Volume 220 — Massachusetts Reports

<p>Statute, Construction. Attachment, Dissolution by death. Constitutional law, Vested rights. Equity Pleading and Practice, Parties, Motion for final decree, Amendment, Answer.</p> <p>It is irregular for a person whose rights are affected by a suit in equity to which he is not a party to file a “stipulation” agreeing to be bound by the decree to be entered in it. To be affected by the proceeding the person concerned should be made a party to the suit.</p> <p>It is only statutes relating to remedies and not affecting substantive rights that commonly are treated as operating retroactively.</p> <p>Collection by Rugg, C. J., of cases in which statutes have been held to apply only to causes of action subsequent to their taking effect.</p> <p>St. 1913, c. 305, which amended R. L. c. 167, § 112, by providing that no attachment of property shall be dissolved by the death of the debtor “upon that part of the property which the debtor had alienated before his decease,” which took effect upon its passage, does not apply to a case where, although the death of the debtor occurred after the passage of the statute, the attachment and conveyance both had been made before its passage.</p> <p>It seems, that, if St. 1913, c. 305, which amended R. L. c. 167, § 112, by providing that no attachment of property shall be dissolved by the death of the debtor “upon that part of the property which the debtor had alienated before his decease,” had contained a provision for its application to cases where the attachment and conveyance had been made before the statute took effect, such provision, if not the whole statute, would have been void as an attempt to transfer a vested property right from one person to another in violation of the Constitution of the Commonwealth and that of the United States.</p> <p>If a plaintiff in a suit in equity, who has obtained a rescript in his favor, when moving for a final decree wishes, on account of events that have happened since the filing of his bill, to obtain relief beyond the scope of the bill, he must move for leave to amend the bill, and, if his motion is granted, the defendant has a right to demur or answer to the bill as amended, and the relief granted may be adapted to the facts and law existing at the time of the entry of the final decree.</p> <p>No affirmative relief can be granted to a defendant in a suit in equity unless asked for in a cross bill.</p> <p>Where in a suit in equity, after a rescript for the plaintiff, a motion for a final decree was filed, setting forth the death of the defendant since the filing of the bill and the appearance of the administrator of his estate, and asking for a final decree in accordance with the rescript ordering the payment of a sum of money and the issuing of an execution authorizing a levy upon certain real estate of the deceased defendant, which was attached on the original precept when the bill was filed and subsequently was conveyed by that defendant before his death, and the defendant administrator then filed what was termed “ An answer to motion for final decree and execution,” which was elaborate in form, the plaintiff’s motion was treated as a motion to amend the bill and the answer was treated as an answer to the bill as amended, and the case was considered on that footing.</p>

<p>Bill in equity, filed, as substituted, in the Superior Court on November 5, 1913, to recover the amount of a certain promissory note made by the defendant Sibley for $1,159.20 with interest thereon at the rate of five per cent per annum from September 7, 1912, which note was purchased for value and in good faith by the plaintiff from one Williams after it had been altered fraudulently by him, with a prayer in the alternative that the note might be reformed and restored to its original condition and that the defendant Sibley might be ordered to pay the amount of the note to the defendant Connecticut Mutual Life Insurance Company as trustee for the plaintiff, and that the defendant insurance company might be ordered upon receiving the amount of the note to pay it to the plaintiff, and with prayers for other and further relief.</p> <p>In the Superior Court the case was submitted to Jenney, J., upon the following agreed statement of facts:</p> <p>On and before September 8, 1912, the defendant Sibley was the owner of two life insurance policies issued to him upon his life by the defendant insurance company. These policies were in the form known as fifteen payment life policies, that is to say, Sibley was required by the terms of the policies to pay annual premiums thereon in fifteen successive years provided he should live so long but no premium thereafter, and the policies were payable at his death. Each policy was for the sum of $10,000 and the annual premiums on both were payable on September 8 in each year. The first annual premiums on the policies were paid by Sibley on September 8, 1899, and the succeeding annual premiums falling due on September 8 of each year up to and including the year 1911 also were paid by Sibley. The amount of the annual premiums payable on both policies on September 8, 1912, after deducting certain dividends to which Sibley was entitled under the provisions of the policies, was $1,159.20.</p> <p>Shortly before September 8, 1912, the defendant Sibley, wishing to arrange a premium loan for the premiums falling due on that date, that is to say, to give the defendant insurance company his note for the amount of the premiums instead of paying them in cash, called upon George E. Williams, who was then the general agent in Boston of the insurance company, and stated his wishes in this respect. Williams represented to Sibley that he could arrange the loan with the company and Sibley authorized him to do so. Thereafter, in accordance with instructions received from Williams, the defendant Sibley signed as maker a promissory note for $1,159.20 dated September 7, 1912, and payable with interest at the rate of five per cent per annum one year from date to the order of the defendant insurance company, and likewise signed an assignment to the insurance company of his interest in the insurance policies as collateral security for the note. This note and assignment together with the insurance policies then were delivered by the defendant Sibley to Williams on or shortly before September 7, 1912.</p> <p>Williams was the duly accredited general agent of the company in the city of Boston, and when a premium became due from an insured in Boston or vicinity, a so called premium receipt or acknowledgment of the payment of the premium was sent in advance to Williams and was delivered by him to the insured upon payment of the premium, and Williams accounted to the company for such payments. During 1912 the company was accustomed to lend money to its policy holders not exceeding the value of their respective policies upon the security of the policies, taking from the policy holder in each case a signed application for the loan and an instrument not in form or substance a promissory note, acknowledging the receipt of the loan and assigning to the company the policy as security therefor. These documents always were prepared by the officers of the company at its home office and the preparation of them never was entrusted to any agents of the company. The authority of the general agent was limited to transmitting to the policy holder the documents so prepared at the home office for his signature, sending them when executed to the home office and transmitting to the policy holder the proceeds of the loan in the form of a draft payable jointly to all parties interested in the policy. Williams had no authority to receive the note of Sibley in behalf of the company, but Sibley believed the representations of Williams that he did have such authority and delivered the note to Williams for the sole purpose of delivery by him to the company. When Sibley delivered the note to Williams, Williams delivered to him the premium receipt for the premiums due September 8, 1912, on the policies.</p> <p>Williams never delivered the note to the company and never informed the company that the note had been given to him by Sibley. On the other hand, he retained the note in his possession until it was disposed of by him as stated below, and on October 20, 1912, he reported to the company that on October 9, 1912, Sibley had paid the premiums in cash. At the time of making this report Williams also rendered to the company an account in which he charged himself with certain sums collected by him for the company and with the amount of the Sibley premiums as though they had been paid to him in cash and credited himself with certain amounts due him for expenses and commissions and sent to the company a check for the balance due as shown by the account.</p> <p>Williams never delivered to the company the insurance policies or the assignment thereof which Sibley delivered to him as above stated and never informed the company that he had received them from Sibley. The assignment remained in the possession of Williams until his death and thereafter remained in the possession of the administrators of his estate. The policies remained in the possession of Williams until he disposed of them as stated below.</p> <p>At some time shortly after September 7, 1912, Williams, still having in his possession the note actually signed by Sibley to the order of the defendant insurance company, altered the note by eradicating with chemicals or otherwise erasing the name of the company as payee and inserting in place thereof his own name, George E. Williams. After this alteration had taken place and at some time during the month of September, 1912, Williams negotiated the note by indorsement and delivery to the plaintiff and the plaintiff gave to Williams therefor full and valuable consideration either in cash or by surrendering other notes then held by the plaintiff and then due and payable by Williams. The acts of Williams in altering the note as above stated and negotiating it to the plaintiff were all done without the knowledge, consent or authority of the defendant Sibley or of the defendant insurance company. The plaintiff, however, when he took the note, had no notice that it had been altered as above stated but honestly believed that it had been signed by Sibley in the form in which it was when the plaintiff received it.</p> <p>At the maturity of the altered note the defendant Sibley refused to pay it or the amount thereof to the plaintiff and never has paid the amount of the note or any part thereof to the plaintiff or to any other person.</p> <p>Williams died on July 28, 1913.</p> <p>Sibley paid in cash the annual premiums due September 8, 1913, on the Sibley policies and each became thereupon a fully paid policy. Each of the policies had during the thirty days following September 8, 1914, a cash surrender value of $7,730.</p> <p>The following paragraph was agreed upon if it was admissible against the objection of the defendant Sibley:</p> <p>“When Williams negotiated the note to the plaintiff he told the plaintiff that Sibley was a policy holder of the defendant company and that Sibley gave him the note to raise money thereon in order to pay a premium then due.”</p> <p>The following facts might also be taken to have been proved by the defendant Sibley if they were admissible in evidence against the objection of the plaintiff: At some time after October 20, 1912, Williams, being in possession of the policies belonging to the defendant Sibley, forged Sibley’s name to a promissory note purporting to be made by Sibley to the order of Williams for the amount of $10,000 and likewise to a document purporting to be an assignment of the policies from Sibley to Williams as collateral security for such $10,000 note and negotiated this forged note by indorsement, and delivery to a person whose identity was not material and received from that person therefor a substantial sum of money. At the same time Williams transferred and delivered to such person the policies and the forged assignment thereof. The facts stated in this paragraph were not considered material by the judge in ordering the decree as stated below.</p> <p>The judge ordered that the bill be dismissed with costs so far as the defendant Sibley and the Connecticut Mutual Life Insurance Company were concerned. Later by order of the judge a final decree was entered that the bill be dismissed as to all the defendants, and that the defendant Sibley recover against the plaintiff $19.48 as costs. The plaintiff appealed.</p>

<p> Workmen’s Compensation Act. Proximate Cause. </p> <p>Under the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part III, § 7, as amended by St. 1912, c. 571, § 12, by which the arbitration committee is required to file with the Industrial Accident Board its decision in regard to an injury “together with a statement of the evidence submitted before it, its findings of fact, rulings of law and any other matters pertinent to questions arising before it,” it is made the duty of the arbitration committee to report all the material evidence, and it therefore is to be assumed in the absence of any statement on the subject in the report that this duty has been performed; although in a report of a decision of the Industrial Accident Board such a statement would be necessary to show that all the material evidence before that board was reported.</p> <p>Where, therefore, on an appeal by an insurer from a decision of the Industrial Accident Board, it appears that that board heard the case only on the report of the arbitration committee and heard no other evidence, this court will assume that all the evidence is reported, although no statement to that effect appears in the record, and it is open to the insurer to argue that the findings are not warranted upon the evidence reported.</p> <p>It here was said by the court, that in the reporting of appeals from decisions of the Industrial Accident Board in future cases it would be desirable to have a clear statement as to whether that board heard the case only upon the report of the arbitration committee or whether in addition to that report evidence was received at the hearing before the board.</p> <p>Where it appears that a cook employed upon a lighter, who was required to live on board a large part of the time, when the lighter was sinking in a harbor made several trips to and from the deck of the lighter in saving some of his clothes and a surveying instrument, and, as he had valvular disease of the heart, his exertion and the excitement incident to the loss of the vessel caused him to die on the pier of a dock shortly after he had reached it with his clothes and the instrument, it can be found by the Industrial Accident Board that the injury that caused his death arose out of and in the course of his employment within the meaning of the workmen’s compensation act.</p>

<p>Bill in equity, filed in the Superior Court on December 9, 1912, by the lessees of a barber’s shop in the so called Traveler Building numbered 78 on Summer Street in Boston against the Evening Traveler Company, a corporation, the Boston Herald, Incorporated, a corporation, the successor and assignee of the Evening Traveler Company, and Francis R Bangs, trustee, praying for an injunction against all the defendants to restrain them from interfering with the plaintiffs’ possession of the premises and for the specific performance by the defendant Evening Traveler Company of a covenant for a renewal of the plaintiffs’ lease for a period of three years from January 1, 1912.</p> <p>The defendant Francis R Bangs, trustee, filed a plea in abatement, setting up the non-joinder as defendant of his co-trustee Robert H. Gardiner; and an interlocutory decree was made that the bill be dismissed without costs as to the defendant Bangs.</p> <p>The other defendants demurred and answered. On March 3, 1913, the plaintiffs were allowed to amend their bill by adding certain allegations and making Bangs and Gardiner defendants, they, as trustees, being the .owners of the building and the lessors of the Evening Traveler Company.</p> <p>On March 10, 1913, an interlocutory decree was made, with the consent of the plaintiffs, ordering that the bill should be dismissed as to the defendants the Evening Traveler Company and the Boston Herald Company, Incorporated, and that the case as against the defendants Bangs and Gardiner be referred to Robert D. Weston, Esquire, as master, and enjoining the defendants Bangs and Gardiner until further order of the court from interfering with the plaintiffs’ possession of the shop occupied by them in the building 78 Summer Street in Boston.</p> <p>The defendants Bangs and Gardiner filed a cross bill asking for relief against the plaintiffs. The original plaintiffs demurred to the cross bill and their demurrer was sustained. The defendants Bangs and Gardiner ¿ppealed from the order sustaining the demurrer.</p> <p>The master filed a report and afterwards a supplementary report, finding, among other facts, those that are stated in the opinion. The defendants Bangs and Gardiner filed exceptions to the master’s report and supplementary report and also moved to recommit the report. An interlocutory decree was made by Jenney, J., denying the motion to recommit, overruling all the exceptions of the defendants Bangs and Gardiner and ordering that the master’s report be confirmed. Later by order of the same judge a final decree was entered ordering that the defendants Bangs and Gardiner, as trustees, pay to the plaintiffs as the money equivalent of the plaintiffs’ right of possession, as found by the master under a stipulation of the parties, the sum of $4,554 with interest thereon to the date of payment together with $65.46 as costs of suit. The defendants Bangs and Gardiner appealed from the interlocutory decree denying their motion to recommit the report of the master, overruling those defendants’ exceptions to the report and confirming the report, and from the final decree.</p>

<p>Negligence, Street railway.</p> <p>In an action by a woman against a corporation operating a street railway for personal injuries sustained when the plaintiff was a passenger in a car of the defendant, there was evidence that as the car was approaching a station in a subway but had not come to a full stop the plaintiff, who had risen from her seat and had taken two or three steps toward the forward end of the car without having hold of any strap, was thrown over sideways and her hand went through a window of the car and was injured. She testified that, as the car came to the curve at the station, “ all of a sudden, the car gave an awful jerk; a violent jerk. That threw me right to this side. It was just as though the car was going to tip right over.” Held, that the plaintiff’s description of the jerk of the car and the effect which it had upon her was not sufficient evidence of the negligence of the motorman to require the submission of the case to the • jury.</p>

<p> Executor and Administrator. Trust. Savings Bank. </p> <p>íUthough a special administrator appointed under R. L. c. 137, § 9, who is authorized by § 10 to “commence and maintain suits” for the purpose of collecting and preserving the property of the deceased, is not given express authority by that section to defend suits, and although § 15 of the same chapter provides that “a special administrator shall not be liable to action by a creditor of the deceased,” yet, where a suit in equity is brought to establish the beneficial ownership of a plaintiff in certain savings bank deposits which stood in the name of the deceased as trustee at the time of his death, and the Probate Court by a decree has authorized a special administrator appointed by that court to appear and defend the suit, the Superior Court in which the suit is brought, on finding that the deposits are the property of the plaintiff, has authority to enter a decree ordering the special administrator to deliver the savings bank books to the plaintiff and ordering the banks thereupon to pay to the plaintiff the amounts of the deposits.</p>

<p>Trust, Duties of trustee. Devise and Legacy. Words, "Practicable.”</p> <p>A testator by the residuary clause of his will divided the residue of his estate equally between, his son and his grandson and directed that, “ as soon as practicable after my decease and such division shall have been made my trustees shall pay to my said son the sum of five thousand dollars in cash or its equivalent; the income of the remainder of his half shall be added to the principal as it accrues and at the expiration of five years from the date of said payment of five thousand dollars all the principal and accretions thereto shall be paid to my son and the trust as to him closed.” The trustees were given power to sell but not to mortgage real estate. A part of the residue consisted of real estate appraised at $9,000. There was not enough personal property in the hands of the executors to pay the son $5,000 without a sale of real estate. The son agreed to take the real estate as a part of his half and the balance in personal property and agreed to a sale of the real estate. The trustees sold the real estate as soon as they could, which was within two years from the testator’s death, and thereupon paid to the son the balance of the $5,000 to be paid to him in cash. In a suit in equity by the son to fix the date in five years from which the trust for the plaintiff should be terminated and the remaining part of his half of the residue should be paid to him, it was held, that there had been no unnecessary delay, and that the payment to the plaintiff of the balance of the $5,000 in cash had been made “as soon as] practicable” after the testator’s decease, thus fixing the time from which the five years of continued existence of the trust were to run.</p> <p>A power to sell real estate given to the trustees under a will for the purpose of making a division of the property of the testator does not include a power to mortgage the real estate.</p>

<p> Marriage and, Divorce. Husband and Wife. Superior Court. Probate Court. Judgment. Child. Guardian. </p> <p>R. L. c. 152, § 17, gives the Superior Court full jurisdiction, where after the hearing of a libel for divorce the conclusion is reached that a divorce should not be granted but that there ought to be a temporary separation of the parties or a maintenance of the wife separate and apart from the husband, to deal with the ease as the interests of the parties may require and to make orders for the separate maintenance of the wife and the custody and support of minor children, which while in force shall supersede any order or decree of the Probate Court under R. L. c. 153, § 33.</p> <p>A decree of the Probate Court appointing a man and his wife joint guardians of their minor child is superseded, so far as it relates to the custody of the child, by a decree of the Superior Court, made in a divorce suit brought by the wife more than a year later, awarding to the wife the care and custody of such minor child and ordering the husband to make certain payments for the support of his wife and child.</p> <p>Under R. L. c. 152, §§ 16, 17, 25-28, the Superior Court, when a man and his wife are before it as the parties to a libel for divorce, becomes the court of domestic relations in matters affecting the welfare of the family and the care, custody and support of minor children.</p>

<p>Name. Good Will. Sale, Good will. Corporation. Words, “Person.”</p> <p>An awning maker formed a corporation, whose corporate name consisted of his own name with the word “Company” added, of which he held all the outstanding stock and to which he transferred his business including the good will. After carrying on business for a period the corporation passed into the hands of a receiver, who, after carrying on the business for a further period, sold the assets, including the "business, good will and trade names” of the corporation, to purchasers who organized a new corporation with the same name except that the word "and” was inserted before “Company” and the word “Incorporated” was placed after it. The original proprietor of the business then started again in the same business in his own name with a plain announcement that he was in no way connected with the corporation, and the corporation brought a suit in equity against him to enjoin him from carrying on the business in his own name after they had purchased the good will of that business. He filed a cross bill under R. L. c. 72, § 5, to enjoin the corporation from using his name. By agreement of the parties this court could draw inferences of fact from the findings reported, and it was found as a fact that the awning maker, when he formed the first corporation and transferred to it the good 'will of his business, did not intend to transfer the right to use his name beyond the business life of the corporation then formed by him, and it was held, that the new corporation’s purchase from the receiver of the good will of the first corporation gave it the right only to do business as the successor of the first corporation and did not give it the right to use in its business the name of the individual awning maker, who, having refused to consent to its use, had the right under R. L. c. 72, § 5, to resume his business in his own name, if he refrained from unfair competition, and accordingly that the bill of the corporation should be dismissed, and that in the cross suit a decree should be entered granting the individual awning maker an injunction and referring the case to a master for the assessment of damages.</p> <p>In the provision of R. L. c. 72, § 5, in regard to the use in business of the name of a person by “a person who carries on business in this Commonwealth,” the word “person” in the phrase quoted includes a corporation, although § 5 is not named in the sections enumerated in § 1 of the same chapter in which the word “person” includes “corporation.”</p>

<p>Writ of entry, to recover certain real estate in the town of Weymouth, dated August 15, 1911.</p> <p>The tenants’ answer set up a title acquired by adverse possession for more than twenty years.</p> <p>In the Land Court the case was tried before Davis, J., who found the following facts:</p> <p>In 1872 the demanded premises were owned by Mrs. Ann Weston, for whom and whose family the tenants’ mother, Mrs. Mary A. Haviland, had for many years worked as a seamstress. Mrs. Haviland had lived in a house owned by Mrs. Weston. In 1872 Miss Deborah Weston, one of the four daughters of Mrs. Ann Weston, asked Mrs. Haviland whether she would not like to own a house of her own, and proposed to talk the matter over with the rest of the Weston family. Later in the same year she proposed that a house should be built on the demanded premises and that Mrs. Haviland should pay for it by ten years’ work for the family, provided $1,000 worth of work should be done. Mrs. Haviland assented to this proposal. Thereupon the house was built, and Mrs. Haviland moved into it in October, 1872, remaining until her death in 1910. Since that time the tenants have been in possession, claiming under her.</p> <p>In 1878 Mrs. Weston died, leaving the premises by will to her four daughters. One of these, Miss Caroline Weston, died in the spring of 1882, leaving all of her property to her three sisters. Mrs. Haviland kept an account of her work for the Westons, and in 1882 she had done more than $1,000 worth. She then went to Miss Deborah Weston and asked for a deed. Mliss Deborah Weston replied that as soon as she returned from Europe (where her surviving sisters lived) she would have it done. She also told Mrs. Haviland that they all were willing to give a deed except her sister Emma., In 1883 the defendant John Haviland told his mother that she ought to have a writing, but she replied that the Westons were very honorable people and could be relied upon to carry out their promise: Miss Deborah Weston went abroad in 1887 and never returned, and the Weston affairs were placed in the hands of an agent. The family owned a considerable amount of real property, the demanded premises being a corner lot fenced off out of the part of the estate known as Watch House Hill. In 1887 the agent for the estate demanded rent from Mrs. Haviland, who refused to pay any, claiming to hold under her agreement for sale.</p> <p>Miss Emma Weston died shortly before March 21, 1888, and her interest in the premises passed to her sisters Anne and Deborah. In May, 1888, a writ of ejectment was brought against Mrs. Haviland by the two sisters, through their agent and counsel. Mrs. Haviland appeared by attorney and defended the action; and in June, 1888, the case was continued generally on the docket and nothing further was done. In 1890 Miss Deborah Weston died, leaving all of her property to her sister Anne, and in 1892 Anne died, leaving the demandants as her devisees and trustees.</p> <p>The demandants, after their appointment, sent to Mrs. Haviland their agent, who demanded the payment of rent, but she refused, told her story and claimed ownership. Thereupon, in June, 1893, the demandants executed a lease to one Bourk, who as lessee gave Mrs. Haviland notice to quit. She immediately brought a bill in equity against both Bourk and the demandants, alleging her possession and an oral promise of a deed, and praying that they all be enjoined from disturbing her possession, and that the present demandants be ordered to convey the premises to her. The defendants, who were the present demandants, demurred, and without a hearing thereon, no injunction having issued, the bill, in 1896, was dismissed, and Mrs. Haviland appealed. In 1901 the appeal was dismissed.</p> <p>The judge ruled that, even if the suit in equity did not in itself interrupt Mrs.Haviland’s possession,it suspended the demandants’ right and duty to interrupt it; that from 1872 to 1882 Mrs. Haviland was in possession under a license and the promise of a future deed; that the terms on which she was to receive the deed were not completed until October, 1882, and that thereafter, until 1887, Mrs. Haviland was in possession, not adversely and claiming to be the owner, but under an oral promise which she trusted to the honor of the Westons, whose ownership she recognized, to fulfil.</p> <p>The judge, after stating that the sole issue was whether the tenants showed an adverse occupation for twenty years under such circumstances that the demandants and their predecessors were estopped by the facts or by the statute of limitations from asserting their record title, found that until 1887 there was nothing to show the owners that Mrs. Haviland was claiming adversely to them, and that from 1893 to 1901 she was endeavoring to enforce an oral agreement for a deed and asking that the demand-ants be restrained from disturbing her possession; that, even if it were assumed that the tenants could tack to their occupation since 1901, the period between 1887 and the bringing of the bill in equity in 1893, they failed to show an acquirement of title by adverse possession for twenty years.</p> <p>He ordered judgment 'for the demandants, and reported the case for determination by this court. If the rulings made were right and there should be judgment for the demandants, judgment was to issue as ordered. If not, such disposition was to be made of the case as this court might determine.</p>

<p>Insurance, Life, Accident. Words, “ Cost.”</p> <p>Under St. 1912, c. 524, which provides that a foreign life insurance company, if permitted to do so by its charter or by the State in which it is incorporated, may insert in its life insurance contracts provisions for certain features of accident insurance, “which provisions shall state the special benefits to be granted thereunder and the cost of such concessions to the insured,” a policy of life insurance proposed by such a company is in proper form if, after a provision in which the permitted elements of accident insurance are included, it states, “This provision is granted without additional cost to the insured,” there being nothing in the statute which requires the insurance company to divide the premium charged and apportion it between the life and the accident insurance covered by the policy.</p>

<p> Monopoly. Restraint of Trade. </p> <p>The contracts, agreements, arrangements or combinations in violation of the common law which under St. 1908, c. 454, the Attorney General by a suit in equity in the name of the Commonwealth may enjoin are of three classes: first, those that establish or maintain a monopoly in the manufacture, production or sale in this Commonwealth of any article or commodity in common use, second, those that prevent or restrain competition in the manufacture, production or sale of any such article or commodity, and, third, those that by establishing or maintaining such a monopoly prevent or restrain the free pursuit in the Commonwealth of any lawful business, trade or occupation.</p> <p>A combination of ice dealers in a territory in and near which are waters suitable for obtaining ice readily available to any one wishing to go into the business, made by means of contracts by which these dealers agree to dispose of their plants for the delivery of ice and to sell their ice to a delivery company that maintains the necessary wagons and plant for delivering ice to the consumers, is not a monopoly of gathering, storing, selling or delivering ice under St. 1908, c. 454, and, where the competition of other ice dealers in the territory, instead of being diminished by the formation of this arrangement for delivery, has increased since that formation, there is under that statute no restraint of competition nor prevention of any person from the free pursuit of the lawful business of gathering, storing, selling or delivering ice in the territory in question.</p> <p>Under St. 1908, c. 454, which provides that the Attorney General in the name of the Commonwealth may maintain a suit in equity to enjoin monopolies, restraints of competition and the prevention of the free pursuit of any lawful business in violation of the common law in the manufacture, production or sale in this Commonwealth of any article or commodity in common use, the power of a combination of dealers to enhance “temporarily” the price of an article in a certain territory is not decisive to show a violation of the statute, and in the present case, where it was plain upon all the findings that any such enhancement must be of very short duration, if made at all, it was held that there was no violation of the statute.</p> <p>Under St. 1908, c. 454, which provides that the Attorney General in the name of the Commonwealth may maintain a suit in equity to enjoin monopolies, restraints of competition and the prevention of the free pursuit of any lawful business in violation of the common law in the manufacture, production or sale in this Commonwealth of any article or commodity in common use, an advantage obtained by superior business efficiency, which makes it more difficult for another person to enter that business because he must compete with the results of such efficiency, is not within the prohibition of the statute.</p>

<p>Land Court. Practice, Civil, Appeal.</p> <p>Whether under the procedure of the Land Court a “decision” of that court is something more than a finding of facts in an action of law and is a matter from which an appeal can be taken, here was mentioned as a question that was not decided, it being assumed for the purposes of the present case that there might be such an appeal which would present a question of law for determination by this court, although the present appeal presented no such question.</p> <p>Where a case was brought before this court by an “appeal from the finding and decision” of the Land Court, and the paper entitled “Decision” was a simple finding' of facts with a narration of some evidence, on which it could not be determined whether the conclusion of the judge was warranted or not, and, although there was a reference to certain plans, they were not made a part of the record, and no ruling of law appeared to have been made, or, if any was made, it was not brought before this court for review, no question of law being raised upon the record, it was ordered that the appeal be dismissed.</p>

<p>Equity Pleading and Practice, Multifariousness. Charity. Trust, Charitable. Religious Society. Constitutional Law. Bromfield Street .Methodist Episcopal Church in Boston. Equity Jurisdiction, To determine validity of election of trustees of church.</p> <p>In a suit in equity to determine what persons as trustees are entitled to the possession of certain funds to be held upon a charitable trust, where all the persons claiming the right to act as such trustees have been joined as parties and where the defendants have proceeded without objection to a general hearing upon the merits before a master, whose report covers the whole case as set forth in the bill, it is too late for the defendants to raise the objection that the bill is multifarious.</p> <p>A deed of land to trustees to hold it forever in trust and to erect thereon a house of worship “ for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and discipline which from time to time may be agreed upon and adopted” is a public charitable trust in perpetuity.</p> <p>The power of the Legislature to terminate a public charitable trust for the support of a well recognized sect of the Christian religion is open to grave doubt, but there is no doubt of the power of the Legislature to authorize the trustees under such a trust to sell a particular piece of land freed from trusts for the maintenance of a building for religious worship and to hold the proceeds of the sale subject to the terms of the trust.</p> <p>Whether St. 1892, c. 103, authorizing the trustees of the Bromfield Street Methodist Episcopal Church in Boston to sell and convey the real estate of that church, is susceptible of a construction that would permit a termination by due formalities of the trust on which the property was held before such sale, and whether, if the true construction of the statute would permit such a .course, the statute in that respect would be a constitutional exercise of legislative power, here were mentioned as questions that had not been presented to the court.</p> <p>The trustees of the Bromfield Street Methodist Episcopal Church in Boston, who were appointed in 1913 by a decree of the Supreme Judicial Court to hold the property conveyed by the deed of one Jackson to Binney and others in 1806, with the authority to sell the real estate of the church given to such trustees by St. 1892, c. 103, and who sold such real estate for $400,000, are entitled to hold such proceeds as a trust fund which they are bound to administer according to the trusts established by such deed of Jackson.</p> <p>Where property is held by trustees “for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and discipline which from fime to time may be agreed upon and adopted,” and where the discipline of the church provides that questions relating to the election of such trustees shall be determined within the church by appeal to the appropriate conference, resort cannot be had to the courts to determine by a suit in equity or otherwise the validity of the election ofvsuch trustees until the usual methods of relief within the organization have been tried and found wanting.</p>

