caused him to die from spinal meningitis, that streptococcus germs are among the most virulent and dangerous germs known, when communicated to the brain, but that they are found somewhat frequently in the outer nose and may remain there indefinitely without harm, and that a hole in the mastoid bone through which germs can pass is a very rare occurrence, such a hole being found in only one out of about a thousand skulls. Held, that the plaintiff could not recover; because on this evidence it could not be found that the germs reached the brain of the insured through a means which was both external and accidental, the only external means being the act of the insured in taking the deep breath through the douche, which was exactly what he intended it to be, although it produced consequences unforeseen by him.</p>

<p>Summary process under R. L. c. 181, § 1, for the possession of certain lots of land with dwelling houses thereon on Temple Street and Jacques Street in Somerville. Writ in the Police Court of Somerville dated October 3, 1911.</p> <p>On appeal to the Superior Court the case was referred to William H. Hitchcock, Esquire, as auditor, “to hear the parties, examine their vouchers and evidence, state the accounts, and make report thereof to the court, his decisions on facts upon all the issues raised by the pleadings to be final.”</p> <p>Later the case was heard by Fox, J., without a jury, upon the auditor’s report and the exhibits and documents referred ' to therein, including the report of a master in a suit in equity brought by John W. Dorey and others against John J. Dorey and others.</p> <p>The following facts appeared from the auditor’s report and the exhibits:</p> <p>On July 1, 1907, one John J. Dorey, who then owned the premises in question, made a lease in writing of them to the defendant for the term of five years, beginning with that day. By the terms of the lease the defendant was to pay to John J. Dorey as rent “at the end of each year during the term ... a sum equal to one half of the net annual income of said estates or properties for each year as shall be determined by deducting the annual expenses for taxes, water rates, insurance and repairs from the annual rents or other income.” The lease also contained the usual provision that the lessor might enter for any breach of convenant and thereby determine the estate. The defendant took immediate possession of the premises and thereafter remained in possession of them.</p> <p>On the next day, July 2, 1907, John J. Dorey executed and delivered a mortgage to the defendant of the same premises described in the lease. This mortgage was given to secure John J. Dorey’s note to the defendant for $25,000, dated July 2, 1907, payable in three years and bearing interest at five per cent per annum payable semiannually. The defendant thereafter held this mortgage,, and no payment of principal or interest ever was made upon it by John J. Dorey.</p> <p>By an instrument under seal, dated December 30, 1909, John J. Dorey assigned and transferred to Willard B. Bryne all his right, title and interest in the lease, with full power in his name to collect and sue for the rent due under it. This assignment was made for the purpose of securing Bryne for money he had lent to John J. Dorey.</p> <p>At the date of this assignment there was a suit in equity pending between the defendant and John J. Dorey in which John J. Dorey was seeking to have the lease and the mortgage set aside. That suit was brought shortly after the execution of the papers in 1907 and remained pending in court until a final decree was entered on May 11, 1911, dismissing the bill and determining that the lease and mortgage were valid and that the present defendant had fully performed all agreements by her to be performed under the lease, or had been ready and willing to do so.</p> <p>The assignment to Willard B. Bryne, dated December 30,1909, was called to the attention of the defendant by a notice from Bryne on June 13, 1910. It remained in force without modification down to September 11,1911, when a new agreement was made by John J. Dorey and Willard B. Bryne, which, after reciting the existence of the lease, the assignment to Bryne and the refusal of the defendant to pay the sums due under the lease, provided (1) that notwithstanding the assignment Dorey might make an entry upon the premises and terminate the lease, (2) that Dorey should pay Bryne $800 out of the rents and profits received from the property within one year, and (3) that nothing in the agreement should be construed as a release of Bryne’s rights to the “benefits and profits” of the lease or to any sums due from the defendant under the lease up to the date of this new agreement.</p> <p>On the next day, September 12, 1911, John J. Dorey entered upon the premises for alleged breach of the condition of the lease, and notified the defendant that he had done so, and on the same day executed and delivered to the plaintiff, who was acting as his attorney, a lease of the premises for five years from that date. The plaintiff, claiming to be entitled to the possession of the premises under this last named lease, brought this summary process.</p> <p>The auditor found that sundry payments of rent were made to John J. Dorey by the defendant, the last one being made on October 12, 1909, but that these payments did not cover the full amount of rent accrued before that date by $136.53.</p> <p>On September 13, 1911, after the entry for the alleged breach and after the lease to the plaintiff, the defendant also paid to John J. Dorey and Willard B. Bryne $1,078.33, but this payment was made and received without prejudice to the rights of either party in any subsequent accounting.</p> <p>On July 1,1908, all sums due John J. Dorey from the defendant were attached by trustee process in an action against Dorey in which the defendant was summoned as trustee and remained so attached until the first Monday of August, 1908.</p> <p>On July 1, 1911, any funds belonging to John J. Dorey in the defendant’s hands were subject to two attachments in an action in which the defendant was summoned as trustee. The auditor found, however, that the attachments failed to cover all the rent then accrued by $408.39. The auditor further found that the attachments were dissolved on August 21,1911, by a bond filed for the purpose. But the defendant contended that the bond was not operative, because Bryne, as claimant, by this bond, after reciting that there were two trustees, bound himself to pay “the amount for which the said trustee may be charged,” leaving it uncertain which attachment was to be released.</p> <p>The defendant asked the judge to make many rulings and findings lettered successively from (a) to (q) inclusive.</p> <p>The judge refused to make any of these rulings or findings “either in form or substance.” He found that the plaintiff was entitled to the possession of the premises described in his writ and declaration; and the defendant alleged exceptions.</p>

<p>Land Court, Findings of judge. Adverse Possession. Disseisin. Seashore.</p> <p>The finding of a judge of the Land Court upon an issue of fact in a case where no trial by jury was claimed is final.</p> <p>Upon a petition in the Land Court for registration of title, where the respondents claimed title by adverse possession to a tract of uncultivated upland beach, which adjoined a marsh owned by the respondents and was used by them during a period of forty years for drying sea moss, it appeared that “mossing” was carried on by the respondents from May to September in each of the years and required a stretch of clean, dry and well protected sand, that the respondents staked out the beds over which they spread the moss to dry and held their locations with tenacity, that their occupation was exclusive while it lasted and that they came back each year to the same locations. No trial by jury was claimed, and the judge of the Land Court found on evidence not reported that the occupation of the respondents was clearly permissive and that no claim to hostile occupation, as of right, ever was brought home to the owners of the record title until ten years before the filing of the petition. Held, that, as the respondents had failed to establish a possession that was adverse and exclusive, it was unnecessary to determine whether an occupation of a portion of the uncultivated upland beach only from May to September of each year would have been sufficiently continuous to create a title by adverse possession, if the other necessary elements of such possession had existed.</p>

<p>Agency, Existence of relation. Automobile.</p> <p>Where the owner of an automobile, who had two men and two women as guests at his summer cottage, yielding reluctantly to the entreaties of the women to give them an automobile drive, said, “Well, you can go if you want to, but don’t be gone very long,” and threw down the key which was necessary to unlock the switch of the automobile, and where one of the men guests, who held a chauffeur’s license and knew how to operate this automobile and who until a day or two before had been employed by a firm of which the owner of the automobile was a member, thereupon took the key and prepared the automobile for starting and in the owner’s presence drove off for a pleasure drive with the two women guests and negligently ran into a horse driven by a traveller on the highway, injuring the traveller and his property, in an action by the traveller against the owner of the automobile for the injuries thus sustained, these facts were held to be evidence for the jury that the driver of the automobile was acting as the agent of the defendant at the time of the plaintiff’s injuries.</p>

<p>Bill in equity, filed in the Superior Court on January 13,1914, in which the plaintiffs, who were Edwin W. Hunnewell and Mary G. Hunnewell, his wife, sought to enjoin the foreclosure or the assignment of a certain mortgage given by them to the defendants Cohen and Fittingoff and alleged to be held by the defendant Max Silverman; with prayers for an accounting and for general relief.</p> <p>In the Superior Court the case was heard by Jenney, J., who made a final decree that the defendants Cohen and Fittingoff pay to the plaintiff Mary G. Hunnewell $511.87 with $46.06, which was interest at the rate of six per cent per annum from August 29, 1912, to the date of the entry of the decree, and costs of court in the sum of $20.83 taxed in favor of the plaintiff, amounting in all to $564.93, and that execution be issued for those amounts. And it further was ordered that the bill be dismissed as against the defendants Ginsberg and Silverman with costs in the sum of $7.83 to each.</p> <p>The defendants Cohen and Fittingoff appealed, and the judge at their request made a report under R. L. c. 159, § 23, of the material facts found by him.</p>

<p>Tort by the public administrator of the estate of Guistiniano Coppola, late of Boston, against two defendants, alleged to be copartners doing business under the firm name of E. W. Everson and Company, who were engaged in the contracting business and were doing work on Beach Street in the town of Revere, for causing the death and conscious suffering of the plaintiff’s intestate on August 23, 1905, when he was in their employ, by the top of a gravel bank falling upon him when he was working under it. Writ dated October 28, 1905.</p> <p>The declaration contained six counts. The first three counts were at common law, the first for failing to provide the plaintiff’s intestate with a reasonably safe place to work, the second for a failure to furnish the intestate with suitable tools, machinery and appliances, and the third for a failure to give the intestate proper and sufficient warning and instructions regarding the dangers attending his work. The last three counts were under the employers’ liability act, the fourth count alleging a defect in the ways, works or machinery of the defendants, the fifth alleging negligence of a superintendent, and the sixth alleging negligence of an acting superintendent.</p> <p>In the Superior Court the case was tried before Brown, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendants asked the judge to order a verdict in their favor upon all the counts of the declaration. The plaintiff thereupon moved to amend his declaration by striking therefrom the first, second and third counts, and this motion was allowed. He thereupon further moved to amend his declaration by inserting a new first and a new second count. These counts were at common law. This motion to amend by inserting the new counts was allowed subject to the exception of the defendants. The plaintiff thereupon moved to amend the fourth, fifth and sixth counts of the declaration by adding to each count a statement, that at the time of the death of the intestate he had a wife and four minor children, who were dependent upon his wages for support at the time of the commencement of the action. This amendment was allowed subject to the exception of the defendants. The defendants thereupon moved that the plaintiff be ordered to elect whether he would rely upon the common law counts, or upon the counts under the employers’ liability act. The plaintiff, under the direction of the judge, elected to rely upon the statutory counts. The defendants thereupon moved that a verdict be ordered in their favor upon these counts. After argument the plaintiff moved to strike out the fifth and sixth counts of the declaration, as amended, and to insert in place thereof two new counts numbered five and six. These counts were of the same general character as the fifth and sixth counts, as amended, already described. Subject to the exception of the defendants the judge permitted this amendment to be made. The defendants thereupon moved that upon the pleadings and the whole evidence in the case a verdict be ordered for the defendants. This motion was denied, and the defendants excepted.</p> <p>The defendants then asked the judge to make the following rulings:</p> <p>“1. Upon the pleadings and all the evidence in this case the plaintiff cannot recover, and the verdict must be for the defendants.</p> <p>“2. There is no evidence in this case that-the plaintiff’s intestate was in the exercise of due care, and the verdict must be for the defendants.</p> <p>“3. From all the evidence in the case it appears that the risk of injury, by reason of the possibility of earth falling from the bank, was open and in no way concealed, and that the plaintiff’s intestate fully appreciated or should have appreciated the same, and by staying in the place where he did stay, he voluntarily assumed the risk of injury, and the verdict must be for the defendants.</p> <p>“4. Under the circumstances of the case, as disclosed by all the evidence, the plaintiff’s intestate did not rely upon receiving any warning from the defendants, or their superintendent, of the danger of injury from the fall of the bank, and the danger of injury from such cause was apparent to him, the man who was prying off the overhang portion of the bank being in full view of the plaintiff. Under these circumstances the plaintiff’s intestate was not entitled to, nor had he any right to expect, a warning from the defendants or their superintendent, and the verdict must be for the defendants.</p> <p>“5. Under the circumstances of the case, as disclosed by all the evidence, the danger of injury from the fall of the bank was a merely transitory danger in the prosecution of the work, and no duty rested upon the defendants or their superintendent to warn against such merely transitory dangers.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury with instructions not complained of except for such refusal. The jury returned a verdict for the plaintiff in the sum of $4,000, apportioned $3,000 for the death and $1,000 for the conscious suffering. The defendants alleged exceptions.</p>

<p>Way, Public: defect in highway. Notice. Evidence, Presumptions and burden of proof.</p> <p>In an action against a town under R. L. c. 51, § 18, for personal injuries alleged to have been caused by a defect in a highway of the defendant consisting of a ditch across the sidewalk into which the plaintiff fell, it appeared that at one o’clock in the afternoon when the plaintiff passed over the place the ditch did not exist and that at four o’clock on the same afternoon he fell into it. There was no evidence that any one had a permit to dig either in the street or in the sidewalk and there was no evidence that the defendant before the accident had any knowledge or actual notice of the creation or the existence of the defect. Nor was there any evidence in regard to the locality of the accident except the ñamé of the street in which it happened. Held, that the plaintiff was not entitled to go to the jury, there being no evidence that the defendant either had or by the exercise of proper diligence might have had reasonable notice of the defect.</p> <p>In an action against a town for injuries alleged to have been caused by a defect in a highway of the defendant consisting of a ditch across the sidewalk into which the plaintiff fell, evidence, on which it might be found that the ditch was dug for the purpose of connecting a house abutting on the highway with a sewer, does not warrant the inference that this would not have been done unless the defendant’s officers or some of them had issued a permit for the work.</p>

<p>Contract for a balance alleged to be due upon a contract in writing under seal dated March 11, 1910, to purchase from the plaintiff, for the sum of $200 payable in monthly instalments of $10 each, two lots of land in the town of Islip on Long Island in the State of New York. Writ in the Municipal Court of the City of Boston dated June 28, 1911; and Tort by the defendant in the first case against the plaintiff in that case for false and fraudulent representations made to the plaintiff in this action by the agents of the defendant herein, whereby the plaintiff was induced to sign the contract sued upon in the first case, seeking to recover as damages the part of the purchase money which had been paid in instalments under that contract. Writ in the Superior Court dated August 11, 1911.</p> <p>The defendant in the first case set up in his answer the same false and fraudulent representations alleged to have been made by the agents of the plaintiff in that case that were relied upon by him in his action for deceit.</p> <p>The first case came by appeal to the Superior Court, where the two cases were tried together before Bell, J. The contract sued upon in the first case is described in the opinion, where the material portion of it is quoted.</p> <p>At the close of the evidence the Colonial Development Company asked the judge to rule in both cases as follows:</p> <p>“1. That upon all the evidence in this case the verdict should be for the Colonial Development Company.</p> <p>“2. That all representations made previous to the written contract were merged in it, and its. language alone controls the bargain between the parties.”</p> <p>The judge refused to make these rulings, and the Colonial Development Company excepted.</p> <p>The judge then submitted to the jury the following questions, to which the jury returned the answers that are printed after them:</p> <p>"1. Did or did not the company by its authorized agents make the following representation, knowing it to be false? That the land was improved, piped, cut up and laid out in streets with granolithic walks.”</p> <p>The jury answered, “The claim was not falsely made that the land was improved; that no claim was made that the land was piped or that there were granolithic walks, but the claim was falsely made that the land was cut up and laid out in streets.”</p> <p>“2. Did or did not the company by its authorized agents make the following representation knowing it to be false? That the lots were twenty minutes walk from Babylon Station.”</p> <p>The jury answered, “Yes.”</p> <p>“3. Did or did not the company by its authorized agents make the following representation knowing it to be false? That it was in the town of Babylon.”</p> <p>The jury answered, “Yes.”</p> <p>"4. Did or did not the company by its authorized agents make the following representation knowing it to be false? That there were several substantial buildings on the property.”</p> <p>The jury answered, “Yes.”</p> <p>“ 5. Did or did not the company by its authorized agents make the following representation knowing it to be false? That the land was in every way ready and suitable for immediate building and occupancy.”</p> <p>The jury answered, “Yes.”</p> <p>“6. Was or was not the representation, if made [as] to piping, streets and walks, material?”</p> <p>The jury answered, “Yes.”</p> <p>“7. Was or was not the representation, if made, as to the distance from Babylon station material?”</p> <p>The jury answered, “Yes.”</p> <p>“8. Was or was not the representation, if made, that the land was in the town of Babylon material?”</p> <p>The jury answered, “No.”</p> <p>“ 9. Was or was not the representation, if made, as to buildings on the property, material? ”</p> <p>The jury answered, “Yes.”</p> <p>“10. Was or was not the representation, if made, as to the readiness of the land for occupancy material?”</p> <p>The jury answered, “Yes.”</p> <p>“11. Were or were not such representations as you find, if any, to have been made and to be material, relied upon by Brag-don in entering into the contract? ”</p> <p>The jury answered, “Yes.”</p> <p>“12. Did or did not such representations as you find, if any, to have been made, to be material, and to have been relied upon, influence Bragdon to some material extent in entering into the contract?”</p> <p>The jury answered, “Yes.”</p> <p>“13. What, if any, damage resulted to Bragdon from such representations, if any, as you have found to have been falsely made, material, relied upon and influential?”</p> <p>The jury answered, “$137.92, $120, $7.92 interest.”</p> <p>Upon the return of the foregoing answers, the judge instructed the jury to find for the defendant, Bragdon, in the first case, the action of contract, and in the second case, for deceit, to find for the plaintiff, Bragdon, in the sum of $120 with interest from the date of demand. The jury returned verdicts as directed; and the Colonial Development Company alleged exceptions.</p>

<p>Capital and Income. Corporation, Preferred stock.</p> <p>A dividend to the preferred stockholders of a corporation declared and paid out of the accumulated surplus of net profits or undivided earnings, which is issued in the form of corporate notes and represents the arrears of past cumulative dividends that might have been declared previously on the preferred stock, is income which accrues to a holder of preferred shares when the dividend is declared, and no part of it is capital.</p> <p>The right of a preferred stockholder in a corporation to a dividend does not come into existence until the dividend is declared, and before such declaration the corporation owes no debt to its preferred stockholders by reason of its having on hand an accumulated surplus of income.</p>

<p>Petition, filed in the Supreme Judicial Court on June 19, 1914, by Helen D. Stone, the surviving parent of Stuart R. Duffy, a minor seven years of age, for a writ of habeas corpus addressed to Alice M. Duffy, a sister of the late William J. Duffy, of Worcester, the said William having been the father of Stuart and formerly the husband of the petitioner, alleging that the petitioner was entitled to the custody of her said minor son under a decree of the Superior Court entered on May 12, 1910, in a divorce suit brought against the petitioner by William J. Duffy, and that the petitioner’s said minor son was restrained of his liberty by the respondent under the pretense of some legal right.</p> <p>Upon the filing of the petition an order was made for the issuing of the writ, and for its return forthwith. Upon the return of the writ the respondent, Alice M. Duffy, filed an answer stating in substance that said Stuart R. Duffy was in her custody under an arrangement authorized by the Probate Court for the County of Worcester, between herself and one Edward T. Esty, who by a decree of that court made on December 30, 1913, was appointed guardian of said Stuart R. Duffy, upon a petition for guardianship filed by the respondent, Alice M. Duffy, in said Probate Court on May 24, 1912, which petition alleged in substance that there was occasion for the appointment of a guardian of said Stuart R. Duffy, and that his surviving parent, Helen D. Stone, the petitioner in this case, was unfit to have custody of him.</p> <p>The case was heard by Rugg, C. J., who made findings of material facts, including the facts that are stated in the opinion, and by agreement of the parties reported the case for determination by the full court upon the petition for habeas corpus, the answer or return of Alice M. Duffy to the writ, and the findings of fact. If the court should be of opinion that the Probate Court for the County of Worcester had no authority to make the decree concerning the custody of Stuart R Duffy upon Alice M. Duffy’s petition for guardianship filed on May 24, 1912, judgment was to be entered discharging Stuart R. Duffy from the custody, possession and control of Alice M. Duffy, and remanding him to the possession and custody of the petitioner; but, if the court should be of opinion that the Probate Court for the County of Worcester did have authority to make the decree relative to the custody of Stuart R. Duffy, on the petition for guardianship, such judgment was to be entered as justice might require.</p> <p>The case was submitted on briefs.</p>

<p>Contract for $192.75, the price of wines and liquors sold and delivered to the defendant. Writ dated May 19, 1913.</p> <p>The defendant filed a declaration in set-off for money had and received amounting to a balance of $165.51, alleging that the defendant through one McGrath gave to the plaintiff McGrath’s check for $500 as a deposit to secure payment for goods to be ordered for the Hotel Westminster in Boston, but that the plaintiff applied the proceeds of the check upon the previous indebted-? ness to him of one Gleason, althoúgh informed that the money represented by the check belonged to the defendant and not to Gleason, and that the plaintiff afterwards furnished goods for the hotel amounting to $334.49, leaving a balance of $165.51 in the plaintiff’s hands belonging to the defendant, which the defendant demanded on May 3, 1913, claiming interest thereon from that date.</p> <p>In the Superior Court the case was tried before Bell, J. He submitted to the jury certain questions, all of which they answered in the affirmative. The only one of these questions now material is quoted in a footnote referred to in the opinion. The judge ordered a verdict for the plaintiff on the plaintiff’s declaration in the sum of $192.75, and on the defendant’s declaration in set-off ordered a verdict for the plaintiff and reported the case for determination by this court upon the facts which are stated in the opinion. If the ordering of the verdict on the declaration in set-off was correct, the verdicts were to stand. If it was incorrect, judgment was to be entered for the defendant on his declaration in set-off in the sum of $149.98, with interest from May 1, 1913, and upon the plaintiff’s declaration judgment was to be entered for the defendant.</p>

