Volume 223 — Massachusetts Reports

<p>Bill in equity, filed in the Superior Court on September 19, 1912, by the holder of a certificate for a burial lot in Saint Mary’s Catholic Cemetery in Needham against the pastor in charge of that cemetery, alleging that the body of the plaintiff’s mother without the plaintiff’s knowledge or consent had been exhumed from the cemetery lot and buried elsewhere by and under the direction of the defendant, and praying, among other things, that the defendant be ordered to allow the plaintiff to remove the body of his mother from its present place and, if the plaintiff so desired, to rebury it in the lot represented by the plaintiff’s certificate, that the defendant be ordered to pay to the plaintiff the reasonable expense of such removal and reburial, that the defendant be enjoined from interfering in the future with the remains interred by the plaintiff in the lot, for damages and costs and for further relief.</p> <p>The certificate, of which a copy was annexed to the bill, was dated November 26, 1902, and was signed by the defendant as pastor. The certificate contained, among other matters, the following:</p> <p>“This certifies, that for and in consideration of fifty dollars, paid by Henry G. Green of Lynn, Mass, the right is granted to him and the Roman Catholic members of his family to bury in Lot No. 223, Sec. A. in St. Mary’s Catholic Cemetery, Needham, Mass., subject always to the following regulations, or such others as may be from time to time prescribed in relation to burials in the said Cemetery, viz: —”</p> <p>“2. It is to be expressly understood that this Certificate is not a conveyance of real estate, nor does it confer any right to sell or transfer the Lot herein mentioned.”</p> <p>“7. No fence, wall or other enclosure shall be made around any lot or grave; no cross shall be built or set up without special permission from the Pastor; nor shall any monument or headstone be erected, or trees or shrubbery planted, unless such as are approved of by the Pastor; nor shall any alteration or improvement be made in any lot or grave unless in accordance with the plan of the Cemetery.”</p> <p>The defendant’s answer contained, among other matters, the following:</p> <p>"6. Further answering, the defendant says that at the time when he gave the plaintiff the certificate referred to in the bill, the defendant was engaged in clearing, grading and beautifying the said cemetery as a whole and fitting the same for use as a cemetery. The lot described in plaintiff’s certificate is in the best and most conspicuous part of the cemetery, and the plaintiff promised and agreed with the defendant as a part of the consideration to grade, clear and improve said lot and the certificate was received and held by the plaintiff upon the express condition that plaintiff would forthwith carry out his said agreement. The plaintiff took and held said certificate subject to such regulations as had then or might thereafter be made and prescribed in relation to burials in the said cemetery. One of said regulations was that lot owners must care for their lots and keep them in a condition of reasonable conformity to the other improved parts of said cemetery. Another of said regulations was as follows:</p> <p>"Should a lot be not paid for at the specified time, in case such a time extension is made, or within a year at the limit, the right is reserved to the pastor to transfer such body or bodies therein interred to the grave section of the cemetery and thereby release said lot for a new purchaser. The plaintiff never in any part performed his said promise to grade, clear and improve said lot, but left the same in the rough state in which it was and overgrown with unsightly bushes and weeds. The plaintiff wholly failed to conform to said regulations although notified by the defendant to do so, and that said rules would be enforced, on two occasions, except that plaintiff paid fifty dollars as the cash part of the consideration. After the plaintiff’s default hereinbefore set forth had continued for many years, the defendant, being unable to find the plaintiff or learn where he was, enforced the said regulations by the only means in his power; namely by removing the said body in a proper and careful manner to the grave section of said cemetery which is at all times properly cared for by the defendant. And the defendant has at all times been and now is ready and willing to account to the plaintiff for all of said fifty dollars over and above the value of said-single grave.”</p> <p>The case was heard by Hamilton, J., who made a memorandum of findings, including those that are stated in the opinion, and ordered that the bill be dismissed. From the decree entered in accordance with this order the plaintiff appealed. The entire evidence was reported by a commissioner appointed under Equity Rule 35.</p>

<p>Equity Pleading and Practice, Appeal. Words, “A party aggrieved.”</p> <p>Under R. L. c. 159, § 19, amended by St. 1911, c. 284, § 1, one of two defendants in a suit in equity cannot appeal from a final decree which as to him orders that the bill be dismissed, he not being “a party who is aggrieved” by such decree.</p> <p>Under R. L. c. 159, § 19, as amended by St. 1911, c. 284, § 1, a defendant in a suit in equity, as against whom a bill is dismissed by a decree that orders his co-defendant to pay a sum of money to the plaintiff, is not “a party who is aggrieved” by such decree, from which his co-defendant does not appeal, by reason of the fact that he may be affected by the decree because he is a joint obligor with his co-defendant on a bond dissolving an injunction in the same suit.</p>

<p>Contract, Validity. Jurisdiction.</p> <p>A provision, in an ordinary commercial contract in writing between a Massachusetts corporation and a Pennsylvania corporation, that the Massachusetts corporation shall not sue the Pennsylvania corporation except in the courts of Common Pleas in the State of Pennsylvania, is void and cannot be enforced to deprive the courts of this Commonwealth of jurisdiction. Following the rule in Nute v. Hamilton Mutual Ins. Co. 6 Gray, 174, and explaining Daley v. People’s Building, Loan & Saving Association, 178 Mass. 13, and Mittenthal v. Mascagni, 183 Mass. 19.</p>

<p>Negligence, Causing death: due care of decedent.</p> <p>In an action by an administrator against a gas company under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for negligently causing the death of the plaintiff’s intestate by permitting gas to enter the pipes in a tenement, into which the intestate and his wife had moved four days before, when the intestate had reason to believe that the gas was shut off from the tenement, it appeared that the body of the intestate was found seated in a-chair in his kitchen holding a gas fixture or chandelier which had been unscrewed from the gas pipe above, that on a table in front of the body were a rag and some cleaning material, that the body of the intestate’s wife was found lying on a bed in an adjoining room, that both the intestate and his wife had died from gas poisoning, and that the intestate last was seen alive entering his tenement five hours before his body was found. The presiding judge refused to rule that the plaintiff could not recover, and the jury returned a verdict for the plaintiff. On exceptions by the defendant, it was held, that, there being no circumstances from which it could be inferred that the intestate was actively in the exercise of due care as required by the statute, the exceptions must be sustained, and judgment was ordered for the defendant under St. 1909, c. 236.</p>

<p>Contract, Implied in law. Religious Society. Evidence, Matters of common knowledge. Practice, Civil, Judge's charge. Jury arid Jurors.</p> <p>Where a religious corporation, whose trustees voted to dispense with the services of its priest, thereafter for more than a year accepted such services which he continued to perform, it can be found to be liable to pay for the services.</p> <p>At the trial of an action against a religious corporation, calling itself Roman Catholic and seeking to be accepted by the Roman Catholic Church but not so accepted, to recover compensation for services performed as a priest after the trustees of the defendant had voted to dispense with his services, where there has been no evidence in regard to the polity or laws governing the Roman Catholic Church, it is error for the presiding judge in instructing the jury to say to them, “No doubt it would have been the duty under the polity of the Roman Catholic Church for him [the plaintiff] to stay there until his successor was brought there,” and to say further, “ So far as the matter of the church polity of the Catholic Church is concerned, you are to use it no further than you have a common knowledge of it. Whether according to that a priest is expected to stay there until he is discharged, not by the parish, not by the church, but by some authority higher than the church, is for you, and if you have not any common knowledge about it, why, you are not to use any knowledge about it.”</p> <p>The polity or mode of government of the Roman Catholic Church is not a matter of common knowledge.</p> <p>While a juror properly may apply his general knowledge and experience to the subject of inquiry and in determining the weight and credibility of the evidence, he is not permitted to act upon his private knowledge of particular facts which are not matters of common knowledge.</p>

<p>Witness, Impeachment. Evidence, Competency, Of criminal record. Practice, Criminal, Plea of nolo contendere.</p> <p>A record of a conviction following a plea of nolo contendere cannot be used in another proceeding to affect the credibility as a witness of the person so convicted.</p>

<p>Tort under St. 1906, c. 463, Part I, § 63, for causing the death of the plaintiff’s intestate, Conrad Youngerman, on February 24, 1912, the declaration as amended containing two counts, the first count alleging that the deceased was not in the employ of the defendant, while the second count contained an allegation that he was a passenger of the defendant. Writ dated June 5, 1913.</p> <p>In the Superior Court the case was tried before White, J. The material evidence is described in the opinion. At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Devise and Legacy, What estate. Tax, On legacies and successions.</p> <p>By the first article of his will, a testator gave to his wife the use of and income from all of his estate “for her support, comfort and enjoyment, and for any other purpose as she in her judgment may deem necessary,” and further provided that, if the income in her judgment should be insufficient for her support, comfort and enjoyment, “or for any other purpose for which she may wish to spend money,” she should have power to sell “ any of my estate, real, personal and mixed,” and to spend the proceeds arising from such sale for her support, comfort and enjoyment, and for any purpose for which she may wish to spend money, “ and to convey and transfer by deed or other instrument in her own name for the above named purpose or for investment.” By the next article of the will, the remainder undisposed of at the death of the widow was given to others. Held, that the estate received by the widow under the will was a life estate, and that an inheritance tax due to the Commonwealth should be computed accordingly.</p>

<p>Equity Pleading and Practice, Appeal. Practice, Civil, Appeal. Supreme Judicial Court.</p> <p>While there can be no appeal from a final decree or judgment entered substantially in accordance with a rescript of the full court of the Supreme Judicial Court and such an attempted appeal will be dismissed and the final decree or judgment will stand as if no appeal had been taken, if the form of the final decree or judgment ordered by the rescript is not embodied therein, examination of the subsequent record on appeal will be made in appropriate cases to ascertain whether it is in accordance with the rescript.</p> <p>A decree, entered after the rescript stating the decision reported in Boston, petitioner, 221 Mass. 468, and which among other things apportioned to the cities of Chelsea and Revere a certain proportion of the cost of maintenance of Chelsea Bridge, as a whole, was correct, it not being intended by the re-script that the apportionment should be only of the north draw of the bridge.</p> <p>Such decree also was correct in apportioning the cost of maintenance of the whole of the Meridian Street Bridge instead of limiting the apportionment to the ■ draw only of that bridge.</p> <p>The decision in Boston, petitioner, 221 Mass. 468, that St. 1911, c. 581, as amended by St. 1913, c. 341, is constitutional, was affirmed.</p> <p>The rescript which stated the decision reported in Boston, petitioner, 221 Mass. ’ 468, accurately expressed the judgment of the court.</p>

