Volume 222 — Massachusetts Reports

<p>Workmen’s Compensation Act, Filing of appeal, Injury arising out of employment, Personal injury. Proximate Cause.</p> <p>The provision of the workmen’s compensation act contained in its amendment by St. 1912, c. 571, § 14, “that there shall be no appeal from a decree based upon an order or decision of the board which has not been presented to the court within ten days after the notice of the filing thereof by the board,” does not mean that the appeal actually must be brought to the attention of a judge of the Superior Court within the ten days but only that the required papers shall be filed as a part of the records of the court within that time.</p> <p>One employed as a superintendent of an amusement resort near a public beach, who as a part of his duty as such employee organized a fire brigade to protect the property of his employer and who also was a regular member of the fire department of the town in which the resort was situated and received for his services as such member $50 a year and was liable to a fine of fifty cents for an inexcusable absence from a fire, when a fire broke out in a garage about forty feet from the property of his employer, went to the garage for the double purpose of extinguishing the fire and protecting the buildings of his employer, and he with about a dozen men of his employer’s volunteer fire department took the employer’s chemical engine to the garage and remained there until the fire was put out. In working with the chemical engine such employee became saturated by smoke and drenched with water, and, when the chemicals of the engine were exhausted, he assisted the town fire department by working with a hose at the top of a ladder. The inhaling of smoke and the drenching with water while he was working on the chemical engine, the effects of which might have been aggravated by his exposure while working with the hose of the town fire department, brought on lobar pneumonia that resulted in his death. Held, that, in a claim made by his dependent under the workmen’s compensation act, a finding was warranted that the death of the employee resulted from personal injury that arose out of his employment.</p> <p>An injury to an employee from inhaling damp smoke and being drenched with water when assisting in extinguishing a fire, which resulted in lobar pneumonia, can be found to have been a “personal injury” within the meaning of St. 1911, c. 751, Part II, § 1.</p>

<p> Mandamus. Civil Service. Fraud. </p> <p>On a petition for a writ of mandamus commanding the directors of the port of Boston to reinstate the petitioner as their mechanical foreman; where the respondents demurred to the petition, which alleged plainly that the petitioner when holding the position of mechanical foreman of the respondents made an application in writing tobe transferred to the position of engineer in charge of the heating plant and that he so was transferred in accordance with his own request, it was held that the petition stated no ground for the petitioner’s reinstatement as . mechanical foreman unless it contained allegations showing that the petitioner’s application to be transferred to the position of engineer in charge of the heating plant was induced by fraud and that he was not bound, by it.</p> <p>The petition referred to above alleged that the petitioner’s “action in applying for a transfer as engineer in charge of the heating plant was taken upon his understanding and belief that the charges preferred [against him as mechanical foreman] would be dismissed, was caused by misrepresentation of the directors of the port of Boston, and because the petitioner was fearful on account of the manifest antagonism of the directors of the port of Boston towards him he would lose his employment entirely.” The petition contained no specifications ■ of untrue statements made by any of the respondents before the petitioner made his application for transfer. There were averments that, previously to a hearing by the respondents upon the charges above referred to, the clerk of the respondents incorrectly informed the petitioner that the charges against him had been withdrawn and that this information proved to be inaccurate and the hearing took place, but it was not alleged that-the clerk made the inaccurate statement by the direction or with the knowledge of the respondents. There was no allegation that showed any unfair treatment of the petitioner by the respondents at the hearing, and none that showed any manifest antagonism on the part of the respondents toward the petitioner which rightly could have induced him to ask for a transfer. There was a final general allegation that the suggestion that the petitioner should apply for the transfer was “á device and subterfuge urged upon him” by the chairman of the respondents in order to accomplish his removal as mechanical foreman and that “ all of the actions of the directors . . . were intended to trick and deceive him, and that he was duped and deceived throughout the entire transaction.” Held, that the general allegations were too vague and indefinite to constitute an averment of legal fraud, and that, in the absence of any specific averments of fraud practiced upon the.petitioner by the respondents, the demurrer must be sustained.</p> <p>It is the general rule that the court will not issue a writ of mandamus where adequate relief can be had by resorting to some other remedy. This principle applies to questions relating to removals, abolitions of positions and reductions of pay in the civil service which may be reviewed in proceedings under St. 1911, c. 624.</p>

<p>Practice, Civil, Auditor’s report. Contract, In writing. Evidence, Extrinsic affecting writings. Custom, Usage of trade. Barrel. Words, “Barrel.”</p> <p>Where an auditor admits evidence of a trade usage to explain the meaning of a word in a contract in writing “for the purpose of showing what the real contract was between the parties,” and an exception is taken before the auditor to the admission of the evidence but no motion is made to recommit the auditor’s report and it is admitted in evidence, and the auditor’s report contains a finding founded on the evidence thus admitted by him, it seems, that this finding made by the auditor is a fact in the case.</p> <p>In an action on a contract in writing, by which the plaintiff agreed to furnish the defendant beer, ale and porter “ at the regular price charged to the Boston retail trade,” it is competent for the plaintiff to prove that as a matter of fact the beer, ale and porter sold to the Boston retail trade was sold at a price per barrel. in a barrel that originally held thirty-one gallons and held less and less as it continued in use and its hoops were tightened, and that the price of the beer, ale and porter charged to the Boston retail trade was based on a barrel of that kind and not on a barrel containing thirty-one and one half gallons as specified in R. L. c. 62, § 2.</p>

<p>Negligence, Employer’s liability.</p> <p>An employer is not liable at common law for an injury to an employee caused by his falling through a hole in the floor of the factory in which he was employed, which had been enlarged temporarily for the purpose of doing some work that still was in progress, and over which a fellow workman had placed temporarily an insufficient board that broke when the injured employee stepped on it.</p> <p>In an action by an administrator under the employers’ liability act for the death of the plaintiff’s intestate, who was un experienced machinist, from falling through a hole in the floor of the defendant’s factory, which had been enlarged to lower some machinery through it and had been covered temporarily by a fellow workman of the intestate with an insufficient board that broke when the intestate stepped on it, testimony of the defendant’s superintendent, who was in charge of lowering the machinery through the hole in the floor, that it was his duty to see that the work was done right, does not warrant a finding that the superintendent ought to have had an oversight of each detail of the work and so was not acting properly in leaving the work of the intestate to be done by him in his own way.</p> <p>In the same case it was held, that the fact that the superintendent took part in lowering the machinery through the enlarged hole showed no connection on his part with the negligence of the intestate’s fellow workman in covering the hole with a board that would break when it was trodden upon; and that an admission of the superintendent on his cross-examination, that it would have been advisable and prudent to cover the hole in order to protect men against the large gear that was running below, also had no bearing on the act of covering the hole with the insufficient board.</p> <p>In the same case it was held, that the fact that, although the superintendent helped to pull the plaintiff’s intestate out of the hole after he fell into it, yet the superintendent could not remember anything about the board that broke, is not evidence of negligence on his part or of an admission of it; and it also was held, that the defendant’s failure to produce the board when its production was called for by the plaintiff at the trial was not evidence of negligence under the statute.</p> <p>In the same case it was held, that, even if the jury could have found that the same insufficient covering of the hole had been in use for three days, this was not sufficient in itself to entitle the plaintiff to go to the jury, because there was no evidence that the superintendent knew or ought to have known of the condition of the hole at the time of the accident or of the way in which it had been covered.</p>

<p>Shade Trees. Holyoke. Municipal Corporations, Board of public works. Words, “Care.”</p> <p>By the provisions of the revised charter of Holyoke contained in St. 1896, c. 438, § 37, the board of public works of that city were given the powers of road commissioners, which include the care of shade trees in highways with the power to cut down and remove any tree which shall be deemed to obstruct, endanger, hinder or incommode persons travelling on the highway, and this power was enlarged by St. 1915, c. 145, § 5, which applies to the city of Holyoke, and which does not require the public notice and hearing before an order for such removal can be passed that formerly were required by R. L. c. 51, § 10.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on December 22, 1913, by Edwin Ginn of Winchester, and after his death prosecuted by the executors of his will, against William F. Almy and Lillian W. Almy, and the American Linen Company, the Granite Mills, the Sagamore Manufacturing Company, the Merchants Manufacturing Company, and the Pocasset Manufacturing Company, each a manufacturing corporation, and the Boston Storage Warehouse Company, a corporation, alleging that the original plaintiff on July 19, 1912, "recovered judgment” against the defendant William F. Almy in the sum of $292,420.72 and "a final decree” against the defendant Lillian W. Almy ordering her to pay the original plaintiff the sum of $100,-000; praying for an injunction restraining the defendant manufacturing corporations from transferring any shares of stock standing in the names of the defendants Almy or either of them, and that such shares of stock might be ordered to be sold and the proceeds applied to the payment of the plaintiffs’ judgment and claims against the defendants Almy; also that any property belonging to the defendants Almy in the warehouse of the defendant Boston Storage Warehouse Company might be ordered to be sold and the proceeds likewise applied; and for further relief.</p> <p>The case came on to be heard before Sheldon, J., on a motion by the plaintiffs for a decree of sale or other proper application of the property of the defendants Almy, one or both, to the satisfaction of the judgments referred to in the decree annexed to the plaintiffs’ bill. The counsel for the defendant manufacturing corporations appeared and objected that the court was without power to order the issuing of new certificates of the stocks of the respective corporations standing in the name of the defendant William F. Almy, and a sale or other application of such stocks for the purpose of satisfying, pro tanto, the plaintiffs’ judgment, unless and until the original certificates of stock standing in the name of the defendant William F. Almy were produced and surrendered. The single justice was of the opinion, in the light of the facts, that the power of the court to enter this decree should be determined by the full court before further proceeedings were had.</p> <p>The justice found that the facts were as recited in a draft for an interlocutory decree submitted by the plaintiffs, a copy of which was annexed to the report and made a part of it by reference, and that the decree was a proper one to be entered, if the court had power to enter such a decree. The proposed decree is described sufficiently in the opinion.</p> <p>The justice accordingly reported the case for determination by the full court upon the bill, the answers and the draft for a decree. Such a decree was to be entered if the court had power to enter it; otherwise, the case was to be disposed of as justice and equity might require.</p>

<p>Mortgage, Of property and franchises of street railway corporation. Estoppel. Taunton and Pawtucket Street Railway Company. Railroad Commissioners. Deed. Equity Jurisdiction, To enforce covenant of further assurance. Street Railway. Receiver. Jurisdiction.</p> <p>Taking part in negotiations, for the purpose of obtaining from the trustee under the mortgage securing the bonds of the Bristol County Street Railway Company a release of certain property from that mortgage, did not estop the Taunton and Pawtucket Street Railway Company, which had acquired the property and franchises of the first named corporation, from impeaching the validity of a supplemental indenture to the same trustee purporting to add additional security to the bonds; nor did the payment of interest coupons of the bonds by the Taunton and Pawtucket Street Railway Company estop that company from denying the validity of such supplemental indenture.</p> <p>“Avoidance of dispute on a comparatively small matter by apparent yielding does not necessarily estop one from asserting his rights when the main question comes to an issue.” By Rugg, C. J.</p> <p>Where, in a mortgage made by a street railway corporation to a trustee to secure its bonds, the corporation covenanted to execute any further deed that the trustee reasonably might require for “more perfectly assuring to and to the use of the trustee . . . the mortgaged premises thereby conveyed or intended so to be and especially for vesting in the trustee upon and for the said trusts and purposes all property thereafter acquired,” and thereafter the corporation makes a supplemental mortgage conveying to the trustee subject to the trusts of the principal mortgage all property acquired by it between the date when the principal mortgage took effect and the date of such supplemental mortgage, the supplemental mortgage is not a subsequently executed mortgage within the meaning of Pub. Sts. c. 112, § 64, St. 1889, c. 316, § 3, (now St. 1906, c. 463, Part II, § 50, Part III, § 103,) requiring that a street railway corporation shall not subsequently execute a mortgage upon its franchise and property without including in and securing by such mortgage all bonds previously issued and all its pre-existing debts and liabilities.</p> <p>In a suit in equity to foreclose a trust mortgage securing an issue of $200,000 of bonds made by the Bristol County Street Railway Company, it was held, that the Taunton and Pawtucket Street Railway Company, which had purchased the property and franchises of the first named company from a receiver of its property under a decree of court, was estopped from contending that the issue of bonds secured by the mortgage was invalid as being issued in violation of St. 1897, c. 337, § 2, (now St. 1906, c. 463, Part III, § 108, as amended by St. 1914, c. 671,) prohibiting the issue of bonds in excess of the amount of capital stock paid in, for the reasons stated in the decision of this court reported in 218 Mass. 367, and because, by the express terms of the deed to the purchasing company and of the decree authorizing the sale to it, the property purchased was made subject to the mortgage securing bonds to the amount of $200,000.</p> <p>As to how far and by whom the validity of bonds issued by a street railway corporation in accordance with orders of authorization made by the board of railroad commissioners is open to question, it here was not necessary to determine, because the raising of the question was precluded by reason of estoppel.</p> <p>A mortgage made by a street railway corporation to a trustee to secure an issue of its bonds and containing the ordinary covenants of warranty conveys as between the parties all the real estate specifically described therein or incorporated by reference in the description which was owned by the corporation when the mortgage took effect or afterwards was acquired by it, this being in accordance with the settled law in this Commonwealth as to all deeds, but, in this Commonwealth, where such a mortgage by its terms includes after acquired personal property, such property does not become subject to the mortgage either at law or in equity until the trustee takes possession of it by virtue of the power conferred by the mortgage or it is conveyed to the trustee by a supplemental instrument in writing.</p> <p>A mortgage made by a street railway corporation to a trustee to secure an issue of its bonds, which was delivered and recorded ten days after its date, was held to have taken effect on the day of its delivery and registration, the written date not being conclusive.</p> <p>In a suit to foreclose a mortgage made by a street railway corporation to a trustee to secure an issue of its bonds, the release by the trustee, to a purchaser of the property of the corporation from a receiver, of a tax title upon a certain parcel of land of the corporation was held not to have released the parcel of land from the lien of the mortgage but to have released only the rights of the trustee that were acquired under a certain tax deed.</p> <p>In a suit to foreclose a mortgage made by a street railway corporation to a trustee to secure an issue of its bonds, where the defendant in interest had purchased the property and franchises of the corporation that made the mortgage and the bonds from a receiver appointed by the Circuit Court of the United States and the decree of sale made by that court provided that the land and other real estate rights “shall be conveyed to the purchaser or purchasers and shall be accepted by the purchaser or purchasers subject to” the mortgage that was being foreclosed, it was held that the defendant in interest was estopped to deny that the land and other real estate rights had passed under the lien of the mortgage.</p> <p>'Whether an express approval by the board of railroad commissioners, in their approval of an issue of bonds by a street railway corporation, of the inclusion by the mortgage of after acquired property, could have the same effect as an approval by an act of the Legislature of a mortgage providing for such inclusion, such as existed in the case of Howe v. Freeman, 14 Gray, 566, it here was not necessary to consider, because the approval of the railroad commissioners, which related only to the amount of bonds to be issued and not to the form of the mortgage by which they were secured, made no reference to after acquired property.</p> <p>Where a mortgage made by a street railway corporation to a trustee to secure an issue of its bonds provided for the execution of any further deed that should be required by the trustee for vesting in the trustee all after acquired property to be held upon the trusts of the mortgage, and a supplemental mortgage was executed conveying to the trustee all property of the corporation acquired after the principal mortgage took effect up to the date of the supplemental mortgage, but after that date the trustee did not take possession of any further property by the power conferred by the mortgage and no further written instrument was executed, it was held, that the mortgage and the supplemental mortgage did not cover personal property acquired after the date of the supplemental mortgage.</p> <p>In a suit to foreclose a mortgage made by a street railway corporation to a trustee to secure an issue of its bonds, where the defendant in interest had purchased the property and franchises of the corporation that made the mortgage and the bonds from a receiver appointed by the Circuit Court of the United States, and the decree of sale made by that court declared what property was subject to the mortgage and what was not, this determination made by a court of competent jurisdiction was held to be conclusive upon the parties to that suit and their privies, which included the defendant in interest in the suit to foreclose the mortgage.</p> <p>A mortgage made by a street railway corporation of its property and franchises to. secure an issue of its bonds includes the interest of the corporation in property which, at the time the mortgage was made, it held in possession as the purchaser under contracts of conditional sale.</p> <p>A covenant of further assurance made by a street railway corporation in a mortgage of its property and franchises to a trustee to secure an issue of bonds, whereby the corporation covenants to do any act and execute any deed demanded by the trustee for more perfectly assuring to the trustee all parts of the mortgaged • premises intended to be conveyed, cannot be enforced, in a suit in equity to foreclose the mortgage, by an order of performance against the corporation, if before the suit was brought all the property and franchises of the corporation had been-sold by a receiver under a decree of the Circuit Court of the United States to a new corporation, which bought the property subject to the mortgage. Nor can the covenant be enforced against such purchaser, because the sale of the property subject to the mortgage merely meant that the purchaser ■ took the property with all the infirmities that had come into existence and attached to it and did not impose an obligation to perform contractual duties of the mortgagor.</p> <p>In the case above stated it further was said that an order to the purchasing corporation to perform such a covenant of the mortgagor would be contrary to St. 1900, c. 381, § 2, (now St. 1906, c. 463, Part III, § 144).</p> <p>In the same case it was held, that the trustee under the mortgage, in the suit in equity to foreclose the mortgage, was not entitled to have the receiver ordered to take possession of after acquired property of the mortgagor for the purpose of subjecting it to the lien of the mortgage, because by the appointment of the receiver by the Circuit Court of the United States the rights of general creditors had intervened, and the trustee under the mortgage had in this respect only the rights reserved to it by the decree of the Circuit Court.</p> <p>In a suit to foreclose a mortgage made by a street railway corporation to a trustee to secure an issue of its bonds, it had been assumed by the parties and the trial judge that the open and closed cars of the corporation were personal property, and this assumption was assumed by this court to be right, without deciding it to be so.</p> <p>A decree of the Circuit Court of the United States ordering a sale, by a receiver who had been appointed by that court, of the property and franchises of a street railway corporation, subject to a certain mortgage that had been made by the corporation to a trustee to secure an issue of its bonds, and declaring that the purchaser of the property and franchises of the corporation at a foreclosure sale under that mortgage should be “entitled to appear, resist, and take evidence” in regard to liens and priorities, does not retain for the Circuit Court of the United States exclusive jurisdiction of the case for determining all claims for priority of payment and of lien upon the property sold by the receiver, and is not a bar to a suit in equity in the Superior Court of this Commonwealth to foreclose the mortgage subject to which the sale by the receiver was ordered to be made.</p>

<p>Tax, Excise on domestic business corporation, On stock of foreign corporation, On bonds of foreign corporation. Constitutional Law, Double taxation. Words, “Securities.”</p> <p>By St. 1909, c. 490, Part III, §§ 41, 43, the tax commissioner, in ascertaining the value of the shares of a domestic business corporation for the purpose of imposing the excise authorized by the statute, is directed to deduct the value “of securities which if owned by a natural person resident in this Commonwealth would not be liable to taxation; also the value of its property situated in another State or country and subject to taxation therein.” By the Public Statutes of Vermont, c. 30, §§ 515, 516, shares of stock in Vermont corporations owned by • non-residents of that State are taxable in the town where the corporation issuing the stock has its principal place of business, and the taxes are to be paid by the corporation itself. Held, that the tax commissioner, in ascertaining the value of the shares of a domestic business corporation for the purpose of the excise, should not deduct the value of the shares of the stock of such a Vermont corporation owned and held by it, because such shares would be taxable here if owned by a natural person.</p> <p>Held, also, that the tax commissioner should not deduct the value of bonds issued by such- a Vermont corporation and owned by the domestic business corporation, they being “securities” within the meaning of the statute which.if owned by a natural person would be liable to taxation.</p> <p>The Legislature has constitutional power to impose a property tax on shares of ' stock in a corporation organized in another State which also are taxable in that State.</p>

<p>Tort by. the administratrix o£ the estate of Miles T. Ashton, late of North Adams, for causing the death of the plaintiff’s intestate on April 21, 1914, while he was in the employ of the defendant, the first count being for instantaneous death “owing to the negligence of the defendant, its agents and servants,” and the second count being for causing the death of the plaintiff’s intestate by alleged negligence in failing to shut off the power from the wires attached to the pole on which the intestate was engaged in the work of repairing the wires. Writ dated July 30, 1914.</p> <p>In the Superior Court the case was tried before Hall, J. The evidence is described in the opinion. At the close of the evidence the plaintiff waived the second count of her declaration and consented that the case should be submitted to the jury on the first count only. On motion of the defendant 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 should be entered for the plaintiff in the sum of $3,000 with interest from May 13, 1915; and that, if the ordering of the verdict was right, judgment was to be entered for the defendant on the verdict.</p> <p>The case was submitted on briefs.</p>

<p>Agency, Existence of relation, Ratification. Municipal Corporations, Officers and agents. Proximate Cause.</p> <p>In an action against a town by a boy three years and five months old for personal injuries caused by a motorcycle that had been left in the dooryard of the plaintiff’s father falling over upon the plaintiff and breaking his leg, if it appears that the owner of the motorcycle, who was in the employ of a contractor, left,the motorcycle on the land of the plaintiff’s father while he went into the . house to telephone to a teamster, who had been employed by the defendant to bring some manhole covers for a sewer that had been constructed in the street in front of the house, in order to hasten the delivery of the covers that the teamster already had agreed with the defendant to transport, and that the defendant afterwards paid the teamster his charge of SI for carting the covers to the street in question, this evidence does not entitle the plaintiff to go to the jury, and a verdict must be ordered for the defendant; the payment of the teamster being no evidence of ratification of the telephoning by the owner of the motorcycle, and such telephoning, even if ratified, not being the cause of the trespass committed by such owner in leaving his motorcycle on the land of the plaintiff’s father.</p>

<p>School and School Committee. Evidence. Letter. Practice, Civil, Report.</p> <p>In an action against a town for the alleged wrongful expulsion of the' plaintiff from the public high school of the defendant, the plaintiff offered in evidence a letter written by the chairman of the school committee to the plaintiff’s father. It appeared that the letter purported to have been written in answer to a letter from the plaintiff’s father addressed to the school committee and delivered in hand to the chairman, that there were six members of the school committee, ■ that the chairman talked with two of them in regard to the subject matter of the letter received and then, before any meeting of the school committee had been held, mailed the letter which was offered in evidence. There was no evidence tending to show that the school committee had knowledge of the letter or its contents or that they adopted or ratified the statements contained in it. • The presiding judge excluded the letter. Held, that the exclusion was right.</p> <p>In the same case letters from the New England College Entrance Certificate Board and the State Board of Education were admitted in evidence to show the standard of educational excellence required and prescribed by those boards, which was material to the case, and, the record disclosing no error, it was assumed by this court that all necessary proof of preliminary facts had been made before these letters were admitted in evidence. Moreover it was held, that, even if these letters had been admitted improperly, they did not affect injuriously the substantial rights of the excepting party and under the fair intendment of the terms of the report of the case to this court were to be disregarded.</p> <p>In the same case, upon the question of the good faith of the school committee in excluding the plaintiff from the high school, there was clear proof of the deficiency of the plaintiff in his studies and the jury made a special finding that the plaintiff was excluded from the school because of such deficiency. They also found that there was open to the plaintiff a school of the ninth grade without extra expense. The plaintiff’s percentage of marks in examination was so low as to require his removal from his class under a rule of the school faculty approved by the school committee, and such removal under the rule was operative without any special meeting or vote. Owing to the loss of records and the death of the secretary in whose supposed custody were certain memoranda of a meeting of the school committee not entered on their records, the record of the proceedings of the school committee offered at the trial was incomplete and was not written on consecutive pages. Held, that there was no evidence for the jury of bad faith on the part of the school committee, so that a special finding by the jury that the school committee did not act in good faith was not warranted, and that a verdict rightly was ordered for the defendant.</p>

<p>Contract by a dealer in cattle for the price of certain cattle alleged to have been sold by him to the defendant, a corporation, through one Austin Davis, who was alleged to have been the authorized agent of the defendant. Writ dated May 26, 1913.</p> <p>In the Superior Court the case was tried before Wait, J., without a jury. At the close of the evidence, which is described in the opinion, the plaintiff asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence A. Davis was the agent of the defendant to make for it the purchase of the property sued for.</p> <p>“2. Upon the evidence the Blackstone Beef Company gave authority to A. Davis to purchase cattle for it at fifty cents a head, and such authority was sufficient to constitute him the agent for said company for the purpose of a recovery by the plaintiff.”</p> <p>The judge refused to make either of these rulings, and found for the defendant. The plaintiff alleged exceptions.</p>

<p> Deed. Boundary. </p> <p>In an action of tort for obstructing a right of way adjoining the plaintiff’s land, the only issue was in regard to a strip of land one and one half feet wide claimed both by the plaintiff and by the defendant. On the well established principle that monuments govern distances, the plaintiff’s lot, which it appeared was rectangular, was sixty-six feet by one hundred and five and one half feet instead of sixty-six feet by one hundred and seven feet, which last measurement was that of the distances named in the plaintiff’s deed that would have fixed the boundary if they had not been controlled by the monuments also named therein. The plaintiff contended that the effect of defeating his title to the strip of land would be to leave the title to such strip in the common grantor of the plaintiff and the defendant, as the strip was not included in the description in the defendant’s deed. Held, that if the title to the strip had not passed to the defendant, which did not appear, this would not help the plaintiff, who did not own it and who must recover, if at all, on the strength of his own title and not on the weakness of the defendant’s title.</p> <p>In the case stated above, it also was held, that the particular description in the plaintiff’s deed was not enlarged by the concluding words, “Meaning to convey the northerly part of the Busby lot 107 X 66. feet,” this being only a repetition of the distances stated in the earlier particular part of the description and being equally controlled by the monuments named in that part of the description.</p>

<p>Clerhs of Courts. Naturalization. Statute, Validity. Constitutional Law.</p> <p>The decision of the Supreme Court of the United States in Mulcrevy v. San Francisco, 231 U. S. 669, in regard to the construction of 34 U. S. Sts. at Large, c. 3592, holding that the half of naturalization fees which is retained by the clerks of courts of counties of a State under that statute is subject to disposition by the State Legislature, is binding upon this court, and overrules the decision of this court to the contrary contained in County of Hampden v. Morris, 207 Mass. 167.</p> <p>St. 1908, c. 253, which was passed two years after 34 U. S. Sts. at Large, c. 3592, took effect, although by its literal terms it purports to dispose of all the fees received by the clerks of the courts of the several counties in naturalization cases, must be construed to apply only to the half of those fees which under 34 U. S. Sts. at Large, c. 3592, is subject to disposition by the Legislature, and, so construed, is a valid provision directing that the one half of the fees in naturalization cases, which the clerks of courts are entitled by the statute of the United States to retain for themselves, they shall pay over to the treasurers of the respective counties, retaining only such part of the money received by them under the naturalization laws as they actually have expended “for clerical assistance, travel and other expenses, while acting under said laws.”</p> <p>It is a well settled rule in the construction of statutes that, where a statute is capable of receiving a reasonable interpretation that will bring it within the power of the Legislature, such interpretation will be adopted instead of one that would make it unconstitutional and void.</p>