<p>Way, Private. Easement, Extent of.</p> <p>Where the separate owners of two lots of land, with a strip of land ten feet wide owned in common by them lying between the two lots, established by agreement a right of way to be used in common over the whole strip and one of the owners with the consent of the other constructed a way over the whole strip for their common use, a successor in title of the other owner has no right to change the grade of any part of the way, and if he digs away the land on his side of the strip so as to leave the level of one half of the way a number of feet below the other half, he can be restrained in a suit in equity brought by the other owner from making any further encroachments on the way and can be ordered to restore the way in so far as possible to its original condition.</p>

<p> Removal of Suits. </p> <p>On the filing of a petition and a proper bond under the Judicial Code, U. S. St. 1911, c. 231, §§ 28, 29, for the removal of an action of tort from the Superior Court to the District Court of the United States, the provision of § 29, that “It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit,” must be obeyed, although the petition contains no allegation that "written notice of said petition and bond for removal” were “given the adverse party or parties prior to filing the same” as required by the statute; the want of notice being a matter of defence to the petition for removal, which can be asserted or waived upon a motion in the United States District Court to remand the case to the State court.</p>

<p>Boston. Municipal Corporations, Officers and agents.</p> <p>A member of the board of appeal of the building department of the city of Boston is a “member of a board” within the meaning of those words as they are used in St. 1909, c. 486, § 14, and under the provisions of that section the mayor may remove any or all of the members of that board by filing with the city clerk a written statement setting forth in detail his specific reasons for such removal.</p> <p>The power of the mayor of Boston under St. 1909, c. 486, § 14, to remove “any head of a department or member of a board (other than the election commissioners . . .)” is not limited to such officers or members of boards as are not public officers, nor to such as the mayor has power to appoint without confirmation by the city council or the certification of the civil service commission.</p> <p>It is an adequate reason for the mayor of Boston to assign in removing from office under St. 1909, c. 486, § 14, members of the board of appeal of the building department of that city that such members by certain of their decisions acted contrary to sound public policy by failing to require in the construction of buildings suitable sanitary equipment and sufficient protection to life and property from danger by fire.</p> <p>The board of appeal of the building department of the city of Boston are not judicial officers.</p> <p>The fact that no provision is made for a review of the removal by the mayor of Boston, under St. 1909, c. 486, § 14, of the members of a board, is no ground for not giving full effect to such removal when the reason, assigned by the mayor in the written statement filed by him with the city clerk in accordance with the requirements of the statute, is adequate.</p>

<p>Four appeals taken by different next of kin from a decree of the Probate Court admitting to probate the will of Charles Herbert Pratt.</p> <p>The cases previously were before this court upon exceptions taken at the trial before De Courcy, J., of the issue, “Was the alleged will now offered for probate executed according to law? ” The decision made at that time is reported in 218 Mass. 524. The rescript issued by this court was as follows: “If within sixty days from the date of this rescript the petitioners shall make a motion to amend their petition by striking out from the instrument offered for probate as the last will and testament of Charles H. Pratt the signature between the in testimonium and attestation clauses, and a motion to that effect is finally allowed, the exceptians in this case will be overruled. • Otherwise the exceptions will be sustained.”</p> <p>Later the petitioners in each of the appeals filed in the Supreme Judicial Court a motion to amend the petition by striking out from the instrument offered for probate the signature between the in testimonium and the attestation clauses.</p> <p>The motions to amend the petition were heard by Hammond, J. At the hearing the appellants asked the justice to make the following rulings:</p> <p>"1. This court has no jurisdiction to grant the motion of the petitioners.</p> <p>“2. This court has no right to allow a motion to strike out any portion of the original will.”</p> <p>The justice refused to make these rulings and made the following statement and ruling:</p> <p>"I rule that the motion under that rescript may be filed in this court; ... I think this motion is properly before this court. I have studied this case in its details to a great extent; I sat in the argument with the full bench; I read the evidence; I have a vivid recollection of it; I have a vivid recollection of the charge to the jury; and in the exercise of my discretion and such knowledge as I have obtained, including the arguments here to-day, I allow the motion.</p> <p>"In this case I rule that this court has jurisdiction of the motion, and, having so ruled, in the exercise of my discretion the motion is granted.”</p> <p>The appellants excepted to the refusal of the justice to make the rulings requested, and also excepted to the ruling made by him .</p>

<p>Bill in equity, filed in the Superior Court on October 15,1912, by the surviving children of John F. O’Brien, late of Boston, who constituted his sole next of kin, against the Massachusetts Catholic Order of Foresters, a Massachusetts fraternal beneficiary corporation of which John F. O’Brien at the time of his death was a member and a holder of a death benefit certificate, and one Augustine A. Donovan, a cousin of John F. O’Brien, whom O’Brien after the death of his wife had designated as his sole beneficiary. The plaintiffs alleged that the designation of Donovan as beneficiary was procured through fraud and undue influence on his part and on the part of one Ellen F. Beals and brought this suit to enjoin the payment of the death benefit to Donovan.</p> <p>The suit was heard by Jenney, J., who filed a memorandum of facts found and rulings made by him. Among other facts, he found that the designation of Donovan as beneficiary was not procured by the fraud or undue influence of Donovan or of Beals, but was the free and voluntary act of O’Brien.</p> <p>Other material facts found by the judge are stated in the opinion.</p> <p>The plaintiffs asked for the following rulings among others: “2. The designation of a benéficiary of the death benefit fund in the defendant association, to be valid, must be of a person within the classes prescribed by statute and the by-laws of the association, and the limitation of beneficiaries to said classes cannot be evaded by the designation of an eligible person who secretly agrees to take the fund as trustee for the benefit of a person or persons ineligible.</p> <p>“3. The facts and evidence in this case warrant a finding that the designation of the respondent Donovan as beneficiary was made, not because he was in any sense a ‘dependent’ or ‘relative’ of the deceased, but for the express purpose of having said Donovan pay certain creditors of the deceased out of the death benefit fund with perhaps a balance over for himself and said Mrs. Beals or his children. In other words: that said designation was simply an attempt to circumvent the constitution and by-laws of the association and defeat the very purpose for which said mortuary fund was established and one of the principal objects for which the association itself was organized, viz.: ‘making suitable provision for the widows, orphans, relatives, and dependents of deceased members’ and if the court so finds then said designation is void.”</p> <p>“9. The deceased had no power or authority to dispose of the death benefit fund of the order for the benefit of his creditors directly or indirectly, by will or otherwise, and if the Court finds that the defendant Donovan was named as beneficiary, not that he should have the death fund, or any part of it, for his own benefit, but simply as a subterfuge and under a secret agreement, so that he, being a ‘relative’ could draw the money for the benefit of certain creditors of the deceased including Mrs. Beals with the remainder if any for the children, then said designation is void so far as the creditors are concerned, and the whole fund in equity belongs to the children.”</p> <p>The judge refused to rule as requested; and the plaintiffs alleged exceptions.</p>

<p>Equity Jurisdiction, To enforce assignment of interest in estate of decedent, For an accounting. Executor and Administrator. Judgment. Probate Court, Decree.</p> <p>If a debtor assigns to his creditor an interest as legatee trader a will “up to the” amount of the debt as security for the payment of the debt, and the creditor gives notice of the assignment to the executor of the will, who assents to it and signifies his willingness to regard the creditor as the holder of a partial assignment of the interest of the debtor in the estate, and if thereafter the executor in a final settlement of the estate ignores the creditor and pays to the debtor or for his benefit the whole amount of his legacy which is in excess of the creditor’s claim and files in the Probate Court his final account showing such payment, and a decree is entered allowing the account from which no appeal is taken, the creditor may maintain a suit in equity to compel the executor to account to him for the amount covered by the assignment.</p> <p>A decree of the Probate Court allowing a final account of an executor of a will showing payments by him to a legatee is no bar to a suit in equity by a creditor of the legatee to compel the executor to account to him for the amount of a partial assignment of the legacy of which the executor had notice and to which he assented before he made any payment to the legatee.</p>

<p>Negligence, In use of gasoline, Causing death. Joint Tortfeasors. Evidence, To show degree of culpability in action for causing death.</p> <p>If, as the natural and proximate result of negligence of an employee of a dealer in gasoline, gasoline is collected in a pit in a certain cellar where it remains, covered, until six weeks later, when, through negligence of an occupant of the cellar who knew of its presence, a large quantity of water is permitted to flow into the pit causing the gasoline to flow out upon the cellar bottom and gas generated by it to escape so that, when an employee of the occupant opened the door of a furnace in the cellar, explosions occurred which caused the employee’s death, an action may be maintained by the administrator of the estate of the employee against the dealer in gasoline to recover for the conscious suffering and death of his intestate; and where at the trial of such an action the judge refuses to rule that, if the negligence of the defendant’s employee and of the employer of the plaintiff’s intestate were contributory proximate causes of the accident, the plaintiff is entitled to a verdict, and instead leaves it to the jury to determine which of the two was the cause of the accident, exceptions to suchjrulings must be sustained.</p> <p>At the trial of an action under R. L. c. 171, § 2, as amended by St. 1907, c. 375, by the administrator of one whose death was alleged to have been caused by negligence of an employee of the defendant in sweeping gasoline into a pit in a cellar, evidence is admissible, as bearing on the degree of culpability of the defendant’s employee, to show that the employee stubbornly persisted in so disposing of the gasoline although persons standing by at the time told him that he should not do so and suggested to him a proper way in which to dispose of it.</p>

<p>Contract, Validity, Performance and breach. Sale.</p> <p>If, at the trial before a judge without a jury of an action for a balance alleged to be due upon the purchase price of certain books, where the defendant contended that the contract of sale was illegal because the plaintiff in publishing the books had infringed upon the copyright held by another publisher, and that they were published in violation of the copyright laws of the United States, the judge finds that the plaintiff had been guilty of such an infringement and violation but refuses to rule that the contract between the plaintiff and the defendant was illegal and finds for the plaintiff, the finding will not be disturbed if it appears that the defendant has not been disturbed in his possession of the books and that, after the sale of the books to the defendant, the owner of the infringed copyright brought a suit for such infringement in a United States court against the plaintiff in this action, and that by agreement and stipulation of the parties to that action a final decree was entered in that suit whereby the plaintiff in this action was absolved upon payment of costs of suit from all liability for the infringement to the owner of the copyright.</p>

<p>Practice, Civil, Exceptions, Setting aside verdict. Negligence, Probable consequences, In operation of elevator. Elevator. Landlord and Tenant. Damages, Excessive. Words, “Objected,” “Commensurate.”</p> <p>Statements in a bill of exceptions that the excepting party "objected” to the refusal of the presiding judge to make certain rulings and that such party “objected” to certain portions of the judge’s charge, do not state exceptions; but, in the present case in which this point was not taken by the adverse party, this court assumed for the purposes of decision that the objections were before them as exceptions, and as exceptions they were overruled.</p> <p>In this Commonwealth it long has been settled law that in an action of tort for personal injuries it is not necessary, in order to hold the defendant liable, for the plaintiff to prove that the particular series of events that resulted in the plaintiff’s injuries were the probable consequences of the defendant’s negligence; it is enough for the plaintiff to show that the probable consequence of the defendant’s conduct was that harm of the same general character as that which came to the plaintiff would come to persons who stood in the same general relation to the defendant that the plaintiff did.</p> <p>In an action against the owner of a building, who maintained and operated therein an elevator raed for the transportation of both freight and passengers, brought by a person having the rights of a tenant in the building,-for personal injuries from the elevator suddenly starting downward as the plaintiff was stepping out of it at a floor where it had stopped, there was evidence on which it could have been found that the metal grill work, which made the front of the car when it was used for passengers, was ¡removable, and was taken out when the car was used for freight, that the bolts by which this grill work was fastened to the car had become defective and that during the six weeks preceding the accident the existence of a defect in the grill work twice had been reported to the defendant but that nothing had been done in consequence of those reports, that at the time of the accident the elevator boy was pushing open the sliding door which formed a part of the grill work, when the whole grill work fell in on the boy, causing him involuntarily to pull the lever toward him and start the elevator downward, whereby the plaintiff was injured. Held, that there was evidence of the defendant’s negligence on which the plaintiff was entitled to go to the jury.</p> <p>In an action of tort for personal injuries caused by the sudden starting downward of an elevator as the plaintiff was stepping out of it on a floor of the defendant’s building, there is no error in an instruction of the presiding judge to the jury, in relation to the defendant’s duty in the maintenance and operation of the elevator, that “due care to be exercised by anybody must be commensurate care. It must be the care which is equal and proportionate to the probable harmful consequences that may follow from the lack of its exercise;” the meaning of the word “ commensurate” being explained by the other words of the passage quoted and its use in this sense being in accordance with its approval and use in previous decisions of this court.</p> <p>On an exception to the refusal of a judge, who presided at the trial of an action of tort for personal injuries, to set aside a verdict for the plaintiff on the ground that the damages were excessive, the question for this court is whether the judge in denying the motion abused his discretion, and to sustain the exception it is necessary to decide that the judge could not have taken honestly the view taken by him.</p>

<p>Equity Jurisdiction, Specific performance. Contract, Performance and breach. Frauds, Statute of. Equity Pleading and Practice, Bill, Parties, Motion to dismiss, Decree, Appeal. Interest.</p> <p>It is no defence to a bill tó enforce the specific performance of a contract to convey real estate that the plaintiff might recover damages at law for the defendant’s breach of his contract.</p> <p>In a suit in equity to enforce the performance of a contract in writing to convey to the plaintiff certain real estate upon the payment by the plaintiff of the purchase money in full by monthly instalments as provided for in the contract, if the plaintiff shows that up to a certain time he had made all the payments required and that he tendered to the defendant the amount of an instalment then due, whereupon the defendant refused to receive the payment of the instalment and conveyed the real estate to a third person, this gives the plaintiff the right to a decree for specific performance without showing that he went through the nugatory act of making any further tender to the defendant.</p> <p>In a bill in equity to compel the specific performance of a contract to convey real estate, it is not necessary to set forth any special reason why the plaintiff is entitled to relief in equity.</p> <p>Because it here was found as an inference of fact that the “Leonard Farm” in Greenfield, which was described fully in an agreement in writing made in 1909, was the same property referred to as the “Leonard Place” in another contract in writing made between the same parties in 1913 to convey that property, it followed that there was a contract or memorandum in writing sufficient to satisfy the statute of frauds in a suit in equity to enforce the performance of the contract to convey the property.</p> <p>A motion to dismiss a bill in equity is not the proper way to take the objection that necessary parties have not been joined as defendants.</p> <p>In a suit to enforce the specific performance of a contract to convey to the plaintiff certain real estate of which the plaintiff has been in possession under the contract, where it appears that the plaintiff is entitled to a deed conveying to him a good title to the real estate in question subject to the rights of a telephone company that were acquired after the making of the contract and for which the plaintiff had accepted payment, a decree that orders the defendant to convey the property to the plaintiff by a warranty deed is in that respect erroneous.</p> <p>In a suit in equity to enforce the specific performance of a contract in writing to convey certain real estate to the plaintiff for $1,100 "with interest from date” the plaintiff to pay $25 in each month until the price is paid in full and to pay insurance and taxes, a decree ordering the defendant to deliver a deed of the property to the plaintiff on payment by the plaintiff of the full amount of the purchase money, with interest at the rate of six per cent per annum from the date of the agreement until the date of the filing of the bill, is not fair to the defendant, who is entitled to interest at six per cent per annum upon the purchase money until it is paid in full by monthly instalments of $25 and not merely to interest at that rate to the date of the bringing of the suit.</p> <p>In a suit in equity to enforce the specific performance of a contract to convey certain real estate to the plaintiff, where a decree ordering a conveyance of the property to the plaintiff is defective in failing to require the defendant to insert in the deed a full description of the property as described in a previous agreement between the parties, and the defendant appeals from the decree but the plaintiff does not appeal, the decree will not be changed in this respect for the benefit of the plaintiff who has not complained of it.</p>

<p>Equity Pleading and Practice, Appeal. Frauds, Statute of. Election. Pledge. Contract, Construction.</p> <p>On an appeal from a final decree in a suit in equity entered in pursuance of findings of fact made by the judge who heard the case, if the evidence on which these findings were based is not a part of the record, the only question presented is whether on the findings of the judge the decree entered was a proper one.</p> <p>Where an oral contract is made for the sale of certain shares of stock for a price of more than $50 and the seller agrees as a part of the contract of sale that, if at any time the buyer wishes to return the shares, the seller will buy them back from him at the same price, and under this contract the shares are delivered to the buyer and are accepted and received by him, that is a satisfaction of the statute of frauds as to the entire contract, and, in a suit in equity brought by the buyer to compel the seller to perform his agreement to take back the shares at the same price, the want of a memorandum in writing under R. L. c. 74, § 5, is no defence.</p> <p>Where a contract was made for the sale of certain shares of stock with an agreement that, if at any time the buyer wished to return the shares, the seller would buy them back from him at the same price, in a suit in equity by the buyer to compel the seller to take back the shares at the original price, where it appeared that the plaintiff’s demand upon the defendant to take back the shares was made about nine months after the making of the contract, it was held, that on the facts found by the trial judge the demand to take back the shares was made within a reasonable time.</p> <p>Where a contract is made for the sale of certain shares of stock with the agreement that, if at any time the buyer wishes to return the shares, the seller will buy them back from him at the same price, a pledge of the shares by the buyer to the seller to secure a loan of money to the buyer is not an election by the buyer to keep the shares and not to insist on the seller’s promise to buy them back, and the buyer may maintain a suit in equity to compel the seller to buy back the shares at the original price in order that he may apply so much of the proceeds as is necessary to the payment of the debt for which he has pledged the shares to the seller himself.</p> <p>Where a contract is made for the sale of certain shares of stock with the unqualified agreement that, if at any time the buyer wishes to return the shares, the seller will buy them back from him at the same price, this does not mean merely that the buyer may return the shares if he is dissatisfied with the purchase, because the agreement to buy back the shares is absolute and the reason of the buyer for wishing to return them is immaterial.</p>

<p>Damages, Indemnity for loss and expense due to abandoned taking. Eminent Domain. Evidence, Competency. Words, "Loss.”</p> <p>In that part of R. L. c. 48, § 69, which provides for an indemnity to a person who has suffered loss or been put to expense by reason of proceedings relating to the taking of land for a town way or a private way, and which by § 94 of the same chapter is made applicable to takings for similar purposes by a city, the substitution of the word "loss” for the word "trouble,” which was used in the earlier revisions, did not change any of the elements of damage which are recoverable and which were defined in Whitney v. Lynn, 122 Mass. 338.</p> <p>Where a city by proper proceedings for the purpose of widening a street made a taking of a strip of land from the side of a lot at the corner of that street and another street, which taking became void under R. L. c. 48, § 92, because the city for two years failed to take possession of the land for the purpose of widening the street, the owner of the land, who, before the taking, had made plans and arrangements for the erection of a new brick building upon the premises to take the place of a building which recently had been destroyed by fire, and who because of the taking had been compelled to abandon such plans and arrangements and had been deterred from erecting any building upon the premises during the two years, cannot recover, in a petition under R. L. c. 48, §§ 69, 94, as “indemnity for loss or expense incurred by the proceedings” loss of rentals which he would have received from the proposed building, loss by reason of inability, caused by the taking, to make an advantageous sale of the property, amounts paid to architects for changes in building plans and amounts paid as taxes during that period either upon the whole lot or upon the portion included in the taking.</p> <p>At the trial of a petition under R. L. c. 48, §§ 69, 94, for indemnity for loss or expense incurred by proceedings resulting in a taking by a city of land for the widening of a street which became void under § 92 of that chapter by reason of the failure of the city to take possession of the land for that purpose, it is proper for the judge to refuse to permit the petitioner to he asked, “What do you consider that your loss has been by the action of the city council in taking this land?” and to refuse to permit a qualified expert, testifying for the petitioner, to be asked, “What is your estimate of the loss to the petitioner by the action of the city council in that taking? ” because the questions would permit the witnesses to include in their answers elements of damage not contemplated by the statute.</p>

<p>Assignment, For benefit of creditors.</p> <p>Where, in a suit in equity by a creditor of one, who had made a common law assignment for the benefit of his creditors, against the assignee to compel him to permit the plaintiff to share in the benefits of the assignment, it appears that the assignment provided among other things that only such creditors should share in its benefits as executed the instrument or otherwise accepted it in writing to the satisfaction of the assignee within sixty days from its date or within such further time as the assignee should allow in writing, that the assignee gave to the creditors a notice in writing stating the fact of the assignment and enclosing a blank for an assent in writing but making no reference to the limitation of time within which assent should be given, and filed a copy of the assignment with the clerk of a city, where, presumably, the debtor’s principal place of business was, in conformity with the requirements of R. L. c. 147, § 22; and where, on conflicting evidence, a judge who heard the case found that the plaintiff knew that at some time he must sign an assent if he wanted to be a party to the assignment and that probably a time limit for assent was fixed in the instrument, but refused to give such assent until after the sixty days limitation had expired, believing that he possessed means of compelling a more advantageous settlement from the debtor, and that, although the plaintiff never had nor saw a copy of the assignment, the assignee did nothing to conceal from him the exact time limited for his assent, the suit must be dismissed.</p>

<p>Tort for personal injuries alleged to have been received, as stated in the opinion, when a milk wagon in which the plaintiff was travelling was struck at about half past six o’clock on the morning of October 26,1910, by an electric street car of the defendant on Crescent Street in Brockton. Writ dated December 6, 1911.</p> <p>In the Superior Court the case was tried before Keating, J.</p> <p>Material evidence is described in the opinion.</p> <p>One Dillon, an inspector in the employ of the defendant, in testifying for the defendant in direct examination, stated that he had interviewed the plaintiff in the operating room of a hospital shortly after the accident and that the plaintiff had told him that he did not know who was to blame for the accident. In cross-examinatian after extended testimony as to friendly relations between himself and the plaintiff and the plaintiff’s father, and after stating that it was one of his duties to interview persons injured on the defendant’s street railway, he was asked, subject to an exception by the defendant, “You knew that that statement was to be used in case of any claim or suit, didn’t you?” and answered, “I hadn’t given it a thought.” He also made the same reply to the following question, asked subject to the defendant’s exception:</p> <p>“You knew that that statement would be used for the purpose for which you are now using it in case of a subsequent trial, didn’t you?”</p> <p>At the close of the evidence the presiding judge refused to rule as requested by the defendant that on all the evidence the plaintiff was not entitled to recover, and that there was no evidence of negligence of the defendant or of due care of the plaintiff, and also refused to give the following rulings, which are referred to in the opinion as properly refused:</p> <p>“8. If due care requires that the driver of a team shall look or listen before coming into dangerous proximity to a car track, merely looking or listening in such a way that he does not notice what, if he had looked or listened carefully, he would have noticed is not sufficient.</p> <p>“9. To look when looking is of no avail and to listen for nothing in particular is equivalent to not looking or listening at all, and if this is all that the plaintiff’s driver did, the plaintiff is not entitled to damages and your verdict must be for the defendant.”</p> <p>There was a verdict for the plaintiff in the sum of $11,250; and the defendant alleged exceptions.</p>

<p>Tobt for personal injuries received as the plaintiff was passing through a revolving door in leaving a department store of the defendant in Boston. Writ dated April 24, 1913.</p> <p>In the Superior Court the case was tried before White, J., upon an agreed statement of facts substantially as follows:</p> <p>When the plaintiff started to leave through the revolving door, she waited until all the people ahead of her had passed through, then entered the door and started to go through, when suddenly the door increased its speed as if it had been pushed by some one and began to whirl around rapidly, taking her off her feet and throwing her violently to the floor. She did not trip nor slip on anything. The door was going so fast that she did not have to touch it. It carried her along. She tried to get out quickly as the door came around to the exit, but it was going so fast she could not do it.</p> <p>The door was a revolving door set in a circular framework with openings in the framework on the inside and an opening on the outside through which people passed to get into the door and out of the door. It was composed of four wings, with rubbers stretched from the top to the bottom along the outer edge of each wing.</p> <p>Evidence of the plaintiff tended to show that at the time of the accident these rubber strips were worn so that they did not come in contact with the circular framework in which the door revolved, as it was intended they should. These rubber strips were put on the door for the purpose of preventing the passage of air, and at the same time giving the door an opportunity to swing in its framework without the wood of the wings coming in contact with the framework, and when the rubber strips are not worn and come in contact with the circular framework, they have some retarding effect upon the speed of the door and in preventing the door from spinning.</p> <p>The door was made by the Van Kannel Revolving Door Company, who make over ninety per cent of the revolving doors used in this country, and revolved at a very high rate of speed on the application of very slight pressure. It was the standard revolving door made by the Van Kannel Revolving Door Company, except that its total width from side to side was six inches more than the standard. The Van Kannel Revolving Door Company have installed in this country about forty-five hundred doors of this type, of which about one hundred doors have a device which is described as a governing device, which operates in a manner similar to that of the ordinary liquid cushion spring commonly used on doors. The purpose of the device is to keep the door from spinning. There was no governing device to control the speed of this door, and no other method of controlling the speed of the door, except such'as might be exercised by a person who was passing through it; neither was there any attendant or employee of the defendant to caution or guard people in passing through the door, or to regulate its speed.</p> <p>There were attached to each wing of the door, so as to be in front of a person passing out, two brass hand rails, which stretched from one side to the other of the pane of glass in the panel, horizontally placed.</p> <p>The judge ordered a verdict for the defendant, and, with the consent of the parties, reported the case for determination by this court, judgment to be entered upon the verdict if the ruling was right; otherwise, judgment to be entered for the plaintiff in the sum of $2,500.</p>

<p>Carrier, Of goods by water. Contract, Performance and breach. Practice, Civil,</p> <p>Requests, rulings and instructions.</p> <p>The obligation of a carrier by water to use reasonable promptness in transporting goods delivered to it for that purpose and in notifying the consignee upon their arrival at the port of destination is not affected by the fact that, when the consignor notified the consignee that he had shipped the goods, the consignee wrote to the consignor that he would refuse to accept them; and the consignor is under no duty to acquaint the carrier with such expressed intention of the consignee.</p> <p>Where a steamship company, which was a common carrier by water, received a case of goods in Boston for shipment to New York, and failed to notify the consignee of the arrival of the goods for a period of three or four months after their shipment, the carrier may be found liable to the consignor either for a breach of the contract of shipment or for a breach of its common law duty as a common carrier of goods by water.</p> <p>In determining whether a judge, by whom a case was heard without a jury, was right in refusing to rule that “on all the evidence the plaintiff” was “not entitled to recover, and judgment must be for the defendant,” no question of pleading is open.</p>

<p>Petition, filed on March 10, 1914, for a writ of prohibition addressed to the justices of the Municipal Court of the City of Boston, prohibiting and enjoining them from issuing a certificate authorizing the arrest of the petitioner Herschman upon an execution obtained by the State Bank of New York in an action on two promissory notes indorsed by that petitioner, which were provable against him in bankruptcy proceedings in which the petitioner had obtained a discharge that was alleged to be a bar to the claim against him; and a</p> <p>Petition, filed on October 7, 1914, for a writ of habeas corpus, alleging that the petitioner Feinberg unlawfully was deprived of his liberty by the sheriff of Suffolk County upon a civil process issued by the Municipal Court of the City of Boston in poor debtor proceedings instituted by the State Bank of New York as the holder of an execution in an action upon two promissory notes indorsed by that petitioner, which were provable against him in bankruptcy proceedings in which the petitioner had obtained a discharge that was alleged to be a bar to the claim against him.</p> <p>The first case, on the petition for a writ of prohibition, was reserved by De Courcy, J., upon the petition and answer and an agreed statement of facts that set forth the findings of the justice, for determination by the full court.</p> <p>The second case, on the petition of a writ of habeas corpus, was reserved by Hammond, J., upon the petition and an agreed statement of facts for determination by the full court.</p> <p>The facts as shown by the agreements in both cases were as follows:</p> <p>On May 15, 1908, an involuntary petition in bankruptcy was filed against Feinberg. On June 2, 1908, Feinberg was adjudicated a bankrupt. The State Bank of New York was a creditor of the bankrupt Feinberg, was scheduled as such, had notice of the bankruptcy proceedings and took part therein. Some time between Feinberg’s adjudication and July 13, 1909, Feinberg made an offer of composition in the bankruptcy proceedings.</p> <p>On September 16, 1908, the State Bank of New York brought an action in the Superior Court for the county of Suffolk against both Feinberg and Herschman to recover upon two promissory notes. The declaration was in two counts and contained an allegation that both counts were for the same cause of action. The notes thus declared on then had not been and never thereafter were proved in any bankruptcy proceedings. Counsel representing both Feinberg and Herschman entered an appearance for them in the action at law and on October 14, 1908, filed an answer, and continued to act therein until the withdrawal of their appearance as stated below.</p> <p>On December 23, 1908, an involuntary petition in bankruptcy was filed against Herschman. On January 18, 1909, Herschman was adjudicated a bankrupt. The State Bank of New York had notice of the bankruptcy proceedings against Herschman and appeared and participated therein, but did not prove therein the notes on which the action then was pending against Feinberg and Herschman.</p> <p>On July 13, 1909, the composition offer previously made by Feinberg in the bankruptcyproceedings against him was confirmed. On July 6, 1910, a composition offer previously made by Herschman in the bankruptcy proceedings against him was confirmed. On October, 13,1911, the counsel who had appeared in the action at law for Feinberg and Herschman withdrew their appearance. Neither Feinberg nor Herschman had any actual knowledge of this withdrawal of counsel. On October 17, 1911, Feinberg and Herschman were defaulted in the action at law. Neither Feinberg nor Herschman had any actual knowledge of this default.</p> <p>In April, 1912, the State Bank of New York made a motion in the action at law to amend its declaration by strildng out the allegation that both counts were for the same cause of action. This motion was allowed ex parte as of November 6, 1911, and judgment was entered as of November 6,1911, on the notes against Feinberg and Herschman. Neither Feinberg nor Herschman had any actual knowledge of the motion to amend, nor of the judgment, until the commencement of the poor debtor proceedings mentioned below.</p> <p>Subsequently execution issued on the judgment against Feinberg and Herschman. At no time from the commencement of the action at law until the entry of the judgment and the issuing of the execution did either Feinberg or Herschman make any plea or suggestion of bankruptcy or of their discharges in bankruptcy.</p> <p>On July 31, 1913, the State Bank of New York made an application to the Municipal Court of the City of Boston under the provisions of R. L. c. 168 and acts amendatory thereof and supplementary thereto for a certificate authorizing the arrest of Feinberg and Herschman on an execution issued on the judgment.</p> <p>Herschman, by a motion in writing, presented to the Municipal Court of the City of Boston substantially all the facts set forth in his present petition, and asked that court to dismiss the poor debtor proceedings against him. After hearing, the Municipal Court refused to dismiss the poor .debtor proceedings on</p> <p>Herschman’s motion and ordered Herschman to submit to an examination.</p> <p>On September 4, 1914, Feinberg was defaulted in the poor debtor proceedings; a certificate of arrest issued, and Feinberg subsequently was arrested thereon.</p> <p>The case was argued at the bar in December, 1914, before Rugg, C. J., Braley, Sheldon, De Courcy, & Crosby, JJ., and afterwards was submitted on briefs to all the justices then constituting the court.</p>