<p>Tort for personal injuries to the plaintiff’s right leg received on May 3,1913, when the plaintiff was employed by the defendant as a general farm hand, by reason of being thrown from the top of a load of cord wood in a wagon of the defendant that tipped over owing to an alleged defect in the wagon. Writ dated July 17, 1913.</p> <p>In the Superior Court the case was tried before Sanderson, J. The facts shown by the evidence are stated in the opinion. The jury took a view of the wagon.</p> <p>At the close of the arguments the judge stated that he had prepared certain questions which he would submit to the jury. The counsel for the plaintiff thereupon asked the judge to submit the case to the jury for a general verdict, which the judge refused to do.</p> <p>At the close of his charge the judge submitted to the jury seven questions, explaining the purpose of each. These questions, with the answers of the jury, were as follows:</p> <p>“ 1. Did any careless act of the plaintiff contribute as a cause to the tipping over of the load of wood?” The jury answered, “No.”</p> <p>“2. Did any careless act of Robert Frazell [the defendant’s foreman] cause the load of wood to tip over? ” The jury answered, “No.”</p> <p>"3. Was the king-pin a suitable and proper king-pin for the wagon on which the plaintiff was riding?” The jury answered, “Yes.”</p> <p>“4. Was the condition of the wagon in respect to the king-pin a defective or dangerous condition?” The jury answered, “Yes.”</p> <p>“5. Was the condition of the wagon, in respect to the kingpin, obvious to the plaintiff?” The jury answered, “No.”</p> <p>“ 6. Was the condition of the wagon in respect to the king-pin a cause of the accident?” The jury answered, “No.”</p> <p>“7. If the jury answer ‘Yes’ to question No. 6, — in what way the king-pin was the cause of the accident, — in what way was it the cause of the accident? If your answer to No. 6 was ‘No,’ you would have no occasion to answer No. 7.” The jury returned no answer to this question.</p> <p>Thereupon the judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Of bailee for hire. Bailment, Duty of bailee for hire. Subrogation. Practice, Civil, New trial. Evidence, Cross-examination to show bias. Witness, Cross-examination.</p> <p>In an action against a speedometer maker for damage to the plaintiff’s automobile caused by the defendant negligently permitting it to be stolen when it had been entrusted to him to have its speedometer repaired, there was evidence that the defendant occupied for his business the first floor of a building which he used as a store and office and a basement under it which he used as a repair shop and that this basement opened upon an alleyway back of the building, that speedometers attached to cars from day to day were repaired by the defendant in the alleyway, that the plaintiff left his car in the alleyway to have the speedometer repaired with the acquiescence of a man who ordinarily looked after the cars for the defendant and who agreed to have the plaintiff’s car ready for him when he returned, and that when the plaintiff returned he found that his car had been stolen. Later the automobile was found abandoned in a badly damaged condition. Held, that the plaintiff was entitled to go to the jury, as it could be found on the evidence that the defendant had accepted the custody of the car as a bailee for hire and was bound to exercise due care for its safety and protection.</p> <p>In the case stated above, it further appeared that an insurance company had paid to the plaintiff the amount of the loss he had sustained by reason of the theft of his car, and it was held, that the insurance company was subrogated to the rights of the plaintiff against the defendant and was entitled to maintain the action in the plaintiff’s name.</p> <p>In the same case a witness, who had seen the automobile after it had been recovered in its damaged condition, testified for the plaintiff that its value then was about $100. The defendant’s counsel on cross-examination asked this witness for whom he was working, and stated that he expected the answer to be that he was working for the insurance company for whose benefit the action was brought. He also asked the witness whether he was acting for the insurance agents representing that insurance company, and stated that he expected an answer in the affirmative. The judge excluded the questions. Held, that the questions were competent as calling for evidence tending to show bias on the part of the witness, and that exceptions to their exclusion must be sustained.</p> <p>In the same case this court, in sustaining exceptions relating only to the question of the amount of damages and finding no error in the trial of the issues relating to the defendant’s liability, ordered that the new trial should be limited to the issue of damages.</p>

<p>Partnership. Corporation. Equity Jurisdiction, Accounting between partners.</p> <p>The relations of partners as between themselves are not changed by the adoption of the instrumentality and name of a corporation in carrying on their business.</p> <p>It is the duty of a partner to disclose to his copartner any bargains affecting their joint interest entered into by him with third "parties for his own benefit and all matters of business within the scope of the partnership agreement of which his copartner is ignorant and has not the means of information.</p> <p>Where upon a settlement between two partners, one a business man who had had “charge of the business management” and the-other a lawyer who had agreed to “manage the legal end of the enterprise and advise with” his partner, “both parties working without remuneration” and having agreed to “share equally in all respects, both as to ownership, profits and expenses,” the lawyer partner had “purposely refrained” from bringing to the business partner’s attention certain charges for legal services which he had been paid, and also had failed to inform his partner of his acquisition of certain additional shares in a corporation that they had formed for carrying on the partnership business that he had acquired without his partner’s knowledge and on which he had received dividends, it was held, that the business partner, who first received information in regard to these matters four years after the settlement, might maintain a bill in equity against the lawyer partner for an accounting.</p> <p>In the suit in equity named above, where it appeared that, owing to the settlement having been fully executed and the subsequent lapse of time, the parties could not be restored to the position they were in when the settlement was made, it was held, that the defendant was chargeable in a partnership accounting on the basis of the agreement of equality as of the date of the settlement both for the payments made to him for legal services and for the value of the additional shares of stock secretly acquired by him.</p>

<p>Negligence, Of one controlling real estate.</p> <p>A woman real estate agent, who, in attempting to show to a prospective tenant, with the permission of the owner, the cellar of a house that she never has entered before, opens the door to the cellar and notices that it is not very light there and sees the stairs which- look to her broader than they are, and, without waiting to know more, starts to go down the stairs and, stepping by the side of the first step beyond the edge of it, is “pitched head first right down into the cellar,” has suffered injury by reason of her own carelessness and cannot maintain an action against the owner of the building, who was under no obligation to warn her of the obvious danger of descending an unfamiliar flight of stairs, so dimly lighted that the width of the treads could not be seen plainly, without taking any precaution to ascertain the safety of her footing.</p>

<p> Workmen’s Compensation Act. </p> <p>If a compositor in the employ of a newspaper corporation, who works at night on the sixth floor of his employer’s building in a room that is ill-ventilated and is very hot in summer, on a hot summer night, following a practice that prevails among the compositors working in the room, in order to get away from the heat and get into the fresh air descends a fire escape stairway to the roof of an adjoining building belonging to his employer and falls off a part of the roof twenty-three feet away from the stairway where there is no railing, and is killed, his death can be found to have resulted from an injury that arose out of and in the course of his employment within the meaning of St. 1911, c. 751, Part II, §§ 1, 6.</p> <p>In the case stated above there was no direct evidence of suicide or that the deceased workman was under the influence of liquor. It appeared that when he left home to go to work that night he told his wife that he would be at home at two o’clock the next morning, that he was of a cheerful disposition and apparently in good health, contented and happy, that he had made an appointment to go the next day with a fellow workman to visit a certain place of interest and had made arrangements to attend an evening recital to be given by his sister, that he last was seen alive at about eleven o’clock at night and that his dead body was found the next morning at a quarter before four o’clock upon the ground six stories below the floor on which he worked and under the part of the roof that had no railing. Held, that a finding was warranted that the employee did not commit suicide, that he was not under the influence of liquor and that his death was accidental.</p> <p>In the case stated above it appeared that one of the rules of the employer, which was posted on the premises, was as follows: “No employee shall leave the composing room during working hours, except on office business, without permission of the man in charge,” but it was found by the Industrial Accident Board that there was an established custom among the employees, which was known to the employer, to go upon the roof for the purpose of obtaining fresh air, and that going upon the roof was an incident of the employment of the deceased employee. Held, that the board were warranted in finding that the rule was not in force at the time of the accident, and also that the act of the deceased in going on the roof on a hot night was incidental to his employment.</p>

<p> Non-support. Husband and Wife. Judgment. </p> <p>It is no defence to a complaint under St. 1911, c. 456, § 1, for refusing to provide for the support and maintenance of the complainant as the defendant’s wife, that the defendant was induced to marry the complainant by her false representations that she was chaste.</p> <p>A decree dismissing a libel by a husband under R. L. c. 151, § 11, for annulling his marriage establishes the status of husband and wife and cannot be attacked collaterally by the husband in his attempted defence to a complaint against him under St. 1911, c. 456, § 1, for refusing to provide for the support of his wife.</p>

<p>Tort for personal injuries sustained by the overturning of the defendant’s automobile in which the plaintiff was being transported under the circumstances stated in the opinion on August 15, 1912, on a road called Mill Circle in the town of Winchendon. Writ dated March 1, 1913.</p> <p>In the Superior Court the case was tried before Hall, J., who at the close of the evidence, which is described in the opinion, ordered a verdict for the defendant, and at the request of the parties reported the case for determination by this court. If the ruling of the judge was correct, judgment was to be entered for the defendant on the verdict; otherwise, judgment was to be entered for the plaintiff in the sum of $1,600.</p>

<p>Way, Public: laying out. Damages, Indemnity for loss and expense due to abandoned taking. Practice, Civil, Costs.</p> <p>Under the provision of the highway act, contained in R. L. c. 48, § 13, that "if no entry is made upon the land [for the purpose of laying out a highway] or if the location has for any other cause become void, a person who has suffered loss or been put to expense by the proceedings shall be indemnified therefor by the commissioners," one, who opposed before the county commissioners the granting of a petition to lay out a highway across his land, and, after the petition was granted by the county commissioners, filed and successfully maintained a petition for a writ of certiorari to quash the order for the laying out, is not entitled to be indemnified for counsel fees and other expenses and for loss of time incurred in relation to these matters.</p>

<p>Two actions of tort, each by a tenant in a tenement house owned and controlled by the defendant in Eagan’s Court back of Spring Street in Fall River, for damage to and loss of property by reason of a fire alleged to have been caused by the defendant’s negligence on February 12, 1912. Writs in the Second District Court of Bristol dated February 15, 1912.</p> <p>On appeal to the Superior Court the cases were tried together before Hall, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to rule that upon all the evidence the plaintiffs could not recover. The judge refused to make this ruling, and submitted the cases to the jury, who returned a verdict for the plaintiff Franco in the sum of $300 and a verdict for the plaintiff Mercede in the sum of $75.</p>

<p>Municipal Corporations, Officers and agents. Public Officers. Equity Jurisdiction, To restrain a city from causing water to overflow from a highway on land of the plaintiff.</p> <p>One whose land is damaged by water overflowing upon it from a highway in a city by reason of the arrangements made by the surveyor of highways of the city for the disposal of surface water at a street junction adjoining the land, cannot maintain a suit in equity against the city for an injunction or for damages.</p> <p>The surveyor of highways of a city, who also is its superintendent of streets, in constructing a system of underground drains and catch basins for the purpose of disposing of surface water collecting upon the streets of the city in order to keep such streets reasonably safe and convenient for travel, is a public officer discharging a public duty and is not the agent of the city. Following Smith v. Gloucester, 201 Mass. 329.</p>

<p>Negligence, Street railway. Evidence, Matters of common knowledge. Words, “Fast.”</p> <p>Where a boy about fifteen years of age in crossing a street on his way to a store was on the top of a bank of earth, fourteen inches high and about two feet distant from the nearer rail of a street railway track, that had been dug from a trench by the side of the track, and where the forward part of a car on the track, going “fast” but not at an undue rate of speed for such a place, passed the boy, when his foot slipped on the loose earth and he came in contact with the middle of the side of the car and was injured, it was held, that there was no evidence of negligence on the part of the motorman operating the car, whether he saw the boy or not; because, if he saw him, he saw him standing upon the bank apparently in a place of safety.</p> <p>Evidence that a street railway car was going “fast” without any other indication of its rate of speed and without regard to the conditions existing at the time is too uncertain and indefinite to warrant a finding of negligent or improper operation.</p> <p>The fact that a street railway car, in passing a boy who was standing on a bank of earth, created a current of air is not evidence of an undue rate of speed.</p> <p>It is a matter of common knowledge that street railway cars cannot be run at any considerable rate of speed without. creating a current of air.</p>

<p>Contract, Performance and breach. Stockbroker. Bankruptcy, Rights of trustee.</p> <p>Where a stockbroker upon the order of a customer buys certain shares of stock for which he pays and receives the certificates indorsed in blank by their former holders, and keeps the certificates in his office intending to hold them subject to directions from his customer and to deliver the identical certificates to him upon payment of the amount due for them, but does not tender the certificates to his customer and demand payment, and, the broker having been adjudicated a bankrupt, his trustee in bankruptcy, about nine months after the purchase of the stocks and eight months after the trustee’s appointment, tenders the certificates to the broker’s customer, and, on payment being refused, sells the stocks on the market at a loss and sues the broker’s customer for the difference between the cost of the stocks to the broker and their selling price, he is not entitled to recover; because the title to the stocks remained in the broker and passed to the trustee and no tender of the stocks was made by the broker, and, if the trustee had a right to affirm the contract, he lost it by failing to make a tender of the certificates within a reasonable time.</p>

<p>Harbor of Boston, Regulations of harbor master. Harbor Master.</p> <p>A regulation made by the harbor master of the harbor of Boston, that sailing vessels shall anchor in á part of a designated area off Bird Island flats that is not “reserved for steamers, exclusively,” means that a vessel must anchor so that at all times it will lie wholly within the area designated for vessels of that class, and so construed the regulation is a reasonable one and therefore valid.</p>

