Volume 221 — Massachusetts Reports

<p>Contract, Of guaranty, Construction, In writing, Performance and breach, Validity. Damages, In contract. Agency, Effect of false representations of agent. Guaranty. Practice, Civil, Ordering verdict.</p> <p>A contract in writing between the proprietor of a correspondence school and a subscriber to a scholarship therein contained provisions that the subscriber should pay for his scholarship a certain sum in sixteen instalments of a certain amount each, “ the first instalment to be paid at the time of the signing of the subscription ” and the others “ within each and every period of four weeks hereafter until said price is paid in full,” and also that “ the price ” to be paid for the scholarship included all charges for instruction in a certain subject until the subscriber was “ qualified to receive a diploma or certificate of proficiency, provided” he completed “said course within five years from the date ” of the contract, that the subscription should “ not be subject to cancellation ” and that the proprietor of the school should “ not be required to refund any part of the money paid for said scholarship.” Within five months from the date of the contract, the subscriber stopped studying and refused to make any further payments, and the proprietor of the school, after the date when the last instalment was to have been paid, brought an action to recover the amount of all unpaid instalments. Held, that the agreement of the subscriber to pay the stipulated price for a scholarship was an independent promise and that therefore the proprietor of the school was entitled to recover the amount of all unpaid instalments and was not limited to a recovery merely of the damages sustained by reason of the subscriber’s breach of the contract.</p> <p>Where one in writing guarantees the payment of the price for a scholarship agreed by another person to be paid “in accordance with the terms of the within subscription,” the contract of subscription is incorporated into the contract of guaranty and, if the contract of subscription contains a provision, “Do not sign this subscription without reading it. It is subject to acceptance by the Company . . . and agents are not authorized to change its conditions,” the guarantor, in an action against him after default by the subscriber, cannot rely on the defence that the subscriber was induced to sign the contract by false and fraudulent misrepresentations by an agent as to the meaning of a certain provision of the contract.</p> <p>Where, at the trial of an action upon a guaranty in writing, the defendant admits the execution of the agreement of guaranty and all the defences offered by the defendant are as a matter of law untenable and there is no question as to the amount due under the contract, it is proper to order a verdict for the plaintiff.</p>

<p>Practice, Civil, New trial, Exceptions, Appeal. Rules of Court.</p> <p>In an action by a married woman, an exception by the plaintiff to a refusal by the trial judge, at the hearing of a motion by the defendant for a new trial based on newly discovered evidence, of a request not to consider a certain affidavit supporting the motion because the affidavit was based in part on the fact that a certain name was the plaintiff’s maiden name and it did not .appear that such was her maiden name and because the plaintiff had filed an affidavit stating that such was not her maiden name, cannot be sustained where it does not appear that there was no testimony at the trial of the case supporting the defendant’s statement as to what the plaintiff’s maiden name was; because the judge had all the testimony at the trial before him and it cannot be assumed in favor of the plaintiff, who in this court must sustain the burden of showing that she was harmed by the refusal of her request, that there was at the trial no testimony that her maiden name was as the defendant stated it to be.</p> <p>Where, at the trial of an action by a married woman for the conversion of certain junk, the plaintiff, to prove that the junk was her property and not the property of a partnership of which her husband was one partner, testified that to get the money to start herself in the junk business she had taken money from a certain savings bank, and where, after a verdict for the plaintiff, the defendant files a motion for a new trial based on an affidavit of newly discovered evidence that the plaintiff for fifty years had not had a deposit in the bank in question either in her married or her maiden name, the judge at a hearing on the motion is warranted in refusing to rule that such newly discovered evidence tends only to discredit the plaintiff’s testimony, because it tends to discredit and disprove her entire circumstantial story of the formation of her business and her ownership of the junk.</p> <p>Where, in support of a motion for a new trial, the defendant relies upon an affidavit of newly discovered evidence that the plaintiff had no bank account in a savings bank in Boston either in her married or her maiden name during a period of fifty years, and it appears that the trial was in Plymouth, that the plaintiff on a Friday had testified that she had had such a bank account, and that the court thereafter had adjourned until Monday, a finding of the judge that the defendant might have exercised due diligence and yet not have discovered the facts alleged in his affidavit during the intermission in the trial is warranted.</p> <p>Where, at the trial of an action for the conversion of a pile of junk, the plaintiff testifies as to the presence of fifteen tons of copper, lead and brass in the pile, as to the value of certain iron, and as to the absence of certain old newspapers, and recovers a verdict, and, in affidavits filed by the defendant in support of a motion for a new trial on the ground of newly discovered evidence, it is alleged that upon a careful examination of the pile made after the trial there was found to be no such copper, lead or brass, that the iron was much less in value, and that the newspapers whose presence the plaintiff had denied were present, it cannot be said that the defendant was bound to anticipate the evidence which the plaintiff gave, and a finding by the judge that the defendant had not been guilty of negligence in not ascertaining before the trial the facts set out in the affidavit is warranted.</p> <p>In such a case evidence of the falsity of the testimony of the plaintiff as to the presence of copper, lead and brass does not tend merely to show that the verdict was excessive, in which case by R. L. c. 173, § 112, it should not be set aside until the plaintiff had been given an opportunity to remit what was adjudged excessive, but tends to prove the falsity of the plaintiff’s entire case.</p> <p>The filing, in support of a motion for a new trial on the ground of newly discovered evidence, of affidavits stating under oath merely the facts which will be shown by the newly discovered evidence satisfies the requirements of Rule 29 of the Superior Court.</p> <p>It is not necessary for a judge in granting a motion for a new trial on the ground of newly discovered evidence to file a memorandum stating the facts upon which he bases his action; The granting of the motion is in itself a finding of the facts upon which it is based.</p> <p>There can be no appeal to this court before a final judgment from an order of a judge granting a motion for a new trial.</p>

Tort for personal injuries caused by falling down a flight- of stairs in a building owned by the defendant. The declaration was in two counts, which are described in the opinion. Writ dated August 3, 1909. In the Superior Court the case was tried before Hardy, J. The material evidence is described in the opinion.

<p>Negligence, Employer's liability. Evidence, To prove ownership, Materiality. Practice, Civil, Exceptions.</p> <p>An action under the employers’ liability act against a street railway company for the death without conscious suffering of a lineman employed by the defendant alleged to have been caused by a defect in the ways, works, appliances and mechanism used in connection with the defendant’s business cannot be maintained on those allegations where it appears that the cause of the death was the breaking of a guy pole while the deceased was working upon it and the evidence does not warrant a finding that the pole belonged to the defendant.</p> <p>In such an action, a finding that the pole belonged to the defendant is not warranted where the only evidence on that subject was testimony of a witness for the plaintiff that it was a “guy stub” supporting “Edison poles” and that the defendant had no wires upon it, an affirmative reply of the same witness to a question, whether a guy wire which the witness and fellow workmen were taking from the pole was a guy running to the Edison pole and evidence tending to show that two days after the accident the broken stub pole was put on a team of the defendant and carried away, although, in the absence of the other evidence, evidence tending to show merely that after the pole was broken it was carried away on a team of the defendant might have warranted a finding that the pole was its property.</p> <p>A foreman in charge of a number of linemen of a street railway company (who is admitted to be a superintendent of the defendant within the meaning of the employers’ liability act), in giving to a lineman of sixteen years’ experience an order not in itself negligent to go upon a certain wooden pole called a “guy stub” pole to remove a guy from it, is under no duty first to inspect the pole and to give a warning or instructions as to how the work should be done; and, if he fails to make such inspection and to give any such warning or instruction and the employee is injured by the breaking of the pole because of a decayed condition, the company cannot be held liable for the injuries by reason of negligence on the part of the superintendent, whether the company owned the pole or not.</p> <p>In an action under the employers’ liability act against an employer for causing the death of an employee, where it is alleged that the death was caused by a failure of a superintendent of the defendant to give instructions to the employee as to a proper method in which certain work should be done and that therefore the employee used a wrong method and was injured, and where it appears that the employee was so experienced that the superintendent was under no duty to give him instructions, a witness for the plaintiff, qualified as an expert, need not be permitted to testify as to what was a proper method for the employee to use, because such evidence is immaterial and properly may be excluded. In this case the witness was permitted to state that the method adopted by the employee was improper, and it therefore was held that, if the evidence as to the proper method was competent for any purpose, the plaintiff was not harmed by its exclusion.</p>

<p>Negligence, Causing death. Practice, Civil, Exceptions, Conduct of trial. Evidence, Competency. Automobile. license. Witness, Cross-examination.</p> <p>Where in an action by an executor under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for causing the death of the plaintiff’s testatrix, the declaration contained no allegation that the testatrix was survived by any child or children or any next of Mn and this subject was not mentioned at the trial, it is not open to the defendant, after he has obtained a verdict and the plaintiff has alleged exceptions, to contend at the argument of the plaintiff’s exceptions that it does not appear that anybody is in existence for whose benefit the action could be brought.</p> <p>It seems that the failure of the holder of a license to operate an automobile to disclose, in answer to a question calling for the disclosure of any physical incapacity or infirmity when he made his application to the highway commission for the license, the facts that his right leg had been amputated two or three inches above the knee and had been replaced by an artificial one and that his left leg was withered, does not affect the validity of his license in relation to other, travellers on the highway, although it may be a ground for the revocation of the license by the highway commission. In the present case the person holding a license under such circumstances had a right to operate his automobile without a license because he had with him a licensed operator carrying his license, thus satisfying the requirement of St. 1909, c. 534, § 10.</p> <p>In an action for causing the death of the plaintiff’s testatrix by running into her with an automobile owned and operated by the defendant, after the plaintiff had been allowed improperly to show that the defendant in his application to the highway commission for a license to operate his automobile had failed to answer a question calling for the disclosure of any physical incapacity or infirmity, the judge, subject to the plaintiff’s exception, permitted the defendant to explain his understanding of the meaning of the question in the application in connection with the answer that he made to it. Held, that the plaintiff’s exception could not be sustained; because the application which the defendant improperly was trying to interpret was incompetent against him and should not have been admitted in evidence.</p> <p>The limits of cross-examination are subject to the discretionary regulation of the presiding judge.</p> <p>An exception, which originally had been included in a bill of exceptions, here was not considered, because it had been stricken out from the bill of exceptions by an amendment allowed by the judge which was "agreed to by both parties.”</p> <p>In an action for causing the death of the plaintiff’s testatrix by running into her with an automobile owned and operated by the defendant, the declaration contained a count alleging in substance that the defendant was physically unfit to operate an automobile by reason of his infirmities and disabilities. It appeared that at the time of the accident the defendant wore an artificial leg, his right leg having been amputated two or three inches above the knee, and that his left leg was withered. Subject to the plaintiff’s exception the defendant was permitted to introduce the testimony of a number of witnesses as to the manner in which the defendant operated his automobile during the two years after the accident. The defendant had testified at the trial, and in the presence of the jury was subjected to tests as to the use which he had of both legs, and the jury could have found that the defendant’s physical condition had not changed materially from the time of the accident to the time of the trial. Held, that the evidence was admissible to show the manner in which the defendant operated his automobile within a reasonable time before and after the accident for the purpose of rebutting the inference that at the time of the accident he was unfit to stop, regulate or control an automobile on account of his disabilities, but that it was not admissible for the purpose of showing that he was operating the automobile carefully at the time of the accident.</p> <p>In an action for causing the death of the plaintiff’s testatrix by running into her with an automobile owned and operated by the defendant, evidence introduced by the defendant, that the defendant after the accident drove his automobile carefully and that he was a slow and careful driver, clearly is incompetent, and an exception of the plaintiff to the admission of such evidence here was sustained, although the judge had ruled that such evidence was incompetent to show that the defendant operated his automobile carefully, because the admission of the incompetent evidence was not referred to in the judge’s charge and the jury were not instructed to disregard it, so that this court could not say that it did not have a tendency to prejudice the substantial rights of the plaintiff.</p>

Information in equity, filed in the Supreme Judicial Court on December 14, 1914, by the Attorney General at the relation of the commissioner of health, and on April 10, 1915, amended into a bill in equity brought by the commissioner of health, alleging that the plaintiff was appointed commissioner of health under St. 1914, c. 792, that the defendant since September 30, 1914, had been carrying on the business of slaughtering neat cattle, sheep and swine in the town of…

Petition, filed on January 4 and amended on January 16, 1915, for a writ of certiorari to quash the proceedings of the city council of the city of Springfield relating to the alleged widening of Fulton Street between Cypress Street and Auburn Street in that city under an order of the city council approved by the mayor on May 26, 1914.

Petition, filed on July 2, 1914, by the holder of one hundred and seventy-six shares of the common stock of the Pan-American Match Company, a corporation organized under the laws of the State of Delaware and having its usual place of business and its principal office and manufacturing plant at Worcester in this Commonwealth, against that corporation and three individual respondents, Sterling, Buxton and Tatman, respectively its president, treasurer and secretary, for a writ…

<p>Burning Insured Property. Accessory. Evidence, Competency.</p> <p>At the trial of an indictment under R. L. c. 215, § 2, for being an accessory before the fact to the felony of burning the defendant’s factory to defraud certain insurance companies in violation of R. L. c. 208, § 10, it appeared that the defendant’s factory was equipped with a sprinkler system, and that after the fire it was discovered that sixty-three out of the two hundred and fourteen sprinkler heads of the system had been plugged with corks of the size ordinarily used in half pint bottles. It could have been found that the defendant had sufficient mechanical knowledge and skill to remove the heads, insert the corks and then restore the heads to their normal position, that he had ample although not exclusive opportunity to plug the heads, and that at the time of the fire the defendant was disheartened and was not averse to making a fire sale. There also was evidence that the defendant had a brother who was employed in the defendant’s factory at the time of the fire and had been employed there for a number of years, and that at about six o’clock on thé evening before the fire occurred this brother locked up the factory for the night. There was no other evidence to show the connection of this brother with the defendant’s business or the intimacy of his relations to the defendant or his family. The presiding judge against the defendant’s exception admitted evidence that a month or two before the fire the defendant’s brother called at a " certain store and asked the proprietor “if he could let him have a number of dozen of cork stopples, at the same time holding out a cork which he held in his hand, said cork being the type ordinarily used in one half pint bottles,” but that the proprietor had no corks of that size, and also evidence that in the month before the fire the defendant’s brother bought at another store perhaps a dozen or two or three or four dozen “small corks for half pint or pint bottles.” Held, that the evidence of the actual purchase of the corks by the defendant’s brother was admissible as tending to show circumstantially that the defendant had the means' and the opportunity of procuring without direct purchase corks of the kind used to stop the sprinklers; but that the admission of the evidence of the previous inquiry for such corks by the defendant’s brother was error that required the sustaining of the defendant’s exception, there having been no evidence to show that the defendant’s brother knew the purpose for which the corks were to be used or that he in any way participated in their use or in setting the fire.</p>

<p>Poor Debtor. Evidence, Of judicial record, De bene. Judgment. Practice, Civil, Exceptions, Conduct of trial. Words, “ Commencement.”</p> <p>Where a debtor after his arrest upon an execution and a certificate has entered into a recognizance in a police court under R. L. c. 168, § 30, to appear before the court and abide its final order, if the judge of another police court, before whom the debtor appears for examination on his application to that court to take the oath for the relief of poor debtors, orders his discharge, the debtor has performed the obligation of his recognizance, and, if the order of the judge was erroneous in law, this constitutes no breach of the recognizance on the part of the debtor.</p> <p>Where a debtor after his arrest upon an execution and a certificate has entered into a recognizance in a police court to appear before the court and abide its final order, and thereafter makes application to another police court to take the oath for the relief of poor debtors, this properly is regarded as “the commencement” of a proceeding and it is the duty of the execution creditor under R. L. c. 168, § 74, to pay an entry fee of S3, and, if he refuses to do this, it is right for the judge of the court to refuse to allow the examination to proceed and to order the debtor discharged.</p> <p>The record of a police court is conclusive and cannot be controlled by oral evidence. Where at a trial evidence which was objected to was admitted da bene by the presiding judge, and an exception was taken to its admission, this exception to the provisional admission of the evidence cannot be sustained unless the excepting party afterwards asked to have the evidence stricken out.</p>

<p>Workmen’s Compensation Act. Words, “Incapable of use.”</p> <p>Under the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 11, as amended by St. 1914, c. 708, § 6, by which additional compensation is to be awarded in case a “hand, foot, thumb, finger, toe or phalange is not lost but so injured as to be permanently incapable of use,” where the elbow of the injured workman’s right arm is gone permanently, the right hand is paralyzed, leaving only a slight power of motion in the thumb and first finger and there is "interference of the circulation, so that he has a hand that goes to sleep,” and where by a suggested operation the arm could be bent so as to remain stiff at a right angle instead of hanging straight at his side “and he would be able to use it for various purposes which he could not do with it by his side,” but upon the testimony it can be found that it is pure speculation whether, if the workman should submit to such an operation, the hand ever would become in any normal sense a useful member, a finding is warranted that the workman’s right hand is “permanently incapable of use.”</p>

<p>Agency, Existence of relation.</p> <p>Where a wholesale dealer in tea and coffee hired from a general teamster a horse, wagon and driver for the stim of $29 a week to deliver merchandise for the dealer, and “had nothing to do with the care of the horse, wagon or harness or man, except to give the driver orders as to where to go for goods, or where to deliver goods,” and had no right to regulate the hours of the driver or his manner of handling goods and, when he thought the driver ought to do more work, had to take the matter up with the general teamster from whom he hired him, and where this driver carelessly lost certain chests of tea belonging to the dealer while carrying them from the wharf of a steamship company to the dealer’s warehouse, in an action by the dealer against the general teamster for the loss of the tea, it can be found that the driver whose negligence caused the loss was the defendant’s servant and was not the servant of the plaintiff.</p>

<p>Witness, Impeachment. Evidence, Dictated letter. Letter.</p> <p>Where in an action of contract, in which the evidence upon the single issue being tried is conflicting, and the defendant, in seeking to discredit a witness who has testified in support of the plaintiff’s theory of the case, offers in evidence a letter purporting to have been dictated by the witness which is typewritten on paper with the heading of the witness’s firm and is signed in typewriting in the name of the witness, in which the writer of the letter makes a strong demand inconsistent with the plaintiff’s contention as supported by the witness and in accordance with the defendant’s contention, if the witness when shown the letter denies “that he dictated or authorized or knew of this letter until two days after it was sent,” and the bookkeeper of the witness’s firm, who admittedly wrote out the letter, being called, testifies that he attended to the correspondence of the firm and ran the typewriter and that he was in the habit of signing in typewriting the name of the member of the firm who dictated the letter he was writing, although he denies that the witness dictated or knew of this letter or authorized it in any way before the bookkeeper sent it, but testifies that he cannot understand why he signed it as he did if the witness “did not dictate it,” the letter should be admitted in evidence in order that the jury may pass upon the question whether the witness dictated it and, if they find that he did, they may consider it upon the question of the witness’s credibility.</p>

<p>Practice, Civil, Finding of trial judge. Agency. Bailment.</p> <p>In an action to recover damages under a special contract by which the plaintiff agreed to furnish certain goods, retaining the title to them, to be sold by the defendant in his store as the plaintiff’s agent, where the plaintiff contended that he delivered to the defendant goods of a certain value to be sold under the contract, and that, after deducting in accordance with the terms of the contract commissions and expenses and the value of the goods returned to the plaintiff, a balance was due to the plaintiff, and where a judge, before whom the case was tried without a jury, found on conflicting evidence that such a balance was due, it was held, that, the issues being wholly of fact, the finding of the judge was conclusive.</p> <p>In an action on a special contract, against an agent to whom the plaintiff had entrusted merchandise to be sold upon a commission, for a balance alleged to be due, where the presiding judge refused to rule that the defendant was a gratuitous bailee and consequently was not liable for the goods unless he was negligent in caring for them, it was held, that the refusal of the ruling was proper, because, even if the defendant was a gratuitous bailee, bis care was not in issue in the case.</p>

<p>Negligence, Street railway. Carrier, Of passengers.</p> <p>Although under ordinary circumstances it is negligence on the part of a conductor of an open street railway car for him to give the signal to start it when a passenger attempting to board the car has one foot on the running board and is not yet fairly on the car, yet these facts are not conclusive, and, where at the trial of an action by an alleged passenger for injuries thus caused there also is evidence that the conductor had stopped the car because directly ahead the highway was crossed at grade by a steam railroad, that the conductor got off the car and went forward for the purpose of signalling to the motorman when it was safe to cross the track, that he saw no one either boarding or leaving the car or on the running board, and that he gave the signal to the motorman to go ahead, that the motorman before starting the car looked behind him and saw no one on the running board or attempting to get on the car and thereupon started the car in the ordinary and usual way, a jury is warranted in finding that there was no negligence on the part of the servants of the street railway company.</p> <p>A street railway company is not liable for injuries sustained by a person who was attempting to get upon one of its ears as a passenger at the time the car was started when such a passenger was not expected and the conductor and the motorman of the car did not see the person attempting to get on the car and had no reason to expect to see such a person.</p>

<p> Milk. </p> <p>The provision of R. L. c. 56, § 55, which prohibits having in possession with intent to sell milk to which water has been added, is violated by having in possession with such intent cream, separated from the milk by a centrifugal process, to which water has been added. Following Commonwealth v. Cordon, 159 Mass. 8.</p>

<p>Lord’s Lay. Common Victualler. License. Words, “ Common victualler.”</p> <p>One who is licensed as a common victualler under R. L. c. 102, §§ 1—22, has no right to sell any kind of food on the Lord’s day to be taken and carried away, where such sale is not a work of necessity or charity, and, if he does so, he may be convicted and punished under R. L. c. 98, §§ 2, 3.</p> <p>Assuming that a common victualler, although by R. L. c. 102, § 8, he is not required to keep his place of business open on the Lord’s day, lawfully may do so for the purpose of supplying his customers with food to be eaten upon his premises, this gives him no right to sell on that day any food to be carried away.</p>

<p>Negligence, Wilful misconduct toward trespasser. Actionable Tort. Dog. Damages. Practice, Civil, Ordering of judgment by this court.</p> <p>In an action at common law by a boy twelve or thirteen years of age for personal injuries sustained by reason of the wilful and reckless misconduct of the defendant in setting his dog on the plaintiff when he was a trespasser on the defendant’s premises and was lying on the ground after having fallen from a fence, it is not necessary for the plaintiff to allege or to prove that he was in the exercise of due care.</p> <p>In such an action the plaintiff on obtaining a verdict is not entitled to recover double damages under R. L. c. 102, § 146, on the ground that his injuries were caused by the bite of the defendant’s dog; because the recovery is at common law and not under that statute.</p> <p>Where, in an action of tort at common law for personal injuries caused by the wilful misconduct of the defendant in setting his dog on the plaintiff who had fallen from a fence when he was a trespasser on the defendant’s premises, the plaintiff had obtained a verdict to which he was entitled and the presiding judge erroneously had doubled the amount of the damages awarded by the jury, wrongly supposing that R. L. c. 102, § 146, applied when it did not, this court under St. 1913, c. 716, § 2, ordered judgment for the plaintiff in the amount of the original verdict, there being no occasion for a new trial.</p>

<p>Equity Jurisdiction, Specific performance. Equity Pleading and Practice, Appeal, Finding of trial judge.</p> <p>In suits in equity to enforce the specific performance of contracts to purchase real estate the rule in equity is applicable that the time of performance is not of the essence of the contract unless it has been made so by the parties.</p> <p>In a suit in equity to enforce the specific performance of a contract to purchase certain real estate from the plaintiff in which no time for performance was named, it appeared that the parties after making the contract agreed upon a day of performance which was about three months after the contract was made, but that afterwards by common consent there was a delay by reason of a desultory examination of the plaintiff’s title during which the defendant had been urging postponement and wrote to the plaintiff that he was unable to raise the necessary money by the day agreed upon and the plaintiff had arranged to help the defendant raise the money on certain securities of the defendant, that the defendant failed to send his securities to the plaintiff to have the money raised on them but obtained the money otherwise and two days before the day fixed for passing the papers the defendant called on the plaintiff with a certified check for the amount of the purchase money and asked whether the papers were to pass on the day fixed, that the plaintiff told him that certain proceedings in the Probate Court necessary to complete the title would not be concluded by that day, and that about a week after the day fixed for performance the defendant wrote to the plaintiff that “all negotiations are off,” whereupon the plaintiff caused the matter of adjusting his title to be completed and three weeks later on a day one month after the day that had been fixed for performance tendered to the defendant a deed conveying the land to him by a good title, which the defendant refused to accept. Held, that the case came within the rule in equity that time was not of the essence of such a contract where it had not been made so by the parties and that the plaintiff was entitled to a decree for specific performance.</p> <p>On an appeal from a final decree in a suit in equity, where it appears that the findings of the trial judge were made under a common law rule that was not applicable to the case and that the judge made no finding of fact under the rule in equity that should have been applied, the consideration of the case in this court is not affected by the decision of the trial judge.</p> <p>The rule that the decision of a judge sitting in equity will not be reversed on appeal unless clearly erroneous is not applicable to a finding of a trial judge which depends upon an inference drawn by him from evidence not in conflict. In regard to the drawing of such an inference this court stands in the same position that the trial judge stood.</p> <p>The right of a vendor to enforce in equity the specific performance of a contract to purchase certain real estate is not lost by the existence of a small incumbrance upon the property which is immaterial to the purchaser.</p> <p>In a suit in equity to enforce the specific performance of a contract to purchase from the plaintiff certain real estate in a small town, it appeared that the land in question had a frontage on a certain street of about thirteen hundred feet and that the house upon it was about eighty feet back from the street, that about fifteen years before the making of the contract sought to be enforced the highway commission had taken a strip of the land along its frontage on the street containing four hundred and ninety-two square feet, which was about one hundred and forty feet long and varied from nothing to six and one half feet in width, that a new State highway had been constructed on that street, that in constructing it the highway commission did not use any of the four hundred and ninety-two feet of land thus taken by them and the original retaining wall never had been disturbed, and that neither the plaintiff nor the defendant knew of the taking until after the filing of the bill. Held,, that the incumbrance, assuming that it was a valid one, was so small and immaterial that it did not deprive the plaintiff of his right to a decree for specific performance, but that the defendant was entitled to a deduction as compensation for the damage, if any, which had been done to the property by the taking by the highway commission.</p>