<p>Practice, Civil, Exceptions.</p> <p>Where a bill of exceptions was unnecessarily voluminous and contained much evidence set forth by question and answer which should have been abbreviated and put in narrative form, this court, upon a motion filed and heard when the exceptions came on for argument before the full court, ordered that the exceptions should be dismissed, but (this being the first instance of such a motion to dismiss) with permission to the excepting party to apply within twenty days for leave to amend his exceptions, and that, if no such application was made, judgment should be entered on the verdict.</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 relating to compensation to be paid to Joseph T. Duprey.</p> <p>The case was heard first by a committee of arbitration, whose report stated the following facts among others:</p> <p>Duprey, while employed as a carpenter at $15 a week by William Banaghan of Worcester, when putting away his tools on Saturday, October 12,1912, and when going downstairs, made a misstep and fell, sustaining injuries. He was a man sixty-eight years of age, blind in one eye, partially deaf, and at the time of the examination walked with extreme difficulty with the help of a cane. The physicians agreed that at the time of the hearings before the committee "he had recovered from the immediate effect of his injury as much, considering his age and physical condition, as in all probability he ever would. Duprey said that he was able to do bench work if he could get it.”</p> <p>The committee of arbitration found "that in view of the fact that Duprey agrees that he is able to do bench work or light work if he can find it, total disability should cease on the date of this first hearing, Thursday, June 12, 1913; decision of the matter of partial disability to be held in abeyance, to give Mr. Duprey a chance to find work, or to come to some settlement on the extent of partial disability with the insurance company.”</p> <p>It later was brought to the attention of the committee of arbitration that no agreement had been made as to partial disability, and that Duprey had not done any work since the date of the first arbitration meeting, June 12,1913; and a further hearing was held. It was agreed that, if he could find bench work, he could do it, but that, owing to his age and general physical condition, if Duprey had been thrown out of the work at the time of the accident in October, 1912, without any injury, he would have found great difficulty in getting work at any price because of his age and physical condition.</p> <p>After considering the testimony of an expert as to labor conditions and wages at Worcester, the committee of arbitration found that Duprey "can probably now find work only through the kindness of an employer who would be willing to take on a man with his general physical incapacity, including the disability resulting from this injury; if such an employer could be found, Duprey would probably be able to earn from $7 to $9 a week. The arbitrators believe it is only a matter of a few years at best when, in the,natural course of events, and without this accident, Duprey would have been forced by increasing infirmities to have given up employment, and while he did retain employment, it would be at a constantly diminishing wage. It was agreed by Duprey and accepted by the representative of the insurance company, that two years’ partial disability, based on an estimated earning capacity of one half of the average weekly wage earned by Duprey at the time of the injury, would be just.”</p> <p>The committee found, “therefore, that Joseph T. Duprey is entitled to partial disability from June 12, 1913, when total disability ended, based on an earning capacity of one half of his average,weekly wage at the time of the injury, of $7.50 per week, or $3.75 per week, for a period of one hundred and four weeks, a total of $390.00, in addition to the sums paid by the insurance company up to June 12, 1913.”</p> <p>Duprey having claimed a review by the Industrial Accident Board under § 10 of Part III of the act as amended by St. 1912, c. 571, § 13, the board held two hearings. Between the hearings, acting under § 8 of Part III of the act, the board appointed Frederic A. Washburn, M.D., resident physician of the Massachusetts General Hospital, to examine Duprey and report. Dr. Washburn made his report in writing, and it was read aloud by the chairman of the board at the second hearing on review, without previously having been shown to counsel for the parties, and without Dr. Washburn being present and testifying. The counsel for Duprey objected to the procedure. The counsel for the insurer did not object.</p> <p>Dr. Washburn’s letter was in substance as" follows:</p> <p>“He [Joseph Duprey] has been seen in our Out-Patient Department and it is the opinion of the surgeon who saw him that he is suffering from a ruptured tendon in his leg, apparently caused by the fall; that he will be unable to walk to any extent unless this is operated upon; that owing to his age, etc., this should not be undertaken without further talk with him and his family; that his general condition is such that it is believed his usefulness as a worker would not have lasted more than a few years at most; that his incapacity at present is due to his injury as he is unable to work, except at something allowing him to sit down.”</p> <p>The board found that “the evidence shows that, at the time of the injury, the said employee was a man of failing physical powers and that, within a few years he would probably have been incapacitated for work as a result of said physical weakness, independent of the injury.”</p> <p>The substance of further findings and of the decision of the board is stated in the opinion. The insurer appealed.</p> <p>The case was heard on appeal to the Superior Court by Pierce, J., who made a decree confirming the decision of the board; and the insurer appealed.</p>

<p>Replevin of a “filter and reservoir.” Writ in the District Court ’of Southern Essex dated January 30, 1913.</p> <p>The defendant filed a plea in abatement, based on the fact that the plaintiff in the writ was named Silox Pure Water Company, instead of Silox Pure Water Company of New England, and upon defects in the bond given by the plaintiff, in that the heirs, executors and assigns of the sureties were not bound by its terms and the corporation seal was not affixed.</p> <p>In the district court the plea was overruled and the plaintiff was allowed to amend its writ by describing itself properly. No new bond was ordered.</p> <p>On appeal to the Superior Court, the case was heard on the plea and on its merits by McLaughlin, J., without a jury. He found that the plaintiff was entitled to the property replevied and ordered that a proper bond should be filed, and that, when such bond was filed, judgment should be entered for the plaintiff. The defendant alleged exceptions.</p>

<p>Mandamus. Public Officer. Municipal Corporations, Officers and agents. License. Intoxicating Liquors. Express.</p> <p>Where applications have been made to the selectmen of a town, in which licenses of the first five classes for the sale of intoxicating liquors are not granted, for permits under St. 1906, c. 421, § 2; St. 1911, c. 423, for the transportation of intoxicating liquors in and into the town, and the selectmen have decided not to issue any such permit unless ordered to do so by this court, two of such applicants, at least one of whom is qualified to receive such a permit, have sufficient interest in the subject matter, if any private interest is necessary, to warrant them in bringing a petition for a writ of mandamus to compel the selectmen to undertake the investigation of applications for such permits with a genuine purpose to comply with the law.</p>

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

<p>Two actions of contract against the administrator with the will annexed of the estate of Robert I. Smith, late of Lawrence, for services in the care, attendance upon and nursing of the defendant’s testate. Writs dated March 1, 1913.</p> <p>In the Superior Court the cases were tried before Sanderson, J. It appeared in each case that the defendant’s petition for administration was returnable in the Probate Court on February 27, 1911, that his bond as administrator was dated March 1, 1911, and that the bond was approved and his letter of administration was issued on March 9, 1911. The writs in these actions were served upon the defendant on March 3, 1913. The defendant asked for a ruling that the action was not commenced within two years from the time of his giving bond as administrator. The ruling was refused.</p> <p>There was a verdict for the plaintiff in the first action in the sum of $763.63, and also in the second action in the sum of $1,260.75. The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Petition, filed on May 8,1914, by Roseoe Walsworth, alleging himself to be the town solicitor of the town of Revere, for a writ of mandamus addressed to Andrew A. Casassa and to the selectmen, the auditors and the members of "the committee on claims of that town, alleging that Mr. Casassa claimed to have been elected town solicitor under Article III of the by-laws of the town and that this article had been repealed, and praying that Mr. Casassa might be commanded to refrain from attempting to perform the duties of town solicitor and deliver to the petitioner the key to the town solicitor’s office and all papers, records, books and documents in his possession or control belonging to the law department of the town.</p> <p>Frank Paul, Esquire, was appointed as auditor to hear the parties and their evidence, to find the facts and to report them to the court.</p> <p>The case came on to be heard upon the petition, the answer, and the auditor’s reports (including a supplemental report) before Braley, J., who found the facts to be as stated by the auditor, and, at the request of the respondents, reported the case for determination by the full court. If as matter of law the petitioner was entitled to relief, the writ of mandamus was to issue; otherwise, the petition was to be dismissed.</p> <p>The material facts as found by the auditor and the single justice are stated in the opinion.</p> <p>Article III of the by-laws of the town of Revere was as follows:</p> <p>“Article III. Committee on Claims.</p> <p>“Section 1. The Chairman of the Selectmen, Chairman School Committee, Chairman Board of Assessors, Chairman Board of Health, Chairman Sewer Commissioners, Chairman Park Commissioners and Auditors shall constitute a Committee to be known as ‘The Committee on Claims/ and shall serve without compensation.</p> <p>“Section 2. The Committee on Claims shall hereafter on or before the first day of May, and whenever any vacancy shall exist, choose some member of the Suffolk bar, a resident of the Town, if possible, to act as Town Solicitor, who shall be paid such salary as said Committee may direct.</p> <p>“Section 3. The Chairman of the Selectmen shall call a convention of said officers for the purpose aforesaid, and shall give notice thereof in writing to the several officers entitled to vote therein, seven (7) days at least before said meeting.</p> <p>“Section 4. Said Committee shall have authority to prosecute, defend and compromise all litigation to which the Town is a party, and to employ special counsel to assist the Town Solicitor whenever in their judgment necessity therefor arises, and shall have custody of the law library of the Town.</p> <p>“Section 5. The term of office of said Solicitor shall begin on the first day of May of each year, and shall continue until the election and acceptance of his successor.</p> <p>“Section 6. The Town Solicitor shall draft all bonds, deeds, leases, obligations, conveyances and other legal instruments, and do every professional act which may be required of him, by vote of the Town or any Board of Town officers. Also when required by said Boards or any committee of the Town, he shall furnish a written opinion on any legal question that may be submitted to him, and he shall at all times furnish legal advice to any officer of the Town who may require his opinion upon any subject concerning the duties incumbent upon such officer by virtue of his office.</p> <p>“He shall prosecute all suits ordered to be brought by the Town, and shall appear at any Court in the Commonwealth in defense of all actions or suits brought against the Town or its officers in their official capacity. Also, shall try and argue any and all causes in which the Town shall be a party, before any tribunal, whether in law or in equity, in the Commonwealth, or before any Board of Referees or Commission, and shall appear at any and all hearings in behalf of the Town whenever his services may be required.”</p> <p>Article XXI was entitled “Repeal, Amendments, etc.,” and is quoted in full in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability.</p> <p>A cable splicer employed by an electric lighting company, who was injured by reason of the negligence of the switchboard operator at the power station of his employer in reporting that he had shut off the current of electricity from the cable on which the splicer had been ordered to work, whereas by mistake he had shut it off from another cable, cannot maintain an action at common law against his employer for such injuries which were due to the error of his fellow employee.</p>

<p>Petition, filed in this court on November 9, 1914, under R. L. c. 173, § 110, by the defendant in the case of James C. McLellan v. Samuel A. Fuller, which was tried in the Superior Court before McLaughlin, J., to establish the truth of certain exceptions alleged by such defendant.</p> <p>On November 12, 1914, the respondent, who was the plaintiff in the case named above, filed in this court a motion that the petition be dismissed for failure to comply with the requirements of Rule 6 of this court.</p> <p>That rule is as follows:</p> <p>“Whenever a party seeks to establish before this court the truth of any allegations in a bill of exceptions, which a judge has refused to allow and sign, he shall, within twenty days after notice of such refusal, file his petition, vérified by affidavit, setting forth in full said allegations, and all facts material thereto, in the court in which the exceptions would by law have been entered, if duly signed and allowed; and shall, before filing his petition, give notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record. And no party shall be allowed to establish the truth of any such allegations in this court, if he has failed to comply with the requisitions herein prescribed.”</p>

<p>Insolvency, Rights of assignee. Limitations, Statute of.</p> <p>Under Pub. Sts. c. 157, § 46, the first publication by the assignee of the estate of an insolvent debtor of notice of the issuing of the warrant or of the filing of the petition in the insolvency proceedings is notice to all the world of the change in the debtor’s rights and title, and the failure by the assignee to cause the assignment to be recorded in the registry of deeds, as required by § 45 of the same chapter, does not prevent the vesting in such assignee of the title of the insolvent debtor to an undivided interest in certain real estate subject to a life tenancy; and, if the debtor’s interest in the real estate is not listed in his schedule of assets and if no entry upon the real estate ever is made by the assignee after the termination of the life tenancy, these facts do not affect his title.</p> <p>In a writ of entry for the recovery of an interest in real estate, brought by the assignee of the estate of an insolvent debtor, it is no defense that the demandant did not give notice of his appointment as required by R. L. c. 163, § 52, when the assignment to him of the property of the debtor was made by the judge of the court of insolvency; because the validity of proceedings in the court of insolvency cannot be questioned collaterally.</p> <p>St. 1895, c. 432, § 1, which was approved on May 29, 1895, and took effect upon its passage, was as follows: “No assignee of an insolvent estate shall commence or be made a party to any action, suit or other proceeding, either at law or in equity, touching any property or right to property, legal or equitable, unless the same is brought within six years from the time when the same might have been brought; but no such action, suit or other proceeding, unless barred by provisions of law other than this statute, shall be barred before the expiration of one year from the passage of this act.” This statute was repealed by R. L. c. 227;- and R. L. c. 163, § 60, contains a substituted provision in different language prescribing the same period of limitation. The assignee of the estate of an insolvent debtor, upon the death of the life tenant of certain real estate in 1894, acquired a right to enter the real estate and assert his title to an undivided interest therein which had vested in him as the property of the insolvent debtor. Although there was no fraudulent concealment, the assignee did not discover the existence of his title until 1913, when he asserted it for the first time by bringing a writ of entry to recover the undivided interest in the real estate. Held, that his action was barred by the limitation of six years contained in St. 1895, c. 432, which was not repealed until after the demandant’s right of action had been barred by it.</p>

<p>Complaint, received and sworn to in the Police Court of Springfield on December 31, 1913, charging that the defendant, without being lawfully authorized or registered to practice medicine in this Commonwealth, held herself out as such a practitioner and practiced and attempted to practice medicine.</p> <p>On appeal to the Superior Court the case was tried before Aiken, C. J. The material facts which the evidence tended to prove and a portion of the charge to which the defendant excepted are stated in the opinion. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed in the Supreme Judicial Court on August 7,1914, and afterwards amended, for a writ of mandamus directing the board of health of Holyoke to issue to the petitioner a permit to do certain plumbing work for one John Sommers.</p> <p>The case was heard upon an agreed statement of facts by Braley, J. It appeared that the petitioner was licensed as a journeyman plumber, but was not a master plumber. According to an agreed statement of facts which was included as a part of the report of the single justice, sections 2 and 22 of chapter 27 of the Revised Ordinances of the city of Holyoke were as follows:</p> <p>“Section 2. No pipes, tanks, faucets, valves or other fixtures by and through which water or sewage is used or carried shall be placed in any building in the city except in accordance with plans which shall be approved by the Board of Health of the city, and no plumbing work shall be done except in the case of repairs of leaks, without a permit being first issued therefor upon the terms and conditions prescribed in this chapter.”</p> <p>“ Section 22. Plans must be drawn in duplicate and to scale in ink or blue print and must show: The name or names of the master plumber or master plumbers who are to do the work; a clear description of the work to be done, number and kind of fixtures, also the kind and size of the waste, soil and sewer pipes to be furnished.”</p> <p>The petitioner presented plans to the respondents which they admitted to be proper in every way except in not having the signature of a master plumber. They refused to issue a permit to the petitioner solely because the petitioner was not a master plumber and because the plans did not show the name of a master plumber who was to do the work.</p> <p>Other facts are stated in the opinion.</p> <p>At the request of the parties, the single justice reported the case for determination by the full court, with the stipulation that, “if the petition can be maintained, the writ is to issue; otherwise, the petition is to be dismissed.”</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, Bill of interpleader. Equity Pleading and Practice, Hearing on bill of interpleader and answer.</p> <p>If upon the hearing of a bill of interpleader it appears that there is an obligation of the plaintiff to one of the defendants which is connected with the subject matter of the alleged controversy between the defendants and which cannot be determined in litigation to which the defendants alone are parties, the bill must be dismissed, because a decree ordering the defendants to interplead and allowing the plaintiff to retire, which would be necessary if the suit were maintained, would relieve the plaintiff from all further liability to either defendant touching the subject matter of the bill.</p> <p>By a failure to join issue upon the answers to a bill of interpleader the plaintiff admits all facts properly averred in such answers.</p> <p>In answer to a bill of interpleader brought by a life insurance company against one to whom it had issued a policy of endowment insurance in the sum of $25,000, which had matured, and one who claimed the policy as an assignee, the insured admitted that he had placed the policy in the possession of the assignee, but alleged that it was to secure a loan of $6,000 only, and the assignee in his answer alleged that he for eight years had held the policy and an assignment of it as security for a loan of $21,500, that the plaintiff had known of the assignment from the time when it was made “and always has recognized the same,” that his right to claim the $21,500 from the plaintiff did not depend solely upon the validity of the assignment as between him and the assured, but also upon the fact that, through representations and warranties of the plaintiff that the assignment was valid, he had been induced to advance and had advanced the sum in question. The plaintiff did not join issue on the answers but moved for a decree upon the bill and answers. Held, that the bill should be dismissed, because upon the allegations of the answers, which must be taken to be admitted, it appeared that there was a claim against the plaintiff which could not be adjudicated in an issue between the defendants only.</p>

<p>Bill in equity, filed in the Probate Court for the County of Bristol on July 21,1911, seeking to have the defendant Cornwallis, as executor of the will of Lucy Ellis Tisdale, late of New Bedford, ordered to deliver to the plaintiff the property hereinafter described on the ground that it constituted “the contents, if any, of a drawer in said safe,” which were given to her in a clause of the will set out in the opinion.</p> <p>The property was as follows: A bank book numbered 127890 for $1,093, in the New Bedford Institution for Savings, standing in the name of said testatrix, in trust for Olivia H. Walker; a bank book numbered 121982 for $1,393, in the New Bedford Institution for Savings, standing in the name of said testatrix, in trust for Caroline Bartlett Eustis; two certificates, one for ten shares, the other for ninety shares of the capital stock of the Fibre Bottle Company; a mortgage of real estate, and the note accompanying the same, in the principal sum of $4,000, given by the defendant John Kennard to said testatrix, dated March 5, 1906, and recorded in Plymouth County Registry of Deeds, book 936, page 224. The defendant executor admitted that he had withdrawn and taken possession of the deposits in the New Bedford Institution for Savings above described, amounting to $2,486.</p> <p>The suit was heard in the Probate Court by Alger, J., who found that the “drawer in said safe,” referred to by the testatrix in the second clause of the will, “was one of the safety deposit boxes or drawers” in the vault of the Merchants Bank in New Bedford, and as to the contents of that drawer found as follows: “At the time of the death of the testatrix, the contents of the drawer in the safe consisted of the will and codicil, a savings bank book in the name of the testatrix as trustee for Thomas T. Gaff, the plaintiff’s husband, which is specifically bequeathed by the will to him, and has been delivered to him by the executor; a savings bank book in the name of the testatrix as trustee for the plaintiff, which is specifically bequeathed by the will to the plaintiff, and has been delivered to her by the executor; and the certificates of stock, two savings bank books, and real estate mortgage which are in controversy. The mortgage note was not jn the drawer but in the hands of the cashier of the bank, now deceased; he held it for the testatrix, and delivered it to the executor upon his appointment and qualification. The testatrix owned the mortgage at the time of the execution of her will and it was not overdue at the time of her death.”</p> <p>The judge of the Probate Court ruled “that the bequest to the plaintiff of the contents of the drawer in the safe, which contained the mortgage, must be treated as a bequest of the indebtedness secured by the mortgage and mortgage note,” and that the defendant must transfer those securities to the plaintiff; and accordingly he made a decree directing the defendant to deliver to the plaintiff the shares of stock, the mortgage and the mortgage note and all sums which he had received as dividends upon the stock and as interest upon the mortgage note and the sum of $2,486 which he had withdrawn from the savings bank, with interest at six per cent on the sum so withdrawn from September 9, 1910.</p> <p>On appeal to this court, the suit was heard by Sheldon, J., and the evidence was taken by a commissioner. The single justice reversed the finding of the judge of the Probate Court that the mortgage note was not in the “drawer” at the time of the death of the testatrix, modified the decree as stated in the last paragraph of the opinion, and in all other respects affirmed that court’s findings and decree. The defendant appealed.</p>

<p>Evidence, Opinion: experts, Matters of common knowledge. Negligence, Employer’s liability.</p> <p>The unloading of a tool box seven and one half feet long, three and one half feet wide and four and one half feet high, having a peaked roof, containing loose tools and weighing with its contents fourteen hundred or fifteen hundred pounds, to a sidewalk from a truck, whose platform was below the level of its axles, is a matter of common knowledge so simple and so easily understood that a jury, in determining whether a certain method used by an employer was proper, would not be aided by the opinion of experts.</p> <p>In an action by an employee against his employer for personal injuries received while the plaintiff was assisting to unload a large box from a dray to a sidewalk, the plaintiff contended that the defendant was negligent because of the means adopted in the unloading and in not providing a sufficient number of men for the work. The weight of the box was material. The plaintiff testified that he thought that it weighed fourteen or fifteen hundred pounds, and the defendant’s evidence was that it weighed five hundred pounds. After the defendant’s evidence as to the weight was introduced, the plaintiff was recalled and was asked by his counsel whether he thought, if the box weighed five hundred pounds, that three men “ could handle it,” a negative answer being expected. The evidence was excluded. Held, that the evidence was excluded rightly, because the question sought merely the plaintiff’s opinion on a hypothetical question, and its answer would have had no bearing on his state of mind at the time of the accident or on the question of his due care.</p> <p>In the same action the opinion of the superintendent of the defendant, as to whether a certain method of unloading the box by tipping it up was proper, was held to be inadmissible, where it appeared that the superintendent was not present when the unloading was being done, had given no instructions as to the method of unloading and had no reason to know that the box would be tipped up in removing it, his state of mind not being material and his opinion not being admissible.</p>

<p>Contract, by a stockbroker of Boston against the Third National Bank of Syracuse in the State of New York, for the breach of an alleged contract to sell and deliver to the plaintiff one hundred shares of the common stock of the Syracuse Rapid Transit Company at $58 a share. Writ dated October 13, 1911.</p> <p>The answer, as amended, in addition to a general denial, set up the defense that the contract was void for the reason that it was beyond the corporate powers of the defendant to make such a contract. It also set up the defense of the statute of frauds and St. 1908, c. 237, § 4.</p> <p>In the Superior Court the case was tried before Bell, J. A portion of the evidence is described in the opinion. The judge submitted to the jury certain issues. Among other answers, the jury answered in the affirmative the question, “Was the defendant’s contract, if any, broken before the beginning of this action, October 13, 1911?” The fifth ruling requested by the defendant, which is quoted in the opinion, was refused by the judge.</p> <p>The judge ordered a verdict for the defendant, instructing the jury in part as follows: “The law of this Commonwealth requires that in the case of a sale of personal property to the value of more than $500, the contract, or some memorandum thereof signed by the party to be charged, must be in writing, and that is the principal question which has been heard, although there are some others, and the question which was heard before me was whether the letter written by Mr. Hotehkin to the bank and the answer returned by the cashier, taken together, amounted to a memorandum signed by the cashier of the sale of that stock. And I am of the opinion that they do not; that the answer of the cashier is not an assent to the terms stated by Mr. Hotehkin in his letter, but is a qualifying assent or a dissent; that he does not accept the terms stated, but says that it was a conditional sale; and therefore, it seems to me that the letter signed by the cashier, even if taken with the letter to him from Hotehkin, do not together constitute a memorandum signed by the cashier, and in that view of the law, I am obliged to order a verdict for the defendant.”</p> <p>The judge then reported the case for determination by this court, such judgment to be entered as justice and equity might require.</p>