<p>Tax, On legacies and successions. Jurisdiction. Conflict of Laws. Words, "Legally subject.”</p> <p>Under St. 1909, c. 490, Part IV, § 3, as amended by St. 1911, c. 502, § 1, and St. 1912, c. 678, § 2, providing in substance that property of a resident of this Commonwealth which is not therein at the time of his death shall not be subject to a legacy tax if “legally subject” in another State or country to a tax of like character and amount to that here imposed, and that, if it is "legally subject” in such other State or country to a tax of like character but less in amount than that here imposed, which shall be actually paid or secured, it shall be taxable here only for the difference, it is for the courts of this Commonwealth to determine whether such property is "legally subject” to such a tax in another State or country.</p> <p>By the foregoing provisions, the Legislature intended to surrender the power of this Commonwealth to impose a succession tax upon property of a resident of this Commonwealth which is not therein at the time of his death only when a succession. tax has been levied by another State or country which it was within the jurisdictional power of such State or country to levy.</p> <p>Jurisdiction for the purpose of imposing a succession tax exists only when the exercise of some essential privilege incident to the transfer of the title depends for its legality upon the law of the State levying the tax.</p> <p>Where a resident of this Commonwealth at the time of his death owned shares of stock in a corporation incorporated in another State, such shares have a situs both in this Commonwealth, which is the owner’s domicil, and in such other State, which is the domicil of the corporation, sufficient to give jurisdictional power to both States to impose a succession tax.</p> <p>Where a resident of this Commonwealth at the time of his death owned shares of stock in a corporation incorporated in another State and owning property in a third State, such shares are not, under the provisions of St. 1909, c. 490, Part IV, § 3, as amended by St. 1911, c. 502, § 1, and St. 1912, c. 678, § 2, “legally subject” to a succession tax in the third State, because that State has no jurisdictional power to levy the tax; and, even if such a tax is levied and paid in such State, there should not be any deduction by reason of such payment from the tax here imposed upon the shares by the provisions of the statute.</p> <p>If a resident of this Commonwealth at the time of his death owns shares of capital stock in a railroad corporation incorporated in three other States in which it operates its railroad, each of such three other States has jurisdictional power to impose a succession tax upon the shares.</p> <p>In the absence of something to indicate inequality before the law, inevitable and general disproportion, or oppressiveness or discrimination, a succession tax imposed by another State within its jurisdictional powers upon shares of stock in a corporation there incorporated, is a tax to which the shares there are “legally subject,” and its amount cannot be questioned in the computation of the tax to be imposed . in this Commonwealth under the provisions of St. 1909, c. 490, Part IV, § 3, as amended by St. 1911, c. 502, § 1, and St. 1912, c. 678, § 2.</p> <p>In this case in imposing a succession tax upon shares of the capital stock of a railroad corporation incorporated in Michigan, Illinois and Wisconsin, which were owned by a decedent domiciled in Massachusetts at the time of his death, a Probate Court of the State of Michigan computed the tax as though the corporation were incorporated solely in Michigan. The amount of the tax was paid without the matter being adjudicated in any higher court, and this court held that, the State of Michigan having jurisdiction to impose a succession tax and it not appearing that the tax was oppressive, irrational or disproportional in law, its amount was not open to question, and therefore it was a succession tax to which the shares were “ legally subject” in Michigan and, it having been paid, its amount should be considered in computing the succession tax due in this Commonwealth under St. 1909, c. 490, Part IV, § 3, as amended by St. 1911, c. 502, § 1, and St. 1912, c. 678, § 2.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 15, 1912, by Francis D. and Henry F. Corkery against Mary Louise Dorsey, formerly Fay, and Cornelius O’Callaghan, seeking to compel the defendant Dorsey to repay to the defendant O’Callaghan a sum of money, formerly held in trust by O’Callaghan under a trust deed to which the plaintiffs and the defendants had assented in writing, and paid by the defendant O’Callaghan to the defendant Dorsey in alleged violation of the provisions of the trust instrument.</p> <p>The first clause of the trust instrument is quoted in the opinion. The second clause provided in substance that if Mary Louise Fay did not dispose of the trust fund by her will, and Francis D. Corkery, one of the plaintiffs, was living at her death, the trustee should hold the fund as a spendthrift trust for his benefit; and the third clause provided that, if there was no testamentary disposition of the fund by Mary Louise Fay and Francis D. Corkery was not living at her death, the residue of the fund should be paid to the children of Mary Louise Fay, if she left any; otherwise to such heirs of Francis D. Corkery as were his “blood reíatives.” The plaintiff Henry F. Corkery was a brother of Francis D. Corkery.</p> <p>The suit was heard by De Courcy, J., a Commissioner having been appointed under Equity Rule 35 to take the evidence. The material evidence is described in the opinion. The single justice filed the following memorandum:</p> <p>“The trust agreement in question is made a part of these findings.</p> <p>“The trustee, Cornelius O’Callaghan, has paid from the trust fund to the beneficiary, Mary Louise Dorsey (whose name, before marriage was Minnie Fay), the following amounts: June 16, 1910, $57; April 12, 1911, $100; June 8, 1911 (the balance), $2090. Mrs. Dorsey still has unexpended $1360 of this last sum.</p> <p>“The only complaint made by the plaintiff at the hearing was with reference to the last payment; and of this he seeks the repayment to the trustee of only the $1360 now in the hands of. Mrs. Dorsey, as he concedes that the portion expended by her should have been paid to her by the trustee if the fund had remained in his hands.</p> <p>“The trustee had known the beneficiary well for twenty years, and was familiar with her habits and her wants; and he made the’ last payment without being solicited to do so by her or by Mr. Dorsey. On all the evidence I find that, acting in good faith and in the exercise of his honest judgment, Mr. O’Callaghan thought, at the time of the payment, that Miss Fay was 'deserving and in need of aid,’ in view of the condition of her health, her unemployment, and her approaching marriage.</p> <p>“Even if the fund had remained in, or should be restored to, the hands of the trustee, the beneficiary has power to dispose by will of any portion thereof that may not be used by her. The bill • in equity is prosecuted by Henry F. Corkery, and I find that he is induced to do so by his ill will against Mr. Dorsey, rather than by a desire to protect his remote contingent interest in the money, or the contingent interest of his brother, who did not appear. For these reasons I should decline to grant the prayers of the plaintiff in any event, so far as the granting of them is dependent on my discretionary power.”</p> <p>A final decree was entered dismissing the bill without costs. The plaintiffs appealed.</p>

<p>Unfair Competition. Trade Name. Evidence, Inference, Presumptions and burden of proof.</p> <p>The mere use by a retail dealer in a certain business territory of a trade name, which another dealer has found highly effective in bringing his goods to the favorable attention of the public in another business territory, constitutes no actionable wrong.</p> <p>A suit in equity to enjoin the use of a retail trade name and symbols of the plaintiff cannot be maintained where it does not appear that the territory in which the defendant used the trade name and symbols was one to which the plaintiff’s trade extended.</p> <p>From the facts that a retail dealer in hats, widely advertised under a trade name and a symbol and as sold for $1.50,-first opened a store in New York City in 1900 and now has forty-one stores in nine different States, including twenty-four in Greater New York, one in Providence and two in Boston, it cannot be inferred that a market for his hats, sufficient to give him the exclusive right to the use therein of his trade name and symbols, reaches to Worcester, in this State, or to Woonsocket in Rhode Island or to New Haven in Connecticut, in the absence of any evidence that he did any advertising in those cities or that any of his hats ever were sold there.</p>

<p>Constitutional Law. Labor. Civil Service. Statute, Construction. Words, “Public works.”</p> <p>The provisions of St. 1909, c. 514, § 21, as amended by St. 1914, c. 474, and St. 1914, c. 600, that “in the construction of public works by the Commonwealth, or by a county, city or town” and “In all work of any branch of the service of the Commonwealth, or of any city or town therein, citizens of the Commonwealth shall be given preference,” do not violate any right protected by the Constitution of the United States or secured by any treaty with any foreign nation. Following Heim v. McCall, 239 U. S. 175; Crane v. New York, 239 U. S. 195.</p> <p>Nor are the provisions of the statutes mentioned above in conflict with the Constitution of this Commonwealth.</p> <p>The provisions contained in St. 1914, c. 600, §§ 2, 3, that “The civil service commission shall not place upon its lists any person not a citizen of the United States,” and that “If an appointing officer, because of the non-existence of a list of eligible appointees, appoints under provisional authority from the civil service commission a person not a citizen of the United States, he shall discharge the person so appointed and appoint from the eligible list whenever the civil service commission establishes a list of the proper class,” are constitutional and valid.</p> <p>Section 1 of St. 1914, c. 600, which provides that “In all work of any branch of the service of the Commonwealth, or of any city or town therein, citizens of the Commonwealth shall be given preference,” is in no way confined in its application, by the subsequent sections of the statute referring to the civil service, to those cities and towns where the classified civil service prevails under the civil service law.</p> <p>Whether the statutes mentioned above require the discharge of faithful and efficient aliens in service at the time of their enactment or whether they relate only to the future, it was not necessary to determine in the present case.</p>

<p>Sale, Vendee’s right of inspection. Bill of Lading. Carrier, Of goods. Practice, Civil, Judge’s charge, Requests and instructions. Evidence, Foreign law.</p> <p>If a dealer in the State of New York consigns cabbages, which he has sold to a merchant in Boston, to himself in Boston with directions to the carrier to “notify” the Boston merchant, indorses the bill of lading in blank, attaches it to a draft upon the Boston merchant for the purchase money and transfers both the bill of lading and the draft through a local bank to a Boston bank for collection, the Boston merchant is a stranger to the shipment and, until he has paid the draft and has become an indorsee of the bill of lading, he has no right to inspect the cabbages and the carrier has no right to permit him to do so.</p> <p>If, at the trial of an action of contract for the purchase price of cabbages sold by the plaintiff in the State of New York to the defendant in Boston, there is evi-. dence that a condition of the sale was that the defendant should have a right to inspect the cabbages after their arrival in Boston before he should become • liable for the purchase price, and it appears that the method of shipment adopted by the plaintiff gave the defendant no right to inspect and the carrier no right to permit an inspection until the defendant had paid a draft drawn upon him for the purchase price, and that before inspection by the defendant was permitted the cabbages had so deteriorated that the defendant refused to accept them, the presiding judge should charge the jury that, if they found that by the contract of sale the defendant was given the right to inspect, the defendant’s refusal of the cabbages under the circumstances was justified, and it is improper for the presiding judge in his charge to make such justification conditional upon the defendant having seasonably asked the plaintiff for permission to inspect.</p> <p>The foregoing rule of law is the same, whether the right of inspection in the vendee was a condition precedent to the passing of the property to the vendee or was a condition subsequent enabling the defendant to rescind the sale if on inspection the cabbages were found not to be what the contract called for.</p> <p>Where, at a trial before a jury, the law of another State is an issue and a part of the evidence introduced upon the subject consists of a report of a decision of the highest law court of such State, it is improper'for the presiding judge to instruct the jury as to what is the rule of law established by that decision. The meaning of the decision is a question of fact to be determined by the jury.</p> <p>At the trial of an action of contract for the purchase price of cabbages, the judge in ■ his charge described the contract as one for a sale of “ Danish cabbage.” It appeared that on a certain day the plaintiff offered by letter to sell to the defendant "fine stock” cabbages, that on the next day by telegram he offered to sell "Danish cabbage,” and that the defendant telegraphed, “Letter received ship . . . cabbage offered.” Held, that the contract between the parties was for a sale of “fine stock” cabbages and came within the rules of law applicable to contracts for the sale of goods of “ a specific quality,” and that the judge made a material error in his charge.</p>