<p>Bill in equity, filed in the Superior Court on December 21, 1912, against a corporation engaged in manufacturing textile products, alleging that on October 28, 1908, the plaintiff was employed as the representative and selling agent of the defendant under an agreement by which he was to receive $5,000 a year and eight per cent of the net profits; that the plaintiff rendered the required services and received such salary and $1,124.34 represented by the defendant to be eight per cent of the net profits until December 1, 1910, when a new contract was made under which the plaintiff was to receive $7,500 a year and five per cent of the net profits; that the plaintiff rendered the required services under such new contract and received the agreed salary anrl $39.11 represented by the defendant to be five per cent of the net profits for the year 1911; that the plaintiff terminated his employment in December, 1911; and that the net profits were greater than the amounts paid to the plaintiff by the defendant as such net profits; with a prayer for an accounting.</p> <p>The case was referred to William R. Bigelow, Esquire, as master, to hear the parties and report his findings to the court together with such facts and questions of law as either party might request. The findings of the master are described in the opinion.</p> <p>The case was heard by Wait, J., upon the exceptions of both parties to the master’s report.</p> <p>The plaintiff’s fifth exception was as follows: “For that the master has found that all the bad debts of the defendant which were charged off in October and November of 1911 might properly be charged off at that time against the plaintiff and should be deducted from the gross receipts for that year in arriving at the net profits upon which the plaintiff’s commission was based.”</p> <p>The defendant’s first objection to the master’s report, on which the defendant’s first exception was based, was as follows: “The defendant objects to the rulings of the master to the effect that in ascertaining the share of the net profits to which the plaintiff is entitled a proper charge for depreciation should not be considered. The defendant objects to this ruling upon the ground that it is erroneous as a matter of law, the proper method of arriving at net profits being a question of law, the master having found as a fact that if a charge for depreciation is to be taken into account the six per cent charge made by the defendant is a proper one.”</p> <p>The exceptions of both parties were overruled by Wait, J., and both the defendant and the plaintiff appealed from the interlocutory decree.</p> <p>Later Pierce, J., made a final decree ordering that the defendant pay to the plaintiff the sum of $4,486.23 togéther with the costs of suit taxed in the sum of $42.19 and that execution issue therefor. Both parties appealed.</p>

<p>Landlord and Tenant. Negligence, Of one in control of building. Elevator.</p> <p>A lease of “the third floor with the exception of the staircases and elevator wells” of a six story building contained the following provision: “This is a lease of the floor space only excepting that the staircases may be used by the lessee for the purpose of access to and from the herein leased premises. . . . The lessee agrees to use the freight elevator for freight purposes only and will allow no person to ride on same.” A person invited or permitted by the lessee to come upon the leased premises to take away paper stock went up to the third floor in the freight elevator, and, finding no paper stock, attempted to return in the same manner, but the freight elevator had moved upward and he stepped into the elevator well where he supposed the elevator to be and was killed. There was a passenger elevator for the use of the tenants and those having the right of access to their leased premises. In an action against the owner of the building for causing the death, there was evidence, which was admitted without objection, that there was a custom in the building that while delivering freight the person in charge of it might ride on the freight elevator. Held, that the plaintiff’s intestate had no right to use the freight elevator at the time he was killed, because he was not delivering freight nor in charge of any freight, so that, even assuming that the express covenant in the lease could be changed by a custom of the building, a verdict must be ordered for the defendant.</p> <p>If the owner of a six story building, the different parts of which are leased to various tenants, retains control of the elevators and maintains a gate on each floor to prevent persons from falling into the well of a freight elevator, and these gates, are designed to be raised by a person using the freight elevator at the floor at which he wishes to get off and are designed to slide back into place when the elevator leaves that floor, but owing to a want of proper lubrication, which ought to have been done by an employee of the owner of the building, one of these gates remains up when it should have dropped to the floor after the elevator had left the landing place, whereupon a person, to whom the owner of the building owes a duty greater than that which he would owe to a mere licensee or a trespasser, relying on the absence of the gate steps into the elevator well at the place where he supposes the elevator to be and is killed, in an action for causing his death a finding is warranted that the owner of the building was negligent.</p> <p>A lease of the third floor of a six story building “with the exception of the staircases and elevator wells,” which is “a lease of the floor space only,” cannot be interpreted to mean that the lessee has control of a gate placed at the well of a freight elevator to prevent persons from falling down the well when the elevator is not there, which has to be raised by a person getting out of the elevator at that floor and is designed to slide back to the floor after the elevator has passed away from it.</p> <p>A covenant in a lease of the third floor of a six story building “with the exception of the staircases and elevator wells,” that “the lessee will defend any law suit and pay any claim or damage arising from any accident or accidents to any person, persons or property in consequence of his occupancy of the herein leased premises,” .does not protect the lessor against direct liability to one injured through his negligence in regard to an elevator well of the building which is not leased to the tenant nor within the tenant’s control.</p> <p>If a person on the third floor of a six story building, who has landed from a freight elevator at that floor after pushing up a gate, returns a few moments later and sees that the gate is still up, and, relying on that fact and not noticing the absence of the elevator on account of the darkness of the place, thinks that the elevator has remained at the landing, and, stepping where he supposes it to be, falls down the elevator well, he is not negligent as matter of law.</p>

<p>Negligence, In maintenance of revolving door, Proximate cause. Revolving Door. Proximate Cause.</p> <p>In an action against the proprietor of a store for personal injuries sustained by the plaintiff from being thrown down by the rapid revolution of a revolving door through which the plaintiff was entering the defendant’s store, there was evidence that at the time of the accident the door revolved much more easily and much more -rapidly than such doors usually revolved, that after one witness had passed through it and entered the store the door made at least two more revolutions although he had pushed it very gently, that he then gave the door a hard push with his left hand and it made eight or nine revolutions before it stopped, that strips of rubber and felt were fastened along the top and sides of each wing for the purpose of retarding the door when it revolved and to prevent its spinning, that these friction strips were fastened to the wings of the door in such a manner that they could be adjusted from time to time when they were worn down by use, that at the time of the accident the friction strips were narrower and had less contact than was usual with revolving doors, that nothing had been done to the friction strips on this door since it was installed three years before the accident and that no inspection to determine the condition of the strips ever had been made by the defendant. Held, that there was evidence for the jury of negligence on the part of the defendant in not inspecting the friction strips and in failing to adjust them on their becoming worn down.</p> <p>In an action against the proprietor of a store for personal injuries sustained by the plaintiff from being struck in the back and thrown down by a revolving door through which she was entering the defendant’s store, where there is evidence that the defendant was negligent in not inspecting the friction strips with which the wings of the door were equipped to control its speed and in failing to adjust these strips on their becoming worn down, and where there also is evidence that as the plaintiff was entering the store through the revolving door a man was going out of the store through the same door on the other side of it and that he “went out just like anybody that is in a hurry,” if the jury find that the action of this man in going out was the immediate cause of the door spinning round and hitting the plaintiff in the back, this does not prevent a finding that the defendant’s negligence was the cause of the plaintiff’s injuries, if the jury can and do find that the defendant reasonably ought to have anticipated that a customer might go out through the revolving door in a hurry and thus set it spinning.</p> <p>It is not necessarily negligent for a woman who is entering a store through a revolving door to fail to take hold of one of the brass railings with which each wing of the door is equipped.</p>

<p>Contract on a promissory note of Nathaniel A. Eldridge and Ethel E. Eldridge, his wife, for $1,385 payable to Edward F. Gleason on October 9,1913, with interest at the rate of six per cent per annum, indorsed by Gleason to the order of the plaintiff and indorsed by the plaintiff in blank.</p> <p>The answer alleged that the plaintiff was not a holder in due course and that he had notice of the infirmities of the note, that the note was procured from the defendants by the payee Gleason oy threats of hnpnsomnent of the defendant Eldridge and that the free will of the defendants was overpowered by duress when they were induced to sign the note, which they now repudiated, of all which the plaintiff was alleged to have had notice when the note was negotiated to him..</p> <p>In the Superior Court the case was tried before Ratigan, J. At the close of the' evidence, which is described in the opinion, the judge ordered the jury to return a verdict for the plaintiff in the amount of the note with interest at the rate of six per cent per annum from the date of the note, which was October 9, 1911. The defendants alleged exceptions.</p>

<p>Workmen’s Compensation Act, Dependency.</p> <p>In a claim under the workmen’s compensation act by the daughter of a deceased employee whose death resulted from an injury arising out of his employment, where it appears that the widow of the employee was not living with him at the time of his death and makes no claim as a dependent, that the daughter was over eighteen years of age, that she lived with her mother and, although too ill to go out to work, helped her mother in running the household, that for a year and a half before her father’s death her father sent to her from $4 to $5 a week, that this was her only income except pay for two weeks’ work so small that it may be disregarded, and that she had saved $100, apparently from the money given her by her father, of which since her father’s death from $50 to $60 had been used, it can be found that the daughter at the time of her father’s death was wholly dependent upon him for support.</p>

<p>Contract against John Bross Lloyd of Winnetka in the State of Illinois for the breach of an alleged contract to marry the plaintiff, William B. Sprout of Brookline and James H. Flint of Weymouth being summoned by trustee process as trustees. Writ dated January 14, 1914.</p> <p>Personal service was made upon the alleged trustees and service was attempted to be made upon the defendant by leaving a copy of the writ at the Hotel Charlesgate in Boston, alleged to be his last place of abode in this Commonwealth.</p> <p>On January 24,1914, Henry D. Lloyd, a brother of the defendant, filed an adverse claim, which he filed again after the entry of the case. On application of the plaintiff an order of court was made under which service was made upon the defendant by publication and by a registered letter which was received by him in Illinois.</p> <p>In the Superior Court the case was heard by Jenney, J., on motions respectively to charge and to discharge the trustees and upon the petition of Henry D. Lloyd as adverse claimant.</p> <p>It appeared that for some years before June 20, 1913, John B. Lloyd, the defendant, who was unmarried, had been a resident of Massachusetts; that on February 15, 1909, while such resident, he was placed under guardianship as a spendthrift by a decree of the Probate Court for Middlesex County upon a petition filed by his brother Demarest Lloyd; and that William B. Sprout and James H. Flint, the alleged trustees in the present action, were appointed his guardians; that before this appointment the defendant had on January 13, 1909, conveyed substantially all of his property in trust to Mr. Sprout and Mr. Flint; that on February 19,1913, the guardians filed in the Probate Court their resignations, which were dated February 18,1913, and were assented to only by the defendant, and a decree was entered by the Probate Court accepting the resignations on the same date; that the docket records of the Probate Court did not show that any previous or subsequent notice of these resignations or any notice of the decree was given to any other person; that on March 18 and March 19, 1913, the defendant’s brothers, including the original petitioner, Demarest Lloyd, filed claims of appeal from the decrees accepting the resignations, and entered their appeals in the Supreme Judicial Court on March 21, 1913, giving all proper notices; that on March 26,1913, one of the defendant’s brothers, William B. Lloyd, filed petitions in the Probate Court for Middlesex County for the appointment of a new guardian for John B. Lloyd as a spendthrift and for the appointment of a conservator; that on June 19, 1913, waivers of the appeals pending'in the Supreme Judicial Court were filed; that on June 20, 1913, a decree was entered by the Supreme Judicial Court confirming the decree of the Probate Court accepting the resignations of the guardians; and that on the same day all parties waived their rights of appeal from this decree; that on June 19, 1913, the defendant executed a conveyance through one Halloran of all his property, including all of his interest in the property held by Mr. Sprout and Mr. Flint under the trust of January 13, 1909, to three trustees, namely, John B. Lloyd, William B. Lloyd and Henry D. Lloyd, being the defendant and two of his brothers; that the trust was accepted by all of the parties thereto, and that subsequently the conveyance was redelivered about June 26, 1913.</p> <p>The defendant in answer to interrogatories testified that on April 28, 1913, he and the plaintiff mutually promised to marry and that on that day he presented her with an engagement ring; that June 25, 1913, was the day fixed for the wedding, and that on June 20, 1913, he wrote to the plaintiff a letter in which for the reasons there given he asked her to consider their engagement at an end.</p> <p>The judge made an order for a decree that the claim of the adverse claimant be disallowed, and that William B. Sprout and James H. Flint, the alleged trustees of the defendant, be charged as such trustees for the sum of money disclosed by them in their answer, and, being of the opinion that the correctness of the order ought to be determined before any further proceedings in the Superior Court, reported the case to this court for such determination.</p>

<p>Damages, In tort. Practice, Civil, New trial.</p> <p>At the trial of an action for personal injuries by a tailor, whose business consisted of both making and repairing clothes and who, besides having certain stock on hand, always had working for him at least two persons and had a part of the work done by outside tailors, after the plaintiff has introduced without objection evidence tending to show his physical inability to do his usual work consequent upon his injuries, it is error for the presiding judge, against the defendant’s exception, to permit the plaintiff to show that the profits of his business for the six months before the accident were $1,200 and that for the corresponding period after the accident they were only $500; because the amount of the profits derived from the plaintiff’s business depended on other important elements besides his earning capacity.</p> <p>Where an error at the trial of an action of tort for personal injuries, in which the plaintiff obtained a verdict, consisted only of the admission of certain incompetent evidence introduced by the plaintiff upon the question of damages, this court in sustaining exceptions alleged by the defendant ordered that the new trial should be confined to that issue.</p>

<p>Scire facias in the District Court of Southern Berkshire dated June 4, 1913, by John W. Cropper, an execution creditor of Thomas Carder of Pittsfield, against Mary T. Gorham, who had been summoned as trustee in the action in which the execution issued, Joseph Walker of Quincy having been permitted by an order of court of August 12, 1913, to intervene as a claimant; and</p> <p>Contract by Joseph Walker, as the common law assignee for the benefit of the creditors of Thomas Carder under an instrument in writing dated January 18, 1913, upon a contract in writing between Carder, doing business under the name of the Carder Monument Company, and Della MacFarland, therein called Mrs. J. MacFarland, of Great Barrington, John W. Cropper having been made a defendant as claimant of the fund upon petitions of interpleader filed by both the defendant and the plaintiff. Writ in the Superior Court dated June 17, 1913.</p> <p>The first case having come to the Superior Court by appeal, the two cases were tried together before Hardy, J. The defendants, Mrs. Gorham in the first case and Mrs. MacFarland in the second case, had no interest in the trial, it being admitted that each of them owed to Carder, the insolvent assignor, the sum of money claimed by Cropper as an execution creditor of Carder and by Walker as the common law assignee of Carder for the benefit of his creditors. The essential facts shown by the evidence are stated in the opinion.</p> <p>The instrument of assignment under which Walker made his claim was as follows:</p> <p>“This indenture,made this 18th day of January in the year 1913 by and between Thomas Carder of Pittsfield, Berkshire County, Massachusetts, doing business in said Pittsfield under the name of Carder Monument Company and Joseph Walker, Trustee, of Quincy, in said Commonwealth, doing business in said Quincy under the name of Aberdeen Granite Works. Witnesseth:</p> <p>“That whereas the said Thomas Carder has been carrying on the business of manufacturing headstones and monuments in said Pittsfield under the said name of Carder Monument Company and has contracted indebtedness, liabilities and obligations to divers and sundry persons and parties:</p> <p>“Now therefore, in consideration of one dollar and other valuable consideration to said Carder paid by said Walker, Trustee, the receipt whereof is hereby acknowledged, the said Carder does hereby assign, transfer, set over, give, grant, bargain, sell, convey, remise, release and confirm unto the said Joseph Walker, his successors or assigns as Trustee, as hereinafter set forth, all goods, wares, merchandise, fixtures, machinery, stock in trade, whether raw, or in process of manufacture, and all book accounts with full power to collect and compel the payment of the same, either in his own name or in the name of said Carder Monument Company, also all policies of fire insurance and all other property and assets of every kind owned by said Carder, wherever the same may be located, but expressly excepting from the obligation of this assignment all property which is by law exempt from being taken on or by any legal process.</p> <p>“To have and to hold to him, the said trustee above named and his successors or assigns, to his or their use forever, but in trust nevertheless for the uses and purposes following, to wit:</p> <p>“1. To carry on in the name of said Carder Monument Company, or otherwise, the said business so carried on by said Carder as aforesaid in the same or any other maimer, but only until such time as all contracts heretofore entered into by said Carder Monument Company are carried out, with full power and authority to dispose, by sale or otherwise, of all the assets of said Carder Monument Company for the purposes of this trust but with a view to gradually winding up said business, instead of immediately selling the same; and, for the purpose of such carrying on said business as aforesaid, to employ or authorize the employment of the debtor as manager, of said business, and any other persons, as clerks, servants, or otherwise, and to pay out of the trust monies to the debtor, and to any other person who may be so employed, such salary or wages, or remuneration for services rendered, as the said trustee shall think fit. It is hereby agreed and declared that for the purposes of carrying on as aforesaid the said business, it shall be lawful for the said trustee, from time to time, at the expense of the trust estate to procure by purchase, hire or otherwise, such stock in trade, fixtures, materials, chattels or articles as they or he shall think fit.</p> <p>“And it is further agreed and declared that during such carrying on of the said business, the said trustee shall make or cause to be made, in proper books, full and true entries of all monies received or expended by him in carrying on said business, and shall keep a record of all transactions and matters connected with the same, and shall pay all rents, taxes, and outgoings, including the expense of insurance and repairs. Said books and records to be open to the creditors of said Thomas Carder at any reasonable time upon request in writing. --</p> <p>“2. After the above referred to contracts of the Carder Monument Company have been carried out, and all monies due said Carder, so far as is reasonably possible, are collected, the said trustee is:</p> <p>“a. To first pay and retain thereout, all costs, charges and expenses of or incidental to the negotiation, preparation and execution of these presents and of or to the carrying of the same into effect.</p> <p>“b. And second to pay all claims which are by law entitled to be paid in full and in priority to other debts; so far as the assets will permit.</p> <p>“c. And finally to pay, divide and distribute the residue of said monies ratably unto and among the said creditors in discharge of their said debts, by such instalments and at such times as said trustee shall think fit, and to pay the surplus, if any, to said Thomas Carder.</p> <p>“3. All claims of creditors are to be proved in the same manner as claims in bankruptcy proceedings.</p> <p>“ In witness whereof, the parties hereunto set their hands and seals to this and to another instrument of like tenor on the day and year first above mentioned.</p> <p>Thomas Carder, L.S.</p> <p>Joseph Walker, L.S.</p> <p>“We, the following, being the creditors above referred to of said Thomas Carder, do hereby express our consent to the foregoing and in consideration therof, respectfully hereby release the said Thomas Carder from all claims and demands of every name and nature, owing from said Thomas Carder to us.</p> <p>Amount to Claim. Name of Creditor.</p> <p>$3520.36 Aberdeen Granite Works, Quincy, L.S.</p> <p>800.70 Adié and Milne, L.S.</p> <p>410.00 Littlejohn Adgers & Milne, L.S.</p> <p>385.53 Torreys & Co. M. C., L.S.</p> <p>198.35 Hoyt & Lebouvre Co., L.S.</p> <p>198.80 Edward W. Jones, Jones Bros. Co., L.S.</p> <p>555.00 Everson & Co., L.S.</p> <p>325.60 Geo. II. Bickford, Woodbury Gr. Co., L.S.”</p> <p>At the close of the evidence Cropper asked the judge to make the following rulings:</p> <p>“1. The so called assignment, being a triparty agreement, viz., an agreement between Thomas Carder, assignor, Joseph Walker, assignee and creditor, and certain other creditors of said Carder, it would not take effect and be binding until signed by all the parties in interest, and if Cropper had not assented to said assignment and had made his attachment by trustee process before the contract of assignment was fully executed, it is not binding upon Cropper and the verdict should be for Cropper.</p> <p>“2. If Thomas Carder made this assignment for the benefit of a portion of his creditors only, whom he intended to prefer, and intentionally omitted other creditors, including said Cropper, and if Walker supposed that the assignment included all of Carder’s creditors, then the assignment is not a valid contract of assignment because there was a misunderstanding between Carder and Walker upon a material point as to the purpose and effect of the contract of assignment.</p> <p>"3. If Carder was insolvent when he made this assignment, then such assignment is repugnant to the spirit and provisions of the bankruptcy act, so called, and is void as against all creditors not assenting to it, because the insolvency laws and the bankruptcy act require an equal distribution of the estate of an insolvent among all his creditors.</p> <p>“4. If Cropper did not assent to this assignment, and if Carder did not intend to include him in this assignment, then the assign.ment is not binding upon Cropper and the verdict should be in his favor.”</p> <p>The judge refused to make any of these rulings, and gave to the jury certain instructions that were requested by Walker. The jury returned a verdict for Walker in each of the cases; and Cropper alleged exceptions.</p>

<p>Practice, Civil, Venue. Negligence, Steamship company, Causing death. Carrier, Of passengers. Ship.</p> <p>Under St. 1904, e. 320, which provides that an action to recover for injury or damage received by reason of negligence “ shall be brought in the county in which the plaintiff lives or has his usual place of business, or in the county in which the alleged injury or damage was received,” an action by an administrator for injuries received by the plaintiff’s intestate by reason of the defendant’s negligence cannot be maintained in the county in which the plaintiff is employed as the manager of a department store and in which the plaintiff’s intestate was employed as the assistant manager of the same store, if the plaintiff lives and his intestate lived in another county and the intestate’s injuries were received in still a third county.</p> <p>If a passenger on an ocean going steamship has been walking in the evening upon a deck where passengers are permitted to go and where a space from three to five feet wide between, a life boat and a life raft has been left open and unguarded, and if when such passenger is putting down a camp stool that he has in his hand the vessel gives a lurch and he falls overboard through the open space, he is not negligent as matter of law, because he has the right to assume that during the voyage no place on the vessel where passengers are allowed to go will be left entirely without some guard or a rail at the edge of the deck to prevent a passenger from falling overboard; and it cannot be said as matter of law that such a passenger assumes the risk of such an injury.</p> <p>The regulations of the United States requiring ocean going vessels to have life boats so placed and fitted that they can be launched safely in less than two minutes do not absolve the owner of such a vessel, when carrying passengers and permitting them to use the deck where the life boats are, from his duty to maintain reasonable guard chains between the ends of two life boats to prevent passengers from falling overboard in the open space between the boats, or, if the only kind of guard consistent with the federal regulations is an insecure one, from his duty to exclude passengers from the immediate neighborhood of the life boats.</p> <p>When an ocean going vessel is carrying several hundred passengers and on a deck to which the passengers are admitted the open space between two life boats near the edge of the deck is guarded only by a chain which is unfastened easily, it is the duty of the owner of the vessel to make some sort of inspection to protect passengers against the danger likely to follow if the guard chain becomes unfastened; and, if under such circumstances a passenger is injured by falling overboard through the open space between the life boats, in an action to recover for his injuries it is a question for the jury whether such reasonable inspection as the owner ought to have exercised would have revealed the fact that the guard chain had become unfastened.</p> <p>Without deciding whether at the trial of the action above described a special question to the jury “Was the defendant negligent in failing properly to guard the place where the accident happened? ” was objectionable as assuming that the defendant failed to guard the place and merely asking the jury whether such failure was negligence, it was said, that it would have been better to have put the question in the form “Did the defendant negligently fail to guard the place where the accident happened? ” or in some other form which would have avoided the possible implication that the place was unguarded and that the only point to be decided was whether leaving it unguarded was a negligent act.</p> <p>Where, in an action by an administrator against a corporation operating a steamship line for causing the death of the plaintiff’s intestate by negligently failing to guard the edge of the'deck of a vessel of the defendant on which the intestate was a passenger so that he fell overboard and was drowned, the trial proceeded on the theory that the defendant’s liability depended upon St. 1907, c. 375, which has no application to the liability of a common carrier of passengers, whereas the defendant’s liability was governed wholly by R. L. c. 70, § 6, but no specific exception to this error in procedure was taken at the trial, this court did not find it necessary to determine whether a new trial would have been ordered for this reason alone; because an exception was sustained on another ground which required a new trial.</p> <p>Where an action by an administrator against a corporation operating a steamship line for causing the death of a passenger was tried erroneously as if the defendant’s liability depended on St. 1907, c. 375, whereas that statute had no application and the defendant’s liability was governed wholly by R. L. c. 70, § 6, it was found not to be necessary to decide whether the questions of the negligence of the defendant in its corporate capacity and of the gross negligence or unfitness of its servants or agents were raised by the defendant’s requests for instructions in general terms, although these questions were not thought of by the judge or the counsel at the trial; because there was to be a new trial in which the case would be presented upon the proper issues.</p>