<p>Petition, under St. 1909, c. 490, Part I, § 77, by the trustees under the will of Richard H. Stearns, late of Hull in the county of Plymouth, appealing from the refusals of the assessors of the town of Brookline to abate a portion of the taxes assessed to the petitioners as such trustees for the years 1911 and 1912.</p> <p>In the Superior Court the case was submitted to King, J., upon an agreed statement of facts, which included the following facts and also those that are stated in the opinion: In 1911 and 1912 the petitioners filed with the assessors of the respondent within the time required by law statements of the property for which they believed themselves to be taxable as such trustees in Brookline.</p> <p>These statements did not include the interest of the trustees in the firm of R. H. Stearns and Company, as the trustees asserted that they were not taxable in Brookline upon such interest. The assessors of Brookline assessed to the trustees on personal property as of April 1, 1911, a tax of $457.50, of which the sum of $440.73 was assessed upon the interest of the trustees in the firm of R. H. Stearns and Company. The trustees paid the tax under protest, and presented to the assessors a petition for an abatement of the portion of the tax which was assessed upon their interest in the firm of R. H. Stearns and Company. On May 22,1913, the trustees received written notice from the assessors of their decision dismissing the petition and refusing the abatement prayed for. The assessors of Brookline assessed the trustees on personal property as of April 1, 1912, a tax of $459.43, of which the sum of $442.39 was assessed upon the interest of the trustees in the firm of R. H. Stearns and Company. The trustees paid the tax under protest, and presented to the assessors their petition for an abatement of the portion of the tax which was assessed upon their interest in the firm of R. H. Stearns and Company. On May 22, 1913, the trustees received written notice from the assessors of their decision dismissing the petition and refusing the abatement prayed for.</p> <p>The judge found the facts to be as set forth in the agreed statement of facts, and reported the case for determination by this court upon the pleadings and the agreed facts. If the decision of the assessors was sustained, judgment was to be entered for the respondent; if not, judgment was to be entered for the petitioners in the sum of $440.73, with interest from November 1, 1911, and in the sum of $442.39, with interest from March 5, 1913.</p>

<p>Workmen’s Compensation Act. Words, “Casual.”</p> <p>Before the passage of St. 1914, c. 708, § 13, a teamster having three or four separate horses and teams, who was sent for whenever he was needed by the proprietor of a coal yard doing a retail coal business, and at such times was employed by such coal dealer for periods of a number of successive days but “for no fixed duration of time and for no specified job” and while so employed “worked the same as any other of [the coal dealer’s] regular men,” if he was injured in the course of such employment, was not entitled to compensation under the workmen’s compensation act, because his employment was “but casual” within the meaning of the definition of the word “employee” contained in St. 1911, c. 751, Part V, § 2, before its amendment by the statute first mentioned above.</p>

<p>Contract- or tort for loss of and damage to the plaintiff’s household furniture and personal effects through the alleged negligence of the defendant’s agents and servants in the manner of packing such property, carting it to the defendant’s storage warehouse and there storing it. Writ in the Municipal Court of the City of Boston dated January 19, 1912.</p> <p>On appeal to the Superior Court the case was tried before Hitchcock, J. There was evidence tending to show that the defendant’s agents and servants were guilty of negligence in the handling of the plaintiff’s property or in the manner of storing it at the defendant’s warehouse. The defendant relied on a provision in a warehouse receipt which was mailed to the plaintiff and was dated August 1,1911, requiring notice to be given to the defendant within thirty days of the time when any loss or damage occurred.</p> <p>The plaintiff testified that she called up the defendant on the telephone and talked with some one in authority and asked him to send one of his men to her house to give her an estimate for packing, moving and storing her household goods; that the defendant sent its man, who looked over everything and gave the plaintiff an estimate, which included the packing, the moving of her effects and the storage rate for one month at the warehouse; that after this the plaintiff got an estimate from another storage warehouse, and then called up the defendant on the telephone and told the man in charge that she accepted the figures the defendant’s man had given her, and made arrangements for the moving; that the defendant asked permission to pack her books and china before the date set for the moving, and did this before July 28, or 29, when she arranged to have the defendant move her furniture; that everything was removed from the house, and that a man named Gleason was in charge of the moving; that the plaintiff had no knowledge of the damage to her furniture and did not know of her loss until October 26, 1911, when her own teamster carted it from the defendant’s storage warehouse to her new house in the part of Brooldine called Longwood; that the defendant forbade her to inspect her furniture while it was at the warehouse; that the defendant mailed to her a warehouse receipt dated August 1, 1911; that the plaintiff paid no attention to this paper; that “she did not notice that there were terms and conditions on the receipt; ” that these were in very fine print; that on October 26, 1911, she made memoranda of damage and, as she made new discoveries of damage or total loss of her effects, kept adding to her fist; that “It took three or four months or perhaps five before she came to realize the full extent of her damage; ” that on November 28, 1911, she gave the defendant written notice of her claim for damage to and loss of her property; and that pursuant to this notice the defendant’s treasurer and manager came to her house and examined her furniture, but made no objection to the form of her notice or the time of her giving it. It further appeared that the plaintiff paid the defendant the amount she agreed to pay according to the estimate given her. She offered in evidence her cancelled check, dated August 31, 1911, to the order of the defendant on which she had written before sending it to the defendant the words “for moving and one month storage.” The amount was considerably less than that stated by the figures on the warehouse receipt mailed to the plaintiff, but the defendant did not' dispute the payment by check as not being in accordance with the contract and retained the money.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. The judge refused to rule as requested “and submitted the case to the jury with proper instructions or with instructions which were not objected to by the defendant.” The jury returned a verdict for the plaintiff in the sum of $392.50; and the defendant alleged exceptions.</p>

<p>Negligence, Wanton and reckless misconduct. Practice, Civil, Exceptions, Judge’s charge.</p> <p>In an action of tort by a woman for personal injuries alleged to have been caused by the negligence or recklessness of a servant of .the defendant in allowing a wheel of the wagon in which he was driving to pass over the plaintiff’s foot, if the judge in his charge instructs the jury that the only questions for them to consider are whether the plaintiff was in the exercise of due care and, if she was, whether the defendant was negligent, and the plaintiff excepts to this part of the charge without having asked for any ruling or instruction to the effect that, even if the plaintiff was negligent, the defendant may be found to have been liable for her injuries if the defendant’s servant was guilty of wanton and reckless misconduct, it seems, that upon the argument of this exception, after a verdict for the defendant, it is not open to the plaintiff to contend that the charge was erroneous because the jury could have found that the defendant’s servant was guilty of wanton and reckless misconduct; bid in the present case it was not necessary to decide this question, because, assuming that the contention was open to the plaintiff, there was no evidence to warrant a finding of wanton and reckless misconduct.</p>

<p>Contract, Implied, Validity, Rescission. Fraud. Undue Influence. Res Judicata. Election. Practice, Civil, Conduct of trial, Exceptions. Equity Jurisdiction. Equity Pleading and Practice, Supplemental bill.</p> <p>A daughter, after she had furnished board, care and support to her mother, who, although of sound mind, was physically weak, under an agreement that the mother should pay therefor, induced her mother by undue influence to convey to her, in payment for such board, care and support rendered and to be rendered, all the mother’s property with a reservation of the income thereof to the mother for her life. By reason of a final decree in a suit in equity brought against the daughter in the name of the mother, who afterwards became of unsound mind, by one appointed conservator of her property, for a setting aside of the conveyance, the daughter was compelled to reconvey the property. The issue, whether the daughter should be paid for the board, care and support already furnished by her to her mother, was not raised nor determined in that suit. Held, that the daughter was not precluded by the decree in such suit from recovering in an action of contract for the board, care and support which she had furnished, the action of contract not being grounded upon any fraud and her misconduct with regard to the payment which she had procured by undue influence having been undone by the suit in equity.</p> <p>If a mother, who through undue influence of her daughter has been induced to convey to the daughter all her property in payment for services rendered by the daughter upon the mother’s agreement to pay therefor, brings a suit in equity against the daughter in which she asks only for a reconveyance of the property and does not offer to pay for the services rendered, and if the daughter, while contesting the suit in equity and while it still is pending, brings an action at law against the mother for compensation for such services, the mother cannot set up in defense of the action at law that, because the agreement of payment for the services by the conveyance of the property had not been rescinded when that action was brought, it was brought prematurely, she by bringing her suit in equity having elected to treat the agreement as rescinded.</p> <p>And if a final decree is entered in the suit in equity without the issue as to the right of the daughter to payment for her services having been raised therein, such decree is no bar to the action at law; nor is the daughter estopped from maintaining the action at law by any contentions made by her counsel in their brief before this court upon an appeal from the decree in the suit in equity. Accordingly, if the mother, after the entry of such final decree, files a supplemental bill asking that the action at law be enjoined on the ground that the issues therein were precluded by the suit in equity, such supplemental bill should be dismissed.</p> <p>Where a third count of a declaration was upon an implied contract and a second count might be construed to allege a special contract upon an express promise, and the judge before whom the action was tried treated the second count as one upon an implied contract and, subject to exceptions by the defendant, submitted the action upon both counts to the jury who returned a general verdict for the plaintiff, if there was evidence warranting a verdict for the plaintiff upon an implied contract and the bill of exceptions states that “the plaintiff elected to go to the jury on an implied contract only, and elected to go on the second and third counts,” it must be presumed that the jury found their verdict upon an implied contract only, so that a refusal by the judge to rule that upon all the evidence the plaintiff was not entitled to recover on the second count, or that there was no evidence that the agreement set out in the second count was made, cannot have harmed the defendant, and the question, whether the judge erred in treating the second count as alleging an implied contract, need not be considered by this court.</p>

Contract or tort, the declaration containing allegations that the defendant, in order to induce the plaintiff to furnish the service of a certain stallion to two mares, falsely represented to the plaintiff that the mares did not have any contagious disease, that, relying on such “ representation and promise,” the plaintiff received the mares at his farm and that they communicated glanders to some of the plaintiff’s horses. Writ dated February 4, 1911.

<p>Bond, Of indemnity. Mortgage, Of real estate. Attorney at Law. Words, “Expenses.”</p> <p>In an action upon a bond of indemnity given by the plaintiff in a suit in equity to the defendant in that suit, which was brought to enjoin the foreclosure of a mortgage of real estate, the bond having been required before the issuing of a temporary injunction restraining the foreclosure and its condition being that the plaintiff should save the holder of the mortgage harmless “from any loss or damage to his security under said mortgage if the same shall be declared valid under said bill” in equity, “to which he may be subjected by reason of said injunction,” where it appeared that the mortgage provided that the mortgagee should “be entitled to retain all sums then secured by this mortgage . . . including all costs, charges and expenses incurred or sustained by him ... in relation to the said property,” and the mortgage was declared valid in the suit in equity, the holder of the mortgage can recover such amounts as he expended for attorney’s fees in defense of the suit in equity and the costs incurred by him therein.</p>

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

<p>Mortgage, Assignment, Discharge, Foreclosure, Breach of condition. Executor and Administrator.</p> <p>A corporation gave to eight persons who were its directors a mortgage of its real estate, the condition of which was to save the “grantees and each of them” harmless in respect of indorsements on promissory notes of the corporation. The mortgagees thereafter indorsed two notes of the corporation. New directors of the corporation were elected to succeed those who were mortgagees and the payee of the note received a new note of the corporation which equalled in • amount the sum of the two former notes and was indorsed by the new directors and by J, a former director, and by agreement cancelled upon the earlier notes all the indorsements except that of J. All the former directors except J then assigned all their rights under the mortgage deed “together with the claim thereby secured” to the new directors. Held, that, J not having been released as an indorser from the earlier notes, his liability upon such notes and his right to enforce indemnity under the mortgage continued after the giving and acceptance of the new note and after the assignment.</p> <p>Upon the death of a mortgagee of real estate, his legal estate as mortgagee descends to and becomes vested in the administrator of his estate or the executor of his will; and, until such administrator or executor is appointed, no one can enforce the rights of the deceased mortgagee.</p> <p>If a mortgagee of real estate in this Commonwealth dies domiciled in another State, his interest in the mortgaged real estate does not pass to the foreign administrator and no proceedings to enforce the mortgage on behalf of his estate can be begun until an ancillary administrator is appointed here.</p> <p>An entry to foreclose a mortgage of real estate, which purports to have been made, after the death and before' the appointment in this Commonwealth of an administrator of the estate of one of several persons who as tenants in common owned the legal title under the mortgage, on behalf of the tenants in common who were living and the “estate” of one who had died, is void, as also is a notice of a sale under the power of sale in the mortgage, purporting to have been given in behalf of the same persons.</p> <p>Whether, under the terms of a mortgage, the condition of which was to hold and save harmless the mortgagee in respect of indorsements thereafter made by him on promissory notes of the mortgagor, there can be a default, even after the mortgagor has failed to pay the notes when they became due, before the mortgagee has paid the sums for which he is liable as indorser upon the notes, here was not decided.</p>

<p>Tort for the loss of the services of the plaintiff’s minor son, Joseph Sousa, junior, by reason of his being shot and tilled by the defendant’s son Flam. Writ dated January 17, 1911.</p> <p>The declaration alleged that the defendant’s son Flam was a minor sixteen years of age and was not a proper person to have possession and control of a gun, which the defendant well knew or in the exercise of reasonable care should have known, and that the defendant negligently gave to his son Flam and suffered him to have in his possession and control a gun and ammunition to-be fired from it, and that Flam on December 3, 1910, negligently fired the gun and shot and wounded the plaintiff’s son Joseph Sousa, junior, who in consequence thereof suffered in body and mind and died on December 28, 1910, whereby the plaintiff was put to great expense for medical and other care and attendance and was deprived of the wages and services of his son, who was about fifteen years of age.</p> <p>The answer was a general denial.</p> <p>In the Superior Court the case was tried before Sanderson, J. The character of the evidence and the essential facts which could have been found upon it are described and stated in the opinion. It appeared that Flam’s full name was Flam Correa Irome and that he often was called Flam Correa. One Donohue, a police officer of the town of Somerset, who was called as a witness by the plaintiff, was asked the question, “Do you know what the reputation of Flam Correa was as to the use of a gun at the time of the shooting?” Subject to the defendant’s exception, he answered, “Yes, I do.” He then was asked, “What was his reputation as to the use of a gun? ” and, subject to a like exception, answered, “His reputation was that he handled this gun in a very careless manner at different times in the neighborhood.” On cross-examination the witness testified that he heard one Thurber say “that Flam’s reputation was bad before the shooting as to the manner of handling a gun,” and that one Butler “made complaint to him; that this was about the time of the shooting; that he did not go to his father about it.” He then was asked, “Thurber and Butler before this accident both told you that Flam was handling a gun about there?” and answered, “On or about.” Being asked, “On or about the time of the shooting? ” he answered, “Yes, they are two of the men. I don’t know as I recall now any others.” Then he was asked the final question, referred to in the opinion, “You cannot say that these men came to you before this accident and told you, can you? and be sure of it?” and answered, “No, positively no.” Thurber and Butler both had testified as witnesses for the plaintiff.</p> <p>At the close of the evidence the defendant, among other rulings which were made, asked the judge to rule as follows:</p> <p>“1. Upon the whole case the plaintiff cannot recover.”</p> <p>“8. If the plaintiff knew the boys and that they had gone off into the woods with the guns, and could have prevented them, he cannot recover.”</p> <p>The judge refused to make either of these rulings. In regard to the subject matter of the ruling numbered 8, the judge instructed the jury as follows: “It is said by one of the witnesses, or claimed by somebody in the course of the trial, that the father of the boy who is dead met them when they were on their way on a hunting trip, and saw the boys going off with the gun; and it is claimed that you should say that if he did permit his boy to go in that way, that, in itself, was a careless thing to do, and so connected with the boy’s later injury that the father should not be permitted to recover. I leave that whole question to you. If any careless act on the part of the boy or on the part of the father, who is bringing this suit, contributed to the boy’s accident and injury, then he could not recover.”</p> <p>In regard to the evidence of reputation the judge instructed the jury as follows: “But on that I ought to say, if the police officer’s testimony means that because of this shooting, or as a result of investigation after the shooting, he discovered things as to the boy then, then that reputation and evidence ought not to go in at all. It is only if the boy had a reputation for being a careless boy with a gun before this accident, that it becomes competent evidence; then only on one theory, not at all to prove the boy was careless in this case, it would not be competent on that issue, only on this, if there was such a reputation, such talk in the community, it is for you to say whether the father would or would not have had knowledge of it if people generally had; that is, as bearing on the father’s knowledge of the reputation. If you find it bears at all on the case, it bears only on that issue of whether the father knew that the boy was careless with a gun.” The defendant excepted to this part of the charge.</p> <p>The jury returned a verdict for the plaintiff in the sum of $900; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability. Evidence, Opinion.</p> <p>If a woman who has been employed in a rope factory during two months, first at untying knots in hemp and then in cutting such knots, and who never has worked on a machine, is ordered, by the person whom she has been told by the superintendent to obey, to start a picker machine and to put hemp into it and press the hemp down, which she does without any instruction or warning as to danger and having no knowledge that the hemp will be moved forward by revolving feed rollers, and thereupon her hand is drawn into the feed rollers and injured, in an action by her against her employer for such injuries there is evidence for the jury that she was in the exercise of due care and that her employer was negligent in failing to instruct and warn her in regard to the dangers connected with the work.</p> <p>In an action by an employee in a rope factory against his employer for personal injuries caused by the plaintiff’s hand being drawn into the feed rollers of a picker machine, into which the plaintiff was ordered to put hemp and push it down, if there is evidence that at the time of the accident some of the teeth in both the upper and lower rolls were broken and that for this reason the rolls revolved faster and drew the hemp through them at a more rapid rate than when they were in good repair, and that owing to this rapidity the machine was in an unsafe condition and caused the plaintiff’s injury, and if there also is evidence of the plaintiff’s due care, the plaintiff is entitled to go to the jury on a common law count alleging a defective and unsafe condition of the machine on which he was put at work and also on a statutory count alleging a defect in the ways, works or machinery of the defendant.</p> <p>In an action by a woman .employed in a rope factory against her employer for injuries caused by having her hand drawn into the feed rollers of a picker machine into which the plaintiff was ordered to put hémp and push it down, if the plaintiff, after giving certain testimony in regard to the duties of the person who gave her the order, is asked, “What else did he do?” and replies, “And he bossed me,” this answer is not inadmissible as a characterization by the witness of the position of the person in question in the defendant’s employ, because the answer properly may be understood to mean merely that the person in question gave the plaintiff instructions in regard to her work.</p>

Tort for personal injuries sustained by the plaintiff on January 13, 1911, by reason of the falling of a freight elevator in the livery stable of the defendants at Taunton, when the plaintiff, who was a teamster in the employ of the Taunton Teaming Company, was upon the elevator in charge of some bales of hay that were being delivered to the defendants by his employer. Writ dated July 22, 1911.