<p>Autrefois Acquit. Practice, Criminal, Dismissal of complaint, Plea in bar, Exceptions. Evidence, Of conversation, Admission by conduct.</p> <p>A plea in bar to a complaint for keeping a common nuisance consisting of a tenement resorted to for prostitution during a period named, setting up under R. L. c. 205, § 6, an alleged acquittal upon the same charge, is not sustained by showing that a previous complaint upon a like charge covering a part of the same period was dismissed without a trial.</p> <p>In a criminal case a general exception to the admission in evidence of a certain conversation cannot be sustained if a part of the conversation was admissible. If the defendant wishes to except to the admission Of a part of the conversation he must state this to the presiding judge, or, after the conversation has been admitted in evidence, he can move to have the part of it which is inadmissible stricken out. An exception to the denial by the judge of a motion to strike out all the testimony relating to the conversation cannot be sustained.</p> <p>At the trial of a complaint charging the defendant with keeping a common nuisance consisting of a tenement resorted to for prostitution, where there is evidence that certain police officers made statements to the defendant which if believed by the jury had a tendency to prove the offence charged and that the defendant denied these statements, and where it could be found that the defendant’s denials were false and tended to show a consciousness of guilt, it is right for the judge to instruct the jury that, if they find that the statements made by the officers to the defendant were true and that the defendant’s answers to them were false, it is for the jury to determine whether such false answers were made because the defendant was conscious of guilt or for some other reason.</p>

<p>Municipal Court of the City of Boston, Report to Appellate Division. Rules of Court.</p> <p>A request under St. 1912, c. 649, § 8, for a report of a ruling of a judge of the Municipal Court of the City of Boston for determination by the Appellate Division is not “filed with the clerk within two days after notice of the ruling,” as required by the statute, if it is filed on the third day after the day on which the clerk of the court delivered such notice to the attorney for the requesting party.</p> <p>Under a rule adopted by the judges of the Municipal Court of the City of Boston relating to the procedure in requesting a report of a ruling for determination by the Appellate Division under St. 1912, c. 649, § 8, which rule provides that within three days “after the cause is otherwise ripe for judgment . . . the party requesting the report shall file a draft thereof,” where it is shown that the cause was “otherwise ripe for judgment” on a certain day, the right to a report to the Appellate Division is lost if the draft report was not filed within three days from that date.</p>

<p>Contract, Implied in law: common counts.</p> <p>In an action of contract to recover on a quantum meruit for work and labor performed by the plaintiff for the defendant, where the plaintiff has testified that the defendant employed him and said to him, “I will pay you well and will satisfy you,” if it appears that the plaintiff afterwards did the work required, he has a right to go to the jury, and the fact that the defendant has introduced evidence from which it can be inferred that the contract was a different one from that testified to by the plaintiff in no way deprives the plaintiff of that right.</p>

<p>Bankruptcy. Fraud, As against creditors. Practice, Civil, Auditor’s report.</p> <p>The provision of the bankruptcy act of 1898, contained in § 70 e, that “the trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication,” creates no new right of the trustee in bankruptcy to avoid transfers of property made by the bankrupt but merely gives him authority to enforce the rights of creditors to avoid fraudulent transfers, if such have been made, and whether a particular transfer was or was not fraudulent as to creditors depends on the laws of the 'State that govern the transfer of the property in question.</p> <p>In order that a transfer of property or a payment of money may be avoided as having been made with the intent to hinder and delay creditors, it is not necessary that at the time of the transfer or payment the debtor should have been insolvent. A transfer or payment may be made by a debtor, who although in financial embarrassment is not insolvent, where the attendant circumstances show an intent to delay and defraud creditors.</p> <p>The rule, that a trader who does not meet his obligations as they mature in the ordinary course of business is insolvent, does not apply to persons who are not traders, and, on account of the reason which makes the rule applicable to traders, a finding of an auditor, that a firm of traders “were unable to pay their debts as they matured and became due and payable in the ordinary course of business as persons carrying on trade usually do,” is evidence for a jury that a large payment of money made by this firm when they were in this condition was made with intent to hinder and delay their creditors.</p> <p>In an action by a trustee in bankruptcy under § 70 e of the bankruptcy act of 1898 to recover the amount of certain payments of money made by a bankrupt firm to the defendant as having been made with the intent to hinder and delay creditors, an auditor found that “neither the firm in making these payments nor the defendant company in accepting them, thought their act morally wrong, and neither had any desire or active purpose ultimately to leave the creditors unpaid,” and thereupon the auditor added, “but I rule that voluntary payments made under the circumstances here disclosed by a firm which is insolvent, that is to say not in a position to pay its bills as they mature, and without any meritorious consideration of blood or affection or as a settlement to a wife, necessarily delay, hinder and defraud its creditors.” Held, that the auditor did not find that there was no intent to hinder and delay creditors.</p> <p>Where an auditor’s report is in evidence before a jury the finding of a fact by the .auditor is evidence of that fact for the jury, whether the auditor was right or wrong in making the finding.</p>

<p>Supreme Judicial Court, Briefs. Rules of Court. Equity Pleading and Practice, Decree, Costs. Bankruptcy, Unlawful preference. Partnership. Equity Jurisdiction, Fraud, No relief from result of one’s own wrongdoing. Fraud. Wrongdoer without Remedy. Conspiracy.</p> <p>The provision of Rule 2 of the Supreme Judicial Court for the regulation of practice before the full court, that, “when the construction or effect of a statute is drawn in question, so much thereof as is deemed necessary to the decision of the case shall be printed or written at length” in the briefs of the counsel, requires in a case where several sections of the bankruptcy act of 1898 are drawn in question the printing or writing in the briefs of the portions of the statute to be interpreted or applied.</p> <p>The requirement of the same rule that “each party shall prepare a printed or written brief on paper of the usual quarto size” is not complied with by the presentation of a supplemental brief written on foolscap paper.</p> <p>Where in a suit in equity in the Superior Court a decree is to be drawn, after a hearing of the parties and their witnesses, the decree should follow the form indicated by Equity Rule 37, and it should not be recited that the case was heard upon the “bill, . . . the answer thereto and the other pleadings,” which would mean that there was no hearing on the facts.</p> <p>Where two suits in equity brought by the same plaintiff against different defendants are tried together for the convenience of the court and the partiés, but no order is made for the consolidation of the suits, a separate decree should be entered in each suit.</p> <p>Where one of several claims of the plaintiff in a suit in equity has been disallowed, although the others have been established, it is proper in the decree either to order that the bill be dismissed se far as that claim is concerned or not to refer to it at all, instead of making an order that the plaintiff is not entitled to recover the amount of money covered by that claim.</p> <p>Where costs are imposed in a suit in equity the amount of the costs that are to be paid should be stated in the decree.</p> <p>A trustee in bankruptcy of the estate of a person, who was a member of a partnership until about two months before he was adjudicated a bankrupt, cannot maintain a suit in equity to recover the amount of an alleged unlawful preference where the transfer sought to be avoided was made by the partnership and not by the plaintiff’s bankrupt individually, because the assets thus transferred could be recovered only for the creditors of the partnership.</p> <p>In a suit in equity by the trustee in bankruptcy of a person, who was a member of a partnership until about two months before he was adjudicated a bankrupt, it was found by the trial judge that the bankrupt on the day of the dissolution of the partnership assigned to the defendant all the accounts receivable of the partnership, that at this time the bankrupt was insolvent, the partnership was insolvent and the defendant knew that both the bankrupt and the partnership were insolvent, and that the defendant then accepted the bankrupt as his debtor in place of the partnership, who owed him the money paid by the assignment of the accounts to him.' At that time no other partnership creditor had accepted the bankrupt as his individual debtor. It appeared by the record that no attempt was made at the trial to go into the question whether the effect of the transfer of the accounts to the defendant would be to enable any one of the bankrupt’s creditors to obtain a greater percentage of his debt than any other creditors of the same class, and no finding on this issue was made by the judge. Held, that so far as this issue was concerned the case should stand for further hearing and trial.</p> <p>In a suit in equity by a trustee in bankruptcy to recover the amount of an alleged unlawful preference, where the plaintiff sought to recover a sum of money paid by the bankrupt to a third person with the alleged privity of the defendant, it was said, that under the provisions of the bankruptcy act of 1898 for the recovery by the creditors of preferences from the persons who received them, no case had been found in which a third person had been held to be liable to repay the amount of an alleged unlawful preference merely because he was a privy to the payment; but in the present case it was unnecessary to decide this question, because the judge found on evidence that warranted such a finding that the defendant was not a privy to the alleged fraud.</p> <p>The rule, that in a suit in equity a decision of the trial judge upon the facts will not be overturned unless plainly wrong, is not applicable where the findings of fact made by the judge show that he did not believe the witnesses on either side, so that his findings could not have been affected by the confidence that he reposed in the testimony of any of the witnesses that he saw and heard testify. In the present case, which was of this character, certain conclusions of fact made by the trial judge on the facts reported by him were found to be wrong. In a suit in equity by a trustee in bankruptcy to recover the amount of an alleged unlawful preference by the assignment by the bankrupt to the defendant ' of certain accounts receivable, where it appears that the assignment of the accounts receivable was in part for the purpose of repaying to the defendant the amount of sums of money advanced by him for the purpose of enabling the bankrupt to continue in business for a sufficient length of time to prevent the trustee in bankruptcy, when appointed, from avoiding the assignment as a preference, this shows a fraud upon the law which entitles the trustee in bankruptcy to recover the amount of the assignment, in spite of the fact that the bankrupt may have received from the defendant the full value of the accounts assigned so that his estate was not diminished.</p> <p>In such a suit, the defendant cannot be allowed to contend that, if the assignment to him of the accounts receivable thus is to be set aside as in fraud of the law, he is entitled to recover the sums of money paid by him to the bankrupt when the assignment was made; because where one has committed a fraud upon the law he has no standing in court but is left by the law without a remedy in the position in which he put himself.</p> <p>One who conspired with a creditor of an insolvent person to assist such creditor to receive a preference unlawful under the bankruptcy act of 1898 is liable in a suit in equity brought by the trustee in bankruptcy of such insolvent for the amount of a sum of money collected by him which was a part of such unlawful preference.</p>

<p>Tort, with a declaration originally containing four counts for alleged slander of the plaintiff in charging her in substance with having been, while in the employ of the defendant as a nursery maid, impertinent and unfit to take care of children and with having struck a child of the defendant, to which three other counts were added by amendment. Writ in the Municipal Court of the City of Boston dated February 24, 1911.</p> <p>The defendant filed a motion for specifications, and the plaintiff filed specifications stating that the words of the defendant set forth in the first count were spoken to one Mrs. Hobart, that the words set forth in the second count were spoken to one Mrs. Benson and that the words set forth in the third count were spoken to one Mrs. Eldridge. Later the plaintiff was allowed to amend her declaration by adding the fifth, sixth and seventh counts, each referring to statements alleged to have been made to Mrs. Hobart with the intention of preventing her from hiring the plaintiff as a nursery maid to take care of children.</p> <p>The defendant’s answer contained a general denial, alleged that the statements made by the defendant concerning the plaintiff were .true, and further alleged that any statements made by the defendant concerning the plaintiff were privileged communications made in response to inquiries for information by prospective employers of the plaintiff as a nurse for children in regard to the defendant’s experience with and opinion of the plaintiff as such a nurse.</p> <p>On appeal to the Superior Court the case was tried before Bell, J. At the close of the evidence the plaintiff waived the second, third and fourth counts of the declaration, so that the case went to the jury on the first, fifth, sixth and seventh counts, all of which referred to what was alleged to have been spoken to Mrs. Hobart.</p> <p>The defendant asked the judge to order a verdict for the defendant on the grounds that the occasions on which the defendant had made statements concerning the plaintiff were privileged occasions, that the defendant’s communications were privileged communications, that there was no evidence of malice on her part and that there was no evidence of damage under the first, fifth, sixth and seventh counts of the declaration. The judge refused to order such a verdict, and the defendant excepted.</p> <p>The defendant then asked the judge to make the following rulings:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. There is no evidence sufficient to justify a finding of malice on the part of the defendant, and, therefore, the plaintiff is not entitled to recover.</p> <p>“3. There is no sufficient evidence of damage to the plaintiff under any counts of the declaration, and, therefore, the plaintiff is not entitled to recover.</p> <p>“4. On all the evidence it cannot be found that any words spoken by the defendant to Mrs. Hobart prevented Mrs. Hobart from employing the plaintiff, and, therefore, the plaintiff cannot recover on the first, fifth, sixth or seventh counts of the declaration.</p> <p>“5. There is no evidence sufficient to justify a finding that the statements made by the defendant to Mrs. Hobart were made maliciously or actuated by malice, and, therefore, the plaintiff cannot recover under the first, fifth, sixth or seventh counts in the declaration.</p> <p>“6. The plaintiff cannot recover on the fifth count of the declaration because there is no allegation that the statements therein alleged to have been made were false.</p> <p>“7. The plaintiff cannot recover on the sixth count of the declaration because there is no allegation that the statements therein alleged to have been made by the defendant were malicious.</p> <p>“8. The plaintiff cannot recover on the seventh count of the declaration because there is no allegation that the statements therein alleged to have been made by the defendant were either false or malicious.”</p> <p>The judge refused to make any of these rulings, and the defendant excepted.</p> <p>The defendant further excepted to the judge’s admission of the plaintiff’s testimony in regard to one Mrs. Pillsbury; to his admission of the plaintiff’s testimony in regard to one Mrs. Felton; to his admission of the plaintiff’s testimony in regard to Mrs. Benson and the latter’s conversation over the telephone with the defendant; and to his admission of the testimony of Mrs. Eldridge in regard to her interview with the defendant. These matters are referred to in the opinion.</p> <p>The defendant also excepted to the following portions of the judge’s charge:</p> <p>“Now there is stated . . . that if the answer is made maliciously or recklessly, it is not within the privilege.”</p> <p>“Well, did she honestly believe in the truth of what she had said, and was it in good faith, not recklessly and carelessly, but honestly and fairly, believing the truth of the statements as to the treatment of her child by Miss Doane?”</p> <p>“We are trying the question whether Mrs. Grew, from the information which she received, if she received it from Mrs. MacMahon and her children, had such cause to believe that she might honestly and fairly believe that that was the truth, and believing it honestly and fairly to be the truth, stated it to others who made inquiries of her. If that was her position and if the story was false, she would be protected in making that statement, so it is not necessary, perhaps, in some views, for you to pass finally upon the question of whether Mrs. MacMahon’s story is correct or not. In other views, it may be necessary, because if you take another view of Mrs. Grew’s attitude toward it and think that her action in trusting the statement which she said was made to her by Mrs. MacMahon and the children, that her attitude in trusting to their statement was reckless or careless, then it may be necessary for you to determine whether the story was true, because if it was true, whether she testified to it recklessly or carelessly or not, there was no wrong done to the plaintiff.” “Now, the next question is, Mrs. Grew being appealed to in that way, did she make an honest, fair answer, not colored by any malice or improper feeling, for malice means, not the strong meaning that we ordinarily give to it, but it means any improper feeling, any desire to injure, any desire to do harm to any party, not colored or influenced by malice, but fair, honest truth, as she then believed it to be, without recklessness or improper carelessness or neglect.”</p> <p>In regard to the burden of proof the judge instructed the jury as follows: “ The burden of proof is upon the plaintiff to establish the speaking of the words, and, if they were injurious to her, the burden is upon the defendant to show that they were privileged words, for which she is not answerable.” The defendant did not except to this instruction.</p> <p>The jury returned a verdict for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p>

<p>Corporation, Fee for filing certificate of increase of capital stock, Retirement of preferred stock by exchange for common.</p> <p>Where a business corporation at a stockholders’ meeting has passed two votes under St. 1903, c. 437, § 40, amending its articles of incorporation, one vote providing for a reduction of the authorized common stock from $7,000,000 to $700,000 by decimating the par value of the shares, and the other vote providing for an issue of new common stock in the amount of $4,300,000, $4,000,000 of which is to be given in exchange for preferred stock to be retired and $300,000 of which is to be held in the treasury subject to the vote of the directors, and where it appears that the two votes constituted one transaction resulting in a net reduction of $2,000,000 in the authorized capital stock of the corporation, the corporation is not required, upon filing the amendments with the Secretary of the Commonwealth in accordance with St. 1903, c. 437, §§ 41-43, to pay a fee under § 89 upon the new issue of common stock.</p> <p>The result mentioned above being arrived at without regard to the proposed exchange of $4,000,000 of common stock for a like amount of preferred stock to be retired, it does not matter whether or not § 40 authorized the corporation to convert its outstanding preferred stock into common stock.</p>

<p>Landlord and Tenant, Tenancy at will, Common stairway. Negligence, In maintaining common stairway.</p> <p>A person, who enters into the occupation of a tenement in a building under an oral agreement for a lease, on which no action could be maintained if R. L. c. 74, § 1, cl. 4, were set up in defence, becomes a tenant at will by force of R. L. c. 127, § 3, and the terms of the oral agreement become binding on both parties to it.</p> <p>Where the owner of a building promised a tenant at will occupying a tenement in the building, as a part of the oral agreement under which the tenant hired the tenement, that he would keep a stairway which the tenant was to use in the same safe condition that it was in at the beginning of the tenancy, the tenant can recover from such owner for personal injuries caused by a failure to keep the stairway in that condition.</p> <p>In an action for personal injuries by a tenant at will occupying a tenement in a building of the defendant, if the plaintiff shows that the defendant promised, as a part of the oral agreement under which the plaintiff became a tenant at will, that the defendant would keep a stairway which the plaintiff was to use in the same safe condition that it was in at the beginning of the tenancy, and that the plaintiff’s injuries were caused by the defendant’s failure to keep the stairway in that condition, it is no defence to the action that, when the defendant made the oral agreement and also at the time of the plaintiff’s injuries, the defendant had parted with the control of the stairway to the tenant of the adjoining building, which also was owned by the defendant, if the plaintiff was not informed of this fact when the defendant made the oral agreement with the plaintiff which assumed that the defendant was in control of the stairway.</p> <p>The rule, now established, that common hallways and stairways of a building which is let out in offices or tenements remain in the control of the landlord for the use of his tenants and that it is his duty to each tenant to keep them in the same condition or apparent condition as to safety in which they were at the beginning of the several leases or lettings to the respective tenants, is founded on an implied agreement to that effect arising put of the necessities of the case.</p> <p>.Where the owner of two adjoining three story buildings, each used on the ground floor as a store and in the two upper stories for tenements, in malting a lease of the whole of one of the buildings, which included the control of the stairways, reserved "the right to use in common with the lessee the entrance and stairway leading to the second story of said building,” it was held, that in regard to the common use of this stairway the lessor was on the same footing as if he had been a tenant of the lessee.</p> <p>The implied agreement, arising from the necessities of the case, by which a landlord remains in control of the common stairways of a building used for offices or tenements, applies where the common stairways are used by a few tenants, even if there are only two of them, as well as where they are used by a great number of tenants.</p> <p>Where the owner of two adjoining three story buildings, each used on the ground floor as a store and in the two upper stories for tenements, made a lease of the whole of the second of the buildings which included the control of the stairways, reserving therein “the right to use in common with the lessee the entrance and stairway leading to the second story of said building,” and where no janitor was employed to take care of the stairways, an agreement made by a tenant of the two upper stories of the first of the buildings, who made use of the stairway mentioned, with the agent of such owner, that such tenant should take turns with the tenants of the lessee of the adjoining building on the second floor of that building in washing the stairs, does not affect the control of the stairway or the liability of the person in such control for injuries caused by his failure to keep the stairway in a safe condition.</p>

<p>Negligence, Street railway.</p> <p>A laborer in the employ of a gas company, who on a bright clear day was working in a trench only two and a half feet deep at a point between two parallel tracks of a street railway, on both of which cars were passing frequently, and was struck by a car coming from the direction in which he was facing, which he did not see because he failed to look up from his work when he heard the noise of the approaching car “coming closer and closer to him,” in an action brought by him against the corporation operating the street railway to recover for his injuries thus caused cannot be found to have been in the exercise of due care.</p>

<p>Negligence, Invited person, Licensee.</p> <p>Where a man, who formerly had worked in a certain mill, went there to apply to the engineer for work and by invitation entered the weave room of the mill and, after some conversation with the engineer and a weaver, started to leave the room by a door that he never had used before and which opened upon a staircase leading to a different side of the mill from the one by which he had entered, and, there being no platform at the head of these stairs but an immediate descent of seven and a half inches to the top step, he fell down the flight of stairs and was injured, in an action brought by him against the corporation maintaining the mill for his injuries thus caused, it was held, that there was no invitation to the plaintiff to leave the weave room by a different door from that by which he had entered it and that, when he attempted to leave in this way, he became a mere licensee to whom the defendant owed no duty to keep its premises safe or to warn him of their condition.</p>

<p>Writ of entry, dated January 12, 1914, to recover six parcels of land in North Reading.</p> <p>In the Land Court the case was *tried before Corbett, J. ,The demandant put in evidence a certified copy of a decree of the Probate Court of the County of Suffolk dated December 12, 1910, declaring that on the petition of Mrs. Inez E. Fox of Winthrop in the county of Suffolk, wife of Edgar B. Fox of North Reading in the county of Middlesex, under R. L. c. 153, §§ 33-36, “it is hereby adjudged and determined that the said Edgar B. Fox has deserted the petitioner and that she is living apart from her husband for justifiable cause.”</p> <p>The demandant introduced in evidence the deeds of the premises establishing the title in Inez E. Fox of the six parcels of land and also a deed from Inez E. Fox to the demandant dated January 3, 1914, purporting to convey the demanded premises to the demandant by a quitclaim deed, using the words “remise, release and forever quitclaim.” The habendum clause was as follows:</p> <p>“To Have and To Hold the granted premises, with all the privileges and appurtenances thereto belonging, to the said William F. Mackernan and his heirs and assigns, to their own use and behoof forever, in trust nevertheless to and for the following uses, intents and purposes hereinafter mentioned, namely: First; in trust to receive, hold, manage, control, use and occupy the same and to collect the rents, issues and profits, derived or accruing therefrom; and out of the same to keep the premises in good repair, properly insured, and to pay all taxes and charges imposed thereon. Second; in trust to pay over the net rents, issues, and profits derived or accruing therefrom to the grantor for and during the term of her natural life. Third; in trust to convey in fee simple said premises upon the decease of the grantor to Florence L. Campbell and Inez E. Campbell of said Chelsea, nieces of said grantor, as tenants in common, unless otherwise directed either by written request made by the grantor to the grantee during said grantor’s lifetime or as the grantor may direct and appoint in her last will and testament. Fourth; in trust to convey in fee simple said premises to such person or persons as the grantor may by written request made to the grantee during her lifetime or by her last will and testament direct and appoint. Upon the conveyance of said premises in accordance with the terms of this instrument this trust shall thereupon immediately terminate and the grantee by the acceptance of this deed doth hereby signify his acceptance of this trust and doth hereby agree to faithfully discharge and execute the same according to the true intent and meaning of these presents.”</p> <p>At the close of the evidence the tenant asked the judge to find that the demandant had not proved a title in himself to the demised premises equal to a freehold estate, as required by R. L. c. 179, and that the powers vested in the demandant by the deed referred to were not such an interest in fee as to entitle him, as trustee or otherwise, to maintain a writ of entry.</p> <p>The judge refused to make this finding. He found for the demandant and ordered that judgment be entered for him. The tenant alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff on October 25, 1911, when she was travelling as a passenger on a street railway car operated by the defendant. Writ dated January 22, 1913.</p> <p>In the Superior Court the case was tried before Lawton, J. At the close of the evidence, which is described in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Insurance, Fire. Contract, What constitutes. Automobile.</p> <p>In an action on a policy of fire insurance to recover for the loss by fire of an automobile, which was described in the application and the policy by the name of its manufacturer, its factory number, its type of body, its number of cylinders, its horse power and other matters, and as being of the “year model 1908,” where it appeared that the car in question was destroyed by fire and that it was worth and cost the plaintiff more than the amount for which it was insured and it was admitted that the description of the car in all respects other than the year model was correct, the defendant contended that the car was of the year model 1907 or 1906, and that the policy was invalid, either because the minds of the parties never met in regard to the terms of the policy, or that, if they did, the contract was rendered void by the plaintiff’s misrepresentation of a material fact. There was evidence that the car insured was in fact of the year model 1908, and there also was evidence that, if the car had been represented to be of the year model 1907 or 1906, the rate of insurance would not have been different, and that the designation of the car as being of the year model 1908 was an immaterial item in an otherwise correct description of an automobile that was known and identified by its factory number. Held, that the case properly was submitted to the jury.</p>

<p>Contract, Performance and breach, Construction.</p> <p>In an action against a lumber company for the non-performance of a contract to manufacture and furnish for delivery on a certain day fifty-eight thousand feet of maple flooring, where the contract contains a provision that “All contracts are contingent upon strikes, fires, breakage of machinery, perils of navigation and all other causes beyond our control,” and it is found on evidence warranting such a finding that time was an essential part of the contract, proof by the defendant of the destruction of its lumber mill by fire which made impossible the performance of the contract in accordance with its terms is a complete defence to the action; the contract not being an absolute one to furnish the flooring to the plaintiff but only a contract to furnish it if certain contingencies did not occur, including the contingency of fires, and there being no obligation upon the defendant to show that the fire that destroyed the mill was beyond its control, the words “beyond our control” in the clause above quoted referring to the words “other causes” immediately preceding them and not limiting the contingency of fires. /</p>

<p>Negligence, Street railway, Res ipso loquitur.</p> <p>It has been settled by previous decisions of this court that the mere unexplained starting of an electric street railway car is not in itself evidence of negligence on the part of the corporation operating the railway.</p> <p>In an action by an administrator against a street railway company for causing the death of the plaintiff’s intestate, who was a conductor in the employ of the defendant and was standing on the track back of his own car when he was crushed against it by another car of the defendant that started up behind him, where the plaintiff contended that the car which ran against his intestate started automatically and that it might be inferred from this that the air brake was in a defective condition, it appeared that the accident happened on the second trip on that morning of the car that ran against the intestate, and the motorman and the conductor of that car both testified that up to the time of the accident they had noticed nothing out of the way about the car, and there was no evidence of any examination made or of any defect found after the accident. The plaintiff’s expert, who described the mechanism of the air brake, testified that, “assuming that valve was in bang-up condition, it is possible that it could start to leak quickly and in such a condition it is possible for it to start all inside of an instant.” Held, that, assuming in favor of the plaintiff that the jury could find that the car started automatically and that it might be inferred therefrom that the air brake was in a defective condition when the intestate was injured, there was no evidence that the defendant knew or ought to have known of such defective condition before the accident occurred.</p>

<p>Negligence, Employer’s liability.</p> <p>Where an employee of an expressman or teamster, who for a period of from three to four months had been “lifting and unloading heavy things” and carrying them in an express wagon, was ordered to go with his wagon for a manhole cover weighing three hundred and seventy-five pounds and was told that a man would be sent up to help him load, and where, although he previously had loaded similar manhole covers at the same place and always had had a man to help him and never had attempted to load such a eovfer alone'and although on these previous occasions the two men always had used two wooden horses to support the cover that was being put in the wagon and the employee had been instructed that this was the proper way to load a cover, yet on this occasion, when he found on getting to the place that the man whom he expected to help him was not there, after waiting ten minutes he undertook to load the cover alone using one wooden horse instead of two and was injured by the cover falling on his foot, it was held, that his injury was due to his own fault and that he had no cause of action against his employer.</p>