<p>Tort for an alleged abuse of civil process and malicious interference with the plaintiff’s contract of employment, when he was employed as he had been during a long period of time at making heels on shoes at the factory of J. L. Walker and Company at Lynn, by serving on the plaintiff’s employer on January 18, 1912, maliciously and with intent to injure the plaintiff a copy of an assignment of wages alleged to have been made by the plaintiff, by reason of which the plaintiff was discharged. Writ in the Municipal Court of the City of Boston dated March 12, 1912.</p> <p>On app’eal to the Superior Court the case was tried before Hitchcock, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make certain rulings, which are referred to generally in the opinion. The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $800.</p> <p>The verdict was returned on January 30, 1914. The twenty days after the verdict within which exceptions might have been filed without an extension of time expired on February 19, 1914. On February 12, 1914, on motion of the defendant the time for filing a bill of exceptions was extended to March 15, 1914. On March 12, 1914, the time was extended further to April 1. On March 30 the time was extended further to April 6, 1914. On April 6 the time was extended further to April 8 and on April 8 was extended further to May 1, 1914.</p> <p>On April 28, 1914, the defendant filed a bill of exceptions. All the extensions mentioned above which were made after February 19,1914, were made either ex parte or against the objection of the plaintiff.</p> <p>Later the bill of exceptions was amended by leave of the trial judge, and on November 13, 1914, the judge made a certificate setting forth the foregoing facts in regard to the extensions of the time for-filing the exceptions, and made an order allowing the exceptions alleged by the defendant “if it can be done under the state of facts as set forth in the certificate.”</p> <p>On November 19, 1914, the plaintiff alleged exceptions to the allowance by the judge of the defendant’s exceptions and to the denial of a motion made by the plaintiff on March 21, 1914, that judgment be entered on the verdict. The plaintiff’s exceptions were allowed by the judge on the day of their filing.</p>

<p>Negligence, Employer’s liability. Agency. Practice, Civil, Exceptions.</p> <p>In an action by one employed as machinist in a three story factory of the defendant for personal injuries from a freight elevator being put in motion by a fellow workman of the plaintiff on the third floor, when the plaintiff, who was engaged in directing repairs on the elevator well above him, was sitting on the sill of a doorway of the elevator well on the ground floor with his feet resting on the platform of the elevator, it appeared that the accident happened after the workmen’s compensation act was in force and that the defendant was not a subscriber under the act, so that under St. 1911, c. 751, Part I, § 1, cl. 2, the defendant was liable to the plaintiff for the consequences of the negligent acts of the fellow servants of the plaintiff in the defendant’s employ. There was no evidence showing that any adequate precautions had been taken by the defendant to prevent the use of the elevator while the work of repair was going on either by warning or by instruction or .by the posting of notices. There was evidence that one of the defendant’s employees had procured some stock on the third floor and went to the elevator to take it down with him, that there he met a fellow employee who was standing near the push button that was used to ring a signal gong on the second story, that he received information from this fellow employee which led him to suppose that the elevator was in running order and he saw this fellow employee put his hand on the button as if to ring the gong, that thereupon he pulled the rope, the elevator started and the intestate was injured. There also was evidence that, although the gong was in working order, it did not sound. Held, that the question of the negligence of the defendant in failing, to take adequate precautions to prevent the use of the elevator while the work of repair was going on was for the jury, as was the question whether the defendant’s employee who failed to sound the gong and who gave the information that it was safe to run the elevator was negligent, and also the question whether the defendant’s other employee who started the elevator by pulling the rope without sounding the gong was negligent.</p> <p>In an action of tort for personal injuries from the starting of a freight elevator, when the plaintiff’s intestate was at work in the elevator well, the defendant’s bill of exceptions stated that the jury viewed the premises and “ with the assent of both counsel” the elevator was operated and its appurtenances inspected, and also stated that there was evidence that at the time of the injury to the deceased the elevator was in the same condition as when viewed by the jury. The bill then stated that the “reference to the view is made a part of the record against the objection of the defendant who excepts thereto.” Held, that the defendant, having presented the bill of exceptions, could not be heard to complain of what it contained, and also that there was nothing to indicate that the defendant was harmed in any way by the reference to the view.</p>

<p>Tax, On legacies and successions. Judgment.</p> <p>At the trial of an information in equity brought by the Attorney General at the relation of the Treasurer and Receiver General under St. 1909, c. 266, § 1, and St. 1909, c. 490, Part IV, §§ 19,20, against an administrator to recover a succession tax, where it appears that the tax commissioner determined the value of the estate to be a little over $1,000 and determined that an inheritance tax in a sum named was due to the, Commonwealth and notified the defendant of such determination and that no proceedings had been taken under § 19 to reduce such valuation, although such determination of the valuation of the estate is final, the defendant may show that the payment by him as administrator of just debts of his intestate reduced the total assets of the estate to a sum less than $1,000 and that therefore under § 1 no tax is due to the Commonwealth.</p> <p>Whether in such a suit a decree of the Probate Court allowing the account of the defendant as administrator in which the payments of the debts of his intestate were stated, the decree having been entered without any notice to the Commonwealth, is binding upon the Attorney General, it here was unnecessary to determine, because the amount of the payments made by the defendant as administrator was not in dispute.</p>

<p>Contract against the city of Lowell to recover the amount of money that the plaintiff would have earned as a foreman of laborers of the street department of the defendant from July 21, 1914, to the date of the writ, if he had not been suspended from his position in the manner stated in the opinion. Writ dated July 21, 1914.</p> <p>In the Superior Court the case was tried before McLaughlin, J. The evidence offered by the plaintiff and excluded by the judge is described in the opinion. The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>St. 1904, c. 314, entitled “An Act to regulate removals and suspensions from office and employment in the classified civil service,” is as follows:</p> <p>“Section 1. Every person holding office or employment in the public service of the Commonwealth or in any county, city or town thereof, classified under the civil service rules of the Commonwealth; shall hold such office or employment and shall not be removed therefrom, lowered in rank or compensation, or suspended, or, without his consent, transferred from such office or employment to any other except for just cause and for reasons specifically given in writing.</p> <p>“Section 2. The person sought to be removed, suspended, lowered or transferred shall be notified of the proposed action and shall be furnished with a copy of the reasons required to be given by section one, and shall, if he so requests in writing, be given a public hearing, and be allowed to answer the charges preferred against him either personally or by counsel. A copy of such reasons, notice and answer and of the order of removal, suspension or transfer shall be made a matter of public record.”</p> <p>St. 1911, c. 624, entitled “An Act relative to removals, suspensions and transfers in the civil service,” is as follows:</p> <p>“Section 1. Every person now holding or hereafter appointed to an office classified under the civil service rules of the Commonwealth, except members of the police department of the city of Boston, of the police department of the metropolitan park commission, and except members of the district police, whether appointed for a definite or stated term, or otherwise, who is removed therefrom, lowered in rank or compensation, or suspended, or, without his consent, transferred from such office or employment to any other, may, after a public hearing, as provided for by section two of chapter three hundred and fourteen of the acts of the year nineteen hundred and four, as amended by chapter two hundred and forty-three of the acts of the year nineteen hundred and five, and within ten days after such hearing, bring a petition in the police, district or municipal court within the judicial district where such person resides, addressed to the justice of the court and praying that the action of the officer or board in removing, suspending, lowering or transferring him may be reviewed by the court, and after such notice to such officer or board as the court may think necessary, it shall review the action of said officer or board, and hear the witnesses, and shall affirm said order unless it shall appear that said order was made by said officer or board without proper cause or in bad faith, in which case said order shall be reversed and the petitioner be reinstated in his office. The decision of the justice of said police, district or municipal court shall be final and conclusive upon the parties.</p> <p>“Section 2. This act shall take effect upon its passage.”</p>

<p>Tax, On intangible property held by trustees. Trust, Taxation.</p> <p>Under St. 1909, c. 490, Part I, § 23, cl. 5, bonds and shares of corporate stock, the legal title to which is in trustees residing in this Commonwealth, where all the beneficiaries of the trust reside out of the Commonwealth, must be assessed for taxation to such trustees, although the bonds and the certificates of stock are deposited and kept in another State and the trustees were appointed by a probate court of such other State.</p> <p>In the present case it was unnecessary to consider what would have been the effect of a statute of the State where the evidences of the intangible property were deposited and kept undertaking to establish by law a situs in that State for all intangible property held by trustees appointed by its courts.</p> <p>It also was unnecessary to consider what the decision of this court would have been • if the property assessed here for taxation had been part of an estate in process of settlement and distribution in the courts of another State.</p>

<p>Contract for use and occupation of premises of the plaintiff “for billboard purposes.” Writ in the Municipal Court of the City of Boston dated December 3, 1910.</p> <p>Judgment was entered for the defendant in the Municipal Court and an appeal was claimed by the plaintiff under the circumstances stated in the opinion.</p> <p>Upon the entry of the appeal in the Superior Court, the defendant filed a motion that the case be dismissed because the appeal was not taken and perfected within the time provided by the statute. The motion was heard and was denied by Jenney, J. The defendant appealed and the judge, after the trial of the case in the Superior Court and the allowance of exceptions of the defendant saved at the trial, reported the case for determination by this court as to the correctness of his ruling.</p> <p>The case was tried before Hitchcock, J. The material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings, among others:</p> <p>“1. On all the evidence and the pleadings the plaintiff is not entitled to recover and your verdict must be for the defendant.” “6. On all the evidence the relation of landlord and tenant did not exist between the plaintiff and the defendant.”</p> <p>The rulings were refused. The jury found for the plaintiff in the sum of $364.10; and the defendant alleged exceptions.</p>

<p>1 Contract for certain commissions alleged to be due to the plaintiff as a salesman for the defendant. Writ dated May 22, 1912.</p> <p>The case was referred to Frank Paul, Esquire, as auditor, and afterwards was tried before Keating, J. The material evidence is described in the opinion. At the close of the evidence, the defendant asked for rulings that the plaintiff was not entitled to recover on any count of his declaration, and for the following ruling:</p> <p>“5. If the jury find that the one and one half per cent upon $45,802.16 worth of shipments which was admittedly received by the plaintiff between November 1, 1908, and May 1, 1909, said shipments resulting from the sale of samples prior to said November 1,1908, was received by him and paid by the defendant under the contract as to remuneration then existing between the parties and that the plaintiff was entitled to receive such sum under said contract, then in as much as such method of remuneration was continued in force under the contract of November 1, 1910, which the plaintiff has declared upon, as a matter of law the custom upon which the plaintiff relies is not applicable and the plaintiff is not entitled to recover.”</p> <p>The rulings were refused. The jury found for the plaintiff in the sum of $2,557.06; and the defendant alleged exceptions.</p>

<p>Petition, filed on September 29, 1910, under St. 1906, c. 463, Part I, § 37, for the assessment of damages alleged to have been suffered by reason of the changes wrought in the abolition of the crossing at grade of the defendant’s railroad with Mill Street in the part of Boston called Dorchester.</p> <p>In the Superior Court the case was tried before Fessenden, J. The material facts are stated in the opinion. The jury found in substance that the only damage suffered by the petitioners was “by reason of effect on view,” and found for the petitioners in the sum of $411.55. The respondent alleged exceptions.</p>

<p>Contract, Performance and breach. Practice, Civil, Premature action, Exceptions. Time.</p> <p>Where, at the trial of an action against a manufacturer for the alleged breach of a contract to employ the plaintiff for a year, the plaintiff’s testimony tends to show that he was discharged unjustifiably within a few days after his employment began and that he brought the action afterwards on the day of his alleged discharge, and the only question is whether the action was brought before the contract was broken, the defendant is not entitled to a ruling that there was no breach of the contract at the time the action was brought.</p>

<p>Habeas Corpus. Supreme Judicial Court. Practice, Civil, Appeal, Exceptions. Probate Court, Jurisdiction. Constitutional Law. Guardian. Parent and Child. Illegitimacy.</p> <p>No appeal lies from a decision or order of a single justice of the Supreme Judicial Court dismissing a petition for a writ of habeas corpus.</p> <p>It is doubtful whether exceptions lie to rulings made at a hearing on a petition for a writ of habeas corpus. The usual method of bringing the question of the correctness of such rulings before this court is by a report or a reservation by the single justice, or an adjournment of the case into this court for determination.</p> <p>The Probate Court has jurisdiction to appoint as guardian of an illegitimate child a person other than the child’s mother, although the mother is living.</p> <p>The Legislature has power to authorize the appointment, as guardian of an illegitimate child with custody of the child’s person, of some one other than the child’s mother, although the mother is living.</p> <p>Where, upon the filing of a petition for a writ of habeas corpus seeking the discharge of an illegitimate minor from the custody of a guardian appointed by the Probate Court, an order is issued to the guardian to appear and show cause why the writ should not issue, and, on the return day of the order of notice, a single justice of this court ascertains by inquiry of the attorneyfor the petitioner that the ground upon which the petitioner rested was want of jurisdiction of the Probate Court to appoint a guardian of the child, it is proper for the single justice to hear the parties without the issuance of the writ or the production of the minor for the purpose of ascertaining whether there is cause, prima fade, for the issuance of the writ, and after such hearing to dismiss the petition.</p>

<p>. Tort for permitting an assault and battery to be committed upon the plaintiff when he was travelling from Boston to Bridge-water as a passenger on a railroad train of the defendant on June 25, 1912. Writ dated November 5, 1912.</p> <p>In the Superior Court the case was tried before Brown, J. At the conclusion of the plaintiff’s testimony by agreement of counsel both parties rested, and it was agreed that Peters, mentioned in the opinion, who committed the assault had been discharged by the defendant on May 10, 1912, and was not at the time of the assault an employee of the defendant nor entitled to travel on a pass from the defendant, although he was travelling upon such a pass. The facts that could have been found upon the plaintiff’s testimony are stated in the opinion. The judge ordered a verdict for the defendant and reported the case for determination by this court with a stipulation of the parties that, if the ordering of the verdict was wrong, judgment was to be entered for the plaintiff in the sum of $300.</p>

<p>Physicians and Surgeons. License. Chiropractic. Constitutional Law. Words, “Medicine.”</p> <p>One who calls himself a chiropractor and, without a license to practice medicine, is engaged in the practice of chiropractic, which “is the specific science that removes pressure upon the nerves by the adjustment of spinal vertebrae” by hand only without the use of instruments, may be found guilty of practicing medicine without a license within the meaning of R. L. c. 76, § 8.</p> <p>R. L. c. 76, § 8, providing penalties for practicing medicine within this Commonwealth without a license is constitutional.</p> <p>The provision of R. L. c. 76, § 9, that the provisions of § 8 of the same chapter prescribing penalties for practicing medicine without being authorized to do so and registered “shall not apply to . . . osteopathists, pharmacists, clairvoyants, or persons practicing hypnotism, magnetic healing, mind cure, massage, Christian science or eosmopathic method of healing, if they do not violate any of the provisions of section eight,” does not render the statute unreasonable toward a person practicing chiropractic who is convicted under § 8 of practicing medicine without a license, nor does it deny to such person the equal protection of the laws.</p>

<p>Granting Degree without Authority. Chiropractic. Words," Doctor,” “Degree.”</p> <p>The giving without legislative authority by an incorporated “college of chiropractic” of a certificate naming the holder as a “Doctor of Chiropractic” is punishable under R. L. c. 208, § 75, as granting a degree “without the authority of a special act of the General Court granting the power to give degrees.”</p>

<p> Negligence. </p> <p>Where a construction company made a contract with a teamster, that the teamster should haul sand for it at so much a load from a sand pit which belonged to a person who had given permission to the company to take the sand provided Ms asparagus bed on the Mgh land above one side of the pit was not undermined, and the only direction given to the teamster by the company as to the manner of taking sand was that the company’s superintendent told Mm not to take sand from under the asparagus bed, and where a son of the teamster, seventeen years of age, who had driven a team for three years and was a bright, capable boy and a capable teamster, was in charge of one of Ms father’s teams and wMIe he was filling Ms team with sand an overhanging tree on the edge of the pit fell upon Mm and killed him, an action under St. 1907, c. 375, cannot be maintained against the company to recover damages for the boy’s death; because the danger from the overhanging tree on the edge of the pit was as apparent to the boy as it was to the company, so that there was no duty to warn the boy of tMs danger, and as the employee of Ms father he was left to dig the sand in any way he chose that did not undermine the owner’s asparagus bed.</p>

<p> Fence and Fence Viewers. </p> <p>Upon a complaint of a landowner made to fence viewers under R. L. c. 33, where the erection of a division fence is desired, the fence viewers, if their award is to have any validity as the basis of a cause of action, must decide not only that a fence is necessary but also what part of the fence each landowner is to construct. In the absence of a decision as to such apportionment, a landowner, who, after the fence viewers determined that a division fence was necessary, built the whole of it himself, cannot maintain an action of contract against the owner of the adjoining land to recover' double the value of one half of the fence he has built, his rights being governed and limited by the statute.</p>

<p>Petition, filed in the Probate Court on January 15, 1914, under St. 1909, c. 490, Part IV, § 21, by the executors of the will of Cornelius N. Bliss, late of New York City, and afterwards amended, to determine whether the petitioners should pay a tax of $43,662.01 certified by the tax commissioner to be due as a succession tax upon the following property of the testator:</p> <p>Interest in the accumulated profits of Bliss, Fabyan and Company, Boston office, valued at $3,220.28</p> <p>Interest in the accumulated profits of Bliss, Fabyan and Company, New York and Chicago offices, valued at 8,178.94</p> <p>Two promissory notes of Bliss, Fabyan and Company, with accrued interest, valued at 1,519,178.20</p> <p>$10,000 principal amount of bonds of the Commonwealth of Massachusetts, registered, maturing 1935, bearing interest at the rate of 3% per cent per annum, valued at 9,446.25</p> <p>Shares of stock in various Massachusetts corporations, valued at _ 793,949.20</p> <p>The petition was heard in the Probate Court by Grant, J., and a decree was made that the interest in the accumulated profits of the New York and Chicago offices of Bliss, Fabyan and Company and the registered bonds of the Commonwealth of Massachusetts were not “property within the jurisdiction of the Commonwealth” within the meaning of St. 1909, c. 490, Part IV, § 1, as amended by St. 1909, c. 527, § 1, and were not subject to the tax; that the shares of stock in Massachusetts corporations, the interest in the accumulated profits of the Boston office of Bliss, Fabyan and Company, and the two promissory notes of Bliss, Fabyan and Company were “property within the jurisdiction of the Commonwealth” within the meaning of the statute; that the shares in Massachusetts corporations, the two promissory notes of Bliss, Fabyan and Company, and the interest in the accumulated profits of the Boston office of Bliss, Fabyan and Company were subject to the legacy or succession tax only to the extent of such portion of the tax as was in excess of the tax imposed thereon by the succession tax law of the State of New York, which portion in excess appeared to be the sum of $99.06; that the certification of the tax by the tax commissioner was not Correct; and that the petitioners were liable for a tax amounting to $99.06.</p> <p>The petitioners appealed from the decree so far as it determined that the notes of Bliss, Fabyan and Company were “property within the jurisdiction of the Commonwealth ” and subject to the succession tax, and the Treasurer and Receiver General appealed from that portion of the decree relating to the registered bonds of the Commonwealth.</p> <p>The case was reserved by Carroll, J., upon the pleadings, decree, claims of appeal and objections to the decrees and an agreed statement of facts, for determination by the full court.</p>

<p>Tax, On legacies and successions.</p> <p>Shares of capital stock of Massachusetts corporations owned by one domiciled in another State at the time of his death were subject to the succession tax imposed by St. 1909, c. 490, Part IV, § 1, as amended by St. 1909, c. 527, § 1; and, where it appeared that by the laws of that State and under the decision in Bliss v. Bliss, ante, 201, a “like exemption” was made in favor of citizens of this Commonwealth to that given to non-residents by St. 1909, c. 490, Part IV, § 3, as amended by St. 1911, c. 502, § 1, such shares were subject only to such portion of the tax as was in excess of the tax imposed by the laws of that State.</p>

<p>Landlord and Tenant. Contract, Implied. Pleading, Civil, Declaration. Words, “Let.”</p> <p>To recover in an action for the use and occupation of real estate the plaintiff must prove that the relation of landlord and tenant existed between him and the defendant.</p> <p>Where a tenant at will of real estate by reason of a conveyance of the premises by the landlord becomes a tenant at sufferance, he is not liable for rent until he has notice of the conveyance.</p> <p>An agreement by the owner of a building “to let to” a certain bill poster “the location of roof” on the building, “Fence to be forty feet long for one year . . . the same to be used for the purpose of fence bill posting and general advertising, and to continue as long as one year said location is used for advertising purposes,” nothing objectionable to be painted upon the signs and the bill poster “to assume all liabilities that may be caused by erection of said fence,” and to construct a plank walk upon the roof, which is to remain the property of the owner of the building, does not create a relation of landlord and tenant between the owner and "the bill poster, but is merely a contract concerning a permit or license for the use of the roof; and therefore, after use of the premises by the bill poster, neither the owner nor one to whom he conveys his rights in the premises can maintain against the bill poster by reason of the agreement an action for use and occupation of the premises.</p> <p>The mere use of the word “let” in an agreement granting a right or privilege to occupy a roof for bill posting purposes does not make the agreement a lease nor create the relation of landlord and tenant between the parties to the agreement.</p>

<p>Bill in equity, begun as an action of contract by a writ dated November 13, 1913, and by amendment changed to a suit in equity on April 24, 1914.</p> <p>The bill alleged that the defendant company was engaged in the business of making small loans under the -provisions of St. 1911, c. 727, as amended by St. 1912, c. 675; that certain notes given to it by its customers were sold to the plaintiff’s intestate after indorsement by the company and its treasurer Gale, as stated in the opinion; that some of these notes were paid and some were renewed by the giving of other notes before St. 1912, c. 675 went into effect, and three of them were renewed further by the giving of further notes after that statute went into effect, such further notes being those described in the opinion as A, B and C. The bill sought either the enforcement of the notes A, B and C, or the renewal and enforcement of the original notes upon the surrender of which the last named notes were given, or for an accounting and adjudication of what was due to the plaintiff by reason of the transactions between the defendants and the plaintiff’s intestate.</p> <p>The suit was heard by Jenney, J., who filed a memorandum stating, among other facts found by him, those described in the opinion. He also found that it “was admitted that the plaintiff, if entitled to recover at all, is entitled to recover the entire amount of the notes herein referred to according to the tenor thereof.”</p> <p>Upon his order a decree was made that the plaintiff have judgment against the defendants for the amounts of the notes with interest thereon at the rate of six per cent per annum from the date of the maturity of each, in all $749.15, and for costs. The defendants appealed.</p>

<p> Elections. Ballot. </p> <p>There being no express statutory provision to the contrary, a voter’s designation on the official ballot of his choice for a certain office by pasting over a name regularly placed upon the ballot a slip containing the name of a person not nominated by any party and then placing a cross in the appropriate blank opposite the name, while irregular, is not illegal, and the ballot properly may be counted as a vote for the person named on the slip.</p> <p>Where such election was for the choice of selectmen for a term of three years, the words “three years” placed after the name printed on the slip do not as a matter of law constitute a mark upon the ballot by which it may be identified, as described in St. 1913, c. 835, § 295, nor render the ballot invalid.</p> <p>Such a ballot properly may be counted for the man whose name appears upon the paster, although only the capital letters that begin his Christian and surname and his middle initial are printed in type conforming to the requirements of St. 1913, c. 835, §§ 280, 258, 261, as to size and character of the letters.</p>