<p>Constitutional Law, Assessments for benefits. Tax, Assessments for benefits. Pittsfield. Way, Public: assessment for reconstruction.</p> <p>The provision of the revised charter of the city of Pittsfield contained in St. 1911, c. 732, Part I, § 29, giving the board of public works authority to “ construct, reconstruct and repair” any sidewalk on the public streets and ways of that city and to assess one half the amount of the expense “upon all lands especially benefited by such making, reconstruction or repair, ” is constitutional, there being an implied limitation that the assessment shall be proportional and reasonable.</p> <p>Under the provision of the revised charter of Pittsfield above described, the reconstruction of a sidewalk that has become worn out may cause a direct and peculiar benefit to an abutter who previously has paid a special assessment for the construction of the sidewalk, and this result does not make the statute unconstitutional, the original construction of the sidewalk and the levying of an assessment for it in no way binding the city not to levy an assessment for its reconstruction later.</p>

<p>Workmen’s Compensation Act, Amplification of record, Injury arising out of employment, New hearing before Industrial Accident Board. Evidence, Matters of common knowledge. '</p> <p>Where a decree of the Superior Court affirming a decision of the Industrial Accident Board was reversed by this court “not on its merits, but to enable the insurer to move in the Superior Court on the ground of diminution of the record that the cause be recommitted to the Industrial Accident Board for correction and amplification of the record,” and where the record afterwards was presented again to this court corrected and amplified as suggested and containing also a new finding of the Industrial Accident Board, which did not differ in essential respects from the original finding of the board, it was held, that, although the sending back of the case to correct a “diminution of the record" did not justify the making of a new record and therefore the board had exceeded its power in attempting to make the new finding, yet the record as a whole enabled this court to ascertain what had occurred at the proceeding before the board and therefore the substantial rights of the parties did not require the granting of a motion of the insurer to recommit the case again through the Superior Court to the Industrial Accident Board before considering the case on its merits.</p> <p>In a claim under the workmen’s compensation act the Industrial Accident Board found that the employee had suffered lead poisoning as a personal injury arising out of and in the course of his employment. There was evidence that the employee had lead poisoning and that he had worked as a printer for his employer for about fifteen years, but there was nothing to show the composition of the type upon which he worked, nor to show that lead fumes or lead dust or any dangerous compound of lead was given off in a printing establishment or in such handling of type as the employee had been engaged in to such an extent or in such a form as to be likely to be taken into the human system and to cause lead poisoning. Held, that there was no evidence that the lead poisoning from which the employee suffered was due to his employment or that it did not come from other sources, and that the finding of the Industrial Accident Board was not warranted.</p> <p>It is not a matter of common knowledge that the handling of type by a printer in operating a linotype in the course of his employment is likely to produce lead poisoning.</p> <p>Where in a claim under the workmen’s compensation act a certain material finding made by the Industrial Accident Board was not warranted and accordingly a decree of the Superior Court founded on that finding was reversed, this court were not satisfied upon the record that the case had been tried fully upon this point and considered the case one where, if the employee desired to introduce additional evidence, there should be a further hearing, and therefore ordered that the Superior Court should recommit the case to the Industrial Accident Board in order that the employee might move for a hearing and the introduction of further evidence, and that, if this motion was granted and if at the further hearing new facts were shown upon the point in question, the case should be considered anew upon all the evidence introduced by all parties.</p>

<p>Equity Pleading and Practice, Report of findings of fact, Decree, Further hearing after reversal of decree. Fraud. Undue Influence. Trust, Fiduciary relation. Evidence, Presumptions and burden of proof.</p> <p>In a suit in equity a report of findings of fact made by the trial judge, either under the requirement of R. L. c. 159, § 23, or voluntarily, should not include a decree. The decree should be prepared and made after the findings in accordance with Equity Rule 37. In the present case, where the decree had been made a part of the report, it was treated by this court as being separate from the findings of fact.</p> <p>In dealing with a report of findings of fact made by the trial judge in a suit in equity, the familiar rule here was applied, that, where the evidence on which the findings were made is not reported, the findings of fact so far as they are not inconsistent with each other must be accepted as true.</p> <p>In a suit by an aged husband and wife against the widow of the plaintiffs’ son to set aside a conveyance and transfer made by the plaintiffs to the defendant of all the plaintiffs’ interest in the real and personal property left by the defendant’s husband, on the ground that such conveyance and transfer had been procured by fraud and undue influence on the part of the defendant, it appeared that during the lifetime of the plaintiffs’ son the two households, consisting of the plaintiffs and of their son and the defendant, his wife, occupied the same house, their relations being those of “ confidence and affection,” that the defendant after her husband’s death continued to live in the same house with the plaintiffs and that her relations with them remained friendly, they having signed their approval of her petition to be appointed the administratrix of her husband’s estate. The consideration for the conveyance and transfer was an agreement in writing of the defendant to pay to the plaintiffs and the survivor of them a certain sum of money annually and to “nurse and care for them in sickness and in health during their respective lives.” Held, that the defendant, when the conveyance and transfer were made, was not, in legal contemplation, in a fiduciary relation toward the plaintiffs, and that accordingly the burden of proof was on the plaintiffs to show fraud or undue influence on the part of the defendant.</p> <p>Where, upon an appeal from a decree in a suit in equity, it appeared from the report of the trial judge that the findings had been made on an erroneous theory of law as to the burden of proof, and it could not be determined what the findings of the judge would have been if he had proceeded on the correct rule of law as to the burden of proof, the decree was reversed, and it was ordered that the case should stand for further hearing, with the direction that, if the further hearing was had before the same judge, it might be had in his discretion upon the evidence already heard by him with or without such additional evidence as the parties might desire to present.</p>

<p>Insurance, Eire. Assignment.</p> <p>The conveyance, to a purchaser, of real estate with a building thereon that is insured against fire does not operate in any way to transfer the contract of insurance. To do this there must be a novation created by an assignment of the policy to the purchaser which is accepted by the insurer, thus making a new contract between the insurer and the assignee upon the terms of the old contract.</p> <p>In the present case, where there was no contract by novation, the plaintiff, who was a purchaser of the property, if he had had any rights under the policy, which was in the Massachusetts form, could not have recovered under its terms, as there was a delay of three months on his part in furnishing the required sworn statement of loss, for which no excuse was shown.</p> <p>Where a policy of fire insurance upon a building is made payable in case of loss to the mortgagee of the property, and, after a sale of the property by the mortgagor and a conveyance of it by him to the purchaser without notice to the insurer, and after a subsequent loss of the building by fire, the purchaser pays off the mortgage and receives from the mortgagee a discharge of the mortgage and also the insurance policy on which the mortgagee writes and signs the indorsement, “All interest in the within policy is hereby released,” whether the words quoted constitute an assignment of the mortgagee’s rights against the insurer, here was not considered, because the plaintiff suing on the policy, who was the purchaser from the mortgagor, did not base his right to recover on an assignment from the mortgagee.</p>

<p>Practice, Civil, Requests for instructions, Exceptions, New trial. Deceit, Measure of damages. Damages, In tort. Evidence, Materiality, Best and secondary.</p> <p>An exception cannot be sustained to the refusal of a presiding judge to embody, in an impartial and accurate statement to the jury of the principles of law governing the defendant’s liability, comments on the probative force of certain facts which it would be proper for the counsel requesting the rulings to emphasize in his argument to the jury.</p> <p>No exception will be sustained to the refusal of a presiding judge to make a ruling that is requested in a form in which it is unintelligible and apparently incomplete.</p> <p>In an action of tort for deceit in inducing the plaintiff to purchase at their par value certain shares of stock which were in fact worthless, the defendant is entitled to have the jury instructed that the measure of damages is the difference between the actual value of the shares bought by the plaintiff and what their value would have been if the defendant’s representations had been true, and the use by the presiding judge of the words "actual market value” instead of the words " actual value” was held to have been misleading and a sufficient ground for sustaining an exception, where there was evidence that the actual value of the stock was nothing and there was no direct evidence of what either the actual or the market value would have been if the defendant’s representations had been true, so that it was wholly conjectural whether the actual and the market values were identical.</p> <p>In an action of tort for deceit in inducing the plaintiff to purchase at their par value certain shares of stock which were in fact worthless, evidence of the good faith of the defendant in making the representations, which he had reason to know were false and which deceived the plaintiff, is immaterial; and evidence of the reputation of the defendant for honesty and fair dealing also is immaterial and incompetent.</p> <p>In an action for deceit in inducing the plaintiff to purchase at their par value certain shares of stock in an amusement corporation, which in fact were worthless, where it is shown that the defendant, who was the president of the corporation, at his first interview with the plaintiff and her husband left with them a printed circular to read, which they read, and that before the trial they had made an unsuccessful search for this copy of the circular and had failed to find it, the "plaintiff properly may be allowed to put in evidence another printed copy of the circular.</p> <p>In an action for deceit, where an exception of the defendant was sustained that related wholly to the measure of damages and the issue of the defendant’s liability had been tried without error, it was ordered that the new trial of the case should be confined to the issue of damages.</p>

<p>Practice, Civil, Report. Negligence. Evidence, Presumptions and burden of proof.</p> <p>In an action of tort for personal injuries alleged to have been caused by the defendant’s negligence, where the presiding judge ordered a verdict for the defendant and reported the case for determination by this court, the plaintiff, in order to prevail in this court, must show affirmatively by the case as stated in the report that he was entitled to go to the jury.</p> <p>Where, as in the present case, the report to this court by a presiding judge who ordered a verdict for a defendant is so meagre and indefinite that the facts in regard to the accident which caused the plaintiff’s injury cannot be apprehended accurately, and there is nothing in the record showing negligence on the part of the defendant, and where the report states that if there was any evidence to warrant the submission of the case to the jury, judgment is to be entered for the plaintiff in a sum named, and that otherwise judgment is to be entered for the defendant on the verdict, it is necessary to order judgment for the defendant in accordance with the terms of the report.</p>

Tort for causing the death of a bull of the plaintiff by negligently running it down with a street railway car owned and operated by the defendant on September 30, 1909, in the town of Charlton on a road between the villages of Charlton and South-bridge. Writ dated August 8, 1913. In the Superior Court the case was tried before Hall, J. At the close of the evidence the defendant asked the judge to make the rulings which are quoted in the opinion.

Tort by the administrator of the estate of Anthony Kallio, late of Worcester, for causing the death and the preceding conscious suffering of the plaintiff’s intestate when he was thirteen years of age by injuries sustained on January 16,1913, from which he died on February 14 of the same year. Writ dated June 16, 1913.

<p> Gift. Trustee Process. Husband and Wife. </p> <p>In a town, where the selectmen were the board authorized to issue licenses for the sale of intoxicating liquors, they made a rule requiring that each application for a license of the first class should be accompanied by a certified check for $1,000 payable to the treasurer of the town. The wife of an applicant for such a license borrowed $1,000 from a savings bank on a mortgage of real estate belonging to her in her own right, deposited it in a national bank and obtained from that bank a certified check for $1,000 payable to the treasurer of the town, placed it in an envelope with her husband’s application for a license of the first class and sent the envelope, containing both, to the clerk of the selectmen. The husband failed to obtain the license applied for. One of his creditors brought an action against him by trustee process and summoned the town as trustee. It was agreed by the parties that the wife performed the acts above described at the request of her husband “ but did not make him a loan.” A judge who heard the case without a jury found that at the time of the service of the writ upon the town it had in its possession no goods, effects or credits of the defendant, and that the check then held by the clerk of the selectmen was the property of the wife of the defendant. He refused to rule that the plaintiff as matter of law was entitled to have the trustee charged. Held, that the judge was warranted in finding that the defendant’s wife handed her check to the clerk of the selectmen to be delivered to the treasurer of the town in case the license applied for was granted to her husband but, in case a license was not granted to him, to be returned to her, and that the judge’s refusal to make the ruling asked for was right.</p>

<p>Assignment. Deed. Husband and Wife. Estoppel. Words, “All other rights.”</p> <p>A supposed mortgage made by a married woman, of land that belonged to her husband and not to her, also was signed by her husband. He was not named as a grantor, but a clause of the instrument contained the following words: “and for the consideration aforesaid, I, E J, husband of the said A J, do hereby release unto the said grantee and his heirs and assigns all right of or to both curtesy and homestead in the granted premises, and all rights, by statute and all other rights therein.” At the time the supposed mortgage was made the land was subject to a previous mortgage made by the husband. The underlying mortgage was foreclosed under a power of sale contained in it and the mortgagee, after satisfying the debt to him from the proceeds of the sale, held in his hands a surplus. The person named as mortgagee in the supposed mortgage made by the wife brought an action of contract to recover the amount of this surplus. The presiding judge ruled that the clause quoted above operated as an assignment by the husband of his rights in such surplus and that judgment should be entered for the plaintiff. Held, that the ruling was wrong; that the clause quoted was intended only as a release and did not operate as an assignment by way of estoppel or otherwise, the words “all other rights therein,” when read in connection with their context, referring only to' the release of the statutory rights of the husband in the real estate of his wife in case he should survive her.</p>

<p>Evidence, Of testimony of witness at former trial. .</p> <p>The fact that a witness, who testified at a former trial, last was heard from in a foreign country, without any evidence in regard to the probable length of his absence or tending to show that the party seeking his testimony was ignorant of the time of his return or had made any attempt to induce him to return or to take his deposition or that there was any reason for not making such attempts, is not a sufficient ground for admitting in evidence his testimony given at the former trial.</p>

<p>Equity Pleading and Practice, Master’s report, Findings of judge, Appeal, Decree. Evidence, Presumptions and burden of proof, Failure to call witness. Estoppel. Husband and Wife. Equity Jurisdiction, Judgment creditor’s bill, To reach and apply equitable assets, Equitable levy on shares of stock in corporation. Corporation, Equitable levy on shares. Uniform, Stock Transfer Act. Survival of Actions. Words, “Receiver.”</p> <p>On an appeal from a final decree in a suit in equity, where the evidence is not reported except as it appears in the findings of a master to whom the case was referred to find the facts, the facts disclosed in the master’s report stand as true.</p> <p>In a suit in equity by a judgment creditor, in which it is sought to reach certain shares of stock alleged to have been transferred by the debtor to his wife in fraud of creditors and to apply the proceeds of the shares to the payment of the plaintiff’s judgment, where a master to whom the case was referred to find the facts did not make an unequivocal finding upon this issue, which was raised by the pleadings, but sufficient facts appeared by his report to enable the trial judge to reach a conclusion upon this question of fact and the report in effect stated all the material evidence on the point, it was held, that there was no occasion to recommit the report to the master, and that a motion to recommit for the purpose of having the master make the required finding was denied rightly.</p> <p>Where a suit in equity was heard by the trial judge upon a master’s report alone, this court upon an appeal receives the case as to the facts and the inferences to be drawn from them in the same way that it came to the trial judge.</p> <p>In a suit in equity, where the burden of proof was on the plaintiff to show that a certain transfer made by the defendant was in fraud of creditors, it was said, that, although mere disbelief of testimony introduced by a defendant does not supply the place of affirmative evidence for the plaintiff, yet the testimony • of the defendant may be so inherently improbable as to warrant a presumption that affords affirmative evidence of fraud. In the present case, where the only evidence was contained in a master’s report and the defendant was the only witness for himself, it could not be said that his statements were so improbable as to raise such a presumption.</p> <p>In a suit in equity by a judgment creditor to set aside a transfer of property by the debtor to his wife alleged to have been made in fraud of creditors, where the case was heard by the trial judge upon a master’s report alone, and the only witness before the master was the defendant debtor himself, whereas if his testimony was true his wife, who was one of the defendants, and his daughter must have known the material facts, the failure to call .either of them as a witness affords legitimate ground for an inference adverse to the defendants.</p> <p>It seems, that where a wife permits her husband to take the title and possession of property that belongs to her and to hold himself out to the world as the owner, she is estopped to deny such ownership as against one who gave credit to her husband on the strength of this appearance of ownership.</p> <p>In a suit in equity by a judgment creditor to set aside a transfer of certain shares of stock by the debtor to his wife as having been made in fraud of creditors, the fact, that five days before the transfer, when the claims of the same creditors were in existence, the debtor conveyed certain real estate to his wife in fraud of creditors, is a material circumstance tending to show fraud in the transfer of the shares of stock five days later.</p> <p>In a suit in equity by a judgment creditor, who has taken out execution on his judgment which remains unsatisfied, to obtain satisfaction of such judgment out of shares of stock in a corporation alleged to have been transferred by the debtor to his wife in fraud of creditors, where an injunction has been issued prohibiting the transfer of the shares, the provision of the uniform stock transfer act contained in St. 1910, c. 171, § 13, that “no attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined,” is not a bar to the plaintiff’s relief, because an injunction has been issued; and this is so whether the suit is a creditor’s bill based on the general principles of equity or is a suit to reach and apply equitable assets under It. L. c. 159, § 3, cl. 7, 8.</p> <p>In such a suit the plaintiff by the issuing of the injunction has acquired a lien upon the shares of stock which survives the death of the debtor, who was the principal defendant, and such lien can be enforced against the claim of the administrator of the estate of the debtor who has been made a defendant in the suit, he having taken the property of his intestate subject to the lien.</p> <p>In the same suit it was held, that under the provision of St. 1913, c. 305, that “no attachment of property, real or personal, shall be so dissolved [that is, by the death of the debtor] upon that part of the property which the debtor had alienated before his decease," which took effect on the day that the suit was brought and therefore applied to the injunction issued in it, the lien was preserved because it attached to property which the debtor had transferred before his death.</p> <p>In the same suit, it was said, that the decree properly ordered the holder of the certificate of shares of stock subject to the lien of the injunction to transfer the certificate to the officer of the court appointed to sell it for the purpose of applying the proceeds to the satisfaction of the plaintiff’s judgment.</p> <p>In the same suit, it also was pointed out, that the person appointed by the court to receive and sell the certificate of shares of stock should be called a “commissioner” or a “special master” rather than a “receiver.”</p>

<p>Will, Omission to provide for issue. Statute, Construction. Illegitimacy. Words, "Issue.”</p> <p>Where the Legislature in enacting a statute adopt the language of a previous statute that has received a j'udicial construction, the construction is deemed to have been adopted also and is applied to the later statute.</p> <p>In the provision contained in R. L. c. 135, § 19, that, “if a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate which they would have taken if he had died intestate, unless they have been provided for by the testator in his lifetime or unless it appears that the omission was intentional and was not occasioned by accident or mistake,” the words “issue of a deceased child” mean the legitimate issue of a deceased child, and an illegitimate child of a child of the testator is given no rights by the statute.</p>

<p>Way, Private. Joint Tenants and Tenants in Common.</p> <p>In a suit in equity to restrain the defendant from obstructing a right of way of the plaintiff in an alleged street over the defendant’s land, it appeared that the defendant bought his land at a partition sale and received his deed from the commissioner appointed to make that sale and that the deed did not mention the right of way claimed by the plaintiff, that at the time of the sale the plaintiff and the public were using a supposed street over the defendant’s land, that such use by the plaintiff and his predecessor in title had continued for many years but for less than twenty years, that sewer and water pipes were laid in the supposed street and that a sidewalk was constructed along it, that there was on file in the registry of deeds a plan on which the supposed street was designated, that this plan was referred to in the deed to the plaintiff’s predecessor in title, by which the grantor conveyed the land as guardian after a sale authorized by a decree of the Probate Court, that such grantor previously had purchased with funds which she held as guardian the lot subsequently bought by the defendant at the partition sale, taking the record title in the names of her wards and herself, she having a dower interest in the land, that she had bought this lot for the purpose of making a street through it, and that in her deed, as guardian, to the plaintiff’s predecessor she had undertaken to grant to him a right of way over the proposed street as designated on the plan filed in the registry of deeds, but that the decree of sale gave her no authority to grant such a right of way. The defendant had notice of all these facts when he took his deed from the commissioner. Held, that the plaintiff had established no right of way over the defendant’s land either by grant or by prescription, and that his bill must be dismissed.</p> <p>Where land is owned by two or more tenants in common an easement cannot be imposed on the land by a deed of one of them.</p>

<p>Tort for the alleged conversion of a piano belonging to the plaintiff. Writ dated May 25, 1914.</p> <p>The defendant’s answer contained a general denial and also set up the statute of limitations, alleging that the cause of action mentioned in the plaintiff’s writ did not accrue within six years before the suing out of the writ.</p> <p>In the Superior Court ,the case was tried before Wait, J., with- ■ out a jury. At the close of the evidence, which disclosed the facts that are stated in the opinion, the defendant asked the judge to make the following rulings:</p> <p>“1. Upon all the testimony the plaintiff cannot recover.</p> <p>“2. The plaintiff cannot recover in this action without proof of demand and refusal of the property.</p> <p>“3. Mere acceptance of the bill of sale by the defendant, without any act or assertion of ownership by her, is not sufficient to amount to an exercise of dominion over the property so as to make the defendant liable in this action.</p> <p>“4. Upon all the testimony, if the defendant ever converted the property of the plaintiff, the conversion did not take place within six years prior to the commencement of this action.</p> <p>“5. The fact that the plaintiff did not become aware of the alleged conversion until more than six years after the alleged act of conversion cannot avail the plaintiff to avoid the statute of limitations, as there was no fraudulent concealment of the facts by the defendant.”</p> <p>The judge refused to make any of these rulings. He filed a “Finding of Facts,” which included the facts that are stated in the opinion. He found that the plaintiff’s husband gave her the piano as a wedding present in fulfilment of a promise made before their marriage, although it was not paid for and the title acquired until three years after the marriage, that when the plaintiff’s husband paid for the piano he handed to the plaintiff the bill of sale which was made direct to her by the seller. He also found that the defendant, who was a daughter of the plaintiff’s husband by a former wife, at the time of the delivering of the bill of sale to her by her father which is mentioned in the opinion, knew of the plaintiff’s claim and of her demand for the piano “and she took the bill of sale intending to assert ownership, and to do whatever her father wished with the property conveyed.” He also found that “the conveyance of 1905 was concealed from the plaintiff, and, under the circumstances, the concealment was, in law, fraudulent.”</p> <p>The judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff on May 9, 1914, from being struck by the gate of an elevator well falling upon her when she was stepping out of the elevator at the second floor of the defendant’s building on Main Street in Fitchburg. Writ dated June 25, 1914.</p> <p>In the Superior Court the case was tried before Hall, J. At the close of the plaintiff’s evidence, the report of which to this court is described in the opinion, the defendant rested, and asked the judge to rule that on all the evidence and the pleadings the plaintiff could not recover. The judge so ruled and. ordered a verdict for the defendant. He then reported the case for determination by this court with a stipulation of the parties that, if the ordering of the verdict for the defendant was right, judgment should be entered for the defendant; and that, if the order of the judge was wrong, judgment should be entered for the plaintiff in the sum of $275.</p> <p>The case was submitted on briefs.</p>

<p>Landlord and Tenant. Negligence, Of one controlling real estate, Res ipso loquitur. Evidence, Presumptions and burden of proof.</p> <p>One who is eating ice cream as a customer in an “ice cream parlor” is a person whose use of the premises was contemplated by the proprietor and his landlord when the premises were let to such proprietor, and consequently has the same right that such proprietor has not to have a shower of bricks and an iron plate suddenly come down on him owing to the negligent way in which an iron post has been substituted for a section of a chimney that formerly passed through the room.</p> <p>Where a landlord agrees with a tenant, who conducts an “ice cream parlor,” to substitute an iron post for the portion of a chimney that passes through the premises and has the work done, the fact, that the tenant agrees to pay and does pay for the expense of making the change instead of paying an increased rent which otherwise he would have had to pay, does not absolve the landlord from liability to the tenant for the consequences of making the change negligently, the payment by the tenant of the expense of substituting the post for the section of the chimney being in legal contemplation a payment of rent.</p> <p>In a room used as an "ice cream parlor,” where an iron post has been substituted for the part of a chimney that formerly passed through the room and on top of the iron post has been placed an iron plate to support the part of the chimney above the room, if the post suddenly slips off another iron plate beneath it and goes down through the floor to the cellar and the iron plate above and a shower of bricks come down on a customer who is eating ice cream at a marble topped table, the happening of this accident is in itself evidence of some fault in the construction by which the post was substituted for a section of the chimney. In the present case there also was the testimony of an expert that if the iron post had been “properly put in” it would not have fallen.</p>

<p>Pledge. Bills and Notes, Alteration. Payment.</p> <p>One, who held as pledgee a life insurance policy, forged a note for $3,000 purporting to be signed by the pledgor and also forged an assignment of the policy and borrowed $3,000 upon the forged note and the forged assignment, delivering them with the policy to the person from whom he obtained the loan. Held, that this person acquired no right to or lien upon the policy as against its owner who originally pledged it, and that such owner was entitled to the policy upon paying to the representative of the original pledgee the amount of money for which it was pledged lawfully; and that it was not necessary to consider what, if any, right the pledgee had to repledge the policy, because his attempt to transfer the policy by a forged assignment could not be treated as a repledge.</p> <p>It here was pointed out, that the fraudulent alteration of a promissory note by the payee, which destroys the validity of the note, does not revive the debt of the maker to the payee which was extinguished by the giving of the note.</p>

<p> Workmen’s Compensation Act. </p> <p>One employed as the superintendent of a woolen mill, a part of whose duty it was to order from the premises any person or persons that had entered without permission and who had been instructed by the manager that, if a certain disorderly person came again to the mill, he was to order him out and, if he did not go, was to send for the police, was informed that the disorderly person was in the mill and was threatening to kill one of the employees with a revolver, and the superintendent was asked to order him out, whereupon the superintendent walked toward the trespasser and made a motion toward the door, directing him to go out, and the trespasser then shot the superintendent and caused his death. Held, that a finding of the Industrial Accident Board was warranted, that the injury resulting in the death of such employee arose out of and in the course of his employment.</p>

<p>Equity Pleading and Practice, Appeal. Equity Jurisdiction, To reach and apply equitable assets. Partnership, Bill to reach and apply interest in partnership property.</p> <p>In a suit in equity under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, - § 2, to reach the interest of the principal defendant in partnership property and apply it to the payment of his debt to the plaintiff, where on an appeal to this court no evidence was reported and the findings of the trial judge established the facts of the debt and of the principal defendant’s interest in the partnership property and the decree ordered the sale of such interest in appropriate terms within the scope of the bill, it was held that there was no merit in the appeal and the decree was affirmed with double costs.</p>