<p>Evidence, Admissions by conduct. Negligence, Of bailee for hire. Bailment. Practice, Civil, Exceptions.</p> <p>In an action by a woman for the loss of a fur coat which she had delivered to the defendant as a bailee for hire to keep for her in cold storage, it could have been found that the plaintiff delivered the fur coat and a muff to the defendant’s teamster who called for them, that on the evening of that day the plaintiff was asked by telephone whether she had lost any furs, that the next morning she went to the defendant’s store and asked the man in charge of the fur department whether her furs had been delivered, that he told her that the furs were there, but with various excuses refused to allow the plaintiff to see them in the cold storage room, that on the same day the plaintiff received from the defendant a receipt for the furs naming a valuation which was not satisfactory to her, that the next day the plaintiff went again to the defendant’s store and refused to accept the receipt because the valuation was too low and demanded the return of her furs, offering to pay for the short time they had been there, but that neither the coat nor the muff were given to her, although the man in charge told her that they would be returned to her as soon as the numbers were identified, making an excuse for the delay, that thereafter the plaintiff called at the store many times and demanded her furs but never received them, that four months after the plaintiff gave her furs to the defendant’s teamster their loss for the first time was reported to the head of the defendant’s fur department, and that the plaintiff never was told that her furs were missing until two months later, that afterwards “they told her they did not have the coat and muff,” that shortly after that the plaintiff brought her action and that after the action was brought the muff was returned to the plaintiff without any explanation. Held, that on this evidence the jury were warranted in drawing the conclusions that the defendant’s agent who made the excuses to the plaintiff had tried to hide the real facts from her and that he knew that he or some of his fellow servants were at fault in the matter, and in drawing the further conclusion that the head of the defendant’s fur department, who failed to notify'the plaintiff of the loss of her furs for two months or to explain the way in which the muff was found, knew that his people were at fault, and that consequently there was evidence of the defendant’s negligence, on which the plaintiff, who had not agreed to any valuation of her fur coat, could recover the full value of the coat from the defendant if she obtained a verdict.</p> <p>A defendant, in arguing that the plaintiff should not have been allowed to go to the jury, is not entitled to rely on any evidence which the defendant himself introduced.</p>

<p>Bes Judicata. Assault and Battery. Agency, Scope of employment.</p> <p>In an action of tort for an assault and battery alleged to have been committed by an agent of the defendant within the scope of his employment in attempting to expel the plaintiff from premises occupied by him under a lease from the defendant, the record of a suit in equity,' brought by the plaintiff against the defendant immediately after the assault in question to enjoin the defendant from interfering with the plaintiff’s possession of the leased premises, in which the trial judge found that “the defendant’s servants unjustifiably assaulted the plaintiff” by committing the assault in question and a decree was entered enjoining the defendant from "interfering with the plaintiff’s right of possession of the premises,” is admissible in evidence and conclusively establishes the fact that an unjustifiable assault was committed upon the plaintiff by a person who at that time was the servant of the defendant.</p> <p>In an action for an assault and battery alleged to have been committed by an agent of the defendant within the scope of his employment in attempting to expel the plaintiff from premises occupied by him under a lease from the defendant, where it is proved by the record of a suit in equity between the same parties that an unjustifiable assault was committed upon the plaintiff by a person who at that time was a servant of the defendant, if there also is evidence that the plaintiff was struck on the head with a heavy iron bar by one of seven men who went ■with the defendant’s attorney to take possession of the premises occupied by the plaintiff intending to use force if necessary for that purpose, and that the defendant told his attorney in substance, “Get him [the plaintiff] out any way at all so long as you get him out of there; ... to put everything out of the place, hiring men for the purpose, and he would stand all expenses, and if [the plaintiff] and his men showed fight to throw them all out,” it can be found by the jury that the assault was committed by the defendant’s servant for the purpose and as a means of obtaining and holding possession of the premises and that he was acting within the scope of his employment.</p>

<p>Petition, filed on September 1, 1914, by a minority stockholder in the Martin Manufacturing Company, a corporation organized under the laws of this Commonwealth engaged in the manufacture of textiles and particularly of lace curtains, for a writ of mandamus addressed to that corporation and to George J. Martin of Newton, its president and treasurer and the</p> <p>holder of a majority of its stock, commanding the corporation and Martin to produce for examination and to permit the petitioner and his agents and attorneys to examine all the books and records of the corporation and to make copies and abstracts thereof under such regulations as the court might prescribe.</p> <p>The case was referred to an auditor, who filed a report containing among other findings those which are stated in the opinion.</p> <p>The case was heard by Hammond, J., upon a motion of the petitioner that the auditor’s report might be confirmed and that a writ of mandamus might issue as prayed for.</p> <p>The respondents asked the justice to rule that upon the auditor’s report the petitioner had not made out a case which entitled him to a writ of mandamus. The justice refused to make this ruling, and ordered that a writ of mandamus should issue. The respondents alleged exceptions.</p>

<p>Practice, Civil, New trial, Requests for rulings. Contract, Implied. Evidence.</p> <p>It is improper at the hearing of a motion for a new trial for the first time to raise by a request for a ruling a question of law that might have been raised at the trial of the case.</p> <p>At the trial of an action of contract by an architect against a builder upon an account annexed for $1,500, alleged to be the value of certain services rendered by the plaintiff to the defendant, the plaintiff testified in substance that he agreed with the defendant to furnish for $4,500 services in planning and supervising the construction of certain buildings; that he made plans and performed some other preliminary services, which constituted “three fifths in amount and value of the entire work to be done for the entire price,” and was ready to complete his part of the contract, but that the defendant did not go forward with the buildings. It was agreed by the counsel for both parties at the trial that "the action be tried without reference to the pleadings and that if the evidence showed that the plaintiff had any rights which were not set forth in the . . . declaration, it would be open to the jury to find for the plaintiff, regardless of the pleadings whether for breach of contract or upon any other ground.” The jury found for the plaintiff in the sum of $824. Held, that the jury were not compelled to accept all of the plaintiff’s testimony as true, even if it was not disputed, and that, upon the evidence and the agreement of counsel, the verdict was warranted.</p>

<p>Insurance, On goods during transportation. Automobile. Words, “Derailment.”</p> <p>the skidding of the hind wheels of an automobile truck into a gutter when the truck is being operated upon a public highway, so that the truck is caused to capsize and its contents to be injured, is not a “derailment” of the truck within the meaning of that word as used in a policy of insurance of the contents of the truck during transportation “against loss or damage by fire, collision or derailment on land.”</p>

<p>Contract for the alleged breach of an agreement by the defendants to accept and pay for two hundred bales of cotton waste, called “WAS cotton waste.” Writ dated December 29, 1911.</p> <p>In the Superior Court the case was tried before Bell, J. There was evidence that the plaintiff and the defendants were brokers, that the plaintiff and the defendant Dooskin had a telephone conversation on May 24,1911, with regard to the sale of the cotton waste, and that after that conversation and in confirmation of it the plaintiff wrote to the defendants a letter in substance as follows:</p> <p>“May 24th, 1911. Messrs. Boston Fibre Co., Boston Mass. Gentlemen: We confirm our today’s phone conversation with</p> <p>Mr. Dooskin according to which we have sold you all that we have on hand of our lot ‘WAS’ Screen, like the carload of 40 bales you recently purchased from another party, at 2c per lb. fob cars Manchester, N. H. for shipment % on the 5th of June and V% on the 12th of June. We advised you at the time, that there is 25,000 lbs. on hand, but we may have a little more by that time altho’ the Mill is going to shut down all of next week. If there should be 5/io bales more than our estimate we don’t suppose it will make any difference.</p> <p>“Also 200 bales in addition to what we have on hand, to be shipped as soon as a carload is accumulated at the same price as above. Terms are to be 30 days net.</p> <p>“Kindly confirm purchase to us and give shipping instructions in due season, so that we can get the lot away on time, in accordance with the order.”</p> <p>On the same day the defendant signed and delivered to the plaintiff the order of which the following is a reduced photographic facsimile:</p> <p> </p> <p>The defendants offered evidence tending to explain the meaning of the words “if desired,” as used in the above order, and the evidence was excluded, the judge ruling as follows, subject to exceptions by the defendants: “I shall rule for the present that this is not an option as a matter of law. I am going to rule that those two papers constitute the contract and I shall also rule that the two hundred bales were not an option. That is my construction of those two papers and I so rule for the present and we will go on and try out the case on the question of warranty.”</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence the defendants asked for the following rulings among others:</p> <p>“It is a question of fact for the jury on the evidence and in view of all the conversations in evidence whether or not the two hundred bales was to be construed as an option.</p> <p>“The question as to the ambiguity of the contract as shown bythe words ‘if desired’ in the order ‘No 01’ is a question for the jury.”</p> <p>Subject to exceptions by the defendants the judge refused to rule as requested and charged the jury as a matter of law in substance that the words “if desired” referred to the words “To Be shiped about 25000 monetly.”</p> <p>The jury found for the plaintiff in the sum of $583.71; and the defendants alleged exceptions.</p>

<p>Agency, Existence of relation, Independent contractor. Negligence, Causing death.</p> <p>In an action by an administrator for the conscious suffering and death of his intestate alleged to have been caused by negligence of the defendant, a manufacturing corporation, the plaintiff contended that his intestate when injured was in the employ of an electrical expert who was making tests for the defendant as an independent contractor, so that he might recover under R. L. c. 171, § 2, as amended by Sts. 1907, c. 375; 1911, c. 31; and the defendant contended and asked the judge to rule as a matter of law on all the evidence that the intestate was either in the general or in the special employ of the defendant, so that under the circumstances of the case recovery was limited to a recovery for conscious suffering. After a review of the evidence, it was held, that there was evidence which would warrant findings in accordance with the plaintiff’s contentions, and that the ruling asked for by the defendant was refused properly.</p>

<p>Landlord and Tenant, Landlord’s liability for defective common elevator. Negligence, Causing death, In use of elevator. Elevator.</p> <p>In an action against the owner of a three tenement house for causing the death without conscious suffering of a child of a tenant occupying the first floor, it appeared that the child was struck, while in a common passageway in the cellar, by the falling upon him of a small elevator or dumb waiter which ran from the cellar through a shaft to the top floor, there being no enclosure about it in the cellar. At the trial it appeared that the elevator was used only by the tenant occupying the third floor, but there was evidence from which the jury were warranted in finding that it was adapted and intended to be used in common by the tenants occupying the second and the third floors and that it remained in the control of the defendant. Held, that the defendant owed to the members of the family of the tenant occupying the first floor and using the passageway in the cellar the duty of keeping the elevator in as good condition as it appeared to be at the beginning of his tenancy.</p> <p>Upon further evidence at the trial of the same action, which tended to show that the fall of the elevator had occurred six months after the beginning of the tenancy of the father of the plaintiff’s intestate, that a short time after the - accident the broken ends of the hoist rope which had supported the elevator appeared frayed and torn, that pins, which had been adapted to pass through beams on the side of the elevator to steady and hold it in place when it was being hoisted or lowered, were broken, worn off, blackened and discolored, and that the landlord had admitted that he had made no repairs upon the elevator for fifteen years, it was held that a verdict for the plaintiff was warranted, because the jury were warranted in finding that the elevator and its appliances were defective at the time of the accident, that they gradually had become so during the fifteen years of their non-repair, and that they were not in as good condition as they had appeared to be when the tenancy of the intestate’s father had begun.</p>

<p>Lord’s Day. Gift. Dog. Bailment, Gratuitous bailee. Evidence, Presumptions and burden of proof. Conversion. Damages, In tort.</p> <p>The gift of a dog voluntarily delivered to the donee on the Lord’s day is valid.</p> <p>If the lawful possessor of a dog with the consent of its owner delivers it into the possession of its former owner and no more appears, it cannot be inferred that the purpose of this delivery was to revest the title in the former owner by way of gift, sale or otherwise, and such delivery creates at the highest a gratuitous bailment revocable at the pleasure of the bailor without demand or notice. If a dog, in response to a whistle of its former owner, leaves its lawful possessor and follows its former owner to his house where the former owner detains the dog against the demand of its lawful possessor, this constitutes a conversion of the dog for which its lawful possessor may maintain an action against its former owner.</p> <p>The lawful bailee of a chattel or domestic animal who had possession of it with the consent of the owner, in an action of tort against one who wrongfully has deprived him of such possession, may recover the full value of the chattel or animal at the time of the conversion.</p>

<p>Contract, Rescission, Performance and breach. Limitations, Statute of.</p> <p>Where a person, who has paid the purchase price for a certain lot of land and is entitled to a deed under a contract in writing by which the seller has agreed “to pay all taxes until deed is given,” makes a demand for a deed but after-wards waives immediate performance on account of the absence of necessary parties, and thereafter for a period of twelve years, although he makes oral and written demands for a deed, receives none either because of the continued absence of necessary parties or for some other reason not attributable to his own fault, and then demands a deed which the seller refuses to give unless the purchaser pays the taxes which have been paid by the seller since the payment of the pinchase money, this gives the purchaser the right to rescind the contract of sale and demand back the purchase money paid by him, and, on the refusal of its payment, to recover the amount in an action of contract, although the defendant sets up the statute of limitations; because the plaintiff’s delay in making his final demand for a deed was not due to his own fault, and the statute of limitations did not begin to run until his final demand was refused.</p>

<p>Bills and Notes, Alteration, Holder in due course. Bank. Agency, When knowledge of agent is constructive notice to principal, Scope of authority. Notice, Constructive.</p> <p>The addition upon the face of a negotiable promissory note of the words “with interest at 6%” here was conceded to be a material alteration within the meaning of R. L. c. 73, § 142.</p> <p>Where a bank discounted a negotiable promissory note which was complete and regular upon its face and was not overdue and had not been previously dishonored, and it afterwards was discovered that before such discounting the cashier of the bank had made a material alteration in the note, of which he procured the discount for his own fraudulent purposes, but that no other officer or employee of the bank had any information as to the alteration or as to the cashier’s personal interest in the note, it can be found that the bank took the note in good faith and for value without notice of any infirmity in the instrument or defect in the title within the meaning of R. L. c. 73, §§ 69, 73, and therefore was a holder in due course, the knowledge of the cashier not having been constructive notice to the bank because the cashier was engaged in committing an independent fraudulent act on his own account. Following Indian Head National Bank v. Clark, 166 Mass. 27.</p>

<p>Negligence, Railroad, In freight yard. Evidence, Of rules, Matter of conjecture. Practice, Civil, Exceptions.</p> <p>In an action against a railroad corporation by the administrator of the estate of a flagman in a freight yard of the defendant, under St. 1909, c. 514, §§ 127 el seg., for causing the death of the plaintiff’s intestate, one of the plaintiff’s witnesses testified, on his cross-examination by the defendant, that he had observed the intestate while he was performing the duties of a flagman; that the intestate appeared to be familiar with the rules of the company; that all the men were furnished with a book of rules; that he saw a book in the intestate’s hands which was similar to the defendant’s book of rules in respect to form, color and superscription, but that he did not see the book open. Thereafter the judge, against the plaintiff’s objection, permitted the defendant to read to the jury from a book similar in appearance to the one seen in the intestate’s hands certain rules which had an important bearing on the question of the intestate’s due care. At the close of the evidence the judge ordered a verdict for the defendant and the plaintiff alleged exceptions. Held, that the evidence justified the judge’s preliminary finding and ruling allowing the rules to be read to the jury; but that the defendant had no right to rely, in support of the ordering of the verdict, on any inference of the intestate’s knowledge of the rules that were read to the jury; because, if the case had been left to the jury, it would have been within their province to say whether they would draw such an inference, and because they would have had the right to disbelieve the witness’s statement that the intestate had a book of rules in his hands.</p> <p>In an action against a railroad corporation by the administrator of the estate of a trainman in a freight yard of the defendant, under St. 1909, c. 514, §§ 127 et seq., for causing the death of the plaintiff’s intestate, it appeared that the intestate was a man of large experience in handling trains, who had worked in the same division of the freight yard in which he was killed for seven or eight years, that at the time of the accident he was at work somewhere upon or near fourteen cars that had been shunted upon a side track when nine more cars were sent down upon them by their own momentum, that their impact pushed the fourteen cars about five feet, and that thereafter the dead body of the intestate was found beneath the second of the fourteen cars counting from the end away from the nine cars that had come down. There was nothing to show where on the top of or between or under the fourteen cars the intestate was or what he was doing when the nine cars came in contact with the fourteen cars. Held, that a verdict must be ordered for the defendant, because it was a matter of conjecture whether the intestate at the time he was killed was engaged in the performance of his duties and was in the exercise of due care.</p>

<p>Practice, Civil, New trial, Exceptions. Res Judicata. Evidence, Matter of conjecture.</p> <p>Where, in an action of tort for personal injuries or for causing death, an exception to a refusal of the presiding judge to order a verdict for the defendant is sustained on the ground that there was no evidence that the person injured or killed was in the exercise of due care at the time of the accident that caused his injuries or death, the decision of this court is “the law of the case” so far as the evidence then passed upon is concerned, and at a new trial of the case the plaintiff, in order to have a right to go to the jury, must present evidence which differs in substance from that produced at the former trial, and which, if then produced, would have made necessary a different decision by this court.</p> <p>Where, in an action against the proprietor of a mill for causing the death of a boy employed as a back boy, an exception to the refusal of the presiding judge to order a verdict for the defendant was sustained on the ground that the conduct of the boy at the time of the accident that caused his death was a matter of conjecture so that there was no evidence warranting a finding that he was in .the exercise of due care, additional evidence, at a new trial of the case, that two spinners on two occasions were heard to call the boy “dope,” “crazy” and “nuts,” assuming that it was admissible as showing estimates of the decedent’s powers of apprehension and comprehension, does not tend to show what the boy was doing at the time of the accident or to make the question of his conduct at that time any less a matter of conjecture.</p>

<p>Negligence, Of dentist. Pleading, Civil, Variance.</p> <p>Where, at the trial of an action by a woman against a dentist for injuries alleged to have been caused by the plaintiff being infected with syphilis from dental instruments used by an employee of the defendant in treating her without the instruments having been sterilized properly before such use, there is evidence tending to show that before being treated the plaintiff was free from the disease, and that during an operation on her teeth by the defendant’s employee she became infected with it; and, although there is evidence that it was the practice of the defendant to have all instruments used in his office sterilized by boiling and in other ways, there is no evidence as to what was done to sterilize the instruments used oi\ the day when the plaintiff became infected, a verdict for the plaintiff is warranted. Following Bates v. Dr. King Co. 191 Mass. 585:7</p> <p>If it is alleged in the declaration in an action of tort by a woman against a dentist that the “defendant by his servants and agents conducted himself in and about treating plaintiff’s teeth so unskilfully, recklessly, negligently and unprofessionally, that . . . the instruments or appliances which defendant used in treating her teeth were unclean and unfit for use, and by reason of the contact thereof with plaintiff’s mouth she was infected with syphilis,” and if upon the evidence at the trial the jury find that the plaintiff was treated at the defendant’s office by an employee of the defendant, that she then became infected with syphilis, not through negligence of the defendant’s employee who treated her, but through negligence of some person employed by the defendant whose duty it was to clean and sterilize the instruments used in treating her, there is no variance between the declaration and the proof.</p>

<p>Negligence, Staging over highway in front of theatre, Independent contractor. Agency.</p> <p>Where the proprietor of a theatre made a contract with a painter for the painting of ornamental work over the entrance to the theatre and the contract provided that the painter should furnish and erect the staging necessary for the work, and where a temporary and movable staging, built and entirely controlled by the painter and made of trestles with boards laid across between them but not fastened, was used by the painter for the work and, at a time when the sidewalk was crowded and about fifteen minutes after the workmen of the painter had left the staging unwatched and unguarded, it was tipped over, apparently by a gust of wind, and fell upon one who was entering the theatre, the proprietor of the theatre is not liable for the personal injuries so received.</p>

<p>Negligence, Staging over highway. Way, Public.</p> <p>If a painter erects over a sidewalk in front of a theatre a temporary staging built of upright trestles with planks laid from one trestle to another and not fastened and, when the sidewalk is crowded, his workmen leave the staging unprotected and unguarded for ten or fifteen minutes during which a gust of wind blows it over and it strikes and injures a person entering the theatre, in an action against the painter for the injuries so received, the jury are warranted in finding that the plaintiff was in the exercise of due care and that the defendant was negligent.</p>

<p>Evidence, Of title, In rebuttal. Practice, Civil, Order of evidence.</p> <p>At the trial of an action by the owner of land near the sea for damages alleged to have been caused by water flooding that land by reason of a break in a dam which the defendant through his negligence had allowed to become defective, the only evidence which the plaintiff offered to prove that the defendant owned the dam or was under any obligation to repair it was a deed conveying certain land to the defendant and mentioning a dam, from which it was impossible to identify the land therein described with land including the dam in question, and evidence that after the break in the dam two laborers employed by the city where the dam was had repaired it, that at some time some laborers, who had been seen working on premises belonging to the defendant, worked upon the dam, but whether they had so worked before or after the break and whether they worked with the city’s laborers did not appear. The evidence of the defendant tended merely to show that at one time the land including the dam had belonged to another person. At the trial and at the argument before this court the defendant denied ownership of and responsibility for the dam. A verdict was ordered for the defendant. Held, that the verdict was ordered rightly.</p> <p>Where, at the trial of an action of tort for damages resulting from a break in a dam, it is a part of the plaintiff’s case to prove that the title to the dam is in the defendant, it is within the discretion of the trial judge to refuse to permit the plaintiff to introduce in rebuttal evidence which tends merely to support that part of his case in chief and has no tendency to explain or control any evidence offered by the defendant.</p>

<p>Trustee Process, Interrogatories to trustee. Interrogatories. Practice, Civil, Appeal.</p> <p>Whether an appeal, taken by one alleged to be a trustee in an action begun by trustee process before final judgment is entered from an order that the trustee be defaulted for failure to obey an order of the court directing him further to answer certain interrogatories of the plaintiff, was taken prematurely, here was not decided, it being determined that, even if the appeal properly was before this court, no error of law was disclosed by the record.</p> <p>Although the answers of one summoned as trustee by trustee process to interrogatories propounded to him by the plaintiff must be accepted as true and cannot be contradicted, and he cannot be subjected through interrogatories to cross-examination, yet the alleged trustee can be required in answer to interrogatories to testify with reasonable minuteness as to the subject under investigation.</p> <p>In an action of contract begun by trustee process where an order of the court directed the alleged trustee to answer certain of a number of interrogatories filed by the plaintiff under R. L. c. 189, § 11, which the alleged trustee refused to answer and which, respecting a large sum of money disclosed by the trustee, in answer to others of the interrogatories, to have been paid to him as attorney for the defendant, seek information with regard to whom such money was paid to by the alleged trustee, as to whether the trustee rendered an accounting to the defendant and a copy of such accounting if rendered, and as to the amount which the alleged trustee charged the defendant for his services, an appeal by the alleged trustee from the order will not be sustained, although in answer to another interrogatory the alleged trustee has stated that before the service of the writ upon him “the entire balance remaining” in his hands “was paid over in full to the principal defendant” with the exception of a sum equal to one half of the amount claimed by the plaintiff, which was held back to be paid to him; because the plaintiff is not bound to accept such a bald assertion by the trustee, and it does not appear that such interrogatories were in the nature of cross-examination nor intended to elicit answers contradictory to answers already given.</p>

<p> Equitable Restrictions. </p> <p>If the language of a deed of land specifically states “that the house first erected on” the land shall be subject to a certain restriction, and, “This agreement and restriction to apply solely to the house first erected on said premises and not to any house subsequently erected thereon,” the restriction in no way applies to any building or structure erected upon the land after the first house is built thereon, although such first house remains standing, there being no implied restriction that only one house or building shall stand on the land at the same time.</p>

<p>Accordingly where, at the time of the delivery of the assignment above described, the assignor was occupying certain land under a lease which provided that, upon the making of such an assignment the lessor might “immediately, or at any time thereafter” enter upon and repossess the demised premises, and that, upon his electing so to do, he should be entitled to indemnity for the rest of the term for loss of rents and other payments due under the lease, or, at his election, to damages in such sum as would measure the difference between the rental value of the premises and the rent reserved with other payments, the lessor, under the above quoted provisions of the lease, is not a creditor entitled to benefit under the assignment, because, at the time of the delivery of the assignment, he had not and could not have made an election as to which of the privileges given him by the lease he should follow, and therefore his debt was contingent.</p> <p>Bill in equity, filed in the Superior Court on March 31,1914, and afterwards amended, against the corporation Hooper, Lewis and Company, Inc., and Albert F. Rebhan, its assignee for the benefit of its creditors, seeking to compel the defendant Rebhan to recognize the plaintiffs as creditors of the defendant corporation under the provisions of a lease of a building to be occupied as a store by the defendant, and as entitled to the benefits of the assignment, as stated in the opinion.</p> <p>The defendants severally demurred to the bill. The demurrers were, sustained by Wait, J., and a final decree was entered dismissing the bill. The plaintiffs appealed.</p>

<p>Tort for the conversion of certain household goods and wearing apparel. Writ dated June 25, 1913.</p> <p>In the Superior Court the case was tried before Lawton, J. There was evidence tending to show that on December 13, 1911, the plaintiff placed the goods in storage with the defendants, stating to them at the time that he “had some domestic trouble with his wife,” and instructing them “not to deliver the goods to any one but the plaintiff and particularly not to the plaintiff’s wife.”</p> <p>It appeared that on November 5, 1912, the plaintiff was adjudicated a bankrupt, that on January 14, 1913, Lloyd Make-peace, Esquire, was appointed trustee in bankruptcy, and that on January 31,1913, the defendants delivered the goods in storage to the plaintiff’s wife.</p> <p>In April, 1913, the plaintiff’s wife obtained a divorce from him, and later she married again. She testified that the goods in question were her property.</p> <p>At the close of the evidence the trial judge sent for the trustee in bankruptcy of the plaintiff’s estate in order to ascertain what, if anything, the trustee wished to do in connection with the action. The trustee, after having been informed by counsel for the parties of the nature of the action and of the testimony, declined to become a party to the action and informed the trial judge that he might disclaim any interest in the goods or the right of action thereon. After consulting with the referee in bankruptcy, the trial having been suspended for that purpose, the trustee filed an instrument, disclaiming “any right, title or interest in or to the goods and chattels sued for in the . . . action or the value thereof.”</p> <p>The defendants asked for the following rulings:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. On all the evidence the jury should be instructed to return a verdict for the defendants.</p> <p>“3. Upon filing a petition in bankruptcy and an adjudication thereon, title and right to the possession of all the property then owned by the plaintiff vested in his trustee in bankruptcy except such property as is claimed by the plaintiff in his petition as exempt by law, and, as to such last named property, right of possession vested in such trustee and the plaintiff is not entitled to possession of such property unless and until it has been determined and set apart for the plaintiff by the trustee.</p> <p>“4. The burden of proof is on the plaintiff to show such determination and setting apart to him by the trustee.</p> <p>“5. The plaintiff cannot maintain this action without proof of a demand by him on the defendants for the property alleged to have been converted and a refusal by them to deliver such property to him.”</p> <p>The rulings were refused. The jury returned a verdict for the plaintiff in the sum of $829.80; and the defendants alleged exceptions.</p>

<p>Trading Stamps. Contract, Validity. Monopoly. Restraint of Trade. Equity Jurisdiction, No enforcement of unlawful contract. Words, “Article.”</p> <p>Trading stamps and trading stamp books, into which the stamps are to be pasted for the purpose of presenting the books for redemption by the corporation that issues them, are “articles” within the meaning of St. 1908, c. 454, § 1, which prohibits “a monopoly in the manufacture, production or sale in this Commonwealth of any article or commodity in common use.”</p> <p>Where trading stamps and trading stamp books, into which the stamps are to be pasted for the purpose of presenting the books for redemption by the corporation that issues them, are sold to the merchants of a city and its vicinity, for use among their customers in inducing cash sales by providing a discount or return on every purchase made, under a contract by which the merchants agree not to use trading stamps issued by any other corporation or individual and not to sell the books or stamps to any one, and where by the operation of this system the corporation issuing the trading stamps and books controls nearly ninety per cent of the actual business conducted in this form by the merchants of the city and its vicinity, a monopoly is sought to be established, in a form of bargain and sale which a very appreciable portion of the public demands, that is declared by St. 1908, c. 454, § 1, to be “against public policy, illegal and void,” so that a court of equity will refuse to enforce the restriction contained in the contracts by enjoining others from carrying on a similar enterprise in a lawful manner.</p>

<p>Jurisdiction. Corporation, Foreign. Trustee Process. Attachment, Of rolling stock. Railroad.</p> <p>In an action against a foreign railroad corporation begun by trustee process, if there has been no personal service on the defendant and no direct attachment of property of the defendant, a valid judgment can be entered only against the property attached by trustee process, and, if the alleged trustee is not chargeable, the case must be dismissed.</p> <p>In determining the question whether an alleged trustee in an action begun by trustee process is chargeable under R. L. c. 189, §§ 9-17, where no interrogatories to the trustee have been filed the answer of the alleged trustee must be taken as true.</p> <p>In an action against a foreign railroad corporation, which was an interstate carrier, freight cars that were the property of the defendant were attempted to be attached by trustee process in the possession of a Massachusetts railroad corporation, which also was an interstate carrier and which had received and re-^ tained the cars and at the time of the alleged attachment actually was making use of them under an arrangement with the defendant that gave the alleged trustee the right to despatch them to the place of destination on its own lines and the right to use the empty cars for carrying freight between different points on its own road and on the lines of other railroad companies directly or indirectly connected with the railroad of the defendant upon the payment of fixed daily charges so long as any of the cars remained on tracks that the alleged trustee owned or controlled. Held, that the Massachusetts corporation was not chargeable as trustee as to the cars of the defendant thus in its possession, and that it was unnecessary to determine whether the attachment was invalid by reason of a failure of the plaintiff to comply with the provisions of R. L. c. 167, § 39, relating to the attachment of railroad cars in use in making regular passages.</p>

<p>Workmen’s Compensation Act. Evidence, Presumptions and burden of proof.</p> <p>It seems that under St. 1911, c. 751, Part V, § 2, before it was amended by St. 1914, c. 708, § 13, the employment of a workman for a single day, with no agreement or understanding express or implied extending the service beyond the close of the day’s work, was “but casual,” so that, if he was killed in the course of his employment on that day, his dependent widow was not entitled to receive an award for his death under the provisions of the workmen’s compensation act.</p> <p>Where in a record of an appeal under the workmen’s compensation act it was stated that at the request of the insurer certain “excerpts from the transcript of the evidence” were attached to the decision of the Industrial Accident Board it was held, that it could not be assumed that these excerpts stated all the material evidence on the questions presented to this court, and therefore this court could not say that as matter of law there was no evidence warranting a certain finding of the Industrial Accident Board, although the evidence reported in the excerpts did not warrant the finding.</p> <p>In proceedings before the Industrial Accident Board,. in which the dependent widow of a deceased employee seeks to obtain compensation for her husband’s death under the provisions of the workmen’s compensation act, the burden of proof is upon the dependent to satisfy the board that the employee’s service was such as to entitle her to compensation for his death.</p>