<p>Equity Jurisdiction, To enjoin foreclosure of mortgage, Declaratory decree. Equity Pleading and Practice, Decree. Deed, Delivery. Estoppel.</p> <p>In a suit in equity to enjoin the foreclosure of a mortgage of real estate, a contention of the plaintiff, that the mortgage whose foreclosure he seeks to enjoin never was delivered, is not supported by the evidence, where it appears that, although certain of the mortgagees did not know until long after the mortgage was made that it had been taken in their behalf, yet the beneficial owner of the property, •who was one of two trustees that were named as mortgagees, had authority to act to accept the mortgage both as trustee and as the agent of the other mortgagees and accepted it for all.</p> <p>In a suit to enjoin the foreclosure of a mortgage of real estate, where it appears ■ that the former beneficial owner of the land, who as agent had procured the execution of the mortgage to the defendants, afterwards caused the land to be conveyed to the predecessor in title of the plaintiff, representing that he 1 had authority to cause it to be so conveyed and that no such mortgage had been made, this misrepresentation does not estop the defendants from proceeding with the foreclosure of their mortgage, if it further appears that the plaintiff’s predecessor in title when he accepted the conveyance thought that he was dealing only with the beneficial owner as an individual and dealt solely with him.</p> <p>In a suit to enjoin the foreclosure of a mortgage of real estate, where the plaintiff, besides praying for an injunction, had added to his bill a prayer that an underlying mortgage, which had been discharged upon a conveyance of the land to the predecessor in title of the plaintiff with a representation that there was no such mortgage as that to the defendant, might be revived in favor of the plaintiff, it was held, that the additional prayer in effect asked the court to make a declaratory decree stating that the release of the underlying mortgage operated as an assignment of that mortgage and that the rights of the assignee had come to the plaintiff, that on the bill to enjoin the foreclosure of the junior mortgage no relief founded on such a declaration could be granted, and that a court of equity has no jurisdiction to make a declaratory decree on which no relief can be based.</p>

<p>Devise and Legacy. Conflict of Laws. Guardian, Ad litem. Equity Pleading and Practice, Costs.</p> <p>A testatrix, who was survived by her husband, provided by her will that from the income of the residue of her property there should be paid $300 a year to her two aunts and the survivor of them, and then provided as follows: “All the rest and residue of my estate, of every kind and nature, I give to my husband, [naming him] for his life, and I empower him to use the principal of said estate for any purpose which he may deem expedient. Upon the death of my said husband, or in case he shall not survive me, so much as may remain of said residue shall be divided into three equal parts, of which I give one to each of my children.” Held, that until the death of both aunts the husband of the testatrix could not exercise his power of spending and consuming the principal to such an extent that the remaining principal would not produce $300 a year; but that, subject to this charge, he had the right during his lifetime of spending and consuming the principal for any purpose which he in good faith deemed expedient.</p> <p>Upon a bill for instructions as to the construction of the will of a testatrix, who at the time of the execution of her will was a resident of another State but at the time of her death was a resident of this Commonwealth where her will was proved, it was not necessary to decide by the law of which State the language of the will was to be interpreted, because in regard to the question to be passed upon the law of the two States was the same.</p> <p>Upon a bill for instructions the executor of a will is entitled to be instructed only as to matters in regard to which it is his duty to act at the time the bill is filed. A guardian ad litem appointed by the court is entitled to have his expenses ordered to be paid out of the fund claimed by the litigants.</p> <p>Where in a suit in equity by an executor for instructions the meaning of the will is so plain that there was no sufficient reason for the contending defendants to have insisted upon the opinion of this court being asked for, costs as between solicitor and client will not be allowed out of the fund to the defendants whose plainly untenable contentions made it necessary for the executor to bring the bill for instructions.</p>

<p>Contract for a failure to deliver a trunk and its contents entrusted to the defendant as a common carrier on September 18, 1912, at Portland in the State of Maine for transportation to West Springfield in this Commonwealth, the alleged value of the trunk and its contents being $298.73. Writ dated March 3, 1913.</p> <p>The second count, referred to in the opinion, was upon an alleged promise of the defendant to pay to the plaintiff the value of the trunk if it was not found at the expiration of a reasonable time, in consideration of the plaintiff’s forbearance for a reasonable time from bringing his action while the defendant was searching for the trunk.</p> <p>The defendant in its answer relied upon a provision, in the receipt containing the contract of carriage, limiting its liability as follows: “nor in any event shall this Company be held liable or responsible, nor shall any demand be made upon it beyond the sum of Fifty Dollars upon any shipment of 100 lbs. or less, and for not exceeding 50 cents per pound upon any shipment weighing more than 100 lbs., and the liability of the Express Company is limited to the value above stated unless the just and true value is declared at time of shipment, and the declared value in excess of the value above specified is paid for, or agreed to be paid for, under this Company’s schedule of charges for excess value.” The answer further alleged that the defendant on January 30, 1913, before the plaintiff sued out his writ, tendered to the plaintiff the sum of $53 and that it now brought that sum of money into court for the plaintiff.</p> <p>In the Superior Court the trial of the case was begun before Irwin, J. The plaintiff was allowed to discontinue as to the second count of his declaration. The parties then filed an agreed statement of facts, upon which the judge ordered a verdict for the plaintiff in the sum of $245.73, and at the request of the parties reported the case for determination by this court. If the ordering of the verdict was wrong, judgment was to be entered for the defendant; otherwise, judgment was to be entered upon the verdict with interest from the date of the writ. The essential facts are stated in the opinion. The agreed statement of facts contained the statement, “Neither the plaintiff nor Annie Olson read the receipt nor did either of them know that it contained a limitation of liability or agreed valuation until after the trunk was lost.”</p>

<p>Bill in equity, filed in the Superior Court on October 9, 1913, by the trustee in bankruptcy of the estate of David F. Burns against Napoleon Bernier of Somerville and Kenneth G. T. Webster and Edith F. Webster, his wife, of Cambridge, — Alfred Bowditch and others as the trustees of the University Associates, an unincorporated association, also being made defendants by an amendment filed on December 2,1913, — to set aside an order or assignment made by Burns, the plaintiff’s bankrupt, to the defendant Bernier on April 7, 1913, within four months before the filing by Burns of a voluntary petition in bankruptcy on May 28, 1913, on which he was adjudicated a bankrupt.</p> <p>The case was heard by Jenney, J., who made a finding of material facts which he reported under R. L. c. 159, § 23, the evidence being reported by a commissioner appointed by the judge under Equity Rule 35. The judge made a final decree setting aside the order or assignment of Burns to the defendant Bernier dated April 7,1913, as a preference against the creditors of Burns, and enjoining the defendant Bernier and the defendants Kenneth G. T. Webster and Edith E. Webster from enforcing the order against the defendants Bowditch and others as trustees of the University Associates. The defendants Webster and the defendant Bernier appealed.</p>

<p>Petition in the Probate Court for the county of Suffolk dated March 28, 1913, for the allowance of an alleged will and codicil of Henry A. Wheelwright, late of Boston, who died on March 15, 1913, at the age of eighty-six years.</p> <p>The Probate Court made a decree allowing the will and codicil, from which Caroline B. Foster, who was a cousin of the testator and his sole heir at law and next of kin, appealed to the Supreme Judicial Court. By an order of that court the following issues were framed for a jury and were sent to the Superior Court for trial.</p> <p>“First Issue: Was the alleged will of Henry A. Wheelwright duly executed?</p> <p>“Second Issue: Was the alleged codicil to said will duly executed?</p> <p>“Third Issue: Was the said Henry A. Wheelwright at the time of the execution of said will of sound mind?</p> <p>“Fourth Issue: Was the said Wheelwright at the time of the execution of said codicil of sound mind?</p> <p>“Fifth Issue: Was the said codicil obtained by fraud or undue influence on the part of William Laurence Underwood, or Francis L. Underwood, or both?</p> <p>“Sixth Issue: Was the residuary clause of the said alleged codicil procured by fraud or undue influence on the part of Francis L. Underwood and William Laurence Underwood, or either of them? ”</p> <p>The issues were tried before King, 3. Upon each of the first four issues the jury answered, “Yes.” Upon the fifth and the sixth issues the jury answered, “No.” The appellant Caroline B. Foster alleged exceptions, raising the questions which are stated in the opinion.</p> <p>The devise of land for a public park contained in the will, which is referred to in the opinion, was of certain real estate in Cohasset which was to be conveyed for that purpose to the trustees of public reservations. This devise was not mentioned in the codicil.</p>

<p>Insurance, Life. Infant. Parent and Child.</p> <p>Where a father makes an application for an insurance policy on the life of his son fourteen years of age and a policy is issued payable in case of the death of the son “ unto the executors, administrators or assigns of the insured,” and the father pays all premiums on the policy as they become due until the son becomes more than twenty-one years of age, the son is the insured and neither his father nor his mother is an owner of or a beneficiary under the policy, and, unless specially authorized by the insured, neither of them has authority to surrender the policy to the insurer or to receive under its provisions in its stead a paid up policy; and therefore as between the insured and the insurer the policy is unchanged in legal effect by unauthorized acts of such a nature. If, at the trial of an action for a breach of the contract, contained in an insurance policy issued by a corporation organized and incorporated in another State, to pay a certain amount on the death of the insured, it appears that by the provisions of the policy it became invalid because of the non-payment of premiums and there was no evidence that such provisions were waived by the corporation or that the corporation was estopped to assert the failure to pay or to tender the premiums; and if it appears further that after the policy thus had lapsed the insured made an application for its revival according to its provisions and that, in the exercise of a right given to it by the policy, the corporation had refused to grant the revival, a verdict must be ordered for the defendant although by the law of the State where the corporation was incorporated the insured after the original policy had lapsed had a right to a paid up policy for a certain amount.</p>

<p>Tort for personal injuries sustained on November 9, 1911, by a fall into a trench dug by the defendant for the purpose of installing a water meter in a house on Morris Street in the part of Boston called East Boston. Writ dated June 5, 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>Partnership. Joint Tortfeasors. Judgment, Vacation. Bond, Supersedeas. Practice, Civil, Vacation of judgment, Supersedeas bond.</p> <p>One who has suffered injury or damage by reason of a tort of a partnership may elect to bring an action of tort against all the partners jointly or to bring a separate action against each partner.</p> <p>A judgment in an action of tort against all the members of a partnership is an entirety and is indivisible.</p> <p>If, upon the petition of one of the defendants in an action of tort against all the members of a partnership jointly, a judgment obtained in that action is vacated, it is vacated against all the defendants and all remedies for its collection against the several defendants are discharged.</p> <p>A motion by a judgment creditor who obtained a judgment against a number of persons in an action of tort against the alleged members of a partnership jointly, that a supersedeas bond given by one of the judgment debtors by order !of the Superior Court upon the granting of a petition by him for the vacation of the judgment be “ so modified as not to deprive him [the creditor] of his right to collect” an execution, which had issued upon the judgment, “from the other defendants named in said action,” must be denied.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on April 27, 1914, for a revocation of a license granted to the administrator of the estate of Peter F. Duffy, late of Providence in the State of Rhode Island, to sell certain real estate of the intestate in this Commonwealth for the purpose of distribution.</p> <p>After a hearing before George, J., the petition was dismissed.</p> <p>On appeal the case was heard by Fierce, J., who dismissed the appeal on the ground that the petitioner was not a party “interested” and therefore had no right to be heard or of appeal. The petitioner appealed to the full court.</p>

<p>Trust, Construction, Powers and duties of trustee. Devise and Legacy. Real Property.</p> <p>A testator by his will gave the residue of his estate to trustees in trust to pay the income to his wife for life, with power to pay to her out of the principal such amount as should meet the requirements of her suitable maintenance and the care and education of his minor children, the will further providing that upon the decease of the widow the trustees should “pay over to my children and to the issue of any deceased child by right of representation all of said trust fund then remaining, share and share alike, the issue of any deceased child to take the share the parent would have taken, if living, to have and to hold the same to them and their heirs.” From other provisions of the will it appeared that the testator had used language nearly identical to provide for the distribution of the trust fund in case of the death of his widow without remarrying, and upon her remarriage and upon her death after remarriage. Held, that by the established rules of construction the interest of the children of the testator vested at his death, the mere fact that the trustees were authorized to expend principal during the widow’s life and thus to decrease the size of a remainderman’s share not establishing an intention to postpone the vesting until the widow’s death. Where the language of a will does not make it clear whether a certain remainder is vested or contingent, the remainder will be deemed to be vested unless such construction would result in a disposition of the property inconsistent with the testator’s intention.</p> <p>Where property is given in remainder by the provisions of a will, whose language does not clearly state whether the remainder is vested or contingent, to children or other descendants of the testator, that circumstance tends to indicate that vested rather than contingent remainders were intended.</p> <p>Where by the provisions of a will trustees are given power and authority to sell and convey and to make new investments and exchange of securities, but the will contains no express direction that the real estate held by them shall be sold and turned into money and a clear intention thus to convert cannot be implied from the language or general scope of the will, if the trustees sell the real estate the proceeds thus received must be treated by them as realty until the fund resulting from the sale reaches the hands of one who is entitled to treat it as his own absolutely and for all purposes.</p>

<p> Poor Debtor. Recognizance. Judgment. </p> <p>R. L. c. 168, § 66, requires that in an action for the breach of a poor debtor’s recognizance, if a breach is proved, “judgment shall be entered for the amount of the penalty,” and accordingly in such an action the trial judge must refuse a request of the defendant to rule that judgment should be entered for the plaintiff for nominal damages only.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff on the morning of November 20, 1907, while he was driving in an express wagon along Main Street in Cochituate, from his horse becoming frightened by the loud and continuous ringing of a gong on a car operated by an employee of the defendant that was coming up behind him, whereupon the plaintiff’s horse shied, throwing the plaintiff out and injuring him. Writ dated October 9, 1912.</p> <p>In the Superior Court the case was tried before Quinn, J. The defendant offered in evidence the deposition of one Jennison, then a resident of Los Angeles in the State of California, who was the motorman that was operating the car of the defendant at the time of the accident. The interrogatories to this witness, which with the answers to them were admitted by the judge against the plaintiff’s exceptions, that were taken informally as stated in the opinion, were as follows:</p> <p>Interrogatory 11. “Did the horse appear to be frightened at any time before the accident?” Answer, “It did not.”</p> <p>Interrogatory 12. “Did you have any intimation that the horse was likely to become frightened or to shy at the car? ” Answer, “I did not.”</p> <p>Interrogatory 13. “Did the driver of the team do anything to warn you that his horse was, or was about to become frightened? ” Answer, “He did not.”</p> <p>Interrogatory 14. “State whether or not there was any unusual or unnecessary ringing of the gong or blowing of the whistle at any time prior to the accident as alleged in the plaintiff’s declaration.” Answer, “There was none.”</p> <p>"The case was submitted to the jury under proper instructions and a verdict was rendered for the defendant.” The plaintiff alleged exceptions, and the sentence last quoted is taken from the bill of exceptions.</p>

<p>Negligence, Dangerous occupation, Employer’s liability.</p> <p>In an action against a corporation called a laboratories company, manufacturing among other things antiseptic powders and rat poison, for illness and suffering alleged to have been caused by being poisoned when the plaintiff was seventeen years of age and was employed in the defendant’s factory, there was evidence that the plaintiff, after working about four months in the defendant’s dry filling department, was transferred to the rat poison filling department in the basement, where there was very little ventilation and where the plaintiff’s duty was to put the rat poison into cans, that the rat poison contained about twenty per cent of arsenic and was so volatile that a palpable visible dust, which easily was inhaled, filled the confined space in which the plaintiff worked and settled upon her hair and clothing, that the defendant put labels on the cans in which the rat poison was stored calling it deadly poison, that no warning was given to the plaintiff, that the forewoman under whom the plaintiff worked assured her that the rat poison was “like the other insect powders” and that, when the plaintiff suffered from symptoms of arsenical poisoning and complained to the forewoman, she was told by her that these symptoms were caused by a cold in the head and not by the rat poison. There was evidence that the defendant knew that the plaintiff and a girl who worked with her had become more or less ill as often as they worked in contact with the rat poison and that they had revived when relieved from so working. Held, that there was evidence for the jury on which they could find that the plaintiff failed to understand the danger to which she was exposed, and that, although the conditions were known, the danger involved was not obvious and the plaintiff did not assume the risk of the injury she suffered.</p> <p>In the case above stated, it also was held, that it could be found that the defendant was negligent in failing to warn the plaintiff that she might be poisoned by inhaling the dust from the volatile mixture she was told to put into cans, and that the jury could find that the defendant should have foreseen that injury in some form at some time probably would occur to some one engaged in what might be found to have been a business dangerous to the persons employed.</p>

<p>Negligence, Employer’s liability. Statute, Construction.</p> <p>At the trial of an action by an administrator under St. 1909, c. 514, §§ 127,128, and at common law for negligently causing the suffering and death of the plaintiff’s intestate when in the defendant’s employ before the workmen’s compensation act took effect, where there is evidence that the intestate was set at work by the defendant’s superintendent upon a drum-setting machine used for smoothing and straightening rough leather, that the machine was defective and was known to the superintendent to be so, and that the superintendent gave the intestate no warning or information in regard to the defects, that the defective condition of the machine was not apparent when the intestate went to work and did not disclose itself until the fourth working day of his employment, when the cylinder flew out and struck the intestate on the head and chest, throwing him on his back and causing his suffering and death, the plaintiff is entitled to go to the jury and it is right for the presiding judge to refuse to order a verdict for the defendant.</p> <p>At the trial of the action above described it was error, at least as applying to the common law counts of the declaration, for the presiding judge to refuse a request of the defendant to rule that the defendant owed the plaintiff’s intestate no duty to change or improve the condition of the machine on which the intestate was set at work and that the defendant’s only duty to him was to warn him in regard to any dangers in connection with the use of the machine that were not obvious.</p> <p>St. 1909, c. 363, § 1, which provides that “If a defect in the ways, works or machinery of a person, partnership or corporation, has been reported to the person whose duty it is to remedy said defect, or cause it to be remedied, or to report its existence, and. such defect is not remedied within a reasonable time, and by reason of said defect an employee is injured, such employees shall not be held to have assumed the risk of such injury,” is not to be interpreted to apply to a case where the report of the defect to the employer was made before the injured workman was employed.</p> <p>It seems that, to bring a case within the statute quoted above, the report of the defect must have been made by the injured employee himself or in some way in his behalf.</p>

<p>Sales of Merchandise in Bulk. Equity Pleading and Practice, Parties. Assignment.</p> <p>Under St. 1903, c. 415, relating to sales of merchandise in bulk, a sale of all the merchandise and fixtures at the place of business of the seller, in which the parties honestly try to comply with the requirements of the statute but by mistake give notice only to the merchandise creditors of the seller and fail to prepare a list of and give notice to his general creditors as required by the statute, is voidable by the general creditors as to the merchandise, although it is good as a sale of the fixtures.</p> <p>A general creditor of one who in selling his entire stock of merchandise failed to furnish a list of his general creditors to the purchaser so that the purchaser did not give notice of the sale to such creditors as required by St. 1903, c. 415, cannot procure the setting aside of the sale in a proceeding in which the purchaser is not made a party.</p> <p>It seems that a bona fide assignee of a balance of the proceeds from a sale of merchandise in bulk, who took the assignment in part payment of a debt justly due to him from the seller, where the sale was voidable by the general creditors of the seller because notice of it was not given to such creditors as required by St. 1903, c. 415, is entitled to hold such balance against a general creditor who after the assignment institutes proceedings to avoid the sale.</p>

<p>Petition, filed on July 10, 1914, and afterwards amended, for a writ of certiorari quashing certain proceedings of the public service commission and the harbor and land commission sitting as a joint board under Sts. 1899, c. 448; 1910, c. 519, namely, an order determining that a crossing over the Cape Cod canal at Station 181 should be by means of a suitable temporary ferry and a vote approving certain plans for such a ferry.</p> <p>The Boston, Cape Cod and New York Canal Company 'also was made a respondent and the petition prayed that it might be enjoined from providing, constructing or erecting a temporary passenger ferry in accordance with the order and vote, and from destroying a certain bridge across the canal location near Station 181. An application for the injunction was denied.</p> <p>The case was heard by Braley, J. It was agreed that at the time of the filing of the petition the respondent company already had constructed the approaches and landings prescribed by the order and vote of the joint board, that the ferryboat thereby prescribed practically was completed, and that after the application for a temporary injunction in this case was denied the respondent company had completed the destruction of the existing bridge and in accordance with the above described order and the plans of the joint board had established a ferry for passengers which it had since maintained.</p> <p>The single justice at the request of the parties reported the questions of law raised by the petition as amended, the answers and the agreed facts for determination by the full court.</p> <p>The material facts are stated in the opinion.</p>

<p>Tort for personal injuries suffered by reason of falling down a flight of stairs in a building in Cambridge owned by the defendant and occupied by one John T. Keane as a tenant at will. Writ dated February 11, 1913.</p> <p>The declaration as amended was in three counts. The first count alleged that the cause of the plaintiff’s fall was the negligent maintenance by the defendant of an unfit, unsafe and dangerous passageway into the premises in question and of an unprotected, unguarded and unsafe flight of stairs in the passageway. The second and third counts alleged that the maintenance of the passageway and the unguarded, unprotected and unsafe flight of stairs constituted a nuisance or trap.</p> <p>At the trial in the Superior Court before Fessenden, J., there was in evidence chapter 13 of the Revised Ordinances of Cambridge relating to the issuing of permits by the superintendent of the building department for the construction or alteration of buildings, section 12 of which provided as follows: “No building, structure or foundation shall be constructed or altered without a permit, and such work shall be done in accordance with drawings bearing the approval of the superintendent.”</p> <p>There was evidence tending to show that the building in which the plaintiff fell had been built by the defendant three years and a half before the accident; that, as the plaintiff, an elderly woman, entered the premises through the outer door, the door opened inward from its right and there was a flight of stairs inside going downward at its immediate right parallel to the outer wall of the building; that the plaintiff did not know of these stairs; and that, as she stepped through the doorway she stepped down these stairs, fell and was injured.</p> <p>It appeared that the permit issued by the superintendent of the building department of Cambridge to the defendant required that the door in question should open inward from its left, the hinges being on its right side, that the stairs should not go downward from the right of the doorway, but that they should be a curved flight starting from a point away from this outer wall, going toward it and then turning as they descended to run parallel with the wall at the bottom.</p> <p>It appeared that Keane occupied the premises as a tenant at will of the defendant under an agreement whereby the entire control of the premises was given to Keane who was to make all ordinary repairs and that he had been a tenant of the defendant for about a year.</p> <p>The other material evidence is described in the opinion.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendant and reported the case for determination by this court, judgment to be entered for the plaintiff in the sum of $1,500 if the case should have been submitted to the jury; otherwise, judgment to be entered for the defendant.</p>

<p>Negligence, Elevated railway, In a station.</p> <p>At the trial of an action against an elevated railway company for personal injuries received by a woman, as she was attempting in the night time to board a car in a train of the defendant at a station, by reason of falling into a space fourteen inches wide between the station platform and the door of the car, there was evidence that the plaintiff had travelled by elevated trains but infrequently and that when she had done so she had observed that the space between the cars and the platform had been four or five inches; that several persons preceded her into the car and that immediately in front of her was a woman with a long skirt which covered the open space so that in a dim light which prevailed the plaintiff was misled into thinking that the skirt was the floor of the car; and that there was nothing in the attitude of the defendant’s employees to indicate to the plaintiff her danger. It appeared that the space of fourteen inches was not the ordinary space between the platform and the car, but that it was the result of temporary conditions incident to a necessary change of construction of the station and tracks. There was expert testimony to the effect that leaving the fourteen inch space was not a reasonably proper construction, and that reasonable methods might have been used to reduce that space. Held, that the questions, whether the plaintiff was in the exercise of due care and whether the defendant was negligent, were for the jury.</p>

<p>Broker, Commission. Agency.</p> <p>Where a broker is employed by the owner of certain real estate to procure a customer either to buy the property or to exchange other property therefor, and he finds a customer who enters into an agreement for an exchange of property with the owner and who is able, ready and willing to carry out the agreement, the broker has earned his commission by procuring the customer, although the landowner that employed him refuses to make the exchange.</p>