<p>Equity Pleading and Practice, Consolidation of suits, Bill, Waiver of demurrer, Remanding case for new trial. Executor and Administrator. Equity Jurisdiction, To reform deed.</p> <p>A suit in equity to reach and apply property of the principal defendant that cannot be come at to be attached at law in satisfaction of the plaintiff's claim for breach of a covenant of warranty in a deed made by the father of the principal defendant, of whose estate that defendant has been appointed administrator, or the executor of his will, in another State, and a second suit by the principal defendant in the first suit against the plaintiff in that suit, as trustee, seeking to have the deed containing the covenant of warranty reformed or set aside on the ground of mistake, afterwards amended by alleging that the minds of the parties never met and therefore that the covenant of warranty never existed, should not be consolidated into one case in which a single decree can be made, although the cases properly may be tried together.</p> <p>In a suit in equity brought in the Superior Court the defendant demurred. Without any hearing on the demurrer the case was referred to a master. About a year later the defendant filed a motion that the record be amended by adding to it a statement, that before the reference to the master the defendant “had saved all his rights under the demurrer filed in said cause.” The motion was granted by an order set forth in a docket entry. The Superior Court did not act on the demurrer, and the case later came before this court on an appeal from a final decree for the plaintiff. Thereupon this court considered the case upon the demurrer, as to which defendant’s rights were “saved” to him, and sustained the demurrer.</p> <p>A demurrer to a bill in equity seeking to reach and apply equitable assets of the principal defendant in satisfaction of the plaintiff’s claim for breach of a covenant of warranty made by the father of the principal defendant, of whose estate such defendant is alleged to have been appointed administrator, or the executor of his will, in another State, must be sustained; because the principal defendant cannot be made liable on the covenant by reason of being the son of the covenantor nor by reason of his appointment as administrator or executor in another State.</p> <p>Where on an appeal in a suit in equity from a decree based on a master’s report, it is apparent from the master’s report that the facts on which the rights of the parties depend have not been ascertained, this court in its discretion, although not asked to do so by any of the parties, may remand the case for a new trial of the issues raised by the pleadings, and whether such new trial shall be had before the judge of the trial court or before a master may be left to be determined by the trial court.</p> <p>In a suit in equity to reform a deed on the ground that the minds of the parties never met as to the land that was to be included in the deed, the determination of this question depends on what the contract was in pursuance of which the deed was to be delivered, and it does not matter what "the parties may have supposed the boundaries to be at the time of the delivery of the deed.</p> <p>Where a suit in equity was remanded for a new trial, because it was plain that on an issue raised by the bill as amended the facts on which the rights of the parties depended had not been ascertained, and on the issues raised by the bill before its amendment it might have been doubtful whether this court would have remanded the case for a new trial on those issues alone, but the facts reported by the master on those issues were not wholly satisfactory, it was ordered that the new trial should cover all the issues in the case raised by the pleadings both before and after the bill was amended.</p>

<p>Exceptions, Petition to establish.</p> <p>Upon a petition to establish exceptions the only matter before this court is the determination whether the bill of exceptions presented to the trial judge and disallowed by him was true in whole or in any separable part, and, after the petition is before this court, although slight unintentional errors may be rectified, there can be no material modification of the bill as it was presented to the trial judge for allowance, and it must be allowed or disallowed by this court substantially as it was presented to him.</p> <p>Accordingly, in the present case, a motion to dismiss a petition to establish exceptions for the purpose of substantial amendment of the record was denied.</p> <p>It seems that, if a bill of exceptions as filed, although setting out exceptions actually taken, contains irrelevant and objectionable evidence of a character to obscure the questions of law raised, or is of wholly unnecessary bulk, or by reason of evidence inserted and of other evidence omitted presents a distorted pier turc of the circumstances under which the exceptions were taken, it is not a true bill of exceptions and ought not to be allowed.</p> <p>It also was said, that it is perhaps conceivable that a bill of exceptions may be so bald in its statement of accompanying facts as to present only a skeleton and not a true representation of such facts and for this reason ought not to be allowed.</p>

<p>Exceptions, Petition to establish. Rules of Court.</p> <p>Proceedings to establish the truth of exceptions are strictissimi juris.</p> <p>The requirement of Buie 6 of this court, that a party seeking to establish the truth of exceptions shall, before filing his ¡petition, give notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record, must be complied with strictly in order that such a petition may be entertained; ' at any rate when the adverse party insists on his rights.</p>

<p>Complaint, received and sworn to in the Central District Court of Worcester on May 15, 1912, under St. 1903, c. 334, as amended by St. 1909, c. 181, by the clerk of the overseers of the poor of the city of Worcester, charging that the defendant, a boy under sixteen years of age, by reason of the neglect of his parents was dependent upon public charity, and praying that he might be dealt with according to law.</p> <p>The Central District Court of Worcester found that the defendant was a neglected child and ordered that he be committed to the State board of charity. That board, in behalf of the defendant, appealed from the order of the Superior Court under St. 1903, c. 334, § 6.</p> <p>In the Superior Court the case was heard by Aiken, C. J., who found the facts which are stated in the opinion. He found that the defendant was not a neglected child within the meaning of the statute and ordered that the complaint be dismissed. Thereupon the Chief Justice reported the case for determination by this court. If the finding was in accordance with St. 1903, c. 334, as amended by St. 1909, c. 181, the finding and the order dismissing the complaint were to be affirmed; otherwise, the order of the Central District Court of Worcester committing the defendant to the custody of the State board of charity was to be affirmed or such other order was to be made as should be made.</p>

<p> Devise and Legacy. </p> <p>A testatrix, who was an unmarried woman, whose only heirs at law were a brother and a half sister, and who was uninstructed as to the meaning of technical terms, drew her own will. She left $5,000 and certain silverware and furniture to her “dear brother” and to her half sister a certain silver spoon and “ten dollars as a token of remembrance.” She left legacies in money to her nine • cousins and made bequests to sixteen of her friends. She then made bequests to charitable and religious organizations amounting to $10,200. Then came the following residuary clause: “I give the remainder of my estate, both real and personal, (save what is mentioned in a memoranda for my executors) in trust to my executors, to be disposed of for the benefit of the estate. If this should amount to four thousand five hundred dollars ($4500.00) I give and bequeath one-half of this sum to the 'Idaho Industrial Institute’ Weiser, Idaho. The remaining half shall be divided between the ‘Young Women’s Christian Association’ of Worcester, Mass., The ‘City Missionary Society’ of Worcester, Mass., and the Woman’s Seaman’s Friend Society of Boston, Mass., share and share alike.” The residue of the estate of the testatrix exceeded $4,500 by a substantial amount, and the heirs at law claimed the excess. Reid, that the will taken as a whole showed an intention of the testatrix to dispose of her entire property, that, in spite of inaccuracies of language, she did not mean to limit the distribution under the clause quoted to the sum of $4,500, and that the excess over that amount should be included in the sum distributed.</p>

<p> Real or Personal Property. Figures. </p> <p>In an action by the trustee in bankruptcy of one of two former partners, who as a firm had owned and operated certain worsted mills, against a mortgagee who had foreclosed a real estate mortgage made by the partners of the mill buildings and all the machinery therein, for the alleged conversion of the machinery on the ground that it was personal property and therefore that the title to it did not pass by the mortgage, where it appeared that the machines claimed by the plaintiff were not designed especially for use upon the premises, were not peculiar in their pattern, were easily removable without injury to themselves or to the structure in which they were placed, were adapted equally for use in any other worsted mill, were purchased and sold from stock, were in large part held by the mortgagors upon a title by conditional sale, and were put into the mill before the execution of the mortgage, and where it did not appear that the defendant as mortgagee had knowledge of the quality of the mortgagors’ title, and as between the bankrupt and his partner the machinery had been treated as personal property when upon the dissolution of the firm such partner sold to the bankrupt by a bill of sale “all the machinery” and at the same time gave a deed of all his interest in the real estate, it was held, that whether the machinery was personal property or real estate was a question of fact which it was proper to submit to the jury under adequate instructions.</p>

<p>Attem/pt to commit Larceny. Evidence, Possession and concealment of implement of crime, Irresponsive answer, Act of one joint criminal in furtherance of common purpose. Practice, Criminal, Exceptions, Trial together of joint criminals indicted separately.</p> <p>At the trial of an indictment for an attempt to steal from the person, evidence is admissible to show that the defendant when arrested had in his possession and tried to conceal a small knife of a kind carried by professional pickpockets and used by them for the purpose of slitting women’s bags and men’s pockets.</p> <p>Where at the trial together of three persons, each indicted separately for an attempt to steal from the person, there is evidence that all three of the defendants participated in a common purpose to commit the crime, evidence is admissible against all of them that one of them, when arrested, had in his possession and attempted to conceal a: small knife of a kind used by pickpockets, although there is no direct evidence that the knife was used in the particular attempt to commit, larceny for which each of the defendants was indicted.</p> <p>At such trial a police inspector, properly qualified as an expert, may be permitted to explain the purpose of such a knife and the manner of using it.</p> <p>In a criminal trial, as in a civil one, if a witness for the prosecution makes a material answer, which is in part irresponsive to the question asked him, this does not give the defendant a right to except to the answer, his remedy being to ask to have the irresponsive part of the answer stricken out.</p> <p>At the trial together of three persons, each indicted separately for an attempt to steal from the person, where there was evidence that all three of the defendants participated in a common purpose to commit the crime, a charge of the presiding judge was approved in which he instructed the jury that, unless each defendant was shown to be guilty independently of any evidence that was admitted only against one of the other defendants, he must be acquitted, and, after explaining what was meant by a common purpose, also instructed the jury that, if the defendants were associated in this way, the act of one in furtherance of such common purpose would be the act of all, but that, if they were not co-operating, each defendant could be convicted only by evidence that showed his own guilt independently of evidence tending to convict one or both of the other defendants.</p>

<p> Husband and Wife. Parent and Child. Alienation of Affection. </p> <p>In an action by a widow against'the father of her late husband for alienating her husband’s affection and persuading and enticing him to leave her, there was evidence that the defendant from the time of his son’s marriage to the plaintiff exhibited a positive dislike of her which as time went on deepened into a feeling akin to hatred, that at the time of the marriage the plaintiff’s husband was about thirty-three years of age, that for nearly six years after their marriage the plaintiff and her husband dwelt happily together, that her husband then began to treat her with coldness, which he attributed to a desire to please his father, and that she was asked to consent to a divorce or to some form of separation “in order to please his father,” that thereafter the plaintiff and her husband occupied separate rooms and he began to absent himself for long periods, that, when the plaintiff asked the defendant where her husband was, he replied that “that was his business and not mine," that for two years preceding his death her husband did not return to his home but lived at his father’s house until he died there, and that, when the plaintiff said to the defendant that her husband should be sent back to her because “when he is sick, his place is at home,” the defendant replied, “He is mine, and I will keep him.” IBM, that the plaintiff was entitled to go to the jury, who would have been warranted in finding that the affection of the plaintiff’s husband had been alienated and that he had been induced to abandon his home through efforts of the defendant that were inspired by ill will toward the plaintiff.</p>

<p>Contract, In writing. Evidence, Extrinsic affecting writings. Landlord and Tenant.</p> <p>In an action to recover the amount of rent paid in advance under a lease in writing for one year of certain fixtures and furniture, where by the terms of the lease the rent was to be paid in advance unconditionally, the plaintiff cannot be permitted to show that by an oral agreement between the parties the sum paid in advance was to be refunded if the plaintiff failed to obtain a license to sell intoxicating liquors on the premises and that he had failed to obtain such a license; because this oral agreement contradicts or modifies the terms of the lease in writing. Disapproving a dictum to the contrary of Wilde, J., in Browning v. Haskell, 22 Pick. 310, 311.</p> <p>And, where in such an action the oral agreement is admitted in evidence and becomes a part of the case, it cannot control the contract in writing, and the defendant is entitled to judgment.</p>

<p> Workmen’s Compensation Act. </p> <p>Where a workman employed in a foundry, who was engaged in unloading pig iron from a car on a spur track back of the foundry, for some unexplained reason left the car and went upon one of the main tracks of a railroad eight feet distant from the spur track and one foot above it and there was struck by an engine and killed, it was held, that a finding of the Industrial Accident Board, that such employee did not receive a personal injury arising out of and in the course of his employment, was warranted.</p>

<p>Statute, Construction. Constitutional Law. Labor.</p> <p>An interpretation of an attempted statute, which if the statute were valid would make it practically inoperative, will not be adopted unless unequivocal words require that construction, even if the effect of giving expression to the intention, of the Legislature is to make the attempted statute unconstitutional.</p> <p>St. 1914, c. 746, which provides that “Employees in and about steam railroad stations in this Commonwealth designated as baggagemeri, laborers, crossing-tenders and the like, shall not be employed for more than nine working hours in ten hours’ time; the additional hour to be allowed as a lay-off,” is construed by this court to mean that the designated employees shall not be employed more than nine hours in any day, and, so construed, is in violation of the Fourteenth Amendment of the Constitution of the United States as an unwarranted interference with freedom of contract in regard to the hours of labor in an ordinarily healthy occupation. Following Lochner v. New York, 198 U. S. 45.</p> <p>Whether the statute quoted above also is unconstitutional, so far as it affects interstate commerce, as an attempt to regulate the hours of labor of those employed in connection with interstate commerce on railroads, it was not found necessary to determine.</p>

<p>Agency, Commission.</p> <p>In an action by a woman, against copartners carrying on business as an amusement company, upon a promise in writing to the plaintiff that, if she would procure a satisfactory purchaser for a certain moving picture show belonging to the defendants at the price of $1,500, they would pay her a commission of ten per cent on such purchase price, where there is evidence warranting findings that the plaintiff procured a purchaser who agreed in writing to accept the defendants’ offer and was able and willing to pay the defendants $1,500 for the picture show, and that about one month later one of the defendants wrote to the plaintiff that the offer to sell was withdrawn and gave as the reason, that his copartner was opposed to selling the property and would not "under any consideration agree to transfer” it, the plaintiff is entitled to go to the jury.</p>

<p>Evidence, Communications between attorney and client, Unauthorized statement by limited agent. Attorney at Law. Agency, Scope of authority.</p> <p>When an attorney at law is a witness, the privilege protecting communications made by a client to him professionally is a privilege personal to the client and may be waived by the client, as was done in the present case in open court when the client was called as a witness on the day following that on which the testimony was admitted.</p> <p>Such a subsequent waiver cures any error on the ground of privilege in the admission of the testimony.</p> <p>In an action by a real estate broker for a commission for procuring a customer able and willing to purchase certain real estate from the defendant on the terms named by him, where the defendant has called as a witness an attorney at law, who was employed by the alleged customer “for the purpose of executing and delivering written agreements for the sale and purchase of said real estate,” the defendant cannot be allowed to ask this witness, against the plaintiff’s objection, whether he did not say to another attorney at law that his client, the alleged customer, would not make any agreement with the plaintiff or with the owner of the property represented by him unless certain mortgages on the property ran for a certain length of time; because the agency of the witness for the alleged customer was of a special and limited character, and there is nothing to indicate that he was authorized to speak for his client in the matter of the terms of the sale.</p> <p>In the same case the other attorney at law, to whom the statement was alleged to have been made, when called as a witness by the defendant, cannot be allowed to be asked by the defendant, whether the attorney at law who was acting in the limited capacity for the alleged customer did not say to him that no agreement for the sale of the real estate was to be drawn for the reason that there was a difficulty as to the mortgages; because neither the witness nor the attorney alleged to have made the statement had any authority to bind the plaintiff or the alleged customer procured by him.</p>

<p>Equity Pleading and Practice, Appeal. Words, “Forthwith,” “As soon as may be.”</p> <p>Under St. 1911, c. 284, which provides that “an appeal from a final decree of the Superior Court shall forthwith be entered in the Supreme Judicial Court,” it was held, that a finding of a judge of the Superior Court, in a case where the evidence was not reported, that^'a failure by the plaintiff in a suit in equity for twenty-three days to enter in this court his appeal from a final decree of the Superior Court dismissing the bill was not acting with reasonable promptness, could not be said to be wrong, and the order dismissing the till was affirmed.</p>

<p>Negligence, Street Railway, Causing death. Evidence, Presumptions and burden-of proof.</p> <p>In an action against a street railway corporation for negligently causing the death of the plaintiff’s intestate, a boy twelve years of age, who, when riding a bicycle that was much too large for him and was out of order, came into collision with a car of the defendant at a crossing of an intersecting street, it appeared at the trial that an order passed by the mayor and aldermen of the city where the accident occurred provided that no street railway car should be run at a rate of speed exceeding twelve miles an hour when crossing another street and in no instance should be run at a rate of speed exceeding twenty miles an hour, that when the defendant’s car was approaching the intersecting street it was running at the rate of about fifteen miles an hour, that just before the car came to the line of the cross street a passenger on the car called the attention of the motorman to the boy approaching on a bicycle, that the motorman instantly “started to stop his car,” that “he reversed the power, shut off his power, and put on his brakes,” before the car reached the intersecting street, and that the next thing that happened was the collision. There was no direct evidence as to the rate of speed when the car was crossing the intersecting street. Held, that, the burden being on the plaintiff to prove that the rate of speed of the car while crossing the intersecting street was in excess of twelve miles an hour, there was no evidence warranting a finding of unlawful speed and no evidence for the jury of negligence on the part of the defendant.</p>

<p>Practice, Civil, Exceptions, Rules of court. Rules of Court. Waiver.</p> <p>The mere delivering in hand by the attorney for the excepting party in an action at law to the attorney for the adverse party of a copy of a bill of exceptions correct in every particular and marked “Copy,” “Defendant’s Bill of Exceptions,” after the original has been filed in the office of the clerk of the court on the same day, together with an oral statement to such attorney to the effect that the bill has been so filed, is not a compliance with R. L. c. 173, § 106, and Rules 27 and 44 of the Superior Court, which require that the notice given of the filing of a bill of exceptions shall be in writing.</p> <p>And neither a request by the plaintiff for a copy of the evidence upon which the statements in the bill are based nor the receiving of such a copy, without more, indicates a waiver by the plaintiff of this further right to receive the notice in writing required by the rules.</p>

<p>Fraternal Beneficiary Corporation. Insurance. Letter. Corporation, By-laws, Officers and agents.</p> <p>Where, at the trial of an action against a fraternal beneficiary corporation upon a certificate providing for a death benefit, it appeared that a registered letter, containing the amount of two overdue assessments and addressed to the corporation at Marlborough, was mailed at a postal substation at the corner of Green Street and Stamford Street in Boston at ten minutes before nine o’clock on a certain morning, that the post office receipt for the letter was returned to the sender by the messenger by whom the letter was sent at noon on that same day, and that the insured died the next day at fifteen minutes after eleven o’clock in the forenoon, it was held, that the question, whether the letter was received by the corporation before the death of the insured, was for the jury.</p> <p>In the same action, it appeared that the by-laws of the corporation, which were expressly made a part of the contract of insurance, provided in substance that every member should pay each assessment within thirty days after notification of it, and that, upon failure so to pay, he should forfeit his membership and all interests in the corporation or to any benefit to be derived therefrom, but that, if within thirty days he paid all arrearages and fifty cents and gave a satisfactory certificate of good health, he might be reinstated by the corporation’s officers. All dues and assessments up to those which were attempted to be paid by the registered letter had been paid by the insured, but, in fifty-eight instances in eleven years, payments of dues and assessments had been made “ after the expiration of the time limit for making such payment” and each of such payments had been accepted by the defendant without remonstrance and a receipt therefor had been sent to the insured. No action was taken at any time to enforce against the insured a forfeiture of his rights under the certificate of insurance nor was any demand made upon him for the additional sum of fifty cents or for the certificate of health. Held, that it was a question for the jury whether the defendant had waived the requirement of the by-laws that the December payment should be made within thirty days after it became due; and that the burden of proving that the rights of the beneficiary under the certificate had been forfeited was upon the corporation.</p> <p>It also was stated that no question was raised in this case as to a waiver of a by-law of the corporation by any agent or officer of the corporation, because it appeared by the record that notices of assessments were sent by the defendant corporation, and that all payments of assessments were made to and received by the corporation.</p>

<p>Tort for personal injuries received by the plaintiff, a boy ten years of age, when he was run into by an electric street car of the defendant. Writ dated July 9, 1913.</p> <p>In the Superior Court the case was tried before Raymond, J. At the close of the plaintiff’s evidence, the material portions of which are described in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action of tort, for personal injuries received after the enactment of the workmen’s compensation act, against the plaintiff’s employer, who was not a subscriber within the provisions of that act, there was evidence that the plaintiff was employed to assist in the building of a dory; that before setting up a frame upon which it was to be built he had swept thé floor with a broom; that “it was generally hard to find a broom,” and that there was a floor scraper provided for use; that it took a day to set up the frame and screw it to the floor; that the screws were taken by the plaintiff and a fellow workman from a box as needed; that after working two more days in the building of the dory “a bushel of shavings” had accumulated on the floor, and that the plaintiff, in kneeling in his work, knelt on a screw head loose upon the floor and was injured. There was no evidence tending to show how the screw came to be upon the floor or in regard to the length of time it had been there. Held, that there was no evidence to justify a finding that the defendant should have foreseen that harm of some kind was likely to come to one of his workmen from the remaining of the rubbish on the floor, or to warrant a finding for the plaintiff.</p>

Bill in equity, filed in the Superior Court on March 25,1915, by the widow of John W. Ryan, to whom a death benefit certificate had been issued by the defendant fraternal beneficiary corporation, the Boston Letter Carriers’ Mutual Benefit Association, in favor of the plaintiff in accordance with the alleged contract described in the opinion, the defendant Loretta M. Ryan after-wards having been substituted for the plaintiff as the beneficiary in the certificate.

<p>Contract, Construction. Mortgage, Of real estate: assumption of and agreement to pay mortgage debt. Payment. Words, “Balance.”</p> <p>The condition in a mortgage of twelve acres of land was the payment of “the sum of four thousand dollars in five years from this date, of which one thousand dollars may be paid on any interest paying date during said five years, in one payment or in two equal payments of five hundred dollars each, and this mortgage may be extended for the further term of three years from the date of the expiration hereof for the balance then due at the same rate of interest.” The mortgagor conveyed eight of the twelve acres by a deed which contained a provision that the grantee, “by acceptance of this deed, assumes and agrees to pay said mortgage.” Thereafter and before the maturity of the mortgage debt the mortgagee, by an instrument in writing which he delivered to such grantee, extended the mortgage "in accordance with the provisions therein contained, for the further period of three years from the termination of said mortgage.” Later, after the expiration of the original time of payment, the mortgagor brought an action of contract against the grantee of the eight acres for alleged breach of his agreement to assume and pay the mortgage debt. Held, that the provision in the condition of the mortgage that the mortgage might be extended “for the balance then due” did not mean that the right to an extension should be conditional on a payment by way of anticipation having been made, the word “balance” being used merely as the equivalent of the word “amount.”</p> <p>Held, also, that the right to an extension under the terms of the condition of the mortgage was not merely a personal right of the mortgagor but was assigned by him by his deed of the eight acres, and that the debt which the grantee assumed and agreed to pay was a debt with the privilege of postponing payment for three years, and that the defendant had not agreed to pay the debt as soon as it could be paid in accordance with its terms or at its maturity and consequently had committed no breach of his agreement.</p> <p>Where a debtor for a valid consideration procures an agreement of a third person to assume and pay a debt, the payment of which by its terms may be anticipated or postponed at the election of the debtor, in the absence of any stipulation to the contrary the rights of anticipation and postponement pass to the person who has agreed to assume the duties of the debtor as to the payment of the ' debt.</p> <p>It was said, that, if in the present case the right of postponing payment had been derived from an independent collateral agreement instead of being a part of the terms of the debt itself, a different question would have been presented.</p>

<p>Evidence, Photographs, Of intent, Corroboration of impeached witness, To explain purpose. Practice, Criminal, Corroboration of impeached witness, Defendant’s right to change his ground during the trial, Exceptions: waiver, Bight to take advantage of erroneous ruling after excepting to it.</p> <p>At the trial of an indictment for the murder of a woman by cutting her throat with a razor, photographs of the neck and face of the woman, taken after her death, properly may be admitted in evidence to aid the jury in understanding the nature of the mortal wound, and are not to be excluded merely on account of the natural abhorrence aroused by the brutal character of the crime indicated, which is an inevitable incident of the trial.</p> <p>At the trial of an indictment for the murder of a woman by a man with whom she previously had lived as his wife, conversations between the woman and police officers in the presence of the defendant tending to show his hostility toward her and his threats of violence to her about forty-four days before she was killed are competent to show the relations between the alleged murderer and his victim within a reasonable time before the homicide.</p> <p>At the same trial, after it had been shown that the defendant had threatened to shoot the woman, and that when he was arrested a revolver was found under the stairs of the first floor of the house in which he had a room on an upper floor, the revolver was admitted in evidence, and it was held to have been admissible, it being a question for the jury whether the revolver was under the defendant’s control and, if so, whether this indicated ill will toward the dead woman and preparation to do her injury.</p> <p>At the trial of an indictment for the murder of a woman, where there is no direct evidence of the killing and two witnesses called by the Commonwealth have testified that they saw the defendant near the woman’s dwelling place a short time before her death, and where, after cross-examining these two witnesses, the counsel for the defendant has stated in substance that he intends to show, if he can, that these witnesses have concealed the facts or that they were unduly influenced to testify as they did or that their testimony is of recent contrivance, it is proper to permit the Commonwealth to show that the two witnesses made statements soon after the killing similar to those made in their testimony at the trial.</p> <p>But, if at such trial, after one corroborating witness has begun to testify under the circumstances stated above, the defendant’s counsel announces that he withdraws his offer of proof and will not attempt to show that the two witnesses concealed facts or were unduly influenced or that their testimony is of recent contrivance, and that instead of this his intention is merely to contradict the testimony of one of the two witnesses, and moves to have the testimony of the corroborating witness stricken out, where there is nothing to indicate that the Commonwealth is likely to be harmed by the defendant’s change of attitude, the motion should be granted and the corroborating evidence should be stricken out; and a refusal to permit such a change of attitude and a denial of such a motion here were held to be sufficient ground for sustaining an exception and ordering a new trial.</p> <p>The fact that the defendant’s counsel at the trial above described, after the denial of his motion, contended in his closing argument to the jury that the testimony of the two witnesses was of recent invention and hence was not worthy of belief, is not in any way a waiver of his exception or a reason for refusing to sustain it; because such argument was merely using the ruling against him, which had become the law of that trial, for his own advantage in a legitimate way.</p> <p>At the trial of an indictment for murder, where the cross-examination by the defendant of police officers who have testified for the Commonwealth has shown that the defendant is trying to establish the fact that the instructions which were given by these police officers to two important witnesses for the Commonwealth were given with the purpose of hiding the truth and keeping the facts from the defendant, another police officer, who was associated with those that have testified, may be permitted to testify in regard to his reasons for giving certain instructions to the two witnesses.</p>