<p>Commissioners, Appointed by court under statutory authority. Damages, For land taken or impaired under statutory authority. Bridge. Jurisdiction. Supreme Judicial Court. Superior Court. Evidence, Of value, Admissions and confessions.</p> <p>Commissioners appointed by a court under statutory authority, in the absence • of an express provision to the contrary, must report their doings to the court by which they were appointed.</p> <p>An Act of Congress approved February 27, 1911, authorized the metropolitan park commission, when authorized to do so by the State of Massachusetts, to construct drawless bridges across the Charles River connecting River Street in Cambridge and Cambridge Street in the Brighton district, so called, of Boston, and provided, “That before the construction of said bridges or any of them is begun, the State of Massachusetts shall by legislative enactment provide for adequate compensation for the owner, owners, lessee or lessees of property abutting on said river above any of the said bridges, for damages if any caused to said property or leasehold interests therein by reason of interference with the access by water to said property, due to the construction of bridges without draws: Provided further, that said legislative enactment shall provide for the appointment of three commissioners to hear the parties in interest and assess the damages to said property; their decision as to the amount of damages and questions of fact to be final; said commissioners to be appointed by the Supreme Judicial Court of Massachusetts.” St. 1911, c. 439, giving authority to the metropolitan park commission to rebuild any of the existing bridges over Charles River within the metropolitan park district whenever funds for the purpose should become available by gift under the provisions of that statute, complied with the requirements of the act of Congress above described, and provided that “ Upon petition of any such owner or lessee entitled to such damages, filed in the Supreme Judicial Court within one year after any such bridge without a draw is opened for public travel, said court shall appoint three commissioners to hear the parties in interest, and to assess the damages to said property; and the decision of said commissioners as to the amount of said damages and as to questions of fact involved shall be final.” On petitions brought under this statute, and on others brought in the Superior Court, it was held:</p> <p>1. That the commissioners appointed under this statute were officers of the Supreme Judicial Court by whom they were appointed, and that that court had the power and was charged with the duty of enforcing the report of such commissioners if it was according to the law and ought to be enforced.</p> <p>2. That therefore the Superior Court had no jurisdiction over the petitions filed in that court, the remedy afforded by St. 1911, c. 439, being sufficient and exclusive.</p> <p>3. That the provision, that “the decision of said commissioners as to the amount of said damages and as to questions of fact involved shall be final,” raised the implication that in other respects their decision is not final and that questions of law raised in the report may be reviewed. Moreover it was apparent on the report upon the present petitions that the commissioners intended to proceed and decide according to law.</p> <p>4. That, while this court would review the report, it would not set it aside nor send the case back for rehearing unless there appeared to be some probability that an appreciable change would be made in the report by a correction of the mistakes, if any there were, and unless substantial justice required that course.</p> <p>5. That an owner and a lessee of the same real estate abutting on the Charles River should bring separate petitions under the statute for the assessment of damages; that the only damage which the owner of such leased property can recover is that sustained by the part of the whole property which is left after deducting from it the value of the lessee’s interest, and that the duty of the commissioners is to find separately the damages suffered by each petitioner.</p> <p>At a hearing before commissioners on a petition by a lessee of real estate bordering on a river for the assessment of damages under a statute giving damages to such a lessee for injury to his leasehold interest by the construction of a bridge without a draw across the river by reason of interference with the access by water to the real- estate occupied by him, it is proper for the commissioners to exclude a question asked the petitioner on his cross-examination in regard to the profits of his business, such profits being too remote to have any necessary bearing upon the issue of the injury to his leasehold interest.</p> <p>Since the enactment of St. 1903, c. 437, § 48, which provides that the return made by a domestic business corporation to the tax commissioner “shall be open only to the inspection of the tax commissioner, his clerks and assistants, and such other officers of the Commonwealth as may have occasion to inspect it for the purpose of assessing or of collecting taxes,” such returns are not admissible in evidence at a hearing upon a petition by a domestic business corporation for the assessment of damages under a statute for injury to its real estate to show that the real estate before the alleged injury was worth less than alleged by the petitioner.</p> <p>At such a hearing certificates of financial condition filed by the petitioning corporation under St. 1903, c. 437, § 45, cl. 6, which properly have been received in evidence as admissions by the petitioner that its real estate was worth less than was shown by the evidence of the petitioner at the hearing, are not conclusively binding upon the petitioner.</p> <p>Still less are such certificates binding upon an individual petitioner, who has filed a separate petition as lessee of the real estate of the corporation for injury to his leasehold interest.</p> <p>At such a hearing it is proper to exclude statements made to an assessor by one who was a director, a cleric and the auditor of the petitioning corporation and by another who was its vice president and general manager as to the value of the petitioner’s real estate, where it does not appear that these officers were authorized by the corporation to speak for it on that subject or that such statements were within the scope of their official duty.</p> <p>At such a hearing the fact, that the petitioning corporation paid taxes upon the same valuation of its real estate after the construction of the bridge that was alleged to have injured its property that it paid before the bridge was constructed, is not an admission by the petitioner that there had been no change in value, such valuation being that of the assessors and not of the petitioner. Nor is the failure of the petitioner to claim an abatement such an admission.</p>

<p>Negligence, Street railway, In use of highway. Evidence, Of fact undisputed at trial.</p> <p>If a woman fifty-two years of age, who is deaf but can hear a whistle of a street railway car for a distance of twenty or thirty yards, walks along a path on one side of a village street that has no sidewalk, which path is at the outer edge of a single track of a street railway that is laid at the side of the street, the surface between the rails being filled to the level of the street, and which is the only path for pedestrians at that place, and, having in mind the possibility of the approach from behind her of a car at about that time, she looks back twice, and then goes on not more than one hundred and thirty-five feet from the point from which she looked back the second time, when she is run down from behind by a street railway car that gives no signal of its approach and whose motorman, knowing that the woman is unaware of the car’s approach, makes no effort to stop the car until it is within half a car’s length of her, in an action by the woman against the corporation operating the car for her injuries thus sustained there is evidence for the jury that the plaintiff was in the exercise of due care and that the defendant was negligent.</p> <p>In an action against a corporation operating a street railway for personal injuries alleged to have been caused by running down the plaintiff with a car of the defendant, when, after a verdict for the plaintiff, the case was before this court upon the defendant’s exceptions, the defendant’s counsel in his brief suggested for the first time that there was no evidence that the defendant was operating the street railway on which the plaintiff was injured. The bill of exceptions showed that at the trial two plans were put in evidence by the defendant and were marked as exhibits, and on each of these plans, which were before this court, the railway track was designated in printed letters as the track of the defendant, the corporate name being given. Held, that, in the absence of any evidence to the contrary, this warranted a finding that the car which struck the plaintiff was operated by the defendant.</p>

<p>Mortgage, Of real estate. Tax, On legacies and successions.</p> <p>A resident of another State, who is the mortgagee under a mortgage of real estate in this Commonwealth, has an interest in the real estate that at his death is subject to a succession tax under St. 1912, c. 678, § 1.</p>

<p>Contract, Performance and breach. Damages, In contract.</p> <p>Where a married woman, who had left her husband on account of his habits of intoxication and had obtained work as a mill operative, was induced to return to her former home by a promise of her father-in-law to pay her $1,000 if she with her husband would make a.home for the father-in-law, whereupon she accepted the offer and provided a home for her father-in-law as long as he remained there, but he soon married again and voluntarily took up his residence elsewhere and refused to pay the $1,000 or any part of it, in an action against him by his daughter-in-law for breach of contract, it was held, that; the defendant having rendered further performance by the plaintiff impossible, the plaintiff, who had performed her contract as far as she could, was entitled to recover damages.</p> <p>In the same case, it also was held, that, the defendant having failed to make any provision in the contract for the contingency of his marrying again and leaving the house of his son in a short time, was liable to the plaintiff for the full amount of $1,000 which he had agreed to pay her.</p>

<p>Workmen’s Compensation Act, Injury arising out of employment. Agency, Scope of employment.</p> <p>Where before daylight in darkness and fog a night watchman employed by a construction company was standing near the building of his employer with a bridge operator, when they saw a deputy sheriff and his assistant and each pair of men mistook the other pair for yeggmen who just before had robbed a post office near by, and thereupon shots were exchanged, by one of which the watchman sustained an injury resulting in his death, it was held that, assuming that such injury was received by the watchman “in the course of his employment,” it could not be found that the injury was one “arising out of” his employment within the meaning of St. 1911, c. 751, Part II, § 1.</p>

<p>Negligence, Employer’s liability, In railroad yard on premises other than those of railroad corporation. Violation of usage, Want of light. Usage.</p> <p>A railroad company is under no duty to point out to an experienced brakeman in its employ the existence, in a railroad yard on property of a coal company where the brakeman was in the course of his employment, of a post about three feet from a track, nor to warn him of its existence; and, since the enactment of the workmen’s compensation act as before, if it appears that the post was placed, constructed and maintained by the coal company, there can be no recovery from the railroad corporation, not a subscriber under the act, in an action by such an employee against it for injuries caused by his being crushed in the night time between the post and a coal ear upon which he was in the course of his employment, although such injuries were due to ignorance resulting from a lack of instruction or warning as to the post and by the dangerous condition of the premises arising from its maintenance where it was.</p> <p>Nor, under such circumstances, where it also appears that one cause of the accident was the fact that a light, which customarily had shone upon the post against which the plaintiff was crushed, had been suffered to be unlighted, can the railroad company be held liable for the injuries if the coal company had undertaken the duty of keeping the yard lighted.</p> <p>A coal company, which maintains as a part of its premises a yard containing tracks connecting with a railroad and used for transporting coal to and from its premises, is not liable for injuries received by an employee of a railroad corporation who, when on the premises in the course of his employment, is crushed in the night time between a freight car upon which he is riding and a post which supports an overhead, structure in the yard, if such injuries were caused by the employee not being warned of the presence of the post or by the post being constructed and maintained dangerously near to the railroad track.</p> <p>But if, under the foregoing circumstances, it also appears that the coal company had assumed the duty of keeping the yard lighted at night, that the employee of the railroad company relied on such lighting to warn him of the presence of dangerous structures, that a light, which customarily had shone upon the post against which the employee of the railroad was crushed, had been suffered by an employee of the coal company, who was charged with the duty of keeping the lights in the yard in order, to be and to remain extinguished, and that the accident was caused by the absence of such light, the coal company is liable for the injuries so received.</p> <p>If, in an action by an experienced brakeman of a railroad company against a coal company for personal injuries received in 1913 while the plaintiff was at work in the night time within the scope of his employment in a freight yard of the defendant, it appears that the plaintiff mounted a moving freight car at its side near its end and, as he was passing round to the end of the car, was struck and injured by a post dangerously near the track, of whose presence he did not know and which was not lighted by a light which the coal company customarily had maintained together with other lights throughout the yard, and that the plaintiff had come to rely upon the yard being lighted, there is evidence for the jury on the question of the due care of the plaintiff.</p>

<p>Constitutional Law, Ex post facto law. Illegitimacy. Parent and Child. Nonsupport.</p> <p>St. 1913, c. 563, § 7, making it a misdemeanor for the father of an illegitimate child to neglect or refuse to contribute reasonably to the support and maintenance of such child, whether such child shall have been begotten before or after the taking effect of that statute, is not an ex post facto law and does not violate art. 24 of the Declaration of Rights nor art. 1, § 9 of the Constitution of the United States.</p> <p>It is not a defence to a complaint under St. 1913, c. 563, § 7, against the father of an illegitimate child for neglecting and refusing to contribute reasonably to the support of such child, that after the birth of the child the mother married another man who provides for the child’s support.</p> <p>Upon a complaint against the father of an illegitimate child for neglecting and refusing to contribute reasonably to the support of such child under St. 1913, c. 563, § 7, which incorporates by reference the provision as to practice contained in St. 1911, c. 456, § 7, that “proof ... of the neglect or refusal . . . shall be prima fade evidence that such . . . neglect or refusal is wilful and without just cause,” the jury can find that the defendant neglected or refused to contribute reasonably to the support of his child, although no demand to do so was made upon him during the three years preceding the time of the trial.</p>