<p>Evidence, Declarations of deceased persons. Railroad. Practice, Civil, Exceptions.</p> <p>Where a judge presiding at a trial found that certain declarations of a deceased person, offered in evidence under R. L. c. 175, § 66, were made of the declarant’s own knowledge, and admitted the declarations in evidence, and where the evidence did not warrant such a finding, the ruling admitting the evidence is subject to an exception, and an exception thereto must be sustained.</p> <p>At the trial of an action of tort against a railroad company for damages resulting from a fire caused by sparks communicated by a locomotive engine of the defendant, the plaintiff offered in evidence the deposition of the widow of an assistant station agent of the defendant, who at the time of the fire had been employed at a station in plain view of the property destroyed and four hundred and ninety feet from it, in which the witness stated that her husband had died and that she had heard him state a few days after the fire that sparks from a locomotive of the defendant had caused the fire. The record contained no evidence that at the time of the fire or immediately preceding it the witness’s husband was at the station or at any place from which he could see at the same moment both the locomotive and the buildings which burned, nor was there any evidence that he saw sparks fly from the locomotive to the buildings and that, following such flight, he saw fire in, upon or near the buildings. The judge found that the declaration was made in good faith and of the declarant’s own knowledge and admitted the evidence. Held, that an exception to the admission of the evidence must be sustained, because there was no evidence warranting the judge’s finding that the declaration was made by the deceased person of his own knowledge.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a longshoreman against a steamship company by which he was employed for personal injuries from a box, which was alleged to have been piled on other boxes negligently by servants of the defendant, falling on the plaintiff when he was wheeling a truck in unloading a vessel at the defendant’s wharf, where the accident happened after the workmen’s compensation act had taken effect and the defendant was not a subscriber under the provisions of that statute, but there was nothing to show what caused the box to fall on the plaintiff, it was held, that there was no evidence that the fall of the box was caused by the negligence of the defendant or of its servants and that a verdict properly was ordered for the defendant.</p>

<p>Equity Pleading and Practice, Decree pro confessa. Equity Jurisdiction, To recover stolen property in hands of police department. Police.</p> <p>In a suit in equity to recover certain property of the plaintiff stolen from him by two of the defendants which was alleged to be in the custody of the other defendants, who were officers of the police department of a city and on arresting the first two defendants for another crime had found the plaintiff’s property in their possession, if such other defendants, instead of demurring, pleading or answering to the bill, file what they call a stipulation, stating that the property is in their possession as officials of the police department and that they stipulate and agree to retain it in their possession until further order of the . court, it seems, that the bill should be taken pro confessa against these defendants and a decree entered accordingly, although the stipulation, if it can be considered a part of the record, may make the issuing of an injunction against these defendants unnecessary.</p> <p>A suit in equity may be maintained to recover property stolen from the plaintiff which is in the custody of the police department of a city after having been taken from the thief when he was arrested for another crime and where the officers having custody of the property have refused to expose it so that it can be taken in replevin.</p> <p>Where in such a case the court has jurisdiction to compel the restoration of specific property stolen from the plaintiff this jurisdiction will be retained to cover also money found in the possession of the thief when he was arrested which he had derived wholly from the sale of other property that he stole from the plaintiff at the same time.</p>

<p>Practice, Civil, Findings of trial judge.</p> <p>A judge before whom a case is tried without a jury has a right to disregard the evidence of one of the parties and to believe the testimony to the contrary on the other side, and his doing this is not an error of law.</p>

<p>Appeal from a decree of the Probate Court for the county of Middlesex dismissing a petition by Thomas E. Jones as the sole heir of Edward Jones, of Newton, the surviving husband of Margaret Jones. The will of Margaret Jones was admitted to probate on November 11, 1910. The petition represented that by virtue of the waiver of the provisions of the will of Margaret by her surviving husband Edward, which was filed by the con- . servator of the property of Edward who then was insane, the petitioner was entitled to take the statutory share of Edward in the estate of Margaret.</p> <p>The alleged waiver was as follows: "Respectfully represents Edward Jones of Newton in the County of Middlesex that he is the husband of Margaret Jones, late of Newton in the County of Middlesex, deceased, that the will of said deceased was admitted to probate in said County by decree of this court dated November 11, 1910, and he doth hereby waive any provisions that may have been made in it for him and doth claim such portion of the estate of the deceased as he would have taken if the deceased had died intestate. Dated this third day of December, 1910. Edward Jones, by Thomas E. Jones, conservator.”</p> <p>The appeal was heard by Braley, J., who made findings of fact and at the request of the parties reported the case on such findings for determination by the full court.</p> <p>St. 1915, c. 23, which is referred to in the opinion but has no application to this case, is entitled “An Act relative to the duties and powers of conservators,” and is as follows:</p> <p>“Section 1. Conservators appointed under the provisions of section forty of chapter one hundred and forty-five of the Revised Laws and acts in amendment thereof or in addition thereto shall have the powers, and perform the duties, except as to the custody of the person, of guardians of insane persons. AJ1 provisions of law relating to the jurisdiction of the Probate Court over the estates of persons under guardianship as insane persons shall be applicable to the estates of persons under conservator-ship.</p> <p>“Section 2. This act shall take effect upon its passage.”</p>

<p>Writ of entry, dated April 24 and amended December 13, 1909, by the owner of the Hotel Haymarket on the corner of Causeway Street and Canal Street in Boston against the owner of ICetterer’s Hotel adjoining the demandant’s hotel on Canal Street, to recover a strip of land at the rear of the demandant’s hotel measuring two and ten one hundredths feet on that street and running back at that uniform width the distance of forty-eight and fifty one hundredths feet.</p> <p>In the Land Court the case was tried before Davis, J., who on April 8, 1910, filed a decision in favor of the tenant. From this decision the demandant appealed to the Superior Court under St. 1904, c. 448, § 8, and St. 1905, c. 288, “for a jury trial on the facts on the ground that the court was in error in deciding that the demanded premises were conveyed by the deed of A. W. Pollard to Alexander H. Wood and Marshall S. P. Pollard, dated September 1, 1897, and recorded with Suffolk Deeds, Book 2468, page 412, and by said Wood and Pollard to the tenant by deed dated September 1, 1897, recorded with Suffolk Deeds, Book 2469, page 390.”</p> <p>The following issue was framed by the judge of the Land Court to be tried by a jury as an issue of fact before the Superior Court: “What is the boundary between the estate conveyed by A. W. Pollard to Alexander H. Wood and Marshall S. P. Pollard, by deed dated September 1, 1897, recorded with Suffolk Deeds, Book 2468, page 412, and by Alexander H. Wood and M. S. P. Pollard to John F. ICetterer by deed dated September 1, 1897, and recorded with Suffolk Deeds, Book 2469, page 390, and the estate conveyed by A. W. Pollard to Frederick H. Pollard by deed dated September 1, 1897, recorded with Suffolk Deeds, Book 2468, page 409, and by Frederick H. Pollard to Alexander H. Wood, M- S. P. Pollard and A. W. Pollard by deed dated September 1, 1897, recorded with Suffolk Deeds, Book 2468, page 411.”</p> <p>The judge of the Land Court filed a report of his decision under St. 1905, c. 288.</p> <p>In the Superior Court the issue was tried before Bell, J. Upon the motion of the demandant the issue was amended by changing the first word so as to read “Where is the boundary” instead of “What is the boundary.”</p> <p>At the close of the demandant’s opening, the counsel for the tenant stated that the tenant’s contention was that the boundary line ran through the centre of the partition wall. The judge ruled that the evidence offered by the tenant, which is described in the opinion, consisted of matters outside the deeds and must be excluded except the report of the judge of the Land Court, which he admitted.</p> <p>The tenant made a motion that the demandant’s appeal be dismissed. This motion was denied by the judge, and the tenant excepted.</p> <p>The judge refused to order a verdict for the tenant. He made the following rulings:</p> <p>“1. I rule that the deeds themselves disclose no ambiguity which opens the door to paroi evidence to aid in their construction. .</p> <p>“2. I rule that the facts stated in the offer of evidence by the tenant if admitted would not raise any ambiguity as to the meaning of the deeds, and that the evidence as offered is not admissible, except the report of the Land Court which I admit.</p> <p>“3. I rule that at the trial before me, I must admit or exclude evidence, as it under the circumstances appears to me competent or incompetent, whatever may have been the ruling on that point of another judge at another trial, giving all due respect to the views of such judge.</p> <p>“4. Such parts of the report of the judge of the Land Court as are inconsistent with my ruling, I direct the jury to disregard.”</p> <p>The judge further instructed the jury as follows:</p> <p>“In making these rulings, I am of the opinion that the deeds speak for themselves, and that they require that the jury should return a verdict in these terms, which I, accordingly, direct them to do:</p> <p>“The jury find that the line in question between the parties begins at the west corner of the Ketterer lot at land now or late of J. D. Small and land of Durkee, thence it runs northeasterly bounding on said Small’s land, to the northeast corner of land of said Small, thence continuing northeast in a straight line on the same course to the southwest line of Canal Street at a point 29.33 feet northwest from the centre of the Butler party wall.”</p> <p>The judge added by way of explanation the following: “The facts offered to be proved by the tenant raise some presumption — and the presumption that the deeds do not correctly represent the true intentions of the parties. That, however, is not a matter which can be settled in this court, and in my judgment can only be determined by a proceeding in equity to reform the deeds. "Whether that proceeding would be successful or not, I indicate no opinion. If the parties make a mistake in their deeds, a mutual mistake in their deeds, that is the way in which it can be reformed, the deed can be reformed; and until reformed, a deed properly made is binding upon both parties.”</p> <p>The jury returned the finding directed by the judge; and the tenant alleged exceptions.</p> <p>St. 1905, c. 288, is as follows: “Appeals from the Land Court to the Superior Court shall be appeals for a jury trial on the facts. When an appeal is taken from the Land Court to the Superior Court, the judge of the Land Court who rendered the decision or made or signed the order or decree appealed from shall, within thirty days after the entry of the appeal in the Superior Court, file in said Superior Court a full report of his decision and of the facts found by him so far as they relate to or bear upon any questions involved in the appeal, and upon the trial of the cause in the Superior Court such report shall be prima facie evidence as to the matters therein contained.”</p>

<p>Complaint, received and sworn to in the East Boston District Court on September 8, 1914, charging the defendant under B. L. c. 91, §§ 113, 114, with taking clams from flats in the city of Boston from which the taking of clams was prohibited by the commissioners on fisheries and game at the request in writing of the State board of health.</p> <p>The case was tried before Dana, J., upon an agreed statement of facts, material portions of which are described in the opinion.</p> <p>The defendant offered to prove that the flats from which he took clams were not contaminated, and that the clams so taken were clean and wholesome, and fit for food. The judge excluded the evidence subject to an exception by the defendant.</p> <p>. The defendant asked for the following rulings:</p> <p>‘‘1. That upon the foregoing facts the Commonwealth has failed to make out a case against the defendant, and that he is entitled to a verdict of not guilty.</p> <p>“2. That no ‘period of time’ has been prescribed during which the taking of clams from the flats referred to is intended to be prohibited.</p> <p>“3. That the acts of the State board of health and of the commissioners on fisheries and game are not in compliance with the requirements of R. L. c. 91, §§ 113, 114, in that the prohibition attempted to be made runs for all time, and not for a prescribed period of time, as required by law, and such acts are therefore void.</p> <p>“4. That it does not appear that there has been any valid or legal prohibition of the taking of clams from the flats described.</p> <p>“5. That the defendant may prove, as a complete defence to this complaint, that the flats from which said clams were taken by him were not contaminated and that the clams so taken were clean and wholesome, and fit for food.”</p> <p>The rulings were refused. The jury returned a verdict of guilty; and the judge reported the case for determination by this court.</p>

<p>Agency, Scope of authority. Attorney at Law. Evidence, Admission by silence, Self-serving statement. Frauds, Statute of.</p> <p>A general power of attorney under seal, which, after a detailed recital of authority as to various matters conferred upon the attorney, states that he is given power “ generally to do all acts and take all steps which in his judgment are necessary, convenient or expedient in the management of” the client’s “property and affairs, although the matter should require more special authority than is herein contained, hereby giving my said attorney full power to act for me and in relation to my affairs, business and property as fully and with like effect as I could act if personally present,” does not confer upon the attorney power to delegate his power to another unless a special provision to that effect is contained in its provisions or it appears from the nature of the agency that the parties contemplated that the employment of such agents would be necessary.</p> <p>Each of two owners of a building in a city by separate instruments gave a general power of attorney to a certain person to manage the property for them, one instrument specifically conferring a power of delegation of authority, and the other omitting such a provision. The attorney gave to a second person in the name of both of his principals a power of attorney which purported to confer a power of delegation and substitution. The second attorney employed an attorney at law to collect the rent from a general lessee of the building and to eject such lessee for non-payment of the rent. In the course of negotiations ■ with the general lessee, the attorney at law made an oral agreement on behalf of his principals that, if the general lessee would surrender his lease, they would indemnify him against loss by reason of claims by sublessees under leases which the general lessee had given. Held, that by reason of the failure of one of the owners specifically to confer a power of delegation and substitution, no such authority could be conferred upon the second attorney, that therefore the attorney at law did not derive from the powers of attorney any authority to make the agreement of indemnity, and that it could not be enforced against the owners of the building. 1</p> <p>The mere employment of an attorney at law by the owner of a building to enforce the collection of rent due from a lessee or the ejectment of the lessee does not give to the attorney at law power to make with a general lessee of the building in behalf of his client and without the client’s special consent an ex-ecutory agreement to indemnify such general lessee against any loss he may suffer by reason of claims of sublessees under leases given by him.</p> <p>It seems that an attorney at law by his general employment in a certain matter is not given authority to make an executory contract in behalf of his client in the nature of a compromise of his client’s demand.</p> <p>In an action for a breach of an alleged contract, a mere acknowledgment of the receipt of a letter from an attorney for the plaintiff and the referring of the writer to an attorney at law, the acknowledgment and reference being in a reply to the letter by a person purporting to act for the defendant, do not make the letter thus received admissible in evidence against the defendant, especially where it contains self-serving statements of the plaintiff’s views of the relations of the parties and is introduced to show a ratification by the defendant of an unauthorized agreement made by his attorney.</p> <p>An oral agreement that a surrender of a lease of land shall operate, as between the lessor and the lessee, as an assignment of the lease so that the lessor shall stand in the lessee’s stead as to sublessees, is inoperative by reason of the provisions of R. L. c. 127, § 3.</p>

<p>Contract, What constitutes. Equity Jurisdiction, To enforce return of property entrusted to defendant conditionally.</p> <p>Where one, who is desirous of purchasing from several owners certain shares of stock in a corporation and other personal property, which have been offered' to him for cash, procures a modification of the terms of sale so that notes will be accepted in part payment and then procures acceptable notes from one who is to share in the enterprise and who sends the notes to him with a letter stating “I understand that these notes are to be substituted for part of the cash consideration paid to the vendors . . . and that, of course, in the event of the deal not being completed the notes will be returned on demand;” and where the vendors receive the notes and read the foregoing letter and then the transaction is not completed because of a failure to pay the balance of the purchase price in cash and the vendors do not deliver any of the shares of stock or other property, the maker of the notes is entitled to have them returned to him by the vendors, who are not holders in due course, and may enforce that right by a suit in equity.</p>

<p>Equity Pleading [arid Practice, Parties, Appeal, Decree. Fraud, As against creditors.</p> <p>Upon the granting of a motion made by the plaintiff in a suit in equity that a certain person be joined as a party defendant, such person does not become a defendant until he has been served with a subpoena or has appeared voluntarily.</p> <p>In a suit in equity against two defendants to reach and apply in payment of a debt, owed to the plaintiff by one of the defendants, property conveyed by that defendant in fraud of his creditors to the other defendant, on an appeal by the defendants from a final decree which directs that persons who are not parties to the suit shall deliver certain property to the plaintiff, the decree must be reversed.</p> <p>It here was stated as a recognized rule, that, in order that a transfer of property by a debtor to a purchaser for value but in fraud of creditors of the seller should be voidable by such creditors, the purchaser must actually have known of or have participated in the fraudulent purpose of the seller.</p>

<p>• Appeal by Maria H. Goward, a sister and sole heir at law of Horace W. Howard, late of West Bridgewater, from a decree of the Probate Court for the county of Plymouth allowing the will of. said Howard.</p> <p>In the Supreme Judicial Court the following issues were framed and were sent to the Superior Court to be tried by a jury:</p> <p>“1. Whether said Howard was of sound, disposing mind at the time of the maldng and executing of the will.</p> <p>“2. Whether he had been unduly influenced to make said will by one Sarah J. Burns and one Henry Dunster, or either of them.”</p> <p>The issues were tried in the Superior Court before Raymond, J. The jury answered the first issue in the affirmative and the second in the negative; and the appellant alleged exceptions to the refusal of the presiding judge to order answers for her upon the issúés, to make certain rulings asked for by her and to certain instructions which were given.</p> <p>The material facts are stated in the opinion.</p>

Information in equity, filed in the Supreme Judicial Court on July 5,1899, by the Attorney General at the relation of the people of the village of Onset, alleging that the defendant, a corporation organized under the laws of this Commonwealth, in 1877 bought a large tract of land in the town of Wareham known as Oak Grove Bluff and containing about one hundred and fifty acres; that the business of the defendant and the purpose for which it was organized was the holding of…

<p>Fraud, As against creditors. Husband and Wife. Evidence, Of fraudulent intent, Presumptions and burden of proof, Failure to testify. Bankruptcy.</p> <p>At common law (under St. 13 Eliz. c. 5) and apart from statutory provisions a preference of one creditor by paying or securing an honest debt to him to the exclusion of others is not unlawful or voidable by or in behalf of the other creditors, if the sole object of the payment or transfer is to pay or secure the debt.</p> <p>In a suit in equity by a trustee in bankruptcy to set aside a transfer by the bankrupt to his wife of certain shares of stock more than four months before the adjudication in bankruptcy, on the ground that the transfer was in fraud of creditors at common law, it seems that the plaintiff may be permitted to introduce in evidence, against the defendant’s exception, the record of a writ of entry brought by certain creditors of the bankrupt in which it was found that a certain conveyance of land by the bankrupt to his wife within a few months of the present transaction was in fraud of creditors, because, although the plaintiffs in that action are strangers to the present plaintiff, the proof of the mutual fraudulent intent of the bankrupt and his wife at the time of the conveyance of the land is admissible as tending to show a general fraudulent purpose to put the property of the bankrupt out of the reach of his creditors.</p> <p>In a suit in equity by a trustee in bankruptcy to set aside a transfer by the bankrupt to his wife of certain shares of stock more than four months before the adjudication in bankruptcy on the ground that the transfer was in fraud of creditors at common law, where a justice who heard the case found that the shares of stock were transferred to the bankrupt’s wife in part payment of the amount of a legacy which her husband was bound to pay to her under a will of which he was the executor, that the bankrupt when he made the transfer knew that he was ■unable to meet the claims of his creditors as they became due, and that his wife “was aware of his intent to get the property where his creditors could not reach it,” these findings do not establish any secret trust in relation to the property transferred to the bankrupt’s wife in part payment of a legacy due to her, and the bill must be dismissed, because the plaintiff has failed to prove that the transfer was fraudulent against creditors at common law.</p> <p>In the suit described above, the defendant, who was the wife of the bankrupt, did not testify in her own behalf and her husband was not called as a witness for her, but the wife had testified about the subject matter in a previous action at law, of which the record was introduced in evidence, and a stenographic report of her testimony in that case was read at this trial, and it was said, that under these conditions the inferences to be drawn against the defendant on account of the failure of herself and her husband to testify at the present trial were reduced to a minimum.</p>

<p>Equity Jurisdiction, To set aside contract procured by misrepresentations, Fraud, Mistake, Remedy' at law. Contract, Building contracts, Construction. Damages, Liquidated.</p> <p>It here was said to be settled law that, where a contract to build a certain structure for an agreed compensation has been performed in full by the contractor, the fact that he has completed the work does not deprive him of the right to maintain a suit in equity to set aside the contract on the ground that" he was induced to enter into it by fraudulent misrepresentations of the defendant or under mutual and material mistakes of fact and to recover the fair value of the labor and materials furnished by him to the defendant, if he brings his suit seasonably upon discovery of the fraud or mistake. In the present suit it was held upon demurrer that the bill contained no sufficient allegations of fraud or mistake to entitle the plaintiff to relief.</p> <p>In a suit in equity by a contractor against a city to set aside a contract in writing, under which the plaintiff had constructed a reservoir for the defendant, on the ground that the plaintiff had been induced to enter into the contract by misrepresentations of the defendant, and to recover the fair value of the labor and materials furnished by the plaintiff in the construction of the reservoir, where it appears that in the proposal of the plaintiff, which was accepted by tile defendant and was made a part of the contract, the plaintiff stated that he carefully had examined the location of the proposed work and the plans and specifications for the work and agreed that his proposal and such plans and specifications should be made a part of the contract, and where it appears that the estimates for the yardage of excavation made by the defendant’s engineer and furnished to bidders were entitled “ approximate quantities ” and the schedule of items of the required masonry and materials was followed by the statement that the quantities were approximate only and were given as a basis for the uniform comparison of bids, the defendant reserving the right to increase or decrease the quantity of any class or portion of the work as might be deemed necessary by its engineer, the plaintiff states no ground for relief by alleging in his bill that in removing the soil for the reservoir site he was compelled to excavate more than double the number of cubic yards shown by the engineer’s estimate and that in building the reservoir the different kinds of masonry and concrete blocks had to be furnished in greater and substituted quantities differing from the estimate.</p> <p>Nor in such suit does the plaintiff state a ground for relief by alleging in his bill that a change of a diversion conduit from the location shown by the general plan to a "revised approximate location” required for its construction a different kind of material with a larger amount of excavation and masonry, if it appears from other allegations of the bill that the plaintiff’s attention had been called to the change when the parties met to complete the contract and before its execution, although it is alleged that the defendant’s engineer then said that the change in the line and grade would not involve additional expense, because, if the plaintiff chose to rely on the engineer’s honest statement instead of acting on his own judgment, he must accept the consequences.</p> <p>Equity will not give relief by setting aside a contract on the ground of mistake, where, although the plaintiff made a miscalculation when he signed the contract, the terms of the instrument express correctly the exact intention of the defendant.</p> <p>Where by a contract in writing between a contractor and a city for the construction of a reservoir it is stipulated that “the time in which the various portions and the whole of this contract are to be performed and the work is to be completed is of the essence of this contract,” and that the city may deduct the sum of $75 “for each and every calendar day beyond said time for the completion of the said work . . . until the said work shall be completed ” “as liquidated damages, and in full compensation,” in a suit by the contractor against the city to set aside the contract and recover the fair value of the labor and materials furnished, the amount of compensation to the city for eight months’ delay to be deducted from the contract price under the above provision cannot be treated as a penalty or forfeiture, the parties having made a clear agreement that such amount shall be treated as liquidated damages.</p> <p>In a suit in equity by a contractor against a city to set aside a contract in writing, under which the plaintiff had constructed a reservoir for the defendant, and recover the fair value of the labor and materials furnished by the plaintiff, an allegation in the bill that the defendant “has assessed” and deducted damages for moneys paid to engineers and inspectors and for pumping states no ground for relief, because, if such deduction was unauthorized, the remedy by an action at law is plain, efficient and exclusive.</p>

<p>Tort for personal injuries sustained by the plaintiff on January 8, 1913, when she was leaving the apartment of her son on the third floor of the tenement house of the defendant numbered 9 on Ohio Street in Boston, by reason of the unsafe, dangerous, dark and insufficiently lighted condition of the hallways and stairways of that building, which were under the management and control of the defendant. Writ dated February 3, 1913.</p> <p>In the Superior Court the case was tried before Dana, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ruled that on all the evidence the plaintiff was not entitled to go to the jury and ordered a verdict for the defendant. By agreement of the parties the judge reported the case for determination by this court, with the stipulation that, if the plaintiff was entitled to go to the jury, judgment should be entered for the plaintiff in the sum of $2,500; otherwise, judgment was to be entered for the defendant.</p>

<p>Capital and Income. 'Trust, Duties of trustee. Corporation, Dividend.</p> <p>An accumulated surplus of undivided profits of a manufacturing corporation, which is distributed among its stockholders by means of a special dividend of $50 a share on shares of the par value of $100 each with the effect of diminishing substantially the present market value of the shares, is income and not capital, and a trustee, who holds such shares in trust to pay the income to certain persons for life with remainders over to others, should pay the whole of the dividend to the beneficiaries for life. Following Hemenway v. Hemenway, 181 Mass. 406, and Gray v. Hemenway, 206 Mass. 126.</p>

<p>Bill in equity, filed on November 30, 1914, by the alleged owners of the equity of 'redemption in a parcel of land with the buildings thereon numbered 5 on Parkman Street in Boston to set aside a sale in foreclosure of a third mortgage on the property.</p> <p>In the Superior Court the case was heard by Fox, J., who refused to make certain rulings asked for by the plaintiff, among them the eighth, which is quoted in the opinion, and ordered a decree that the bill be dismissed. The plaintiff alleged exceptions.</p>

<p>Bill m equity, filed in the Superior Court on June 15, 1914, and afterwards amended, by the owners of some of the lots of land designated on a recorded plan of “Norwood Park,” so called, in Watertown, for the removal of an alleged cloud upon their title consisting of certain restrictions described in the opinion. The bill was against thirty-five defendants, alleged to be all of the owners of the other lots marked on the plan excepting such as had covenanted with the plaintiffs that the restrictions should be treated as having “come to an absolute end.”</p> <p>Twelve of the defendants assented in writing to a decree declaring the restrictions to be no longer in force. The bill was dismissed by consent and without prejudice as to the Hood Rubber Company. Against the remaining twenty-two defendants on motion of the plaintiffs the bill was taken pro confessa. After a hearing by Jenney, J., a final decree was entered that, as to the twelve defendants who consented thereto, the restrictions were no longer in force and that the title of the plaintiffs was no longer incumbered thereby. As to the twenty-two defendants against whom the bill was taken pro confessa, the bill was dismissed “for want of equity jurisdiction, but without prejudice as to the merits of said cause.” The plaintiffs appealed.</p>