<p>. Negligence, Employer’s liability.</p> <p>In an action by a carpenter for injuries sustained, before St. 1911, c. 751, Part I, § 1, took effect, when he was in the employ of the defendants, who were contractors and builders, it appeared that the plaintiff had been set at work on the second floor of a small unfinished house to receive window frames as they were passed from the first to the second floor through a hole eight feet long and four feet wide that had been left for a stairway, that, while he was bending forward to take a frame that was being passed up through the stair hole to him, he touched with his knee a timber brace that ought to have been nailed in place and was not, whereupon it fell and caused him to fall through the stair hole, that the brace had been placed in its position by order of the foreman, who was a fellow workman of the plaintiff, and that a cleat which held the brace insecurely in place had been nailed by another fellow servant of the plaintiff, who testified that he nailed it in the way he did “because he didn’t know any better;” and it did not appear that the defendants had any actual knowledge of the condition of the brace. Held, that a verdict properly was ordered for the defendants.</p>

<p>Tort by a minor, by her next friend, for personal injuries sustained on the morning of Sunday August 3,1913, when the plaintiff was a passenger on an open electric street railway car of the defendant and was attempting to alight at the corner of North Main Street and Lincoln Avenue in Fall River, which is known as “the depot stopping place for cars which do not enter the grounds of the New York, New Haven, and Hartford Railroad Company.” Writ dated August 14, 1913.</p> <p>In the Superior Court the case was tried before McLaughlin, J. The facts which could have been found in favor of the plaintiff upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for it. This the judge refused to do, and submitted the case to the jury with instructions to which no exceptions were taken. The jury returned a verdict for the plaintiff in the sum of $657; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice, Bill.</p> <p>In a proceeding, called by the plaintiff a suit in equity, against five persons called “councilmen,” another called “treasurer,” “all legal agents of the citizens,” and the city of Haverhill, in which the bill contained allegations of an alleged forcible appropriation by that city of a part of the plaintiff’s land for a sidewalk twenty-nine years before the filing of the bill and of a similar act ten years before such filing, describing eight different actions or suits brought by the plaintiff at different times during eleven years to obtain redress for his alleged grievances arising from the appropriation of his land, all of which had been decided adversely to the plaintiff and were alleged by him to have been decided wrongly, a decree sustaining a demurrer of the various defendants was affirmed by this court.</p>

<p>Equity Jurisdiction, Specific performance. Contract, Performance and breach.</p> <p>In a suit to enforce the specific performance of a contract in writing to purchase real estate upon the delivery of a good and sufficient warranty deed “on or before” a day named, including with the real estate the personal property contained in a hotel, where it appeared that the contract contained no stipulation making time the essence of the contract and the circumstances required no inference that the parties intended the day named to be necessarily the actual day of the conveyance, it was held, that the offer of a good and sufficient deed by the plaintiff on the day after the day named, which was refused by the defendant on the ground that it was too late, entitled the plaintiff to a decree for specific performance.</p> <p>In a suit to enforce the specific performance of a contract to purchase certain real estate from the plaintiff, where the plaintiff has agreed to deliver a good and sufficient warranty deed of the premises “clear of all incumbrances,” the offer of such a deed entitles the plaintiff to a decree for specific performance, although a tenant of the plaintiff on the day of the offer has not surrendered his lease of a portion of the premises, if such tenant has promised in writing to execute a release and surrender of the leased portion of the premises whenever required to do so within thirty days, this being a sufficient compliance with the contract.</p>

<p>Tax, On legacies and successions. Tenants by Entirety. Husband and Wife.</p> <p>Upon the death of a husband, who with his wife had received a conveyance of real estate as tenants by the entirety, no new estate by survivorship passes to the widow, but she still holds under the deed by which she and her husband received the property by the entirety; and therefore she is not subject to a succession tax under Sts. 1909, c. 490, Part IV, § 1; 1912, c. 678, § 1.</p>

<p>Tort for personal injuries received when the plaintiff was pushed against a moving street car in the Harvard Square station of the Cambridge subway as described in the opinion. Writ dated July 26, 1912.</p> <p>In the Superior Court the case was tried before Quinn, J. The material evidence is described in the opinion. At the close of the evidence the judge refused to rule, as requested by the defendant, that upon all the evidence the plaintiff was not entitled to recover. There was a verdict for the plaintiff in the sum of $500; and the defendant alleged exceptions, which, by reason of the physical disability of Quinn, J., were allowed by Jenney, J.</p>

<p>Tort for deceit in the sale to the plaintiffs by the defendant of a fruit and confectionery business. Writ dated June 6, 1913.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The material evidence is described in the opinion.</p> <p>At the close of the evidence, the defendant asked for the following rulings:</p> <p>“3. The fact that the plaintiffs ran the store for two or three days before completing the purchase and signing the mortgage precludes them from recovering.</p> <p>“4. If any of the plaintiffs were not parties to the original agreement with the defendant, such plaintiffs cannot recover.”</p> <p>“9. The fact that .the plaintiffs did not do as much business in the store as the defendant claimed to have done is not evidence of fraud on the part of the defendant.”</p> <p>The rulings were refused by the judge. The jury answered the special question submitted to them and described in the opinion and found for the plaintiffs in the sum of $1,000. The defendant alleged exceptions.</p>

<p>Tort for personal injuries received by the plaintiff when she was run into by a street car of the defendant as she was crossing Huntington Avenue at its intersection with Buggies Street in Boston on February 22, 1909. Writ dated May 14, 1909.</p> <p>In the Superior Court the case was tried before Dana, J. The material evidence is described in the opinion. Begarding the ordinance described in the paragraph of the opinion numbered two, the report stated the following as occurring at the close of the defendant’s evidence:</p> <p>“After conference, the following was admitted, subject to the defendant’s exception, as to its competency:</p> <p>“'In approaching any public or private way intersecting that in which the railway is located, the speed of the car must be reduced to such a rate as will make it possible to stop it immediately.’ (Bevised Ordinances and Begulations of 1903 of the City of Boston, as amended by the Board of Bailroad Commissioners.)</p> <p>“The Bevised Ordinances and Begulations of 1903 of the City of Boston, as amended, Edition of 1908, may be referred to, and are to be produced at the argument.”</p> <p>By reference to the volume above referred to, it appears that the regulation as originally enacted was an amendment of the Revised Regulation of 1898, and, so far as material, read as follows:</p> <p>“No person having the control of the speed of a street railway car on the surface of any street, except in spaces especially reserved for street railway cars, shall allow such car to go at a rate of speed faster than ten miles an hour in any part of the city included within the following bounds: [describing a district including the place of the accident in question in the action] at a rate of speed faster than twelve miles an hour; nor in any other part of the city at a rate of speed faster than fifteen miles an hour; nor in turning a corner in any part of the city at a rate of speed faster than four miles an hour.”</p> <p>The board of railroad commissioners, when, under St. 1903, c. 143, the above regulation was referred to them, revised it by adding five provisions, among them the provision which was admitted in evidence.</p> <p>The jury found for the plaintiff in the sum of $4,700.</p> <p>The defendant moved to set the verdict aside and for a new trial on the grounds that the verdict was against the evidence and the weight of evidence and the law.</p> <p>After a hearing, and for reasons described in the opinion, the judge denied the motion and, by agreement of counsel, all exceptions being waived, reported the case for determination by this court of the question, whether he “was in error in respect of either of the above rulings, relative (1) to the competency of the jury, as a matter of law, to find as above the plaintiff in the exercise of due care, or (2) to the said admissibility of said portion of said Revised Ordinances and Regulations of 1903, as amended by the Board of Railroad Commissioners,” it being stipulated -that, if he was in error in either respect, and the defendant was injured thereby, the motion for a new trial was to be granted; and that otherwise it was to be denied.</p>

<p>Negligence', Assumption of risk, Street railway.</p> <p>While the left hand running board of an open electric street car in motion is a place of such obvious danger that under ordinary circumstances a passenger, who voluntarily selects such a position instead of a safer one provided by the street car company, assumes all the risks connected with such a perilous position and, if he is injured by a passing car, is guilty of contributory negligence and cannot • maintain an action to recover compensation for his injuries, nevertheless such is not the rule of law if the carrier expressly or impliedly agrees to carry the passenger in such a position although it is not in common use for such a purpose.</p> <p>At the trial of an action by such a passenger, where it appeared that, as the car upon which the plaintiff was rounded a curve, the plaintiff was struck by the side of an unusually wide box car which met it on the adjoining track, there was evidence tending to show that, for four or five years previous to the plaintiff’s injury, at the same time of day as that at which the plaintiff boarded the street car in question, and at the same place, passengers were in the habit of boarding the cars and of riding on both running boards; that, when the plaintiff boarded the left hand running board, the seats of the car were all filled and there were passengers on both running boards; that, although on each end of a bar at the end of the seats next the running board were printed the words “Dangerous. Do not ride on the running board,” there was evidence that the crowd so obscured the words that the plaintiff did not see them and that he did not know until after his injury of a rule of the defendant prohibiting riding on the left hand running board; that he had no knowledge of the width of the car approaching or that it would strike him and did not notice it until it was within a few feet of him; that at that time he was standing with his back outward from the car, and that just before that time his attention had been diverted for a moment. Held, that findings were warranted that the defendant impliedly permitted the plaintiff to ride upon the left hand running board, that the plaintiff did not assume the risk of so riding, and that he was in the exercise of due care.</p> <p>Where a motorman operating an open electric street car met upon a curve a box car of unusual width, operated on a parallel track by a different corporation, and a passenger who he knew was riding upon the left hand running board of his car by permission of the street railway company was struck by the box car and injured, in an action by the injured passenger against the street railway company, such motorman may be found to have been negligent.</p> <p>And, in an action by the same passenger against the corporation operating the box car, the motorman of that car also may be found to have been negligent, because he must have seen the plaintiff on the left hand running board of the car he was meeting and must have known of the danger of meeting the car on a curve with a car of the width that he was operating.</p> <p>Where at the trial of an action against a street railway company for injuries caused by being struck by a street railway car, there is evidence that only two corporations, the defendant and another corporation, operated cars on the track where the car in question was being operated, that none of the other corporation’s cars were box cars, and that the car which struck the plaintiff was a yellow box car, which was the kind of car used by the defendant, there is evidence warranting a finding that the plaintiff was struck by a car operated by the defendant.</p>

<p>Partnership, Accounting. Equity Jurisdiction, For an accounting.</p> <p>In a suit in equity by one partner against another for an accounting, it appeared that the plaintiff was the widow of a former member of the partnership, that under her husband’s will she had acquired all his interest in the partnership and business, which was a profitable one, and that, after the plaintiff and the defendant had continued together in business for two years, the defendant without any express agreement between the parties and with the knowledge and acquiescence of the plaintiff continued to carry on the business at the same place, appropriating all the assets, collecting the accounts and paying all the liabilities, using his own name, which was very similar to the name of the former firm. A master found, on evidence warranting such a finding, that the value of the good will of the firm was S2,000. Held, that the plaintiff was entitled to an accounting for the profits and the partnership property, including the good will.</p> <p>In the case described above, the accounts receivable extended over a number of years, some of them were worthless, some were doubtful and others were collectible. A master, after carefully investigating and reviewing the report of the plaintiff’s accountant, made a reduction of twenty-five per cent from the accounts receivable as an allowance for such as were uncollectible or doubtful. Held, that this finding was sufficiently favorable to the defendant and that this court could not say that it was wrong.</p>

<p>Will, Revocation. Husband and Wife.</p> <p>The death of a wife during the lifetime of her husband is not a subsequent change "in the condition or circumstances of the testator” within the meaning of R. L. c. 135, § 8, “from which a revocation is implied by law” of a will in which the testator left the sum of $5 to each of his three children and the residue of his estate to his wife.</p>

<p>Insurance, Life. Contract, Construction. Corporation, Vote of ratification by stockholders. Payment. Estoppel. Equity Pleading and Practice, Motion to recommit master’s report.</p> <p>It here was said that, where the terms of the contract contained in a policy of life insurance are ambiguous, all doubtful expressions are to be construed against the insurer which prepared the contract.</p> <p>The holder of a policy in a mutual insurance corporation, who contends that an increase in the rate of premiums on outstanding policies is invalid as to the policy held by him, is not estopped from contesting the validity of the increase in rate by the fact that at a meeting of the policyholders of the corporation, held after the vote of the directors by which the increase in rate was adopted, a vote was passed “adopting, ratifying and confirming” all acts of the directors at the meeting at which the vote was passed, if it does not appear that this vote of the directors was called to the attention of the policyholders.</p> <p>A policy of re-insurance upon the life of the insured, which was given in exchange for the surrender of a contract of life insurance upon the assessment plan, on the back of which was printed a Table of Rates, contained a provision that “ in no event shall the assured ... be required to pay the [re-insurer] under this contract of re-insurance any amount exceeding the rates contained in the table upon the back of said policy.” The table on the back of the original policy, thus referred to, established the premium rates to be paid by policyholders between the ages of twenty-five and fifty-five years, both inclusive. The insured when he took out his original policy was forty-seven years of age. The re-insurer increased its premium rates and established a new table of rates. After the insured had passed the age of fifty-five years, the re-insurer demanded of him the premium at the increased rate. He paid it “under protest,” and later brought a suit in equity against the re-insurer to enjoin it from collecting any premium in excess of the premium fixed by the table on the back of the original policy for the age of fifty-five years, and to recover back the excess of premiums over the amount so fixed paid by him under protest after he had passed that age. Held, that, the contract of re-insurance being one rather of ordinary life insurance than one made by a fraternal beneficiary corporation with one of its members, the defendant was bound by its promise not to demand any premium in excess of that fixed by the maximum rate named in the table on the back of the original policy, and that the plaintiff was entitled to an injunction as to future premiums; but that, as to the payments already made, the plaintiff could not recover back the amount of the excess, because the payments were made voluntarily.</p> <p>Apart from the effect of statutory provisions, a payment made voluntarily is none the less voluntary because the person making it declares orally or in writing that he makes it “under protest.”</p> <p>A payment of an insurance premium in excess of the amount rightfully due is none the less a voluntary payment as to such excess because the insured paid such excess, as he declared, under protest “in order to keep alive his policy which had no surrender value if allowed to lapse.” In such a case the insured can protect his rights fully by paying or tendering the amount of the premium which is due lawfully.</p> <p>In a suit in equity the denial by the trial judge of a motion to recommit a master’s report is ordinarily a matter of discretion.</p>

<p>Joint Tenants and Tenants in Common. Tax, On legacies and successions. Words, “Intestate succession,” "Succession,” “Laws.”</p> <p>A joint tenancy may exist in personal property as well as in real estate.</p> <p>Two sisters, named respectively E and M, who by their voluntary action held all their real estate and all their stocks and bonds in joint tenancy, made deposits in two accounts in a savings bank, each sister contributing half of the amounts deposited. One account was in the name, “E or M or the survivor of either.” The other account was in the name, “M or E or the survivor of either.” There were no withdrawals “ unless for their joint benefit.” Held, that the deposits were owned by the sisters in joint tenancy.</p> <p>A conveyance and transfer of real and personal property, made by two sisters who held the property as tenants in common through a third person to themselves as joint tenants, where each contributed an equal amount and there is nothing to show that the right of survivorship was not as valuable to one as to the other, even if they were intended as a conveyance and transfer of one half the property to the survivor of the joint tenants upon the death of the other, would not be a gift, having been made “for full consideration” within the meaning of the exception in St. 1912, c. 678, § 1.</p> <p>The interest which, upon the death of one of two joint tenants of real and personal property, passes to the other by right of survivorship does not pass “by the laws regulating intestate succession ” within the meaning of St. 1912, c. 678, § 1, and its transfer is not subject to the excise imposed by that statute.</p>

<p>. Petition, filed as amended on August 28, 1915, for a writ of mandamus addressed to the board of selectmen of the town of Westfield commanding them to restore the petitioner to the office of sealer of weights and measures in that town, and to Leroy C. Coburn commanding him to abstain from performing the duties of that office.</p> <p>The case came on to be heard upon an agreed statement of facts, the substance of which is stated in the opinion, before Be Courcy, J., who reserved it for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Labor. Constitutional Law. Words, “Labor,” “Laboring,” “Employed in laboring.”</p> <p>Statement By Rugg, C. J., of the grounds on which the constitutionality of statutes limiting the hours of labor of women has been upheld. The constitutionality of such statutes was not questioned in the present case.</p> <p>The provision of St. 1913, c. 758, that “No woman shall be employed in laboring in any factory or workshop, or in any manufacturing, mercantile, mechanical establishment, telegraph office or telephone exchange, or by any express or transportation company, more than ten hours in any one day; and in no case , shall the hours of labor exceed fifty-four in a week” (with exceptions not here material), applies to the employment of a woman as cashier in a grocery, admitted to be “a mercantile establishment,” where the woman so employed did no manual labor but sat in an enclosure called a “cage” and was kept busy all the time.</p> <p>Whether bookkeepers, stenographers and those engaged in kindred service are included by the words “employed in laboring” as used in the statute and whether the statute is to be interpreted in the same way that it would be if the words “in laboring” had been omitted, here were referred to as questions not determined.</p>

<p>Execution, Debtor’s right of redemption from sale. Equity Jurisdiction, To redeem land from a sale on execution. Interest. Equity Pleading and Practice, Costs.</p> <p>In a suit in equity by a judgment debtor under R. L. c. 178, § 33, to redeem land from a sale on execution, it is proper in making a decree for redemption to allow the defendant a reasonable compensation for the care of the property and the collection of the rents.</p> <p>In making such a decree the defendant is entitled by an express provision of the statute to interest on the amount paid by him for the property “from the time of the levy” and not merely from the date of the execution sale.</p> <p>By a provision of R. L. c. 178, § 41, the presiding judge in a suit to redeem land from a sale on execution, subject to certain exceptions there mentioned, “may in such suit award costs to either party” and in making a decree for redemption may allow in his discretion the costs of the suit to be taxed in favor of the defendant.</p>

<p>Tort for personal injuries sustained by the plaintiff on May 29, 1912,* when he was employed as a night fireman in the defendant’s cotton mill at Fall River. Writ dated November 18, 1912.</p> <p>The declaration is described in the opinion.</p> <p>In the Superior Court the case was tried before Hall, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to make the following rulings:</p> <p>“1. Upon the whole evidence the plaintiff is not entitled to recover upon” [each of the counts of the declaration named successively].</p> <p>“ 3. If the plaintiff knew, or in the exercise of due care ought to have known, what the condition of the ladder was and used it without objection, he assumed the risk and cannot recover.”</p> <p>“5. A ladder is an implement of simple structure presenting no complication of power, motion or construction, and if the plaintiff daily or frequently used the same he was equally chargeable with the defendant with knowledge of the ladder’s imperfection.”</p> <p>“7. If the ladder was made by a fellow fireman for the convenience of himself and others in the fire room and it was daily or frequently for weeks used by the plaintiff, the defendant was under no duty to the plaintiff in the absence of complaint to inspect the ladder to ascertain if it had become out of repair.</p> <p>“8. It was equally the duty of the plaintiff as of the defendant to inspect the ladder.”</p> <p>The judge refused to make any of these rulings except so far as the third ruling requested was embodied in his charge, and this ruling is held to have been given in substance. He made the following rulings requested by the defendant:</p> <p>“If the defendant at the time of the accident furnished a suitable ladder which the plaintiff could use, and the plaintiff voluntarily used a ladder which he knew, or in the exercise of due care ought to have known, was unsuitable, the defendant is not liable.</p> <p>“If the jury find that the injury was caused by the breaking of a round or cross-piece of the ladder and that there was nothing up to that time to indicate that the round or cross-piece was defective, the defendant was not negligent and the plaintiff cannot recover.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $3,500; and the defendant alleged exceptions.</p>

<p>Contract for breach of an alleged contract to sell and deliver to the plaintiff at a stipulated price all the fall and winter apples in the orchard on a certain farm of the defendants at Hampden in the year 1911, the amended second count of the declaration alleging that the plaintiff was the assignee of a contract in writing for the sale and delivery of such apples, and the amended third count of the declaration alleging a similar assignment and contract. Writ dated December 20, 1913.</p> <p>The proceedings are described in the opinion. The plea in bar there described was overruled by Wait, J. The demurrer to the amended declaration, referred to in the opinion, also was overruled by Wait, J. Thereafter the case was tried on its merits before Hamilton, J. At the close of the evidence the judge directed the plaintiff’s attorney to elect on which count of the declaration he would go to the jury. The plaintiff selected the first count as the one on which she would base her cause of action, and the judge so instructed the jury in his charge. Before the charge the defendant Burleigh asked the judge to make the following ruling:</p> <p>“That as judgment has been entered for the defendant Burleigh, in a suit pending in this court upon the same subject matter as is the basis of this cause of action, it is res adjudicata, and is a bar to this action as against the defendant Burleigh.”</p> <p>The judge refused to make this ruling. The jury returned a verdict for the plaintiff against the defendant Burleigh in the sum of $197. They returned a verdict for the defendant Merrill. The defendant Burleigh alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Carrier, Of goods. Bill of Lading.</p> <p>Where by the terms of a bill of lading for goods transported by rail it is provided that the “Owner or consignee shall pay freight at the rate herein stated, and all other charges accruing on said property, before delivery,” if the owner of the goods receives them upon the presentation by him of the bill of lading indorsed by the consignee, this warrants, if it does not require, a finding that he has accepted the stipulation contained in the bill of lading and impliedly has agreed to pay the freight; and, in an action against him by the carrier for the freight charges, it is no defence for him to show that he previously had paid a certain person for the goods, including the amount of the freight charges, and that at the time he received the goods he did not know that the carrier “looked to him for the freight.” «</p> <p>The words on a bill of lading for goods transported by rail “Notify J V At Springfield Mass,” written under the name and address of the consignee, do not indicate that J V is the consignee. Following Wright & Colton Wire Cloth Co. v. Warren, 177 Mass. 283.</p>

<p>Contbact for $2,247.26, consisting of sums of money alleged to have been lent by the plaintiff to the defendant in 1897 and 1898 and interest thereon. Writ dated February 10, 1912.</p> <p>The defendant’s answer contained a general denial and also alleged payment and set up the statute of limitations. The defendant also filed a declaration in set-off for $142.90 on an account annexed with items for board, heat, light and rent.</p> <p>In the Superior Court the case was tried before Lawton, J. It appeared that the plaintiff and the defendant were brothers and were natives of Austria, that the plaintiff was the oldest and the defendant was the youngest of a family of six children, that the defendant came to this country when he was seventeen years of age at some time before February 1887, that in June, 1910, the plaintiff came to this country and four months after his arrival went to live with the defendant at the defendant’s house, where he continued to live until January, 1912.</p> <p>The plaintiff testified that on four occasions in the years 1897 and 1898 he had made certain loans to the defendant by directing a banking concern in Austria to forward to the defendant sums of money aggregating about $1,468, and that he had received from the defendant during the years 1900 and 1901 about $200 in five payments, the last of which was a payment of $25 made on June 25, 1901.</p> <p>The plaintiff introduced in evidence a letter sent to him by the defendant, which was in part as follows:</p> <p>“34 Holmes Ave., Allston. Jan. 14, 1907.</p> <p>“Dear Franz:</p> <p>“ When I came to Boston last Oct., I received a letter informing me that father had died — I did not know it before — later I received a letter in which you inform me that I am to inherit 300 gulden. I answered this letter at once and wrote you that you should keep this money and that the time will come when I will pay you the money which it is my intention to do.</p> <p>“ A short time ago Henry sent my wife a paper, which we took for a (note or bond). We could not understand what it was and she did not wish to sign it. She took it to a friend of hers, an attorney, who told her not to sign it and to leave it with him. All I got out of it was trouble, however, it does not matter. As soon as I do not have to give all my money at home, I will save some for myself and send it to you, so be patient, you do not need it so badly, I can explain better to you in the English language I was sick a year, over three months in bed and that has put me back a great deal, but I have a position now, not much better than nothing.</p> <p>Best regards from</p> <p>Ferdinand.</p> <p>The plaintiff further testified that on November 13, 1911, the defendant signed a paper setting forth that the plaintiff had authority to take from their father’s and mother’s estates the share which was due to the defendant and apply the same to the indebtedness, if any, existing between them, that this paper not proving satisfactory to the plaintiff was torn up by the defendant, but that the plaintiff retained possession of the pieces and put them together. The following alleged copy of this paper was introduced in evidence by the plaintiff:</p> <p>“34 Holmes Ave. Boston, Nov. 13, 1911.</p> <p>“ I, Ferdinand Wenz do hereby declare that Franz Wenz has the right to take all moneys belonging to me from my father’s and mother’s estates until his just amount is payed which I owe him.</p> <p>Ferdinand Wenz.</p> <p>“The amount as claimed by Franz Wenz is 3600/46 gulden. In case there is any think left it should be served to me or if any think is short by law I will make good.”</p> <p>The following document drawn up by the plaintiff with a seal affixed and signed by the defendant was put in evidence:</p> <p>“Boston, November 16, 1911.</p> <p>“The writer Ferdinand Wenz of Boston confers upon his brother Franz Wenz power of attorney to take over and to receipt for, in his stead and in his name, as if the writer were personally present, an inheritance due the writer according to law in Briinn and from the sum of money received, to reserve for himself the amount still due him from me according to the statement which follows:</p> <p>Received as loan.....Kronen 7200.92</p> <p>Repaid ......... 977.23</p> <p>Balance, Austrian Value . . . 6223.69 Kr.</p> <p>“ Franz Wenz shall submit an accounting to the writer and in event of a surplus shall pay over same and in event of a shortage the writer shall make settlement.</p> <p>“Franz Wenz advanced his undersigned brother Ferdinand Wenz of Boston the following sums as loans:</p> <p>November 4, 1897 Austrian Value Kronen . 3998.94</p> <p>February 10, 1898 ............ 1001.00</p> <p>May 14, 1898 ............ 1998.98</p> <p>December 31, 1898 ............ 200.00</p> <p>Bank fees................ 2.00</p> <p>Total Kronen............. 7200.92</p> <p>Repaid on same</p> <p>February 23, 1900 Check......... 248.10</p> <p>June 11, 245.40</p> <p>September 19, 238.41</p> <p>March 1, 1901 ............. 122.83</p> <p>June 25, 1901 ............ 122.69</p> <p>Total Kronen............. 977.23</p> <p>“ I acknowledge the complete correctness of this statement and debt.</p> <p>Ferdinand Wenz (Seal) ”</p> <p>There was evidence that the value in United States money of an Austrian krone at that time was twenty and four tenths cents and that a gulden and a florin each was equal to two kronen.</p> <p>The defendant denied that he had received the total amount claimed by him, but admitted the receipt of $750. He further testified that on February 9, 1887, when he was living in Boston, he executed a certain document or order to the effect that in consideration of the payment of $500 the defendant released and assigned to his brothers and sisters and their issue all and whatever interest he might have as heir at law in his father’s and mother’s estates; that this was a subterfuge and was done for the purpose of saving his inheritance from confiscation by the Austrian Government because of his failure to render military service.</p> <p>The plaintiff previously had testified that the drawing and execution of this paper was “a bluff.”</p> <p>Another statement was introduced and allowed in evidence, which was signed in Austria by the remaining children including the plaintiff, dated March 27, 1887, to the effect that notwithstanding the waiver of inheritance made by the defendant in the statement above described the brothers and sisters agreed that he still had equal inheritance rights with them in the mother’s and father’s estates.</p> <p>A letter dated March 30, 1887, written by the plaintiff to the defendant was offered in evidence by the defendant in substance acknowledging the receipt of the assignment described above dated February 9, 1887, and enclosing the statement of the brothers and sisters dated_March 27, 1887, which also is described above. This letter was excluded against the exception of the defendant.</p> <p>In 1906 the father died leaving a will, dated March 12, 1897, in which the plaintiff was named a general heir so called and in which the plaintiff was left all the father’s, property with instructions to pay the children two thousand florins each, amounting in United States money to about $820, with the exception of a sister Anna Wenz, who was given four thousand florins (about $1,640) and the defendant who was given three hundred florins (about $123) with the explanation that he had received his inheritance share for which the father had received his acknowledgment which was among his papers.</p> <p>The defendant offered evidence to show the value of the father’s estate for the purpose of showing the defendant’s proportionate share. The evidence was excluded against the defendant’s exception. It appeared that the mother died in 1912, and that nothing further was done by either the plaintiff or the defendant in regard to the defendant’s share in her estate and that no accounting or adjustment ever was had in regard to it.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“ 1. There is nothing in the letter of January 14,1907, amounting to an acknowledgment of a prior indebtedness and a clear and definite promise to pay the same.</p> <p>“2. There is nothing in the instrument dated November 13, 1911, amounting to an acknowledgment of a prior indebtedness and a clear and definite promise to pay the same.”</p> <p>“4. There is nothing in the instrument dated November 16, 1911, amounting to an acknowledgment of a prior indebtedness and a clear and definite promise to pay the same.”</p> <p>The judge refused to make any of these rulings.</p> <p>In his charge to the jury the judge said:</p> <p>" Counsel for the plaintiff has called my attention to one fact that I certainly had overlooked, that there is other evidence here tending to take the matter out of the statute of limitations, and that is that there was a payment made by the defendant to the suit, of $122.40, on November 16, 1911. Now that, if made with that amount of $122.40, is the share of the defendant in his father’s estate, or rather, the bequest that came to him by his father’s will, as I understand it; and the defendant says about that, that it ought not to be treated as a payment, because it didn’t- go through his hands at all. It isn’t necessary that it should go through his hands. It is necessary, however, that it should have been taken from the estate by the plaintiff with the knowledge and consent and under the direction of the defendant. If, for instance, the defendant, knowing nothing about the money having become due him, the plaintiff simply took it and held it without the knowledge or consent of the defendant, and credited it as a payment, that would not be a payment. But if simply the defendant at that time said to him, ‘Take that money, keep it, and credit it to me, take it as so much payment on account/ then it is a payment just as much as though he had it in his own hands and handed it over to him or sent it to him by letter. If you say there was a payment at that time, that is sufficient to take it out of the statute of limitations, whether there is anything in the letters or instruments to take it out or not.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,568.60, and by direction of the judge returned a verdict for the defendant on his claim in set-off in the sum of $163.19.</p> <p>The defendant alleged exceptions to the refusal of the judge to allow the introduction of evidence to show the value of the father’s estate for the purpose of showing the amount of the defendant’s share in it, to that portion of the judge’s charge referring to the payment of $122.40, to the exclusion of the letter dated March 30, 1887, and to the refusal to give the rulings requested.</p>