<p>Bond, To dissolve attachment. Surety. Practice, Civil, Amendment.</p> <p>No action can be maintained against the surety on a bond to dissolve an attachment, if, in the action in which the attachment was made, after the bond was given a new plaintiff was substituted by an amendment, of which the surety was given no previous notice as required by R. L. c. 173, § 121. In the present case the original plaintiff was a corporation called the Mathews Consolidated Slate Company and the plaintiff substituted by amendment was a distinct and separate corporation called the Mathews Slate Company.</p>

<p>Equity Jurisdiction, To enjoin pollution of water supply. Water Supply. Cape Pond.</p> <p>In a suit in equity under R. L. c. 75, §§ 124, 126, by the selectmen of the town of Rockport against the proprietor of a fish glue factory to enjoin the defendant from polluting the waters of Cape Pond, which has an area of about forty acres and is a source of water supply for the town of Rockport, where it appeared from the findings of a master on evidence not reported that there was no feeder or tributary flowing into Cape Pond, that no filter basin was located there and that “analyses of the waters of the pond do not disclose evidence of the presence of impurities from the waste from the defendant’s factory,” a decree dismissing the bill was affirmed with costs.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by an employee in a cracker factory against his employer for personal injuries caused by the plaintiff’s hand being crushed under the plunger of a cracker pressing machine, there was evidence tending to show that the plaintiff’s duties were to receive the pressed dough from the machine by pulling it out on a canvas apron which was not run by machinery, that from two years’ acquaintance with the machine he was familiar with its simple construction and fully appreciated the danger of placing his hand under the plunger when the machine was in motion, that at the time of the accident the machine should not have been in motion and the plaintiff was at its side sprinkling flour on dough in a large trough separated from the machine, that unnecessarily, and in some way which the evidence left to conjecture, he rested his left hand on the machine and under the plunger, when the machine started automatically, the plunger descended, and the hand was crushed, that half an hour before the accident he had noticed the machine start automatically and had reported that fact to the defendant’s machinist, that later he saw the machinist firing it, but the machinist never stated to him that he had remedied the defect. Held, that there was no evidence warranting a finding that the plaintiff was in the exercise of due care.</p>

<p>Bill in equity, filed in the Superior Court on February 24, 1914, by Edwin R. Fairbanks, Edward Willett and Edward A. Tasker, three officers and members of a voluntary unincorporated organization known as the Boot and Shoe Cutters Assembly, 3662, of the Knights of Labor, acting on behalf of themselves and of all other members of the Assembly, against certain officers of the Boot and Shoe Cutters Local, 62, of the United Shoe Workers of America, certain officers of the Joint Council of the United Shoe Workers of America, which is a national association, voluntary and unincorporated, with which Local, 62, is affiliated, and Fred A. Trafton, superintendent of the cutting department of one Sewall Clark, a shoe manufacturer doing business under the firm name of Williams, Clark and Company, the bill alleging that the defendants other than Trafton fairly represented the interests of the other members of Local, 62, and of the United Shoe Workers of America, and that they were joined both as individuals and as representing such other members.</p> <p>The suit was referred to James W. Santry, Esquire, as master.</p> <p>The purpose of the bill, as stated by the master, was to restrain the defendants from interfering with the employment of the plaintiffs and of other members of Assembly, 3662, and also to have damages assessed by reason of an alleged unlawful interference with the employment of the plaintiffs, resulting in their discharge from the concern of Williams, Clark and Company, by whom they had been employed as shoe cutters.</p> <p>The master found in substance that the defendants, except Trafton, were proper representatives of the interests of all other members of their respective organizations and that, with respect to the matters in issue, they acted within the scope of their powers as such representatives. Other findings were in substance as follows:</p> <p>Assembly, 3662, at one time had been a large and powerful labor organization, comprising substantially all of the shoe cutters in Lynn. As a result of some internal trouble, many members severed their connection with it and became members of Local, 62, the membership of the assembly being reduced to eighteen. Local, 62, had a membership of about fourteen hundred.</p> <p>On January 23, 1914, because of a grievance in the lasting department of Williams, Clark and Company, the members of the United Shoe Workers of America employed by that firm, including members of Local, 62, struck. The plaintiffs remained at work. After the immediate grievance was settled, the defendants refused to call off the strike because Local, 62, desired to have a price list pertaining to the cutting room adopted by the firm and it had been decided that this would be an opportune time to have this matter considered. The price list that was under consideration, besides naming in detail the prices that were to be charged for cutting the various parts of a shoe, also contained a stipulation, in substance, that all help needed should be employed through the office of Local, 62, and that no person, who for good reasons was objectionable to Local, 62, should be employed in the cutting room. There was a conference of persons representing the various interests of the defendants which lasted several hours, at which there was no discussion as to the matter of prices. At no time during negotiations for the settlement of this strike was there any serious difference between the parties as to prices. The matter that caused the greatest concern was the stipulation with reference to the employment and the retention of help and the effect that this would have upon the plaintiffs.</p> <p>At the time of this conference, the plaintiffs were still in the employ of Williams, Clark and Company, and this fact was known to two of the defendants, Atwill and Gage, who were members of an investigating committee of the national organization of the defendants and who attended the conference, and they further knew that the plaintiffs had continued at work after the strike had been declared, and that they were not members of Local, 62. The plaintiffs were in every way satisfied with their work, one of them having been in the firm’s employ for a period of about fourteen years. They were regarded by the defendant Trafton as competent and efficient workmen and he desired to retain their services, but, from the statements made by the two defendants referred to, and from their actions at the conference, he was reasonably impressed with the belief that, if he did so, the strike, which had not then been officially declared settled, would be continued in force, although the grievance for which it originally had been called had been satisfactorily adjusted. He realized that any prolongation of the strike would cause loss and embarrassment to his employer, and this was a matter which he desired to avoid. The fact that the plaintiffs were in the employ of Williams, Clark and Company at the time of the submission of this price list was a very embarrassing feature, and for the purpose of eliminating it as much as possible from the situation, it was decided that the factory should be shut down on the day following the conference and that all workmen, including the plaintiffs, should be excluded from it. One purpose of such action was that it would result in a situation that would require the plaintiffs to become members of Local, 62, before they could be re-employed. The plaintiffs Tasker and Willett both made an effort to join Local, 62, but were prevented from doing so by reason of the amount of the fee, which is hereinafter discussed, that was imposed. Neither of them ever made formal application for reinstatement. The plaintiff Fairbanks never made any effort to join this Local.</p> <p>The agreement proposed finally was signed. The strike then was called off and four days later all of the firm’s employees except those in the cutting room returned to work. Four days later still the cutters returned, but, when the plaintiffs presented themselves for work, after some talk with the defendant Trafton as to whether they had seen the business agent of Local, 62, with reference to becoming members of Local, 62, they were not employed. Trafton would then have employed the plaintiffs had they been members of Local, 62, but he was prevented from doing so by reason of the agreement that he had signed. At the time he signed the agreement, he was influenced largely by the feeling that unless he did so the strike, which was then in progress, would be continued, with resultant loss and embarrassment to his employer, and this feeling on his part had a reasonable foundation, and was caused by the statements and actions of the defendants who were at the conference referred to.</p> <p>There was great hostility on the part of the defendants as officers and members of Local, 62, and also as officers and members of the United Shoe Workers of America, toward the plaintiffs and toward other members of Assembly, 3662. When the plaintiffs, Tasker and Willett, sought reinstatement in the Local, a fee of $100 was imposed upon them, the officers of the Local knowing that they were seeking membership in Local, 62, in order to be reinstated in the employ of Williams, Clark and Company and having reasonable grounds for believing that they were in no financial condition to pay this sum. The fee was imposed for the purpose of punishing these men for their persistence in not becoming members of the United Shoe Workers of America.</p> <p>By these methods, and by the manner in which these defendants have dealt with various employers, an impression reasonably had been created among employers that the employment of these plaintiffs or of other members of Assembly, 3662, might result in trouble and embarrassment to them, and for this reason the plaintiffs and all members of Assembly, 3662, were effectually excluded from employment in substantially all of the factories of Lynn.</p> <p>On the question of damages, the master’s findings were as follows: “It appeared that shortly after their discharge by Williams, Clark and Company, the plaintiffs Tasker and Willett obtained employment in Stoneham, and it did not appear that they had suffered any loss by reason of any diminution in their wages, and I therefore find that if any damages should be assessed in their cases, the amount of the same should be nominal.</p> <p>“In the case of the plaintiff Fairbanks, however, it appeared that he is a man of about sixty-five years of age, and up to the date of his discharge from Williams, Clark and Company, had been in the employ of that concern substantially for a period of fourteen years, and would now be working there had it not been for the interference of the defendants. At the time that the hearings in this case were in progress he had been out of employment for about six weeks. For the past nine years his. average yearly wages have been $562.46. Having in mind the-loss that he has already sustained, and the prospect that his inability to secure work may extend over a substantial period of time, it seemed to me, and I find, that he should be allowed the sum of $500 as damages.”</p> <p>An "order” was made confirming the master’s report and a final decree was entered by order of Hamilton, J., dismissing the bill as against Trafton, enjoining the other defendants and the officers and members of the Local, 62, and the United Shoe Workers of America, “from interfering and from combining, conspiring or attempting to interfere with the employment of the plaintiffs” and of all members of the Boot and Shoe Cutters Assembly, 3662, Knights of Labor, “by representing or causing to be represented, in expressed or implied terms to any employer of said plaintiffs or of said members of said plaintiffs’ association, or to any person or persons or corporation who might become employers of any of the said plaintiffs or of members of their said association, that such employers will suffer or are likely to suffer loss or trouble in their business from employing or continuing to employ said plaintiffs or any members of their said association; or by intimidating or attempting by threats, direct or indirect, expressed or implied, of loss or trouble in business, or otherwise, any person or persons or corporation who .now are employing or may hereafter employ or desire to employ said plaintiffs or any members of the plaintiffs’ said association; arid from any and all acts, or the use of any methods, which by putting or attempting to put any person or persons or corporation in fear of loss or trouble, will tend to hinder, impede or obstruct the plaintiffs or any member or members of the plaintiffs’ said association, from securing employment or continuing in employment.” Other portions of the decree are described in the opinion.</p> <p>The defendants, excepting Trafton, appealed.</p> <p>The case was submitted on briefs.</p>

Bill in equity, filed in the Superior Court on February 25, 1914, and afterwards amended, against the trustee in bankruptcy of the estate of Solomon Jacobs and John F. Kelly, a deputy sheriff, seeking, in a second prayer of the bill, to enjoin the defendants from proceeding with the collection of an execution against the plaintiff and one Thomas A. Cromwell until an execution in favor of the plaintiff against Jacobs had been allowed in set-off, and, in a third prayer, an…

<p>Tort, under R. L. c. 51, § 18, by the administrator of the estate of Michael Burke, for personal injuries received by the plaintiff’s intestate on November 19, 1907, from a fall caused by his stumbling on Bridge Street in Lynn where a curbstone had sunk below the level of the adjoining curbstone. Writ dated March 28, 1908.</p> <p>In the Superior Court the case was tried before Pratt, J. There was evidence tending to show that the curbstone in question had sunk three inches below the curbstone adjoining and that it had been in that condition for from six months to a year.</p> <p>The testimony of the defendant’s claim agent, referred to in the opinion, was to the effect that, relying on the information contained in the notice given to the defendant, he went to Bridge Street and examined only the westerly sidewalk; that he knew only one Sullivan who owned land on the street, and that that land was on the easterly side of the street. He also stated that, from information that he had, he had reason to believe that there was land on the westerly side of the street owned by a person named Sullivan, and that he relied on that being the fact.</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract against William H. Bennett, Harry M. Doane and John R. Honors, copartners doing business as the Essex Automobile Company, with a declaration containing, as amended, three counts. At the trial the plaintiff waived the third count. The first count was for $766.60, “for money received by the defendants to the plaintiff’s use,” according to an account annexed of ninety-three items. The second count alleged “that the defendants and the plaintiff had a mutual settlement among themselves of the indebtedness between them, and there was a balance found due the plaintiff on accounting together for the sum of $766.60,” according to the same account as was referred to in the first count. Writ in the District Court of Southern Essex dated January 18, 1912.</p> <p>On appeal to the Superior Court, the case was tried before Sanderson, J. Evidence as to the statement of the account, and a part of the testimony of Pierce, referred to in the opinion, were as follows:</p> <p>Barker, described in the opinion, testified that he asked the defendants for a statement of how he stood and that a statement bearing the letterhead of the defendants dated September 12, 1911, was given him either on his first or second visit or upon some other occasion. All of the defendants testified that this statement was given without their knowledge or authority. This statement was introduced in evidence and in terms was like the first eighty-six items in the account annexed to the declaration. It showed a credit balance in favor of Barker Auto and Repair Company of $1,119.65. It did not contain the last seven items in the account annexed to the declaration. Barker "also testified that when he was in Lynn in August, 1911, the defendants told him that there would be a credit given him for some parts that had been returned as soon as it came from the Warren Detroit Company,” and that on his second visit Honors [one of the defendants] "promised to send a check on the following Thursday, which he failed to do.”</p> <p>On September 27,1911, one Pierce, an attorney at law practicing in Hartford, Connecticut, came to Lynn in behalf of the plaintiff. Pierce testified that he called upon the defendant Honors and stated that Barker and the plaintiff were short of funds and were being pressed for money; that he showed Honors the statement of September 12, 1911, above referred to, and asked if it was correct; that Honors said, "Yes, as far as it goes,” that in addition there were credits for parts that had been returned; that he asked Honors why the account was not settled; that Honors answered that the partnership account was short of ready cash; that he asked Honors whether there was any dispute and that Honors said, “No,” they simply had not got the money to pay it; that Honors said there was a racing car, a coupé, a roadster, some other car, four cars they had on hand of the Warren type they wanted to sell and asked him whether he would not take one of those cars; that Pierce said, “No, the Barker Company needs the actual cash and this money is due them; ” that Honors said that Barker did not take all the cars he ought to, and that Pierce replied that Barker sold all he could and said that if there was any claim or offset or counter claim on this fund he wanted to know it then, and that Honors replied, “No;” that Pierce then said, “You never expected he would sell all those twenty-five cars, did you?” and that Honors replied, “No, that is simply a custom of the trade to get a line on how many we are going to want from the factory;” that Honors finally gave him his personal check for $400, for which he gave Honors a receipt on account for the Barker Auto Company, “and that Honors promised to pay the balance when they had sold one or all of those four cars; that Pierce objected to that and that Honors finally-said that when he sold any of those four cars so as to get some cash he would pay the balance.”</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence the defendant asked, as to each count, for a ruling that the plaintiff was not entitled to recover on that count. The rulings were refused.</p> <p>The jury found for the plaintiff in the sum of $843.26. The defendants alleged exceptions.</p>

<p>Tort under R L. c. 51, § 17, against the town of Amesbury by the administrator of the estate of Thomas M. Tannian for the loss of life of the plaintiff’s intestate on June 22, 1911, when he was three years, seven months and twenty-six days of age, from being drowned in. the Powow River, by reason of the alleged want of a sufficient railing to the bridge which crosses that river as a part of Pond Street, a public highway in that town. Writ dated September 16, 1911.</p> <p>In the Superior Court the case was tried before Bell, J. The facts which could have been found upon the plaintiff’s evidence are stated in the opinion.</p> <p>The plaintiff was a blacksmith and had his shop on Pond Street at the edge of the west bank of the river at the end of the bridge, and his residence was on the opposite side of the river, distant about four minutes’ walk from the shop. The plaintiff had three other children older than the intestate, one of them being ten and another twelve yéars of age, who attended a school situated on the west side of the river and who, in going to school, had to cross the bridge and pass by the plaintiff’s shop. The bridge was a stone arch with wooden picket fences or railings on both sides, the pickets being nailed to wooden stringers. The intestate was accustomed to come sometimes to the plaintiff’s shop, at times alone and oftener with the other children when they were on their way to school, and the intestate would spend his time with the plaintiff until the children came out of school. On the day of the accident at about a quarter past eleven a man came to the shop to have a shoe tightened on his horse, and the intestate was with the plaintiff then. The plaintiff took the tool box out of doors and put a nail in the shoe, and in the meantime the scholars came running down the sidewalk and the intestate crossed over and the plaintiff looked over and saw him on the bridge.'' That was the last he saw of him. The plaintiff just had laid the tool box down at the door, when a boy came to him and told him that there was a boy in the river. It did not seem to the plaintiff to have been more than fifteen seconds or so after he saw the intestate on the bridge.</p> <p>A boy named Moorehouse, nine years of age, who was called as a witness by the plaintiff, testified that he and seven or five other boys were on the bridge when the accident happened, that he had a bow and arrow and was pointing the arrow toward an old barn, trying to put it through the window, and that he saw the intestate come on the bridge from his father’s blacksmith shop, that as the witness was aiming the arrow he saw the intestate about twelve feet from him and near the place where the pickets were out of the fence or railing of the bridge, and that, after the witness had pointed the bow and arrow the intestate “leaned up against the fence, and then was going to his father’s shop, and walked right through the fence, through the pickets,” that the intestate fell backward through the open space, that the witness had noticed that the pickets were out before that day and had fished through the hole there on three different days which were not “three days running.”</p> <p>On cross-examination this witness testified that, of the seven or five other boys on the bridge, one named Joe was fishing and the other boys were in a row looking down to see whether Joe was catching any fish, that the intestate was peeking through the fence, and that he had been playing around there, sitting in the gutter in one place, and that he sat there about five minutes. Being asked the question, “Then he got up from the gutter, did he?” the witness answered, “He was right over there [indicating the place upon a photograph], and I had the bow and arrow pointed down to the window, and he slid from there to there, and there is where the two pickets were out, and he went through.”</p> <p>A boy named Murphy, about seventeen years old, who was on the bridge, testified that the accident happened between a quarter past and half past eleven o’clock, that the boy fishing was about a foot from where the intestate fell in, that the witness just looked over the fence once to see the boy fish, that "then a team came by and I noticed this little fellow a kind of backed up and I didn’t see him again then till I heard the splash. The last I saw him he was about a foot from the hole in the fence.” He further testified that just after the intestate fell in he “noticed there was a kind of a large space there . . . about a foot and a little over.” A witness, named Melia, thirty-three years of age, testified that “three days, if not four,” before the accident he “noticed that there were pickets off the fence,” and, being asked how many pickets he saw off, answered, “Well, I wasn’t positive whether there was two or not, but I know there was quite a space where there were pickets off. There might possibly have been two, but I am quite positive there was one.”</p> <p>Another witness, named Ouilet, fourteen years of age, testified that three or four days before the accident he saw a boy pull a picket off the railing of the bridge.</p> <p>A boy named Grady, fifteen years of age, testified that four or five days before the accident he was on the bridge when a fire engine was tried there, and that the hose was drawn through the hole in the fence of the bridge where the pickets were off, and that this hole was probably eight or ten inches wide, that he noticed the hole again after the accident and that, “there was a space there where the pickets were off. . . . There was one off anyhow, and there was space enough for two pickets.”</p> <p>At the close of the plaintiff’s evidence the defendant rested without calling any witnesses; whereupon the judge ordered a verdict for the defendant, and reported the case for determination by this court. If the ordering of the verdict was wrong, judgment was to be entered for the plaintiff in the sum of $500; otherwise, judgment was to be entered for the defendant on the verdict.</p>

<p>Negligence, Of express company in failing to remove freight from passenger platform of railroad station.</p> <p>The fact, that a passenger alighting from a railroad train late in an afternoon of December did not look to see whether there was any obstruction on the platform of the station but looked straight ahead in the direction in which he and other passengers were going, and stumbled over a pile of galvanized iron pipes that had been left on the floor of the station, does not show necessarily that he was negligent, and, in an action against an express company that left the pile of pipes unremoved and unguarded, to recover for his injuries thus sustained, the question of his due care is for the jury.</p> <p>If an express company is permitted to unload from a train a shipment of galvanized iron pipes upon the platform of a passenger station, it is its duty to remove them within a reasonable time so that they may not be in the way of passengers passing over the platform, and, in determining whether the placing of such an obstruction in the path of travellers is evidence of negligence toward one of them injured thereby, it is necessary to consider, not only the length of time that such obstruction existed, but also the character of the obstruction, the amount of travel, the condition of the place as to light and other attendant circumstances.</p> <p>In an action against an express company for personal injuries sustained by falling over a pile of galvanized iron pipes that the defendant had been permitted to unload from a train upon the platform of a passenger station of a railroad corporation, where the defendant contends that there is no evidence to show that the pipes were in the possession and control of the defendant at the time of the accident, if there is evidence that immediately after the accident the pipes, by order of the station agent, were placed on a truck of the defendant by men in the defendant’s employ and that afterwards the pipes were seen on a wagon of the defendant outside the station, this is sufficient to warrant a finding that the pipes were in the possession and control of the defendant when the accident occurred.</p>

<p>Mechanic’s Lien. Contract, Rescission. Waiver.</p> <p>A contractor made a contract in writing to perform and furnish certain labor and materials for a building. The contract provided that “the balance, namely, $3,500 is to be paid to the said contractor after the owner has secured on said property first and second mortgages, but said payment of the balance shall not be made later than six months from date of the completion of the work.” At the time of the making of the contract the owner fraudulently concealed from the contractor the existence of mortgages on the property. After the contractor “had got the work pretty well along” he discovered the existence of mortgages on the property, but, instead of rescinding his contract, he proceeded to complete it without objection. Two days after the completion of the work he filed a statement of lien founded on his alleged full performance of the contract. On a petition to enforce his alleged mechanic’s lien, it was held, that the petitioner, having completed the contract after knowledge of the fraudulent concealment of the mortgages, waived the fraud and was bound by the terms of the contract, and could not establish any lien because by the terms of the contract he had agreed to give credit for more than thirty days after the completion of the work.</p>

<p>Great Pond. Water Supply. Humphrey’s Pond. Evidence, Ancient deeds, Chalks and plans. Boundary. Practice, Civil, Auditor. Eminent Domain, Taking. Damages, For the taking of waters. Municipal Corporations. Parks. Lynnfield.</p> <p>By a grant of the General Court to “John Humfry” on May 6, 1635, before the Colony ordinance of 1641-47, of “500 acres of land & a freshe pond, with a little ileland conteyneing aboute two acres,” subject to a right of the towns of Saugus and Salem “to build stoore howses vpon the said ileland, & to lay in such pvisions as they iudge necessary for their vse in tyme of neede,” Humphrey acquired as private property both the five hundred acres of land and the great pond with the island therein, which now is called Humphrey’s Pond and sometimes Suntaug Lake; but the grant, having been a gratuitous one, is to be construed strictly, and, there having been no express grant of the waters, Humphrey, although he took the pond, acquired no interest, except as a riparian proprietor, in the stream which formed its outlet.</p> <p>Although John Humphrey under the grant from the General Court in 1635 owned the bed of Humphrey’s Pond and had the right to have the water remain in the bed so as to preserve it as a pond, he had no absolute ownership in the water but only the right to use it as a riparian proprietor; and consequently, those claiming under Humphrey, upon a petition under St. 1881, c. 171, §| 3, 6, to recover damages for the taking of the waters of Humphrey’s Pond by the town of Peabody for an additional water supply, although they may recover for damages to their property by the taking of the pond, can recover no damages based on the value of the pond as a water supply, because they had no right to sell the water for that purpose.</p> <p>The title to real estate of a predecessor in title of a petitioner for damages, which was acquired by a levy of execution, may be proved by a recital in an ancient deed in the chain of title made by such predecessor in title, from the language of which such a levy of execution may be inferred.</p> <p>Where those having the title of one, who by a grant from the General Court before the Colony ordinance of 1641-47 owned the land surrounding a great pond and the bed of the pond and riparian rights in its waters, gave deeds of parcels of the land bounded “by the pond,” or with a boundary described as “running by the pond” or to some monument on the edge of the pond and thence along or by the pond, there being no apparent motive for any of the grantors to retain then title to the bed of the pond or their rights in its waters after parting with their upland, the title passed to the centre of the pond where the grantor’s ownership extended so far.</p> <p>Other deeds, however, of owners having a like title, which described the premises conveyed as running “to the edge of the pond” and as being bounded “on the edge of the pond,” in the absence of any other mention of the pond or of rights in its waters or any statement showing a broader intent, passed title only to the low water mark of the pond.</p> <p>Where a petition for the assessment of damages was referred to an auditor “to hear the parties and their evidence and find the facts and report the same to the court, together with such rulings and questions of law as either party may request,” if the auditor has made what he calls a “finding,” which appears to have been a ruling of law rather than a finding of fact and to have been erroneous, it will be disregarded.</p> <p>St. 1881, c. 171, § 3, authorized the town of Peabody to take the waters of Humphrey’s Pond for an additional water supply. Section 5 of the same chapter required the town “within sixty days after the taking of any land” under the act to file a description thereof in the registry of deeds. The town took the waters of the pond by inserting an intake pipe ten feet below' the high water mark of the pond. Held, that the taking was a valid one, the filing of a description of the property taken being required only in case of a taking of land, and that consequently damages for the taking must be assessed upon the basis that the town took the waters of the pond to the level of the pipe and no more.</p> <p>Upon a petition for the assessment of damages for the taking by a town under statutory authority of the waters of a pond for an additional water supply, although the town under its taking can draw from the pond only so much water as may be required for the wants of the town, present and future, yet a petitioner who is deprived of a right to use the waters of the pond is entitled to have his damages assessed according to the taking of the waters that has been made.</p> <p>Where a town under statutory authority has taken the waters of a great pond as a source of water supply, it does not become the absolute owner of the waters of the pond or entitled to use them for any other purposes than those stated in the statute that authorized the taking, and all public and private rights not inconsistent with the new and limited right acquired by the town remain as before.</p> <p>At the trial of petitions by the several owners of portions of the bed of a great pond and of the right to use its waters as riparian proprietors, against a town, for the assessment of damages for taking the waters of the pond under statutory authority as a source of water supply, a plan, which is used as a chalk to show the claims of the several petitioners, although it may be permitted to be used for this purpose, is not competent evidence of the property of' each petitioner in the bed of the pond, which it purports to show.</p> <p>On petitions under St. 1881, c. 171, §§ 3, 6, by the several owners of portions of the bed of Humphrey’s Pond and of the right to use its waters as riparian proprietors, for the assessment of damages sustained from the taking of the waters of the pond by the town of Peabody as an addition to its water supply, where § 5 of the statute required that the town “within sixty days after the ’ taking of any land” under the statute should file a description thereof in the registry of deeds, and the town had filed no description of any land taken but had made an actual taking of the waters by inserting an intake pipe ten feet below the high water mark of the pond, it was held, that an instruction of the presiding judge that the town had taken an easement in the bed of the pond, which permitted the jury to give damages for such a taking, was erroneous, because no taking was made of any interest in the land and the easement to have the water supported by the bed of the pond remained unaffected by the taking.</p> <p>Under R. L. c. 28, § 2, a town has the right to take for park purposes land covered ■ by water and rights in the water as well as upland.</p> <p>The town of Lynnfield under R. L. c. 28, § 2, took for park purposes land upon Humphrey’s Pond, which was described in the instrument of taking as bounded “northerly and easterly by Suntaug Lake, also called Humphrey’s • Pond.” Held, that the town acquired by the taking the same title in the bed of Humphrey’s Pond and the same right to use the waters of the pond that belonged to the owners of the land taken by it.</p>

Tort for personal injuries sustained on April 1, 1912, when the plaintiff, who was a woman sixty-five years of age, was a passenger of the defendant and was waiting for her train on the platform of the defendant’s station at Orient Heights in the part of Boston called East Boston, from being struck and knocked down by reason of the alleged negligence of an agent or servant of the defendant. Writ dated May 23, 1912.