<p>Practice, Civil, New trial. Probate Court, Appeal. Supreme Judicial Court.</p> <p>A motion for a new trial of issues, which were framed by the Supreme Judicial Court on an appeal from a decree of a Probate Court allowing a will and were sent to the Superior Court for trial, can be made only in the Superior Court, where the issues were tried.</p> <p>Motions for new trials of issues framed upon appeals from decrees of the Probate ■ Court are governed by the same rules as are motions for new trials in actions at common law.</p> <p>In this Commonwealth the findings of a jury upon issues of fact framed upon an appeal from a decree of a Probate Court, if not set aside by this court for an error of law or by the court in which the issues are tried on a motion for a new trial, are conclusive upon the parties and their privies.</p>

<p>Equity Jurisdiction, To enjoin enforcement of execution. Execution. Joint Tortfeasors.</p> <p>If, after the trial together of separate actions, one by an administrator against the employer of his intestate for the intestate’s conscious suffering and death and the other against a railroad company for causing the death of the intestate, verdicts are rendered, judgments are entered and executions are issued for the plaintiff in both actions, the judgment in the action against the raiboad company being for the larger amount, and the execution against the employer is paid in full and that against the raiboad company is returned to court with an indorsement thereon stating the payment of a part of the amount by the raiboad company and the payment of the other execution; and if thereafter an alias execution is issued for the balance still unpaid of the execution against the raiboad company when by reason of the cbcumstances as a matter of law no further execution should have issued, the raiboad company cannot maintain a suit in equity to enjoin the enforcement of the alias execution, but its remedy is to bring forward the original action against it and to move to set aside the alias execution for bregularity.</p>

<p>Assignment, For benefit of creditors. Tax, Assessment. Words, “Business,” “Place of business.”</p> <p>An instrument of trust provided that, because of the pendency in the United l States Supreme Court of two suits in which no supersedeas bonds had been given, “and for other reasons,” the grantor sold and conveyed to the trustee all of his property, excepting real estate in Massachusetts exempt from being taken on execution and certain leasehold and other interests which the trustee might think it undesirable to accept and a power of appointment given the grantor under his father’s will, and gave to the trustee full power to hold the property, to sell it when in his discretion it was good business judgment to do so to fulfil certain business obligations of the creditor, and, at the termination of the pending litigation, to convert the property into cash and to distribute it sub- ' stantially in accordance with the provisions of the national bankruptcy act to such creditors as assented to the provisions of the trust, paying the balance, if any, to the grantor. There also were provisions that, in case of bankruptcy proceedings within four months, the trustee should surrender the property to the trustee to be appointed therein, that creditors might assent to the terms within sixty days and that, upon their assenting, they agreed not to prosecute by suit or action any claim against the grantor. All the creditors of the maker, including the plaintiff in the two suits in the United States Supreme Court, signed their assent to the instrument. Their claims amounted to about $2,183,000. The property transferred to the trustee amounted to about $1,900,000. Held, that the instrument was an assignment for the benefit of creditors and was not a mortgage or pledge.</p> <p>Neither the validity nor the character of an assignment for the benefit of creditors is affected by a failure to record it in accordance with the requirements of R. L. c. 147, §§ 21, 22.</p> <p>Where one who, previous to March, 1910, had been an organizer of and officer in many corporations and had maintained a suite of offices in Boston while i residing in Cohasset, at that time made an assignment for the benefit of his creditors, severed his connection with many of the corporations but continued to be president of two of the smaller ones and transacted business in regard to them in an office in Boston, kept his own name on the door of the office, in the directory of the building where the office was and in the telephone directory, attended to business for Ms wife in that office, paid a part of the rent of the office, had a private secretary whose salary was paid by Ms wife and came to the office once a week and there transacted all the business that he had to transact, there being "no changes in the conditions” for three years after the assignment from what they were before except that the assignor became less active than before, it was held, that the assignor had a place of business within the meaning of St. 1909, c. 490, Part I, § 23, cl. 8, which determined where the property in the hands of the assignee should be assessed for taxation, and that such place of business was Boston.</p>

<p>Tort for personal injuries sustained on May 6, 1910, when the plaintiff was in the employ of the defendant as a painter on outside work, by reason of the breaking of a staging upon which the plaintiff had been directed to stand. Writ dated January 5, 1911.</p> <p>The second count of the declaration as amended, which is referred to in the opinion, alleged that it was the duty of the defendant to furnish the plaintiff with suitable and proper ways and appliances for the proper prosecution of his work as such employee and to keep such ways and appliances in repair and proper condition; that the defendant negligently failed to furnish such proper ways and appliances and to keep them in repair and proper condition; whereby the plaintiff while in such employ and while in the exercise of due care was injured permanently.</p> <p>The defendant’s answer contained a general denial, and also alleged that any claim of the plaintiff against the defendant had been satisfied in full by the payment of the sum of $200, whereupon the plaintiff had executed a release under seal, of which a copy was annexed.</p> <p>In the Superior Court the case was tried before Stevens, J. At the close of the plaintiff’s evidence, which is described in the opinion, the defendant relied on a release under seal purporting to have been signed by the plaintiff by his mark, and offered no evidence on the other issues. The judge then refused to order a verdict for the defendant and submitted to the jury the questions whether or not the plaintiff signed the release, and, if so, whether he comprehended what he was doing. The judge also submitted to the jury the assessment of damages. The jury answered the questions pertaining to the release in the negative, and assessed the damages in the sum of $12,500. Thereupon the judge ordered a verdict for the defendant, making the following statement: “It appeared to me that the cause of the accident might have been the throwing of planks out of the window against the cross piece or putlock,* which was done by employees of an independent contractor.”</p> <p>The judge reported the case for determination by this court, with the stipulation that, if the ordering of the verdict was right, judgment should be entered for the defendant; but that, if there was evidence on which the jury properly might have returned a verdict for the plaintiff, judgment should be entered for the plaintiff in the sum of $12,500.</p>

<p> Licensing Board of the City of Boston. Boston. Fees. </p> <p>Under St. 1906, c. 291, § 4, which provides that all licenses issued by the licensing board of the city of Boston “shall be recorded in the office of said board, and all fees for said licenses shall be paid into the treasury of said city,” the fees paid by licensees under R. L. c. 100, § 10, of $1 to the secretary of that board as the recording officer for recording each license must be paid into the city treasury, and the licensing board have no power to direct by vote, “That the secretary need not turn over any more recording fees to the city.”</p>

<p>Contract by the assignee of the rights of John J. Dorey, for the alleged breach of an agreement in writing dated July 2, 1907, whereby the defendants, who were husband and wife, agreed to support John J. Dorey during the remainder of his life, the plaintiff seeking to recover damages for the failure to support John J. Dorey from the date of the agreement until May 19, 1911, which was the date of the assignment to the plaintiff. Writ dated June 7, 1911.</p> <p>The defence of recoupment, which is referred to in the opinion, in addition to other defences was alleged in the answer as follows: “And the defendants further say that payment of the principal and interest [of the mortgage notes] has been duly demanded of the said John J. Dorey, who neglected and refused to pay the same, or any part thereof, and that upon May 19, 1911, the date of the alleged assignment set forth by the plaintiff in his decláration, there was due and payable to the defendants on account of interest on said mortgages the sum of $5,211, and the defendants ask to be recouped up to said amount of $5,211 against any judgment which the plaintiff may recover in this action.”</p> <p>In the Superior Court the case was tried before Dana, J.</p> <p>By the instrument of assignment, which was under seal and was dated May 19, 1911, John J. Dorey assigned to the plaintiff “all claims and demands which I now have, or which I may have at any time against John W. Dorey and Nellie E. Dorey for every sum and for all sums of money now due or which may hereafter become due to me under a contract bearing date of July 2nd, 1907, executed by the said John W. Dorey and the said Nellie E. Dorey, whereby the said John W. Dorey and the said Nellie E. Dorey have agreed to furnish support to me, and for every sum and for all sums of money and demands which are now due or may become due to me as damages for breach of said support agreement, and all my right, title and interest in and to any property, or any rights to which I may be entitled under said support agreement or by reason of any breach of said support agreement.”</p> <p>The contract on which the action was brought was as follows:</p> <p>“Know all men by these presents that we John W. Dorey and Nellie E. Dorey both of Somerville Middlesex County Massachusetts, husband and wife in consideration of certain mortgages made by John J. Dorey to said Nellie E. Dorey amounting to the sum of twenty-seven thousand dollars on property in said Somerville and in Boston Suffolk County Massachusetts, said mortgages being dated July 2, 1907 — and duly recorded do hereby for ourselves, our heirs, executors, administrators, and jointly and severally covenant and agree with John J. Dorey his heirs, executors, administrators, that we the said John W. Dorey and Nellie E. Dorey will jointly and severally furnish to said John J. Dorey during said John J. Dorey’s natural life a comfortable support and maintenance equal to the style and manner in which said John J. Dorey has been accustomed and used to furnish for himself. Such support and maintenance shall include necessary clothing, food, lodging, medicines, medical attendance, nursing, and all care and attendance which said John J. Dorey would reasonably furnish for himself in the maimer in which he has been accustomed heretofore to maintain himself. And for the consideration aforesaid the said John W. and Nellie E. Dorey for themselves, their heirs, executors, and administrators do jointly and severally covenant and agree with said John J. Dorey, his heirs, executors, and administrators that they, the said John W. and Nellie E. Dorey will jointly and severally support and maintain the minor child of said John J. Dorey, named Robert James Dorey and also the child now expected to be born to said John J. Dorey by his wife Mary E. Dorey until said child or children shall attain the age of eighteen years provided it is decreed by any court of competent jurisdiction that said John J. Dorey shall have the care and custody of said child or children or either of them. If only one of said children is decreed to said John J. Dorey’s care and custody then the covenants and agreements herein contained shall apply only to the child so decreed to the care and custody of said John J. Dorey. Said care and support and maintenance to be supplied to said child or children by said John W. and Nellie E. Dorey shall be of the same kind and quality as said John J. Dorey would reasonably furnish for said child or children if said John J. Dorey was caring for, supporting and maintaining said child or children himself, said care, support and mainxenance to include clothing, food, lodging, medicine, medical attendance, nursing, reasonable opportunity for acquiring a reasonable education and such reasonable attention as would naturally be expected from said John J. Dorey toward said child or children.</p> <p>“In witness whereof we hereunto set our hands and seals the second day of July, 1907.</p> <p>Nellie E. Dorey</p> <p>John W. Dorey.”</p> <p>The mortgages referred to in the contract and the mortgage notes were dated July 2, 1907. The mortgage notes, mortgages and the contract for support were all prepared by attorneys employed by John J. Dorey and were delivered as of their common date, July 2,1907. The mortgages were recorded at once by the defendants and remained in their possession. Immediately thereafter, after the execution of the papers on the same day, John J. Dorey repossessed himself of both of the mortgage notes and refused to redeliver them to the defendant Nellie E. Dorey and retained possession of them until May 18,1911, the day preceding the assignment of the contract for support to the plaintiff, when John J. Dorey was forced to return the notes to the defendant Nellie E. Dorey by a decree ordering him so to do, which is referred to in the opinion. No payment of principal or interest ever was made on the mortgage notes. Other facts are stated in the opinion.</p> <p>At the close of the evidence the defendants asked the judge to instruct the jury as follows:</p> <p>“1. If the jury shall find that on July 2, 1907, or immediately thereafter, John J. Dorey wrongfully retained or wrongfully took possession of the mortgage notes and wrongfully withheld them from the defendants until May 18, 1911, such action on his part constituted a breach by him of said support agreement, and the defendants meanwhile were under no obligation to support him, and the plaintiff cannot maintain this action.</p> <p>“2. The plaintiff cannot recover for a breach by the defendants of said support agreement which was due to or occasioned by the fault or wrong doing of the said John J. Dorey.</p> <p>“3. The mortgage notes and mortgages and the support agreement are not independent contracts, but are dependent each upon the other, and the mortgage notes with the mortgages are the consideration for the support agreement, and the defendants are entitled to have allowed by way of recoupment or counterclaim so much of the interest and principal due on said mortgage notes as shall be necessary to offset the amount of damages, if any, which the jury may find to be due the plaintiff in this action.</p> <p>“4. If the jury shall find that there is any sum due the plaintiff for the support of John J. Dorey, the defendants are to be allowed as a set-off, by way of recoupment thereof, so much of the amount due as interest and principal on said mortgage notes, as may be necessary to offset any such amount found due from them.”</p> <p>The judge refused to give any of these instructions, and at the request of the plaintiff made the following ruling:</p> <p>“The defendants are not entitled to recoup in this action any unpaid interest or unpaid principal on the mortgage notes mentioned in the defendants’ amended answer.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $5,200.35; and the defendants alleged exceptions.</p>

<p>Contract, Construction. Estoppel. Evidence, Admissions by conduct. Reference and Referee. Practice, Civil, Auditor’s report, Exceptions, Verdict. Interest. Words, “Actual cost.”</p> <p>Where a millowner, who theretofore had been engaged in manufacturing large sheets of tissue, called jumbo or parent rolls, which he sold to manufacturers • who reduced the tissue to the size and condition in which it was sold to dealers as "toilet” paper, made a contract with a customer who agreed to take the entire product of his mill “finished in tissue toilet paper, rolls and packages, made and put up in such regular standard marketable shapes and sizes ” as the customer should determine to be best suited for his business, and the price to be paid was based on the number of pounds of finished toilet paper contained in each case, at the market price per pound of tissue in parent or jumbo rolls, to which was to be added five per cent and the actual cost of finishing the tissue into toilet paper rolls and packages, it was held, that the five per cent was intended as the millowner’s profit or compensation for doing work of a kind not theretofore undertaken by him, and that the “actual cost of finishing” included a shrinkage in weight of from ten to fourteen per cent in reducing the parent rolls of tissue to “toilet” paper, and also included the rent of premises used in finishing the paper, also charges for insurance, for depreciation of the part of the millowner’s plant and machinery used for finishing, and for the personal services of a superintendent and bookkeeper, the items making up the cost being substantially the same as those that would be deducted from gross receipts in ascertaining net profits.</p> <p>In an action brought by the millowner against his customer on the contract stated above, it appeared that, at a time when the plaintiff and the defendant were at issue as to the actual cost of finishing, the plaintiff sent to the defendant a letter in which he stated that the finishing cost was so high that the defendant could not afford “to pay the price it costs” and that “every case of paper we have shipped you has cost us more than you have been willing to pay for it therefore we will ask you to secure your requirements elsewhere at the earliest possible moment we will in the meantime try and take care of your orders.” It appeared that, upon the finding of the jury under the instructions of the presiding judge, the plaintiff was right as to the price insisted upon by him. Held, that the letter did not estop the plaintiff from claiming damages from the defendant for not taking paper after its date.</p> <p>In the same action it appeared that the plaintiff sent to the defendant a letter in which he said, “we will arbitrate the new prices and meet you in every way that is mutually fair, that is fair to you and also to us,” and that the defendant refused to leave the matter to arbitration. At the trial the defendant contended that his position at the time the plaintiff made this proposition was that, while the cost of finishing demanded by the plaintiff was wrong, he was ready to pay it if it was right. The plaintiff contended that the defendant at that time refused to pay the price claimed by the plaintiff whether it was right or wrong. The plaintiff argued that, if the defendant had taken the position then that he took at the trial he would not have refused to go to arbitration as to the actual cost of finishing, and that his refusal was some evidence that his position then was not what he contended at the trial that it was. The presiding judge instructed the jury that, although the defendant was not bound to arbitrate any question if he did not care to, his failure to arbitrate the actual cost of finishing could be taken into account by the jury if they thought it had any bearing upon the position which he then took. Held, that there was no error in the instruction thus qualified.</p> <p>Where in an action of contract the plaintiff offers in evidence an auditor’s report in his favor, and the defendant objects to a portion of the report, which is in fact objectionable, he has no right to except to the admission in evidence of this part of the report but should move to have the objectionable portion stricken out, and an exception by the defendant to the introduction- in evidence of the objectionable portion which has not been stricken out must be overruled.</p> <p>Where in an action of contract the plaintiff has introduced in evidence an auditor’s report in his favor, which contains certain erroneous portions that have remained as a part of the report because the defendant has failed to ask to have them stricken out, the defendant is entitled to have the jury instructed that in so far as the auditor’s report differs from the rulings of the judge it must be disregarded, and an exception to a refusal to give such an instruction will be sustained.</p> <p>In an action of contract, where the declaration contains two counts and the defendant admits that the plaintiff is entitled to recover on the second count but contests his liability upon the first count and the jury return a general verdict for the plaintiff on both counts for a certain amount of money, from which it is impossible to know what part of the damages was awarded on the second count and how much upon the first count, if the defendant upon exceptions shows that the presiding judge erred in refusing to give an instruction to the jury to which the defendant was entitled, so that his exceptions must be sustained, the verdict cannot stand for any amount.</p> <p>In an action of contract for the price of certain merchandise furnished by the plaintiff under a contract in writing, where by the terms of the contract the agreed .price for cash shipments was to be due thirty days thereafter, it seems, that the plaintiff, if entitled to recover, can recover interest computed on the amount due for each shipment from the expiration of such thirty days without showing any demand for payment.</p>

<p>Trust, Discretionary power of trustee. Bankruptcy. Equity Jurisdiction, Of bill by trustee in bankruptcy.</p> <p>A trustee in bankruptcy cannot by a suit in equity obtain the conveyance to him of real estate included in a devise to a trustee for the benefit of the plaintiff’s bankrupt, where by the terms of the devise the whole control of the principal and income of the property is bestowed upon the defendant trustee with discretionary power to give or withhold any part of it and with a direction that nothing left by the testator to the bankrupt “shall be taken for his debts” but that the trustee shall “convey and give fully to [the bankrupt] whenever it appears that what he may convey or give shall not be taken for debts of [the bankrupt],” and where it does not appear that the discretionary power of the trustee ever has been exercised by giving anything to the bankrupt, and it does not appear that there ever has been a time since the creation of the .trust when payments to the bankrupt would not have been taken fan his debts of that he ever has been out of debt since the trust was created.</p> <p>If in such a case the bankrupt is one of the heirs at law of the testator and, by reason of the absence of a devise over upon his death, the bankrupt as such heir at law has an interest in remainder in the real estate held in trust during his life, this is a vested interest which passed to him on the death of the testator and to the trustee in bankruptcy upon the adjudication in bankruptcy, so that the trustee in bankruptcy has no occasion to seek the aid of a court of equity.</p>

<p>Contract or tort, with a declaration in two counts, the first count alleging a failure of the defendant, a licensed auctioneer, to deliver to the plaintiff certain goods which he had sold to the plaintiff at a public auction, and the second count alleging a conversion of the same goods. Writ dated June 24, 1913.</p> <p>In Superior Court the case was tried before Bell, J. The defendant’s evidence tended to show, and the plaintiff introduced no evidence to contradict it, that a condition of the sale was the payment of a deposit at the time of the sale. There was no dispute that, at the sale, the plaintiff bid in the goods in question, that he paid no deposit on them at that time, and that the next day the defendant sold the goods to another person. The plaintiff testified that he offered to pay for the goods at the time of the sale and desired to take them with him at that time, and that the defendant refused to accept payment and make delivery at that time, which, he contended, was a waiver of the condition as to the deposit. This evidence was controverted by the defendant’s evidence. In this connection the judge charged the jury as follows: “Was there something said there which, fairly interpreted, could be regarded as a waiver of the right to have a deposit? Mr. Parker says that that night he asked for the present delivery of those things and offered to pay for them; that there was talk about there being a watchman there and their being secure there. Mr. Bird says the conversation was entirely limited to whether the goods would be safe, whether it would be proper to leave them there through the night; and if you believe the testimony of other witnesses it appeared at that time, the sale having lasted very late in the afternoon, the bill had not been made out and the accounts arranged, and you may find — it is not for me to say that you will — that at that time the account not having been made up, if they were not made up, Mr. Bird or the auctioneer were not aware whether Mr. Parker had made a deposit or had not made a deposit because the thing had not been figured out. That is for you to say. I don’t say it, I simply suggest it to you, and it is for you to determine what that conversation was, what its effect fairly was. Was it understood between the parties that then the matter of deposit was gone into and it was of no consequence? Upon the probabilities which may aid you on that question both parties have offered evidence. Mr. Parker offered evidence that he had bought goods before and that he was known for some length of time — he puts it longer and apparently more intimately than Mr. Bird does — to the parties. Whether it would be probable that he would not require a deposit of him, how far that goes, it is for you to say. There is some suggestion, — I don’t know but what I excluded that previous dealing, — but the fact that a man knows another does not necessarily mean that he knows him as a man of credit and responsibility, and there is some evidence, to which I call your attention, which might bear the other way, because I want to put the probabilities on both sides.”</p> <p>Then followed the “statement” which the trial judge, in the memorandum which he filed in granting the motion for a new trial and which is quoted in the opinion, stated “may have been prejudicial to the plaintiff.” This was as follows: “If you believe the young man who collected deposits, when he asked a deposit of Mr. Parker, Mr. Parker said he had no money with him; and when Mr. Parker did pay this bill he didn’t pay it himself but brought another man with him, according to his own account, who produced the money and paid it, — which might be an indication — don’t give any weight to it because I suggest it — that he wasn’t in funds himself but was depending on some other man to furnish this money to pay for these goods. It has this bearing, his offer to pay that night if he hadn’t the money to pay with would be less probable, it is less probable if he had no money to pay with, because he might be detected if his offer had been taken up.”</p> <p>At the close of the evidence, by consent of the plaintiff, a verdict was ordered for the defendant upon the second count of the declaration.</p> <p>The jury found for the defendant on the first count. A motion for a new trial was filed by the plaintiff. The motion itself, the disposition made of it and the exception of the defendant with regard thereto are described in the opinion.</p>

<p> School and School Committee. </p> <p>The determination of the methods of teaching and the management and direction of pupils and studies in high schools in this Commonwealth rest in the wise discretion and sound judgment of the teachers and the school committees, whose action in these respects is not subject to revision by this court.</p> <p>Neither a pupil nor the parent of a pupil in a bookkeeping class in a high school has a right to insist that the teacher shall change his method of teaching by requiring the teacher to cease having one of the pupils do the merely clerical work of comparing the written answers of the pupils to problems with those in a key book and to do the work himself.</p> <p>At the trial of an action under R. L. c. 44, § 7, for the alleged Unlawful expulsion of the plaintiff from a high school, it appeared that the plaintiff was a member of a bookkeeping class, that the clerical work of comparing the written answers of that class to problems with a key book was done by one of the pupils in the class selected by the teacher; that by reason of one of the plaintiff’s papers being incorrectly marked her stepfather complained of the use of a fellow pupil of the plaintiff in the correction of the papers to the teacher, to the principal and to the superintendent of schools and finally was given a hearing before the school committee, and that in each instance it was determined that the method used was proper; that, the plaintiff absenting herself from the class, she was notified that she must attend the class or be suspended; that she continued her absence and was suspended; that her stepfather then filed formal requests for a reinstatement of the plaintiff and a change in the method of teaching, and that after a hearing his requests were denied. Held, that there was no evidence of an unreasonable expulsion of the plaintiff from the school.</p>

<p>Petition, filed on April 28, 1914, and afterwards amended, for a writ of certiorari to quash the proceedings of the respondents refusing to grant a license of the first class for the sale of intoxicating liquors on the premises numbered 321 on Tremont Street and 98 on Pleasant Street in Boston.</p> <p>The respondent filed an answer and the case was heard by Carroll, J., who ordered that the petition be dismissed and reported the case to the full court for determination.</p>