Tort for personal injuries sustained by the plaintiff, a deaf and dumb boy, when four years and four months of age from having one of his feet crushed by the forward left wheel of a single truck, closed car of the defendant at about one o’clock in the afternoon of October 12, 1909, on Milton Street in the part of the town of Dedham called East Dedham. Writ dated January 24, 1910.

<p>landlord and Tenant. Contract, Construction. Words, “Just and proportional.”</p> <p>Under the ordinary provision in a lease that, if the buildings on the premises shall be damaged by fire so as to render them unfit for use and occupation, the rent “or a just and proportional part thereof” shall be abated, the “ just and proportional ” abatement of rent for an unexpired portion of the term, after a termination of the lease on the total destruction by fire of the buildings on the premises, is to be computed according to the portion of the period of legal possession of the premises that had expired when the buildings were destroyed without regard to the contemplated beneficial use of the premises by the lessee.</p> <p>A lease of a summer hotel, which was unfitted for use during the winter months, at the rent of $2,400 a year, contained the usual provision that, if the buildings on the premises should be damaged by fire so as to render them unfit for use and occupation, “the rent hereinbefore reserved, or a just and proportional part thereof, according to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor,” or, in case the buildings are destroyed the lessor at his election may terminate the lease. The rent was payable in instalments of 3600 on the first days of December, June, July and August. In a year when the lease was in force the lessee paid on March 14 the $600 of rent which was due on the previous December 1 and on April 3 of that year the buildings on the premises were destroyed totally by fire. The lessor notified the lessee of his election to ter- " mínate the lease, and the lessee brought an action of contract to recover back the $600 of rent paid by him for the instalment of rent due December 1, contending that it was a payment in advance for the coming summer season which had not begun. The year under the lease began on November 2, so that the occupation for that year before the destruction of the buildings was during five months. Held, that the words “just and proportional,” in the provision of the lease stated above, referred to the period of occupancy and not to the beneficial use of the premises by the tenant, and that the fact that the season when the hotel could be used had not begun when the $600 became due and was paid was immaterial, so that the defendant was entitled to judgment; it being said that the just and proportional part of the rent which the plaintiff owed at the time of the destruction of the buildings was at the rate of $200 a month, that is to say, $1,000 instead of the $600 that he had paid.</p>

<p>Tax. Trust, Taxation. Words, “Subject to taxation."</p> <p>A sum of money in the hands of a trustee under a will who has deposited it temporarily in a bank previous to its distribution as income to the beneficiaries of the trust is none the less taxable under St. 1909, c. 490, Part I, § 2, § 4, cl. 1, 2, as “personal property” and “money and effects” or “money at interest” because it is composed of dividends made by Massachusetts corporations.</p> <p>Money derived from dividends on shares of Massachusetts corporations is not exempt from taxation under the provision of St. 1909, c. 490, Part I, § 4, cl. 4, that “Incomes derived from property subject to taxation shall not be taxed.”</p> <p>The provision of St. 1909, c. 490, Part I, J 23, cl. 5, as amended by St. 1911, c. 383, § 2, providing for the taxation to a trustee of “Personal property held in trust . . . the income of which is payable to another person” contains no implication that the income derived from property thus held in trust shall not be taxed to the trustee as property when in his hands, the dominating purpose of that section being not to describe the property subject to taxation but to designate the persons to whom and the municipalities in which the property shall be taxed.</p>

<p>Two actions of tort, the first by a minor, by her next friend, for personal injuries sustained when the plaintiff was eighteen years of age and was a passenger on a train of the defendant travelling from Boston to Concord Junction on May 7, 1914, by the swinging to of a door of the car upon the fingers of one of the hands of the plaintiff in the maimer stated in the opinion; and the second action by the father of the plaintiff in the first case for expenses incurred by him for medical attendance and nursing by reason of her injuries. Writs dated respectively January 12 and 13, 1915.</p> <p>The two cases were tried together before Stevens, J., who at the close of the evidence, which is described in the opinion, ordered a verdict for the defendant in each of the cases, and the plaintiff in each case alleged exceptions.</p>

<p>Contract on a policy of health and accident insurance, which originally was issued by the Protective Disability Insurance Company, and the performance of which was assumed by the Bay State Casualty Company and later by the defendant. Writ dated May 10, 1911.</p> <p>A portion of the policy, which was made a part of the declaration, was as follows:</p> <p>“ (8) In the event of loss of time through sickness, complete, continuous and total, and such as shall probably disable and prevent the insured from the date of the beginning of the sickness from performing every duty pertaining to any business or occupation (and as herein and hereon provided), the Company will pay one of the following benefits, to wit: — Benefit No. 6 (9) Sickness Indemnity: — At the rate of</p> <p>“Fifty Dollars ($50.00) per month (for a period not exceeding twelve consecutive months), for the number of consecutive days, after the first four days, that the insured by reason of sickness is necessarily and continuously confined within the house, and. is therein regularly visited by a legally qualified physician; or, Benefit No. 7. (10) Non-Confining Sickness Indemnity: — If during convalescence immediately following confinement within the house, or by reason of a non-confining sickness, the insured shall be wholly and continuously disabled from performing every duty pertaining to any business or occupation, and is regularly attended by a legally qualified physician (during the time for which claim is made), the Company liability shall be two weeks at one-half of the sickness indemnity that would otherwise be allowed under (9) of this policy.</p> <p>“Notice of regular payments stipulated hereon is hereby expressly waived. Failure to comply with all of the agreements, provisions and conditions of this policy shall invalidate all claims hereunder.</p> <p>“This policy is issued to and accepted by the insured, subject to the following conditions:</p> <p>“F. Failure to make any payment on or before the date when the samé is due shall terminate this Policy. The treasurer may accept a payment after the date upon which said payment was due, but such acceptance shall not be deemed a waiver by the Company of any provision, condition, agreement, or limitation of this policy, and the Company shall not be liable for any injury occurring between the date of such expiration and twelve o’clock noon, Eastern Standard time, of the day following the acceptance of such renewal payment; nor for any sickness originating before the expiration of thirty days after the date of the acceptance of such renewal payment.</p> <p>"J. Cancellation. — This policy shall terminate and cease to be in force upon failure to pay a premium when due, or in case the insured shall lose his or her hearing, or if he or she shall become insane, or his reason become impaired.”</p> <p>Other provisions of the policy are stated in the opinion.</p> <p>The declaration among other paragraphs contained the following: “And the plaintiff says that on or about October 14, 1909 while the said contract of insurance was in full force and effect he came down with a sickness, complete, continuous and total, and that said sickness continued from said date in like manner for a period of more than twelve consecutive months, and during the said time he was regularly visited by a legally qualified physician; that by reason of said sickness the plaintiff was wholly disabled and prevented from the beginning and during the continuance thereof, from performing every duty pertaining to any business or occupation as set forth in said Paragraph 8; and the plaintiff further says that said sickness and said loss of time were fully within the provisions of said Paragraph 8 and said Benefit 6; and all other provisions of said policy.”</p> <p>The answer, besides a general denial, alleged an accord and satisfaction, a release, the lapsing of the policy on December 1, 1909, for non-payment of premium, and that the proofs of disability required by the policy were not furnished until more than thirty days after the termination of the disability declared upon.</p> <p>In the Superior Court the case was tried before Bell, J. The evidence for the plaintiff is described in the opinion. The defendant introduced no evidence, and asked the judge to make the following rulings:</p> <p>"1. Upon all the evidence in the case, the verdict should be for the defendant.</p> <p>“2. There is not sufficient evidence to warrant a finding that the plaintiff is entitled to avoid the release.</p> <p>“3. If the jury find that on or about November 4, 1909, the plaintiff signed the release in evidence, and also signed the release attached to the draft and that the draft with the release attached was left in the possession of the plaintiff who thereafter caused the same to be presented for payment, and the draft was paid, the plaintiff is presumed to accept the payment in accordance with the terms of the release.</p> <p>“4. If the jury find that on or about November 4, 1909, the plaintiff received the draft with the release attached from the Bay State Casualty Company and signed the release, and that the draft and release were left in his possession, and that thereafter he caused the same to be collected, he cannot repudiate the settlement and maintain an action without first tendering back the sum received.</p> <p>“5. That to entitle the plaintiff to recover, he must show by a fair preponderance of the evidence that he was by reason of sickness necessarily and continuously confined within the house, and also that he was therein regularly visited by a legally qualified physician, and that, if otherwise entitled to recover, it would only be for the time of such confinement and treatment.</p> <p>“6. That the time for which the plaintiff was entitled to recover under the terms of the policy was for the number of consecutive days after the first four days and not exceeding twelve months, that the plaintiff by reason of sickness was necessarily and continuously confined within the house and therein regularly visited by a legally qualified physician, and that if the plaintiff was able to leave his house to call upon his counsel or for outdoor exercise or similar reason, even if advised so to do by his physician, he could not be said to be necessarily and continuously confined within the house within the meaning of the policy from the time he first left it for such purpose.</p> <p>“7. That, if the jury find that the plaintiff went to Italy, even if advised to do so by his physician, as matter of law he could not be said to be confined within the house and therein visited by a physician within the meaning of the policy from the time he started upon the trip.</p> <p>“8. That by the terms of the policy affirmative proof is required to be furnished, in case of sickness, on blanks provided by the company within thirty days from the termination of disability, and that, if the jury find that blanks for such proof were furnished to the plaintiff and such proof was not furnished by the plaintiff to the company within thirty days after the termination of the time for which he claimed to be entitled to indemnity, he would not be entitled to recover against the company.”</p> <p>The judge refused to make any of these rulings, and submitted to the jury two special questions, which with the answers of the jury were as follows:</p> <p>"1. Was or was not the plaintiff misled by any statement by the agent of the defendant as to the nature of the instruments which he signed on November 4, 1909, and thereby induced to believe that the instrument accompanying the draft was a receipt?” The jury answered, “He was.”</p> <p>“2. Until what date was the plaintiff necessarily and continuously confined within the house and therein regularly visited by a legally qualified physician?” The jury answered, “October 18, 1910.”</p> <p>The judge, being of opinion that the answers of the jury upon the two issues submitted to them determined all the material questions of fact, under St. 1913, c. 716, § 2, reported the case without a general verdict for such judgment as might be ordered by this court.</p>

Tort for personal injuries sustained on the morning of May 30, 1913, when the plaintiff was attempting to alight from the rear platform of a street railway car of the defendant in Suffolk Square in Malden. Writ dated August 23, 1913.

<p>Practice, Civil, Rulings and instructions, Exceptions. Evidence, Presumptions and burden of proof. Carrier, Of goods.</p> <p>Where at a trial of an action in a municipal court the liability of the defendant depends on the facts to be found by the judge upon conflicting evidence, the judge must refuse a request to rule that “Upon all the evidence the plaintiff is entitled to recover.”</p> <p>In an action of contract or tort against an express company for damage to breakable household goods packed in a barrel and a case and shipped to be transported by the defendant, where the receipt given by the defendant to the plaintiff contains no statement that the goods have been received in good order and condition, it is proper for the trial judge to refuse to rule that “The burden of proving that the goods were improperly packed and marked is on the defendant.”</p> <p>In the case stated above, the trial judge having found in effect that the damage to the plaintiff’s goods was caused by the improper and careless manner in which they were packed and was not due to any negligence of the defendant, exceptions were overruled to the refusal of the judge to make certain rulings founded on the assumption of facts contrary to this finding.</p>

<p>Negligence, Of child. Practice, Civil, Exceptions, Rulings and instructions, Conduct of trial.</p> <p>It seems, that it is negligence as matter of law for a child six years and ten months of age, after running behind a street railway car which has passed her on the nearer of two parallel tracks, to run into the side of another car on the farther track, which is starting from a stationary position and which has been plainly within her vision long enough for her to avoid running into it.</p> <p>At the trial of an action against a corporation operating a street railway for personal injuries to a child six years and ten months of age, the plaintiff testified that, after waiting for a car to go by her on the nearer of two parallel tracks, and hearing no gong sound, she ran across the street in front of a car on the farther track, which was standing still' when she first saw it, and was run into by that car, a witness, called by the plaintiff, testified that the plaintiff ran across the street behind the first car and then ran into the side of the car on the farther track, and the defendant’s witnesses testified that no car had been passing on the nearer track but that the plaintiff ran across the open street directly into the side of the car on the farther track. The defendant asked the judge to instruct the jury that, if the plaintiff was injured by running into the side of the car, she could not recover even if she had run behind another car and had- listened and had heard no gong. The judge refused to give this instruction and instructed the jury in substance, that if the jury believed the plaintiff’s story they might find her to have been in the exercise of due care, but that if they believed the defendant’s witnesses they must find that she was not in the exercise of due care. On exceptions by the defendant, after a verdict for the plaintiff, it was held, that the refusal of the judge to give the instruction requested and his failure to instruct the jury that there was a third way in which they might find that the accident happened as suggested in the instruction asked for were wrong and gave the defendant a right to a new trial.</p> <p>In an action for personal injuries to a child, the jury during their deliberations, at a time when a hearing on a motion in another case was in progress in the court room, sent in writing to the judge the question, “If the jury should make an award to the plaintiff, is it in the power of the court to order the money to be placed in trust until the plaintiff becomes of age?” The judge sent for the jury and, in the absence of the counsel on both sides, instructed them in substance, that, although the question had nothing to do with the issues before them, he saw no harm in telling them that in such a case a guardian would be appointed. One of the counsel engaged in the hearing then going on, who was not a counsel of record in the case before the jury, then said to the judge in the hearing of the jury, that in case there should be a verdict for the plaintiff the counsel for the plaintiff, who was associated with him, "would immediately have a guardian appointed, to whom the money could be paid.” On exceptions of the defendant, which were sustained on another ground, it was said, that it was not necessary to pass upon the supplemental charge of the judge given in the absence of the counsel on both sides or upon his receiving without rebuke the suggestion of the counsel outside the case, which suggestion was referred to as being “highly improper.”</p>

<p>Practice, Ciml, Exceptions.</p> <p>A bill of exceptions, that states a single exception to the admission in evidence of a question and answer, which are quoted, without stating the ground of objection to the evidence or the purpose for which it was admitted or the instructions to the jury in regard to it or any of the evidence at the trial except the question and answer objected to, leaves it only for this court to say whether the evidence excepted to might have been competent in any possible aspect of the case undisclosed by the record.</p> <p>In the present case it was held, that, assuming that the evidence in question was objectionable as hearsay or as a self-serving statement, there was nothing in the bill of exceptions to show that the excepting party suffered any prejudice by its admission, so that, so far as disclosed by the record, the evidence thus admitted was immaterial and had not “injuriously affected the substantial rights of the parties” within the meaning of St. 1913, c. 716, § 1.</p>

<p>Negligence, In operating buzz saw.</p> <p>In an action by an inexperienced workman employed in a repair shop of a railroad corporation against his employer for personal injuries sustained (before St. 1914, c. 553, took effect) when the plaintiff was operating a circular buzz saw, there was evidence that the plaintiff was ordered by the foreman under whom he worked to run through the saw certain blocks of wood which were to be cut in a certain way, that the saw was dull and the blocks were unusually wet, requiring much pressure by the sawyer in “putting them through,” that when the wood is wet and the saw dull, the short pieces of wood are likely to “jump” or “kick,” that “ the danger in cutting short stuff when it is wet and with a dull saw is a matter known to expert sawyers alone, men who are skilled,” that the plaintiff, although he knew that the saw was dull, lacked instruction and experience, that he began to saw a short block and that, when it was cut half way through, it “kicked up” or “jumped,” that he tried to hold the block down in place, when his hand slipped against the saw and he was injured. Held, that, under the circumstances disclosed by the evidence, it was a question of fact for the jury whether the plaintiff with the knowledge he possessed used ordinary care for his own safety.</p>

<p>Pleading, Civil, Answer. Contract, What constitutes, In writing. Evidence, Extrinsic affecting writings.</p> <p>It here was pointed out, that in the trial of an action of contract the plaintiff’s failure to perform' a condition precedent by reason of which the contract never took effect may be shown under an answer that contains only a general denial. In the present case an amendment' of the answer alleging non-performance of the condition precedent was allowed.</p> <p>In an action by a real estate broker on a contract alleged to have been made by an application in writing of the defendant to the plaintiff to procure a first mortgage for $30,000 on cetiain real estate of the defendant who agreed to pay a commission of two and a half per cent for procuring such mortgage, the defendant may show in defence that the defendant, when he made the application, also had applied to the plaintiff to procure for him a second mortgage for $10,000 on the same property subject to a first mortgage for $30,000, and that it was understood and agreed between the parties that no commission should be paid to the plaintiff for procuring the first mortgage for $30,000, unless he also had procured the second mortgage for $10,000, and that the plaintiff never procured such second mortgage.</p>

<p>Tort for personal injuries sustained by the plaintiff on August 10, 1910, when he was operating a street railway car as a motorman of the defendant on Washington Street in the part of Boston called Roslindale. Writ dated November 10, 1912.</p> <p>In the Superior Court the case was tried before Quinn, J. The plaintiff at the time of the accident was about twenty-one years of age and had been the manager of a grocery, and he had been in the employ of the defendant a little more than a month. He testified on his direct examination that, as a result of an application for employment by the defendant, he was provided with a "Book of Rules” and a route-book, and that in accordance with instructions given him at that time, he went to the office of the defendant on Milk Street in Boston; that thence he was sent to the Dudley Street terminal of the defendant where he saw and interviewed the chief inspector, who gave him a “breaking-in slip” and sent him to the Forest Hills terminal station of the defendant; that the chief inspector told him to read the Book of Rules and to study them while breaking in; that he reported to the station master of the Forest Hills terminal and was told by him to report to the starter at the Forest Hills terminal and that an inspector would come out from Dudley Street and “learn” him to run a car; that the starter put him on a car with one Connors from whom he received instruction for about eight days; and that then under further orders he worked with different motormen learning different routes, perhaps twenty-five in all; that about two weeks before the accident he was made a spare man and as such was assigned “to any work that would be going;” that he learned how to start a car, how to brake it, to stop it, to run it and to throw a reverse; that Connors showed him how to throw a brake, and that when he attempted thereafter to stop or to start a car he did it as Connors had instructed him; that after he started to work with Connors he was examined as to his knowledge of the rules by the chief inspector at Dudley Street, who put to him several questions which he answered, and that the chief inspector said to him at the time “‘You are all right, you know the rules,’ he says, ‘and now,’ he says, ‘you are all right; after coming back from Milk Street you won’t have any trouble.’ He says, ‘You go back to Forest Hills and you won’t have any trouble; just do what the starter and inspector and station master tell you, and you will be all right.’ ”</p> <p>The evidence in regard to the happening of the accident that caused the plaintiff’s injuries is described in the opinion.</p> <p>The book of rules referred to above was put in evidence, and contained, among other rules, the following, which are mentioned in the opinion:</p> <p>Rule 52, “Handling Disabled Cars.</p> <p>“ (a) If a car becomes disabled, don’t allow a blockade while trying to make repairs, but couple onto next car and have disabled car taken to car house or to such other place as will avoid obstruction, and very promptly report by telephone or otherwise to division headquarters and await orders.”</p> <p>Rule 135, “ Coasting on steep grades.</p> <p>“ (a) When running on steep grades care must be taken not to exceed speed limits, and at all times be alert and have car under perfect control.</p> <p>“ (b) Before taking any descending grade, the speed of the car must be so reduced as to test the working of the brakes.”</p> <p>Rule 136, “Failure of Brake.</p> <p>“(a) Should brake fail, use reverse, and if necessary signal conductor to set rear brake.”</p> <p>At the close of the plaintiff’s evidence the judge ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for personal injuries received on July 27, 1912, when a wagon which the plaintiff, an employee of the Walworth Manufacturing Company, was driving was run into by a street railway car operated by the defendant. Writ dated August 26, 1912.</p> <p>In the Superior Court the case was tried before Brown, J. The plaintiff introduced sufficient evidence to warrant a submission of the case to the jury on the questions whether the plaintiff was in the exercise of due care and whether the defendant’s servants were negligent.</p> <p>The defendant introduced in evidence an instrument dated August 12, 1912, and signed by the plaintiff and “The American Liability Insurance Company, by Russell Gray, Presidt.,” and approved by the Industrial Accident Board on October 29, 1912. Material portions of this agreement, with the same use of capital letters as in the original, were as follows:</p> <p>“Date Aug. 12, 1912. Workmen’s Compensation Act.</p> <p>“Every agreement in regard to compensation under this act is subject to approval by the Industrial Accident Board, and a memorandum of the same must be filed with the Board, whether said agreement is written or oral, and whether it is made by one or both parties, or in the form of a receipt. Any weekly payment or settlement under the act, whether purporting to be final or otherwise, may be reviewed by the Board. (Section 20, Part II., and sections 4 and 12, Part III., Chapter 751 of the Acts of 1911, and amendments thereto, and Rule No. 6 adopted by the Board.)</p> <p>“James J. Barry Employee.</p> <p>“The American Mutual Liability Insurance Company, Insurer.</p> <p>“AGREEMENT IN REGARD TO COMPENSATION.</p> <p>“We, James J. Barry residing at 602 Third Street city or town of South Boston and THE AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, have reached an agreement in regard to compensation for the injury sustained by said employee while in the employ of the Walworth Manufacturing Company. [Here follow details of the accident and injury.]</p> <p>“The terms of the agreement'follow:</p> <p>“ Compensation at rate of one half of average weekly earnings during total incapacity, beginning fifteenth day after injury.”</p> <p>It also appeared that the plaintiff had been paid $7.50 each week from August 12 to September 29, and at the time of each payment had signed a receipt in the following form:</p> <p>“RECEIPT ON ACCOUNT OF COMPENSATION.</p> <p>“Received of the AMERICAN MUTUAL LIABILITY INSURANCE COMPANY of Boston the sum of Seven dollars and 50 cents, being the proportion of my weekly wages for the period from . . . to . . . under the Massachusetts Workmen’s Compensation Act, subject to review by the Industrial Accident Board. [Here followed the signature and address.]</p> <p>"Workmen’s Compensation Act.</p> <p>“Every agreement in regard to compensation under this act is subject to approval by the Industrial Accident Board, and a memorandum of the same must be filed with the Board, whether said agreement is written or oral, and whether it is made by one or both parties, or in the form of a receipt. Any weekly payment or settlement under the act, whether purporting to be final or otherwise, may be reviewed by the Board (Section 20, Part II and Sections 4 and 12, Part III, Chapter 751, of the Acts of 1911 and amendments thereto, and rule No. 6 adopted by the Board).”</p> <p>On October 10, 1912, the plaintiff signed a receipt similar in every particular to the foregoing, except that it stated that the period therein described was a period “including final day of disability,” that the sum then paid made “in all, with weekly payments received by me, the sum total of Fifty-two dollars and 50 cents, in settlement of compensation under the Massachusetts Workmen’s Compensation Act, for all injuries received by me on or about the 27th day of July, 1912, while in the employ of Walworth Manufacturing Co., First & O Sts., South Boston, Mass.”</p> <p>The plaintiff contended and introduced evidence tending to show that his signature to the agreement in regard to compensation was procured when he was interviewed at his home by one Watt, the paymaster of the Walworth Manufacturing Company; that over three weeks before that interview he had placed his claim against the defendant in the hands of an attorney who had had some correspondence and negotiations with the claim agent of the defendant; that at the time of his interview with Watt, he, the plaintiff, “ did not know there was such a thing as the workingmen’s compensation law;” that when Watt “came down with the pay to me he said, ‘Hello, Jim, I am sorry you got hurt.’ He said, ‘I have got a little money for you.’ I said, ‘That’s good, Fred.’ I said, ‘Don’t you know I have got a case against the Bay State Railroad?’ And he said, ‘That ain’t got nothing to do with the case at all,’ he said. I said, ‘That’s all right,’ I said, ‘but, Fred,’ I said, ‘if it has got anything to do at all in the line of prejudicing my case I don’t want the money.’ He said, ‘It has got nothing at all to do with your case.’ He said, ‘Simply sign that and it is all O. Ií.’ I signed it and simply took the money. . . . He told me, he said, ‘You are working for Walworth quite a while and they are giving you this as a little gift to help you along while you are loafing.’ ” The plaintiff also testified that he signed all of the receipts without reading the printed matter upon them.</p> <p>From the cross-examination it appeared that he could read without hesitation all that was on the exhibits; that he may have noticed what was on the agreement when he signed it, but that he did not read it.</p> <p>The testimony of Watt tended to controvert that of the plaintiff. There was no evidence that Watt was in any way authorized to act in behalf of the insurer or that its officers had been informed of what had taken place when its president signed the agreement.</p> <p>At the close of the evidence the defendant, among other requests, asked for a ruling that upon all the evidence the plaintiff was not entitled to recover. The ruling was refused. There was a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.</p>