<p>Evidence, Best and secondary, Book entries. Witness, Refreshing recollection. Practice, Civil, Exceptions. Words, "Account.”</p> <p>In an action, where it was material to show the number of glass fruit jars on hand at a certain time constituting a certain stock in trade, an inventory was offered in evidence which was made by a witness who testified that he counted the stock at that date personally with the exception of some of the jars that could not be counted because they were packed in bins and that as to these he took the record from a stock book that he kept by making entries from slips that were turned into the office by the glass blowers who made the jars. Held, that this inventory was not admissible independently of St. 1913, c. 288, and that it properly could not be admitted under that statute because the objectionable entries in the inventory were not entries “in an account kept in a book or by a card system or by any other system of keeping accounts,” to which alone that statute relates.</p> <p>In the case stated above, after the inventory wrongly had been admitted in evidence under the statute, there was testimony of the plaintiff’s son tending to show that the defendant admitted that the inventory correctly described the number of fruit jars on hand when it was made, but there was nothing to show that this testimony was believed by the judge before whom the case was tried without a jury. Held, that this subsequent evidence did not cure the error of wrongly admitting the inventory under the statute, and that an exception to its admission should be sustained.</p> <p>A witness cannot be allowed to refresh his recollection by a paper containing statements in regard to matters of which he never had any personal knowledge, because he can have no recollection to refresh.</p>

<p>Lis Pendens. Equity Jurisdiction, For an accounting, Defence of pending action at law. Election. Equity Pleading and Practice, Decree.</p> <p>In a suit in equity against an administrator upon the termination of a trust to compel an accounting and the payment of the trust fund to the parties entitled to it, it is a defence that the plaintiff has brought an action of law against the defendant for the same cause of action which still is pending; but the court of equity, instead of dismissing the bill outright by reason of the pendency of such an action, will give the plaintiff a chance to elect whether he will proceed at law or in equity, and will order in substance that the bill be dismissed unless within a reasonable time the plaintiff shall discontinue his action at law.</p>

<p>Pleading, Civil, Demurrer, Declaration. Insurance, Fire.</p> <p>Under R. L. c. 173, § 16, cl. 2, an averment in the causes assigned for a demurrer, that the declaration does not state a legal cause of action substantially in accordance with the rules contained in R. L. c. 173, is sufficient as a general demurrer.</p> <p>A declaration in an action of contract alleged that the defendant issued a policy of fire insurance to a certain person upon articles of personal property to the amount of $500 payable in case of loss to another person and the plaintiff as their interest might appear, that the plaintiff had a pecuniary interest in the articles by reason of a mortgage given to him by the insured, that thereafter a fire “destroyed and damaged certain articles covered by said policy of insurance . . . ; that all the conditions ... set forth in said policy of insurance have been complied with; and the plaintiff alleges that he is entitled to recover the value of the goods destroyed and damaged by said fire to the amount of $148.75.” There was no allegation to indicate what interest, if any, the other payee had in the proceeds due under the policy and no allegation of the total value of the goods covered by the policy that had been destroyed or damaged, and it did not appear whether the interest of the other payee in the proceeds of the policy had priority over the claim of the plaintiff or whether recovery by the plaintiff would be a bar to a claim by such other payee. Upon a demurrer it was held, that the declaration did not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action as required by R. L. c. 173, § 6, cl. 2, and the demurrer was sustained.</p>

<p>Nantasket Beach. Boundary. Evidence, Plans. Words, “Extended.”</p> <p>A certain strip of land at Nantasket Beach in the town of Hull between the eastern side of Franklin Street and the ocean is free from a restriction prohibiting the erection of any structures thereon, except the portion of such strip of land which is on the easterly side of Beach Avenue, and that avenue extends southerly to the line of the southerly side of Quincy Street produced, the part of the premises between Beach Avenue and the ocean being subject to the restriction that no building or structure shall be placed or erected thereon and that it “shall be forever kept open and unobstructed for public use and enjoyment.”</p> <p>A boundary which was a part of the description of a parcel of land in a deed and was designated as running “by the southerly line of” a certain street “extended,” was held properly to have been found not to indicate that the street itself existed at the place of the extended line but merely to describe the line that would exist if the street should be extended at that place.</p> <p>It is within the discretionary power of a presiding judge to refuse to admit in evidence a plan which he finds to be imperfect. In the present case the plan excluded, if it had been a proper one, would in no way have been material to the issues being tried.</p>

<p>Agency, Scope of authority, Existence of relation. Husband and Wife. Evidence, Relevancy and materiality, Competency. Practice, Civil, Conduct of trial: order of proof.</p> <p>At the hearing by a judge without a jury of an action by a bank against a married woman upon a promissory note signed with a firm name containing the name of the defendant’s husband, there was evidence that, previous to a certain date, the husband had had a bank account with the plaintiff on which he drew checks signed with the firm name; that, fearing that his property was to be attached, he conveyed to his wife all his real and personal property, including his business and bank account; that the defendant signed and recorded a married woman’s certificate stating that she proposed to carry on a business, of the same description as that of her husband, under her own name; that on the same day the husband delivered to the plaintiff two cards, one signed by the defendant and authorizing her husband to “sign and indorse checks, notes and drafts, accept drafts, and transact all business with your bank in my name, as my attorney,” and the other signed by the husband giving, as the authorized signature for the defendant’s account with the plaintiff, the old firm name; that on the same day the defendant opened an account with the plaintiff under her own name; that thereafter for six and one half years the defendant’s account remained with the plaintiff; that it was active, that checks signed in the old firm name were paid out of it, that deposits made in the old firm name were credited to it, and that notes signed by the husband in the old firm name were discounted by the plaintiff and the proceeds were placed to the credit of the account. There also was evidence that during this period the defendant lived in the yard where the business was carried on, gave orders to employees on the premises and directed what should be done as to the real estate. Held, that a finding was warranted that the defendant had authorized her husband to carry on the business, formerly his, for her, and that the note in suit was signed by him by her authority with a firm name under which she was doing business.</p> <p>It also was held that, at the trial above described, daily balance books of the plaintiff were admissible, not only to show the state of the defendant’s account, but also to show that the proceeds of the notes in suit, when they were discounted, were credited to the account of the defendant.</p> <p>Under the foregoing circumstances, also, there being ample evidence other than statements by the husband to establish his agency for the defendant, evidence of statements of the husband to the effect that, after the opening of her bank account, the defendant would carry on the business under the old firm name but that the account at the bank would be in her individual name, were admissible, they not being testimony by an agent to establish his agency, but being testimony by the husband that he was not carrying on the business, but that his principal, the defendant, was.</p> <p>The determination of the order of proof at a trial is within the discretion of the trial judge.</p> <p>At the same trial, envelopes handed monthly by the plaintiff to the defendant’s husband during the six and one half years that the account remained with the plaintiff, bearing the name of the defendant as a customer of the plaintiff with a statement of the monthly account and containing cancelled checks paid from the account and signed in the old'firm name, were held to be admissible as independent evidence that the defendant carried on business under the old firm name.</p> <p>The mere fact that a married woman signed and recorded a certificate under R. L. c. 153, § 10, that she proposed to do business on her separate account at a certain number on Howard Street in a city under her name, "E. Wolff,” does not make illegal a business thereafter conducted by her without the recording of a new certificate at Apple Street in the same city under the name, “A. Wolff Ss Co.,” which was a business name formerly used by her husband, although her 'failure to record a new certificate might make her husband liable upon contracts lawfully entered into by her in the prosecution of such business.</p>

<p>Way, Public: defect. Negligence, In use of highway. Notice.</p> <p>At the trial of an action against a town for personal injuries caused by stumbling over a grade stake in a street undergoing repairs, it appeared that the plaintiff had entered and was crossing the street from another street that ran into it at right angles but did not cross it. There was no evidence that the street was closed to public travel by any vote of the town authorities. There was evidence that there were no barriers or other obstacles warning persons entering the street as the plaintiff did, of whom there were many, that it was closed to public travel; that the grade stake was placed by employees of the defendant in the gutter; that, while the street was rough, it “wasn’t so rough,” but was passable, and that the accident happened at about a quarter before six o’clock on a very dark night in November.. Held, that there was evidence warranting findings that the plaintiff was in the exercise of due care, that the street was not closed to public travel and that the defendant had failed in its duty to maintain the street in a reasonably safe condition for travellers.</p> <p>Under the circumstances stated above it also was held that no question arose as to notice to the defendant as to the defect, because the stake was placed in the highway under the direction of the defendant’s officials.</p> <p>Where one, who was injured by a defect in a public way called M Avenue in a town, in his notice to the town under R. L. c. 51, § 20, states that “The place on said M Avenue where my said accident happened was at its junction with C Street,” if the evidence at the trial of an action against the town to recover for the injuries tends to show that C Street entered but did not cross M Avenue, and that the plaintiff, entering M Avenue from C Street, crossed it and was injured by stumbling on a grade stake in the gutter on the side of M Avenue farther from C Street, it is proper for the judge to submit to the jury the question whether the notice was inaccurate, and, if it was, whether there was any intention on the part of the plaintiff to mislead the defendant and whether the defendant was misled.</p> <p>It also was held that, in view of the proximity of the stake to the junction of M Avenue and C Street and of the evidence that it was placed there by authority of the defendant, under the circumstances shown a finding of the jury was warranted that the defendant was not misled by any inaccuracy in the notice.</p>

<p>Practice, Civil, Interpleader. Interpleader. Laches.</p> <p>The provisions of R. L. c. 173, § 37, authorizing an interpleader in an action at law, do not alter the settled doctrines applicable to bills of interpleader in equity.</p> <p>The provisions of R. L. c. 173, § 37, that if, in an action at law, the defendant admits his liability and the amount thereof is not disputed, but it appears that such amount is claimed by some other person than the plaintiff and that the defendant has no interest in the subject matter of the controversy, the court on a petition by the defendant may compel such claimant to interplead, do not give a defendant, in an action against him for services in the superintending of the erection of a building, a right as a matter of law to have such a petition granted and to have one whom he alleged was the plaintiff’s principal compelled to interplead, where the defendant’s petition is not filed until after a verdict has been rendered for the plaintiff upon issues raised by an answer of the defendant containing a general denial, an allegation of payment, and an allegation that, if the defendant ever made a contract as alleged, it was with the plaintiff as the agent or representative of his principal.</p> <p>Nor does R. L. c. 173, § 37, give to a claimant a right as a matter of law to intervene in such an action after a verdict for the plaintiff.</p>

<p>Two actions of tort, the first for conscious suffering and the second for the death of the plaintiff’s intestate, Benjamin Hirst, alleged to have been caused by his being run over at half past five o’clock in the afternoon of November 23, 1910, by an ice wagon negligently driven by an employee of the defendant. Writs-dated respectively March 18 and July 3, 1911.</p> <p>In the Superior Court the cases were tried together before Stevens, J. The evidence is described in the opinion.</p> <p>In the first action there was a verdict for the plaintiff in the sum of $2,000, which later on a motion by the defendant for a new trial was reduced to $1,200. The defendant alleged exceptions to a refusal by the judge to order a verdict in his favor.</p> <p>In the second action the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Two actions of tort for damages resulting from the explosion on Feburary 22, 1914, of a hot water boiler alleged to have been installed in a negligent manner in the basement of the plaintiff’s dwelling by the defendant in the second action under the personal supervision of the defendant in the first action. Writs dated March 19, 1914.</p> <p>The cases were tried together before Dana, J. The evidence and the defendants’ exceptions are described in the opinion. The jury found for the plaintiff in each action in the sum of $2,819; and the defendants alleged exceptions.</p>

<p>Negligence, Causing death, In use of highway.</p> <p>If a woman, wishing to take a street railway car which she sees approaching on a track at the opposite side of the street, runs or walks rapidly diagonally across the street in an attempt" to reach a white post in time to take the car, waving her arms in the direction of the car to signal to the motorman to stop and, when the car is only about ten feet away from her, goes upon the track and is struck and killed by the car, which is moving at a high rate of speed, the administrator of her estate cannot maintain an action against the corporation operating the railway under St. 1906, c. 463, as amended by St. 1907, c. 392, for negligently causing her death, there being no evidence that she was in the active exercise of reasonable care for her safety.</p>