<p>Negligence, Street railway. Evidence, Of customary practice.</p> <p>At the trial of an action of tort by an administrator against a street railway company for causing the death of a workman in a wide street in a city, which ran easterly and westerly and had a place in the middle reserved for the defendant’s tracks, there was evidence tending to show that for about a month before the accident the plaintiff’s intestate and others had been employed in resurfacing one side of the street at a point where it was straight and there was an unobstructed view for half a mile, that during that entire time the workmen necessarily were engaged in their tasks upon, beneath and around the defendant’s tracks and that it had become customary for the defendant’s cars in entering the area of repairs from the west to be run slowly and to have their gongs sounded continuously; that the plaintiff’s intestate in the course of his duties just had driven a team across the defendant’s tracks from one side to the other of the street, had left his team, had returned in the course of his duties to straighten some planks placed near the tracks to make the progress of teams easier, and had stooped down in arranging the planks, when his head was struck by a street car which passed at the rate of about twenty-two miles an hour and of the approach of which no sound of warning was given, that the motorman when two hundred feet distant saw the intestate two or three feet from the track but did not begin to lessen the speed of the car until he was four seconds distant from him, and that, when twenty feet from him, the motorman saw the intestate, who was looking at the car, step back eighteen to twenty inches. Held, that there' was evidence that the intestate was in the exercise of the due care required by St. 1907, c. 392, as a condition precedent to recovery and that the motorman was negligent.</p> <p>At the trial of the action described above the evidence as to the practice of the defendant of running its cars slowly and of striking the gong continuously while passing through the area where repairs were being made was admissible, not only to show how the cars were run, but also to show that the intestate knew of the usual method and presumably governed his conduct accordingly.</p>

<p>Contract by one of the four executors of the will of Frederick R. Sears, late of Nahant, to recover the amount of a tax assessed for the year 1909 to such executors and collected by distress upon the property of the plaintiff. Writ dated April 15, 1911.</p> <p>The case was heard by Hamilton, J., upon the pleadings and an agreed statement of facts. The judge ruled that the plaintiff was not entitled to recover, and reported the case for determination by this court. If upon this record the plaintiff was not entitled to recover, judgment was to be entered for the defendant; .otherwise, such judgment was to be entered as to this court should seem proper.</p>

<p>Petition by the executors of the will of Frederick R. Sears, late of Nahant, under St. 1909, c. 490, Part I, § 77, appealing from the refusal of the assessors of that town to abate a tax assessed to the petitioners on December 19, 1910, under St. 1909, c. 490, Part I, § 85, on property omitted from the annual assessment for 1910.</p> <p>The case was heard by White, J., upon an agreed statement of facts and evidence introduced before him showing the facts that are stated in the opinion. He found and ruled that the petitioners were not entitled to the abatement sought, and reported for determination by this court the case and all questions of law arising thereon, including the question whether the petitioners had reasonable excuse for their failure to file as executors a list of taxable property for 1910 before June 19, 1911, and for their filing of the list then filed in the form in which it was filed. If the finding and ruling of the judge were correct, the petition was to be dismissed; if they were wrong, such order was to be entered as law and justice might require.</p>

<p>Devise and Legacy, Residuary clause, Lapsed legacy, Intestacy.</p> <p>A testator who was of advanced years, was familiar with the law and apt and proficient in the power of declaring and expressing his thoughts, at the close of a will drawn by himself and containing many carefully framed provisions giving legacies to many relatives according to a definite plan, provided “In the event of the lapse of any one of these legacies by the death of a legatee, I wish the lapsed legacy to be equally divided between the other members of that branch of the family to which this belonged.” The next provision gave the rest and residue of the testator’s property " divided into seven equal parts . . . one share each” to seven persons specifically named. One of these seven persons died before the testator without issue surviving. Held, that the provision preceding the residuary clause could not be read into it, and that therefore there was an intestacy as to one seventh of the residuary estate.</p>

<p>Negligence, Of one controlling real estate. Landlord and Tenant, Liability of' landlord to tenant’s invitee.</p> <p>A landlord, who gratuitously promises a tenant that he will make certain repairs upon the demised premises and makes such repairs negligently, although, under the doctrine of Gill v. Middleton, 105 Mass. 477, he is liable for injuries to his tenant caused by such negligence, is not liable for an injury to an invitee of the tenant to whom the gratuitous promise was not made and to whom the landlord owed no duty in the matter.</p>

<p>Practice, Civil, Exceptions, Stipulations of counsel. Evidence, Materiality.</p> <p>Where, in an action against a street railway company for personal injuries, a letter containing a statement by an attorney at law acting for the defendant referring to a decision of the plaintiff not to receive $50 offered to him by the defendant, which was inadmissible because it was a part of a proposed compromise, was put in evidence by the plaintiff with the assent of the counsel for the defendant on the condition that he should be “ allowed to state the facts in connection with it which it refers to,” and the plaintiff’s counsel then said, “Anything that letter opens up you can explain perfectly,” an exception after-wards cannot be taken by the plaintiff to evidence introduced by the defendant to explain that an offer to pay the plaintiff $50 was made upon the basis that the defendant was not responsible for the accident, this being within the stipulation of counsel under which the admission of the incompetent evidence was assented to.</p> <p>In an action against a street railway company for personal injuries alleged to have been caused by the negligence of the defendant’s servants, where the conductor who was in charge of the defendant’s car at the time of the accident has been called as a witness by the defendant, the plaintiff cannot ask him on his cross-examination, what experience the motorman who was operating the car at the time of the accident had had, the inexperience of the motorman, if shown, not being material upon the issues whether he was negligent and whether his negligence caused the plaintiff’s injuries. Following Lang v. Boston Elevated Railway, 211 Mass. 492.</p>

<p>Practice, Civil, Exceptions. Negligence, Causing death.</p> <p>At the argument of exceptions alleged by the defendant in an action of tort after a verdict for the plaintiff, where the question is whether there was any evidence on which the jury could find for the plaintiff on the issues of fact on which the rights of the parties depend, it is out of place for the counsel for the defendant in his argument to compare the number of witnesses who testified in favor of the defendant and the character of the testimony given by them with the number who testified for the plaintiff and the character of their testimony.</p> <p>At the trial of an action against a street railway company by an administrator for the benefit of the next of kin of his intestate to recover the penalty imposed by St. 1906 c. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1, for negligently causing the death of the intestate (before the enactment of St. 1914, c. 553) when he was in the exercise of due care and was not a passenger or in the employ of the defendant, where it appears that the intestate by the invitation of the owner of a tip cart was sitting with such owner and another guest on a board placed as a seat across the, tip cart, which was being driven by the owner who had driven horses for fifty years, that just before the cart came to a comer of two streets where there was a single track of the defendant the intestate looked through a gap behind the building on the comer in the direction from which came the car that killed him, and that before the cart could be driven clear of the track it was struck by the defendant’s car, which was from seven to twelve minutes late and was going at the rate of twenty miles an hour without sounding any gong or whistle, and the intestate was killed, it was held, that there was evidence for the jury that the intestate was actively looking out for his personal safety and thus was in the exercise of due care within the meaning of the statute.</p>

<p>Insurance, Life: change of beneficiary. Evidence, Declarations of deceased persons, Opinion.</p> <p>In an action by a woman, named as the beneficiary in an insurance policy and there designated as the “affianced” of the insured, against the company upon the policy, the administrator of the estate of the insured was summoned as an adverse claimant and contended that the designation of the plaintiff as beneficiary had been changed. There was evidence tending to show that the plaintiff had been told of the policy by the insured and that he had read it to her and had sent to her the premium receipts up to the time of his death; that two years before his death he had applied to the company for a loan on the policy and had been told that to get the loan he would have to have the consent of the beneficiary; that thereupon he made a certificate that he was the sole owner of the policy, and a false affidavit that the beneficiary was dead, filed it with the company and procured the loan; that during his last illness he had told two persons that the plaintiff was the beneficiary of the policy and had told one of them to see that she got its proceeds, at that time explaining as to the false affidavit that “he simply had to do something in order to get that money at the time.” Held, that a finding was warranted that the certificate and affidavit were not intended by the insured to operate as a change of beneficiary; and that they did not so operate as a matter of law.</p> <p>In the action described above, the statements of the insured during his last illness, which tended to show that he did not intend to revoke the designation of the plaintiff as the beneficiary of his policy, were held to be admissible as the declarations of a deceased person under R. L. c. 175, § 66.</p> <p>In the same case, a declaration of the insured, “If anything does happen tome, I have had my life insured and Charlotte [the plaintiff] will have that anyway,” which was admissible as showing his intention, was held to be a statement of fact and not incompetent as expressing an opinion on a past transaction.</p>

<p>Insurance, Accident. Notice. Evidence, Presumptions and burden of proof.</p> <p>Where a policy of accident insurance provides that the insurer’s liability shall be limited, in case the insured changes his occupation to one rated as more hazardous in a certain manual showing a classification of risks, to such an indemnity as according to the manual the premium paid would purchase in the more hazardous occupation, and, at the trial of an action for indemnity under the policy, the insurer contends that the insured made such a change, the burden of establishing the fact that the new occupation was more hazardous than the old is upon the insurer and, where the evidence is not undisputed, it is proper for the presiding judge to refuse to rule that that burden is sustained.</p> <p>Where, at the trial of an action against an insurance company upon a policy of accident insurance, the defendant contends that the notice in writing of the plaintiff’s injury required by the provisions of the policy was not given, and there is evidence tending to show that the plaintiff saw an agent of the company, who on a previous occasion had sent a similar notice to the company for the plaintiff and who, because the plaintiff could not write, agreed to send the requisite notice in writing, that all that was required was a filled in form of notice of injury and a filled in form of claim of indemnity, that in a letter to the plaintiff’s attorney two months after the injury the defendant had used the words, “ The preliminary blanks in regard to his illness have been received at this office,” and that in no one of nine letters sent by the company to the plaintiff’s attorney regarding his claim had any contention been made that the plaintiff had failed to give the notice required by the provision of the policy, the question, whether such notice was given, properly may be left to the jury.</p> <p>Where a policy of accident insurance requires that “proofs of claim on blanks furnished by the company must be filed with the company” and the blank forms are not annexed to the policy but are to be furnished as occasion calls, it cannot reasonably be said that it was in the contemplation of the parties that the insurer in the exercise of its right would demand of the insured a certificate of a kind which it was impossible to obtain.</p> <p>Accordingly, where it appears at the trial of an action upon such a policy that the blank, furnished to the insured after he had been injured while in the employ of a manufacturing corporation, required a certificate as to the circumstances from the insured, his physician and the employer, although the policy itself did not in terms require such a certificate, and that the employer refused to give such a certificate, if the insured furnished the certificates of himself and of his physician, it cannot be ruled as a matter of law that his failure to furnish that of his employer bars his recovery.</p>

<p>Bridge. Chelsea Bridge. Boston. Chelsea. Revere. Constitutional Law. Municipal Corporations. Supreme Judicial Court. Contract, What constitutes. Words, “Maintenance.”</p> <p>St. 1911, c. 581, as amended by St. 1913, c. 341, empowering the Supreme Judicial Court to appoint a commission to apportion among the cities and towns which receive special benefits from the Chelsea Bridge, the Meridian Street Bridge and the Chelsea Street Bridge a joint and equitable share of the cost of construction, reconstruction, repairs and maintenance of those bridges and to assess upon any street railway having a location thereon a just and equitable share of the cost of construction and repairs, is constitutional, not being a delegation of legislative powers to the judicial department of the government, but conferring upon the court a judicial or quasi judicial duty and power.</p> <p>It is within the constitutional power of the Legislature to impose upon one city or town a part of the expense of erecting or maintaining a bridge within the limits of another city or town.</p> <p>The facts that, under the provisions of Sts. 1911, c. 581; 1913, c. 341, the entire management of the operation of Chelsea Bridge is vested in the city of Boston and that the commission to be appointed thereunder was given power to assess upon the city of Chelsea and the town of Revere a portion of the cost of such operation, while somewhat novel, do not make the statutes unconstitutional.</p> <p>The word “maintenance” in §§ 1, 3 of St. 1911, c. 581, relating to the apportionment by a commission to be appointed by the Supreme Judicial Court of the cost of construction, reconstruction, repairs and maintenance of certain bridges, includes “operation” and therefore it is within the power of stich commission to apportion the cost of operating such bridges in accordance with, the provisions of that statute and of St. 1913, c. 341.</p> <p>A steel conduit over filled land may constitute a part of a single bridge, another part of which spans the mouth of a navigable river; and therefore the finding of the commission appointed under Sts. 1911, c. 581; 1913, c. 341, to apportion' the cost of construction, reconstruction, repairs and maintenance of Chelsea Bridge, among others, that that bridge extends from the navy yard in Charles-town to Chelsea is warranted although the middle section consists of a steel viaduct built on masonry piers over railroad tracks constructed on filled land.</p> <p>It was within the power of the Legislature to authorize by St. 1913, c. 341, § 1, the commission appointed under St. 1911, c. 581, § 1, to apportion the cost .ofj the construction of a certain bridge which then had not been built.</p> <p>The facts that, after negotiations between the cities of Boston and Chelsea looking toward the assumption by one or the other of the entire duty of maintenance and expense of the north draw of Chelsea Bridge, which by St. 1878, c. 41, wag to be equally divided between them, the city council of Boston and the mayor and aldermen of Chelsea passed orders authorizing the mayors of 'the respective cities to enter into an agreement whereby Boston should assume the entire expense of such repair and maintenance “forever” in consideration of the pay^ ment by Chelsea of $25,000; that thereafter by St. 1880, c. 159, § 1, it was provided that, upon such payment of $25,000 by Chelsea to Boston “it shall' thereupon be the duty of the city of Boston to forever maintain and keep in repair the northeasterly draw and draw-piers of Chelsea Bridge, and also such portion of the bridge as may be included within the piers when relocated;” that thereafter, without the making of any agreement in writing, Chelsea paid to Boston $25,000, and Boston repaired and maintained the draw at its sole expensé up to the passage of St. 1911, c. 581, do not constitute a contract whieti. “exists between the city of Boston and the city of Chelsea, which” undey St. 1911, c. 581, § 5, “prevents the carrying out of this act in any part.”</p> <p>St. 1880, c. 159, above referred to, was a governmental regulation of the north draw of Chelsea Bridge as it then existed, and its provisions were subject tó modification or repeal according to the wisdom of the Legislature. St. 1911, c„ 581, § 5, did not transform that regulation into a contract.</p> <p>The fact that the city of Boston widened that draw from thirty-two to fifty feet in 1895, and in 1899 widened it further to sixty feet and, without raising any question as to an apportionment of the expense thereof, continued to pay the entire expense of construction, repair and maintenance up to the enactment of St. 1911, c. 581, does not affect the true interpretation of St. 1880, c. 159, as relating only to the draw as it existed in 1880.</p>

<p>Evidence, Remoteness. Malicious Prosecution.</p> <p>At the trial of an action for malicious prosecution of the plaintiff on the charge of larceny, where the plaintiff introduced evidence tending to show that, because of such prosecution and the publicity connected with it, she lost patronage of a boarding house and restaurant maintained by her, the judge properly may exclude as too remote evidence offered by the defendant tending to show that four years after such prosecution the plaintiff was indicted for the crime of abortion and was tried and acquitted in 1912 and that the newspapers published the fact of her arrest and trial, such evidence having no tendency to show the cause of damages suffered by the plaintiff four years before.</p>

<p>Bill in equity, filed in the Superior Court on March 24, 1914, seeking to enjoin the defendant from occupying a certain portion of the basement of a building of the plaintiff, the first floor of which was occupied by the defendant as a tenant under a lease in writing.</p> <p>In the Superior Court the case was heard by Pierce, J. The material facts are stated in the opinion. A final decree was entered granting the prayer of the bill. The defendant appealed.</p>

<p>Appeal from a decree of the Probate Court for the county of Barnstable allowing the will of Esther G. Newcomb, late of Orleans.</p> <p>The case was heard by Loring, J. The evidence is described in the opinion. At the close of the evidence the appellant asked the justice to make the following rulings:</p> <p>"1. The will was not witnessed by three competent witnesses to the execution and signature by the testatrix.</p> <p>“2. That the will was not witnessed by three witnesses in conformity with the requirements of the statutes, in that the signature of Margaret Phee who signed the will in .behalf of the testatrix could not be legally a witness to the execution of the will.</p> <p>“3. The will was not executed by Margaret Phee for the testatrix at her express direction on the evidence.</p> <p>"4. It does not appear that the testatrix at the time of the alleged execution of the will identified the instrument as her will or requested the witnesses to sign the document as her last will.</p> <p>“5. In order to make the execution of a will valid when executed and signed by a third person as in this case, there must be an express direction coming from the testatrix, and it is not sufficient proof of such direction to show that there was an assent of the testatrix by a nod or motion of the head, and the suggestion of a person in the room at that time that another person signed the will for the testatrix which is assented to by a nod or approval as shown by the evidence is not sufficient evidence of express direction.</p> <p>“6. That on all the testimony there is not sufficient evidence to warrant a finding and decree that the will was duly executed or that it was executed by Margaret Phee by the express direction of the testatrix.”</p> <p>The justice refused to make any of these rulings, and found and ruled as follows:</p> <p>"I find that the instrument now presented as the will of Mrs. Newcomb was duly signed by Miss Phee in her presence and by her express direction, and was attested and subscribed in her presence by three witnesses all of whom were competent witnesses for that purpose.</p> <p>“I am of the opinion that the person who signs the name of a testator by his express direction is a competent attesting and subscribing witness and I refuse the first and second requests for rulings asked for by the contestants.</p> <p>“I find that the deceased’s hands were so crippled with rheumatism that it had been and was hard for her to write; and that in addition, when the time came for her to sign her name to the instrument now propounded as her will she was physically in a very weak condition; that a pen was offered to her and she said 'Oh dear’ and thereupon she was asked if she would like Miss Phee to sign her name. To this she nodded her head and said 'Yes/ Therefore I refuse the third and fifth requests for rulings.</p> <p>“I refuse the fourth request for ruling as not being good in law.</p> <p>''And the sixth in that it is not correct, having reference to the evidence in this case.”</p> <p>The justice made an order for a decree affirming the decree of the Probate Court and remanding the case to that court for further proceedings; and the appellant alleged exceptions.</p>

<p>Practice, Civil, Appeal, Interlocutory order, Entry of judgment. Negligence, Employer’s liability. Statute, Construction. Municipal Corporations, Bylaws and ordinances. Evidence, Violation of ordinance.</p> <p>Whether an interlocutory order of the Superior Court, made upon a petition under St. 1909, c. 514, § 141, of the plaintiff in an action of tort against his employer for personal injuries, to permit the plaintiff’s attorney to make an examination of the ways, works or machinery of the defendant through whose defect the • injury occurred, is a “judgment founded upon matter of law apparent on the record in any proceeding,” from which an appeal to this court can be taken under St. 1906, c. 342, § 2, it here was not necessary to decide.</p> <p>It also was unnecessary to decide whether, in a case where no exceptions were taken, an appeal from such an interlocutory order would stay the entry of judgment. St. 1908, c. 380, re-enacted in the codification of the labor laws as St. 1909, c. 514, § 141, which provides for the granting by the Superior Court of a petition of an employee, who has been injured in the course of his employment through some defect in the ways, works or machinery of his employer, for an order permitting the person named in, the order to make an examination of such ways, works or machinery, applies to injuries for which the remedy is at common law as well as to injuries that give a right of action under the employers’ liability act.</p> <p>In an action by a workman against his employer for personal injuries caused by the falling of an elevator, which the plaintiff was using in the course of his employment, by reason of the breaking of a wire cable and the faitee to work of a safety clutch, evidence is not admissible that the defendant failed to notify the superintendent of public buildings of the accident as required by an ordinance of the city in which the accident happened; because, assuming that the city had a right to pass such an ordinance, its violation in no way tended to show that the defendant’s negligence caused the plaintiff’s injury, and evidence of such violation is not admissible for the limited purpose of showing that through the defendant’s failure to report the accident the plaintiff was deprived of an opportunity to obtain information as to the condition of the elevator and thereby was excused from presenting better evidence on this subject than he did present, especially where no argument has been made by the defendant that the plaintiff’s case is not to be relied upon because he did not produce better evidence.</p>

<p>Wagering Contract. Evidence, Auditor’s report, Presumptions and burden of proof, Testimony at former trial. Practice, Civil, Exceptions, Requests for instructions, Judge’s charge, Verdict. Rules of Court.</p> <p>In an action under R. L. c. 99, § 4, by the executor of the will of a woman, for the value of securities alleged to have been delivered by the plaintiff’s testatrix to the defendant as margins on wagering contracts, where an auditor found that the testatrix employed the defendant, who was a stockbroker, “to buy and sell securities upon her account upon margin contracts, intending at the time, that the defendant should make actual purchase or sale of such securities as she from time to time ordered,” and where it appeared that this finding covered all purchases and all sales ordered by the testatrix including twenty-five short sales of stocks not owned by her when she gave the order to sell, there is evidence warranting a verdict for the defendant; and this is none the less so by reason of a finding of the auditor that the testatrix employed the defendant to “ carry for her upon margins such [securities] as were purchased until their sale was ordered,” or by reason of a finding that the testatrix “never intended herself to pay the defendant in full for all said purchases, but she intended and contracted that after the defendant had made the actual purchases ordered that he should carry the securities for her upon margin, and sell such as she ordered to be sold or deliver to her any that she might elect to pay for in full.”</p> <p>In the case above described the defendant set up and relied upon the affirmative defence that the pinchases and sales were actual ones, and it was pointed out by this court, that the presumption created by the provision of R. L. c. 99, § 6, that the fact that the seller or the person employing another to sell for his account did not own the securities at the time of giving the order to sell shall “be prima facie evidence that within the meaning of section four there was an intention that there should be no actual pinchase or sale,” does not apply to the issue of the affirmative defence under § 4 that the purchases and sales were actual ones.</p> <p>At a new trial of an action, after a rescript of this court sustaining exceptions, a transcript of the testimony given at the former trial by one of the witnesses for the adverse party who is living and within the jurisdiction of the court, is not competent in place of the witness who might be summoned.</p> <p>An objection to the consideration of evidence, which previously in the trial had been admitted without objection, made when the judge referred to the evidence in his charge by saying to the jury, “You may exclude that from your minds unless it appears that it was admitted without objection,” here was not considered as an exception, because an objection is not an exception. The evidence here referred to was merely a statement of a witness that he did not remember whether a certain witness at a former trial of the case gave certain testimony.</p> <p>Where at the close of the charge of the presiding judge at a trial, one of the counsel asked orally for a certain instruction, to which the judge replied, “I gave everything that you requested that I thought ought to be given,” this was held to have been a refusal by the judge to give, under Rule 45 of the Superior Court, special leave to present a further request after the conclusion of the charge.</p> <p>A presiding judge at a trial in his charge to the jury, after having given instructions which were asked for by the plaintiff and by the defendant, added the following: “I do not think, gentlemen, you will get very much help from any requests that I read to you. I do not think generally requests have very much effect with a jury, because I do not think they impress them so much as an oral charge from the judge. I tried to cover in what I have said to you orally substantially everything that I think I ought to give in those requests, but lest I might have omitted something I have taken them up and have given you the requests that I think the plaintiff and the defendant are entitled to.” No objection was made to this at the time, but afterwards one of the parties, at the</p> <p>, argument of his exceptions, complained that the effect of this statement was to take back the instructions that the judge had read to the jury in accordance with the requests, and that this treatment of the requests was equivalent; to refusing them. Held, that this contention was not justified, and that the instructions given by the judge in accordance with the requests were to be treated as given in the proper manner.</p> <p>In an action under R. L. c. 99, § 4, by the executor of the will of a woman, for the value of securities alleged to have been delivered by the plaintiff’s testatrix to the defendant as margins on wagering contracts, the presiding judge put to the jury two questions as follows: 1. “Did the plaintiff’s testatrix intend there should be no actual purchase or sale of the stocks?” 2. “Did the defendant have reasonable cause to believe that such intention existed on the part of the plaintiff’s testatrix? ” The judge, after some confusion of statement, finally explained the questions correctly and, in answer to an inquiry from the judge as to whether the explanation was clear, the foreman of the jury said “I guess that is clear, your honor.” The judge failed to instruct the jury that if they answered the first question in the negative, they should not answer the second question, but on the contrary there were written beneath the second question the words, “You will answer that also yes or no.” To the first question the jury answered, “No,” and to the second question they answered, “Yes.” They returned a general verdict for the defendant. There had been evidence of certain short sales which under § 6 of the statute was prima facie evidence that the defendant had had reasonable cause to believe that the plaintiff’s intestate, when she gave the orders, intended that there should be no actual purchase or sale. An auditor, who in his report had found for the defendant on the first question, had made no finding on the issue covered by the second question. Held, that under all the circumstances there was nothing in the answer to the second question that tended to show that the jury misunderstood the instructions as to the first question and that accordingly the exceptions to the instructions in regard to the first question must be overruled, and that, all other exceptions having been disposed of, the general verdict for the defendant must stand.</p>

<p>Contract or tort, with a declaration as amended in five counts. The material allegations of the fifth count, which alone is material to this decision, are described in the opinion. Writ dated May 21, 1914.</p> <p>The defendant demurred to the declaration and to each count thereof. The demurrer was heard by Wait, J., and was sustained as to each count excepting the second, which alleged a cause of action for conversion. The plaintiff then discontinued as to the second count, the defendants moved for judgment, judgment was entered for the defendants; and the plaintiff appealed.</p>