<p>Petition, filed in the Land Court on October 14, 1913, for the registration of the title to a parcel of land with the buildings thereon at Nantasket Beach in the town of Hull.</p> <p>The case was,heard by Darns, J., who made a decision in substance as follows:</p> <p>The land in question in this case consists of a strip about four hundred and twenty feet long by fifty feet wide, and lying between A and Lewis Streets adjoining the Waveland railroad station in the town of Hull. In 1885 the Nantasket Company, which at that time owned all the land in the vicinity, recorded in the registry of deeds a plan of its land at Nantasket Beach. The following is a reduced copy of the northeasterly corner of the plan. On</p> <p> </p> <p>the plan there is shown a way running from far to the south of the property in dispute and labelled “Manomet Avenue 50 feet wide.” This way apparently stops at the southerly line of Lewis Street. Between the northerly line of Lewis Street and the southerly line of A Street there is a prolongation of the easterly line of the avenue with a block of lots to the east thereof. Westerly of this block of lots, and between it and the land of the railroad taken for station purposes, is a blank space. Between the southwesterly corner of this block and the southeasterly corner of the railroad land, on a line with the northerly line of Lewis Street, are the figures “103.5.”</p> <p>In 1886 the trustees of the Nantasket Company conveyed to one Norwell, the predecessor in title to the respondent, the block of lots, describing them as being lots numbered 1238 and 1249 inclusive on the plan, and bounded “westerly by the easterly line of Manomet Avenue extended 409.90 feet.” In 1887 the trustees conveyed to one Jordan a number of lots on the plan, and also all and singular any and every other parcel or parcels of land situated at Nantasket Beach. In 1913 the trustees under the will of Jordan conveyed to the petitioner a parcel of land as shown on the plan, between A Street and Lewis Street, bounded “easterly by the extended westerly line of Manomet Avenue shown on said plan extended northerly from Lewis Street to A Street about 410 feet.” By deed, dated and recorded since this petition was filed and the examiner’s report was made, the Jordan trustees conveyed to the town of Hull all right, title and interest in “the parcel of land being the continuation of Manomet Avenue shown on said plan running northerly from Lewis Street to A Street.”</p> <p>The respondent contends that under the deed to her predecessor Norwell there passed as appurtenant to her land the right to have the entire space of 103.5 feet wide between her land and the station property of the railroad kept open as a part of Manomet Avenue extended from Lewis Street to A Street. “I am unable to agree with this contention. If the plan had shown Manomet Avenue as running from the south fifty feet wide as far as Lewis Street and from that point extending with a width of 103.5 feet to A Street, the contention would be sound; but it did not. It seems to me that it most distinctly showed Manomet Avenue to be a fifty foot street stopping at the southerly line of Lewis Street, and then a vacant space 103.5 feet wide lying between Lewis and A streets. If this were all, however, it could perhaps still be fairly contended on behalf of the respondent that such vacant space was represented to be an open space, and that she is entitled to have it maintained as such. But the Norwell deed expressly provided for the extension of Manomet Avenue through this open space 103.5 feet wide, and this has been done. There remained an unoccupied strip of land between Manomet Avenue extended and the railroad land suitable for development into house lots.</p> <p>“It seems to me that the plan showed a certain scheme of streets and avenues, with some blocks^ divided into lots and others not; and that the vacant space in question indicates rather a space as to which the plan was not yet developed, than a space dedicated as an open space for the benefit of the respondent’s lots. The provision in the sale to the respondent for the extension of Manomet Avenue, the sale of Jordan, the extension by his estate of Manomet Avenue as provided for in the Norwell deed, and the subsequent sale of the remaining row of lots to the petitioner, is all consistent with the plan. The space is not needed for the purpose of access to the Waveland station, because ample access is had from A Street, from Lewis Street and from the broad strip of land running between A and Lewis Streets on which the railroad station is built. The case does not seem to me to be at all like Farnsworth v. Taylor, 9 Gray, 162, and other cases cited by the respondent, but more like the situation in Attorney General v. Vineyard Grove Co. 211 Mass. 596, and the Copley Square cases cited by the examiner.</p> <p>“On the agreed facts submitted in this case I rule that the respondent has no easement by grant, express or implied, in the land claimed by the petitioner.”</p> <p>By order of the judge a decree was entered for the petitioner; and the respondent appealed.</p>

<p>Negligence, Street railway. Carrier, Of passengers.</p> <p>If, while an open electric street railway car is stationary at the last regular stopping place at one end of its route and is about to go round a curve before returning in the opposite direction on the other parallel track, a woman, for the purpose of taking the ear on the return trip, without any objection from the conductor gets on the running board and walks along it preparatory to taking a • seat by the side of a companion who got on the car at the same time, whereupon the conductor gives the signal to start the car, and the car starts and in rounding the curve gives a lurch, throwing the woman to the ground, in an action brought by her against the corporation operating the railway for her injuries thus sustained, the question of her due care is for the jury.</p> <p>If in such action the jury find, on evidence warranting such a finding, that the manner of passing from one track to the other was unknown to the plaintiff and that she was at a point where cars apparently made regular stops not merely for the discharge of passengers but also for their reception, they further can find that the plaintiff offered herself as a passenger and that the conductor accepted her as one, and, so finding, it is for the jury to determine whether the conductor thereafter exercised reasonable care toward the plaintiff as a passenger.</p>

<p>Damages, For property taken or impaired under statutory authority. Way, Public, Private. Easement. Evidence, Of extent of easement, Of agency. Agency, Existence of relation. Savings Bank. Corporation, Officers and agents. Practice, Civil, Judge’s charge.</p> <p>At the trial of a petition against the town of Brookline for the assessment of damages due to the taking of one half of a path, which provided a convenient means of communication between a much used street and a populous residential section on a hill, where it appears that one, who had been the owner of the path and of the land from which a large part of the residential section was developed, had made the path subject to an easement of use “ for all the purposes for which such passageways now are or at any time hereafter may be commonly used in said town of Brookline,” evidence is admissible, for the purpose of proving that no greater servitude existed after than before the taking, of the physical uses made of similar paths in Brookline as a means of access to the lots adjoining and of passing from one street to another and for the construction of drains and sewers and for the installation of gas, electricity and water, irrespective of the provisions of the deeds, instruments or public acts which created them.</p> <p>At the trial of a petition by a banking corporation against a town for the assessment of damages due to the taking of one half of a path for a public footpath, the judge, subject to an exception by the petitioner, admitted in evidence a letter, written to the chairman of the selectmen of the town before the taking with regard to the town assuming care of the path by one, who enclosed with the letter a copy of a letter to the banking corporation from an owner of land adjoining the way demanding that the path be taken care of. The writer of the letter testified that he did not know how he came by the enclosed copy, that he “tried to sell and looked after the house on the petitioner’s lot,” and “that he had general charge” of it to that extent. The letter stated that the petitioner would be willing at any time to execute any conveyance or release which might be required if it should be found necessary or desirable to transfer any fee in the way to the town. There was evidence that the letter was written after a consultation between the writer and the president of the bank. Held, that the letter was inadmissible for any purpose, because the authority of its writer to bind the bank could not be shown from his statements, and there was no evidence that the president of the bank had any authority to delegate power to him.</p> <p>The error committed by the admission of such letter was not cured by an instruction to the jury not to consider the letter unless they were satisfied of the authority of the writer to bind the bank; because on the evidence the jury would not have been warranted in any event in finding the existence of such authority.</p> <p>The president of a savings bank has no authority merely by virtue of his office to delegate power to another to write a letter to a town containing offers or admissions as to the value of the bank’s interest in a certain path in a town.</p> <p>The owner of the fee in one half of a passageway in the town of Brookline; which provides a convenient means of communication between a much used street and a populous residential district on a hill and which is subject to an easement of use “for all the purposes for which such passageways now are or any time hereafter may be commonly used in said town of Brookline,” has no right to build a structure over his half of the way nor to construct buildings which will drop snow, ice or water from their roofs upon it.</p>

<p> Guaranty. Release. Accord and Satisfaction. Payment. </p> <p>In a suit in equity for the enforcement of a guaranty by the defendant of the payment to the plaintiff by a corporation of the price of certain goods shipped ■ to the corporation by the plaintiff, it appeared that, in compliance with certain provisions of the contract, the plaintiff had given notices to the defendant as the payments came due, that before a final payment was made the plaintiff rendered to the principal debtor a statement which was incorrect in that it overstated the amount of a credit of which the plaintiff had given the debtor a memorandum, and understated the balance due, that the debtor forthwith sent the statement to the defendant, that the defendant caused the check of a stranger to the transaction for the erroneous balance to be sent to the plaintiff with a letter stating that it was sent as “the final payment” under the guaranty and requesting a return of the receipt to the maker of the check, that the plaintiff receipted the statement and returned it to the stranger with a letter stating that the check was received “in final settlement” of the account of the principal debtor, and that seven weeks later the error was discovered and the defendant was notified. Held, that there was no release or discharge of the principal, debt nor any accord and satisfaction, and that the principal debt and the guaranty remained in force.</p> <p>■Where, in a suit in equity by a creditor to enforce a guaranty, a master finds that the plaintiff through a mistake rendered to the debtor a statement of a balance of the debt due which was too small by $3,600 and at the debtor’s request the amount of the erroneous balance was paid to the plaintiff by the guarantor, that the guarantor was notified by the creditor of his mistake seven weeks later, that during the first three of those seven weeks there was a debt owing to the debtor by a stranger which the guarantor might have attached in an action against the debtor and that the debtor was insolvent during the seven weeks and at the time the suit was brought, the guarantor is not discharged, because he has failed to sustain the burden of proof, which was on him, of showing that, when notified of the creditor’s error, he had lost any material pecuniary advantage against his principal which he might have enforced had no mistake been made by the creditor.</p>

<p>Petition, filed on May 7, 1908, against the city of Cambridge under St. 1903, c. 372, § 4, for the assessment by a jury of damages for injury to property of the petitioner from the construction of a bridge with a draw across the Lechmere Canal, so called, in continuation of the lines of the highway known as Commercial Avenue.</p> <p>In the Superior Court the case first was tried before Hitchcock, J. The jury found for the petitioner in the sum of $15,365.61, and exceptions alleged by the respondent were sustained by this court in a decision reported in 214 Mass. 35.</p> <p>There was a new trial of the case before Fessenden, J., at which the evidence was presented that is described in the opinion. The jury and the presiding judge also viewed the petitioner’s premises.</p> <p>At the close of the evidence the respondent asked the judge to make the following rulings, which are referred to in the opinion, besides others that have become immaterial because the exceptions to the refusals to make them were not argued:</p> <p>“6. The occasional tying up of a vessel in front of the petitioner’s wharf in such a manner that vessels lapped over beyond the side lines of the petitioner’s land does not as a matter of law give to the petitioner a title by prescription in the part of the dock thus occupied.”</p> <p>“ 10. Upon all the evidence, the jury would not be warranted in finding that the petitioner had a title to the dock or any part thereof in front of Smith’s wharf.”</p> <p>“12. If the jury find that it was the custom among the owners of the various wharves abutting on Lechmere Canal to permit vessels lying at their respective wharves to lap over upon the land of their abutters and that this custom had been followed for a number of years without objection from any of the wharf owners, and if the jury find that vessels unloading at the petitioner’s wharf were permitted to lap over and by virtue of this custom without any express permission and without any express objection upon the part of the owners of the Smith Wharf, then the jury would not be warranted in finding that the property of the petitioner was damaged by the deprivation of the opportunity of permitting vessels to thus lap over.”</p> <p>“ 14. Upon all the evidence, the jury would not be warranted in finding that the petitioner had acquired any title by prescription in any part of the dock beyond the limits of the land described in his deed.”</p> <p>The judge refused to make the fourteenth ruling requested, and, as is held by the court, covered the subjects of the sixth, tenth and twelfth rulings requested, in so far as they were applicable, by the instructions that are quoted in the opinion.</p> <p>The language used by the judge in his charge to the jury in illustration of the special and peculiar damage with reference to access to the use of the petitioner’s wharf, which is referred to in the opinion, was as follows:</p> <p>“I think I ought to speak to you a moment-about what constitutes special and peculiar damages. . . .</p> <p>“Suppose you are going along a highway, and I have been foolish enough, as they sometimes do in small country towns, to go out and undertake to do something in the highway; I have not got permission, but have gone out and dug a hole there, and you are going along and you see it and you pass around it, go around. You are bothered. You cannot bring an action against me for that, because everybody else does that, all the people that have the right to use the highway have that Mud of an annoyance. You can go to the grand jury and say something to them and then they will say something to me, but so far as any recovery for any damage such as that, that is not special and peculiar to you. Everybody suffers that as he goes along there. Now you can all see that. Suppose you should go along there tonight and fall into the hole and break your leg; that is a special and peculiar damage, that is to you. The public generally does not suffer that. That illustration serves to show what I mean, the distinction between a special and peculiar damage and the damage that is suffered by the public generally. Apply that to this case, for these rules cover all the cases, they are not made one for one; we do not make one set of rules for one case and another one for another; only we apply them according to the circumstances of the case.</p> <p>.“Wherein has the petitioner suffered special and peculiar damages? He says that before this bridge was constructed, they could bring up vessels there to the wharf two hundred feet long, or less or more, and they could have them brought to the wharf and they could unload and move the vessels fore and aft so as to take the first, second or third hatch, they could go directly to the wharf, it was convenient and accessible. He says all the others can do that now, 'But I cannot; whereas when the vessels came through, they go to the other wharves, they keep right along, can tie up, move forward and aft just the same as they could before. I cannot. I cannot get to the wharf "without going ahead and then backing. In other words, my wharf is not so accessible and I am cut off entirely from this movement fore and aft, and that I have suffered damage that way, and ice collects there in a way that it does not on the other wharves; the ice coEects there at a time when I want to use it, and I suffer in that respect a special and peculiar damage.’ And it is for that, among other things, it is something that he does not suffer in common with the others, but it is something that he suffers and the others do not; it is special and peculiar, different in kind from what the others suffer. Now, you may consider that.”</p> <p>The references to this court in the judge’s charge, referred to in the opinion as complained of by the respondent, were as follows:</p> <p>“I may take a little time with this, gentlemen, but the case will undoubtedly go to the Supreme Court, and inasmuch as I have had between seventy and eighty separate and distinct requests for rulings to give, you see I must treat them as they deserve;” and later in the charge "I do not think we can say that this act of the Legislature is an idle act, that it means nothing, but I think the proper construction of it is — and this will be ultimately for the Supreme Court, I may be mistaken, but we will govern ourselves accordingly here—” [Here followed the judge’s statement of the meaning of St. 1903, c. 372, entitled “An Act to authorize the city of Cambridge to construct a bridge across Lechmere Canal in continuation of Commercial Avenue in that city,” which was not excepted to].</p> <p>The jury returned a verdict for the petitioner, and assessed damages in the sum of $41,065.85. The respondent alleged exceptions to the refusal of the judge to make the rulings requested by it, to certain rulings as to the admission of evidence which are mentioned in the opinion and to certain portions of the charge, including the language of the judge used in illustration as quoted above.</p>

<p>Petition, filed on November 7, 1913, by alleged members of the Boston fire department engaged in the performance of the duties assigned to the branch of the department known as the fire alarm operating branch, for a writ of mandamus addressed to the Boston Firemen’s Relief Fund, a corporation, alleging that by virtue of their membership and service in the Boston fire department they were entitled, under the provisions of certain statutes which are named in the opinion, to share in the benefits of the fund held by the respondent, but that at an annual meeting of the members of the respondent they had been refused recognition as members; and praying that the respondent might be commanded to restore the petitioners to the full exercise and enjoyment of all the rights and privileges of members of the respondent.</p> <p>The case was referred to an auditor to hear the parties and their evidence, to find the facts and report them to the court. After the filing of the auditor’s report the case came on to be heard before Pierce, J., upon the pleadings, the auditor’s report and an agreed statement of facts, and, at the request of the parties, the justice reserved the case for determination by the full court.</p>

Bill in equity, filed on January 17, 1914, in the Probate Court for the county of Suffolk, by Mary A. Ford, the daughter and only child of Patrick W. Ford, late of Boston, who died on August 11, 1900, leaving a will containing the provisions quoted and described in the opinion, alleging that the plaintiff’s mother, who was the widow of Patrick W. Ford, died on May 11, 1913, and praying, for a decree terminating the trust created by the will of Patrick W. Ford and ordering…

<p>Frauds, Statute of. Landlord and Tenant. Evidence, Relevancy.</p> <p>If a landowner makes a contract in writing with a prospective tenant tó build a wooden house which the prospective tenant agrees to occupy for a term of five years at a rent of $100 a month, and later the parties modify this contract by an oral agreement by which the landowner agrees to build the house of brick instead of wood and the prospective tenant agrees to pay $500 additional in rent, and if thereafter the house is built of brick and the tenant enters it and lives there for ten months but refuses to pay the additional rent, when he is sued for the rent by the landowner the statute of frauds is no defence to the action; because when the tenant took possession of the premises under the contract in writing as modified by the oral agreement he became a tenant at will by virtue of R. L. c. 127, § 3, and the agreement ceased to be one not to be performed within one year under R. L. c. 74, § 1, cl. 5.</p> <p>In the action described above the agreement in writing is admissible in evidence as one of the steps by which the defendant’s liability to the plaintiff is established. In the action described above it was not necessary to decide whether the plaintiff could recover the additional rent under the doctrine of substituted performance put forward in Cummings v. Arnold, 3 Met. 486.</p>

<p>Tort, against a corporation engaged in the business of manufacturing, selling and leasing sewing machines, for personal injuries sustained by the plaintiff on February 1, 1907, when she was about nineteen years old, from being struck on the head and nose by the cover of a sewing machine belonging to the defendant and leased by it to the plaintiff’s mother owing to the negligence of an agent of the defendant who had been sent to the residence of the plaintiff’s mother to repair the machine. Writ dated April 4, 1910.</p> <p>In the Superior Court the case last was tried before White, J. The evidence is described in the opinion. Certain X-ray photographic plates, which are referred to in the opinion, were offered in evidence by the plaintiff to show the condition of the injured part of the plaintiff’s nose on May 22,1914, which was a few days before the last trial. They were admitted by the judge subject to the defendant’s exception.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. Upon the evidence the plaintiff cannot recover.</p> <p>“2. If the plaintiff believed or had reasonable cause to believe that she had a claim against the defendant to recover damages for personal injuries, and without any good reason failed to make known her said claim to the defendant and take any steps to enforce payment of the same, for over two years, then such failure on the plaintiff’s part to make known and enforce her said claim may be considered by the jury as bearing upon the validity of her alleged claim and her good faith in thereafter asserting it.</p> <p>“3. The plaintiff was bound to use reasonable care to prevent injury or damage to her person, and if' any injury which she may have received is attributable to herself in part, she cannot recover, although the defendant or its agent may have been negligent also.</p> <p>“4. The defendant’s agent, Bere, had a right to assume that the plaintiff would use reasonable care and vigilance to avoid being hurt, and if Bere was doing the work upon which he was engaged in the usual manner in which such work is ordinarily done, and had no notice or warning that the plaintiff was approaching the machine in such a way as to expose herself to danger by</p> <p>coming in contact with it, then any omission on his part to anticipate that the plaintiff was exposing herself to danger would not be negligence on his part.</p> <p>“5. In weighing evidence it is a safe rule for the jury first to consider to what extent such evidence is consistent with facts which are admitted or clearly proven in the opinion of the jury. The jury would be warranted in considering evidence which is inconsistent with admitted or clearly established facts as of less weight and as less worthy of credit than evidence which is consistent with such facts. And evidence which is equally consistent with two opposing claims is insufficient to prove either claim, and should be disregarded by you.</p> <p>“6. There is no evidence in this case that the plaintiff had the bridge or septum of her nose broken. I instruct you that the plaintiff’s statement that some doctor at the Massachusetts Homeopathic Hospital who has not been called told her her nose was fractured cannot be considered by you.</p> <p>“7. I instruct you that there is not sufficient evidence in this case to justify you in finding that the plaintiff’s septum was bent as a result of a blow or external violence.”</p> <p>The judge refused to make the rulings numbered one and seven, and dealt with the other rulings, especially with the ruling numbered six, in the manner described in the opinion. He submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $4,750. The defendant alleged exceptions.</p>

<p>Negligence, In use of wagon.</p> <p>If, at the trial of an action for personal injuries, there is evidence that the defendant, while trying to back a horse attached to a wagon, asked the plaintiff to help him, that the plaintiff in response to such request took hold of the spokes of the rear wheel and helped to move the wagon back, and that the defendant, although he saw the position of the plaintiff’s hands, without warning to the plaintiff then caused the horse to move forward, reversing the wheel and crushing one of the plaintiff’s hands, the- jury are warranted in finding that the plaintiff was in the exercise of due care and that the defendant was negligent.</p>

<p>Practice, Civil, Specifications, Nonsuit, Exceptions, Appeal. Pleading, Civil, Specifications. Conspiracy. Rules of Court.</p> <p>The ordering of particulars and specifications as to allegations in pleadings rests in the judicial discretion of the trial court and is not subject to review by this court unless there appears to have been an abuse of discretion.</p> <p>A finding of fact by a judge as a basis of an order that the plaintiff shall file specifications as to certain allegations in his declaration cannot be reviewed on exceptions where it appears that the finding was made in part in reliance upon statements of counsel which are not reported.</p> <p>Where it appears that the allegations of a declaration in an action of tort for damages due to fraud alleged to have been perpetrated by a number of defendants through a conspiracy are vague and indefinite, that some of the defendants filed motions for specifications as to such allegations, that before the hearing of such motions such defendants had been examined fully on the questions as to which specifications were asked at a hearing of a suit in equity by the same plaintiff against others of the defendants, that the judge after a hearing on the motion ordered the specifications asked for to be filed, that the plaintiff filed" irresponsive and insufficient specifications, that on motion of the defendants the judge under Rule 6 of the Superior Court ordered the plaintiff to comply with the previous order for specifications or to submit to a nonsuit, and that the plaintiff declined to file such specifications and stated in open court that he did not desire further time or opportunity for filing further specifications, it is a proper exercise of discretion for the judge to order the plaintiff nonsuited. The proper way to bring before this court the question, whether an order of a judge of the Superior Court nonsuiting a plaintiff for failure to obey a previous order directing him to file specifications to allegations in his declaration, was an abuse of judicial discretion, is by a bill of exceptions and not by an appeal.</p>

<p>Four actions of tort, the first two for personal injuries caused by the plaintiff, a minor, being run over by an automobile. The other two actions were by the mother of the plaintiff in the first two actions for consequential damages. Writs dated November 14, 1911.</p> <p>In the Superior Court the cases were tried together before Wait, J. The material facts are stated in the opinion. In each of the</p> <p>first two cases the jury found for the plaintiff in the sum of $4,000, and in each of the other two they found for the plaintiff in the sum of $2,250. The defendants alleged exceptions.</p>

<p>Probate Court, Accounts of administrator, Petition for distribution, Decree. Executor and Administrator. Res Judicata.</p> <p>A decree of the Probate Court, allowing a first account of an administrator from which it appears that certain sums were paid by him to the next of kin on account of their distributive shares and that there remained in his hands undistributed a large sum of money which at the hearing in the Probate Court was shown to be in great part made up of sums of money paid by the administrator to an adopted son of the intestate in return for his notes, does not prevent the other next of kin from showing, at the hearing of a petition for distribution afterwards filed, that the administrator after the allowance of the account agreed with the adopted son that the sums which had been paid to the son for his notes should be treated as advanced to him on account of his distributive share, such matters not being in any sense res judicata.</p> <p>Upon a petition in the Probate Court by an administrator for a decree of distribution, the function of the court is to decide, from an examination of the whole record and upon weighing all competent evidence, the exact amounts which each distributee should receive in order to make the distribution of the whole estate, including previous advancements, conform to the provisions of law and be just to all the parties in interest.</p> <p>Upon a petition by an administrator for distribution, the ascertainment with precision of the exact amounts which already have been paid or advanced to the next of kin on account of their distributive shares is a proper subject for inquiry and adjudication. Accordingly it is proper to show that the administrator, after having paid certain sums of money to an adopted son of the intestate in return for his notes, agreed with him that such sums should be treated as advancements, and that, when such sums were treated as advancements to the adopted son, he had received far more than his share of the estate, even if the whole amount remaining in the hands of the administrator were paid to the only other next of kin, the intestate’s daughter; and, such facts appearing, a decree ordering the distribution of all the assets to the daughter is warranted. „</p>

<p>Husband, and Wife. Fraud. Insolvency. Trust, Resulting. Equity Jurisdic-</p> <p>tion, Fraud as against creditors. Equity Pleading and Practice, Appeal. Evidence, Presumptions and burden of proof.</p> <p>In considering this suit in equity on an appeal from a decree made by a single justice who heard the case without oral evidence upon a stenographic report of evidence in another proceeding and certain exhibits, it was said, that there was no presumption in favor of the finding of the single justice and that, so far as the evidence was concerned, this court stood where he had stood when the decree was made.</p> <p>Statement by Rugg, C. J., of the principles of law which under the common law and St. 13 Eliz. c. 5 govern the conveyance of property by an insolvent husband to his wife in recognition of a trust, and which determine whether such conveyance is made with intent to defeat, delay and defraud creditors or is made in execution of a valid trust.</p> <p>In a suit in equity against a woman by the administrator of her husband’s estate, which was insolvent, to set aside certain conveyances made by the intestate to the defendant through an intermediary which were alleged to have been fraudulent against his creditors at common law and under St. 13 Eliz. c. 5, there was evidence which warranted findings that the defendant had received from her kindred by inheritance or legacies considerable sums of money from time to time, out of which she made advances to her husband; that he had invested some of the money so received in the purchase of a tract of land, the title to which was taken in his name; that the investment had proved to be profitable and he had invested its proceeds in two other parcels of land, again taking title in his own name; that he recognized the land as the defendant’s in each instance, and that, when insolvent, he conveyed the two last named parcels through an intermediary to the defendant. It did not appear that the intestate knew that he was insolvent when he made the conveyances. His debts were chiefly in connection with a large contracting and building firm of which he was a member, which at the time of his death had a number of unfinished contracts involving large sums of money. It did not appear but that, if he had lived, the profits on these contracts might have made the firm solvent. Held, that a decree dismissing the bill should be sustained, because findings were warranted that the conveyances in question were made bona fide in execution of resulting trusts, and were not made with intent to hinder, delay or defraud creditors.</p>

<p> Workmen’s Compensation Act. Proximate Cause. </p> <p>Upon an application of an employee that compensation under the workmen’s compensation act for actual incapacity for work should be continued beyond the date previously fixed, the Industrial Accident Board found that the employee’s “total incapacity for work on account of said personal injury will cease . . . [on a day named which was three days after the date of application] subject to the right of said employee to compensation on account of partial incapacity for work under § 10, Part II of the workmen’s compensation act, depending upon his ability to earn wages.” About six months later the employee filed a request for “a review of weekly payments as provided by § 12, Part III of the act,” and the Industrial Accident Board, after a hearing, found that the employee was "partially incapacitated for work” as the result of his original injury, and made an award of weekly compensation under St. 1911, c. 751, Part II, § 10 from a day named which was about four months after the cessation of the payments for his total incapacity for work, to continue so long as his partial incapacity for work should last, which was declared not to be determinable at that time. Held, that the board had jurisdiction to make this finding on the question which had been left open by their previous decision, and that the fact that there was an interval of six months during which all weekly payments had ceased did not prevent the decision of this open question when the request under the statute for a review was made by the employee. Held, also, that there was no error in making the weekly payments awarded by the board begin two months before the date of the filing of the request for a review, such a retroactive award being within the lawful power of the board.</p> <p>Where under the workmen’s compensation act an employee had been awarded compensation for total disability during a certain period by reason of a slight injury to his eye, and where upon a request for a review of weekly payments under St. 1911, c. 751, Part III, § 12, it was found by an arbitration committee that, although the employee had recovered completely from the injury so far as his eye itself was concerned, “the injury to the eye caused a nervous upset and a neurotic condition which is purely functional,” and the Industrial Accident Board found that the employee was “partially incapacitated for work by reason of a condition of hysterical blindness and neurosis, said condition having a causal relation with the personal injury,” and these findings were warranted by the evidence, the Industrial Accident Board properly may make an award to the workman under St. 1911, c. 751, Part II, § 10, on account of partial incapacity for work.</p>

<p>Practice, Civil, Exceptions, Amendment of record. Rules of Court. Bills and Notes. Religious Society.</p> <p>Rule 64 of the Superior Court, providing that where “bills of exceptions have been filed and remained without action for three months, the clerk shall forthwith notify the parties interested that unless within thirty days thereafter the bill of exceptions is presented to the presiding justice for allowance, it will be dismissed and judgment will be entered as though no exceptions had been filed,” has no application where a bill of exceptions was presented to the judge and a hearing was had thereon within the time allowed by an order of extension, although the excepting party failed to file an amended bill within a time orally agreed upon with the judge at the hearing which was after the day named in the order of extension, because the judge must be considered to have the allowance of the bill still under consideration.</p> <p>If, in such a case, the clerk of court, without any preliminary warning notice to the parties, enters a judgment on which execution is issued, upon a motion of the excepting party an order will be made that the record shall be amended by striking out all matters relating to the judgment and the issuing of execution, such entries having been made by the clerk without authority.</p> <p>A court of record has ample power to correct mistakes in its records by ordering the striking out of entries made by the clerk of the court; without authority.</p> <p>Where a promissory note, which was given in the name and behalf of an incorporated religious society to the pastor of the society for back salary, was signed by the treasurer and clerk of the society and by eight persons described as deacons, of whom five were deacons and the other three were subdeacons, and where it appeared that the whole number of deacons was seven, that by the by-laws of the society its board of deacons had extensive powers as to its business affairs, and that a vote of the society authorized such a note to be signed by its board of deacons, it was held, that the signing by a majority of the board of deacons, in addition to the signatures of the society’s treasurer and clerk, was sufficient to bind the society, the signatures of the three sub-deacons being immaterial and having no effect to diminish the binding force of an execution by a majority of the deacons.</p>