Bill in equity, filed in the Superior Court on June 10, 1913, for an accounting by the defendant for the proceeds of a joint enterprise to tear down certain buildings in Lynn that had been purchased by the defendant and to dispose of the materials, as described in the opinion, in accordance with the terms of a contract in writing between the plaintiff and the defendant dated April 18, 1913.

Tost for personal injuries received by the plaintiff while at work in the defendant’s factory in the employ of an independent contractor, as stated in the opinion. Writ dated May 5, 1911. In the Superior Court the case was tried before Chase, J. The material evidence is described in the opinion.

<p>Tort under St. 1909, c. 541, §§ 127, 129, by the widow of Michael J. Corbett for his instantaneous death while working for the defendant as a brakeman on July 8, 1912, at Lawrence. Writ dated December 6, 1912; also Tort under U. S. St. of April 22, 1908, c. 149, as amended by TJ. S. St. of April 5, 1910, c. 143, by the administratrix of the estate of the same Michael J. Corbett, who also was his widow, for his death. Writ dated June 12, 1914.</p> <p>The U. S. St. of April 22, 1908, c. 149, as amended by U. S. St. of April 5, 1910, c. 143, is as follows:</p> <p>“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.</p> <p>“Sec. 2. That every common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.</p> <p>“Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where. the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.</p> <p>“Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury .or death of such employee.</p> <p>“Sec. 5. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this Act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.</p> <p>“Sec. 6. That no action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued.</p> <p>“Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any State court of competent jurisdiction shall be removed to any court of the United States.</p> <p>“Sec. 7. That the term ‘common carrier’ as used in this Act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.</p> <p>“Sec. 8. That nothing in this act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the Act of Congress entitled ‘An Act relating to liability of common carriers in the District of Columbia and Territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employees,’ approved June eleventh, nineteen hundred and six.</p> <p>“Sec. 9. That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.”</p> <p>Under an agreement of the parties that the cases might be tried together on a certain day, they came on to be tried before Hall, J., who ruled that the bringing of the action by the administratrix under the federal statute subsequent to the bringing of the action by her as widow under the State statute operated to supersede the action under the State statute and to deprive the court of jurisdiction to hear it during the pendency of the action under the federal statute, and that judgment should be entered for the defendant in the action under the State statute. The judge accordingly ordered that such a judgment be entered and reported the case to this court for determination of the corrects ness of his ruling and order.</p>

<p>Voluntary Association. Partnership. Trust. Judgment. Merger. Election. Equity Jurisdiction, To reach and apply property not attachable at law.</p> <p>Where a declaration of trust and by-laws, providing for the holding of property by trustees for the benefit of the owners of assignable certificates representing the beneficial interest in the property, provide that the shareholders representing two thirds in value of outstanding shares shall have power to remove any or all of the trustees at any time without assigning any cause, to fill any vacancy so caused, to terminate the trust at any time previous to the specified limitation and to terminate it by compelling the trustees to convey the trust property to new trustees upon a different trust or to a corporation; and further provide that a majority of the shareholders at any time may amend the declaration of trust and at any annual or special meeting may amend the by-laws, the voluntary association thus formed is a partnership and not a trust.</p> <p>Accordingly, where the declaration of trust creating such an association provides that “all contracts and engagements entered into by the trustees, and all conveyances and instruments executed by” them shall be in their respective names, shall provide against any personal liability on their part, and shall stipulate that only property in their hands as trustees shall be answerable therefor, and the by-laws provide that the treasurer of the association shall “make, sign, endorse, and accept for and in the name and behalf of the company, promissory notes ... in the regular course of its business,” a note, given for money advanced for the association’s benefit and signed by the treasurer with the name of the association followed by his name and official designation, is not an obligation of the trustees executed in accordance with the power conferred upon them, but is a note of the partnership executed by their agent pursuant to their bylaws; and a suit in equity cannot be maintained to establish the debt as a debt of the trustees incurred in the performance of their duty as trustees and to cause it to be satisfied out of the trust estate.</p> <p>Statement by Rügg, C. J., of the doctrine of merger by judgment and discussion of its limitations.</p> <p>It seems, that, if the holder of a note signed by trustees of a voluntary association in the performance of their duty in the management of the trust property brings an action at law against them and pursues it to judgment, his right after-wards to bring a suit in equity for satisfaction of his claim out of the trust estate is not merged in the judgment in the action at law, which can run against the defendants therein only as individuals.</p> <p>Whether, where the holder of a promissory note of a voluntary association, which is managed by trustees who hold all its property but which is a partnership, the note being signed in the name of the association by its treasurer who was authorized to sign it thus, brings an action at law upon the note against the trustees and recovers judgment therein, and it appears that some of the defendants in that action are shareholders in the association, he is precluded by such judgment from maintaining a suit in equity against all the shareholders as partners to reach and apply partnership assets in payment of the note as a partnership debt; and whether, and in what manner, if he is so precluded, he can overcome that obstacle, are questions which were not decided in this suit in equity which was prosecuted wrongly on the theory that the note was a note of the trustees executed in the course of their duty as trustees.</p> <p>The holder of a promissory note of a voluntary association, which is managed by trustees who hold all its property but which is a partnership, the note being signed in the name of the association by its treasurer within the scope of his authority, by bringing an action at law against the trustees as makers of the note and pursuing that action to a judgment, does not make a binding election to pursue the trustees personally only and is not thereby precluded from bringing a suit in equity against all the shareholders as partners to establish the debt and to have applied in satisfaction of it partnership property which cannot be attached at law.</p> <p>The interest of a voluntary association, which is a partnership, in real estate in Cuba held and managed for it by trustees under a declaration of trust, where it appears that the trustees in accordance with their duties have made contracts with a large number of persons to convey portions of the real estate to the respective holders of the contracts when such holders have completed a series of instalment payments therefor, is not so peculiar in its nature that it cannot be sold, in a suit to reach and apply such interest in satisfaction of a debt of the association, by the means open to a court of equity.</p>

<p>Bill in equity, filed in the Superior Court on January 16 and amended on June 25, 1913, also amended on January 2, 1914, by the alleged owner of certain real estate in Medford to set aside the foreclosure of a mortgage made by the plaintiff to the defendant Carro and by him assigned to the defendant Forster, also, by amendment, for an accounting.</p> <p>The case was referred to Ralph W. Bartlett, Esquire, as master. He filed a report and later a supplemental report. In these reports the master made the findings that are stated in the opinion. The defendant Carro filed the following exceptions to the master’s reports:</p> <p>1. To the master’s refusal to rule that the foreclosure proceedings of September 9 [1912] were sufficient as a matter of law to give the defendant Samuel Carro title by virtue of the sale on the above date.</p> <p>2. To the master’s refusal to rule that the sale of November 29 [1912] was sufficient as a matter of law to give the defendant Samuel Carro title by virtue of the sale on the above date.</p> <p>3. To the master’s refusal to rule that the petitioner if entitled to an accounting is entitled to have an accounting up to September 9, 1912.</p> <p>4. To the master’s refusal to rule that if the petitioner is entitled to an accounting she is entitled to have an accounting up to November 29, 1912.</p> <p>5. To the master’s refusal to rule that the defendant Samuel Carro is entitled to the full amount of $90 reserved at the inception of the transaction as a bonus and that the same cannot be apportioned in the accounting.</p> <p>6. To the master’s refusal to rule that the defendant Samuel Carro is entitled to interest for two years allowed on his mortgage in the absence of positive proof from the plaintiff that said Samuel Carro reinvested the money received from the sale of said property and at the same rate of interest charged or reserved against the plaintiff.</p> <p>7. To the master’s refusal to rule that the defendant Carro was not mortgagee in possession up to the time he sold the property to Yuill, to whom he contracted to sell the same on October 15, 1912, but was the owner of the property in fee, by virtue of the sale on September 9.</p> <p>8. To the master’s refusal to rule that the plaintiff is not entitled to an accounting up to October 7, when the defendant Carro entered into an agreement with Yuill for the sale of said property. The agreement between the defendant Carro and Yuill does not</p> <p>i as a matter of law ratify the sale of September 9 if said sale was insufficient as a matter of law to vest title in the defendant Carro.</p> <p>9. To the master’s refusal to rule that, if said Samuel Carro is mortgagee in possession, it is immaterial that he executed an agreement to sell to Yuill so far as the plaintiff is concerned, and if he is still mortgagee in possession the accounting should be had between the parties up to the date of the filing of the bill, and not up to October 7.</p> <p>10. To the master’s refusal to rule that the plaintiff has es-topped herself from denying that the defendant Carro was the owner of the fee since September 9 by reason of her paying rent after that date, and recognizing him as the landlord.</p> <p>11. To the master’s refusal of the defendant Carro’s request that the letter addressed to him by the counsel for the plaintiff remitting rent for the month of September be incorporated in the report and made a part thereof.</p> <p>12. To the finding of the master in his amended report that the defendant has elected as a matter of fact to be a mortgagee in possession, since that is a question of law rather than fact.</p> <p>The case was heard by Jenney, J., who made the following memorandum of decision: “The report and supplemental report of the special master have been confirmed by a decree providing for an allowance to the defendant Carro of $90 as bonus instead of $26.25 only as allowed by the master.</p> <p>“This change increases by the amount of $63.75 the amount to be allowed to the defendant Carro on an accounting, and leaves on said accounting $218.55 due the plaintiff, providing the plaintiff is entitled to a decree for any amount.</p> <p>“A final decree is to be entered for the plaintiff as against the defendant Carro and in favor of the defendant Forster in the form hereto annexed.”</p> <p>A final decree was entered, reciting that, except as stated above, the master’s reports had been confirmed and that the exceptions of the defendant Carro thereto had been overruled, and further reciting, “it appearing that the plaintiff does not now claim to be entitled to redeem the premises described in the bill and the amendments thereto from the mortgage referred to therein but that said bill ought to be retained for an accounting between the plaintiff and the defendant Carro as to a balance due to the plaintiff from said defendant, a surplus received by him as mortgagee above the amount which he is entitled to retain as such mortgagee, and it appearing to the court that there is due from said Carro to the plaintiff on said accounting $218.55 with interest from January 16, 1913, and the interest on said amount to January 10, 1914, amounting to twelve and 90-100 ($12.90) dollars,” therefore ordering “that the defendant Samuel Carro pay to the plaintiff $231.45 and $68.38 as costs of court, and that execution issue in favor of the plaintiff for said amounts against said Carro. Bill is to be dismissed as against the-defendant Forster without costs.”</p> <p>The defendant Carro appealed from the order disallowing his exceptions to the master’s reports, and also appealed from the final decree.</p> <p>The case was submitted on briefs.</p>

<p>Charily. Trust, Charitable. Tax, Exemption. Municipal Corporations, Officers and agents.</p> <p>A fund, given to a town and held in trust by its officers to apply its income partly to the care and adornment of a public cemetery situated in and belonging to the town and partly to the general expenses of the town, constitutes a valid public charitable trust.</p> <p>In the case of a public charitable trust a provision for an accumulation of income is good, unless it is carried beyond the limits of a sound public policy.</p> <p>Where a fund is given to a town in trust with provisions for the payment, after the fund reaches a certain amount, of specified sums for the care and adornment of a public cemetery in and belonging to the town and for the town’s general expenses, and with further provisions for an accumulation of income, the whole trust will remain good if the provision for accumulation is valid, and, if that provision is invalid, it will be disregarded and the whole income will be applied either to the particular charities prescribed by the creator of the trust or to similar charitable purposes under the doctrine of cy pres; and such a fund therefore in either event is not liable to taxation.</p> <p>In regard to exemptions from taxation, it is immaterial that a fund given to a town for public charitable purposes is held and administered by the officers of the town as trustees.</p>

<p>Charity. Trust, Charitable, Validity. Equity Jurisdiction, Bill for instructions.</p> <p>By Sts. 1883, c. 246; 1884, c. 139; 1890, c. 349, which in substance authorized the town of Norton to receive and hold a certain trust fund, known as the Hicks Reserve Fund, and to appropriate the revenue thereof for the purposes stated in a declaration of trust by its founder, a provision of that declaration requiring that the “principal with its accumulations” from certain specified sources “is to be forever held in trust and never be disturbed,” was approved and therefore in effect was declared by the Legislature not to be contrary to public policy and to be valid.</p> <p>In a suit in equity for instructions by the trustees of a public charitable trust whose provisions provide for a perpetual accumulation, this court will deal only with present conditions and will not give instructions as to what shall be done at some time in the future when the fund with its accumulations shall reach a certain amount; and the trustees here were instructed that it was their present duty to comply with the directions for accumulations contained in the instrument creating the trust.</p>

<p>Contract by a minor, by her next friend, for $347.59, upon an account annexed, which set forth fourteen payments made to the defendant as a co-operative bank by the plaintiff between January 3, 1912, and January 1, 1913, inclusive. Writ in the District Court of Southern Essex dated February 7, 1914.</p> <p>On appeal to the Superior Court the case was tried before Hamilton, J., without a jury. The following facts appeared in evidence:</p> <p>The plaintiff was born on February 27, 1893. The plaintiff’s mother owned a house in Lynn and the land on which it stood. In October, 1911, she mortgaged the house and lot to the defendant for $2,100. The defendant issued to her eleven shares of its stock, which she pledged to the defendant to secure the mortgage. Eleven dollars a month was to be paid the bank on the shares and $9.63 a month as interest, making $20.63 payable monthly. The mother had a bank book on which the eleven shares were carried and on which the monthly payments of $20.63 were credited. Besides these shares the mother held five unpledged shares in the defendant on which $5 a month was payable to the defendant. These shares were carried on another book and the depositor or shareholder could withdraw at any time the money paid on the unpledged shares.</p> <p>On December 26, 1911, the plaintiff’s mother died intestate. The plaintiff then was seventeen years and ten months of age. After her mother’s death and before the appointment of an administrator, the plaintiff, using her own money, kept up the payments to the bank on both the pledged and the unpledged shares, paying a total of $347.59. No administrator was appointed until January, 1913, after which no payments were made to the defendant. The defendant paid over to the administrator the money that had been deposited on the unpledged shares. In January, 1914, the defendant foreclosed the mortgage, after declaring forfeited the eleven pledged shares and applying the sums paid on them toward the payment of the mortgage debt. The property was sold on foreclosure for $2,060. After paying the amount remaining due on the mortgage, the interest and the foreclosure expenses, there remained $11.93, which the bank paid to the administrator.</p> <p>The plaintiff after her mother’s death lived in the house until the foreclosure, taking lodgers and boarders. At first she did a fair business, but after May, 1912, did not make expenses. Her younger brother lived with her. Her father ceased to live there and did not support them. In making payments to the defendant after her mother’s death, the plaintiff would go to the bank with her mother’s two books on the first Wednesday of each month and present them with the money either to the defendant’s treasurer or to one of its clerks, who would take the money, credit the payments on the books and hand them back to her. She said nothing about her mother’s death until June, 1912, when she talked about it to the defendant’s treasurer and asked him whether she would be responsible for the payments. He replied that she had better continue them until an administrator was appointed.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings, which were disposed of by the judge as follows:</p> <p>“1. That the plaintiff could legally act as the agent of the estate of the mortgagor.”</p> <p>The judge refused to make this ruling, and said, “I find that the plaintiff did not so act but acted for herself.”</p> <p>“2. That, where payments were made by the plaintiff as agent for the mortgagor and such payments were continued without notice on the part of the defendant, the defendant had the right to assume that the same relationship continued and said payments were valid.”</p> <p>The judge refused to make this ruling, and said, "The defendant’s treasurer who had charge of its business did not testify and there was no evidence that he did not know of the death of the mortgagor and that the plaintiff was making the payments from her own money.”</p> <p>“3. That, as to the payments on the pledged shares, the minor having a beneficial interest in the estate, said payments were beneficial to her and there can be no recovery.”</p> <p>The judge refused to make this ruling, and said, “I find that these payments were not beneficial to the plaintiff.”</p> <p>“4. That the payments made by the plaintiff without the knowledge of her ownership of the money or claim thereon must be construed to be a loan by her to the estate for the benefit of which the payments were made and liability, if any, exists against the estate and not against this defendant.”</p> <p>The judge refused to make this ruling, and said, “I find that the payments were not made by way of loan as indicated by this request.”</p> <p>The defendant also asked the judge to make the following rulings:</p> <p>"5. That, the plaintiff being informed of all of the facts, any mistake was a mistake at law and there can be no recovery.</p> <p>“6. That the act of the defendant in receiving the money and crediting it to the account of the owner of the shares was an act of agency and there can be no recovery.</p> <p>“7. That the payment by the plaintiff was an implied instruction by the plaintiff to credit the amount so paid to the owner of the shares and on such credit being given the transaction is complete and there can be no recovery.</p> <p>“8. That, the defendant having paid out the money paid and credited to the owner of the shares in the ordinary course of business and without knowledge of any claim of the plaintiff, the plaintiff cannot recover.</p> <p>"9. That, the money paid by the plaintiff having been derived from carrying on the business of the owner of the shares, said money belonged to the estate of the deceased and said payments were payments by said estate and there can be no recovery.</p> <p>“ 10. That the plaintiff in taking the property and business of the owner of the shares became an administrator de son tort and is not entitled to the income from said business, that said income belongs to the estate and payments therefrom are valid payments credited to the estate and there can be no recovery.</p> <p>“11. That on all of the evidence the plaintiff is not entitled to recover.”</p> <p>The judge refused to make any of these rulings, and found for the plaintiff in the sum of $354.54. The defendant alleged exceptions.</p>

<p>Indictment, found and returned in the Superior Court on April 17, 1914, under St. 1911, c. 456, for alleged failure to support and maintain the defendant’s wife and for deserting her without just cause.</p> <p>At the trial before Bell, J., the defendant moved to quash the indictment on the grounds, first, that the alleged offense was not the subject of indictment, and, second, that proceedings for the alleged offense could be prosecuted only upon a complaint in the municipal, district, police or trial justice’s court of the district in which the defendant or his wife or either of them was living or in which they last lived together.</p> <p>The judge denied the motion, and the defendant appealed; whereupon the judge, being “ of opinion that the question raised by the above appeal ought to be determined by the full court before any further proceedings in the trial court,” reported the case for such determination.</p>

<p>Negligence, Employer’s liability, In a factory.</p> <p>In an action by a woman employed in a shoe factory against her employer for personal injuries sustained by slipping on some paste that had been left on the floor of the factory, where the question of the plaintiff’s due care plainly is for the jury, if there is evidence warranting findings, that the paste had leaked from a barrel and was upon the part of the floor over which the plaintiff in the course of her employment had the right to and was accustomed to pass, that the spot covered by the paste was slippery and dangerous, that it was one of the duties of the superintendent of that part of the factory to use reasonable care to see that this part of the floor was safe, that he had notice of the plaintiff’s apparent purpose to step in the direction of the paste, and that, even if the superintendent did not discover the condition of the floor until a short time before the plaintiff fell, he discovered it in time to have warned her of her danger, and that he failed to do so, the plaintiff is entitled to go to the jury.</p>

<p>Tort for personal, injuries sustained by the plaintiff at the North Station in Boston from being knocked down by a train of the defendant which struck him from behind when he was walking along the platform between track 2 and track 3 of that station after he had alighted from another train of the defendant, in which he had come from Lynn on the afternoon of May 13, 1912, and was on his way out from the station. Writ dated June 6, 1912.</p> <p>In the Superior Court the case was tried before Hardy, J., who ordered a verdict for the defendant under the circumstances described in the opinion. The plaintiff alleged exceptions.</p>