<p>Contract upon a policy of fire insurance in the Massachusetts standard form. The material allegations of the declaration as amended are described in the opinion. Writ dated October 15, 1914.</p> <p>The defendant demurred. The demurrer was heard by Wait, J., and was sustained, and judgment was entered for the defendant. The plaintiff appealed.</p>

<p>Equity Jurisdiction, Suit by stockholder of corporation to procure enforcement of liability of directors. Corporation, Liability of directors.</p> <p>A suit in equity by a stockholder in a corporation alleged to be brought in behalf of himself and all'other stockholders who desire to join, to compel the enforcement „ by the corporation of the liabilities to it of some of its present and former directors by reason of alleged negligence and misconduct in the management of the affairs of the corporation whereby great losses have been incurred, cannot be maintained without alleging and proving a reasonable application to the directors of the corporation to institute proceedings to recover the losses referred to or alleging and proving facts which show that such an application would have been useless.</p> <p>It seems, that, if such an application to the directors fails or would be useless, the aggrieved stockholder must resort to the stockholders and make an honest attempt to convince them that action ought to be instituted, unless there is an adequate reason for not doing this.</p> <p>In a suit in equity by stockholders in a railroad corporation to compel the enforcement by the corporation of the liabilities to it of some of its present and former directors by reason of alleged negligence and misconduct in the management of the affairs of the corporation whereby great losses had been sustained, where the allegations of the bill set forth no facts showing that the plaintiffs before filing their bill had made any genuine and substantial effort to induce action by the directors with a real purpose of bringing about that result, and there was no allegation of any attempt to bring the wrongs of which complaint was made to the attention of the stockholders, and where, as an attempted excuse for the failure of the plaintiffs to move the directors to action in behalf of the corporation, it was alleged that the directors of the defendant were twenty-three in number, that ten of the individual defendants “are still directors of said corporation and influential in its councils. Said defendants and other directors closely associated and affiliated in financial matters constitute a majority qf the board of directors and control the action and policy of the corporation,” it was held, upon demurrer, that the bill contained no allegation of facts showing that a demand upon the directors for action would have been useless, and on that ground the demurrer was sustained.</p>

<p>Insurance, Accident. Evidence, Presumptions and burden of proof, Report of inquest, Of nature of death, Admissible for limited purpose.</p> <p>At the trial of an action upon a policy of accident insurance providing for the payment to the plaintiff of a certain sum in the event of the death of the insured “wholly and entirely by external, violent, and accidental means,” there was evidence tending to show the following facts: The insured was a man about five feet seven inches in height, of large build, weighing about two hundred pounds, and of a contented and normal mind. Sometimes he had slight attacks of indigestion, when he always felt as if he wanted to get to an open window. When he got up to go to a window at night he might stay there five minutes. On the night of his death he had occupied a lower berth in a sleeping car, the berth being made up with the head toward the front of the train. The window at the foot of the bed had been raised and a screen inserted twenty-five inches wide and eighteen inches high, with its lower edge about nine inches above the bed. The upper berth was about thirty-six and a half inches above the bed. The insured was seen in the corridor of the car at two o’clock in the morning. At three o’clock his body was found between tracks in a railroad yard, clad in a • portion of a nightshirt and with the skull and cheek bone fractured. His watch, money and ticket were found under the pillow in the berth, his clothing was laid on the shelf and some of his belongings were found in the small hammock in the berth, the end of the hammock nearer the foot of the berth being pulled • down and hanging. The screen was found broken and tom from the top and sides of the frame and hanging outside of the car. There were finger marks on the car outside and below the window. Held, that a finding was warranted that the insured met his death by external, violent and accidental means.</p> <p>Where at the trial of an action upon a policy of accident insurance providing for the payment of a certain sum in the event of the death of the insured “wholly and entirely by external, violent, and accidental means,” a case of death by violent and external means is made out by the evidence, there is a presumption of fact that the death was not intentional and that the injuries causing it were not self-inflicted; and therefore, although without such presumption the evidence might not be sufficient to warrant a finding that the cause of the death was wholly accidental, it cannot be ruled as a matter of law under such circumstances that the question, whether such cause was wholly accidental, should not be left to the jury.</p> <p>If, at the trial of an action upon a policy of accident insurance which contained a provision that no indemnity should be paid if the death of the insured resulted from an injury “caused wholly or in part . . . by . . . voluntary exposure to unnecessary danger . .. nor for any injury which the” insured “by the exercise of ordinary care, prudence, and foresight, might have averted or prevented, or to which” his “own negligence shall have contributed,” the defendant offers evidence tending to exonerate it from liability under that provision, but on all the evidence inferences different from those urged by the defendant reasonably might be drawn, the burden of sustaining the defence urged is on the defendant, and a verdict in its favor cannot be ordered.</p> <p>If a policy of accident insurance, which originally provided a death indemnity of not more than $5,000, was afterwards amended to provide that, in case of the death of the insured “while riding as a passenger on a passenger train, and inside a passenger car thereof,” the amount to be paid should “not exceed $10,000,” and the insured thereafter met his death by falling through a window of a sleeping car on a passenger train, the beneficiary under the policy, if entitled to recover at all, may recover $10,000.</p> <p>Where, in an action against an insurance company for a death indemnity agreed to be paid in a policy of accident insurance which required, as a condition precedent to the payment of the indemnity, that direct and affirmative proof of the death should be furnished to the directors, the defendant, in answer to interrogatories filed by the plaintiff had stated that it received from the plaintiff’s attorney a letter, which it annexed, containing a statement of the claim of the indemnity, and that enclosed in the letter was a copy of the report of an inquest into the cause of the death which included a finding that there was no suicidal intent on the part of the insured and which also was annexed to the answers without objection, if the presiding judge subject to the exceptions of the defendant permits the report of the inquest to be read to the jury and instructs them that they should not take the report as evidence of the manner of death or its cause, but should use it solely for the purpose of deciding whether the report, with the other information obtained by the defendant, ought to have satisfied it that the cause of death was an accident within the provisions of the policy, the defendant’s exceptions must be overruled, the report having been admissible for the limited purpose for which it was admitted.</p>

<p>Deed, Construction. Contract, What constitutes, Construction. Railroad. Practice, Civil, Refusal of request for ruling. Words, “Maintain.”</p> <p>A deed of land to a railroad corporation by the proprietors of a manufacturing establishment, which was given in consideration of an agreement of the railroad corporation, recited that agreement as follows: “As a part of the consideration for this conveyance said Railroad Company, for itself and its successors and assigns, agrees to maintain a connection from the line and tracks of said railroad to a certain track now built on a trestle adjacent to the . manufacturing establishment on the adjoining land of said grantors, and to maintain said trestle and the track thereon so long as the said connection does not interfere with the proper development of the Railroad Company.” In an action against the railroad corporation for failing to keep the trestle in repair, there was no evidence that the conditions had changed in any way since the deed was given, and the trial judge found for the plaintiff. Held, that the finding was warranted, the defendant by accepting the deed having bound itself to perform the agreement to maintain the trestle under the conditions named which still existed.</p> <p>In an agreement by a railroad corporation “to maintain said trestle and the track thereon” connecting with a manufacturing establishment, the words “ to maintain said trestle” mean to keep up the trestle in a state of strength sufficient to perform the functions obviously required of it by the other terms of the contract, although in the same sentence the word “maintain” is used in a different sense in a stipulation of the railroad corporation “to maintain a connection from the line and tracks of said railroad” to the track on the trestle. The failure of a judge before whom a case is tried without a jury to pass upon a request for a ruling is equivalent to a refusal to make the ruling.</p>

<p>Contract, Construction, What constitutes. Words, "Any time.”</p> <p>Where a person who was the president and general superintendent of a corporation, by whose advice certain persons had purchased preferred and common shares of the capital stock of the corporation, after such purchasers had called his attention to a decline in the market value of the stock, wrote to them, “any time you feel real worried, why come out and you can get your money to the value you paid for the stock from me,” whereupon the purchasers replied, "For the present ... we will not take advantage of your willingness to protect us, but will wait to see if the value of the preferred drops any further, for if this continues we would not care to retain our small holdings,” and where, after an interval of five months during which a receiver for the property of the corporation had been appointed, the purchasers notified the promisor that they accepted his offer and were ready to transfer the shares of stock to him, and he refused to purchase the shares, in an action against him upon his alleged agreement, it was held, that the words “ any time” contained in the defendant’s offer, under the circumstances shown by the undisputed facts, must be construed to mean within a reasonable time, and that the attempted acceptance of his offer after an interval of five months during which the plaintiffs had knowledge of the fluctuating financial condition of the corporation and the decline in the market value of its shares, was too late as matter of law.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 25, 1913, against certain corporations and the members of certain partnerships engaged in the business of manufacturing shoes in Haverhill, to enjoin the defendants from interfering with the plaintiff’s right to earn a livelihood, from the use of all black lists or other lists or devices containing the name of the plaintiff, for the assessment of damages and for further relief.</p> <p>The case was referred to Arthur P. Hardy, Esquire, as master, “to hear the parties and their evidence, to find the facts, and report the same to the court.” He filed a report in which he found the facts that are stated in the opinion. Exceptions to this report were filed by the plaintiff and also by the defendants.</p> <p>The case was heard by Loring, J., who made an interlocutory decree sustaining certain of the defendants’ exceptions, as stated in the opinion. The case then was recommitted to the master, who filed a supplemental report, and later was heard by Loring, J., upon the defendants’ exceptions to the master’s supplemental report.</p> <p>The single justice reported the case for determination by this court as follows:</p> <p>“This case came on to be heard before me on the exceptions taken by the defendants to the master’s report.</p> <p>“It appears from the master’s report that on Thursday, December 12, 1912, the employees of the Witherell and Dobbins Company struck, after the increase in wages asked for by them had been granted, because that company refused to deal with the persons chosen by the employees to represent them in making the agreement for the increase in wages, which the company was ready to concede.</p> <p>“I am of opinion, and I rule, that a strike by union employees for the purpose of being represented in negotiations between them and their employer by the agents they have chosen to select for that purpose, viz., officers of the union, is a legal strike. In my opinion such a strike does not come within Berry v. Donovan, 188 Mass. 353, and Plant v. Woods, 176 Mass. 492.</p> <p>“On the next day, Friday, December 13, 1912, the defendant employers of labor in the same city with the Witherell and Dobbins Company entered into a combination to resist that strike, which, as I have said, was a strike by employees for the purpose of being represented by union officials in their dealings with their employer.</p> <p>“On Monday, December 30, 1912, a general strike was instituted by the employees of shoe shops in Haverhill (in addition to the employees of the Witherell and Dobbins Company) to aid the strike by the employees of the Witherell and Dobbins Company in carrying out the purpose for which they struck, namely, to be represented in dealings with their employer by the agents which they had chosen to select, namely, union officials.</p> <p>"Referring (1) to the strike by the employees of the Witherell and Dobbins Company on December 12, and (2) to the general combination of the defendant employers of labor in shoe shops in Haverhill of December 13, and (3) to the general strike of December 30 by employees in Haverhill shoe shops, the master found ‘that this was a struggle between the manufacturers, on the one hand, to deal with their employees as they saw fit without the intervention of the union, and the demand of the union, on the other hand, for recognition to the extent hereinbefore described; and both parties recognized it as such from the beginning.’ The question to be decided is whether that struggle which in fact took place was a legal or an illegal struggle.</p> <p>“I am of opinion, and I rule, that the purpose of the Witherell and Dobbins strike was not a purpose confined to the employees of the Witherell and Dobbins Company, or to the individual employer in that strike (the Witherell and Dobbins Company), but was (1) a purpose common to employees of other persons who might think it to be for their advantage to have employees, in dealing with their employer, represented by union officials; and (2) a purpose common to other employers who might think it to be for their advantage not to have employees, in dealings with the employer, represented by union officials.</p> <p>“I therefore rule that the combination of the defendant employers to aid Witherell and Dobbins in resisting the strike of their employees by refusing to employ the strildng employees of the Witherell and Dobbins Company was a legal combination, and not a boycott by way of a black list; and I also rule that the general strike by employees of shoe shops other than that of the Witherell and Dobbins Company was a legal strike, and not illegal within Pickett v. Walsh, 192 Mass. 572, as a sympathetic strike to aid in a trade dispute of a third person.</p> <p>“If these rulings are correct, the plaintiff cannot complain of the defendants’ refusing to employ him either before or after the general strike; the defendants were justified in refusing to give the plaintiff employment, because they had entered into a legal lockout as against the plaintiff.</p> <p>“There is an additional reason why the plaintiff cannot recover for loss of employment after the general strike which began on December 30, 1912, and this reason would obtain even if the employers’ combination of December 13 was an illegal one. An employee who is prevented from getting employment by an illegal black list of employers has two courses of action open to him. First, he can sue for any damages suffered by him, caused by the illegal combination of employers in blacklisting him, or, second, he can become a party to a general strike against all the employers who are parties to the black list. But he cannot do both. If he becomes a party to a general strike against all employers who are parties to the black list, he cannot complain that he is damaged by not being employed by the very persons for whom, by being a party to the general strike against them and others, he has refused to work.</p> <p>“It is apparent that if my rulings are correct the bill should be dismissed, apart from the correctness or incorrectness of the defendants’ exceptions to the master’s report, and for that reason I have not considered them. But if these rulings of law are not correct, those exceptions should be considered.</p> <p>“Under these circumstances I order that a decree be entered confirming the master’s report and dismissing the bill of complaint, and I report the case for the consideration of the full court under B. L. c. 159, § 27, or .§ 29.”</p> <p>The case was argued at the bar in March, 1915, before Pugg, C. J., Braley, Be Courcy, Pierce, & Carroll, JJ., and afterwards was submitted on briefs to all the justices except Boring, J.</p>

<p>Contract, Performance and breach. Damages, Special, In recoupment.</p> <p>In an action of contract for the price of lumber sold and delivered the defendant claimed damages in recoupment by reason of the plaintiff’s alleged failure to perform his contract in regard to the time of delivering the lumber. It appeared that the lumber was not shipped within the time agreed upon and that time was of the essence of the contract, but it also appeared that there was incorporated in the contract a provision that “all agreements are contingent upon strikes, accidents, delays of carriers and other delays beyond our control.” It was found by an auditor, whose decision of facts was agreed to be final, that the delays were not occasioned by any act or omission of the plaintiff but that the delays in the various shipments were occasioned solely by carriers other than the carrier by which the final shipments by the plaintiff to the defendant were made and were due to causes beyond the control of the plaintiff. Held, that the plaintiff was entitled to recover the full price of the lumber delivered to and accepted by the defendant.</p> <p>In an action to recover the price of lumber sold and delivered by the plaintiff to the defendant, in which special damages were claimed by the defendant in ■ recoupment on the ground that by reason of delays in the deliveries of the shipments of the lumber a third person to whom the defendant had resold the lumber had suffered loss in consequence of the delay, where it appeared that the defendant had paid nothing to such third person on account of such alleged damages and that no action had been brought and no specific demand had been made upon the defendant for such damages, it was said that it was not necessary to base the denial of the defendant’s right to recoupment on that ground; because it also appeared that under the express terms of the contract between the parties the plaintiff had proved an excuse for his failure to deliver the lumber within the agreed time.</p>

<p>Contract for loss and damage to the plaintiff caused by the defendants’ refusal to accept and pay for twenty-five thousand toy cannon according to a contract between the parties made on or about February 8, 1906. Writ dated December 18, 1908.</p> <p>The defendants, in addition to an answer containing a general denial, filed what they called a declaration in set-off, claiming loss and damage alleged to have been suffered by them upon twenty-five thousand toy cannon previously purchased and paid for by them under the contract by reason of the plaintiff’s (the defendant’s in set-off) failure to furnish the exclusive sale of the toy cannon and permitting or failing to prevent other parties from interfering with sales of the toy cannon by the defendants (the plaintiffs in set-off).</p> <p>In the Superior Court the case was tried before Eitchcoolc, J. The contract shown by the letters of the parties is stated in the opinion. The judge excluded certain evidence offered by the defendants as described in the opinion. No exception was taken to the judge’s charge. The jury returned a verdict for the plaintiff in the sum of $500 and also found for the plaintiff upon the defendants’ declaration in set-off. The defendants alleged exceptions.</p>

<p>Appeal from a decree of the Probate Court for the county of Norfolk made upon a bill for instructions filed by the executors of the will of Francis Skinner, late of Dedham, and instructing such executors that the inheritance taxes due to the Commonwealth on account of the transfer of the fund appointed by the testator in the eleventh clause of his will were not payable out of the residue of his estate but should be paid out of the fund so appointed.</p> <p>The case came on to be heard before Crosby, J., who at the request of the parties reserved it for determination by the full court.</p>

<p> Devise and Legacy. </p> <p>A testator provided that, upon the death of his last surviving child, a trust fund established by his will should be distributed “to such of my grandchildren as shall then be living in equal shares.” He also provided in regard to one of his grandchildren, whom he had adopted as a child, after reciting the fact of his adoption, as follows: “Now be it known that it was not, nor is it my intention thereby to have the said [naming the grandchild thus adopted as a child] share in my estate as one of my children, but that he should take under my Will only the share of a grandchild.” The grandchild thus referred to died before the termination of the trust leaving a son, and later, upon the death of the testator’s last surviving child, this great-grandchild claimed the share of a grandchild under the provision first above quoted on the ground that he was a grandchild because of the adoption of his father and that the above provision as to treating his father as a grandchild did not affect his rights. Held, that the testator intended that for the purposes of taking property under his will the adoption should be disregarded, and that the great-grandchild claiming to be a grandchild by reason of such adoption should be excluded from the distribution.</p> <p>A testator made the following provision in regard to the distribution of the income of a trust fund established by his will: “To pay all the remainder of said income ... in equal shares to my several children . . . [naming them] for, and during the period of the natural life of each of my said children. And upon the decease of any of my said children, the share, or shares of said deceased child, or children, not withstanding such deceased child or children shall leave issue surviving, until after the decease of all my said children, when I direct:” Here followed a direction to distribute the trust fund among his grandchildren then living. Held, that, there being no thing to indicate what words had been omitted, the missing words in the incomplete sentence could not be supplied by conjecture, but that the words as they stood showed that the income was given to the children named as a class, and that upon the death of one of them the income was to be paid to the survivors until, upon the death of all but one, the whole income was to be paid to the last survivor until his or her death.</p>

<p>Landlord and Tenant. Estoppel. Equity Jurisdiction, To enjoin partial eviction of tenant, Damages.</p> <p>Where the owner of a building, after giving to a tenant a lease of one of the floors of the building, closes an entrance of the building on a business street which existed when he gave the lease and substitutes another entrance equally convenient to the lessee through a building which the lessor does not own, and later the lease is “renewed and extended” by an instrument which incorporates by reference the description of the demised premises contained in the first lease as bearing the street number of the removed entrance, and after such renewal the lessor continues to treat the substituted entrance as bearing the number of the removed one, and where the owner of the substituted entrance, rightfully having control of it, closes its connection with the tenant’s premises, so as to shut him off from all access to the street on which the removed and the substituted entrances opened, in a suit in equity by the lessee against his lessor to-enjoin him from evicting the plaintiff from the use of the substituted entrance and for damages, the defendant is estopped to deny the existence of the substituted entrance as a part of the demised premises and as against the plaintiff cannot show title in another to relieve himself from liability.</p> <p>In the case stated above the defendant, not having in fact the title to such substituted entrance, cannot be required to reopen the entrance which he does not control, and must respond in damages.</p> <p>In the same case it was held, that the partial eviction did not necessarily terminate the lease, so that it was not essential that the tenant should abandon the entire premises before seeking relief in equity.</p>

<p>Pledge. Equity Jurisdiction, Laches.</p> <p>The ordinary relation of pledgor and pledgee, although sometimes spoken of as in the nature of a trust, is not a fiduciary one as affecting the period of limitation of actions at law or the time within which a suit in equity must be brought. Where the right of a pledgor to demand and receive certain shares of stock pledged to secure the payment of certain notes given by the pledgor for the accommodation of the pledgor’s son was asserted for the first time in a suit in equity brought twenty-eight years after the notes had been paid, and there was nothing to indicate any deception or concealment on the part of the pledgee, it was held, that the suit was barred by loches.</p> <p>In the suit above described the facts, that after the notes had been paid the assignee in insolvency of the estate of the pledgor had died and that no successor was appointed until the plaintiff was appointed such successor twenty-two years after the death of the original assignee, were held to have had no effect to suspend the operation of the lapse of time.</p>

<p>Bond. Executor and Administrator. Insolvent Estate of Deceased Person. Practice, Civil, Agreement as to facts, Appeal. Judgment, On bond.</p> <p>If, upon demand being made, an administrator with the will annexed of an estate which has not been represented to be insolvent neglects to pay an execution issued on a judgment against Mm in Ms official capacity or to show sufficient goods or estate of the testator to satisfy the judgment, there is prima fame a breach of his bond given as prescribed by R. L. c. 149, § 1, cl. 1.</p> <p>The provision of R. L. c. 149, § 20, that “Bonds given by executors or administrators for the performance of their trust may be put in suit by a creditor of the deceased for Ms own benefit, when such creditor has recovered judgment for Ms debt against the executors or admimstrators and they have neglected upon demand made by him to pay the same or to show sufficient goods or estate of the deceased to be taken on execution for that purpose,” not only gives the judgment creditor, where the estate has not been represented to be insolvent, a right to put the bond in suit without obtaining authority to do so from the Probate Court, but, taken in connection with the whole scheme for winding up the estate of a deceased person as provided for by our statutes, it also means that the failure under the circumstances stated to pay or to exMbit sufficient goods or estate of the deceased is prima fade a breach of the second condition of the executor’s or admimstrator’s bond.</p> <p>By R. L. c. 142, § 2, wMch provides that “If the probate court finds from the representation of an executor or admimstrator that the estate of the deceased will probably be insufficient for the payment of Ms debts, it may appoint two or more commissioners to receive and examine all claims of creditors against such estate, and to return a list of all claims presented to them, with the amount allowed on each claim,” it is made the duty of an executor or admimstrator to represent the estate of the deceased to be insolvent if it appears that the estate is insufficient to pay all debts of wMch he has had notice.</p> <p>Where as stated above there is prima fade a breach of the second condition of the bond of an admimstrator, the administrator is liable on his bond unless he represents the estate to be insolvent and establishes under R. L. c. 141, § 5, the affirmative defence that upon the settlement of Ms account in the Probate Court the whole estate and effects wMch have come to Ms hands have been exhausted in paying the charges of admimstration and debts or claims entitled by law to a preference over the common creditors of the deceased.</p> <p>To establish such an affirmative defence based on a representation of insolvency it must appear by a final adjudication that the estate is insolvent.</p> <p>After the representation of insolvency is made, the admimstrator and Ms sureties are entitled to have the action on the bond continued until the result of the representation of insolvency is ascertained.</p> <p>Where an action at law is heard by a judge without a jury, and the parties instead of putting in their evidence agree in writing upon certain facts on wMch the case is to be decided under the pleadings, tMs is not a submission of the case upon an agreed statement of facts, and, if there is an appeal from a judgment based on the finding of the judge in such a case, the question for this court is whether as matter of law the finding was warranted.</p> <p>It here was said that, when an action by a creditor against the admimstrator of the estate of a deceased debtor is pending and is about to result in a judgment in favor of the creditor and there is a doubt whether the estate of the deceased debtor is solvent or insolvent, the admimstrator at that time, before the judgment is obtained, should represent the estate to be insolvent, if he has not done so already.</p> <p>Where two actions against the surety on an administrator’s bond, each brought by a separate judgment creditor under R. L. c. 149, § 20, had been tried together, it was said, that, although each of the creditors under the circumstances that existed had a right to put the bond in suit, it was plain that the surety was not subject to have two judgments entered against him, each for the penal gum of the bond, and that it would seem that both actions might be prosecuted until judgment was recovered in one of them and that then the fact that judgment had been recovered in that action would be a bar to entering judgment in the other, but that whether this was the proper way to preserve and give effect to the rights of all the parties it was not necessary to decide at the present time.</p>

<p>Tax, On legacies and successions. Statute, Construction. Power.</p> <p>Statutes relating to taxation by a necessary implication do not extend beyond the jurisdiction of the State enacting them.</p> <p>Under St. 1909, c. 490, Part IV, § 1, and St. 1909, c. 527, § 8, the exercise by a testator, whose domicil was in this Commonwealth and whose will was proved here, of a power of testamentary appointment given to him by the will of a testator, whose domicil was in another State, transferring by such appointment the title to personal property held by a trustee in such other State, is. not subject to a succession tax.</p> <p>The so called succession tax imposed by our statutes on the passing of property by the exercise of a power of appointment is an excise upon the commodity of the privilege of passing title under the sanction and protection of the laws of this Commonwealth, and the statutes imposing such excise have no application where the property transferred by the exercise of the power is not physically within the jurisdiction of this Commonwealth and the succession to it does not depend on any privilege conferred by our laws.</p>