<p>Broker, Commission. Agency.</p> <p>Where the owner of certain real estate authorizes a broker to sell it for a fixed price, reserving the right "to deal with any one, broker or other person, who” brings him an offer, but making no agreement that payment of a commission depends upon the consummating of a sale by the passing of title, and the broker procures and introduces to the owner a customer with whom the owner makes a valid and binding agreement of sale, the broker’s commission is earned although after-wards the owner and the customer mutually agree to rescind the contract of sale.</p>

<p>Tort for personal injuries alleged to have been caused by the plaintiff being thrown from the front platform of a crowded street railway car of the defendant when the car went around a curve with a lurch. Writ dated January 9, 1914.</p> <p>In the Superior Court the case was tried before Dana, J. ■ During his direct examination the plaintiff was asked, “When you were riding on that car that night in the way that you were, did you — don’t answer the question until after Mr. McLellan [the defendant’s counsel] has a chance to object to it — did you have any knowledge or appreciate that there was any danger to you in riding in that front vestibule?” The counsel for the defendant objected, whereupon the judge asked the counsel for the plaintiff if he had reference to the question of due care, and then stated the following: “Well, I am inclined to think that you have a right to ask the question, if you want to press it. There are some cases of somewhat similar character; I don’t remember any case just like that.” Whereupon the counsel for the plaintiff said, “I don’t myself.” The judge then said, “I think that it would be safer not to ask it, but I leave that for you to decide; I don’t now remember any case similar to that.” Whereupon the counsel for the plaintiff said, “Well, I guess as long as there is objection, I won’t press it.” The talk above stated was all had within the hearing of the' jury. The defendant excepted to this proceeding and to the statement of the judge above set forth, and in taking his exception stated “that the evidence was either admissible or inadmissible; that such a course of proceeding in front of the jury could not be other than prejudicial to the defendant.”</p> <p>The material evidence and the other exceptions of the defendant are described in the opinion.</p> <p>There was a verdict for the plaintiff in the sum of $15,000; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 27, 1915, by the receiver of the property of the Lenox Hotel Company, a corporation organized under the laws of this Commonwealth, against the Old Colony Trust Company, the American Trust Company, Frederick Ayer of Lowell and certain other individual defendants, containing the allegations set forth or described in the opinion, and praying that the plaintiff be declared to be the owner of the first mortgage coupons held by the defendant the American Trust Company to secure the $27,000 of second mortgage notes taken up by the Associated Trust, a voluntary association mentioned in the opinion, and that the defendant the American Trust Company be ordered to deliver to the plaintiff such portion of the first mortgage coupons deposited with it as were held by it to secure the $27,000 of second mortgage notes so taken up by the Associated Trust; that the defendant Ayer be restrained from participating in the distribution of the proceeds from the foreclosure sale; and that the defendant the Old Colony Trust Company be restrained from making any distribution of any part of the proceeds of the foreclosure sale to the defendant Ayer.</p> <p>The several defendants demurred to the bill.</p> <p>The case was heard upon the demurrers by Crosby, J., who sustained the demurrers and ordered that the bill be dismissed. A decree in pursuance of this order afterwards was entered by order of De Courcy, J. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on March 12, 1914, and afterwards amended, and under St. 1911, c. 284, removed to the Supreme Judicial Court.</p> <p>The allegations of the bill were in substance that the plaintiff, after negotiations with soliciting agents of the defendant, made an application for a thirty year endowment policy, understanding that the policy would be payable at the end of the endowment period, December 1, 1916, to him, if he then was living, or if he should die before that time, that it would be payable to bis wife, her executors, administrators or assigns; that his wife, Fanny F. S. Hayes, had died on March 27, 1912, leaving a will making the defendant Mary S. H. Rouse, the daughter of the plaintiff and the testatrix, her residuary legatee; that not until after the death of his wife did the plaintiff know that by the provisions of the policy it was made payable, both at the end of the endowment period, in case the plaintiff were living, and also in case of his death before the end of that period, to his wife, her executors, administrators or assigns. The prayers of the bill were that the defendant insurance company be enjoined from paying the amount of the policy to the executors of the will of the plaintiff’s wife, and that the policy be reformed “and the mutual mistake made in the terms thereof so corrected that the same shall so read as to be payable as an endowment at the end of the thirty year period to the plaintiff.”</p> <p>The suit was heard by Hammond, J., a commissioner being appointed under Equity Rule 35 to take the evidence. The material evidence and certain exceptions of the plaintiff to the exclusion of certain evidence are described in the opinion.</p> <p>The rulings asked for by the plaintiff and referred to in the opinion, were as follows:</p> <p>“9. The application may be explained in the light of what was said by the contracting parties.</p> <p>“ 10. The plaintiff having notified both Mr. DeForest and Mr. Knox that he wanted an endowment policy in which the endowment was payable to himself, and Mr. Knox having represented that such a policy would be issued to him, the drawing up of the application by Mr. Knox, the agent of the company, in such a way as to require an endowment payable to the plaintiff’s wife or her estate, instead of to the plaintiff, was a mistake in the making of the contract which is, in law, the mistake of the insurance company as well as of the plaintiff.</p> <p>“11. On the facts the failure of Mr. Knox to make the application call for a policy payable as an endowment to the plaintiff was a mistake, and such mistake was legally the mistake of the defendant insurance company he represented.</p> <p>“12. On the facts the mistake was a mutual mistake in the making of the contract.”</p> <p>By order of the single justice, made on his own initiative at the close of the plaintiff’s evidence, a decree was made dismissing the bill with costs. The plaintiff appealed.</p>

<p>Bill in' equity, filed in the Probate Court on November 25, 1914, by the trustee under the will of Maturin M. Ballou, late of Boston, for instructions as to whether, under the ninth clause of the will, set out in the opinion, a distributive share of Franklin B. Ballou should be paid to him or to his trustee in bankruptcy, the defendant Forrest F. Collier.</p> <p>In the Probate Court, where the suit was heard upon the pleadings and an agreed statement of facts, Grant, J., ordered a decree directing that the share be paid to Franklin B. Ballou. On appeal from that decree the case was reserved for this court by Braley, J., upon the pleadings and the agreed statement of facts. The material facts are stated in the opinion.</p>

<p>Tort under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, by the administrator of the estate of Johanna Raymond, late of Worcester, for causing the death of the plaintiff’s intestate on March 21, 1913, by negligently running her down with a street railway car operated by the defendant on Lincoln Street in Worcester when she was in the exercise of due care and was not a passenger or in the employ of the defendant. Writ dated April 12,1913.</p> <p>In the Superior Court the case was tried before Hall, J. The facts favorable to the plaintiff which could have been found upon the evidence are stated in the opinion. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p> Adverse Possession. </p> <p>On a petition filed in 1911 for the registration of title to a neck of land extending into White Island Pond in the towns of Plymouth and Wareham, it appeared that the petitioner claimed ownership of the land through mesne conveyances under a deed given in 1852 by one who did not have "full record title at the date of the conveyance,” that one of the petitioner’s predecessors in title, who took his deed in 1867, went upon the land in that year and also in 1868 and cut the timber from both sides and all the timber from the narrow portion of the neck, that this cutting took place in the presence of two persons, under each of whom the respondent claimed title, that one of these predecessors of the petitioner built a sledge road through the neck and kept the underbrush cut and, when in 1873 he parted with his title, his grantees, through whom the petitioner claimed, entered into possession and erected camp buildings consisting of a stable, a cabin, a cook house and a boat house, which were kept locked, the owners only holding keys, that the land, although not cultivated, was kept cleared around the buildings, and that nearly thirty years before the filing of the petition an ancient wooden fence across the neck was replaced by a wire fence with a gate, which thereafter was kept locked by those in the line of the petitioner’s title, who occupied the buildings two or three tintes each year for about a week at a time for the purpose of shooting, fishing, rest and recreation. Held, that a finding that a title proper for registration had been made out was warranted.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board relating to compensation to be paid to Anne U. Kenney, the sister of Thomas H. Kenney, deceased, as having been one of his next of kin and wholly dependent upon his earnings for support, Kenney having been at the time of his death in the employ of the city of Boston as a janitor in a building called Curtis Hall in the part of that city called Jamaica Plain, and the claim being made under St. 1913, c. 807.</p> <p>The case was heard by the Industrial Accident Board upon the report of an arbitration committee, no new evidence being presented before the board. A transcript of all the material evidence presented before the arbitration committee was attached to their report. The committee found that Thomas H. Kenney was a janitor in the employ of the city of Boston at Curtis Hall and received the injury which resulted in his death while fixing a pump in the swimming pool of Curtis Hall on December 26,1914, that his finger was jammed in the pump and later blood poisoning set in, causing his death on January 5,1915; that the employee was unmarried and lived at home with his two sisters, one of whom, Anne U. Kenney, kept house and was wholly dependent upon him for support at the time of his death; and that the other sister, Jane E. Kenney, earned her own living. They found that the average weekly wages of the employee were $23.01. The material evidence upon the question of the dependency of Anne U. Kenney is described in the opinion.</p> <p>The Industrial Accident Board found that Thomas H. Kenney was a workman in the employ of the city of Boston; that while employed as a workman he received a personal injury arising out of and in the course of his employment, which resulted in his death; that his average weekly wages were $23.01; that the claimant, Anne U. Kenney, a sister of the employee, was wholly dependent upon his earnings for support at the time of his injury and was entitled to a weekly compensation of $10 for a period of four hundred weeks from the date of the injury, that is, from December 26,1914, from the city of Boston.</p> <p>In the Superior Court the case was heard by Morton, J., who made a decree affirming the decision of the Industrial Accident Board. The city of Boston appealed.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Equity Pleading and Practice, Parties. Commonwealth. Words, “'Which cannot be reached.”</p> <p>A suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply to the payment of a debt to the plaintiff property which cannot be reached to be attached or taken on execution in an action at law, cannot be maintained without making the person, in whose possession such property is alleged to be, a defendant; and where such person is the Commonwealth, the fact that it cannot be sued except by its consent does not make its absence as a party any the less fatal to the prosecution of the suit.</p> <p>It long has been settled that property “which cannot be reached to be attached or taken on execution in an action at law” within the meaning of R. L. c. 159, § 3, cl. 7, is property that cannot be so attached or taken by reason of its nature, and property of a nature to be attached or taken if it belonged to an individual is not brought within the meaning of the statute because it is in the hands of the Commonwealth which cannot be summoned as trustee in its own courts.</p>

<p>Way, Private: by necessity.</p> <p>A right of way by necessity is not extinguished necessarily by the construction of a public way that abuts on a part of the dominant estate. In order that the opening of access to the public way shall operate as an extinguishment of the way of necessity, the outlet by means of the public way must be reasonably sufficient for the beneficial enjoyment of the dominant estate.</p> <p>Where a triangular parcel of land, which was vacant but was suitable for a dwelling house, had appurtenant to it a way of necessity over a lot of land that adjoined the base of the triangle and abutted on a public highway, and thereafter a public way was constructed across the apex of the triangle of land giving it an opening on such public way but by reason of the narrowness of the land at that point the space available for passage from the triangular lot to the public way was only five feet and nine inches wide, it was held, that as matter of law tinder the circumstances shown it could not be found as a fact that the opening five feet and nine inches wide on the public way was a reasonably adequate and convenient means of access to the land which extinguished the right of way by necessity over the adjoining land at the other end of the triangular lot, and therefore that a ruling by a judge of the Land Court, that the right of way by necessity had ceased, was erroneous.</p>

<p>Devise and Legacy, Whether vested or contingent. Words, “Legal heirs.”</p> <p>A will, all of whose provisions were for the benefit of the testator’s widow and six children, by its ninth clause gave certain, specified real estate to trustees to divide the net income among the widow and six children of the testator “until the decease of my last surviving child, after which my said real estate shall be divided among my legal heirs according to the rules of law.” Held, that, there not being manifested in the will any intention that the estate given to the “legal heirs” should be contingent, it must be vested; and therefore that the “legal heirs” designated were those of the testator at the time of his death.</p>

<p> Marriage and Divorce. Husband and Wife. </p> <p>The granting of a petition for alimony under R. L. c. 152, § 30, is a matter to be determined in the discretion of the judge after considering all the circumstances of the case; and, where a woman, against whom her husband had obtained a divorce for desertion, filed no petition for alimony until after her former husband lawfully had married again, it was held that, in denying her petition for alimony filed after such remarriage, it was proper for the judge to take into consideration, among other facts, the obligation that the husband had incurred to support his present wife.</p>

<p>Tort by the members of a committee of the holders of the preferred stock of the Knox Automobile Company, a corporation, against the administrators of the estate of Alfred N. Mayo, late of Springfield, who at the time of the acts complained of and until his death on June 26, 1912, was the treasurer and a director of the Knox Automobile Company. Writ dated June 30, 1914.</p> <p>The declaration, after alleging contracts of the corporation to pay dividends to its preferred stockholders from the net proceeds in its hands, alleged, among other things, “that said Mayo, with full knowledge of the existence of such contracts, of the amount of net proceeds as aforesaid, and of said obligations of said Knox Automobile Company, and without justifiable cause, did maliciously induce and cause said Knox Automobile Company to violate its said contracts with the plaintiffs’ assignors and its said obligations to them by neglecting and refusing to declare and pay all accrued dividends on said preferred stock, and to apply the remaining net proceeds over and above such amount as should be set apart by the directors as surplus, as aforesaid, or any part thereof, to the redemption of said preferred stock, and by neglecting and refusing to call for redemption any of said preferred stock, and that, pursuant to such action of said Mayo, said company neglected and refused, and continued to neglect and refuse to declare or pay such dividends, or to apply any part of said net proceeds to the redemption of preferred stock, or to call for redemption any of said preferred stock until said net proceeds were dissipated and it became impossible for said company to perform its said obligation.” Other allegations of the declaration are described in the opinion.</p> <p>The defendants demurred to the declaration.</p> <p>The case came on to be heard upon the demurrer by Jenney, J., who made an order sustaining the demurrer, and, being of the opinion that the questions raised so affected the merits of the controversy that the correctness of his decision ought to be determined before the entry of judgment for the defendants, reported the case for determination by this court, such order to be entered as might be determined to be proper.</p>

<p>Bill in equity, filed in the Superior Court on June 29,1914, by certain holders of the preferred stock of the Knox Automobile Company, a corporation, against the administrators of the estate of Alfred N. Mayo, who was the treasurer and a director of that corporation and who, it was alleged, maliciously induced the corporation to break its contracts with the plaintiffs in regard to the payment of dividends on its preferred stock and in regard to the redemption of their stock. The bill prayed for an accounting of the funds and property of the Knox Automobile Company that were applicable as net earnings to the payment of the dividends then in arrears on its preferred stock, for an assessment of damages and for further relief.</p> <p>The defendants demurred to the bill, and the case came on to be heard upon their demurrer before Jenney, J., who made an interlocutory decree sustaining the demurrer, and, being of opinion that the questions raised so affected the merits of the controversy that the correctness of the interlocutory decree ought to be determined before the entry of any decree dismissing the bill, reported the case for determination by this court, such order or decree to be entered as justice and equity might require.</p>

<p>Two actions of tort, the first for personal injuries received when the plaintiff, a boy seven years of age, was run over by a street railway car of the defendant, and the second by the father of the plaintiff in the first action for consequential damages. Writs dated June 20, 1914.</p> <p>In the Superior Court the cases were tried together before Hamilton, J. The material evidence is described in the opinion. At the close of the evidence, the judge refused to rule that on all the evidence the plaintiffs were not entitled to recover, that there was no evidence that the plaintiff in the first case was in the exercise of due care or any care and that there was no evidence of any negligence on the part of the motorman or conductor. There was a verdict for the plaintiff in the first case in the sum of $1,500 and for the plaintiff in the second case in the sum of $500. The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Negligence, Of dentist. Evidence, Presumptions and burden of proof, Matters of common knowledge.</p> <p>At the trial of an action against a dentist for personal injuries alleged to have been caused by negligence of the defendant in allowing a tooth to fall into the plaintiff’s throat during an operation for the extraction of several teeth while the plaintiff was under an anaesthetic, the evidence tended merely to show that before the operation the plaintiff was in good health, that soon afterwards he had a cough accompanied by a severe pain in his side, that later he became dizzy and felt a numbness in his right arm and leg and was affected by partial loss of speech, which condition, except as to the speech, continued for months, that nine weeks after the operation he coughed up a tooth and that “his coughing was relieved immediately thereafter.” The plaintiff offered no dental or medical evidence, nor any further evidence to show “whether the symptoms which it appeared he had were or could have been caused by the tooth.” Expert evidence introduced by the defendant was to the effect that the plaintiff’s condition was not caused by the tooth. Held, that the defendant’s expert evidence, although uncontradicted, need not be believed, and that the jury could not be instructed that on the evidence their verdict must be for the defendant.</p> <p>At the trial above described a ruling requested by the defendant, that there was “no evidence justifying the jury in finding that the plaintiff’s loss of speech, weakened condition of body, partial paralysis and inability to work were in any way caused by the inhaling of his tooth,” should have been given, the determination of that question not being a matter of common knowledge and there being no affirmative evidence to establish the causal connection.</p> <p>At the same trial it was held to have been improper for the presiding judge to allow the jury to determine whether the physical ailments from which they found that the plaintiff suffered after the operation and his then present condition were due to the inhaling of the tooth.</p>

<p>Practice, Civil, Exceptions, Conduct of trial. Witness, Cross-examination.</p> <p>An exception to the admission at the trial of an action for maliciously causing the plaintiff’s arrest on mesne process of evidence that related only to the amount of damages cannot be sustained after a verdict for the defendant, which made the evidence immaterial, and in such a case it is not necessary to consider the question of the competency of the evidence.</p> <p>A presiding judge here was held to have exercised properly his discretionary power to limit a cross-examination in excluding a question the materiality of which was not apparent and which already had been answered in substance.</p>

<p>Workmen’s Compensation Act. Notice. Agency. Words, “Agent.”</p> <p>Under the provision of the workmen’s compensation act contained in St. 1911. c. 751, Part II, § 15, that “No proceedings for compensation for an injury under this act shall be maintained unless a notice of the injury shall have been given to the association or subscriber as soon as practicable after the happening thereof,” and the provision of § 16 that “The said notice shall be in writing, and shall state in ordinary language the time, place and cause of the injury,” assuming (without deciding it) that a claim for compensation filed by an employee in some instances may be construed to fulfil the requirements of such a notice, it was held, that in the present case a claim filed at least four months after the injury could not constitute a sufficient notice, because the notice was not given “ as soon as practicable after the happening” of the injury.</p> <p>Under the provisions of the workmen’s compensation act contained in St. 1911, c.751, Part II, § 17, that notice shall be served “upon any officer or agent of a corporation if the subscriber is a corporation,” and of § 18, that “Want of notice shall not be a bar to proceedings under this act, if it be shown that the association, subscriber, or agent had knowledge of the injury,” such knowledge on the part of the foreman of a subscribing corporation, who had superintendence over the workmen and their work, of an injury to one of the employees working under him sustained in the course of his work, can be found by the Industrial Accident Board to have been knowledge of the employer or its agent within the meaning of the act sufficient to prevent the want of a notice in writing from barring the employee’s claim to compensation.</p>

<p>Tort by the administrator of the estate of Bessie Moran to recover for the conscious suffering and death of the plaintiff’s intestate caused by her being struck and knocked down by a street railway car alleged to have been operated1 negligently by the servants of the defendant on St. James Avenue near Arlington Street in Boston on October 14, 1913. Writ dated December 19, 1913.</p> <p>In the Superior Court the case was tried before Lawton, J., who at the close of the evidence, which is described in substance in the opinion, ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Will, Validity. Undue Influence. Husband and Wife.</p> <p>At the trial in the Superior Court of the single issue, whether the execution of an instrument propounded for probate was procured to be made through the fraud or undue influence of the wife of the testator who survived him as his widow and to whom and her two sisters he bequeathed the bulk of his property to the exclusion of his children by a former marriage, there was no direct evidence that the widow ever induced or sought to induce her husband to make any testamentary disposition of his property. It appeared that, when his first wife obtained a divorce from him a passionate affection existed between him and the woman who became his second wife and his widow, that after their marriage this affection became so preponderant as to lead him to act in conformity with his wife’s feelings and desires in all family matters, that after three years of married life and a year before the execution of his will he told his eldest son that he could not give him money for a college education because it would make trouble with his wife, that two years after the date of the will he gave this son money for this purpose but on the express condition that he should not let any one know it “ because the minute that my wife finds this out it will be all over,” and that afterwards he told his son that his wife had found out about it and that the son must return the money, which he did. There was other evidence which with that described would have warranted the jury in finding that the alleged testator acted in complete subordination to his wife’s purpose that no part of his property ever should be enjoyed by his children. Held, that a finding of the jury that the execution of the instrument was procured through the undue influence of the wife was warranted.</p>

<p>Agency, Scope of authority, Ratification. Steamship Company. Reference and Referee. Contract, Validity.</p> <p>An agent in Boston, to whom a foreign steamship company had given a general power of attorney appointing him for it “and in its name and stead to manage and transact its business” in the United States, and authorizing him, among other things, for it “and in its name to make, sign and seal contracts in the ordinary course of the company’s business . . . and ... to bring or defend, compromise, or abandon, actions at law, in equity or admiralty,” has power to make an agreement with a railroad company providing for a reference to the interstate commerce commission of the question whether the steamship company was liable to pay to the railroad company certain storage charges caused by certain freight remaining in the possession of the railroad company by reason of a strike among the employees of the steamship company beyond a period of thirty days during which, by a storage tariff approved by the interstate commerce commission, the steamship company was allowed free storage and beyond which by that tariff a certain charge should be made, and also providing that, pending the determination of that question of liability, the payment of the charges should be held in abeyance, and that, if it should be decided by the commission that the railroad company was entitled to charge the storage, the steamship company would pay for it regardless of who might be liable for it; and such contract is valid and enforceable. 4</p> <p>In this case, where it appeared that the agent of the steamship company and a representative of the railroad company had joined in referring such dispute to the commission, that on a May 3 the agent of the steamship company had informed his principal that he had done so, that the steamship company had made no objection and had not undertaken to repudiate the agreement made by its agent until the following October 8, which was about four months after the commission had rendered its decision adverse to the steamship company and had notified the agent, it was said that it well could have been found that the steamship company had ratified the acts of its agent.</p>

<p>Practice, Civil, Rescript, Exceptions, Requests and instructions.</p> <p>Where this court sustains exceptions by the plaintiff in an action of tort tó a ruling ordering a verdict for the defendant, stating in their opinion as one , ground of the decision that there was evidence for the jury that the plaintiff was in the exercise of due care, this does not mean that such a finding must be made upon the evidence, but only that the determination of that question was for the jury as a question of fact and not for the trial judge as a question of law. A judge presiding at a trial cannot be required to select certain portions of the evidence for especial comment in his instructions to the jury.</p>

<p>Tax, Excise on corporate franchise, Remedy for over-valuation or wrongful assessment.</p> <p>The right of appeal given by St. 1909, c. 490, Part III, § 68, to a domestic business corporation from a decision of the tax commissioner assessing an excise on the franchise of such corporation is lost if not exercised within ten days as prescribed by the statute.</p> <p>The right given by St. 1909, c. 490, Part III, § 70, to a domestic business corporation aggrieved by the exaction of a franchise tax or excise or of any portion thereof, to file in the Supreme Judicial Court a petition for an abatement within six months after payment of the tax, is made by the terms of the statute an exclusive remedy.</p> <p>Where a domestic business corporation did not appeal under St. 1909, c. 490, Part III, § 68, from the decision of the tax commissioner assessing an excise upon its franchise, and filed no petition under Part III, § 70, of the same statute for an abatement of the tax, it has no defence to an information by the Attorney General to collect the tax in full, and cannot be allowed to show in such a suit that it was entitled under the statute to a deduction which would make the amount of the franchise tax much less than the amount which was assessed by mistake and was paid by it in full.</p>

<p>Bills and Notes, Holder in due course. Words, “ Immediate parties.”</p> <p>One who takes, without notice of any infirmity, the check of a corporation payable to him, which is signed properly in the corporate name by the treasurer of the corporation and is complete and regular upon its face and which is delivered to him by a third person in payment of a pre-existing debt due to him from that person, is a holder for value in due course under R. L. c. 73, § 69, and the corporation cannot recover from him the amount of the proceeds of the check on proving that the check was signed by its treasurer without authority and that the payee’s debtor who delivered the check to him had no right to it.</p> <p>A payee of a check who has taken it for value and is a holder in due course is not one of the “immediate parties” within the meaning of R. L. c. 73, § 33.</p>