<p>Tort for the destruction on March 22, 1911, of an ice house of the plaintiff by fire alleged to have been communicated from a brush fire negligently started and negligently tended on land of the defendant. Writ dated February 13, 1912.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The material evidence and an exception taken by the plaintiff to the exclusion of certain evidence are' described in the opinion. Under the circumstances there stated, the judge ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for personal injuries caused by the plaintiff being struck by an automobile. Writ dated September 20, 1911.</p> <p>The action was begun against Edward M. Elder. Later by amendment Edward E. Elder was added as a defendant. Before the case was submitted to the jury, it was discontinued against Edward M. Elder.</p> <p>In the Superior Court the case was tried before Sanderson, J. Material evidence is described in the opinion.</p> <p>It was stated in the bill of exceptions that “there was sufficient evidence for the jury that the accident in question and the injury to the plaintiff might have been caused by the negligence of Herbert W. Elder, who was operating the automobile at the time of the accident.”</p> <p>At the close of the evidence, the defendant made the following requests for rulings, among others:</p> <p>“1. That on all the evidence of the case the verdict should be for the defendants.”</p> <p>“12. If the jury find upon all the evidence that the operator in charge of the automobile was not engaged in any business of or for the defendants at the time of the accident, then the question as to whether the automobile in question was properly registered is not material.”</p> <p>The rulings were refused. The jury found for the plaintiff in the sum of $1,500. The defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability. Conflict of Laws. Vermont. Statute. Evidence, Proof of foreign law, Presumptions and burden of proof.</p> <p>Where an employee receives injuries while at work in another State within the scope of his employment, his right of recovery in an action of tort against his employer is determined by the law of that State.</p> <p>If, at the trial of an action of tort by an employee against his employer for personal injuries received in another State, no evidence as to the common law of that State applicable to the case is introduced, it will be presumed that the common law of such other State applicable to the case is the same as that of Massachusetts.</p> <p>Where an employee is injured in another State while at work within the scope of his employment, and brings in our Superior Court an action .of tort against his employer to recover for such injuries, at the trial of which there is introduced no evidence as to the statutory law of that State, he cannot rely upon a count in his declaration based on St. 1909, c. 514, § 127, because no presumption arises that the statutory law of that State is the same as that of Massachusetts, and the Massachusetts statute has no extraterritorial force.</p> <p>At common law, an employer of one engaged in assisting in the cutting off of rivets for the tearing down of a bridge fulfils his duty to provide for the employee’s use reasonably safe tools if he provides a sufficient supply of such tools within convenient reach and permits the employee and his fellow workmen to select tools therefrom as they see fit during the progress of the work. An employer is under no duty to instruct or to warn an employee as to a danger incident to his work when such employee, by reason of his experience and knowledge, is fully aware of such danger.</p> <p>If, at the trial of an action in this Commonwealth by an employee against his employer for personal injuries received while at work in Vermont and alleged to have been caused by reason of negligence of the defendant in furnishing the plaintiff with unsafe, defective and dangerous tools, it is shown that by the law of Vermont an employee assumes not only the risks ordinarily incident to his employment but also such unusual and extraordinary risks as he knows and comprehends and that at the trial of an action against his employer for personal injuries the burden is on him to prove as part of his case that he did not know and comprehend the danger of the injury which he suffered, and if the plaintiff introduces no evidence that he did not appreciate the danger of the injury which he suffered and his testimony plainly shows that he fully realized it, a verdict should be ordered for the defendant.</p> <p>Requirements of the common law of Vermont, that an employee assumes not only the risks ordinarily incident to his employment but also such unusual and extraordinary risks as he knows and comprehends, and that at the trial of an action against his employer for personal injuries the burden is on him to prove as a part of his case that he did not know or comprehend the danger of the injury which he suffered, do not relate merely to matters of procedure, but affect the right of such an employee to recover in an action in this Commonwealth against his employer for an injury received in Vermont in which such requirements of the law of Vermont are proved.</p>

<p>Mandamus. Corporation, Restriction on transfer of shares.</p> <p>In this Commonwealth a writ of mandamus rather than relief in equity is the appropriate remedy to restrain persons from wrongfully assuming to act as the directors of a corporation.</p> <p>In case of a business corporation organized under St. 1903, c. 437, which in § 8, cl. (e), mentions as one of the things to be stated in the agreement of association “the restrictions, if any, imposed upon”, the transfer of shares, a restriction, contained in the agreement of association, that “none of the shares of capital stock shall be sold, hypothecated or transferred without the consent of three fourths of the capital stock of the corporation,” which is supplemented by a by-law providing for the enforcement of this requirement and is referred to on the face of the certificates of stock as a restriction on their transfer, is a valid restriction upon the transfer of the shares of that corporation, which must be treated as within the contemplation of the Legislature and therefore cannot be regarded as contrary to public policy.</p> <p>St. 1903, c. 437, § 28, merely regulates the method of transferring shares of stock in business corporations organized under that chapter, and does not affect a restriction on the right to transfer the stock which is contained in the agreement of association of such a corporation and subject to which all its stockholders acquired their shares.</p>

<p>Negligence, Railroad, In use of highway, Grade crossing. Way, Public: defect. Nuisance. Evidence, Competency.</p> <p>In an action against a railroad corporation by an occupant of an automobile who was injured when in the night time the automobile ran into some freight cars of the defendant standing upon a spur track of the defendant at a crossing with a highway, the plaintiff relied in one count of his declaration upon the highway act, R. L. c. 51, § 18, and, it appearing that no notice was given to the defendant as required by § 20, it was held that a verdict properly was ordered for the defendant on that count. Whether the defendant might have been found liable even if such a notice had been given, was not intimated.</p> <p>There is no requirement of the common law that a railroad corporation shall have a gate or flagman or brakeman or maintain signals and lights at every crossing of the railroad with a highway at grade, but the corporation is required to take such precautions at all places where they may be regarded as reasonably necessary for the protection of travellers. Consequently merely to maintain such a crossing without any such precautionary measures, and to permit freight cars to stand thereon in the night time with no warning to travellers on the highway, is not as a matter of law, irrespective of the circumstances, the maintenance of a nuisance.</p> <p>At the trial of an action against a railroad corporation by an occupant of an automobile who was injured when the automobile ran into freight cars of the defendant standing upon a spur track of the defendant at a crossing with a highway, it appeared that the defendant had not been required under St. 1906, c. 463, Part II, §§ 149-151, to maintain signs, gates, a flagman or an electric signal at the crossing; and there was no evidence as to how long the cars had remained upon the crossing before the collision, so that it could not be said that the defendant had violated the provisions of Part II, § 155, of that statute. It also appeared that the spur track was infrequently used, that, from the direction from which the automobile approached, the highway was straight for several hundred feet, that the collision occurred shortly after one o’clock A. m. on a dark and hazy night, that there was a large electric arc light over the highway about one hundred and sixty feet from the crossing, which the automobile passed, and that the glare of that light affected the driver’s ability to see until he had passed it, that the automobile approached the crossing at a speed of from twenty to twenty-five miles an hour, that its headlights shone one hundred feet ahead, that it could have been stopped within forty or fifty feet, and that the driver did not see the cars until he was about forty feet from the crossing, when he tried unsuccessfully to stop the automobile. Held, that there was no evidence of negligence on the part of the defendant or its employees, who were justified in believing that travellers in automobiles properly lighted and driving at a reasonable rate of speed would observe the cars upon the crossing in time to avoid coming into collision with them.</p> <p>Where, at the trial of an action for personal injuries caused by a collision at night of an automobile with railroad freight cars standing across a highway, a material question is, whether the effect of an electric light above the highway was to dazzle the eyes of a traveller so that he could not see the cars upon the crossing, a witness should not be allowed to state the effect of the light upon his vision at other times than the time of the accident, unless it is shown that the conditions on the occasions as to which the witness testifies were the same as those of the night of the accident, including the nature and degree of darkness, the power with which the light was shining, and the nature of the lights on the automobiles.</p>

<p>Res Judicata. Bills and Notes, Indorser, Signature without authority. Partnership. Agency, Agent’s liability for unauthorized acts.</p> <p>Where one of three trustees, who conduct a business under a firm name, without authority indorses upon a negotiable promissory note the name of the firm followed by the word “by” and his own name, and a holder of the note in due course brings an action of contract upon the note against the maker and the three trustees as indorsers in which there is a finding and a judgment for the defendant indorsers, the holder thereafter cannot maintain an action of contract on the note against the trustee who signed the note either on the ground that he is an indorser of the note, or on the ground that he is liable as an indorser by reason of the fact that he wrote the firm name thereon without authority. Whether the defendant in such an action would be liable in an action of tort for falsely representing that he had authority to indorse the note, or could be held responsible as on an implied warranty, or otherwise, was not decided.</p>

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

<p>Tout by the mother and surviving parent of Alfred Richard, a boy sixteen years of age, who sustained personal injuries on July 3, 1913, when he was in the employ of the defendant, by reason of being put at work without warning or instruction upon a dangerous machine in the defendant’s factory, to recover for medical and other expenses incurred by the plaintiff in nursing and caring for her son and for the loss of his services during a certain period of time. Writ dated August 14, 1913.</p> <p>In the Superior Court the case was submitted to Hall, J., without a jury, upon an agreed statement of facts. Among other facts it appeared that the plaintiff’s son gave the defendant no notice that he claimed his right of action at common law to recover damages for personal injuries, that the defendant was a subscriber under the workmen’s compensation act, and that after the boy’s injuries he by a next friend, who was not the plaintiff, made a claim for compensation under the act and received all that the act provided for, which was an amount equal to one half his weekly wages of $8.40 a week accruing after the first two weeks of his disability until the end of eleven weeks, that is, one half his weekly wages for a total period of nine weeks. The insurer under the act “paid all medical and hospital bills incurred for the treatment of Richard’s injuries.” It was agreed “that if, on the agreed facts, the plaintiff is entitled to recover for loss of services of her son, either under the present pleadings or otherwise at common law, the damages shall be the sum of $54.60.”</p> <p>The judge found for the defendant, and at the request of the parties reported the case for determination by this court. If the plaintiff was entitled to recover, judgment was to be entered for her in the sum of $54.60 with interest from the date of the writ; otherwise, judgment was to be entered for the defendant on the finding.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1914, and afterwards was submitted on briefs to all the justices then constituting the court.</p>

<p>Two actions of tort, the first for personal injuries sustained on May 31, 1910, when the plaintiff was a little more than seventeen years of age and was employed in the defendant’s candy factory at Cambridge, from having the fingers of his left hand cut off by the knives of a peanut grinding machine at which, as it was alleged, the plaintiff had been set at work without sufficient warning or instruction; and the second action by the father of the plaintiff in the first case for consequential damages arising from his injuries. Writs dated respectively August 19, 1910, and March 7, 1911.</p> <p>In the Superior Court the cases were tried together before Morton, J. It appeared that the machine by which the plaintiff in the first case was injured, which was used in the factory for grinding peanuts, was a meat chopping machine with the words “meat chopper ” upon it and was exactly similar in construction and operation to the machine used for making sausages that caused the injuries for which damages finally were recovered in Boyd v. Taylor, cited in the opinion. At the close of the evidence, which is described in the opinion as being in substance like the evidence in that case, the judge ordered a verdict for the defendant in each of the cases and reported them for determinatian by this court. If the ordering of the verdicts was correct, judgments were to be entered on the verdicts. If the ordering of the verdicts was incorrect, judgments were to be entered for the plaintiff in the first case in the sum of $2,750 and for the plaintiff in the second case in the sum of $250, with costs.</p>

<p>Worcester. Municipal Corporations. Contract, Validity.</p> <p>Under the revised charter of the city of Worcester, St. 1893, c. 444, the mayor alone has no power to execute in behalf of the city a contract for the purchase of automobiles for the fire department.</p>

<p> Workmen’s Compensation Act. </p> <p>On an appeal to this court from a decree of the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, affirming a decision of the Industrial Accident Board, where the evidence before that board is not reported, it cannot be said as a matter of law that a finding of fact made by that board was not warranted by the evidence.</p> <p>In a proceeding under the workmen’s compensation act for injuries suffered by an employee in a mill, the Industrial Accident Board on a review of the report of the committee of arbitration found that the employee by reason of his injury had lost the whole of every finger except the forefinger of his right hand and the little finger of his left hand, that previous to his injury he had received $10 a week from his employer, and that after his injury he was employed by the same employer and was paid $9 a week until the mill was shut down “owing to the slackening up of business,” and upon these facts and evidence not reported the board found that the employee “was not able to earn anything by reason of his injury during” the period when the mill was shut down and awarded to him one half of the amount that he would have received as his weekly wages during that period. On an appeal from a decree of the Superior Court affirming that decision, it was held that the finding of the board was equivalent to a finding that the employee was totally incapacitated for work during the period that the mill was closed, and that, the evidence not being reported, the finding could not be said to be erroneous, the fact, that the employee was employed by his former employer and received $9 a week after his injury, being evidence tending to show that he was not wholly incapacitated but not being conclusive evidence to that effect.</p> <p>Where in a proceeding under the workmen’s compensation act the Industrial Accident Board properly has found that during a certain period the employee was totally incapacitated for work by reason of his injury, it is immaterial that the employee during that period did not make any effort to obtain employment.</p>

<p>Conspiracy. Larceny. False Pretenses. Practice, Criminal, Conduct of trial. Evidence, Circumstantial, Relevancy, Competency.</p> <p>At the trial of an indictment against two defendants charging that they “ conspired together to steal” from persons unknown, there was evidence that one of the defendants inserted in a newspaper advertisements for a man to travel as ticket taker and treasurer, and a man to act as manager for a theatrical company, that persons who at the trial were witnesses for the Commonwealth and who were not shown to have had any knowledge of the theatrical business, at different times called upon that defendant, who in substance represented the company to be “a good proposition” under continuous and assured engagements and sent the witnesses to the other defendant; that by means of false representations as to the condition and character of the company the two defendants induced the witnesses to pay to the second defendant sums of money for a part interest in the enterprise, one of the witnesses taking an agreement from him which contained merely a transfer of that interest and a stipulation “that all representations, inducements and considerations leading” to its acceptance were “contained fully and exclusively” therein; that the money thus received was divided between the defendants and used for their personal profit; that the company at that time was owned by the second defendant and a partner, who was not a defendant, and was bankrupt and financially a failure, as the defendants well knew, and that the witnesses never regained their money. Held, that the representations made by the defendants were representations of fact; and that the jury were warranted in finding that the representations were false, that there was a conspiracy participated in by both defendants acting in pursuance of a common purpose to cheat and defraud in order to obtain money by false pretenses, and that the defendants were guilty of the crime charged.</p> <p>Whether, at the trial of an indictment charging two defendants with conspiring to steal, there is at the close of the evidence of one of the defendants evidence sufficient to convict him, is immaterial if, at the close of all the evidence, there is evidence sufficient to convict both defendants.</p> <p>At the trial of an indictment charging two defendants with a conspiracy to steal, after evidence has been introduced which would warrant a finding that such conspiracy existed, evidence of overt acts and declarations of each of the defendants in pursuance of the common object of the conspiracy is admissible and may be used against both of them.</p> <p>Where, at the trial of an indictment against two defendants charging them with a conspiracy to steal, there is evidence that as a part of a scheme to defraud in which both defendants shared one of the defendants inserted certain advertisements in a newspaper, the advertisements are admissible in evidence.</p>

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

<p>Contract, For division of profits, Construction," Modification. Interest. Waiver. Evidence, Illustration by supposititious case. Practice, Civil, Conduct of trial: requests, rulings and instructions; Exceptions.</p> <p>Under an agreement for sharing the profits of an enterprise between one who advances the capital and another who does the work in carrying it on, no interest on the capital furnished is to be allowed, in the absence of an express stipulation upon the matter.</p> <p>A firm, engaged in England in the purchase and sale of wool throughout the world, by an agreement in writing appointed a man in Boston their agent for the sale and purchase of wool in the United States and Canada and agreed that, in addition to a certain fixed salary, he should “receive a bonus of five per cent on the net profits realized from the sale and purchase of wools by” the firm, and that, in “ascertaining the realized profits on wool before mentioned . . . the actual cost price shall be taken at the time the consignment is made or transaction entered into, and all actual expenses” added thereto. By the course of business the firm avoided making cash advances in respect to their purchases made abroad by drawing on themselves drafts to be paid at the point of destination of the goods, which were discounted by local banks at the place of purchase abroad. It also was necessary, according to an English custom, for them to pay half a crown per £100 on checks drawn upon their banks in England. Held, that in determining “the actual cost price” of the wool “at the time the consignment” was made, for the purpose of computing the share of the profits to be paid to the agent, neither interest upon the capital invested in making the purchases, nor the interest paid by way of discounts, nor the sums charged to the firm for their checks should be considered.</p> <p>In an action by an American agent of an English employer, after his discharge by his employer, for a share of his employer’s profits due to him under the terms of an agreement in writing, where it appears that the agent has at all times insisted that interest on the employer’s investment should not be charged in computing the profits which he was to share, and his insisting on that contention is found by an auditor who heard the case to have been one of the “moving causes” for the employer discharging him, a letter, written as to one transaction about four years before his discharge, suggesting that such interest should be charged, does not make necessary as a matter of law a finding that the original contract was modified in that particular; nor is such a finding rendered necessary as a matter of law by a statement of an English solicitor employed by the employee, who, when shown, by an accountant procured by the employer to go over his books, a paper containing among other items and charges to be included in the account those which the employee disputed, said merely, “Proceed with the account.”</p> <p>At the trial of an action by an agent against his employer for sums alleged to be due under the provisions of a contract in writing, it appeared that, a dispute having arisen between the parties, the agent wrote a letter to the employer stating that, if the employer would authorize an attorney to receive a certain sum as a final settlement of their account to a certain date, that would “close the controversy as arranged. If not, I .shall consider myself free to enter into negotiations with another party. I want your decision per return mail.” The employer replied by a letter sent by a messenger, stating that the agent left him no alternative but to accept his -ultimatum and thus “terminate at once our business relations,” and directed the agent to deliver “the conduct of the business ” to the bearer of the letter. The bearer of the letter thereupon demanded a certain sum from the agent. The agent stated that the employer owed money to him, and, counsel for both parties being called to a conference, it was arranged that, pending the making of accounts, the agent should remain in charge of the business and continue to perform his duties, which he had not ceased to do. Held, that, if there had been in the correspondence any acceptance by the agent of a termination of the contract, which was not decided, that acceptance was waived by the arrangement made by the agent, the employer’s representative and their respective counsel.</p> <p>A request for a ruling of law, which assumes as a fact a matter as to which the evidence is conflicting, should not be given.</p> <p>To explain by way of illustration a course of business which is a material issue at a trial, a witness for one of the parties to the action may be allowed, in the discretion of the presiding judge, to describe a supposed transaction, and, if the other party is apprehensive that the bearing of the whole or any part of the answer of the witness may be misunderstood by the jury, he should ask to have the jury instructed on the point, or, if, after a verdict is returned, it appears that the jury’s verdict can be explained only on the ground that such testimony was misapplied, his remedy is by a motion for a new trial.</p> <p>An objection to a misapplication by a jury of evidence properly admitted cannot be raised in this court on a general exception to the admission of the evidence.</p>

<p>Contract on a policy of fire insurance, prosecuted in the name of the city of Fall River by the New York, New Haven, and Hartford Railroad Company, which had paid to that city the sum of $4,833 for the loss caused by a fire that on April 22, 1907, completely destroyed the premises alleged to have been insured. Writ dated June 20, 1908.</p> <p>In the Superior Court the case was tried before Ratigan, J., without a jury. The judge found for the defendant; and the plaintiff alleged exceptions, raising the questions which are disposed of in the opinion.</p>

<p> Supreme Judicial Court. Res Judicata. Judgment. </p> <p>The Supreme Judicial Court has no jurisdiction to receive a motion, called a “Motion for judgment non obstante veredicto,” which seeks, without any allegation of new facts, to set aside a final decree of the Superior Court and a final judgment of the Land Court theretofore entered in a suit in equity and in a writ of entry in each of which the person who filed the motion had had his day in court and in each of which, after full hearings, every issue of law and fact had been decided/against him; and, if it were possible to entertain such a motion, it would be barred by the decree and the judgment as res judicata.</p>

Tobt, by a minor, by his next friend, for personal injuries sustained on April 9, 1910, when the plaintiff was about fourteen years of age and was employed in the defendant’s cotton mill at Lawrence. Writ dated June 21, 1910. In the Superior Court the case was tried before Sanderson, J. The facts which could have been found in favor of the plaintiff upon the evidence are stated in the opinion.