<p>Workmen’s Compensation Act. Words, “Lost.”</p> <p>Under the workmen’s compensation act contained in St. 1911, c. 751, as amended by St. 1912, c. 571, where death has resulted from an injury to an employee arising out of and in the course of his employment, the measure of compensation to which the dependent of the deceased is entitled is not the amount of the loss caused to the dependent by the death of the employee, but the sum to be paid is measured and determined by the wages of the deceased, and in case of a partial dependency is to be the same proportion of the average weekly wages as the amount contributed by the employee to such partial dependent bears to the annual earnings of the employee at the time of his injury, without regard to the benefits, if any, received by the employee from the dependent.</p> <p>Therefore, where the deceased employee was twenty-three years of age and lived with his father and mother to whom he paid nothing for his board, which was worth 85 a week, and contributed an average of $15.38 weekly to the support of his mother, it was held, that the Industrial Accident Board were right in deciding that the mother of the deceased was dependent upon him for support to the extent of $15.38 and that the value of the board furnished to the deceased should not be deducted from the amount contributed by him to his mother’s support.</p> <p>In the same case the mother of the deceased employee testified that he took some of the money from his wages for carfares and lunches and other different expenses and handed the balance of his earnings to her, and that, “if he wanted anything in the way of clothing, or anything of that sort,” he always came to her and she gave him the money. An arbitration committee found that during the year previous to his injury he worked six months, and that during that six months his earnings were $550, or an average weekly wage of $21.15, that out of this $550 he paid $150 for clothing, tuition and incidentals, making an average of $15.38 which he contributed to the support of his mother, she being dependent upon him for support to that extent. The Industrial Accident Board confirmed these findings. They also found under St. 1911, c. 751, Part V, § 2, that the average weekly wages earned by a person in the same grade employed in the same class of employment in the same district were $21.15 and that therefore the finding of the arbitration committee was correct. Held, that the compensation awarded was a proper one.</p> <p>In the same case it appeared that the reason that the deceased did not work during the whole of the year preceding his injury was that for six months of the year he was studying at a university and worked only during the other six months. It also appeared that during the year preceding his injury the deceased had worked for previous employers "by the piece” or for "so much a job.” Held, that it was not necessary to decide whether the time devoted by the deceased employee to his studies was “lost” within the meaning of that word as used in St. 1911, c. 751, Part V,,§ 2, in defining “Average weekly wages;” because the case came within the other provision of the same paragraph of the statute, that “where, by reason of . . . the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned ... by a person in the same grade employed in the same class of employment and in the same district.”</p>

<p>Municipal Corporations, Officers, Mayor. Incensing Board. Mandamus.</p> <p>Where a mayor of a city, being about to undergo an operation, signed a paper ‘ purporting to be an appointment of a certain officer, of which the person named as the appointee was not informed, saying “That is only temporary” and intending the appointment “to be of a testamentary and revocable character, to take effect upon [the mayor’s] death,” and afterwards the mayor, having survived the operation, caused the name of the person named as appointee to be erased on the paper and the name of another person to be inserted in its place, the first proposed conditional appointment never took effect and a vacancy existing when the paper first was signed can be filled by the appointment of the person whose name was inserted in place of the name erased.</p> <p>A member of a licensing board appointed under R. L. c. 100, § 4, is not required to take an oath of office in order to qualify.</p> <p>A member of the licensing board of the city of Lawrence was appointed by a writing signed by the mayor in which the name of the appointee was inserted by direction of the mayor after the writing had been signed by the mayor, and the appointee was notified of his appointment. Not long thereafter the mayor died and the day after his death the writing making the appointment in accordance with the mayor’s previous direction was handed to the appointee, who about three weeks later attended a meeting of the licensing board, presented his letter of appointment and was admitted by the other members of the board to participate in the meeting. Held, that the appointee properly was appointed and qualified, and that the granting of a writ of mandamus to compel the new mayor and the members of the licensing board to recognize such appointee as a member of that board was a proper exercise of judicial discretion.</p>

<p>Bankruptcy, Unlawful preference. Equity Pleading and Practice, Findings of trial judge.</p> <p>Where- an insolvent person, who later became a bankrupt, had a deposit and account at a bank, to which he owed money upon notes not then due, and drew out the money by a check payable to the bank and delivered it to the bank to be applied toward reducing his indebtedness, and where the attempted set-off took place within the four months preceding the filing of the petition in bankruptcy, it cannot be ruled as matter of law that there has been a preference, but it must be determined as a fact.</p> <p>On an appeal in equity, a finding and ruling of the trial judge can be sustained on a ground not adopted by him, and the fact that he stated a wrong reason is immaterial.</p> <p>In a suit in equity by a trustee in bankruptcy against a bank to recover money alleged to have been paid by the bankrupt to the defendant as a fraudulent preference, it appeared that the bankrupt had procured from the defendant a loan of $10,000 on three notes bearing indorsements of a person of good credit, payable in four, five and six months respectively, that five days later the defendant’s president, finding that the genuineness of the indorsements was questioned, informed the bankrupt that he did not want any paper as to the indorsement of which any question was made and demanded that the. matter be closed at once by the bankrupt taking up the notes, that the bankrupt acceded to this demand and thereupon drew a check on his account with the defendant for $5,500, which was practically all that he had left there of the $10,000 he had borrowed, and promised to pay the balance due on the notes on that day or the next, that the bankrupt then was insolvent and that about a month later he was petitioned into bankruptcy. The judge who heard the case found and ruled that the defendant was entitled to retain the $5,500 thus paid to it by the bankrupt. Held, that the finding and ruling could be sustained on the ground that the transaction between the defendant and the bankrupt, consisting of the loan and the discount of the notes, was rescinded by the parties.</p> <p>In the suit above described, it also appeared that, -five days after the rescission, the bankrupt brought to the defendant $500, which he deposited with the defendant, that he immediately drew out the same amount by a check payable to the order of the defendant, which was credited to him on one of the notes, and that he made two other similar payments of $500 each in like manner respectively one week and two weeks later. The trial judge found that the defendant had reasonable cause to believe that a preference would be effected in its favor and to its advantage over other creditors of the bankrupt by the payments of the $1,500, and ruled that the plaintiff was entitled to recover this amount. Held, that, on the foregoing and other facts disclosed by the evidence, the finding and the ruling of the judge, who had had the advantage of seeing the bankrupt and the officers of the defendant on the witness stand, could not be said to be wrong.</p>

<p>Equitable Restrictions. Deed. Land Court. Words, “Porte-cochere.”</p> <p>Where equitable restrictions were imposed upon thirteen lots of land adjoining a certain private street according to a general plan for the development of the entire tract of land, the fact, that the restrictions imposed upon three of the lots situated at the end of the private street, which had no outlet at that end, differed from the uniform restrictions imposed on the other ten lots in not requiring like those restrictions that dwelling houses should be set back twenty-five feet from the private street but permitting houses to be built up to the line of the way on those three lots, does not affect the character of the restrictions on the other ten lots or render such restrictions less binding.</p> <p>A right to the enforcement of an equitable restriction for the benefit of a lot of land is appurtenant to the land and passes under a deed that conveys the land “together with ... all the rights, privileges and appurtenances thereto belonging,” without any specific mention of the restriction.</p> <p>Where an equitable restriction imposed upon lots adjoining a private street, called an avenue, required “that no building shall be placed nearer to said principal avenue than twenty-five feet,” and a judge of the Land Court had found as a fact “that the porte-cochere of the house on the respondent’s premises extends over, or into, the restricted area, it being at its northeast corner only seventeen and sixteen one hundredths feet from the westerly line of the principal avenue,” and where there was nothing in the record except the word “ porte-cochere ” to indicate the nature of the structure and nothing to show when it was built, it was held, that, in the absence of a finding that the structure was built and maintained in violation of the restriction, it could not be ruled as matter of law that its existence constituted such a violation.</p> <p>Although in a case in the Land Court, where a trial by jury is not claimed, the findings of a judge of that court upon all questions of fact are final, yet, where the facts on which a finding was made are not in dispute and all the evidence is before this court, the question of law is presented whether the evidence justified the finding of the judge.</p> <p>It cannot be found that the right to enforce an equitable restriction has been abandoned or relinquished, where no adverse use is established, and where there is no evidence of any act of the owner of the land to which the right to enforce the restriction is appurtenant unequivocally manifesting either a present intention to relinquish the restriction or a purpose inconsistent with its further existence.</p>

Tort under R. L. c. 51, § 18, for personal injuries sustained by the plaintiff on July 3, 1912, by reason of a defect in the curbing of a sidewalk in Broadway, a public highway of the defendant. Writ dated February 4, 1913. In the Superior Court the case was tried before White, J. The evidence upon the only point now material is described in the .opinion.

<p>Equity Jurisdiction, Damages for breach of contract. Damages, In equity.</p> <p>In a suit in equity, in which the only material question came to be whether the defendant was liable in damages and, if so, for what amount for failing to carry out the terms of a contract to supply a sum of money to a certain corporation for a particular purpose, it appeared that the corporation was unable to pay its debts and already owed the defendant a large amount of money, that the defendant agreed to lend the corporation “such sum not exceeding $25,000 as may be necessary to complete the second unit now in process of construction and to place the same in operation,” that thereafter the defendant lent the corporation more than $31,000, that about $6,000 of this was expended in the construction of the addition to the plant of the corporation called the “second unit,” about $5,000 of it was spent on remodelling and repairs and the remaining amount of about $20,000 was used in running the business, that, if this had not been done, the business would have been ruined, that it would have required $11,000 more to have completed the second unit, but that the second unit, if completed, would have been uselsss if the business had come to an end during its construction. Held, that it had not been shown that the plaintiff had suffered any damage from the defendant’s failure to carry out the terms of his contract, it being probable that, if he had complied strictly with his agreement, the plant would have been closed down for lack of working capital, so that the damages claimed by the plaintiff were too uncertain and speculative to be capable of ascertainment; and accordingly the bill was dismissed.</p>

<p>Prohibition, Writ of. Way, Public.</p> <p>The writ of prohibition is not available for the review and setting right of consummated wrongs but only for the prevention of wrongful acts threatened or justly apprehended.</p> <p>The function of the writ of prohibition is to restrain judicial or quasi judicial tribunals from exceeding their jurisdiction, and it is not available for the purpose of restraining executive, administrative or legislative officers or bodies from acting where they have no authority.</p> <p>Where the selectmen and the superintendent of construction of streets of a town have given notice to a landowner to remove within thirty days all trees, fences and other property from a certain portion of his land, but have not entered upon or taken possession of his land for the purpose of constructing a way or authorized any one else to do so, and where they have not undertaken or determined to assess any betterment taxes upon his land, there is no occasion to grant a petition of the landowner for a writ of prohibition to restrain the assessment of betterments, because it does not appear that any such assessment is impending or designed.</p>