<p>Tort under R. L. c. 51, § 18, against the town of Winthrop for personal injuries sustained on September 27, 1913, by reason of an alleged defect in the sidewalk of Shirley Street, a public highway which it was the duty of the defendant to keep in repair, consisting of a pipe or shut-off box alleged to have been permitted through the negligence of the defendant to project above the level of the sidewalk. Writ dated March 5, 1914.</p> <p>In the Superior Court the case was tried before Fox, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to make, among others, the following rulings:</p> <p>“1. Upon all the evidence in this case, the plaintiff is not entitled to recover.”</p> <p>“5. There is no sufficient evidence in this case to warrant the jury in finding, that, at the time of the injury complained of, there was a condition amounting to a defect in the sidewalk in question, for which the defendant can be held liable, and the defendant is entitled to a verdict.”</p> <p>• “7. There is no sufficient evidence to warrant a finding that the water shut-off in question unreasonably obstructed the sidewalk in question.”</p> <p>“11. There is no sufficient evidence in this case to warrant the jury in finding that the defendant town had, or by the exercise of proper care and diligence might have had, reasonable notice of the defect relied on, and, therefore, a verdict must be returned for the defendant.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $750. The defendant alleged exceptions, including those to the admission of evidence which are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Railroad, Employer’s liability.</p> <p>In an action by a freight brakeman'against the raiboad corporation by which he was employed for personal injuries sustained in the course of his employment after St. 1911, c. 751, Part II, § 1, took effect and when the defendant was not a subscriber under the workmen’s compensation act, there was evidence that it was the plaintiff’s duty to turn a certain switch and after having done so to jump upon an engine as it passed and thus to be carried to another switch that he was to turn, that the defendant’s servant in charge of the engine knew that someone must turn the switch and also that this person was expected to get upon the engine as it passed the switch-stand, that the plaintiff turned the switch and when the engine was twenty yards away gave the proper signal to slacken speed, but that the person in charge of the engine paid no attention to this signal and the engine continued to approach the plaintiff at an unusual and excessive rate of speed, so that when the plaintiff jumped on the footboard of the engine as it passed he was thrown against the cross beam and was injured. Held, that there was evidence for the jury of negligence on the part of the defendant.</p>

<p>Workmen’s Compensation Act, Partial incapacity.</p> <p>Under the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 10, that in case of partial incapacity the employee is to be paid “ one half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter,” the amount which a partially incapacitated employee is entitled to recover is one half the difference between the average weekly wages that he actually earned before the injury under the conditions of the labor market then existing and the average weekly wages that he would be able to earn after the injury in a normal condition of the labor market, although because of dullness in trade he could not in fact earn so much at that time.</p>

<p>Two actions of tort by Effie A. Carter, the wife of Frank Albert Carter of the village of Cochituate in the town of Way-land, against Arthur Bradford Papineau, the rector of St. George’s Church at Maynard, who conducted the services of the Episcopal Mission in Wayland, and William Lawrence, Bishop of Massachusetts (of the Protestant Episcopal Church of America). Writs dated respectively May 12 and July 3, 1913.</p> <p>The declaration in the first case contained four counts, of which the plaintiff waived the first and third. The second and fourth counts related respectively to occurrences on the days of May 14 and May 21,1911, and otherwise contained the same allegations, which were that the defendants publicly stationed a constable of the town of Wayland at the door of a certain building used as a place of worship by the Protestant Episcopal Church of America in Wayland and instructed the constable to prevent the plaintiff from entering the building and to keep her out; that the plaintiff was a communicant of the church and was entitled to enter and worship therein, "but that the defendants by their said agent, by force, wrongfully and publicly prevented her from so" doing and held her up to public disgrace, humiliation and shame, and have in effect represented that she was an unfit person to enter and worship in said church.”</p> <p>The declaration in the second action contained two counts. The first count alleged that on or about August 20,1911, the plaintiff was a communicant of the Protestant Episcopal Church of America and was lawfully entitled to be present and participate in the services of that church and to partake of the Holy Communion as administered in that church; that on that day she entered a certain building used as a place of worship by that church in Wayland, where she was accustomed to worship, and at the proper time and in a proper manner came forward to partake of the Holy Communion; but “that the defendants then and there, without cause and without any notice or warning to her, or any charge against her, or any hearing or opportunity by her to be heard, refused to administer to her the Holy Communion and repelled her from the Lord’s Table without cause.” The second count contained the same allegations as the first count and added the following: “whereby the plaintiff says that the defendants have held her' up to public disgrace, humiliation and shame, and have in effect represented that she was an open and notorious evil liver, and that she has done some wrong to her neighbors by word or deed so that the congregation has thereby been offended, and that she was an unfit person to enter and worship in said church.”</p> <p>In the Superior Court the cases were tried together before Lawton, J. The material evidence is described in the opinion. At the close of the evidence, the judge at the request of the defendants ruled that as a matter of law the plaintiff could not recover in either case and ordered verdicts for the defendants.</p> <p>The plaintiff alleged exceptions.</p>

<p>Carrier, Of goods. Expressman. Evidence, Presumptions and burden of proof.</p> <p>Whether an expressman, whose business is transporting packages for hire in a certain district of a city, is a common carrier of goods for hire and is to be held to the degree of liability required of such a carrier, it here was not necessary to decide; because in the present case there was a finding of fact warranted by the evidence that the defendant, who was a local expressman, was' negligent in performing the agreement that he had made with the plaintiff to use proper care in transporting a harp from one place to another in the same district of the same city.</p> <p>In an action against a local expressman for injury to a harp entrusted to him by the plaintiff for transportation from one place to another in the part of a city where the defendant carried on his business, where it appeared that the harp when entrusted to the defendant was in a case and was then in good condition, and that when the case was delivered by the defendant it had a crack or split near the padlock and was delivered by the defendant with “the damaged and padlock side downward,” it was held, that an inference of negligence might be drawn from the fact of the delivery of the case with its damaged side downward.</p>

<p>Negligence, Railroad, Causing death, Licensee.</p> <p>In an action by an administrator against a railroad corporation for causing the death of the plaintiff’s intestate, who was not a passenger or in the employ of the defendant, if it appears that the plaintiff’s intestate was crossing a branch freight track of the defendant which it was necessary to cross in order to reach a station of the defendant but which otherwise the public were not invited to use and over which there passed only one freight train each way every twenty-four hours, that in crossing this track, entirely for his own purposes, the intestate took no precaution for his safety either by looking or listening, when if he had looked or listened he would have seen or heard a train coming, and that he was struck and killed by the engine of a freight train moving at the rate of from six to eight miles an hour and giving no signal of its approach by bell or whistle, the plaintiff cannot recover and judgment must be ordered for the defendant; because the death of the plaintiff’s intestate was the result of his coming uninvited to a place of peril and exercising no care for his safety, and there is nothing to show that he had a right to rely upon a bell or signal being sounded on the defendant’s engine when approaching on the freight track.</p>

<p>Tort for personal injuries sustained by the plaintiff on July 6, 1912, from being struck in the left eye by a piece of metal by reason of an explosion on a car of the defendant while the plaintiff was waiting for a car at the defendant’s station at Brookline Village in the centre of Washington Street' in the town of Brook-line. Writ dated August 6, 1912.</p> <p>The declaration originally contained four counts, but the plaintiff at the beginning of the trial discontinued as to his third and fourth counts, and the trial proceeded on the first and second. The first count alleged negligent operation of the car on which the. explosion occurred, and the second count alleged negligence of the defendant in furnishing improper material for the electrical apparatus and appliances of the car and in allowing such apparatus and appliances to become defective.</p> <p>In the Superior Court the case was tried before Irwin, J. The evidence is described in the opinion. At the close of the evidence, the defendant asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence the plaintiff cannot recover on count one of the plaintiff’s declaration.</p> <p>“2. Upon all the evidence the plaintiff cannot recover on count two of the plaintiff’s declaration.</p> <p>"3. There is no evidence to warrant tne jury in finding that the piece of metal which struck the plaintiff in the eye causing his injury was a portion of the fuse or other part of the apparatus or appliances of the defendant’s car concerned in this accident.</p> <p>“4. There is no evidence in this case to warrant the jury in finding that the defendant carelessly and negligently furnished improper material for the electrical apparatus and appliances connected with the car concerned in this accident.</p> <p>"5. There is no evidence sufficient to warrant the jury in finding that any part of the apparatus or appliances of this car was by force of an explosion blown into the eye of the plaintiff.</p> <p>“ 6. The plaintiff has shown no facts from which negligence on the part of the defendant, its agents or servants, could be reasonably inferred as to the matters alleged in the first two counts of the plaintiff’s declaration.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in. the sum of $15,000. The defendant alleged exceptions.</p>

<p> Judgment. Execution. Scire Facias. </p> <p>Where a plaintiff brought two actions successively against the same defendant, the declaration in the first action containing four counts and that in the second action containing five counts, where the four counts after the first count in the declaration in the second action were identical with the four counts in the declaration in the first action, and where the plaintiff obtained judgment in his first action on all the four counts in the declaration in that action, it was held that this judgment was a bar to a recovery in the second action on all the counts in the declaration except the first count, which was the only one not included in the first action, and that a judgment for the plaintiff afterwards entered in the second action only could have been rendered on such first count.</p> <p>A judgment in an action and an execution thereon levied on land alleged to belong to the defendant but standing in the name of a third person, are not conclusive in proceedings upon a petition by such third person to register his title to the land, and the petitioner is free to attack the validity, of such judgment and execution.</p> <p>R. L. c. 178, § 51, provides that, “If, after the return of such execution, it appears to the creditor that the land levied on, or any part thereof, cannot be held thereby, he may take out from the court from which the execution issued a writ of scire facias requiring the debtor to appear and show cause why'another . execution should not be issued on the same judgment, and the writ may issue although there is a subsequent judgment for a part thereof not satisfied by the levy. If the debtor, after being duly summoned, does not show sufficient cause to the contrary, the levy of the former execution may be set aside and another execution issued for the amount then due on the original judgment and not included in a subsequent judgment, but without interest or further costs.” Held, that this statute does not prevent a judgment creditor from maintaining an action on a judgment for the balance due where his execution was returned satisfied only in part, although his levy upon real estate was ineffectual for the reason that the property was not owned by the judgment debtor; it being necessary to resort to the remedy by scire facias only for the purpose of setting aside such previous levy. The creditor has the right independently of the statute to recover the balance due upon the judgment, assuming the previous levy to have been valid.</p>

<p>Workmen’s Compensation Act. Constitutional Law. Words, “Personal injury.”</p> <p>The workmen’s compensation act contained in St. 1911, c. 751, as amended by St. 1912, c. 571, providing compensation for a personal injury to an employee arising out of and in the course of his employment, does not confine such compensation to injuries incurred by accident. Following Hurle’s Case, 217 Mass. 223, and Johnson’s Case, 217 Mass. 388.</p> <p>Where a pre-existing heart disease of an employee is accelerated to the point of disablement by the exertion and strain of his employment, there can be found to have been a personal injury arising out of and in the course of his employment within the meaning of the workmen’s compensation act. Following Brightman’s Case, 220 Mass. 17.</p> <p>A woman employed in a carpet factory operated by a subscriber under the workmen's compensation act, who had “a weak heart condition” before her injury and before she entered the employ of the subscriber, and who, when in the course of her work she was pulling á carpet along and over a table in front of her, “felt something give” and, thinking the trouble would pass away, continued to work until dinner time, and after dinner “started to work again; then she felt something else give way,” and then was taken to a hospital where she suffered an attack of angina pectoris, and thereafter was disabled from working, can be found to have received a personal injury arising out of and in the course of her employment within the meaning of St. 1911, c. 751, Part II, § 1.</p> <p>The workmen’s compensation act contained in St. 1911, c. 751, as amended by St. 1912, c. 571, which leaves it wholly to the option of the employer and of the employee as to whether they respectively will come under its provisions or will stand on their legal rights outside it, is not unconstitutional as depriving the employer of property without due process of law or for any other reason.</p>

<p>Joint Tenants and Tenants in Common, Of personal property. Savings Bank, Transfer of deposit. Contract, Novation.</p> <p>If the owner of a deposit in a savings bank goes to the bank with his sister, and there has an entry inserted in his bank book declaring that the deposit is “payable also to” the sister of the original depositor and that "Either party or the survivor of them may draw the whole or any part now or hereafter deposited on this account with interest,” and the sister thereupon signs the by-laws of the bank and the identification card provided for depositors, the transaction amounts to a new contract of deposit by novation between the original depositor and his sister and the bank, and, on the death of the original depositor, his sister is entitled to the deposit as its surviving joint owner.</p> <p>A similar transfer of another deposit in another savings bank was held to create a like joint ownership, although the words insérted in the bank book merely stated that the deposit might be drawn by the sister of the original depositor, the circumstances attending the transaction, which disclosed the intent of the parties, showing that the words should be construed to mean that the deposit might be drawn by the sister at any time either before or after the death of the original depositor.</p>

<p>Indictment, found and returned on May 5,1913, against Raymond J. Quinn, Harris Berman and Meyer Fuchs, charging that the defendants on December 13, 1912, at Springfield “ certain money of the amount and of the value of $700 of the money and property of one Henry D. Bullard, in the possession of the said Henry D. Bullard, being found, then and there feloniously did steal, take and carry away, contrary to the form of statute in such case made and provided.”</p> <p>The bill of particulars as amended was as follows:</p> <p>“And now comes the Commonwealth, in answer to the motion of the defendant Fuchs for a bill of particulars, and files a statement of particulars, as follows: That the defendant Fuchs on some day not known to the Commonwealth, in the year 1912, before December 19, 1912, conspired with the defendant Quinn and the defendant Berman at Springfield, in the County of Hampden, for the purpose of defrauding one Henry D. Bullard as hereinafter appears.</p> <p>“That the defendant Fuchs, with the defendant Quinn and the defendant Berman, acting together and in concert, for the purpose of defrauding said Bullard, aided and abetted the said Quinn in falsely pretending to act as the agent of the said Bullard in the sale of certain real estate owned and used by said Bullard as a farm in Oakham in the county of Worcester, and certain personal property used in connection with said farm, whereas in fact, the defendant Quinn was not an agent of the said Bullard but was acting with the defendant Berman and the defendant Fuchs for the purpose of defrauding said Bullard as aforesaid; that the defendant Fuchs falsely represented to the said Bullard that he desired to purchase in good faith a farm for his brother-in-law, Josef Schusler or Joseph Schisler in the city of New York; that said Josef Schusler or Joseph Schisler was a man of great wealth and a large manufacturer of ready made clothing, whereas in fact, said Schusler or Schisler was not a man of great wealth and was not a large manufacturer of ready made clothing, as the defendant Fuchs well knew, that the said Schusler or Schisler intended to come to Worcester to open a store and that he wanted a farm near Worcester as a summer home, whereas in fact, the said Schusler or Schisler did not intend to open a store in Worcester and did not desire said farm as a summer home as aforesaid; that all of said defendants, acting together and in concert as aforesaid, at said Qakham, examined said farm on or about December 19, 1912, and the defendant Fuchs made the false representations as aforesaid at that time; that the defendant Fuchs at that time and place claimed to be the attorney of the said Schusler or Schisler and to have a power of attorney to buy said farm amd personal property in his behalf; that tentative terms of sale, which subsequently became effective, were agreed upon as follows: The price of said farm and personal property to be fifteen thousand dollars ($15,000) and to be paid by a note of said Schusler or Schisler for one thousand dollars ($1,000), payable in ninety days after the date of the deed, bearing interest at six per cent per annum; a note for eleven thousand dollars ($11,000) with interest at six per cent per annum, secured by a mortgage upon said farm, payable in semi-annual instalments of two hundred and fifty dollars ($250), and payable on demand after five years, the mortgagor to have the right to anticipate payments; and a note for four thousand dollars ($4,000) to the said Bullard, payable on demand after four months, with interest at the rate of six per cent per annum, secured by a mortgage on certain real estate owned by said Schusler or Schisler in Holyoke, credit upon said last named note to be given in the sum of one thousand dollars ($1,000), upon the payment of the note for one thousand dollars ($1,000) hereinbefore described; all of said notes to be indorsed by the said Fuchs and one Mehlman; that, before said terms of sale were agreed upon, the defendant Fuchs falsely represented the property in said Holyoke to be worth, exclusive of all incumbrances thereon, at least twelve thousand dollars ($12,000), whereas in fact, said property was worth less than the incumbrances thereon, which the defendant Fuchs well knew; that the defendant Fuchs falsely represented that he and the said Mehlman were men of financial responsibility and owned real estate in said Springfield, whereas in fact the said Fuchs and Mehlman were not men of financial responsibility and did not own real estate in said Springfield, as the defendant Fuchs well knew; that the defendant Quinn framed an agreement substantially incorporating said terms of sale, which the said Bullard, and the said Fuchs, pretending to act for the said Schusler or Schisler, executed; that the following day at said Springfield, another agreement was framed by an attorney at law in lieu of the agreement prepared by the defendant Quinn, which the said Bullard, and the said Fuchs, pretending to act for the said Schusler or Schisler, executed; that the said agreement substantially included the terms of sale hereinbefore set' forth; that said Bullard executed and delivered to the said Schusler or Schisler a deed of said farm and a bill of sale of the personal property hereinbefore referred to,' and received in return therefor the notes and mortgages contemplated by said agreement; that the defendant Quinn, as a part of the conspiracy to which the defendants Berman and Fuchs were parties, thereupon agreed with said Bullard, that his commission for effecting said sale should be seven hundred dollars ($700); that subsequently said Bullard caused to be paid to the defendant Berman said sum of seven hundred dollars ($700); that the defendants Quinn and Berman, carrying out the object of said conspiracy, to which the said Fuchs was a party, to defraud the said Bullard, divided said seven hundred dollars ($700) between them; that all of said pretences were made by the defendant Fuchs and by those acting with him in a common purpose to defraud the said Bullard, knowing them to be false and with intent to defraud the said Bullard; that said Bullard believed said false pretences, and, acting upon such belief, performed the acts hereinbefore stated to have been performed by him.”</p> <p>At the close of the evidence the Commonwealth, against the defendants’ exception, was allowed to file a further amended bill of particulars, which contained, besides the foregoing allegations, the following:</p> <p>“That before said terms of sale were agreed upon, the defendant Quinn, as a part of the conspiracy to which the defendant Berman was a party, and the defendant Berman falsely represented the property in said Holyoke to be worth, exclusive of all incumbrances thereon, at least twelve thousand dollars ($12,000), whereas in fact said property was worth less than the incumbrances thereon, which the defendants Quinn and Berman well knew; that the defendant Quinn, as a party of the conspiracy to which the defendant Berman was a party, and the defendant Berman falsely represented that the said Fuchs and the said Mehlman were men of financial responsibility and owned real estate in said Springfield, whereas in fact, the said Fuchs and the said Mehlman were not men of financial responsibility and did not own real estate in said Springfield, as the defendants Berman and Quinn well knew;</p> <p>“That the defendant Berman, as a part of the conspiracy to which the defendants Fuchs and Quinn were parties, falsely represented to the said Bullard that Fuchs had received an offer of $42,000 for the property in said Holyoke in July, 1912; that the defendant Berman falsely represented to the said Bullard that the said property in Holyoke was worth $42,000; ' that the said pretences were made by the defendant Berman and by those acting with him in a common purpose to defraud the said Bullard, knowing them to be false and with intent to defraud the said Bullard; that said Bullard believed said false pretences, and acting upon such belief, performed the acts heretofore stated' to have been performed by him;</p> <p>“That the defendant Quinn, as a part of the conspiracy to which the defendants Fuchs and Berman were parties, falsely represented to the said Bullard that Fuchs had received an offer of $42,000 for the property in said Holyoke in July, 1912; that the defendant Quinn falsely represented to the said Bullard that the said property in Holyoke was worth $42,000; that said pretences were made by the defendant Quinn and by those acting with him in a common purpose to defraud the said Bullard, knowing them to be false and with intent to defraud the said Bullard; that said Bullard believed said false pretences, and acting upon such belief, performed the acts heretofore stated to have been performed by him;</p> <p>“That the defendant Fuchs, as a part of the conspiracy to which the defendants Quinn and Berman were parties, falsely represented to the said Bullard, that he, Fuchs, had received an offer of $42,000 for the property in said Holyoke in July, 1912; that the defendant Fuchs falsely represented to the said Bullard that the said property in Holyoke was worth $42,000; that said pretences were made by the defendant Fuchs and by those acting with him in a common purpose to defraud the said Bullard, knowing them to be false and with intent to defraud the said Bullard; that said Bullard believed said false pretences, and acting upon such belief, performed the acts heretofore stated to have been performed by him.”</p> <p>The defendants were tried before Aiken, C. J. Motions of the defendants to quash the indictment as more fully set forth in the bill of particulars were denied.</p> <p>Evidence was introduced at the trial tending to show that the defendants Quinn and Berman were paid a commission of $700 by Henry D. Bullard of Oakham for procuring the sale to one Joseph Schusler of the city of New York of certain property in Oakham belonging to Bullard, consisting of a farm, together with certain cattle and farm implements. Schusler, who did not appear in person in the transaction, was represented by the defendant Fuchs, but it was not contended by the Commonwealth that Fuchs received any part of the commission. The Commonwealth contended that certain criminally false representations were made by the defendants as set forth in the bill of particulars filed by the Commonwealth. Material portions of the evidence are described in the opinion.</p> <p>At the close of the evidence each of the defendants asked for twelve rulings, which were identical except as to the name of the defendant making the requests, and the defendant Fuchs asked for three additional rulings numbered thirteenth, fourteenth and fifteenth. The Chief Justice made the third, fourth, fifth, sixth, seventh, eighth, tenth, thirteenth and fifteenth rulings requested, or is held by the court substantially to have embodied them in his charge to the jury. The others were as follows:</p> <p>“1. Upon all the evidence the defendant . . . cannot be found guilty of the crime of larceny as charged in the indictment.</p> <p>“2. Upon all the evidence, the jury should find the defendant . . . not guilty of the crime charged in the indictment.”</p> <p>“9. If the jury find that the defendant . . . made or cooperated in representations as to Schusler being a man of wealth, such representations are as a matter of law matter of opinion and are not false representations within the meaning of the law.”</p> <p>“ 11. If Bullard, in paying the $700 to Berman and Quinn or to both or either of them, paid this money as a commission, earned by them as a result of the sale effected by them of his property, then this money was not obtained by them under false pretences.</p> <p>“12. If, as a result of the sale of Bullard’s farm by the defendants, Berman and Quinn, Bullard recognized a relation of debtor and creditor as between himself and Berman or Berman and Quinn and if he paid the $700 as an existing claim against him for a commission earned and said money was paid by him in settlement of said claim after the sale of his property had been actually effected and the deeds and bill of sale had passed, then this $700 was not obtained by false pretences within the meaning of the law and the defendant Berman is not guilty of the crime ■ charged in the indictment.”</p> <p>“ 14. The jury must find that at some time, the defendant Fuchs met the defendants Quinn and Berman and conceived the scheme to defraud.”</p> <p>The Chief Justice refused to make any of these rulings. The jury returned a verdict of guilty against all the defendants; and the defendants jointly alleged exceptions, including exceptions to the admissibility of certain evidence.</p> <p>The stipulation, referred to in the opinion, which was admitted in evidence against the defendants’ exception, was signed by the District Attorney and by counsel for each of the defendants and was as follows:</p> <p>“In the above entitled case, it is hereby agreed that three witnesses who live in New York City, in the State of New York, and who were well acquainted with Joseph Schusler, alias Joseph Schisler, in November and December, 1912, and in January, 1913, would testify for the Commonwealth as follows: (Subject to the ruling of the court on the competency of such evidence and defendants’ right of exception.)</p> <p>“1. That said Joseph Schusler was not at the times above mentioned, a man of wealth.</p> <p>“2. That the said Joseph Schusler was not at said times a manufacturer of clothing.</p> <p>“And it is hereby agreed that the said Joseph Schusler is the same Joseph Schusler who executed a power of attorney to Meyer Fuchs of Springfield, Massachusetts, and who acknowledged the same before William Bertisch, a Notary Public of New York City in the State of New York.”</p> <p>The illustration used by the Chief Justice in his charge, which is referred to in the opinion and to which an exception was taken, was as follows:</p> <p>“I am going to speak to you by way of illustration, in order to make clearer the aspect to which I am at present referring. The old illustration that was used years ago, not so applicable now as then, because of the change in the circumstances by the times, I will resort to.</p> <p>“In a trade for a horse, or in the selling of a horse, the seller might represent that it was sound and kind. That might be so stated as to be mere assertion of an opinion, used for the purpose of effecting a trade. It gave rise to no liability. The assertion that the animal was sound and kind might, on the other hand, be so stated that under such circumstances, particularly if the man had owned the horse for any length of time, as to import an assertion of fact, which the buyer could reasonably understand to be an assertion of fact, and if he took it, so interpreted it and bought the animal, then there would be responsibility for the assertion that the horse was sound and kind, when if it was a mere expression of opinion and ought to have been so understood there wouldn’t be liability.</p> <p>“So it is important to determine, if you make assertions in regard to Schusler’s financial ability and his character as a manufacturer, the basis of a verdict of guilty, — and the same considerations apply to Fuchs and Mehlman, — it is important that you determine, and it is vital that you determine, whether those expressions, if used, were intended to be taken as statements of fact or were intended to be taken as statements of opinion, and said under such circumstances and surroundings that Bullard ought to have understood that they were expressions of opinion.”</p> <p>The case was argued at the bar in September, 1915, before Rugg, C. J., Loring, Crosby, & Pierce, JJ., and afterwards was submitted on briefs to all the justices except Carroll, J.</p>

<p>Corporation, Subscription to shares of stock. Equity Jurisdiction, To enforce specific performance. Contract, Performance and breach.</p> <p>Where a corporation issues a certificate for shares of its capital stock which is accepted by one who has consented to become a stockholder, has participated in ■ its organization and has agreed to pay for his shares by a transfer of certain letters patent, no formal contract of subscription for the shares is necessary to enforce payment for them.</p> <p>Where one, who participated in the organization of a corporation and became one of its directors, agreed .to take nine hundred shares of its capital stock and to pay therefor by the transfer to the corporation of certain patent rights, and a certificate for the shares was issued to and accepted by him, he is not absolved from paying for such shares by an agreement, made between him and the corporation after its incorporation and after he had received his shares, to the effect that he should be paid by notes of the corporation a certain sum of money for the patent rights, an assignment of which should be deposited as an escrow with a certain bank, and that upon a default in the payment of any of the notes, the assignment should be redelivered to him; nor is his liability to pay for the shares affected by an agreement made among the individual subscribers for shares to the effect that the defendant should retain only three hundred and thirty-three of the shares.</p>