<p>Bill in equity, filed in the Supreme Judicial Court by the trustee under the will of Albert Anderson, late of Boston, for instructions as to the proper distribution of the income of the . trust fund.</p> <p>The case came on to be heard before Braley, J., who reserved it upon the bill and answers for determination by the full court of the questions which are stated in the opinion.</p>

<p>Practice, Civil, New trial, Mistrial, Secret instruction. Words, "Pleading or procedure.”</p> <p>Where a judge, who had presided at a trial, sent from the lobby of the court to the jury in their retiring room, without the knowledge of the counsel on either side, an answer in writing to a question in writing from the jury and with his answer sent a statement that the question and the answer were immaterial, and where nothing was known in regard to the substance or the nature of the question or the answer except that in the opinion of the judge they were immaterial to any issue submitted to the jury, this was held to constitute a mistrial and to require that a verdict returned by the jury after the communication was received by them should be set aside.</p> <p>The giving of such a secret instruction is an error of substance in regard to an essential feature of trial by jury and is not a “matter of pleading or procedure” within the meaning of St. 1913, c. 716.</p>

<p>Negligence, In building in process of construction, In operating elevator, Licensee. Elevator. Agency. Practice, Civil, Exceptions, Rulings and instructions.</p> <p>In an action against the lessee of a hotel for injuries sustained by an employee ' of a subcontractor, when the defendant had taken at least partial possession of the hotel under his lease and was getting it ready to open to the public and the general contractor was putting on the finishing touches, from an ele- • • vator operated negligently by one of the defendant’s elevator boys descending . on the plaintiff as he was working in the elevator well underneath it, where there is evidence that the general contractor had requested that the defendant’s elevator boys might be at the building on the day that the accident happened for the use of the contractor and subcontractor in putting the finishing touches on the building, and where there also is evidence that the elevator that crushed the plaintiff was being operated at the time to carry employees of the defendant for the purpose of performing their work as such employees, the question whether the negligent elevator boy at the time of the accident was in the employ of the defendant is for the jury.</p> <p>The refusal of the presiding judge at the trial of an action of tort for personal injuries to make a ruling which is not applicable to the evidence affords no ground for exception, even when the ruling thus requested is correct as an abstract proposition of law. In the present case the abstract soundness of the ruling thus requested and properly refused was open to grave doubt.</p> <p>Where the general contractor for the construction of a hotel and one of the subcontractors are putting on the finishing touches and the lessee of the hotel is at least in partial possession of it, being engaged in installing its furniture and supplies and getting if- ready to open to the public, an employee of the subcontractor, who is working in the well of .one of the elevators of the hotel engaged in making the hotel suitable for occupancy, is not a mere licensee of the lessee of the hotel but is rightfully at his post and the lessee owes him the duty not to injure him negligently.</p> <p>Such employee of the subcontractor does not assume as matter of law the risk of being crushed by reason of the negligence of an elevator boy of the lessee who is operating an elevator above the part of the elevator well where such employee of the subcontractor is working.</p>

<p>Way, Public: extent of easement. Washington Street Tunnel. Easement. Damages, For property taken or impaired under statutory authority. Constitutional Law.</p> <p>The public easement of travel in city streets, the fee in which is owned by the owners of the adjacent land, permits the construction by the public authorities of subways and tunnels for public travel beneath the surface of the street without the giving of compensation to the landowners beyond that which was given when the street originally was laid out; and the exercise of such right a long time after the original laying out of the street infringes no constitutional right of the landowner.</p> <p>The owner of land beneath a public street has a right to use such land in any way not inconsistent with the public easement of travel; but, even a long time after the street originally was laid out, the public, without paying to the landowner any compensation beyond what he was paid when the street was laid out, may construct a subway or tunnel beneath the street for the purposes of public travel although thereby the owner is deprived of all use of the land.</p> <p>Neither at common law nor by St. 1902, c. 534, § 8, has the owner of land on Washington Street in Boston, where none of his land was taken, any right of compensation for damage caused by the building of the Washington Street tunnel in the half of the street of which he owned the fee subject to the public easement of travel, although he was caused expense by being required to remove boilers and other structures placed by him beneath the street and was deprived of further use of his land beneath the street.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on August 27, 1914, seeking to compel the defendant corporation and its officers to permit the plaintiff to inspect its stock and transfer books.</p> <p>The Tennessee Natural Development Company, seeking the same relief, was allowed to intervene.</p> <p>The case was heard by Hammond, J. The following facts were found by him:</p> <p>The counsel for the defendants contended that the order prayed for in the original petition should not issue because, as they contended, the plaintiff was not a stockholder of the defendant company, and because his motive in asking for an inspection of the stock and transfer books of the company was an improper one. They also contended that the order prayed for by the intervening petitioner should not issue because, as they contended, the intervening petitioner was a corporation dominated and controlled by the plaintiff Powelson, and that it was seeking to acquire the information asked simply in order that Powelson might make use of it.</p> <p>“It was contended, as alleged in the defendants’ answer, that by reason of previous litigation between the petitioner and this company, as detailed in the answer, the bill was brought for the purpose of spite and revenge. It was orally contended by counsel for the defendants, who offered to show the same, that the bill was also brought with the intent to injure the defendant Warner and his partners in their standing with their customers, who were the purchasers of practically all of the preferred stock of the defendant company.</p> <p>“It was admitted by the counsel for the defendants that the defendant company is a Massachusetts corporation with an authorized capital stock of 22,500 shares of the par value of $100 each; that of an authorized issue of 7500 shares of preferred stock of a par value of $100 each, 6000 shares have been issued and sold by Warner, Tucker & Company to about two hundred of their customers, who still hold the same; that of an authorized issue of 15,000 shares of common stock of the par value of $100 each, 13,400 shares have been issued; that the intervening petitioner was the owner, on the books of the company, of 10 shares of the common stock of the defendant company, for all of which it had paid full value; that, except for these 10 shares, all the common stock of the defendant company stood on the books of the defendant company in the name of three voting trustees, in accordance with the terms of the voting trust agreement* annexed to the answer; that the plaintiff was one of said voting trustees of this common stock, and the owner of 3745 voting trust receipts of the par value of $100 each, for all of which he had paid full value, and that these voting trust receipts represented the beneficial interest in 3745 shares of the common stock of the defendant company; that separate demands in behalf of the plaintiff and the intervening petitioner were duly made at the office of the company, during business hours, to inspect the stock and transfer books of the company by persons duly authorized thereto by them, and that both such demands were refused.</p> <p>“The counsel for the defendants further stated that the defendants were perfectly willing that the plaintiff and the intervening petitioner should inspect the stock and transfer books containing a complete list of all stockholders, with their residences and the amount of stock held by each, providing that they would not make or take away any copies thereof.</p> <p>“Upon consideration of the matter,and notwithstanding all that had been said by the counsel for the defendants, which I understood to be, in substance, — that by reason of previous litigation and trouble between Powelson and this company, Powelson desired to change the administration of the company, and desired the prayers of the bill granted for that purpose, which the counsel for the defendants thought an improper motive, and that Powelson further desired it for the purpose of spite and revenge, — I ruled that both the plaintiff and the intervening petitioner should have the right to make the inspection prayed for, and that, if they could not hold what they found by the full force of memory, they should have the right to such aids in the way of written memoranda as they required.”</p> <p>The single justice reported the case to the full court for determination.</p>

<p>Trust, Construction. Equity Jurisdiction, Bill for instructions. Will. Stare Decisis. Res Judicata.</p> <p>The decision in Sherburne v. Sischo, 143 Mass. 439, affirmed.</p> <p>Where, about twenty-eight years ago in a suit in equity by the trustee under a certain will, in which instructions were sought as to the meaning of a certain clause of the will and all living persons beneficially interested had had an opportunity to be heard and a guardian ad litem for persons who were not in being and who might become interested had appeared and contested, this court rendered a decision which has been acted upon by the trustee and his successor in a number of payments under the clause in question and has been followed and cited in later decisions of this court in other suits, such decision should not be reversed nor modified in another suit in equity by a succeeding trustee under the same will for instructions as to the meaning of the same clause. Whether all the parties in the present suit were represented in the former suit in such a way that the decision and decree in the former suit made res judicata the issues raised in the present suit, was not determined, this court preferring to rest its decision in the present suit upon the soundness in principle of the previous decision.</p> <p>Where an absolute estate is given by a paragraph of a will in clear and unmistakable language, it cannot be cut down to a less estate by subsequent words in the same paragraph inconsistent therewith. Such subsequent words are treated as of no effect.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 20, 1914, by the same corporation which was the plaintiff in Merchants Legal Stamp Co. v. Murphy, ante, 281, to restrain the defendant from transferring, buying, selling, dealing in or in any manner possessing or disposing of the plaintiff’s trading stamps or trading stamp books.</p> <p>The defendant’s answer, among other matters, alleged that the plaintiff was maintaining an unlawful monopoly and that the contracts sought to be enforced by it were in restraint of lawful competition under St. 1908, c. 454, § 1.</p> <p>The case was referred to Franklin T. Hammond, Esquire, as master, to whom the previous case mentioned above also had been referred. The only difference between the facts in this case and those in the previous case is pointed out in the opinion.</p> <p>The case was heard by Sheldon, J., upon the defendant’s exceptions to the master’s report. The justice made an interlocutory decree, ordering that the defendant’s exceptions be overruled and that the master’s report be confirmed. Later by order of the same justice a final decree was made ordering that the defendant be “enjoined from transferring, buying, selling, dealing in, or in any manner possessing or disposing of the plaintiff’s legal stamps or stamp books without the plaintiff’s consent; and the defendant is directed to deliver to the plaintiff all legal stamps and stamp books belonging to the plaintiff now in the defendant’s possession or control; and that the defendant pay to the plaintiff the sum of $1, as nominal damages, suffered by the plaintiff in the premises, and the sum of $18.46 as costs of suit, and that execution issue therefor.” The defendant appealed.</p>

<p>Boston Police Relief Association. Corporation, By-laws.</p> <p>The provision of St. 1882, c. 78, amending the charter of the Boston Police Relief Association by authorizing an extension to retired members of the police force of the benefits to accrue upon the death of its members or of their wives, was permissive and allowed but did not compel the extension of the privilege.</p> <p>Action by that association, at the same meeting at which it accepted the provision of the statute by amending its by-laws so as to permit those who had retired from the police force to continue their membership in the association, in voting to amend a by-law which formerly had provided that upon the death of the wife of a member the board of directors should cause a certain sum to be paid to the member, so that it read that “the board of directors, with the approval of the finance committee” should do so, was within its power under its charter and by-laws.</p> <p>That by-law as thus amended means that the determination of the question whether such benefit shall be paid depends upon the direct affirmative sanction of the finance committee. While the finance committee in exercising the power so given to them would not be justified in acting in a whimsical or capricious manner in refusing sanction to the payment of the benefit, a refusal by them to authorize the payment of that benefit to any members who have retired from the police force is within their powers, and cannot be called whimsical or capricious.</p>

<p>Police, Retirement. Civil Service. Police, District and Municipal Courts.</p> <p>Under St. 1911, c. 624, giving to “every person now holding or hereafter appointed to an office classified under the civil service rules of the Commonwealth,” excepting the district police and members of the police departments of the metropolitan park commission and of Boston, “who is removed therefrom, lowered in rank or compensation, or suspended, or without his consent transferred from such office or employment to any other,” a right, within ten days after the hearing provided for by St. 1904, c. 314, § 2, as amended by St. 1905, c. 243, to bring a petition in the police, district or municipal court within the district where he resides for a review of the action complained of, the Police Court of Somerville has jurisdiction to hear and determine a petition by a captain in the police department of that city for a review of the action of the mayor and aldermen in retiring him from active service and placing him on the pension roll at half pay under St. 1903, c. 428, as amended by St. 1909, c. 188.</p>

<p> Warehouseman. Act of God. Tide. Bailment. Proximate Cause. </p> <p>An act of God, such as will relieve a warehouseman or bailee from liability for damage to or the destruction of goods entrusted to his charge for hire, may be defined as the action of an irresistible physical force not attributable in any degree to the conduct of man and not in reason preventable by human foresight, strength or care. By Rugg, C. J.</p> <p>It cannot be ruled as matter of law that damage to goods stored in sheds of a warehouseman fronting on tidewater, which was caused by an extraordinarily high tide, was the result of an act of God, if the exercise of the ordinary prudence, foresight, care and skill reasonably to have been expected from a warehouseman in the performance of his duty would have prevented the damage.</p> <p>In an action by the owner of certain wool for its damage by salt water in 1909 when stored in the warehouse of the defendant on the water front of Boston at the time of the highest tide that had risen in Boston Harbor for nearly sixty years, where it appeared that the tide that caused the damage rose to the height of fifteen and six tenths feet above Boston base, which was about two thirds of a foot below mean low tide, there was testimony of experts that before the tide that caused the damage the minimum height for the storage of wool near tide water was fifteen and six tenths feet above Boston base, and there was evidence that in a great storm in 1898 two of the three sheds of the defendant in which the plaintiff’s wool was damaged were flooded by a tide that rose to a height of fourteen and ninety-four one hundredths feet, that thereafter the floors of these sheds were raised but that they afterwards had settled so that when the plaintiff’s wool was injured there were places in each of the sheds as low as fourteen and ten one hundredths feet, fourteen and twenty-four one hundredths feet and fourteen and forty one hundredths feet above Boston base, that these levels were lower than the recorded heights of a number of previous tides, that records of the tide heights in Boston Harbor were available in the city engineer’s office, had been published in that officer’s reports for a number of years and had been referred to in other public records. Held, that there was evidence for the jury of negligence on the part of the defendant in the performance of its contract as warehouseman or bailee of the wool.</p> <p>A wool dealer by storing wool for a number of years in the sheds of a warehouseman on the water front of Boston, without objecting to the level of the floors of the sheds, does not assume the risk of damage to the wool from an unusually high tide, damage from which could be avoided by raising the floor level of the sheds or making them to some degree waterproof, such dealer having the right to assume that the warehouseman will perform his duty by using due care for the safety and protection of the goods stored.</p> <p>A dealer, who stored with a warehouseman certain goods which were damaged by reason of negligence on the part of the warehouseman, in an action at common law against the warehouseman for such damage to the goods cannot recover for damage to a part of the goods which, when they were fully identified by definite marks, were sold by him to a customer before the damage occurred, the bailor having no relation of trust toward the buyer.</p>

<p>Three petitions, filed in the Supreme Judicial Court on November 14, 16, and 18, 1914, each by a trust company maintaining a savings department, against the Commonwealth for the abatement of a tax or excise alleged to have been assessed unlawfully by the tax commissioner under St. 1909, c. 342, as amended by St. 1911, c. 337.</p> <p>Each of the cases was heard by Loring, J., who reserved it upon the pleadings and an agreed statement of facts for determination by the full court.</p> <p>St. 1911, c. 337, is entitled “An act relative to the taxation of deposits in the savings departments of trust companies.” Section 1 is as follows: “The tax imposed by section one of chapter three hundred and forty-two of the acts of the year nineteen hundred and nine shall apply only to such of the deposits therein designated as do not exceed in amount the limits imposed upon deposits in savings banks by section forty-six of chapter five hundred and ninety of the acts of the year nineteen hundred and eight and acts in amendment thereof and in addition thereto.”</p>

Tort for personal injuries sustained by the plaintiff on February 13, 1911, when he was a passenger in a street railway car operated by the defendant on Boylston Street in Boston. Writ in the Municipal Court of the City of Boston dated March 22, 1911. On appeal to the Superior Court the case was tried before Law-ton, J. The plaintiff’s evidence is described in the opinion. The witness Carmichael was a police officer.

<p>Opinion of the Justices. Constitutional Law. Labor. Contract, Validity.</p> <p>An opinion of the justices of this court given under c. 3, art. 2 of the Constitution upon the constitutionality of a proposed statute, being purely advisory, is not binding as a precedent, and, when the constitutionality of a similar statute after its enactment is contested before this court in a controversy between the parties to an action, the question is to be treated as an open one.</p> <p>The Legislature acting as the representative of the Commonwealth and its governmental subdivisions may determine as an employer the number of horns that shall constitute a day’s labor for all those with whom the Commonwealth or any such subdivision makes contracts of employment.</p> <p>The provision of St. 1899, c. 344, that eight hours shall constitute a day’s work for all laborers, workmen and mechanics employed by or on behalf of any city or town in this Commonwealth that accepts the act, does not make invalid a contract of a fireman of a pumping station of the water department of a city that had accepted the act with the water commissioner of the city to work ten hours each day of the week for $16 a week.</p> <p>A contract in writing, made by a fireman of a pumping station of the water department of a city that had accepted St. 1899, c. 344, with the water commissioner of the city to work ten hours each day of the week for $16 a week, is a valid and binding one, which is a defence to an action by such fireman against the city to recover on a quantum meruit compensation for services as fireman in excess of eight hours a day which he was required to perform by the terms of his contract.</p> <p>It seems, that under the Fourteenth Amendment of the Constitution of the United States the constitutionality of a statute which should undertake to annul a contract of a workman or mechanic to work more than a certain number of hours in a day would be open to grave doubt.</p>

Conteact by the beneficiaries named in a benefit certificate issued by the Supreme Council of the Home Circle (hereinafter called the Home Circle), a Massachusetts fraternal beneficiary corporation, to one William C. Ulman, the action being brought against the Supreme Commandery of the United Order of the Golden Cross (hereinafter called the Golden Cross), a fraternal beneficiary corporation organized under the laws of the State of Tennessee and authorized to do business in…

Three bills in equity, filed in the Supreme Judicial Court, the first on October 10 and the second and third on October 20, 1913.

<p>Bills and Notes, Alteration, Incomplete instrument, Holder in due course. Assignment. Fraud. Pledge. Estoppel. Equity Jurisdiction.</p> <p>Whether, where the maker of two promissory notes delivers them, with a blank space in each of them where the name of the payee should be, to one who fraudulently alters one of them by raising its amount and the other by raising its amount and changing its date, and then, at periods about a year and a half apart, negotiates them for value to a purchaser who, after he receives such notes, in good faith inserts his own name as payee, such purchaser can be considered a holder in due course entitled to enforce the notes under R. L. c. 73, § 141, according to their original tenor, or whether he is affected with notice so that he cannot enforce them for any amount, was not determined in this suit, where the maker did not object to paying the notes according to their original tenor and did not appeal from a decree to that effect.</p> <p>The maker of two notes when he signed them left blank the place for the payee’s name and delivered them in that condition to one who was to procure for him a loan amounting to the face value of the notes, at the same time delivering as security a policy of insurance upon his life and an absolute assignment thereof in which the place for the assignee’s name was left blank. The person to whom the notes thus were delivered fraudulently altered one by raising its amount • and delivered it with the policy and the assignment to a creditor of a third person in part payment of the third person’s debt. A year and a half later he altered the second note by changing its date and raising its amount and stating on its face that it was secured by the same policy as was the first and delivered it to the same person for cash. The person to whom the notes and the policy were delivered afterwards wrote his own name into the blank places. In a suit in equity by the maker against the holder of the notes and of the policy and assignment a decree was entered with the consent of the maker that upon payment of the notes according to their original tenor they and the policy and assignment should be delivered to him. The defendant alone appealed. Held, without deciding whether the defendant had any right to hold the security at all, that he was not a purchaser for value of the first note and certainly had no right to hold the policy as security for more than the value of the first note according to its original tenor.</p> <p>It also was held that the mere fact that, when the insured executed the assignment of his policy and delivered it to the fraudulent person, he left a blank where the name of the assignee should have been written, did not estop him from showing the real authority of the fraudulent person, because the uncompleted notes and assignment were sufficient to put the defendant upon inquiry as to the authority of the person who delivered them to him, and inquiry would have disclosed the fraud.</p>

Bill in equity, filed, in the Superior Court on November 13, 1913, and afterwards amended, against Helen S. Sargent, the Connecticut Mutual Life Insurance Company, and Emery B. Gibbs and Atherton N. Hunt, executors of the will of George E. Williams, alleging in substance that the plaintiff in April, 1909, delivered to Williams as general agent of the defendant company two notes, each for $250, payable to the order of the defendant company in one year from their date, and, to…

Contract by an attorney at law against a former client upon an account annexed consisting of three items, the first of which was for $1.20 paid to the clerk of the United States Circuit Court of Appeals in Oregon.

<p>Devise and Legacy. Words, “Legal heirs,” "Convey, assign and transfer.”</p> <p>A testator left all his real and personal property in trust, to pay his widow one third of the net income during her life, and to pay the remaining two thirds of the net income and after the death of his widow the whole of it to his three daughters named in equal shares, “and after the death of one or more of them to pay over the proportion of said net income to which such deceased would have been entitled if living to the legal heirs of such deceased: and upon the death of my wife and of all my said daughters to convey, assign and transfer all my said real and personal property to the legal heirs of my said daughters in equal proportions by right of representation to have and to hold to them their heirs and assigns forever.” The testator’s widow waived the provisions of his will. The testator’s three daughters died one after another, two unmarried and the other leaving a husband and children. Last of all the testator’s widow died. One of the unmarried daughters of the testator was also the daughter of his widow. His other two daughters were by a former marriage. On a bill for instructions as to the final distribution of the trust fund, it was held, that the “legal heirs” of the testator’s daughters to whom the distribution was to be made were their respective heirs at the times of their respective deaths, that the words "convey, assign and transfer” did not show an intention of the testator to postpone the vesting of the remainders until the time of distribution but referred merely to the time when the donees would become entitled to possession; and that the fact that the testator’s widow had waived the provisions for her benefit in his will did not prevent her from taking her share as the legal heir of her daughter.</p>

<p>Negligence, Invitation, In maintaining common stairway.</p> <p>In an action, against the person in control of a building and of its common stairways which were used by his tenants occupying different portions of the building, for personal injuries caused by a defect in a back stairway which the plaintiff was descending, after having made some purchases at a meat market on the street floor of the building, when she was returning the same way she came by going down the back stairs to the ground that formed the floor of the basement of the building, where the only questions in dispute were whether the plaintiff had been invited to use the rear entrance instead of that from the street in going to and returning from the market as a customer and whether the proprietor of the market had authority from the defendant to give such an invitation, there was evidence that the proprietor of the market was a tenant at will of the defendant and paid rent from month to month, that in the spring preceding the month of July in which the accident happened this tenant with the knowledge of the defendant had put a canvas sign bearing his name and the words "provisions and groceries ” on the building near the rear entrance, although this sign afterwards was blown down and was not replaced, that from the beginning of his tenancy to the time of the accident a number of his customers went to and came from his market on every week day by means of the rear entrance, that the defendant’s agent, who collected the rent monthly, "was on the premises frequently and could see what was going on,” and that the rear entrance was over a common stairway in the control of the defendant which was maintained by him for the use of all his tenants. Held, that a jury could have found that the plaintiff at the time she was injured was using the stairway by invitation, that the defendant knew of the use which his tenant’s customers were making of the rear entrance from the time the tenancy began, and that such use was contemplated by the defendant under the original letting, so that the defendant could be held liable to the plaintiff for any neglect of proper precautions to keep the stairway in as good condition as it was in, or had appeared to be in, at the time of the letting.</p>

<p>Practice, Criminal, Exceptions. Intoxicating Liquors. Evidence, Competency, Admissions and confessions.</p> <p>Upon exceptions alleged by a defendant convicted under R. L. c. 100, § 1, on a complaint for keeping intoxicating liquors with intent to sell them unlawfully, where at the trial the presiding judge properly had allowed the Commonwealth to show an unlawful transportation and delivery by the defendant of the intoxicating liquors in question in a town in which licenses of the first five classes were not granted in violation of R. L. c. 100, § 49, as amended by St. 1912, c. 201, for the purpose of proving by this and other evidence a sale of the liquors by the defendant and consequently a keeping of them by him with intent to sell them unlawfully, a statement in the bill of exceptions, that “ the case was prosecuted under section forty-nine of chapter one hundred of the Revised Laws as amended by chapter two hundred and one of the Acts of 1912,” is only correct in the sense that a violation of § 49 as amended constituted a part of the evidence and gives the defendant no right to base an argument on the contention that he was convicted of a violation of that statute.</p> <p>At the trial of a complaint under R. L. c. 100, § 1, for keeping intoxicating liquors with intent to sell them unlawfully, evidence that certain packages in the possession of the defendant were marked “Ale and Porter” is competent to show that the packages contained those liquors.</p> <p>At the trial of a complaint under R. L. c. 100, § 1, for keeping intoxicating liquors with intent to sell them unlawfully, ale and porter by § 2 of the same chapter are to be deemed intoxicating liquors.</p> <p>At the trial of a complaint under R. L. c. 100, § 1, for keeping intoxicating liquors in a certain town with intent to sell them unlawfully, where there was evidence that the defendant was engaged in carrying on a general express business under the name Interstate Express Company, and that the intoxicating liquors in question were shipped from Providence in the State of Rhode Island by a Providence express company and were consigned to the Interstate Express Company, a bill of lading issued by the shipper to the Providence express company, containing the names and addresses of four persons other than the defendant, opposite each of which were written in figures certain quantities of liquor, was admitted in evidence by the presiding judge as tending to show that the intoxicating liquors were at the time of the alleged offence in the town in which they were alleged to have been kept with unlawful intent, the judge instructing the jury that the bill of lading by itself had no tendency to show that the liquors were in the possession of the defendant. Held, that the bill of lading was admitted properly for the purpose to which it was limited.</p> <p>In the same case a freight receipt for the intoxicating liquors in question signed “Interstate Express Co. by” certain initials was admitted in evidence. There was evidence that a person whose initials were signed to the receipt was an employee of the Interstate Express Company and took the packages of liquors from the Providence express company. Held, that this receipt, in connection with other evidence, was admissible to show that the liquors came into the possession and control of the defendant.</p> <p>At the trial of a complaint under R. L. c. 100, § 1, for keeping intoxicating liquors in a certain town with intent to sell them unlawfully, the Commonwealth for the purpose of showing the defendant’s unlawful intent sought to show that he had violated R. L. c. 100, § 49» as amended by St. 1912, c. 201, in regard to the transportation of intoxicating liquors in towns in which licenses of the first , five classes were not granted. There was evidence that at the time of the alleged offence the defendant was engaged in carrying on a general express business and that while doing so he kept a book such as was required by the statutes last mentioned in case the town in question was a no-license town. This book, which was put in evidence, was marked with the name in which the defendant carried on the express business and certain pages material to the case were headed “Liquor shipments delivered at no-license cities and towns in Massachusetts.” Held, that, although this evidence was not competent to prove directly that the town in question was a no-license town, because that could be proved directly only by a record of the vote of the town, yet the evidence was admissible as an admission by the defendant that the town in question was a no-license town and that he had delivered liquor there.</p> <p>Upon a complaint under R. L. c. 100, § 1, for keeping intoxicating liquors in a certain town with intent to sell them unlawfully, evidence, which warranted a finding that the defendant in violation of R. L. c. 100, § 49, as amended by St. 1912, c. 201, made a delivery of the intoxicating liquors in the town in question which under the terms of that statute must be deemed to have been a sale, is evidence that he kept the liquors illegally.</p>

Petition, filed in the Supreme Judicial Court on December 26, 1914, for permission to be examined for admission to the bar as an attorney at law in this Commonwealth. By an order of court the petition was referred to the board of bar examiners to report thereon to the court.