<p> Mechanic’s Lien. </p> <p>One who has furnished labor and materials used in the construction of a building under an entire contract in writing with the owner of the land, by the terms 1 of which he is to receive an agreed price for the performance of the whole contract, can maintain a petition to enforce his mechanic’s lien only under § 1 of R. L. c. 197 and cannot establish a lien for the labor alone under § 2 of that chapter.</p>

<p>Agency. Evidence, Self-serving statements.</p> <p>In an action against a proprietor of a garage, presumably engaged in the business of selling automobiles, for injuries to a horse and carriage of the plaintiff from being run into on a highway by an automobile negligently driven by a man in the employ of the defendant, if there is evidence that on the morning after the accident and near the scene of it the defendant said that the driver of the automobile was one of his best men, that such driver and the defendant did all the demonstrating for the defendant, that the driver had told the defendant on the day of the accident that he wanted to take the car out to demonstrate to somebody, “to show it to a party,” and that the defendant had let him take it, and if, so far as appears, this driver never drove the defendant’s cars except as a demonstrator, there is evidence for the jury that when the accident occurred the driver was doing the defendant’s work and was acting within the scope of his employment.</p> <p>A witness cannot be permitted to testify to declarations made by himself in favor of the party calling him, where it does not appear that the statements made by him were a part of the res gestae or were admissible under any other exception to the rule against self-serving statements.</p>

<p>Municipal Corporations. Waterworks. Negligence, Proximate cause.</p> <p>A town which maintains a standpipe, that was built and is operated not only for protection against fire but also “to equalize the pressure in general for the domestic service” supplied by the town as a commercial enterprise for its own corporate benefit, is required in the maintenance and operation of the standpipe to use reasonable care to avoid injury to adjoining private property.</p> <p>If a town maintains and operates a standpipe in part for the distribution of water as a corporate commercial enterprise, its liability for injury to adjoining private property by reason of negligence in the maintenance or operation of the standpipe is not affected by the fact that the water used in the standpipe is obtained from the metropolitan water system.</p> <p>In an action against a town for damage to the plaintiff’s property caused by the overflow of a standpipe maintained and operated by the defendant in part for the distribution of water as a corporate commercial enterprise, it appeared that before the time of the damage no overflow from the standpipe had occurred, that the overflow in question was due to the clogging of the regulating valve of the conduit of the metropolitan water system from which the defendant obtained the water that was used in the standpipe, that the defendant had no control over this valve, but that it had knowledge that if foreign substances floating in the water passed into the valve it would cease to work automatically and would leak, causing the standpipe to overflow, and that if an overflow pipe had been provided, as was feasible, the water would have been discharged on the defendant’s own land and the plaintiff’s property would not have been damaged. Held, that the jury were warranted in finding that the defendant reasonably ought to have anticipated and guarded against the condition that occurred, and that its failure to do so was negligence for the consequences of which it was liable to the plaintiff.</p>

<p>Tort, by a corporation, which was a retail dealer in boots and shoes and occupied a store and a part of the basement in the building numbered 159 on Tremont Street in Boston under a lease in writing from one James J. Grace, who was the lessee of the entire building, against an assignee from Grace, who held all Grace’s rights and had assumed all his duties in the management of the building, for damage to goods and other property of the plaintiff on August 6, 1911, by reason of the alleged negligence of an engineer employed by the defendant in the care and management of a steam engine and boiler in the basement of the building which were used in operating the elevator in the building and also were connected with the radiators and pipes that were used for heating the building in winter, whereby water was allowed to escape through the boiler into the pipes connected with the radiators in the upper part of the building and thence through cocks and valves, which had been left open by other tenants, down upon the portion of the building occupied by the plaintiff. Writ dated September 8, 1911.</p> <p>In the Superior Court the case was tried before White, J. The covenants of the plaintiff as lessee contained in its lease from Grace as lessor, which followed a provision for the payment of $12,500 a year as rent, were as follows:</p> <p>“And the said Lessee for itself and its representatives and assigns hereby covenants with the Lessor and his heirs, and assigns, that during said term, and during such further period as it or any other person or persons claiming under it, shall hold the said premises, or any part thereof, it, the said Lessee, and its representatives and assigns, will keep, always at its own expense, the entire demised premises, both inside and outside, including the roof over store front, as well as the drains, pipes, faucets water fixtures, gas and electric fixtures, electric wiring, window and other glass belonging to the demised premises, but not omitting other parts and appurtenances thereto belonging, although not named, in good and proper order and repair, damage by fire, or other unavoidable casualty only excepted, and will save the Lessor, and his representatives, heirs and assigns, harmless and indemnified from any payment or liability for loss or injury by water, gas, electricity, or otherwise, to any merchandise, property or person, in or on the demised premises, and that it, the said Lessee, will save the Lessor, his representatives, heirs and assigns, harmless and indemnified from and against all loss, liability or expense arising from any accident to machinery, or by reason of anything connected with any stairway, hatchway, elevator, gas, water, steam, or other pipes, or from the use or abuse of water, steam, gas, electricity, or otherwise, or by reason of the accumulation of any snow or ice in the gutter or upon the roof over the front or rear of the store, and belonging thereto, or upon the sidewalks adjoining the same; and in general that it will assume the entire care of and responsibility for the demised premises, including the sidewalks adjacent thereto, and will hold the Lessor and his representatives, heirs and assigns harmless and indemnified against any and all loss, liability, or expense in connection with the said demised premises or sidewalks, or occasion to the said Lessor in respect of loss, injury, or damage to any person or property during the holding or occupation of the said Lessee and its representatives and assigns. . . .”</p> <p>At the close of the evidence the judge, being of the opinion that the plaintiff was precluded from recovering by reason of the terms of the lease under which it occupied the premises, ordered a verdict for the defendant, and with the consent of both parties reported the case for determination by this court, upon the stipulation that, if the ordering of the verdict was right, judgment should be entered upon the verdict; and that, if it was wrong, and there was evidence upon which the plaintiff might have recovered, judgment should be entered for the plaintiff in the sum of $225 and costs.</p>

<p>Tort for personal injuries received, in the manner stated in the opinion, on January 3, 1912, at the crossing of the defendant’s tracks with Maverick Street in the part of Boston called East Boston. Writ dated June 12, 1913.</p> <p>In the Superior Court the case was tried before Aiken, C. J. At the close of the plaintiff’s evidence, which is described in the opinion, the defendant asked the judge to make the following rulings:</p> <p>"1. That on all the evidence the plaintiff is not entitled to recover.</p> <p>“2. That on all the testimony there is not sufficient affirmative evidence of due care on the part of the plaintiff.</p> <p>“3. That there is no evidence of negligence on the part of those in charge of the train or trains of the defendant; that it was the duty of the engineers under the statutes in approaching grade crossings to blow the whistle or ring the bell.</p> <p>“4. That the plaintiff, although one gate rose, was obliged actively to use his senses and to look and listen before entering upon the crossing and that there is no evidence that he did so. (Ellis v. Boston & Maine Railroad, 169 Mass. 600.) ”</p> <p>The Chief Justice refused to make any of these rulings, and submitted the case to the jury with instructions which were excepted to only so far as they were inconsistent with the rulings requested. The jury returned a verdict for the plaintiff in the sum of $800; and the defendant alleged exceptions.</p>

Tort for an alleged libel, consisting of a letter written by the defendant to the mayor of the city of Melrose, containing the charges against the plaintiff which are stated in the opinion. Writ dated March 11, 1907.

<p>Evidence, Of value, Presumptions and burden of proof. Damages, For property taken or impaired under statutory authority.</p> <p>Upon a petition for the assessment of damages for the taking of a strip of land and the adjoining flats by a railroad corporation under a decree for the abolition of certain grade crossings, it is right for the presiding judge to exclude evidence, offered by the petitioner, of the terms of a previous sale made by him of a part of the original tract of which the land taken also formed a part, if the sale was to a corporation of which the petitioner was a director and the treasurer, and the petitioner offers no evidence of the particulars of the sale except the price paid.</p> <p>At the trial of a petition for the assessment of damages for land taken, before the petitioner may be allowed to show the price at which other land adjacent to or near the land taken was sold, he must show that such sale was a fair and open one.</p> <p>At the trial of a petition for the assessment of damages for land taken, the presiding judge properly may exclude evidence offered by the petitioner as to the price paid by him for a parcel of land in the vicinity of the land taken, if on the evidence the judge could find that the parcel of land purchased by the petitioner was not so similarly situated as properly to guide and assist the jury in estimating the value of the land taken.</p> <p>At the trial of a petition for the assessment of damages for land taken, the question whether other land which was sold for a certain price was so similarly situated as to make the price admissible in evidence must be left largely to the discretion of the presiding judge. It also is within the discretion of the presiding judge, after he has admitted evidence to show the entire price for which a certain tract of land in the vicinity of the land taken was sold, to refuse to allow the petitioner to show the price paid per square foot.</p> <p>•Upon the trial of a petition for the assessment of damages for land taken it is proper for the presiding judge to exclude evidence offered by the petitioner to show the expense of grading certain land still owned by him and not taken by the respondent, this having no bearing whatever on the value of the land taken.</p>

<p> Libel and Slander. </p> <p>Articles published in a newspaper in Boston referring to the manner in which tax sales are conducted in that city and stating that “the sales are conducted primarily for the benefit of the tax-title sharks and there is open collusion between the sellers and the sharks,” are actionable libels published of and concerning the tax collector of the city of Boston, who is the only person authorized by law to conduct tax sales in that city.</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>At the hearing of the case in the Superior Court the report of the committee of arbitration stated the following facts: Rocco Fumiciello, the deceased employee, was employed by Lathrop and Shea, who were doing some contract work for the Boston and Albany Railroad Company near Middlefield. He lived about one mile west of where he was employed, and it was necessary for him to pass over the tracks of the Boston and Albany Railroad Company to go from his work to his home. On the night of September 3, 1912, he last was seen between seven and eight o’clock at or near the track of the Boston and Albany Railroad Company. He then was going from his work in a westerly direction toward his home. The following morning, his body was found about three hundred yards in a westerly direction from where he worked and about one quarter of a mile east from where he lived.</p> <p>The finding of the committee was as follows: “On this evidence, we find that on September 3, 1912, Fumiciello left his work to go to his home and while walking along the tracks of the Boston and Albany Railroad he was hit by a train and killed. It was necessary for him to go over the tracks of the railroad in order to get to his home. He left a widow, Rosa Fumiciello, who was wholly dependent upon his wages for support.” The committee found that the widow was not entitled to compensation “for the reason that the injury to the employee did not arise out of and in the course of his employment.”</p> <p>Upon this report the Industrial Accident Board found that the employee, “ after completing his work for the day, entered upon the railroad of the Boston and Albany Railroad and was hit by a train and killed. It was necessary for him to use the railroad tracks in order to go to and from his place of employment.” They also made the following finding: “It was not shown that it was a part of the contract of employment that the employee should live at this boarding place and go along this stretch of track to reach the scene of his employment.” In conclusion the board found “upon all the evidence, that the personal injury received by the employee, the said Rocco Fumiciello, did not arise out of and in the course of his employment and that no compensation is due the widow, Rosa Fumiciello, under the workmen’s compensation act.”</p> <p>The judge of the Superior Court made a decree affirming this decision; and the employee’s dependent appealed.</p>

<p>Tort for personal injuries sustained on April 27, 1912, when the plaintiff was in the employ of the defendant as a teamster and was ordered by the defendant to drive a pair of horses attached to a wagon loaded with lumber from Wakefield to Melrose, byreasonof the breaking down of the wagon whereby the plaintiff was thrown to the ground and injured. Writ dated January 27, 1913.</p> <p>The material counts of the declaration are described in the opinion.</p> <p>In the Superior Court the case was tried before Hardy, J. The evidence is described in the opinion. During the trial the judge stated to the counsel in substance that the defense of assumption of risk was not open to the defendant because not pleaded.</p> <p>At the close of the evidence the defendant asked the judge for the following instructions to the jury, besides others which were given as requested:</p> <p>“4. That the defendant had a right to assume that the plaintiff had driven carefully from the place of loading to the-place of inspection, -unless it was obvious to the defendant that the plaintiff had not driven carefully.”</p> <p>“7. That the plaintiff cannot recover, if the jury find that according to common experience the cause of the accident may as reasonably be attributed to a condition for which the defendant was not responsible as to a condition for which the defendant was responsible.</p> <p>“8. That the plaintiff assumed the obvious risk of the business of his employment, whether such risks are actually known or may have been known by the plaintiff by proper inspection and care.</p> <p>“9. That the fact that the plaintiff consented to undertake the work, if the jury so find, reluctantly and even under threat of dismissal does not save the plaintiff from assuming the obvious risk of the work in which he was engaged.</p> <p>“10. That if the jury find that the plaintiff was furnished by the defendant with an improper and unsafely loaded wagon, and if the jury find that the plaintiff fully comprehended its defects and realized the nature and extent of the danger which would arise from its use and voluntarily without compulsion or exigence, intelligently and intentionally proceeded to use this wagon, then the plaintiff must abide the consequence and the defendant is not liable.</p> <p>“11. That if the jury find that, after the wagon and load had been inspected by the defendant, the plaintiff did not drive in a reasonable careful manner, having in mind any rough and uneven portions of the road and the extra risk when driving on or across railroad tracks, and if the jury find that such careless driving weakened the wheel which broke so that it was less safe than when the wagon was last seen by the defendant, and if the jury find that this wheel was weaker than it would have been if the plaintiff had driven carefully, then the plaintiff cannot recover for an accident caused by the breaking of this wheel.</p> <p>“12. That if the jury find that after the wagon was loaded and before the plaintiff came to the defendant with the loaded wagon, the plaintiff chose to drive over a steep and rough piece of road, when he might as conveniently have driven over a smooth road, and if the jury find that such driving probably did materially weaken the wheel which broke later causing the accident, and if the plaintiff did not inform the defendant that he had driven over this rough and steep road, and such weakening of the wheel which broke was hidden and not apparent to the defendant, then the plaintiff cannot recover.</p> <p>“ 13. That if the jury find that the plaintiff concealed from the defendant any condition of the wagon known to the plaintiff and unknown to the defendant and not obvious to the defendant on proper inspection, or if the plaintiff concealed from the defendant any act of .the plaintiff which act should fairly have been reported to the defendant so that the defendant might better know the condition of the wagon as loaded, and on account of this concealment the defendant did not know the true condition of the wagon as loaded, when he examined it, and if the jury find that this concealed condition was the probable cause of the accident, then the plaintiff cannot recover.”</p> <p>“15. That if the jury are unable to say whether the accident was caused by the negligence of the defendant or because of the manner in which the plaintiff drove, if they find it was a careless manner, then the plaintiff cannot recover.</p> <p>“ 16. If the jury find that the plaintiff while driving the loaded wagon had a choice of two equally convenient roads to reach his destination, and the plaintiff knowingly and voluntarily chose the more dangerous road and the accident was caused by extra strains of the wheel which broke, caused by using the more dangerous road then the plaintiff cannot recover.”</p> <p>The judge refused to give any of these instructions in the terms requested and dealt with them in the manner described in the opinion. He submitted the case to the jury on the first and third counts as there described.</p> <p>The jury returned a verdict for the plaintiff in the sum of $200; and the defendant alleged exceptions.</p>

<p>Appeal from an order of the Superior Court charging the Old Colony Trust Company, a corporation, as trustee in the above entitled case. The answer of the alleged trustee to the writ was as follows:</p> <p>“And now L. D. Seaver, Cashier of the Old Colony Trust Company, the corporation summoned as Trustee for the principal defendants in the above entitled action, appears and makes answer that at the time of the service of the plaintiff’s writ upon said Company it had not in its possession any goods, effects or credits in the names of either Walter S. Hale or Harriett C. Hale, or both, and prays that said Trust Company may be discharged and for its costs.</p> <p>Old Colony Trust Company, by L. D. Seaver, Cashier.”</p> <p>This was sworn to by the cashier before a notary public.</p> <p>The answers of the alleged trustee to the interrogatories filed by the plaintiff, which are referred to in the opinion, were made by its cashier and were sworn to before a justice of the peace. The material answers were as follows:</p> <p>“Int. 4. At the time of the service of the writ in this action, there were no accounts on the Trust Company’s books in either of the names ‘Walter S. Hale,’ or ‘Harriett C. Hale.’”</p> <p>“Int. 6. At the time of the service of the writ in this action, there was an account on the books of the Trust Company in the name of Walter S. Hale, Agent.”</p> <p>“Int. 11. The account referred to in ‘Answer 6’ was drawn upon by checks signed ‘Walter S. Hale, Agent.’”</p> <p>The plaintiff moved that the Old Colony Trust Company summoned as trustee be charged upon its answers to the plaintiff’s interrogatories.</p> <p>The motion was heard by Jenney, J., who made an order that it be allowed. The alleged trustee appealed.</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 Jenney, J. The material facts found by the Industrial Accident Board are stated in the opinion. At the hearing before the board the insurer asked them to make the following rulings:</p> <p>1. Upon all the evidence the board must find that the deceased employee left no person or persons totally dependent upon his earnings for support.</p> <p>2. Upon all the evidence the board must find that the mother of the deceased workman was not totally dependent upon his earnings for support.</p> <p>3. Upon all the evidence the board must find that the sister of the deceased workman, Celia Caliendo, was not totally dependent upon the earnings of the deceased workman for support.</p> <p>4. If the board find that the mother of the deceased workman depended for her means of subsistence upon her earnings besides the earnings of her son, the board must find that the mother was not totally dependent upon the earnings of the deceased employee.</p> <p>5. If the board find that the mother of the deceased workman depended for her means of subsistence upon the contributions of her sister-in-law Florinda Petrozino besides the earnings of her son, the board must find that the mother was not totally dependent upon the earnings of the deceased employee.</p> <p>6. If the board find that the mother of the deceased workman depended for her means of subsistence upon the earnings of one of her daughters besides the earnings of her son, the board must find that the mother was not totally dependent upon the earnings of the deceased employee.</p> <p>7. If the board find that the sister of the deceased workman, Celia Caliendo, depended for her means of subsistence upon the earnings of her mother besides the earnings of her brother Carlo, the board must find that the sister was not totally dependent upon the earnings of the deceased workman.</p> <p>8. If the board find that the sister of the deceased workman, Celia Caliendo, depended for her means of subsistence upon the earnings of her sister besides the earnings of her brother, the board must find that the sister was not totally dependent upon the earnings of the deceased employee.</p> <p>9. If the board find that the sister of the deceased workman, Celia Caliendo, depended for her means of subsistence upon the contributions of her aunt Florinda Petrozino besides the earnings of her brother, the board must find that the sister was not totally dependent upon the earnings of the deceased employee.</p> <p>10. If the board find that the deceased workman was not the only person to supply his mother and sister Celia with the means for their subsistence, the board must find that the mother and the sister Celia were not totally dependent upon the earnings of the deceased employee.</p> <p>The decision of the Industrial Accident Board contained the following findings:</p> <p>“The evidence shows that Florinda Petrozino had at times sent money to the mother of the deceased employee during a period covering more than fourteen years, the highest amount at one time being $5 and the lowest amount $2 and that in all, up to the present, she had sent money about forty times. It does not appear on the evidence when the aunt Florinda Petrozino, began to send money to the parents of Carlo Caliendo. She was on a visit to Italy about fourteen years ago and she had sent money to the mother before that time, and since, and apparently most of the money that she sent was after the death of the employee. All of the money so paid was in the form of a gratuity. The earnings of the sister, who was an apprentice, were hardly sufficient to support herself, and there is no evidence to show that any of her earnings were paid to the mother or sister, and we find that there was no dependency either upon the sister or upon the aunt.</p> <p>“We find that the mother and Celia were totally dependent upon the wages of Carlo for support and we find that there is due from the insurer the amount of $4 a week from the date of the injury, to continue for a period of three hundred weeks one half to be paid to the administratrix for the benefit of the mother and one half to be paid to the sister, Celia Caliendo.”</p> <p>The judge made a decree in accordance with the findings and decision of the board; and the insurer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort against the city of Boston for damage to the plaintiff’s property on January 3, 1910, caused by the bursting of a water pipe of the defendant on Tremont Street as stated in the opinion. Writ dated February 23, 1911.</p> <p>In the Superior Court the case was tried before Stevens, J. At the close of the plaintiff’s evidence, which is described in the opinion, the defendant rested. The witness Hannon, mentioned in the opinion, was the water commissioner of the defendant at the time of the bursting of the water pipe that caused the damage to the plaintiff’s property.</p> <p>The judge instructed the jury as follows: "I am sorry in this case to have to order a verdict, but I do it because from the evidence as it now stands it appears that this work was done under the direction of the transit commission. Under the testimony of the water commissioner, I should have allowed you to pass upon the question if it had appeared it had been done by the city. It was done, the testimony was, by the city, but not done by the city acting under the city’s authority, but acting under the transit commission’s authority, and they are an independent body. I don’t think the city can be held for the deficiencies of the transit commission so I shall be obliged, although I. regret it, to direct a verdict for the defendant.”</p> <p>In accordance with this instruction the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort described in the opinion. Writs dated December 1, 1910.</p> <p>In the Superior Court the cases were tried together before Ratigan, J., who at the close of the evidence, which is described in the opinion, in each case ordered a verdict for the defendant. The plaintiffs alleged exceptions.</p>

<p>landlord and Tenant, Eviction. Practice, Civil, Stipulation of parties, New trial. Municipal Court of the City of Boston.</p> <p>If the lessee of a room in a business building leaves the key of the door of the room, which opens upon a corridor of the building, on the inside of the door and it is taken from the lock without his knowledge, whereupon he applies to his lessor for permission to have a new key made and this permission is refused, and if under a rule of the building no key can be made for the door without the consent of his lessor, and thereafter the lessee is unable to enter the room, these facts constitute as matter of law an eviction of the lessee, which will be a good defense to an action for rent for a period beginning after his exclusion from the room.</p> <p>Where in an action for rent brought in the Municipal Court of the City of Boston, in which the defendants relied on an alleged eviction and the judge refused to rule that upon the facts stated in the defendants’ offer of proof the plaintiff was not entitled to recover, and found for the plaintiff, and reported his ruling to the Appellate Division, who dismissed the report, and the defendants appealed, it was stipulated by the parties that “for the purpose of a hearing before the Appellate Division of said court or on any appeal from its decision . . . the allegations contained in the defendants’ offer of proof are to be taken as true” and “that the rights of the parties shall be in no wise prejudiced as to issues of fact in any subsequent proceedings that may be had in said action,” this was construed to mean that, if the question of law was decided in favor of the defendants, the plaintiff should have a right to contest the facts set forth in the offer of proof, and accordingly, although this court held that the defense of eviction was made out as matter of law on the facts stated in the offer of proof, it also was held that judgment should not be entered for the defendants but that the case should stand for trial on the defense of eviction as an issue of fact.</p>

<p> Workmen’s Compensation Act. </p> <p>On an appeal from a decree of the Superior Court confirming a decision of the Industrial Accident Board, where the decision of that board recites that they "heard the parties” and also that they affirm and adopt the findings of the committee of arbitration, and the insurer states in its brief that the decision of the board is based upon the facts found by the committee on arbitration, and it is assumed by this court that a statement contained in the report of the committee of arbitration can be construed to be a statement that all the evidence before that committee is reported, it cannot be assumed by this court that all the evidence on which the Industrial Accident Board made their findings and decision is before this court in the absence of any statement in the record to that effect.</p>

<p>Negligence, Street railway. Evidence, Opinion, Presumptions and burden of proof.</p> <p>If in the evening two women in order to take a street railway car on the second of two parallel tracks start to walk across in front of a car which is approaching on the nearer track and which one of them sees one hundred and fifty feet away, and this one thinks that they have time to cross and says so to her companion, and the speed of the car then is accelerated and the women continue to walk toward it, partially facing it, until they are struck by the car before reaching the nearer track and one of them is killed and the other injured, upon these facts there is no evidence for a jury that either of the women was in the exercise of due care.</p> <p>In an action against a corporation operating a street railway for personal injuries from being run into by a car of the defendant on the nearer of two parallel tracks when the plaintiff was attempting to cross in front of an approaching car on that track to take a car on the farther track, if the plaintiff testifies that he thought that he had time to cross without injury and that he said so to Ms compamon, although Ms judgment, wMch proved to be erroneous, may throw some light upon Ms action, the fact that he formed the judgment does not in itself constitute evidence of Ms due care wMch entitles him to go to the jury, assuming that there was evidence of the defendant’s negligence.</p> <p>Evidence that no gong or bell was sounded on an approaching street railway car does not tend to show due care on the part of a plaintiff who was walking toward the car when it was in plain sight, because the absence of such a warning of approach could not have affected Ms conduct.</p>