<p>Bill in equity, inserted in a common law writ in the Superior Court dated August 1, 1907, by the owner of two lots of land in the town of Mattapoisett, alleging the existence of a way passing in part over the land of the plaintiff and in part over the land of the defendant called Meade Street and leading northerly from the so called “Homestead Lot” of the plaintiff to a public highway called the Fairhaven road, and that the defendant erected fences and bars across this way and placed a building and other obstructions thereon; and praying that the defendant might be enjoined from obstructing the way and be ordered to pay the plaintiff damages for past obstructions.</p> <p>The case was referred to a master, whose material findings are stated in the opinion. The defendant, among other requests, in his thirty-fifth request asked the master to make the following finding: “35. That the contemplated Meade Street, referred to in the two deeds, was shown on a plan of the premises; that said plan was not introduced in evidence, nor was there any evidence of what the plan contained, or the location of Meade Street as shown upon the plan.”</p> <p>The master upon this request found as follows: “The defendant’s thirty-fifth request is refused in the form asked, but is allowed in the following form: That the deed to Eaton of the ‘Homestead Lot’ referred to a plan showing a so called Meade Street; that said plan was not introduced in evidence, nor was there any evidence of what the plan contained or the location of Meade Street as shown upon the plan. The plaintiff testified to having seen a plan, but there was no evidence to identify this as the plan referred to in the deed or as a plan of the premises in question.”</p> <p>The case was heard by Quinn, J., upon exceptions to the master’s report. The defendant’s fourteenth exception was founded on the refusal by the master of his thirty-fifth request. The judge made the following memorandum of decision: “I rule as a matter of law that the plaintiff is entitled, by deed, to a right of way from her ‘Homestead Lot,’ along the westerly boundary of the ‘Orchard Lot/ so called, thence over land of the defendant to the Fairhaven road, and recommit the case to the master to otherwise locate and define a reasonable and convenient way between said termini. In all other respects the master’s report is confirmed; defendant’s exceptions are overruled.”</p> <p>The master later filed a supplemental report, in which his finding, as subsequently amended in a detail, was as follows: “Upon all the evidence, and in conformity with the location directed in the order of reference, I find that a convenient and reasonable way, talcing into account the needs of the plaintiff, and considering also how such needs may be met with least detriment to the defendant, is a way the easterly line of which I describe as follows: Beginning at a point in the north line of the plaintiff’s ‘Homestead Lot/ thence north, eighty degrees west, to a stake at the southwest corner of the ‘Orchard Lot;’ thence in the same course along the west line of the ‘Orchard Lot’ and in the same line produced four hundred twenty and ¥100 (420.04) feet to a stake; thence north, thirty-five degrees twenty-eight minutes east, eighty-two and MAoo (82.11) feet to a stake; thence northerly in a line parallel with the east line of the Annie Dexter house lot to the Fairhaven road, the west line of said way to be parallel to said described east line and twenty (20) feet distant therefrom. I therefore locate said way as above described.”</p> <p>Thereafter the case was heard by Quinn, J., upon the defendant’s exceptions to the master’s supplemental report. The judge made a final decree overruling such exceptions, ordering that the plaintiff was “entitled to a right of way by deed from her land designated as the ‘Homestead Lot’ and the ‘Orchard Lot’ to the Fairhaven road over the” locus described in the master’s supplemental report, ordering the defendant to remove all obstructions from such right of way and enjoining him from obstructing or interfering with it, and that the defendant pay to the plaintiff $66.79 as costs.</p> <p>The defendant appealed.</p>

<p>Two actions of contract, the first count of the declaration in the first action alleging that the plaintiff, a corporation engaged in the business of a contracting builder, entered upon the performance of a contract in writing with the defendants for the construction of a concrete grand stand, described in the opinion; that at a certain point in the construction a concrete slab broke because of defects in the design, plans and specifications of the defendants’ engineer and without any fault on the part of the plaintiff; that thereupon the plaintiff refused to perform the contract further unless the defendants furnished a new and proper design, plans and specifications and unless a reasonable allowance was made to it for the additional cost entailed under the circumstances; that the defendants refused to comply with the plaintiff’s conditions, that the plaintiff ceased work, and that there was due to it at the time of its cessation of work the sum of $737. A second count of the declaration in the first action declared for work, labor and materials performed and furnished, and a third count was for money had and received by the defendants to the plaintiff’s use. The second action was by the defendants in the first action against the plaintiff therein to recover for its failure to carry out the contract above described. Writs dated respectively March 23 and May 28, 1912.</p> <p>The entire contract, except the date and the signatures, was as follows:</p> <p>“Contract between N. J. Magnan Co. of the first part and a committee composed as follows: R. J. Fuller, E. N. Babcock, J. L. Thompson, W. T. McBride and Joseph Irvine of the second part.</p> <p>“ N. J. Magnan proposes to supply the material and do the construction of a grand stand on Columbia Field [in North Attleborough] in accordance with the plans and specifications drawn up and submitted by Engineer, J. E. Judson.</p> <p>“N. J. Magnan Co. agrees to do this work for the sum of $1,530.00, payments to be made as follows:</p> <p>“ (1.) $500.00 when the forms are erected.</p> <p>“ (2.) $500.00 when the roof has been erected.</p> <p>“ (3.) The balance $530.00 September first, 1911.</p> <p>“ (4.) If cash is in hand this last payment may be partially anticipated.”</p> <p>In the Superior Court the cases were tried together before McLaughlin, J. The material evidence and the contentions of the parties are described in the opinion. At the close of the evidence, the amount of damages in the second action having been agreed upon, the judge ordered a verdict for the defendants in the first action and a verdict in the sum of $500 for the plaintiff in the second action. The N. J. Magnan Company alleged exceptions, including the exceptions relating to the admission of evidence which are described in the opinion.</p>

<p>Contract, the declaration alleging that the plaintiff on October 15, 1913, shipped a car load of onions from South Deerfield consigned to itself at Hartford, Connecticut, with instructions to the carrier to notify one Schwartz at JHartford; that the car arrived at Hartford on October 16; that the defendant failed to notify the plaintiff of the failure of Schwartz to accept the car load of onions, and that through its negligence the onions were badly damaged. Writ dated April 18, 1914.</p> <p>In the Superior Court the case was tried before Aiken, C. J. There was evidence that on October 15, 1913, the plaintiff delivered a car load of onions to the defendant consigned to itself at Hartford, with directions to notify one Schwartz, that the plaintiff attached the bill of lading to a sight draft on Schwartz and sent them to a Hartford bank, that the goods arrived at Hartford on October 16, that the defendant notified Schwartz, that Schwartz did not call to claim the goods, that the defendant did not notify the plaintiff of Schwartz's failure to do so until October 29, when thé plaintiff made inquiries by telegram, and that in the meantime the onions had greatly depreciated in value due to sprouting and decaying.</p> <p>Other material facts are stated in the opinion.</p> <p>At the close of the evidence, the defendant asked for a ruling that upon all the evidence in the case the verdict should be for the defendant, and for the following rulings:</p> <p>“ 1. The defendant fulfilled its whole duty when Jacob Schwartz was seasonably notified of the fáct that the car of onions in question had arrived.</p> <p>“2. There was no obligation on the defendant railroad to notify the consignor, who was also the consignee, until the railroad had noticed that there was a refusal to unload the car and that some person authorized to accept delivery had refused so to do.</p> <p>“3. The plaintiff does not declare on any legal duty of the defendant railroad to notify the consignor when there is any delay in unloading a car. There is no evidence of any rule or custom which required this defendant to notify the plaintiff, unless and until they were notified of some refusal to accept.”</p> <p>The Chief Justice refused to rule as requested, there was a verdict for the plaintiff in the sum of $165.37; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Dependency. Words, “Next of kin.”</p> <p>In the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part V, § 2, that “‘Dependents’ shall mean members of the employee’s family or next of kin who were wholly or partly dependent upon the earnings of the employee for support at the time of the injury,” the words “next of kin” mean those nearest in degree by consanguinity, and, where the father of a deceased employee is living, although not dependent upon him for support, a brother of the employee, although he was partly dependent upon his earnings for support, cannot receive compensation as a dependent under the act.</p>

<p>Certiorari. Supreme Judicial Court. Practice, Civil, Memorandum of decision. Licensing Board. Words, “Appeal,” “Review.”</p> <p>The appropriate function of the writ of certiorari is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open; and R. L. c. 156, § 3, gives the Supreme Judicial Court “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided.”</p> <p>The provision of R. L. c. 100, § 4, as amended by St. 1912, c. 389, that there shall be no appeal from the decision of a judge of the Superior Court, upon a review of the charges made by the mayor of a city in removing a member of the licensing board of the city, affirming or revoking the order of the mayor removing such commissioner, does not take away the right of a removed license commissioner to maintain a petition for a writ of certiorari to correct errors of law alleged to be apparent on the record of the Superior Court in such proceeding.</p> <p>On a petition for a writ of certiorari to review a decision of a judge of the Superior Court under R. L. c. 100, § 4, as amended by St. 1912, c. 389, affirming an order of a mayor of a city removing a member of the licensing board of the city, where a paper entitled a “Memorandum ” was filed by the judge stating the legal principles adopted by him for his own guidance and his findings of fact, a copy of which is included in the respondents’ return to the petition, the rulings of law made by the judge as thus set forth are a part of the record and are to be considered upon the question of granting the writ.</p> <p>A writ of certiorari will be granted in the sound discretion of the court only to correct errors of substance where it is apparent that manifest injustice has been done in relation to a substantial right of the petitioner.</p> <p>Upon the hearing by a judge of the Superior Court under R. L. c. 100, § 4, as amended by St. 1912, c. 389, of an application for “a review of the charges” made by the mayor of a city against a member of the licensing board of the city in ordering his removal, the judge adopted for his guidance the following rule, which it appeared was the rule universally adopted in such cases by the judges of that court: “The court must, therefore, consider the questions here involved, bearing in mind that the finding of the mayor as to facts must stand if supported by reasonable evidence, and that it is not sufficient to overthrow such finding that the court might feel that a consideration of the evidence uncontrolled by the finding might lead to a different result.” Held, that the proceeding in the Superior Court was made by the statute a review and not an appeal, and that in such a proceeding the rule, that the finding of the mayor as to facts must stand if supported by reasonable evidence, was correct.</p> <p>On a petition for a writ of certiorari to review a decision of a judge of the Superior Court under R. L. c. 100, § 4, as amended by St. -1912, c. 389, affirming an order of a mayor of a city removing a member of the licensing board of the city, where it appears that on a charge against the removed commissioner, which was upheld by the judge, a further specification ought to have been given before the hearing by the mayor, but this omission was made immaterial by the fact that full opportunity was afforded to meet the charge after the evidence in support of it had been heard, there was held to be no occasion to quash the proceedings for this reason.</p> <p>In the same case it was said, that such a hearing before a mayor need not be conducted according to procedure in the courts if substantial justice is done.</p>

<p>Corporation, De facto directors. Abatement. Rules of Court.</p> <p>Persons assuming to act as the directors of a corporation, who represent a minority of the stockholders and never legally were elected directors, although they might be treated as de facto directors in transactions with third persons, have no authority to authorize counsel to bring a suit in the name of the corporation, which is without business or assets, in a factional controversy between rival boards of directors, mainly for the purpose of affecting the property rights of the majority of the stockholders or of imposing a liability upon them; and in such ja suit a plea in abatement alleging that the suit was brought in the name of the corporation without authority will be sustained.</p> <p>Rule 3 of the Superior Court, providing that the declaration of an attorney that he has been authorized to appear for any party, when his authority is demanded,, shall be evidence of such authority, does not prevent the proof of an allegation made in a plea in abatement that the suit in which the plea was filed was brought in the name of the plaintiff without authority to do so.</p>

<p>Landlord and Tenant, Agreement as to repairs. Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>Evidence, tending to show that, “at the time of hiring” a house as a dwelling but previous to the execution and delivery of a lease which contained no agreement by the lessor to make necessary repairs, the lessor orally agreed with the lessee that he “would keep the house in repair, and that the house would be repaired and would be kept absolutely safe during” the lessee’s “ occupancy,” is inadmissible in an action of tort by an employee of the lessee against the lessor for personal injuries caused by a defective condition of the premises, because such evidence tends to modify or control the provisions of the lease.</p> <p>An agreement by the lessor of a dwelling house to make necessary interior repairs on the premises includes by implication the condition that he is to do so only upon reasonable notice of the need of repair; and in an action of tort by an employee of the lessee against the landlord to recover for personal injuries caused by a defective condition of a stairway mere proof of a defect in such a stairway, which was not obvious and had not been observed by any one before the injury, is not evidence of negligence on the part of the landlord.</p>

<p>Negligence, Causing death. Agency, Existence of relation. Evidence, Opinion.</p> <p>In an action by an administrator under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for negligently causing the death of the plaintiff’s intestate when she was not in the defendant’s “employment or service,” there was evidence that the plaintiff’s intestate was in the general employ of the defendant and worked on the tenth floor of its building, that at about one o’clock, her usual lunch hour, she put on her street clothes and entered the elevator to go to the ninth floor for the purpose of delivering a Christmas present to another employee, that, while she was in the act of getting off at that floor, the elevator boy in the defendant’s employ negligently started the elevator and caused the injuries that resulted in her death. Held, that the jury were warranted in finding that at the time of the accident the plaintiff’s intestate was not in the “employment or service” of the defendant within the meaning of the statute.</p> <p>In the same case it was held that the presiding judge committed no error in permitting a witness to answer the question, “In your opinion did the deceased speak loud enough when she said, ‘Let me off at the ninth floor, please,’ for the operator of the car to hear her? ” the question, in spite of its first three words, not calling merely for the opinion of the witness but for the result of his observation based on collective facts difficult to describe in detail as they appeared to the witness.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The appeal was heard by Wait, J., who made a decree as follows:</p> <p>“It appearing that the decision of the said board is that Florence M. Newman, widow of the deceased employee, was living apart from him for justifiable cause at the time of his injury and death due to his failure to provide a suitable home for her and her children, and further that the claimant’s widow who was living apart from the deceased employee for justifiable cause is conclusively presumed to be dependent on his support and is entitled to weekly compensation for a period of four hundred weeks from October 31, 1914, the date of the injury:</p> <p>“It is ordered, adjudged and decreed that the New England Casualty Company, the insurer, pay to the said Florence M. Newman a weekly compensation of $10 a week for a period of four hundred weeks from October 31, 1914.”</p> <p>, The insurer appealed.</p> <p>St. 1911, c. 751, Part II, § 7 (a), as- amended by St. 1914, c. 708, § 3, is as follows:</p> <p>“Section 7. The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:</p> <p>(a) A wife upon a husband with whom she lives at the time of his death, or from whom, at the time of his death, the Industrial Accident Board shall find the wife was living apart for justifiable cause or because he had deserted her. The findings of' the .board upon the questions of such justifiable cause and desertion shall be final.”</p>

<p>Water Supply. Eminent Domain. Damages, For property taken or impaired under statutory authority. Evidence, Materiality.</p> <p>In taking for the water supply of a town the water of a great pond as artificially raised by a certain dam and the land under the water, where for the purposes named in the statute under which the taking is made a fee in the artificially flooded land under the water is not required and the act does not authorize expressly the taking of a fee, only an easement in such land is acquired by the town by the taking, but such easement to keep and use the water over the land is an exclusive easement and the whole beneficial use of the land in effect is taken.</p> <p>In the present case, upon a petition for the assessment of damages for such a taking, an exception was sustained to the refusal of the presiding judge to rule that the town by the taking of the petitioner’s land under the water took the right to its exclusive possession and that for this the petitioner was entitled to compensation.</p> <p>The meaning and sctipe of a taking in writing of land under statutory authority, so far as it affects private rights of property, is a question of law to be decided by a court and not one of fact to be passed upon by a jury.</p> <p>In the case stated above, it was held, that evidence introduced by the respondent and admitted by the judge against the petitioner’s exception, consisting of a diagram showing a record based upon the actual observations of the witness, an engineer, of the height of the water in the pond since the taking by the respondent, was immaterial, having no bearing upon the real issue between the parties, the date as of which the damages must be assessed being fixed by the statute under which the taking was made.</p>

<p>Constitutional Law. Municipal Corporations. Cambridge. Commissioner of Public Safety. Mandamus. Words, “Officers.”</p> <p>St. 1915, c. 267, entitled “An Act to simplify the revision of city charters,” which establishes four plans for the government of cities and provides that any city, except Boston, may adopt any one of the four plans at an election held in the manner prescribed by the statute without further legislative intervention, is constitutional.</p> <p>The commissioner of public safety of the city of Cambridge who was appointed under St. 1912, c. 611, cannot since the adoption by that city of Plan B of St. 1915, c. 267, be removed by the mayor under § 2 of the first named statute, which no longer is in force in this regard, and only can be removed in the manner provided by St. 1915, c. 267, Part III, § 6, for the removal of such an officer, that is, by the mayor with the approval of a majority of the members of the city council.</p> <p>The provision contained in St. 1915, c. 267, Part I, § 5, that “Until superseded under the provisions of this act, the organization of the executive and administrative departments, and the powers and duties of the officers and employees of any city adopting any of the plans provided for in this act, and the fiscal year of such city shall remain as constituted at the time of the adoption of such plan,” does not mean that the definite and general provision as to removals from office under Plan B contained in Part III, § 6, of the same statute shall remain inoperative either indefinitely or until the terms of office of all those subject to the power of removal shall have been terminated in one of the ways existent at the time of their appointment.</p> <p>In the provision contained in St. 1915, c. 267, Part I, § 11, that “If a majority of the total number of votes cast at a regular State election for and against the adoption of one of the plans of government provided for in this act shall be in favor of its adoption, the provisions of this act, so fail as applicable to the form of government under the plan adopted by the city, shall supersede the provisions of its charter and of the general and special laws relating thereto and inconsistent herewith, but not, however, until officers provided for under such plan shall have been duly elected and their terms of office shall have begun,” the word “officers” refers only to elective officers, and does not include the commissioner of public safety of the city of Cambridge appointed under St. 1912, c. 611, who, since the adoption by that city of Plan B, by the provision quoted is made subject to removal in the manner provided in the superseding statute.</p> <p>A petition for a writ of mandamus is a proper remedy for the commissioner of public safety of the city of Cambridge appointed under St. 1912, c. 611, as the head of the police and fire departments of the city consolidated by that statute, seeking an order to the mayor of that city commanding him to desist from removing the petitioner from office without the approval of a majority of the members of the city council.</p>

<p>Practice, Civil, Costs.</p> <p>Under R. L. c. 203, § 10, which is in substance the same as Rev. Sts. c. 121, § 16, where a plaintiff has prevailed on certain counts in an action and not on others, he is not entitled to have taxed as costs expenses incurred for evidence on the counts on which the jury found for the defendant unless such evidence was used on the trial of the counts on which the plaintiff had a verdict, and the defendant is entitled to have taxed as costs certain expenses incurred for evidence procured for the trial of the counts upon which the verdict was in his favor, provided such evidence was not used on the trial of the counts upon which the plaintiff prevailed. Following in substance Totem v. Adams, 2 Cush. 180.</p>

<p>Negligence, Causing death, Street railway. Survival of Actions. Abatement. ■ Evidence, Opinion: experts, Of speed, Materiality. Witness.</p> <p>An action by an administrator against a street railway corporation under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1, for negligently causing the death of the plaintiff’s intestate, an unmarried man whose father was his only next of kin when the action was brought, does not abate upon the death of the father of the intestate, who had under the statute a vested interest in the penalty imposed for culpability in causing the death of his son.</p> <p>In an action against a street railway corporation for negligently causing the death of the plaintiff’s intestate, where the plaintiff has called witnesses, who are not experts, to testify as to the rate of speed at which the car that ran down the intestate was moving, the defendant has no right, as it would have if the witnesses were offered as experts, to make a preliminary examination as to their experience and qualification to estimate in miles the speed of the car before they are permitted to testify.</p> <p>In such a case the evidence of the unskilled witnesses as to the speed of the car is admissible subject to the defendant’s right of cross-examination.</p> <p>In an action against a street railway corporation for causing the death of the plaintiff’s intestate when he was driving a horse attached to a wagon, where there is no evidence tending to show fright or any unusual conduct on the part of the horse immediately before the accident, evidence of the horse’s previous habits on other days and at other places is immaterial and, if admitted by the presiding judge de bene, he properly may order that it be stricken from the record.</p> <p>In an action against a street railway corporation for negligently causing the death of the plaintiff’s intestate when he was driving a horse attached to a wagon, there was evidence that immediately before the accident the motorman operating the defendant’s car was tinning his head away from the side on which the plaintiff was approaching a crossing and was “ smiling at a lady in the car and had been doing this,” that no bell was rung and no signal was given and that the brakes were not applied, that the crossing was one where the view of an approaching traveller was much obstructed, that the car was running at the rate of thirty-five or forty miles an hour before and at the time of the collision, and that after it struck the wagon of the intestate it ran six hundred feet before it stopped. Held, that the question of the defendant's negligence was for the jury.</p> <p>In the same case there also was evidence that the view of the plaintiff’s intestate was obstructed by a high bank on the side from which the car came, that he drove his horse no faster than a man’s walk, that, when he reached a point where the horse’s head was ten or fifteen feet from the nearer rail, he stopped his horse from one half a minute to a minute, looked both ways and listened, heard no gong, bell or other signal, and then proceeded ahead at a walk toward and upon the track, when his wagon was struck about where he was sitting. Held, that the question of the intestate’s due care and diligence was for the jury.</p>

<p>Sales of Merchandise in Bulk. Conversion. Damages, In tort.</p> <p>If a retail grocer mortgages Ms stock in trade and fixtures, worth $100, to a creditor to whom he owes $200 and who does not record the mortgage, and then on the same day releases to the same creditor all Ms rights as mortgagor and owner and the creditor immediately takes possession of the goods “under a claim of ownership” and appoints the former owner Ms agent for purposes of sale, and if the notice to creditors required by the provisions of St. 1903, c. 415, § 1, is not given, the title to the stock in trade so transferred to the creditor is voidable by other creditors, because his taMng possession was not as a mortgagee under R. L. c. 198, § 1, and the effect of the transfer of the merchandise by the mortgage and the release was to defeat the purpose of St. 1903, c. 415, although the mortgage and release were not executed m bad faith with a purpose to circumvent the provisions of the statute.</p> <p>Consequently a deputy sheriff, who attached the merchandise, after the transfer above described, by virtue of a writ in an action at law by another creditor against the grocer and from whose possession it was taken by a constable in an action of replevin brought by the first creditor in which no bond was given and which never was entered in court, is entitled in an action for the conversion of the merchandise to recover its full value from the constable.</p>

<p>Way, Public: defects. Electricity.</p> <p>If a telephone pole, which stands at the edge nearer the street of a seven foot dirt sidewalk, has attached to it six feet and eight inches above the surface of the ground a guy wire which runs, taut and unbroken, parallel with and nearly directly above the edge of the sidewalk and is attached at the other end twenty-eight feet from the ground to another pole seventy-six feet distant which supports, among others, wires that transport electricity of a dangerous voltage supplied by a town to commercial customers, such guy wire, although the town negligently has permitted it to become charged from its wires with a current of electricity which kills a person standing upon the ground who, in raising his arm, accidentally touches it, is not a defect in or want of repair of a public way under R. L. c. 51, § 17.</p>

<p>Bill in equity, filed in the Superior Court on November 3,1914, alleging in substance that on the death of one Angelia C. Tewksbury, late of Lawrence, and, later, of her husband Robert H. Tewksbury, certain real estate owned by her descended to her two sons, the plaintiff and Robert L. Tewksbury, and, on the death intestate and without issue of Robert L. Tewksbury on September 17,1914, became the property of the plaintiff alone; that on October 30, 1902, Robert L. Tewksbury signed and acknowledged deeds of the two parcels of real estate in which the defendant was named as the grantee; that the deeds never were delivered to the defendant or to anyone for her, but that they remained in the possession of Robert L. Tewksbury at the time of his death; that the defendant nevertheless took possession of the deeds and unlawfully retained them and claimed an undivided one half interest in the real estate. The prayers of the bill were that the defendant be enjoined from recording the deeds, that they be declared null and void and that the defendant be required to deliver them to the plaintiff.</p> <p>In the Superior Court, a commissioner having been appointed to take the evidence, the case was heard by Carroll, J. The material facts found by the judge are stated in the opinion. A final decree was made in accordance with the prayers of the bill, and the defendant appealed.</p>

<p>Equity Pleading and Practice, Appeal, Report of facts by judge, Motion to recommit to master, Demurrer. Waiver.</p> <p>On an appeal by the plaintiff in a suit in equity from a decree dismissing the bill, the record appeared to be incomplete in that it was not expressly stated that certain exceptions to a master’s report were overruled, or that a motion to recommit the master’s report was denied; but, it being apparent that the record was prepared by the plaintiff personally, this court, in view of the nature of the final decree, assumed that the preliminary matters were disposed of adversely to the plaintiff.</p> <p>The provisions of R. L. c. 159, § 23, relating to a report, upon a request by a party appealing from a decree in a suit in equity, by “the justice by whom the decree was made,” of the “material facts found by him,” are not applicable where the case was heard by the judge only upon exceptions to the report of a master, the report was confirmed, and a decree was entered dismissing the bill.</p> <p>By the entry of a final decree in a suit in equity, the suit is finally disposed of by the court subject only to the statutory rights of appeal or to a writ of review; and motions to vacate the decree or to recommit the case to a master for further hearing cannot be granted.</p> <p>Failure by a defendant to oppose the reference of a suit in equity to a master operates as a. waiver of a demurrer-to the bill.</p> <p>On an appeal from a decree dismissing a bill in equity after a confirmation of a master’s report, where the evidence is not reported, exceptions to the master’s report which are mere arguments or are based on alleged facts not in the report must be overruled.</p>

<p>Trust, Construction, Termination. Devise and Legacy, “Heirs at law.” Equity Jurisdiction, Bill for instructions. Words, “Heirs at law and next of kin.”</p> <p>A codicil to a will provided that the payment of the income of a trust estate created for the benefit of the testator’s two brothers and their heirs should continue “only so long as there is a widow living of either of my said brothers, and as each widow shall die one half the principal of said trust estate together with any income that may remain, whether apportionable or not, shall go to and become the absolute property of the heirs at law and next of kin of such brother, in equal portions, share and share alike, the children of any deceased child taking by right of representation the parent’s share.” One of the brothers died leaving two children and a widow. Later, the widow died. Held, that by “heirs at law and next of kin” the testator had meant the children of the brother, and did not intend to include the widow as a statutory heir; that the childrens’ interest vested at the time of the death of the brother, and that each was entitled to one quarter of the trust estate.</p> <p>In further construction of the same codicil, it was held, that, by the "income that may remain” at the death of the widow, the testator meant her share of such income as had accumulated since the last periodical payment of income by the trustee, and that that share should be divided equally among that brother’s two children.</p> <p>It also was held that income which accrued after the widow’s death was to be divided as was the principal.</p> <p>By the provisions of the same will and codicil the one half interest of the children of the brother in such real estate as was included in the trust property vested in them without any formal conveyance by the trustee.</p> <p>On a bill in equity by a trustee under a will for instructions, instructions will not be given as to a detail in the administration of the trust regarding which there is no present controversy, nor in reply to a request that is too general to admit of a definite reply.</p>