<p>Bill in equity, filed in the Probate Court of the county of Middlesex on November 13, 1911, by the executor of the will of Adeline L. Nickerson for instructions as to the disposition to be made by him of a certificate for ten shares of the preferred stock of the American Agricultural Chemical Company, a corporation established under the laws of the State of Connecticut, held by him as executor and claimed by the defendant as a gift made to her by the testatrix in her lifetime.</p> <p>The Probate Court made a decree that no gift of the shares of stock had been made to the defendant and that the shares were assets of the estate in the hands of the plaintiff. The defendant appealed.</p> <p>The appeal was heard by Loring, J., who made certain findings of fact which are stated in the opinion, and at the request of the parties reserved the case for determination by the full court upon the findings made by him.</p>

<p>• Bill in equity, filed in the Supreme Judicial Court on April 7,. 4914, by the trustee under the will of John W. Leighton, late of Brookline, seeking instructions as to whether the interest of the defendant Fannie Leighton Luke under the clause of the will quoted below passed to the trustee in bankruptcy of her estate.</p> <p>. The clause of the will in question was as follows :</p> <p>“Second: I give, devise and bequeath to the Boston Safe Deposit and Trust Company, a corporation duly established under .the laws of the Commonwealth of Massachusetts and located at Boston, in said Commonwealth, the sum of Seventy-five Thousand Dollars in money, but in trust nevertheless, to invest, hold, re-inv.est and.manage the same separate and apart from all other property held by it in trust, and pay over the net income and principal, thereof, as,follows:</p> <p>“ (1) The whole of the net income thereof to be paid my adopted daughter, Fannie Leighton Luke, wife of Otis H. Luke, of said Brookline during her life quarterly in each and every year together with such portion of the principal of said trust fund as shall make the amount to be paid her at least Three Thousand Dollars a year during her life, said income to be free from the interference or control of her creditors.”</p> <p>The testator died in 1897. Fannie Leighton Luke was adjudicated a bankrupt on December 3, 1913.</p> <p>The case was reserved by De Courey, J., for determination by the full court.</p>

<p>Assignment, For benefit of creditors. Contract, Construction. Insolvency.</p> <p>Where one has possession of machinery under agreements in writing in the nature of leases or license agreements which among other things provide that, “if the lessee . . . executes any . . . assignment for the benefit of his creditors ... all leases or licenses to use machinery then existing . . . shall at the option of the lessor cease and determine, and the possession ... of all machinery the leases or licenses of which are so terminated, shall thereupon revest in the lessor free from all claims or demands whatsoever,” and also provide that, upon the termination of the leases or agreements, the lessee shall become liable to pay certain return charges and charges for repairs and cartage, if the lessee or licensee makes an assignment for the benefit of his creditors which provides that debts provable thereunder are such as are provable under the insolvency laws of this Commonwealth, and thereafter the lessor or licensor exercises his option and retakes possession of the machines from the assignee and assents to the assignment, the claim of the lessor or licensor for the return charges and charges for repairs and cartage are not claims which he has a right to prove against the estate in the hands of the assignee, because they were not debts “absolutely due” under R. L. c. 163, § 31, at the time of the assignment.</p>

<p>Tort against an' attorney at law for damages alleged to have resulted from negligence on his part in conducting and trying of an action by the plaintiff against the Moore Spinning Company under the employers’ liability act. Writ dated February 17, 1908.</p> <p>In the Superior Court the case was tried before McLaughlin, J. There was evidence that the plaintiff was injured on March 29, 1905, while in the employ of the Moore Spinning Company, that shortly thereafter he consulted the defendant and placed in his hands a claim against his employer for damages resulting from his injury, and that the defendant then informed him that he had a good cause of action. The evidence available to the defendant as attorney for the plaintiff at the trial of his action against his employer is described in the opinion.</p> <p>Just before the close of the plaintiff’s evidence in the action against his employer, the present defendant in writing requested the attorney for the employer to produce the employer’s statutory notice. The employer’s attorney denied that the employer had received any notice. The present defendant then made the following statement to the presiding judge: “In regard to the notice here, we don’t find any copy of any notice among our papers. We keep our notices separate, and I telephoned to the office for it and I have sent my girl over and she has telephoned that she hasn’t found any yet. We have changed our office. Since moving my office the papers have got mixed up there. Some papers have got out of place and the notices are put in one place or supposed to be. The girl has telephoned that she hasn’t found it yet in the envelope with the number on it and with the correspondence that ought to be there. She hasn’t found it yet. I can make a motion for a new trial.”</p> <p>Thereupon the presiding judge ordered a verdict for the defendant, making the following statement to the jury: “In this class of cases, namely, cases under the employers’ liability act, a notice is required to be given by the person injured to the employer, the defendant, within sixty days. Mr. Fuller states to me that he is unable to prove that notice. There is nothing that can be done except to direct you to return a verdict for the defendant. I am sorry to have the case end in that way, but there is nothing that can be done except to direct you as I am doing. You will accordingly return a verdict for the defendant.”</p> <p>At the trial of the present action, the defendant “testified that he was familiar with cases of this kind and knew that a notice was a condition precedent to recovery therein; and that he drew the declaration with care; that his brother, William J. Fuller, who had been associated with the him for several years before his death, had told the defendant that he went to North Chelmsford and served a notice on the Moore Spinning Company within the time required for serving such notices; but that his brother shortly before the trial of the case against the Moore Spinning Company had died suddenly and that the defendant was unable to say whether the paper purporting to be the notice of the time, place and cause of the injury to the plaintiff was the notice served upon the Moore Spinning Company; that at the time of the trial of the case he was unable to identify the notice as the one served upon the defendant. The defendant further testified that on returning to his office on the day of the trial he talked with one Mr. Dewey, who was at that time in his office and through him expected to prove or identify the notice, and made a motion for a new trial but, on finding that it was impossible to identify the notice as the one served upon the defendant, the motion was not presented for hearing; that the defendant made a demand on the counsel for the Moore Spinning Company to produce all papers in his possession or in the possession of the insurance company who insured the Moore Spinning Company for the purpose of finding some evidence of the service of the notice on the Moore Spinning Company, but that there was no notice found in the papers.</p> <p>The circumstances of the exclusion, subject to an exception by the defendant, of the deposition of the witness Bean are described in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. There is not sufficient evidence to justify a verdict for the plaintiff.</p> <p>“2. If the jury find that the plaintiff at the former trial could have proved that the statutory notice had been given except for the fact of the death of the brother of the attorney for the plaintiff, the jury must return a verdict for the defendant unless they find that the defendant in this case was negligent in not anticipating and providing against the death of his brother.</p> <p>“3. If the jury find that it was a rule for the employees of the Moore Spinning Company that warning should be given to all employees at work on the machine before starting the machine and it was the custom to give such warning, and if they find that no warning was given by the Lavalle girl or, if given, was given in such a low tone that it was impossible for the plaintiff to have heard it, the plaintiff cannot recover.</p> <p>“4. If the jury find that Ogley did give the order to start the machine up and it was the ordinary and usual custom for the girl when she did start the machine to call out in a tone loud enough to be heard by every employee at work on the machine, and if she did not give such warning, the plaintiff cannot recover.</p> <p>“5. Upon the evidence the jury must find that it was customary on starting the machine upon which the plaintiff was hurt, that the girl was to call out sufficiently loud as a warning for the operatives to hear, including the plaintiff.”</p> <p>“7. It was not the duty of the defendant to hunt up the plaintiff’s witnesses or personally see to it that they were in court.</p> <p>“8. It was the duty of the plaintiff or his father to have such witnesses in cóurt as they knew or might have known were material in the proving of the plaintiff’s case, or such witnesses as this defendant notified them to have present in court.</p> <p>“9. If the plaintiff or his father knew that Harry Dolan was a material witness and did not have him present at the trial of the plaintiff’s case against the Moore Spinning Company, the plaintiff is not entitled to his testimony at this trial and the jury is ordered to disregard his testimony.</p> <p>“ 10. There is no evidence that the defendant in this case was any way at fault in failing to have the witness Dolan present at the trial of the case of the plaintiff against the Moore Spinning Company.</p> <p>“11. There was evidence that the Lavalle girl knew that the machine was being changed over and if she knew that fact it was negligence on her part for which this defendant would not be responsible if she started the machine without giving proper and reasonable warning to the plaintiff of her intention so to do.</p> <p>"12. The approximate cause of the plaintiff’s injury was the starting' of the machine without giving the usual and proper notice, and if it was the custom and method of starting the machine to first ‘holler’ loud enough to notify all working on the machine that it was to start and that there was nothing in Ogley’s order (if he did order the girl to start the machine), that would naturally indicate that the machine was to be started without first calling out loud enough to notify all working on the machine, then there was no negligence on the part of Ogley for which this defendant would be responsible and your verdict must be for the defendant.</p> <p>“ 13. If the Lavalle girl did receive orders from Ogley to start the machine and she understood that she was to start the machine in the usual way, which was to call out before starting, and failed to call out loud enough so that the girls within a few feet of her could have heard her and there was no greater noise than usual at the time she called under like conditions at other times when she could be heard, it was her own fault, for which this defendant would not be responsible, and the jury must find for the defendant.</p> <p>“ 14. If it was the usual and recognized way when starting the machine to call out 'look out’ or other words to that effect so that those about the machine and working thereon could protect themselves when the machine was started up, and if the girl started the machine and failed to take the precautions usual, which was to call out in a loud voice, even though she had been instructed to start up the machine, and by reason of her failure to call out the McLellan boy was not notified so that he might protect himself, the defendant in this case would not be liable for her negligence and the verdict must be for the defendant.”</p> <p>The jury found for the plaintiff in the sum of $2,500; and the defendant alleged exceptions.</p>

<p>Petition, filed in the Supreme Judicial Court on January 13, 1915, and afterwards amended, for a writ of certiorari to quash the action of the city council of Boston under St. 1914, c. 630, in making a new division of the city into wards.</p> <p>St. 1914, c. 630, is as follows:</p> <p>“Section 1. The city council of the city of Boston shall, before the first day of January in the year nineteen hundred and fifteen, make a new division of the territory of the city of Boston into not less than twenty-four nor more than thirty-six wards. The boundaries of the wards shall so be arranged that the wards shall contain, as nearly as can be ascertained and as may be consistent with well-defined limits to each ward, an equal number of voters. The city clerk shall forthwith give notice in writing to the secretary of the commonwealth of the number and designations of the wards so established.</p> <p>“Section 2. For all elections held prior to the annual State primary and State election in the year nineteen hundred and sixteen, and for the assessment of taxes for the year nineteen hundred and fifteen, the wards, as existing previous to such re-division, shall continue, and for the said purposes the election officers shall be appointed and hold office, and voting lists shall be prepared and all other things required by law shall be done as if no such re-division had been made. For all other purposes the re-division shall take effect on the first day of January in the year nineteen hundred and fifteen.</p> <p>“Section 3. This act shall take effect upon its passage.”</p> <p>Section 4 of the charter of the city of Boston, St. 1909, c. 486, is as follows:</p> <p>“Every appropriation, ordinance, order, resolution and vote of the city council, except votes relating to its own internal affairs, shall be presented to the mayor, who shall make or cause to be made a written record of the time and place of presentation, and it shall be in force if he approves the same within fifteen days after it shall have been presented to him, or if the same is ' not returned by him with his objections thereto in writing within said period of fifteen days. If within said period said appropriation, ordinance, order, resolution, or vote is returned by the mayor to the city council by filing the same with the city clerk with his objections thereto the same shall be void. If the same involves the expenditure of money, the mayor may approve some of the items in whole or in part and disapprove other of the items in whole or in part; and such items or parts of items as he approves shall be in force, and such items or parts of items as he disapproves shall be void.”</p> <p>The petitioner alleged, and the answers admitted, that the mayor, upon the order of the council being presented to him, had refused to act upon it, stating that the order did not require his approval and was not subject to his veto.</p> <p>The petitioner also alleged that the boundaries of the wards were not so arranged “that the wards shall contain, as nearly as can be ascertained and as may be consistent with well defined limits to each ward, an equal number of voters.”</p> <p>The petition was heard by De Courcy, J., who reported it for determination by the full court.</p>

<p>Trespass. Real Property. Municipal Corporations. Damages, For property taken or impaired under statutory authority.</p> <p>If a city unlawfully enters upon land and constructs a water conduit beneath the surface, the conduit becomes a part of the real estate and the property of the owner of the land.</p> <p>If, at the trial of a petition against a city for the assessment by a jury of damages sustained by the taking of an easement in land of the petitioner for the construction and maintenance of a water conduit, it appears that, previous to the taking, the city as a trespasser had entered upon the petitioner’s land and had constructed the conduit, the petitioner is entitled to a ruling that the conduit thereby, became his property, and, while the petitioner is not entitled to recover the cost nor the value to the respondent of the conduit, nor to have his damages enhanced by the certainty, if it is a certainty, that the city would have to make a taking of the conduit which thus had become the petitioner’s property, the existence of the conduit upon the land may be treated as an element affecting the fair market value of the land so far as it would enter into the price which would be given for the petitioner’s rights in the land by a prospective purchaser.</p> <p>Where a city by right of eminent domain has taken an easement in private land for the purpose of the construction and maintenance of a water conduit, it has no right to prevent the owner of the land or his successors in title from making any use of the land for the laying of sewer, water or gas pipes, which does not interfere with the use by the city of the easement acquired by the taking.</p> <p>Where a city by right of eminent domain takes an easement in land of a private person in another city for the construction and maintenance of a water conduit therein, the second city is not thereby precluded from laying out under the highway act a street over the land in which the easement has been acquired.</p>

<p>Municipal Court of the City of Boston, Discharge of appeal from Appellate Division. Supreme Judicial Court, Discharge by full court of record for amendment. Contract, Implied in law.</p> <p>Where, on an appeal from a decision of the Appellate Division of the Municipal Court of the City of Boston dismissing a report of a ruling of a single judge of that court, it does not appear by the record whether all the material evidence upon which the findings of the single judge were based is stated or described, this court will grant a motion that the appeal be discharged to enable the party who requested the report to move for its correction by adding thereto the statement that it contains all the material evidence.</p> <p>When such an appeal is discharged for such a correction of the record, the case goes back to the Appellate Division, who will remand it to the single judge for amendment of his report; and, if the report is amended by him by the addition of the required statement, it should be presented to the Appellate Division, who will make a decision upon the report in its amended form, from which an appeal should be taken to this court.</p> <p>Statement by Rtjgg, C. J., of the practice of this court in regard to the discharge of exceptions, reports, reservations or appeals from the Superior Court or the Supreme Judicial Court for the purpose of correcting the record by amendment. An action of contract for money had and received to the plaintiff’s use cannot be maintained against one who received and collected a check drawn by the plaintiff payable to the order of a non-existent corporation and delivered by the plaintiff to a fraudulent person and who in good faith paid over to such fraudulent person the whole proceeds of the check.</p>

<p>Landlord and Tenant, Construction of lease, Covenants. Party Wall. Estoppel. Agency, Existence of relation. Equity Pleading and Practice, Cross bill, Demurrer. Waiver.</p> <p>By a lease to a banking corporation of a two story building on Devonshire Street in Boston which occupies substantially all of the land of the lessor, the lease purporting to convey "the entire building” and the “land under the same” and providing that “the premises” shall “be used only as a banking house,” that they shall be kept by the lessee “in good repair, order and condition, including outside repairs to the sidewalk,” that the lessee shall not perjnit "any placard or sign to be placed upon said building except such and in such place and manner as shall have been first approved in writing by the lessor,” and that the lessee shall pay “ all taxes and assessments on said premises,” the lease containing no reservation to the lessor of a right to enter upon the demised premises to make necessary repairs upon that portion of a party wall forming part of the building and of a building on an adjacent lot which is six stories in height, all the lessor’s interest in the party wall is conveyed to the lessee for the term of the lease, and the lessor has no right to compel either the lessee or the owner of the adjoining building to close openings for windows placed with the lessee’s permission in the wall above the line of the roof of the bank building.</p> <p>And where under the circumstances above stated it appears that, at the time when the owner of the adjoining building placed the openings in the wall, he repaired the wall after the lessor had refused to do so, and that after the lessor had refused to furnish additional ventilating facilities at the request of the lessee, the owner of the adjoining building placed a ventilating flue in the wall as he was rebuilding it, that the lessee “made no inquiry as to the terms or conditions on which these things were being done, being indifferent as to how” they were “being done and being simply satisfied that" it was getting the desired ventilating, it cannot be said that the lessee is estopped to deny the lessor’s right of control over that part of the party wall above the roof line of the banking building; nor is there any basis for a contention upon such facts that there was a relation of principal and agent between the lessee and lessor.</p> <p>Under such circumstances the giving by the lessee to the owner of the adjoining building of permission to use the party wall above the roof line of the banking building for the purpose of placing the windows there for the adjoining building is not a violation of the promise of the lessee that the demised premises shall be used “only as a banking house,” such use of the wall being incidental and subsidiary to and not inconsistent with the exclusive use of the premises for a •banking house.</p> <p>In a suit in equity by the owner of land with a two story building thereon and with a party wall standing upon it and adjoining land extending several stories above that building, against the lessee of the two story building and the owner of the adjoining building to enforce an alleged right to have openings, which had . been made in the wall for windows, closed, it is a proper subject for a cross bill by the owner of the adjoining building against the plaintiff and one to whom he had conveyed his right in the party wall to seek to compel the removal of shutters placed by them over the openings in the wall.</p> <p>By proceeding with a hearing before a master of a suit in equity and a cross suit, the defendant in the cross suit waives a demurrer which was included in his answer to the cross bill.</p>

<p>Workmen’s Compensation Act. Evidence, Presumptions and burden of proof. Proximate Cause.</p> <p>On an appeal to this court under the provisions of the workmen’s compensation act, where the substance of the evidence is reported, the question is open whether a finding of the Industrial Accident Board which was confirmed by the decree of the Superior Court was warranted by the evidence.</p> <p>Where under the workmen’s compensation act a claim for compensation is made by the dependent widow of an employee whose death is alleged to have resulted from an injury arising out of and in the course of his employment, the burden of proving the essential facts necessary to warrant an award of compensation rests upon the dependent in the same way that the burden of proof rests upon the plaintiff in any proceeding at law.</p> <p>Upon a claim under the workmen’s compensation act of the dependent widow of an employee whose death is alleged to have resulted from an injury arising out of and in the course of his employment, if it appears that the injury to the workman was followed by his death, it is immaterial whether or not the death was the reasonable and likely consequence of the injury. The only question is whether the death was the result of the injury within the meaning of St. 1911, c. 751, Part II, § 6, which provides for compensation to be paid to dependents “if death results from the injury.”</p> <p>Upon a claim under the workmen’s compensation act of the dependent widow of an employee whose death was alleged to have resulted from an injury arising out of and in the course of his employment, it appeared that the deceased employee in the course of his employment had been struck in the eye by a splash of molten lead which caused the loss of his eye, mental derangement and insane hallucinations, and that while he was at a hospital under treatment he leaped from a window and was killed by the fall. The circumstances of his leap from the window indicated ungovernable lunacy rather than the volition of even a diseased mind. Held, that the rule of causation established by Daniels v. New York, New Haven, & Hartford Railroad, 183 Mass. 393, applies to cases under the workmen’s compensation act, and that, applying it here, there was evidence warranting a finding by the Industrial Accident Board that the death of the employee resulted from the injury to his eye which arose out of and in the course of his employment.</p>

<p>Bill m equity, filed in the Superior Court on May 26, 1914, and afterwards amended, by minority stockholders of the Credit Reporting Company of New England, a Massachusetts corporation, for the use and benefit of the corporation, seeking relief from the results of alleged fraud of the defendants as described in the opinion.</p> <p>The defendants demurred to the bill on the ground that it was multifarious and for want of equity.</p> <p>The demurrer was heard by Wait, J., and an interlocutory decree sustaining the demurrer was made on September 29, 1914. The plaintiffs appealed. On November 13,1914, a final decree dismissing the bill was entered, notice of which was given to the plaintiffs by the clerk of the court on November 17, 1914. The defendants filed an appeal therefrom on December 5, 1914! In this court the plaintiffs asked under R. L. c. 159, § 28, for leave to appeal.</p>

<p>Quo Warranto. License. Municipal Corporations, Officers and agents. Express Company. Intoxicating Liquors, Transportation. Equity Jurisdiction, To enjoin transaction of unauthorized business by corporation.</p> <p>Action of the mayor and aldermen of a city, in which licenses of the first five classes for the sale of intoxicating liquor are not granted, in issuing a permit under St. 1906, c. 421, as amended by St. 1911, c. 423, for the transportation of spirituous and intoxicating liquors into or in such city, if such permit is in proper form, cannot be reviewed in quo warranta proceedings brought by the Attorney General against the person, firm or corporation who received the permit, although such person, firm or corporation is not "regularly and lawfully conducting a general express business” according to the requirement of the amended § 2 of the statute.</p> <p>Whether, under any circumstances such action of the mayor and board of aider-men could be reviewed in appropriate and seasonable proceedings, or whether the action is a practical detail in the administration of local affairs which, so long as honestly exercised, is vested finally in the mayor and board of aldermen, was not decided.</p> <p>St. 1906, c. 372, providing that upon an information in equity in the name of the Attorney General at the relation of the commissioner of corporations the Supreme Judicial Court may enjoin a corporation from assuming or exercising any franchise or privilege or transacting any kind of business not authorized by its charter and the laws of the Commonwealth, does not give that court power in such proceedings to enjoin a corporation to which, by the mayor and aldermen of a city in which licenses of the first five classes for the sale of intoxicating liquors are not granted, a permit has been granted in due form under St. 1906, c. 421, as amended by St. 1911, c. 423, for the transportation of spirituous and intoxicating liquors into or in such city, from conducting business in accordance with the permit, although the holder of the permit is not “regularly and lawfully conducting a general express business” according to the requirement of the amended § 2 of the statute.</p>

<p>Agency, Existence of relation, Fidelity of agent. Evidence, Of agency, Declaration of deceased person. Deceit.</p> <p>At the trial of an action of tort for deceit practiced upon the plaintiff by an alleged agent of the defendant in negotiations resulting in the sale of timber to the plaintiff, it appeared that the alleged agent had died and there was evidence that, before the commencement of the action, he had stated to witnesses for the plaintiff that the defendant had “asked him to sell” the timber, “to find a customer for it,” and that, if he should do so, the defendant “would make it right with him,” that, after the close of the transaction, he had stated that he had said to the defendant that he “thought he had very small pay for the work he had done,” and that the defendant had paid him $150 and had said that that was all he was willing to allow him. The receipt given to the defendant by the alleged agent was written by the defendant and purported to acknowledge “payment in full for services rendered in connection with the sale of the” lot. There also was evidence that the plaintiff introduced himself to the defendant at the time of- the sale and stated that he was the man who had been talking with the alleged agent “who claimed to be authorized to sell the timber,” and informed the defendant that he was there “according to arrangements made by” the alleged agent "to complete the transaction, if everything, the representations made, were truthful and that he had authority to sell the lot, and” the defendant “could give ... a good title to the property;” and that the defendant said “I guess everything is all right.” Held, that it was a question for the jury as to whether the alleged agency existed.</p> <p>In an action of tort for deceit practiced by an alleged agent of the defendant in negotiations resulting in the sale of standing timber to the plaintiff, upon evidence tending to show that, before the sale, the plaintiff had some talk with the agent about his helping the plaintiff to sell the timber, and that, two or three months after the sale, he paid the agent $250 “for services in anticipation,” it cannot be ruled as a matter of law that the agent was disqualified from acting for the defendant.</p> <p>Where, at the trial of an action of tort for deceit alleged to have been practiced upon the plaintiff by an agent of the defendant to induce him to purchase the standing timber on certain lots of land of the defendant, there is evidence tending to show that one could not determine by inspection how many acres of standing timber there were in the tract on account of the character of the timber and the configuration of the lots, and that the agent made false statements which reasonably were understood by the plaintiff to mean that an actual survey had been made of the lots and that they contained about ninety acres, whereas they contained only sixty-five acres, a verdict should not be ordered for the defendant, because it cannot be ruled as a matter of law that the false representations were not actionable, and a finding is warranted that the plaintiff acted reasonably in relying on the agent’s statements and that the statements were untrue.</p>

<p>Pledge. Mortgage. Equity Jurisdiction, Equitable set-off, Adequate remedy at law. Judgment.</p> <p>Where the nominal holder of the record title to certain real estate subject to a first mortgage for $7,500 and to a second mortgage for $5,000 which is held by the beneficial owner, at the request of the beneficial owner signs and delivers to a bank a note for $2,000 and the beneficial owner thereupon delivers to the bank his second mortgage as collateral security for that note, the bank, in the absence of a special agreement to that effect, is under no obligation to redeem and pay the first mortgage when it becomes due in order to protect the second mortgage which it holds as collateral.</p> <p>After judgment has been entered for the plaintiff in an action upon a promissory note against the maker of the note, who is the nominal holder of the record title to certain land subject to a first and a second mortgage, the second mortgagee being the beneficial owner of the land who had delivered the second mortgage to the plaintiff as collateral security for the note of the defendant, the judgment debtor and the beneficial owner of the land, whose remedy at law is adequate, cannot maintain a suit in equity against the judgment creditor to have set off against the judgment a sum of money received by the judgment creditor from the first mortgagee as surplus proceeds from a foreclosure of the first mortgage by sale, even although before the entry of the judgment the amount of such surplus could not be ascertained and therefore could not be pleaded in the action upon the note.</p>

<p>Contract against the administratrix of the estate of Robert D. Porter, late of Stoughton, for $1,270.45 on an account annexed which set forth various items under the headings “Car Service” and “Freight Bills.” Writ dated December 20, 1912.</p> <p>The defendant filed an answer and a declaration in set-off on a judgment for $125 with interest, for $50 for liquidated fire damages and for $24.43 for liquidated damages for failure to deliver freight. The plaintiff in an answer to the declaration in set-off admitted its liability on the judgment for $125 and for the $50 for fire damages, but denied its liability for the $24.43 for failure to deliver freight and as to this pleaded the statute of limitations.</p> <p>In the Superior Court the case was submitted to Dubuque, J., upon.an agreed statement of facts as follows:</p> <p>“It is agreed by the parties in the above entitled cause that the defendant’s intestate, hereinafter referred to as the defendant, owes the plaintiff the sum of $467.45, appearing as ‘Freight Bills’ in the plaintiff’s declaration; and that the plaintiff owes the defendant the sum of $175 claimed in set-off; that the sum of $803, also appearing in said declaration, is the correct sum due for demurrage, provided the plaintiff had the right to assess the same; that the charge of $1 per day for demurrage was a reasonable charge; that the plaintiff’s demurrage rules effective during the period for which said demurrage was assessed were the rules effective January 10, 1909, bearing the number ‘I.C.C. No. X6;’ that said rules were properly filed and posted as required by law; that said rules may be and hereby are made a part of this agreement; that the defendant had a private side track or spur track constructed upon the land of the plaintiff and connecting with the main line tracks of the plaintiff and running to the defendant’s coal shed; that the defendant had for some time prior to June, 1909, enjoyed a privilege granted by the plaintiff called ‘weekly credit,’ under which privilege the defendant was permitted to pay his freight bills on presentation once a week; that prior to June, 1909, this privilege had been withdrawn by the plaintiff; that after said privilege had been withdrawn certain cars of coal came to Stoughton by the plaintiff’s lines, consigned to the defendant; that due notice of the arrival of said cars was given to the defendant and demand made for the freight which had not yet beén paid; that the defendant refused to pay said freight until the cars were placed upon his side track, adjoining his sheds, when he desired to unload them; that the defendant said he would pay the freight after the cars were placed upon his side track; that the plaintiff placed the cars upon its public delivery tracks (but with no intention on the part of the plaintiff to deliver to the defendant unless the freight was paid); and refused and declined to place said cars upon the defendant’s side track prior to the payment of the freight charges; that the sum of $803 was assessed as demurrage upon said cars, which is the amount in dispute.”</p> <p>The judge found for the plaintiff in the sum of $1,095.45 with interest at six per cent from the date of the writ, and at the request of the parties reported the case for determination by this court. If the finding was correct in law, judgment was to be entered thereon. If it was incorrect in law, judgment was to be entered for the plaintiff in the sum of $292.45 with interest at six per cent from the date of the writ.</p>

<p>Evidence, Of value. Mount Everett State Reservation.</p> <p>At the trial of a petition for the assessment of damages for land taken under St. 1908, c. 571, for the Mount Everett State Reservation, where the land taken consists of a parcel of about two hundred and fifty acres including the summit of the mountain and of a parcel of about sixty-two acres including a pond of sixteen acres, the value of both parcels being chiefly sentimental “as a sight seeing place,” it is within the discretionary power of the presiding judge to exclude evidence of the value of a parcel of land on the other side of the mountain, which is without value as a mere sight seeing place but has value because of its wood and timber and because of its connection with other properties; even if the dissimilarity between the land taken and land whose value is offered in evidence does not require the exclusion of the evidence upon objection.</p> <p>At the trial of a petition for the assessment of damages for land taken under statutory authority for a public reservation, it is within the discretionary power of the presiding judge to exclude evidence of the price paid for the land taken under an option, which was procured, by one who afterwards became a</p> <p>member of the commission in charge of the reservation and conveyed the land to the Commonwealth, for the purpose of showing to the Legislature the price for which the land could be bought.</p>

<p>Complaint, received and sworn to in the Police Court of Holyoke on September 21, 1914, under R. L. c. 102, §§ 29-32, charging the defendant with being a dealer in and the keeper of a shop for the purchase, sale and barter of junk and old metals in the city of Holyoke without a license, the complaint containing three counts &s described in the opinion.</p> <p>In the Superior Court the defendant was tried before Hamilton, J., the facts as agreed to by the parties being stated in the opinion. The material portion of an ordinance of the city of Holyoke adopted under the provisions of § 29 of the statute was included in the facts agreed to. The jury returned the verdict. “Guilty as dealer but not guilty as keeper of a shop,” and at the request of the defendant the judge reported all questions of law arising upon the agreed facts for determination by this court. If the sales there referred to made the defendant a dealer within the meaning of § 29 of the statute, the verdict of guilty was to stand; otherwise, a verdict of not guilty wás to be entered.</p> <p>Section 29 of R. L. c. 102 is as follows:</p> <p>“The mayor and aldermen of any city except Boston, and in Boston, the board of police, and the selectmen of any town, if ordinances or by-laws therefor have been adopted in such city or town, may license suitable persons to be dealers in and keepers of shops for the purchase, sale or barter of junk, old metals or second-hand articles, in such city or town, subject to the provisions of sections one hundred and eighty-six to one hundred and eighty-nine, inclusive, and may revoke such licenses at pleasure.”</p> <p>Section 1 of the ordinance of the city of Holyoke, which was made a part of the agreed facts and under which the complaint was brought, was as follows:</p> <p>“No person shall be a dealer in or keeper of a shop for the purchase, sale or barter of junk, old metals or second-hand articles in this city, unless he is duly licensed therefor by the board of aldermen and shall exhibit his license when requested to do so.”</p>

<p>Deceit. Election. Damages, In tort.</p> <p>In an action by a stockbroker against another stockbroker for false and fraudulent representations that certain shares of mining stock offered for sale were treasury stock, whereby the plaintiff was induced to purchase some of the shares and suffered loss, if it appears that the defendant made the statement that the shares were treasury stock and that this statement was false and was known to the defendant to be false and was relied upon by the plaintiff and was material, but it also appears that the mining stock not only was worthless but that it would have been equally worthless if the shares had been treasury stock, it is right for the presiding judge to order a verdict for the defendant; for the plaintiff by bringing his action for deceit has elected to affirm his purchase of the shares, and is bound by the rule of damages that he can recover only the difference between the value of the stock that he got and the value of the treasury stock that he would have got if the defendant’s representation had been true, that is to say, nothing at all, so that he has failed to prove that he suffered damage by the defendant’s false statement, which is an essential element of his cause of action.</p>