<p> Tax. Executor and Administrator. </p> <p>Under St. 1909, c. 490, Part I, § 23, cl. 7, which provides that the personal properly of a deceased person shall be assessed for taxation to the executor of his will or the administrator of his estate “for three years or until it has been distributed and notice of such distribution has been given to the assessors,” an administrator who has paid all debts, charges, expenses and taxes due from the estate of his intestate and has paid over and transferred to himself as the sole heir at law and next of kin of the intestate all the remaining assets of the estate, he being a resident of another State so that there is no person interested in the estate who is an inhabitant of the Commonwealth, and who has given notice of such distribution to the assessors of a town in this Commonwealth where in the two previous years taxes upon the personal property of the estate of his intestate have been assessed to and paid by him as administrator, is no longer subject to taxation as administrator, although he has filed no account as administrator in the Probate Court.</p> <p>An action of contract is the proper remedy to recover from a town the amount of a tax paid to it under protest, where the attempted assessment of the tax was void. Whether in such a case there is a concurrent remedy by a petition for the abatement of the whole tax, it here was not necessary to determine.</p>

<p> Parent. Marriage and Divorce. </p> <p>After the decree in a divorce suit has given the custody of children to their mother, the legal liability of the father of the children for their support and care depends upon and is limited by the terms of that decree.</p> <p>Where a decree in a divorce suit gave the custody of two children to their mother and ordered the father to pay “$10 per week for the support of the two children named in said libel, and further the expense of necessary medical attendance to be rendered to said children by Dr. B,” and where, by agreement of the parents, after the death of Dr. B, Dr. J was substituted as the medical attendant of the children, an eye specialist, who was employed by the mother on the recommendation of Dr. J to prescribe for one of the children, cannot recover from the father his reasonable charges for necessary services thus rendered, because they are not included in the terms of the decree defining the father’s liability nor in the agreement of the parties to the divorce suit substituting Dr. J for Dr. B.</p>

<p>Evidence, Res inter alios. Medical Examiner, Report of. Witness, Cross-examination. Practice, Civil, Conduct of trial: order of evidence.</p> <p>In an action by an administrator against a corporation operating a street railway for causing the death of the plaintiff’s intestate, the plaintiff, for the purpose of showing the cause of the death of his intestate, cannot put in evidence the report of an autopsy upon the body of the intestate made by a medical examiner under R. L. c. 24, §§ 9,10, and St. 1909, c. 273, § 1, in which by the statute the examiner is required to record “every fact and circumstance tending to show the condition of the body and the cause and manner of death.”</p> <p>At the trial of an action for causing the death of the plaintiff’s intestate, the report of a medical examiner is not made competent as evidence because it may have been one of the grounds on which an expert, who has testified, based his opinion.</p> <p>Where a medical expert, in testifying as a witness for the defendant at a trial, has used a report made by him, which would be incompetent as evidence, to refresh his recollection, this does not give the plaintiff the right to put in the whole of the report, and it is proper for the presiding judge, upon the cross-examination of the witness, to allow the jury to hear only those parts of the report which tend to vary or control the witness’s previous testimony.</p> <p>In an action by an administrator against a corporation operating a street railway for causing the death of the plaintiff’s intestate, it is proper for the presiding judge to refuse to allow the plaintiff, in his cross-examination of a medical expert called by the defendant, to ask the witness the question, “You never understood, or claimed, that violence was occasioned from any other source than [the defendant]?,” it being a matter wholly immaterial whether the witness ever had understood or claimed that violence to the plaintiff’s intestate was otherwise occasioned.</p> <p>'Where, in an action by an administrator for causing the death of the plaintiff’s intestate, the plaintiff in putting in his case called as a witness the physician who attended the intestate after the accident and introduced no other expert medical testimony, it is within the discretionary power of the presiding judge to refuse to allow the plaintiff upon rebuttal to ask a new witness, qualified as a medical expert, a hypothetical question relating to the connection between the injury to the intestate and her death.</p>

<p>Landlord and Tenant, Eviction.</p> <p>If the lessee of a part of the ground floor of a building which is let to him “ to use the same for a stable, and to make all repairs, except repairs to the roof,” occupies that part of the building as a stable and keeps six or seven horses there, and if such lessee employs a plumber to repair a leak in a frozen water pipe and the repairs are done imperfectly so that the pipe still leaks, and the lessor turns off the water from the stable and refuses to allow the lessee to have any water for his horses from the other part of the building as the lessor could do with very little inconvenience to himself, and the lessee then hands to the lessor the rent which on that day is due in advance for the next month, and the lessor refuses to receive it, and thereupon the lessee, being denied the use of water for his horses, is obliged to move out and does so, it can be found on these facts, that the lessor by unjustifiably refusing to permit the lessee to have any water and afterwards by refusing to receive the rent gave the lessee the right to treat his acts as a constructive eviction, which right the lessee by yielding up possession had elected to exercise; and that accordingly the lessor cannot maintain an action to recover the rent which he had refused to accept.</p>

<p>Landlord and Tenant, Defect in0common stairway. Negligence, In maintenance of building.</p> <p>The owner of a three story building is not liable to the tenant occupying the second floor for personal injuries caused by the tenant’s foot coming in contact with the tops of two nails projecting above a tread of a common stairway in the control of the owner, if one of the nails projected above the surface only three sixteenths of an inch and the other still less, even if the owner had notice of the projection of these nails before the accident occurred. Following Jennings v. Tompkins, 180 Mass. 302.</p>

<p>Evidence, Of value of land, Chalks and plans. Damages, For properly taken or impaired under statutory authority. Practice, Civil, Conduct of trial, Exceptions.</p> <p>At a trial for the assessment of damages for the taking by a town for park and water purposes of a large tract of land belonging to a land company, which was engaged in the land developing business, consisting of the purchase of large tracts of land that it cut up into house lots and sold on the instalment plan under agreements in writing providing for the giving of a deed upon the final payment and for a forfeiture of previous payments upon a failure to pay any instalment, it is proper for the presiding judge to exclude evidence of the aggregate contract price of one hundred and fifteen lots, adjacent and similar to those included in the taking, on which instalments have been paid under such agreements for sale, and also to exclude evidence of the amount of money thus paid; as such agreements are not sales in the open market and do not test the value of the land by the natural law of supply and demand.</p> <p>It also is proper for the presiding judge at the same trial to exclude evidence of what a person, who held, under one of the agreements for purchase, certain adjacent land not included in the taking, did upon that land after the time of the taking, this being immaterial, and it also is proper for the judge to exclude evidence of settlements made or to be made by the land company whose land was . taken with persons holding agreements for the purchase on the instalment plan of lots included in the taking, this having no relevancy to the fair market value of the land taken and not constituting a separate element of damage.</p> <p>It is not improper for the presiding judge at the same trial in the exercise of his discretion to admit in evidence the price paid, for the land taken, by a partnership which was incorporated to form the land company owning the land, and also to admit in evidence the price paid for the land two months earlier, to be taken into account with other facts “in arriving at the true value at the time of taking,” where the jury has taken a view of the land and there is ample evidence of what has been done on the land since the date of that purchase. It also is not improper for the judge in the exercise of his discretion to admit evidence of the sale of a six acre tract of land in the immediate vicinity.</p> <p>At a trial for the assessment of damages for the taking by a town for park and water purposes of a large tract of land belonging to a land company, where, to meet evidence of the petitioner that there was no more undeveloped land in that town, the respondent has called as a witness its town engineer, the presiding judge in his discretion may permit this witness to explain his testimony by the use of a plan and for this purpose may admit the plan in evidence.</p> <p>The admission of evidence purely immaterial and in no way prejudicial to the excepting party will not support an exception.</p>

<p>Negligence, In maintaining elevator. Landlord and Tenant. Practice, Civil, Judge’s charge.</p> <p>If a woman, who occupies a tenement on the second floor of a tenement house, which has in the space adjoining the balustrade of a staircase an unboxed small elevator that is operated only by the janitor and is used to carry materials to the different tenements and to bring ashes and other waste from the tenements to the yard, at a time when she knows that the elevator car is at rest above her floor and that the janitor is on a floor below her, leans over the balustrade of the stairway to ask the janitor to do something for her and thus gets under the elevator car, which at that moment falls by reason of a defect due to the negligence of the owner of the building and strikes her head, causing injuries, it cannot be said that she was negligent as a matter of law, and in an action against the owner of the building for her injuries thus sustained she is entitled to go to the jury.</p> <p>A portion of a charge of a presiding judge is not erroneous, as applied to the evidence, which correctly called the attention of the jury to matters which it was material for them to consider.</p>

<p>Petition, filed on August 18, 1914, for a writ of habeas corpus, alleging that the petitioner unlawfully was imprisoned and restrained of his liberty under a warrant issued upon the request of the Governor of West Virginia for the alleged crime of grand larceny, and that the warrant was issued contrary to the Constitution and laws of the United States and those of this Commonwealth.</p> <p>The case came on to be heard before Braley, J., upon the return of an order of notice to show cause why a writ of habeas corpus should not issue, the only evidence introduced being the demand for rendition of the petitioner addressed to the Governor of this Commonwealth by the Governor of the State of West Virginia, dated July 15, 1914, together with the documents attached thereto, and another demand for rendition of the petitioner addressed to the Governor of this Commonwealth by the Governor of said State, dated August 3,1914, the attached documents being described in the opinion.</p> <p>The justice was of opinion that the petition should be dismissed, but, at the request of the petitioner, adjourned the case under R. L. c. 191, § 14, into the full court and reported it for their determination.</p>

<p>Negligence, Street railway, On a drawbridge, Knowledge of rules. Evidence, Presumptions and burden of proof, Of knowledge of rules, Res inter alios.</p> <p>If an assistant draw tender on a bridge, whose work was at or near the tracks of a street railway on which cars frequently passed in both directions and who was expected to look out for his own safety, was struck and killed by a street railway car, which was operated by its motorman negligently but not wantonly and recklessly, and there is nothing to indicate that .the assistant draw tender took any precaution to insure his safety from the danger of being struck by the car even to the extent of glancing in the direction from which it was coming, the administrator of his estate cannot recover for his death or conscious suffering, as, in order to recover for either, the burden is upon the administrator to prove that his intestate was in the exercise of due care.</p> <p>In an action against a corporation operating a street railway for causing the death of the plaintiff’s intestate by running him down when he was at work as an assistant draw tender on a bridge and was engaged in clearing one of the latches of the draw from snow, upon the issue of the due pare of the intestate the presiding judge properly may refuse to allow the plaintiff to ask a witness whether the draw tenders on the bridge where the plaintiff was employed had common knowledge of certain rules of the defendant relating to the regulation of the speed of street railway cars upon drawbridges and of a certain city ordinance requiring the sounding of gongs when persons were standing on or near the tracks, if the plaintiff is unable to show that the intestate knew of the existence of the rules or of the ordinance, much less that he acted in reliance upon them.</p> <p>In an action against a corporation operating a street railway for causing the death of the plaintiff’s intestate, the plaintiff cannot be allowed to put in evidence the record of an inquest upon the death of the intestate held under the provisions of R. L. c. 24, § 11.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 8, 1914, by a jeweler occupying a store numbered 69 on Central Street in Lowell, consisting of a room on the first floor and the cellar beneath it, under a lease from the defendants Stevens and JoIIiffe, the owners of the building, dated August 30, 1912, alleging that those defendants on June 1, 1913, executed a lease of the whole building to the defendant Wit for the term of twenty years, that the rear of the plaintiff’s room and cellar had windows upon an open court or area about twenty-three feet long and sixteen or seventeen feet wide, and that the defendant Wit had begun to make certain alterations in the second floor of the building extending that floor completely over the open area and thereby depriving the plaintiff of light and air through his rear windows; praying for an injunction and the assessment of damages.</p> <p>The case was referred to Charles H. Mclntire, Esquire, as master. He made a report containing the findings that are stated in the opinion. There were no exceptions to the master’s report. Later the case was heard by De Courcy, J., who on the facts found by the master made a decision that there was no express or implied grant of an easement to the plaintiff entitling him to have the area at the rear of his store kept open to the sky for the purposes of light and air, and ordered that the bill be dismissed. By order of the justice a final decree was entered dismissing the bill; and the plaintiff appealed.</p>

<p>Tort in the name of Ida C. Turnquist, the administratrix of the estate of Peter Turnquist, who, while employed as a cement helper by the Simpson Brothers Company, a corporation, received injuries resulting in his death, the action being brought for the benefit of the Contractors Mutual Liability Insurance Company, against a master teamster whose servant’s negligence caused the injuries and death of the plaintiff’s intestate, the the declaration containing a first count for conscious suffering and expenses and a second count for causing the death of the intestate. Writ dated January 2, 1913.</p> <p>In the Superior Court the case was tried before Fox, J., without a jury. The material facts are stated in the opinion. The judge refused to make certain rulings requested by the defendant. On the first count, for conscious suffering, he found for the defendant, and on the second count, for causing death, he found for the plaintiff in the sum of $2,500.</p> <p>The judge filed the following memorandum of decision:</p> <p>“The accident was caused by the negligence of the defendant’s servant acting within the scope of his authority. No contributory negligence of Turnquist or of Simpson Brothers Co. No conscious suffering. Damages for death, $2,500.</p> <p>“For the purpose of saving questions raised under the compensation act, the case may be reported, if the defendant requests and will prepare and print and enter the report.”</p> <p>The judge accordingly at the request of the defendant reported for determination by this court the questions of law raised by his refusals to make the rulings requested by the defendant, those questions being stated in the opinion.</p>

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

<p>Fraud. Husband and Wife. Equity Jurisdiction, Fraud as against creditors, Resulting trust. Trust, Resulting.</p> <p>In a suit in equity by a trustee in bankruptcy against the wife of his bankrupt to set aside a conveyance by the bankrupt through a third person to the defendant of the equity of redemption of a farm on the ground that it was fraudulent against creditors at common law under St. 13 Eliz. c. 5, it appeared that the farm had been bought with money earned by the defendant and had been put in her husband’s name to be held by him for her benefit, that the defendant, also with money from her own earnings, paid off a mortgage upon the farm, that thereafter the defendant, in order to help her husband, joined in a mortgage of the farm made by her husband by releasing her dower rights upon the condition that the equity should be conveyed through a third person to her, which was done, her husband then being heavily in debt but the conveyance being made more than four months before he was adjudicated a bankrupt. There was no fraudulent purpose in making the conveyance. Held, that on these facts a finding was warranted that the conveyance of the equity to the defendant was in satisfaction of an equitable obligation of her husband toward her, which constituted a good consideration, and that the conveyance was a valid one as against her husband’s creditors.</p> <p>Where a married woman out of her own earnings has bought and paid in full for a farm, of which the title is taken in the name of her husband but which is carried on wholly by her and equitably is her property, a voluntary transfer by her husband to her through a third person of a cow and an express wagon, which “were bought with the proceeds of the farm, so that they were held the same as the farm, namely as the property of the [wife] in equity,” is valid at common law as against the creditors of the husband, although he was heavily in debt when he made the transfer.</p>

<p>The cases were submitted on briefs.</p>

<p>Contract against the city of Fall River, with a declaration containing two counts, the first for the breach by the defendant of a contract in writing dated April 22, 1909, by which the plaintiff agreed to collect and dispose of, in a sanitary manner, the waste garbage and swill found in the city of Fall River, as required by the board of health of that city, from May 1,1909, until May 1, 1914, alleging that the plaintiff did the things on his part agreed to be done under the contract until February 1, 1911, and was ready and willing to perform the rest of his contract, but that the defendant without cause refused to allow further performance on his part and repudiated the contract; and the second count alleging that the defendant owed the plaintiff $336.75 and interest at the rate of five per cent per annum for unpaid monthly instalments for work done by the plaintiff under the contract during the nine months preceding February 1, 1911. Writ dated February 23, 1911.</p> <p>In the Superior Court the case was tried before Stevens, J. The essential facts shown by the evidence are stated in the opinion. At the close of the evidence the defendant asked in writing for thirty-two rulings. The judge made six of those rulings, which he gave as instructions to the jury, “but refused to rule as further requested except as he instructed the jury according to the charge . . . and the defendant duly excepted using the following language at the conclusion of the charge, the court understanding that his exceptions were thereby saved to all requests not given: ” The defendant’s counsel, “Your Honor will save the defendant’s rights?” The court, "Your rights shall be saved.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $8,133.85; and the defendant alleged exceptions, those that were argued by it raising the questions that are stated and disposed of in the opinion.</p>

<p>Tort against the town of North Attleborough for damage done to the land of the plaintiffs by the discharge of water by the defendant into a small natural stream called Mire Brook, causing the brook to overflow its banks and to submerge and wash away portions of the'plaintiffs’ land. Writ dated March 21, 1913.</p> <p>The defendant in its answer alleged that by St. 1909, c. 269, it was authorized to lay, make and maintain subdrains and, with the approval of the State board of health, to discharge the water into any brook, stream or watercourse within the town, and that any water discharged by it into Mire Brook was discharged under this authority and with the approval of the State board of health. The answer further alleged that, if the plaintiffs ever had any cause of action, it was barred by § 5 of St. 1909, c. 269, which required that a petition for damages should be brought within two years from the time when the cause of action accrued.</p> <p>In the Superior Court the case was tried before Raymond, J. The material evidence is described in the opinion. The exception to the admission of evidence referred to in the opinion was as follows: John Diamond, one of the plaintiffs, was asked by his counsel the question, "And what should you say the value of your property was before this pipe was emptied into your land?” He answered, “About fifty-five hundred dollars.” He then was asked, “What did you consider the value of that property after the subdrain was put upon your land?” The defendant objected to this question but the judge admitted it and the defendant excepted. The witness answered, “Forty-five hundred dollars.”</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:.</p> <p>“1. Upon all the evidence in the case, the jury must find for the defendant.</p> <p>“2. There is no. evidence that it was the duty of the defendant town to clear Mire Brook of obstructions and so the town is not liable in this action.</p> <p>“3. There is no evidence that the defendant town took any water rights in Mire Brook and therefore the plaintiffs cannot recover from any obstruction of the waters of said brook in this form of action.</p> <p>“4. Chapter 269 of the Acts of 1909 gives the defendant the right to lay, make and maintain subdrains and with the approval of the State board of health to discharge the water into any brook, stream or watercourse within the town, and the defendant is not liable in.this case upon the evidence introduced for any clogging up of said brook or said subdrain or either of them.</p> <p>“5. Section 5 of Chapter 269 of the Acts of 1909 gives the plaintiffs a right of action, if any they have, and they cannot maintain this action of tort.</p> <p>“6. The plaintiffs must show actual damage or loss resulting from the acts of the defendant in order to recover in this action and there is no evidence in this case of any damage for which the defendant is responsible.”</p> <p>The judge refused to make any of these rulings, and gave other instructions to the jury. The defendant’s second exception to the judge’s charge, referred to in the opinion, was as follows: “2. The defendant objected to so much of the judge’s charge as instructed the jury that the town had authority to go on the land near Mire Brook and clean it out, that they had the authority to do it, but were not called upon to do it unless they saw fit and if they failed to do it and their negligent failure caused injury to other people, they are responsible for it.”</p> <p>The jury returned a verdict for the plaintiffs in the sum of $50; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on May 26, 1914, by four of the five children of Jeremiah Reardon, deceased, against Ann C. Reardon, the widow of Jeremiah, and Anastasia D. Reardon, who was a daughter of Jeremiah and Ann and a sister of the plaintiffs, containing the allegations described in the opinion, and praying that the real estate there mentioned, which was conveyed by Jeremiah to the defendant Ann, be declared to have been held by her upon a trust created by an oral agreement between Jeremiah, now deceased, and the plaintiffs and the defendants, and now to be held subject to that trust by the defendant Anastasia, to whom it was conveyed by the defendant Ann as stated in the opinion, and for further relief.</p> <p>The defendant Anastasia demurred to the bill.</p> <p>The case was heard upon the demurrer by Morton, J., who sustained the demurrer, and reported the case under R. L. c. 159, § 27, for determination by this court, with a stipulation of the parties that, if the order sustaining the demurrer was right, the bill was to be dismissed with costs; and that, if that order was erroneous, the defendants were to answer over.</p> <p>The case was argued at the bar in November, 1914, before Rugg, C. J., Hammond, Sheldon, He Courcy, & Crosby, JJ., and after-wards was submitted on briefs to all the justices then constituting the court.</p>

<p>Husband and Wife. Bank. Interpleader. Practice, Civil, Motion to quash.</p> <p>If a wife, without her husband’s knowledge or consent, takes a sum of money belonging to her husband and deposits it in a savings bank in her own name, and then dies, and if her husband, on learning after her death of the existence of the deposit, demands from the savings bank its payment to him, and the bank refuses to make the payment, the husband is entitled to the deposit as against the executor of the will of his wife, and may recover its amount in an action against the bank, to which the executor is made a party defendant on a petition of interpleader under St. 1908, c. 590, § 50.</p> <p>Where, in an action against a savings bank by a husband after the death of his wife to recover the amount of a deposit of money belonging to him that was made by his late wife in her own name without his knowledge or consent, the executor of the will of the plaintiff’s wife, upon a petition of interpleader filed by the defendant bank under St. 1908, c. 590, § 50, is made a party lefendant as the claimant of the fund, and thereupon appears and files an answer, and the case is tried before a jury, who find on an issue framed for them by the judge that thé money deposited was the property of the plaintiff, it is too late after this finding for the executor to move to quash or reverse the order of court by which he was made a defendant.</p>

<p>Information in equity, filed in the Supreme Judicial Court on June 3, 1913, against the administratrix of the estate of Mary A. Roche, late of Haverhill, who died intestate on March 8, 1910, for the collection of $154.50 alleged to be due to the Commonwealth from the defendant as such administratrix as a succession tax under St. 1909, c. 490, Part IV.</p> <p>The case came on to be heard before De Courcy, J., who reserved it upon the pleadings and an agreed statement of facts for determination by this court. The essential facts are stated in the opinion.</p>

<p>Municipal Corporations, Officers and agents. Waterworhs. Revere.</p> <p>Assuming that a statute might be framed to compel the furnishing of water by a municipality under such conditions that the town or city would have no private interest in the matter and would act wholly as a public instrumentality, St. 1904, c. 457, authorizing the town of Revere to establish a system of water supply for the extinguishment of fires and for domestic and other purposes, is not of that character.</p> <p>Under St. 1904, c. 457, the water commissioners of the town of Revere are not independent public officers free from the control of the town but are agents representing the town in carrying on the water supply business from which an income is derived that may result in a limited profit; and consequently the town is liable for injuries caused by the negligence of an employee of the water commissioners while acting within the scope of his employment.</p> <p>The liability of a town for injuries caused by the negligence of the employees of its water department while acting within the scope of their employment is not affected by the question whether the water supply business as carried on by the town is profitable.</p> <p>The liability of a town for injuries caused by the negligence of the employees of its water department while acting within the scope of their employment is not i affected by the fact that the water with which the town conducts the water supply business is obtained from the metropolitan water system.</p>