<p>Contract for the defendant’s alleged failure to deliver a box of clothing valued at $34.50, which was entrusted to the defendant at Boston for transportation and delivery to one Mary Williams of Munnerlyn in the State of Georgia. Writ in the Municipal Court of the City of Boston dated January 25, 1912.</p> <p>On appeal to the Superior Court the case was tried before Hitchcock, 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 pleadings and all the evidence in the case, the plaintiff is not entitled to recover, and the verdict must be for the defendant.</p> <p>“2. Upon all the evidence in the case, the duty of the defendant was to deliver the goods in question to Mary Williams of Waynesboro, Georgia, and if the jury believe that the defendant did deliver or cause to be delivered the property entrusted to it by the plaintiff to Mary Williams of Waynesboro, Georgia, the defendant had performed its full duty in the premises, and the verdict must be for the defendant.</p> <p>“3. The defendant performed its contract with the plaintiff by delivering the goods to Mary Williams of Waynesboro, Georgia. Whether the plaintiff in the case at bar meant Mary Williams of Waynesboro, Georgia, or Mary Williams of Munnerlyn, Georgia, is not material. The rights of the parties depend upon what is communicated to the carrier.</p> <p>“4. There is no evidence in the case that the consignor, the plaintiff in this action, ever communicated to the defendant that she desired the box of clothing entrusted to the defendant to be delivered to any other person than Mary Williams of Waynesboro, Georgia, and, if the jury believe upon the whole evidence that the box was delivered to Mary Williams of Waynesboro, Georgia, the verdict must be for the defendant.</p> <p>“5. The defendant requests the court to instruct the jury that upon the pleadings and all the evidence in the case, the only contract between the parties is to be found in the written and printed bill of lading issued by the defendant to the plaintiff and containing the name ‘Mary Williams, Waynesboro, Ga., County of Burke’ as the consignee; and to further instruct the jury that the written contract is not to be varied, enlarged, or changed by oral evidence.”</p> <p>The judge refused to make these rulings and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $42.82. The defendant alleged exceptions.</p>

<p>Bankruptcy, Unlawful preference. Fraud. Wrongdoer without Remedy;</p> <p>In determining whether a bankrupt was insolvent at the time of making an alleged unlawful preference, it is right in computing the bankrupt’s assets and liabilities to add to the personal debts of the bankrupt the debts of a partnership of which he was a member and for the debts of which he was liable jointly with a partner besides individually because he had agreed to pay the debts of the partnership' on its dissolution.</p> <p>Under the provision of § 60 a of the bankruptcy act of 1898 as amended, that “A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, . . . made a transfer of any of his property, and the effect of the enforcement of such . . . transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class,” the effect of the enforcement of the transfer referred to is the effect it will have at the time the petition in bankruptcy is filed.</p> <p>The provision of § 60 b of the bankruptcy act of 1898 as amended, that if a person to whom a transfer defined as a preference is made “shall then have rea? sonable cause to believe that the enforcement of such . . . transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person,” means that a transfer is voidablé if the person to whom it was made had reasonable cause to believe that the transfer would result in a preference if enforced at the time of bankruptcy.</p> <p>Under § 60 b, above named, mere ground for suspicion is not “reasonable cause to believe.” ></p> <p>Under that section it was held that a defendant to whom a preference was made had reasonable ground to believe that a certain transfer would result in a preference, where, among other facts, it appeared that the defendant was the uncle of the bankrupt, had aided him in his business ventures, had made frequent' examinations of his books of. account, had advanced money to him on an assignment of accounts immediately preceding the bankruptcy, and in general had been intimately familiar with the bankrupt’s commercial standing.</p> <p>The decision of this court at a previous stage of this case reported in 220 Mass. 156; to the effect that, where a creditor, who had secured from his insolvent debtor a transfer of property, the enforcement of which would result in a preference, surreptitiously had advanced sums of money to such insolvent debtor in return for assignments of accounts, for the express purpose of tiding the insolvent debtor over the period of four months necessary to protect the preference from avoidance under the bankruptcy act, which purpose failed by reason of the filing of a petition in bankruptcy within the four months, the trustee in bankruptcy in a suit in equity against such creditor can recover the value of the accounts thus assigned without returning the money received'for such accounts by the bankrupt, here was affirmed on the ground previously taken that the acts of the creditor were a fraud upon the law, because the accounts were assigned and the money was paid for them in an unlawful attempt to circumvent the bankruptcy act.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Presumptions and burden of proof.</p> <p>In an action against a street railway corporation for personal injuries sustained when the plaintiff was a passenger in a car of the defendant by reason of an alleged dangerous construction and arrangement of the iron threshold of the door of the car, where the car was a new one and the plaintiff did not contend that it was in any way out of order, and where the plaintiff was injured by reason of the heel of her boot catching between the iron guides on the threshold, the mere happening of the accident is no evidence in itself of negligence on the part of the defendant, and the burden is on the plaintiff to show by affirmative evidence that the defendant failed to use due care in equipping the car.</p> <p>The use by a street railway corporation in a semi-convertible car of an iron threshold having guides a quarter of an inch high between which the door of the car slides, such thresholds having been in common use for a number of years on other street railway systems, combined with the fact that a woman passenger in leaving the car caught the heel of her boot between the iron guides and was injured, furnishes no evidence of negligence in an action by such passenger against the corporation for her injuries.</p>

<p>Contract by the heirs at law and next of kin of Patrick A. Quinlan, deceased intestate, to recover the amount of a death benefit upon a certificate issued by the defendant. Writ dated March 30, 1914.</p> <p>The defendant in its answer admitted that it issued a beneficiary certificate upon the life of Patrick A. Quinlan and admitted its liability in the sum of $2,000. It alleged that Margaret T. Scannell, the claimant, made claim on the defendant for the whole or some part of the amount due upon the certificate, and that it had no interest in the subject matter. The defendant paid into court the sum of $2,000, and, on request of the defendant, Margaret T. Scannell was allowed to interplead. She filed a claim containing three counts.</p> <p>The first count in substance alleged that, in consideration that the claimant should pay the premiums and assessments on the beneficiary certificate, the deceased Patrick A. Quinlan during his lifetime promised the claimant orally that she should receive the proceeds of the certificate after his death.</p> <p>The second count in substance alleged that at the request of Quinlan the claimant paid the premiums and assessments in consideration of Quinlan’s promises that she should be reimbursed out of the proceeds for the amount of money paid on premiums and assessments.</p> <p>The third in substance alleged that at the request of Patrick A. Quinlan the claimant paid the premiums and assessments on the beneficiary certificate, wherefore she was entitled to be.reimbursed out of the proceeds of the certificate.</p> <p>In the Superior Court the case was tried before Lawton, J. The claimant was the stepdaughter of Patrick A. Quinlan. Her mother, the wife of Patrick A. Quinlan, was named as beneficiary in the certificate. She died on July 5, 1911. Patrick A. Quinlan died on December 21, 1911, having designated no other beneficiary.</p> <p>The claimant testified that during the lifetime of her mother, and for fifteen consecutive years before the death of Patrick A. Quinlan, he frequently made oral promises to her that, if she would pay the premiums and assessments demanded by the defendant from time to time, at his death she would receive the whole amount of the beneficiary certificate. The claimant said that she did not want to be made the beneficiary of the policy while her mother lived.</p> <p>Section 11 of Law XIX of the defendant was as follows:</p> <p>“If one or more of the beneficiaries shall die during the lifetime of the member, the surviving beneficiary or beneficiaries shall be entitled to the benefit equally, unless otherwise provided in the Beneficiary Certificate; and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other legal designation, and he shall leave a widow, and no minor children surviving him, the benefit shall be payable to his widow; if he leave a widow and a minor child, or minor children, surviving him, the benefit shall be paid to his widow and surviving minor child, or to his widow and such surviving minor children share and share alike; if he leave no widow surviving him, then said benefit shall be paid share and share alike to his children; his grandchildren living at the time of his death to take the share to which their deceased parents would be entitled if living; if there be no children or grandchildren of the deceased member living at the time of his death, then said benefit shall be paid to his mother, if living, and if she be dead at the time of his death, then to his father, if living, and should there be no one living at the death of the member entitled to said benefit under the provisions hereof, then the same shall be paid to his legal heirs.”</p> <p>Patrick A. Quinlan left no widow, no child, no grandchild, no mother and no father. The plaintiffs were his heirs at law.</p> <p>The judge submitted to the jury four questions in writing, which, with the answers of the jury to them, were as follows:</p> <p>“1. Did Mrs. Scannell and the intestate Quinlan enter into a contract to the effect that if Mrs. Scannell should keep the policy alive and in force by paying the dues and assessments thereon during the life time of said Quinlan, she should, in consideration therefor, receive the proceeds of the policy upon his death?” The jury answered, “Yes.”</p> <p>“2. Was such a contract in force at the time of said Quinlan’s death?” The jury answered, “Yes.”</p> <p>“ 3. Did Mrs. Scannell perform in full her part of the contract? ” The jury answered, “Yes.”</p> <p>"4. What sums, if any, with interest thereon, do you find Mrs. Scannell paid at the request of the intestate Quinlan by way of dues and assessments to keep alive the policy in question?” The jury answered, “$745.28.”</p> <p>The plaintiffs asked the judge to charge the jury, that on all the evidence of the case, and as a matter of law the verdict should be for the plaintiffs. The judge refused so to rule. He denied a motion of the plaintiffs for a new trial and agreed to report the case; whereupon the parties waived further proceedings before a jury and submitted the case to the judge on the pleadings, the questions to and answers of the jury and the by-laws of the defendant. The judge found and ordered judgment for the claimant in the sum of $1,992.17 and awarded costs to the defendant in the sum of $7.83, with the further order that the case be reported for determination by this court, “such judgment to be ordered as the facts and the law require.”</p> <p>If the ruling was right, judgment was to be entered for the claimant on the verdict. If the claimant was entitled only to a reimbursement of the sums actually paid out by her for dues and assessments, with interest to the date of the verdict, judgment was to be entered for the claimant in the sum of $745.28 and for the plaintiffs in the sum of $1,246.89 and costs were to be allowed to the defendant in the sum of $7.83. If the claimant was entitled to no recovery whatever, judgment was to be entered for the plaintiffs in the sum of $1,992.17 and costs were to be allowed to the defendant in the sum of $7.83. If the claimant was entitled to a reimbursement of the sums paid out by her for dues and assessments without interest, to wit, $492.04, judgment was to be entered for the plaintiffs in the sum of $1,500.13 and costs were to be allowed to the defendant in the sum of $7.83.</p>

Contract by the administratrix of the estate of Edward LaCroix for the conscious suffering of the plaintiff’s intestate by reason of injuries sustained on August 23, 1912, in being thrown from his meat wagon when run into by a car operated by the defendant on Cambridge Street in the part of Boston called Brighton. Writ dated March 11, 1914.

<p>Evidence, Allegations in pleadings, Self-serving statements, Presumptions and burden of proof. Mortgage, Of real estate: foreclosure sale.</p> <p>In analogy to R. L. c. 173, § 85, which provides that in actions at law “Pleadings shall not be evidence on the trial, but the allegations therein shall bind the party who makes them,” an allegation or denial in a bill in equity made by the plaintiff in his own favor and sworn to by him, although it is an admission of the truth of the fact stated, cannot be used by him as evidence.</p> <p>A mortgagee of real estate in making a foreclosure sale under a power contained in the mortgage not only must comply with the literal terms of the power but also is bound to use reasonable diligence to protect the rights and interests of the original mortgagor and also those of the owner of the equity of redemption to whom the mortgagor sold the property after making the mortgage.</p> <p>Where a foreclosure sale of real estate under a power in a mortgage takes place after notice by publication and notice by mail to the original mortgagor and to the owner of the equity of redemption and after an adjournment of two weeks at the request of the owner of the equity of redemption, the mere facts, that the mortgagee was the only bidder at the sale and that the property brought less than its market value, do not make the sale invalid nor afford ground to the original mortgagor for maintaining a suit in equity against the mortgagee to enjoin him from suing for the balance due on the mortgage note after applying toward its payment the proceeds of the sale.</p> <p>In a suit in equity by a mortgagor of real estate, after a foreclosure sale of the mortgaged property under a power of sale in the mortgage, to enjoin the mortgagee from suing the plaintiff for the balance due on the mortgage note after applying toward its payment the proceeds of the sale, where the plaintiff has alleged that the sale was not conducted fairly and in good faith and that if it had been so conducted the proceeds would have been more than sufficient to pay the note in full, the burden rests upon the plaintiff to prove these allegations.</p> <p>It cannot be ruled as matter of law that notice by publication should have been given of a two weeks’ adjournment of a foreclosure sale of real estate under a power in a mortgage, where ample notice was given of the time originally fixed for the sale and the adjournment was made by a proclamation of the auctioneer at that time.</p>