<p>Actionable Tort. Damages, In tort.</p> <p>In an action by a woman passenger upon an electric street railway car against the street railway company for personal injuries, there was evidence tending to show that the car in which the plaintiff was was struck “a terrific blow” with “an awful bang” by a street car behind it and was pushed forward into a street car in front, that a woman passenger in front of the plaintiff was thrown by the impact out of the car on her head against a fence and another woman who was passing between the first and second cars was killed, that the plaintiff was thrown sharply forward and back, that she did not know whether she struck anything or not but that it seemed as if she “didn’t have” her “head.” The plaintiff’s physician testified that the next day the plaintiff had an eruption on her neck and the upper portions of her body which, with her other symptoms, he diagnosed as urticaria, and that a collision which resulted in a severe jar and shaking up or shock to the nervous system was an adequate explanation of the plaintiff’s condition. Held, that a finding for the plaintiff was warranted because there was evidence that the plaintiff at the time of the collision suffered a physical injury from without.</p>

<p>Tort for personal injuries received by the plaintiff, a locomotive engineer employed by the defendant, as he was leaving his work on his way home and was crossing a drawbridge, as stated in the opinion. Writ dated April 24, 1912.</p> <p>In the Superior Court the case was tried before Stevens, J.</p> <p>The case was submitted to the jury upon the first and third counts of the declaration, both of which were at common law, the first count alleging that the plaintiff was an employee of the defendant and received his injury because of negligence of the defendant in failing to furnish safe and proper approaches and ways to be used by the plaintiff during his work, and the third count alleging merely that the plaintiff, while rightfully and lawfully upon premises of the defendant, was injured by reason of a negligently unsafe condition of the premises.</p> <p>There was evidence in behalf of the defendant on the question of damages that blindness, from which the plaintiff was suffering and which the plaintiff’s evidence tended to show was due to his injuries, was due to atrophy of the nerves of the eyes which had begun months before the time that the injuries complained of were received and was not due to injuries, but was the result of syphilis; and that the “Wasserman test,” so called, is a test commonly made to detect the germs of syphilis. Dr. Frank C. Richardson, a medical expert and specialist in nerve diseases, testifying for the plaintiff, stated that he had examined the condition of the plaintiff’s eyes as to vision and had found that his vision was wholly lost and that in his opinion the plaintiff was suffering from blindness due to primary atrophy. He also testified in direct examination subject to exceptions by the defendant that one of his assistants had applied the Wasserman test to the plaintiff, and that the test was reported to him. There was no evidence that' Dr. Richardson was present at the time the test was made.</p> <p>Later in the trial as a part of the evidence of the defendant the record of the hospital giving the result of this Wasserman test was offered by the defendant and was read to the jury. The test of the blood showed a negative reaction and the spinal fluid a positive reaction.</p> <p>Other material evidence is described in the bill of exceptions.</p> <p>At the close of the evidence the defendant asked for rulings that the evidence did not justify a verdict for the plaintiff on either of the counts submitted to the jury, and for the following rulings:</p> <p>“3. There is not sufficient evidence to justify a finding that the plaintiff was using this way on the invitation of the defendant.</p> <p>“4.' There is not sufficient evidence to justify a finding that the defendant was negligent.</p> <p>“5. If the jury find that the relation of master and servant existed at the time of the accident they should return a verdict for the defendant.</p> <p>“ 6. The evidence of the employment of the plaintiff on the day of the accident and at the time of the accident does not justify a verdict for the plaintiff.</p> <p>“7. If the jury find by the evidence of the plaintiff that he was an employee of the defendant at the time of the accident he cannot recover.</p> <p>"8. If the plaintiff is found to be still in the employment of the defendant at the time of the accident he had assumed the risk of the footbridge not being in place and he cannot recover.</p> <p>"9. There is no evidence that the footbridges over No. 1 draw were constructed for any purpose other than to make this particular part of the railroad yard convenient to a degree approximating to the convenience of the rest of the railroad yard for the business of the defendant, and no invitation to employees can be implied to use this bridge on their way to or from their work when their work is begun and finished at the East Cambridge roundhouse.”</p> <p>The rulings were refused. There was a verdict for the plaintiff in the sum of $17,050; and the defendant alleged exceptions.</p>

<p>Petition, filed in the Land Court on February 13, 1913, for the registration of the title to certain land in Wellesley, described in the petition as bounded "easterly by the westerly end of a town highway.” The respondent, who owned land on both sides of the alleged town highway, denied that it was a town highway and that the petitioner had any rights of way appurtenant to his land.</p> <p>The case was heard by Dams, J. The material portions of the evidence at the hearing before him are described in the opinion. He found that the laying out of the way in question by the town in 1852 was legal and that the petitioner correctly described his land as bounding on the westerly end of such town way; and, taking into consideration that action of the town and the other evidence recited in the opinion, he also found that the road was an ancient public way, ordered a decree for the petitioner and, at the request of the parties, reported the case for determination by this court.</p>

<p>County Commissioners. Railroad, Obstruction of public way. Way, Public. Words, “ Repairs,” “Alteration.”</p> <p>Where, on a petition of the selectmen of a town to county commissioners under R. L. c. Ill, § 132, seeking an order that an alleged obstruction of a public way at a point where a railroad passed beneath it be stopped, the commissioners found that a fence on the easterly side of the way was a monument fixing that boundary, that there were old walls and fences at various places along the way that showed that it always had been two rods wide, that witnesses who had known the way before the railroad was built testified that it did not narrow at the place where the railroad afterwards crossed, and that there were records of a widening and straightening of the way in 1847 and a railroad location plan filed in 1848 which showed the way to be of a uniform width of two rods, a determination by the commissioners that a fence constructed by the railroad company in 1882 twelve feet within the westerly boundary of the way was an obstruction to the way is not contrary to the provision of R. L. c. 53, § 1, discloses no error of law and is conclusive.</p> <p>A narrowing by a railroad company of a public highway two rods in width by the construction and maintenance of a fence twelve feet within one of its side lines at a point where the railroad passes under the way may be found to constitute an obstruction of the way, the existence of which it was exclusively within the province of the county commissioners to determine in proceedings under R. L. c. Ill, § 132.</p> <p>Where, on a petition by the selectmen of a town to the county commissioners alleging that a fence maintained by a railroad company within the limits of a public way at a point where the railroad passes beneath the way is an obstruction and praying that the way be restored to its proper width, the commissioners find that the way is two rods in width and that the obstruction exists, narrowing the way, and order that the roadway at the crossing be graded two rods in width, that guard rails be erected at the sides, that twenty-two feet be constructed as a roadway and five and a half feet on each side be reserved for sidewalk purposes, that the sidewalk on one side be constructed, and that the railroad corporation pay the costs of the application and of the repairs, such order is an order for “repairs” under R. L. c. Ill, § 132, and cannot be said to be an order for an "alteration” under § 134.</p>

<p>Gas Company. Actionable Tort. Damages, For property taken or impaired under statutory authority.</p> <p>A gas company upon receiving permission from the board of mayor and aldermen of a city to dig a trench in a public way and to lay a pipe therein, is authorized to make use of the street under a public right and if in digging the trench the company’s contractor without negligence blasts a ledge which permits water collected in a surface depression on land near the way to flow into the cellar of the owner of other adjoining land, the company has violated no common law right of such owner and is not liable to him in an action of tort for alleged negligence.</p> <p>Whether the provision of R. L. c. 110, § 76, that the permission given by the board of mayor and aldermen of a city to certain corporations for the digging of trenches and the laying of pipes in highways shall “not affect the right or remedy to recover damages for an injury caused to persons or property by the acts of such corporations,” was designed to give to a landowner a cause of action where none existed at common law and to afford compensation for damage necessarily caused by work which is authorized by the statute and is executed in a reasonably proper manner, was not decided in this case, which was an action of tort for alleged negligence.</p>

<p> Lawrence. Police. Civil Service. </p> <p>A letter written and signed by the director of public safety of the city of Lawrence addressed to and served upon a sergeant of police of that city under authority of the provision of the city charter contained in St. 1911, c. 621, Part II, § 43, dated and delivered on January 5, 1914, and stating “I hereby notify you that I have reduced you in rank from sergeant to patrolman. . . . You will report for duty as patrolman . . . at 8 A. M. January 7th, 1914. This order will take effect January 7th, 1914,” fairly may be construed to mean that the writer has decided on January 5 to reduce the rank of the officer and that the decision will take effect on January 7.</p> <p>If a sergeant of police of the city of Lawrence, who is reduced to the rank of patrolman by the director of public safety of that city under authority of the provision of the city charter contained in St. 1911, c. 621, Part II, § 43, for the reason1 stated in writing that there are too many sergeants on the police force, is entitled to a notice under the provisions of the civil service law contained in Sts. 1904, c. 314, § 2; 1906, c. 210, a notice of two- days is a reasonable one which can be found to have afforded him ample time to ask for a public hearing.</p>

<p> Workmen’s Compensation Act. Proximate Cause. </p> <p>Where a workman who already was subject to an affection of the valves of the heart and who earlier in the day had been engaged in heavy lifting and in carrying two buckets of water at a time up a slight incline, so that his heart muscle was tired and exhausted, suddenly fell to the ground after lifting a bag of coal weighing one hundred and fifty pounds and died of heart disease after about five minutes of unconsciousness, and where, at the hearing before an arbitration committee upon a claim by his dependent widow under the workmen’s compensation act, a medical examiner testified that the employee died from debilitation of the heart caused by the abrupt lifting of the load, it was held, that a finding was warranted that the injury that caused the workman’s death arose out of and in the course of his employment.</p>

<p>Damages, For property taken or impaired under statutory authority. Evidence, Photographs, Remoteness, Of value. Way, Public: laying out.</p> <p>Upon a petition for the assessment of damages sustained from the laying out as a public highway of a private street adjoining the petitioner’s land and changing its grade, it is proper to base the damages upon the assumption that the street will be completed to the grade established by the order for its laying out, and the damages are not to be limited to the effect of the change of grade that exists at the time of the trial after a temporary suspension of the work on the street. In such a case it is proper for the presiding judge to permit the jury to consider evidence of the cost of raising the petitioner’s house and of filling and raising the grade of the petitioner’s land or of a part of it, if the jury first find that to raise the house and raise the land is a reasonable, economical, proper and advantageous way of treating the property in the situation that will exist when the street shall have been raised to the grade established by the order.</p> <p>At the trial of a petition for the assessment of damages sustained from the laying out as a public highway of a private street adjoining the petitioner’s land and raising the grade of such street, the presiding judge in his discretion properly may permit the introduction in evidence of a photograph.of the land taken about fifteen years before the trial by the petitioner, who had lived on the land off and on for sixteen years and who testified that “no one ever touched the street until the city accepted it.”</p> <p>At the same trial it is proper for the presiding judge to permit the petitioner to testify what he considers was the fair market value of the land immediately before the order for the laying out of the street, such an owner being assumed to have a knowledge of his property adequate to form an intelligent estimate of its value.</p>

<p>Contract by the owner of a large building known as the Fort Hill Building, numbered from 142 to 146 inclusive, on High Street in Boston, against a corporation engaged in the manufacture and sale of paints, shellac and oils, which it had mixed and kept in the basement of the premises leased by it from the plaintiffs, for the alleged breach of a covenant in the lease from the plaintiffs to the defendant to remove all rubbish at the expiration of the lease and to yield up the premises to the lessors “clean and in good repair, order and condition in all respects.” Writ in the Municipal Court of the City of Boston dated January 27, 1913.</p> <p>Upon removal to the Superior Court the case was tried before Hitchcock, J. The material portions of the lease are quoted in the opinion. At the close of the evidence the plaintiffs asked the judge to make twelve rulings, of which the judge made the seventh, tenth and twelfth as quoted below, and refused to make any of the others including the third and fourth, which were as follows: “3. That under the terms of the lease the defendant was bound on the expiration of the term to deliver and surrender to the plaintiffs the premises clean and in good repair, order, and condition.</p> <p>“4. That under the terms of the lease the defendant was bound on the expiration of the term to deliver and surrender to the plaintiffs the premises clean and in good repair, order, and condition irrespective of the condition of said premises at the commencement of the term.”</p> <p>The rulings requested by the plaintiffs which were made by the judge were as follows:</p> <p>“7. That the defendant was bound to surrender and deliver said premises clean and in good repair, order, and condition irrespective of any consideration of reasonable wear and tear whatsoever.”</p> <p>“10. That the plaintiffs are entitled to recover whatever sum it would cost to put the premises in the condition in which the defendant was bound to leave them.”</p> <p>“12. That the plaintiffs were not obliged to clean the floor if the same was impracticable, but were legally entitled to install a new floor consistent with the general character of the building.”</p> <p>The judge submitted to the jury four questions, the first three of which, with the answers of the jury, were as follows:</p> <p>“1. Were the premises in question left by the. defendant at the expiration of the lease declared on clean and in good repair, order and condition in all respects?” The jury answered, “No.” “2. If question No. 1 is answered in the negative, what was the fair and reasonable cost in the most reasonably economical manner of cleaning the premises and putting them in good repair, order and condition in all respects after the termination of the tenancy of the defendant?” The jury answered, “$297.”</p> <p>“3. Were the premises in question left by the defendant at the expiration of the lease declared on (January 1, 1913), clean and in as good repair, order and condition in all respects as they were in on January 1, 1912, at the beginning of the term covered by the lease?” The jury answered, “Yes.”</p> <p>The fourth question became immaterial because it was required to be answered only in case the jury should answer the third question in the negative.</p> <p>Upon receiving the answers of the jury the judge ordered a verdict for the defendant; and the plaintiffs alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in November, 1914, and afterwards was submitted on briefs to all the justices.</p>

<p>Tort against the alleged manufacturer and seller of a certain walnut oil stain for personal injuries sustained by the plaintiff on May 25,1908, from the sudden ignition of the. volatile and inflammable gases contained in the stain when a match was lighted in the room where the plaintiff’s husband was applying the stain to the floor, the defendant having put the stain on the market, where it was bought by the plaintiff’s husband, without giving any notice of its inflammable and dangerous character of which the plaintiff and her husband were ignorant. Writ dated March 2, 1909.</p> <p>The declaration originally contained two counts. The defendant demurred. There was a hearing on the demurrer before Richardson, J., who made an order overruling the demurrer, from which the defendant appealed. Later the case was tried before Quinn, J. At the opening of the trial the plaintiff was allowed to amend her declaration by adding a third and a fourth count. The facts that could have been found upon the evidence are stated in the opinion, where also the rulings of the judge in regard to evidence to which the defendant excepted are described.</p> <p>At the close of the evidence the defendant asked the judge to make twelve rulings. Of these the judge gave as instructions to the jury the tenth and eleventh rulings requested, which were as follows:</p> <p>“10. The plaintiff cannot recover on the first and second counts of the amended declaration.</p> <p>“11. The plaintiff cannot recover without showing that both she and her husband were in the exercise of due care.”</p> <p>The other rulings asked for by the defendant were as follows:</p> <p>"1. On all the evidence the plaintiff cannot recover.</p> <p>“2. On the pleadings the plaintiff is not entitled to recover.</p> <p>“3. The plaintiff cannot recover in this case without proving that the defendant was the actual manufacturer of the stain in question.</p> <p>"4. Even if the jury should find that the defendant caused said stain to be labeled as manufactured by it pursuant to a trade custom, when in fact the same was manufactured by some other person or corporation, such fact would not render the defendant liable even if the real manufacturer might be held liable.</p> <p>“5. If the jury should find that the defendant purchased said stain in the usual course of business from a well known manufacturer, believing, and having a right to believe, that said stain was an ordinary article of paint or staining merchandise, and sold the same in the usual course of its business as a dealer in paints, the defendant is not liable.</p> <p>"6. The manufacturer of an article of commerce such as the stain in question cannot be held responsible for injuries suffered by a person buying such stain from a third party, unless the plaintiff shall show that the manufacturer actually knew that said stain was improperly made in such way as to be dangerous to persons using such article in a proper way for the purpose for which it was intended.</p> <p>“7. The gist of an action brought by a person injured through an alleged defect in an article of ordinary merchandise [not peculiarly dangerous], not purchased by the person injured from the manufacturer, consists of guilty knowledge on the part of the manufacturer of the dangerous nature of the article manufactured for general sale.</p> <p>“8. The manufacturer of an article of merchandise, such as this stain, is not responsible in damages to any persons who may receive ijnjuries because of its defective composition or construction, to which the said article is not by such manufacturer sold, even if the manufacturer might, by the exercise of reasonable diligence, have discovered such defective composition.</p> <p>“9. It is a matter of common knowledge that stains and paint products generally contain oils and other inflammables, and the plaintiff must be held to have known that which is matter of general knowledge.”</p> <p>“12. There is no evidence warranting the finding that the plaintiff was in the exercise of due care.”</p> <p>The judge gave the seventh ruling requested as an instruction to the jury after inserting the words “not peculiarly dangerous” which are printed above enclosed in brackets. He refused to make any of the other rulings requested excepting the tenth and eleventh as printed above. He ordered a verdict for the defendant on the first and second counts and submitted the case to the jury on the third and fourth cotints of the declaration. The jury on those counts returned a verdict for the plaintiff in the sum of $2,500; and the defendant alleged exceptions.</p>

<p>Contract by a corporation having its usual place of business at Lowell against Jennie E. Sullivan and G. Cleveland Sullivan as the joint makers of thirty-four promissory notes and against John J. Gray as the indorser of these notes. Writ dated June 7, 1911.</p> <p>In the Superior Court the case was tried before Pratt, J. The defendants Sullivan were defaulted and the trial proceeded against the defendant Gray as- indorser. The substance of the evidence •is described in the opinion. Thirteen of the notes in suit were dated May 1, 1908, and became payable at various times thereafter, and the remaining twenty-one notes were dated November 5, 1908, and became payable at various times thereafter. Each series of notes was given in payment for a lot of horses, wagons, harnesses and other teaming equipment sold by the plaintiff at times corresponding respectively to the dates of the series of notes. All the notes were payable to the defendant Gray and were indorsed by him in blank, waiving demand and notice. Each set of notes was secured by a mortgage on the personal property sold at the time the notes were given, which mortgage in each instance ran from the Sullivans jointly to Gray and was assigned by Gray to the plaintiff. No question was raised as to the execution of the notes and their indorsement and delivery by the defendant to the plaintiff, or as to the amount remaining unpaid thereon.</p> <p>Gray’s defence at the trial was based entirely upon an alleged lack of consideration for his indorsements. He relied on the alleged facts and arguments, that the notes and mortgages were made out by the plaintiff’s attorney and were signed by the makers, the defendants Sullivan, and that subsequently the defendant Gray was requested to come to the office of the plaintiff’s attorney to execute the assignment, of the mortgages and to indorse the notes to the plaintiff; that the defendant Gray never owned the property nor had any interest in' it, and that there was no contention that Gray gave anything to the defendants Sullivan or either of them for this transfer, or that the plaintiff gave any consideration to Gray for his transfer and indorsement at the time or sustained any loss or detriment thereby or that Gray was under any obligation to the plaintiff; that the plaintiff was not a holder of the notes in due course, because the plaintiff knew and had notice that the defendant Gray had no right, title or interest in the notes or property; that Gray never had possession of the notes and could not have completed their negotiation by delivery; that he simply acted as a conduit and that the indorsement was in effect a qualified indorsement resorted to by the plaintiff to indicate of record a transaction between the defendants Sullivan and Gray instead of a transaction between the plaintiff and the defendants Sullivan.</p> <p>The defendant Gray testified as a witness on his own behalf. On his cross-examination by the plaintiff he testified that in August, 1909, he brought a bill in equity against the Conners Brothers Company and that he signed this bill in equity and made oath to it. Then followed the following questions and answers: “Q. Then your claim at that time, with reference to these notes, was that you were liable on these notes, but that you were going to set off against that liability another sum that they owed you? A. I never claimed to be liable on those notes. I signed that bill in equity with that in it. Q. Why didn’t you say, in this bill in equity, that you never intended to be liable on these notes, and that they were only given to accommodate Conners? A. I probably omitted it. We are all liable to err, you know. Q. That didn’t occur to you? A. As I say, we are all liable to mistakes.” The defendant Gray further testified that he also brought against the Conners Brothers Company an action at law which is described briefly in the opinion. Later in the cross-examination the plaintiff offered in evidence certified copies of the record in this action at law, offering to show that the action in question “was that referred to by the witness Gray in his evidence and the suit in which he sought to recover from the Conners Brothers Company the money that he claimed they owed him and that he had previously claimed should be set off against the notes in suit in this case, and in which case the plaintiff offered to show that final judgment had been rendered for the defendant. The defendant objected to the introduction of the record, on the ground that it was immaterial in this case.” The judge excluded the record, and the plaintiff excepted.</p> <p>At the close of the evidence the plaintiff asked the judge to make the following rulings:</p> <p>“1. On all the evidence the plaintiff is entitled to recover.”</p> <p>“ 3. If the jury find that there was a consideration for the notes, then their verdict should be for the plaintiff for the sum agreed upon.</p> <p>“4. Oral evidence cannot be considered by the jury as tending to vary or contradict the legal effect of Gray’s indorsement, but is to be considered only in so far as it bears on the question of consideration.</p> <p>“5. The notes, mortgages and assignments made respectively in May and November, 1908, were parts of the same two transactions, and it makes no difference on the question of consideration whether Gray or Sullivan got the property, as a consideration moving to either would support the obligation of the other.”</p> <p>The judge refused to make any of these rulings except so far as their substance might be embodied in his charge. The judge concluded his charge as follows:</p> <p>“If you are satisfied upon all the evidence that Mr. Gray received some beneficial interest in this teaming property and the teaming business in consideration for his signatures to these notes, then your verdict should be for the plaintiff, and your verdict, it is agreed, in that case, should be for the amount of $2,563.20, plus simple interest reckoned at the rate of six per cent per annum from the date of the writ, which was June 7, 1911, up to to-day, assuming of course that you reach your verdict to-day.</p> <p>“Unless you are satisfied by a fair preponderance of the evidence that Mr. Gray did receive such a beneficial interest in that business in consideration of his affixing his signatures to these notes, your verdict should be for the defendant.”</p> <p>The plaintiff excepted to “so much of the foregoing charge as failed to make clear to the jury that a valid consideration may have existed which would bind Gray on these notes without the transfer of any property at all to Gray or of any beneficial interest at all in any property to Gray, because it makes no difference whether Gray got any property or whether he got any beneficial interest, if the transaction was done at his request.”</p> <p>The plaintiff further excepted “to any statement contained in the charge to the effect that the Sullivans never promised to pay Gray anything, to the statement contained in the charge that the papers themselves throw no light on the nature of the transaction, and further to the statement that the papers do not state the real transaction.”</p> <p>After a colloquy at the end of the charge, the judge further instructed the jury as follows:</p> <p>“The plaintiff requests that I should give you the following ruling: If the jury find that it was agreed among Conners and the Sullivans and Gray that either Sullivan or Gray or both of them should get title to the property in consideration of signing and delivering the mortgage and notes, and that either or both of them did in fact get title to the property, then the jury should find for the plaintiff for the sum agreed upon.</p> <p>“That I give you, and I call your attention to the fact that it assumes that you must find an agreement to that effect between the Conners Company, the Sullivans and Gray. If you find such an agreement, that either Gray or the Sullivans should get title to the property, you would be warranted in finding a verdict for the plaintiff.</p> <p>“The plaintiff must satisfy the jury that there was a valid and good consideration between the plaintiff and this defendant for the indorsement on the notes. If Gray’s indorsement was given merely for the accommodation of the plaintiff the jury must find for the defendant.”</p> <p>The jury returned a verdict for the defendant Gray; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in December, 1914, before Rugg, C. J., Braley, Sheldon, De Courcy, & Crosby, JJ., and afterwards was submitted on briefs to all the justices constituting the court.</p>

<p>Under articles 21, 22 of the Amendments to the Constitution, which were adopted in 1857, the provision, that “A census of the legal voters of each city and town, on the first day of May, shall be taken and returned into the office of the secretary of the Commonwealth, on or before the last day of June, in the year one thousand eight hundred and fifty-seven; and a census of the inhabitants of each city and town, in the year one thousand eight hundred and sixty-five, and of every tenth year thereafter,” fixes the month in which the enumeration shall be taken only for the year 1857 and not for the year 1855 or for any tenth year thereafter; and accordingly the Legislature may fix the first day of April as the date as of which the State census must be taken in any tenth year following 1865.</p> <p>It plainly would be within the constitutional power of the Legislature to amend St. 1914, c. 692, by requiring the decennial State census there provided for to be taken as of May 1, 1915, instead of requiring it to be taken as of April 1, 1915.</p>

<p>The following joint order was passed by the House of Representatives on March 18, 1915, and by the Senate on March 19, 1915. - On March 24, 1915, it was transmitted to the Justices of the Supreme Judicial Court, who on April 12, 1915, returned the answer which is subjoined.</p> <p>Ordered, That, in view of the great changes which have taken place in the physical and financial character of intangible personal property since the adoption of the present tax system; of the fact that the present system of taxing such property has ceased to be equitable or proportional as regards the owners of other kinds of property and fails to produce the public revenue which it should produce; of the inequality, inefficiency and dis-proportionality which arises from the attempt to levy taxes upon all kinds of property at a definite and (within each city or town) uniform percentage of its capital or market value, without regard to the physical differences or to the differences in earning power or income which exist between the various kinds of property; of the fact that no system of administration or enforcement can be devised which will make the actual result of the present system reasonably equal or proportional; and of the fact that during long periods in the history of the Commonwealth tax laws more suitable to present conditions than the present system have been enacted and maintained under a charter or constitutional limitation that taxes upon property shall be proportional, —</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the General Court upon the following important questions of law:</p> <p>First. Can the General Court, either under the provision of the Constitution authorizing the Legislature to “impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said Commonwealth,” or under any other provision of the Constitution — for the purpose of correcting the inequalities of the statutory tax system now in force, of securing a much needed revenue from certain kinds of property which now pay (as compared with other property) a smaller tax or none at all, of making the tax laws of the Commonwealth more truly equal and proportional than they now are and thus more responsive to the constitutional requirements — enact, as was done under the Province Charter in execution of a tax clause substantially identical with that in the State Constitution, that certain forms of property shall be assessed upon their market value and other forms of property upon a certain number of times their annual value, the total assessments thus reached to be taxed at a rate uniform for each town or city; provided that the figures or multipliers used be fixed by some State authority, or by the General Court itself, with a view to securing a stricter parity of contribution, having regard to either the capital or the annual value of property and the taxes levied upon it, between the different classes of property and their owners in this Commonwealth than is possible under the present system; and provided that the intent and probable effect of the law is not to discriminate in the matter of taxation against certain forms of property or their owners in favor of the owners of other kinds of property, but that the intent and probable effect of the law is to secure a greater equality of contribution between the owners of different kinds of property, a more truly proportional system of taxation throughout the Commonwealth, a uniform rate in each town or city, and a larger public revenue than is possible under the present law?</p> <p>Second. Can the General Court, under the provision of the Constitution authorizing it to impose and levy reasonable duties and excises, impose and levy a reasonable duty or excise upon incomes derived from intangible personal property, such as money on deposit or at interest, debts due the taxpayer, public stocks and securities and stocks, bonds, notes or other evidences of indebtedness of corporations, domestic and foreign; and can it also levy at a uniform rate throughout the Commonwealth a reasonable duty or excise upon incomes derived from professions, trades and employments?</p> <p>Third. Can the General Court</p> <p>(a) Exempt from taxation such stocks of foreign corporations and such bonds, debentures, bills and notes of domestic or foreign corporations (not already so exempt) as may be proved by the holders thereof to be secured by, to represent or to derive their values directly from, tangible property (not through the holdings of stocks or bonds of other corporations), provided that such tangible property is taxable where it is located; and provided that the tax commissioner does not find that such of said tangible property as may be situated within the Commonwealth is inadequately assessed locally for purposes of taxation; and</p> <p>(b) Grant to the holders thereof the privilege (subject to the payment of a reasonable excise or duty thereon): first, of establishing the existence of such facts by filing with the tax commissioner evidence thereof satisfactory to him; and, having established such facts, second, of procuring the registration of such securities by the tax commissioner to indicate that they are exempt from taxation?</p> <p>Fourth. Can the General Court under the Constitution provide that moneys due an inhabitant of this Commonwealth from any foreign corporation or- any person or persons not residing within the Commonwealth, and all stock, bonds, notes or other evidences of indebtedness issued by foreign corporations and held by inhabitants of this Commonwealth shall have no situs within the Commonwealth for purposes of taxation and shall not be taxed under the provisions of Parts I and II of chapter 490 of the Acts of the year 1909? And can the General Court then levy a reasonable duty or excise upon the income derived by inhabitants of the Commonwealth from the foregoing classes of property?</p> <p>These questions are propounded with a view to legislation as recommended or suggested in the inaugural address of his Excellency the Governor, in a statement of the tax commissioner entitled “The Intent and Operation of the Tax Laws of Massachusetts,” Senate document No. 440, and in certain petitions to the General Court, and with special Anew to certain bills now pending before the Legislature, being Senate documents Nos. 438, 439, 445 and 446, providing for a reform in our tax laws along the lines above suggested. Said message, statement and bills are now under serious consideration by the Legislature, and copies thereof are submitted herewith.</p> <p>And the Justices are respectfully requested to receive any briefs or arguments upon the validity of either of the measures hereby referred which may be transmitted to them by the joint committee on taxation or by any person.</p>

<p>A statute, which should prohibit under a heavy penalty a railroad corporation from discharging or disciplining an employee in consequence of information relating to the employee’s conduct until such employee shall have been given an opportunity to make a statement in the presence of the person or persons furnishing the information, would be in violation of the Fourteenth Amendment to the Constitution of the United States and of the clauses of the Constitution of this Commonwealth containing similar guaranties of property rights; and such a statute also would be unconstitutional as class legislation creating a special privilege for railroad employees and subjecting railroad corporations to a burden from which other employers would be free. Loring & Crosby, JJ., stating that, inasmuch as the last mentioned ground of unconstitutionality disposed of all the questions addressed to the justices, they preferred to express no opinion upon the first mentioned ground of unconstitutionality, although not intending to throw any doubt on the opinion of the other justices as to that ground.</p>