<p>Bill in equity, filed in the Superior Court on September 16, 1914, by the owner and occupant of a cottage house numbered 10 on Marianna Street in Lynn against manufacturers of mattresses maintaining a factory numbered 211 on Fayette Street in Lynn in the rear of and adjoining the plaintiff’s premises, to restrain the defendants from continuing an alleged nuisance of noise and vibration injurious to the plaintiff and his family and for damages.</p> <p>The case was referred to a master, who filed a report in which he made the findings stated in the opinion, and found that the defendants were committing no nuisance in the operation of the machinery in their factory and that the plaintiff was not entitled to the relief sought.</p> <p>Later the case was heard by Quinn, J., who made a final decree that the bill be dismissed, that the defendant Nathaniel W. Fenton recover from the plaintiff costs taxed at $32 and that the defendant Mary A. Fenton recover from the plaintiff costs taxed at $9.74. The plaintiff appealed.</p>

<p> Equitable Restrictions. </p> <p>An owner of a tract of land sold it in lots laid out upon a plan, recorded in the registry of deeds, and conveyed the lots by deeds referring to the plan and imposing restrictions for the benefit of all the lots in accordance with a general scheme. The lots fronted on a street called Central Avenue and on a number of cross streets, each leading from Central Avenue. One of the cross streets was called Chestnut Avenue. Upon the plan there was marked a line at each side of each of the cross streets passing across all the lots fifteen feet back from the street and marked “Building line.” A similar line was marked across the lots fronting on Central Avenue, which also was fifteen feet back from that street but was not marked with the words “Building line.” A lot at the corner of Central Avenue and Chestnut Avenue, which was the first lot conveyed, was conveyed to a predecessor in title of its present owner, by a deed referring to the plan and containing the words, “This deed is conveyed subject to restrictions that no buildings shall be placed within fifteen feet of said Central Ave.,” and the owner of this lot contended that the building restriction upon it was limited to Central Avenue, and proceeded to erect a building which extended to the street line of Chestnut Avenue. The owner of the next lot but one on Chestnut Avenue, whose deed contained a restriction that, "All buildings shall be set back at least 15 feet from Chestnut Avenue,” brought a suit in equity against the owner of the corner lot to enjoin him from building within fifteen feet of Chestnut Avenue. Held, that in determining what was the restriction upon the defendant’s land the language of the deed and the plan must be considered together, and that the defendant was bound by the building line marked on the plan which required a set back of fifteen feet on Chestnut Avenue as well as a like set back on Central Avenue.</p>

<p>Two ACTIONS OF contract or tort, the plaintiff in the second action being the husband of the plaintiff in the first. The first count in each action recited in substance that the plaintiff Katherine purchased pork chops of the defendants, leaving it to them to make the selection and paying the current price for wholesome food, and that both plaintiffs ate of the chops and became sick. The second count in the first action sought recovery for loss of consortium due to the sickness of the plaintiff Percy, and the second count in the second action sought to recover both for medical attendance and expenses and for loss of consortium due to the sickness of the plaintiff Katherine. In the first action there was an additional count, added by amendment and called a second count, alleging that the sale of the unwholesome food which caused the plaintiff’s sickness was due to negligence of the defendants. Writs in the Municipal Court of the City of Boston dated March 18, 1914.</p> <p>In the Municipal Court the judge found in substance that on February 5,1914, the plaintiff Katherine gave an order for the pork chops to the defendant Freshman, in charge of the defendants’ business, whose duty it was to wait upon customers and make sales of meat for food; that the selection of the meat was left by her to the defendant Freshman; that Freshman undertook to make selection of the pork chops and to fill the order given by the plaintiff Katherine; that the defendant Freshman from the stock of the defendants selected some pork chops, and weighed and delivered them to the plaintiff Katherine; that she, believing them to be wholesome and fit for food, paid for them at the current and ordinary price for sound, wholesome pork chops, and with due care took them to her house and cooked them; that she and the plaintiff Percy ate of the chops so bought and prepared, and thereby were made sick because of the unwholesome, unsound, poisonous, or unfit quality or condition of the pork chops, and suffered severely in body and mind, and that each plaintiff because of such illness was deprived of the society of the other.</p> <p>In the first action, it also was found that “ there, was no negligence shown on the part of the defendants unless the foregoing evidence and findings constitute negligence as matter of law.”</p> <p>In the first action, the trial judge found for the defendant; and also found that, if the plaintiff were entitled to recover, her damages would be $60 “on the first or third count” and $15 on the second count.</p> <p>In the second action the trial judge found for the plaintiff in the sum of $175 on the first count, and $25 on the second count, of which $10 was for expense and $15 for loss of services and society.</p> <p>The trial judge reported both cases to the Appellate Division, the first at the request of the plaintiff, and the second at the request of the defendants. The Appellate Division in the first case ordered judgment for the plaintiff in the sum of $60 upon the first count of her declaration, and in the second case ordered judgment for the plaintiff in the sum of $175 upon the first count of .bis declaration, and $10 upon the second count. The defendants appealed.</p>

<p>Bill in equity, filed in the Superior Court on October 8, 1914, for an accounting by the defendant Dwyer as a copartner of the plaintiff in the business of selling and dealing in cigars, tobacco and confectionery at the refectory building in Franklin Park in Boston.</p> <p>In the Superior Court the case was heard by Jenney, J., who made the following findings of fact and an order for an interlocutory decree.</p> <p>“The plaintiff and William F. Dwyer, hereinafter called the defendant,* agreed to enter into a partnership for carrying on the refectory at Franklin Park. As a part of that agreement it was understood, and in fact expressly agreed, that the plaintiff should furnish the necessary capital for the business and that the defendant.-was -to procure a concession, from the city of Boston, of the premises to be occupied. It was further agreed that the defendant was not to give his personal time to the business unless he so desired. The interest of the partners was to be equal so far, as a division of the profits.</p> <p>“I find that, pursuant to this agreement, the defendant did procure, from the city of Boston, the concession referred to, for the benefit, of the. business, and to be held by him for its use.and benefit and as partnership property, and not as his individual property, and that the parties pursuant to the agreement entered upon its .performance and procured personal property, including furniture, fixtures and merchandise to be used therein and as partnership property, and opened the business, believing and understanding that the business was to be carried on by them as partners' and that the plaintiff was thereafter to perform his part of the agreement by the furnishing of sufficient capital for the business.</p> <p>“I further find that the plaintiff did furnish some capital for the business, but do not deem it within the purview of the present hearing to determine how much capital he did furnish, or to determine how much he agreed to furnish or how much was reasonably required.</p> <p>“ I find as a fact that he did not furnish all the capital reasonably required for the business, and that the defendant was obliged to furnish capital himself, and did so furnish it. Notwithstanding the fact that the plaintiff did not comply with all the terms of the agreement; the defendant did not for that reason attempt to rescind the agreement or to cease transacting the business that had been commenced under the understanding and agreement herein-before referred to.</p> <p>“I further find that the business was so carried on until early in the month of October last [1914].</p> <p>“This finding is not intended to state the amounts-of capital contributed by either partner, the value of services rendered, the amount that each partner was entitled to withdraw from the business, or any fact other than those specifically herein set forth.</p> <p>“The case is to be referred to a master to determine the questions hereinbefore referred to as not covered by this finding; to determine any other questions necessary for final decision of the case, and for the purpose of an account.”</p> <p>The master, who was appointed under the interlocutory decree thus ordered, made the findings that are stated in the opinion.</p> <p>The defendant’s exceptions to the master’s report, which are referred to in the opinion, were as follows:</p> <p>“1. The defendant excepts to the master’s ruling that the lease from the city of Boston to the defendant Dwyer was not his individual property and was not in the nature of a contribution to capital to revert to him on dissolution.</p> <p>“2. The defendant Dwyer excepts to the master’s ruling that the finding of the court . . . [described below] is final and conclusive as to the plaintiff’s right to require the defendant Dwyer to account for the value of the lease after the date of dissolution.</p> <p>“3. The defendant excepts to the master’s ruling that the lease from the city of Boston to the defendant Dwyer is a proper element to be taken into consideration as one of the assets of the partnership on October 5, 1914.</p> <p>“4. The defendant excepts to the master’s ruling that the lease from the city of Boston to the defendant Dwyer is a proper element to be taken into consideration in determining the amount for which the plaintiff is entitled to an accounting.”</p> <p>The finding in the master’s report referred to in the second exception quoted above was as follows:</p> <p>“The defendant contends that this lease was his individual property, donated by him to the use of the partnership, so long as the firm existed, and was in the nature of a contribution to capital which reverted to him on the dissolution of the partnership. I rule to the contrary. The court has found in its memorandum of facts ‘That pursuant to said agreement the defendant did procure, from the city of Boston, the concession referred to, for the benefit of said business, and to be held by him for its use and benefit and as partnership property and not as his individual property.’ This finding is final and conclusive so far as the master is concerned.”</p> <p>The master found that, after making an allowance of $375 for the time from July 3 to October 5, the lease had a net value, over and above the rent reserved, of $4,125, and that this should be added as an asset existing on October 5, 1914.</p> <p>By order of Wait, J., a final decree was entered overruling the defendant’s exceptions and ordering the defendant to pay to the plaintiff the sum of $2,761 with interest from October 5, 1914, and costs. The defendant appealed.</p>

<p>Bill in equity, filed in the Superior Court on December 8, 1915, by the owner of certain land with a dwelling house thereon at the northwest corner of Pleasant Street and Piedmont Street in Boston, alleging that adjacent to the rear of the plaintiff’s premises and oil the defendant’s land there was a certain open courtyard or passageway leading from the defendant’s premises to Pleasant Street known as Newman Court which had been in existence as a court kept open for light and air and as a passageway for over sixty years; that the plaintiff had a right or easement to light and air over the court or passageway; that the defendant had made plans and was about to build upon the passageway greatly to the damage of the plaintiff and to his rights therein; and that the plaintiff had no adequate remedy at law; praying that the defendant might be enjoined from building on or over such passageway and that the plaintiff’s right in such passageway might be established.</p> <p>The answer alleged that "If the plaintiff or any other person has any right or easement to light and air over any part of his (the defendant’s) premises, such right or easement is limited to the right to maintain a specific number of windows, and that this right has long since been defined and limited by the placing of certain windows in full exercise of the right, which windows are above the roof of any building which the defendant contemplates erecting as above mentioned and will not be interfered with thereby.”</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts, including the facts stated in the opinion, to Morton, J., who made the following decree:</p> <p>“This case came on to be heard at this term upon an agreed statement of facts and certain photographs and was argued by counsel and it appearing to the court that this plaintiff now has a dwelling house upon the premises in question which is used as a dwelling house and that this plaintiff has the privilege under the deed from Neunan to Pratt, a copy of which is annexed to the agreed statements of facts, of putting two or three windows in any part of the north side of said dwelling house that he may desire or of any other dwelling house which may be built on said premises provided the same be blinded with reversed blinds; and it appearing that the defendant’s proposed building will be an infringement of said right and that the plaintiff is entitled to have a reasonable space left vacant in the rear of his property for the purpose of light and air for any window that may be placed in the first story of his premises or any other portion thereof; it is therefore ordered, adjudged and decreed that the defendant, his agents, attorneys, heirs and assignees and all persons claiming by or under him be and hereby are enjoined from building upon or over said place known as Newman Place in the rear of the plaintiff’s said lot, so long as the plaintiff shall maintain a dwelling house thereon, the defendant to have leave to apply to modify the terms of this injunction in case of a change in the circumstances of the parties before final decision by the Supreme Judicial Court.”</p> <p>The defendant appealed.</p>

<p>Workmen’s Compensation Act. Municipal Corporations, Fire department. Boston Fire Department. Words, “Laborers,” "Workmen,” “Mechanics.”</p> <p>A hoseman stationed at an engine house in the city of Boston, who is a member of the fire department of that city, is not a laborer, a workman or a mechanic within the meaning of St. 1913, c. 807, § 1, which provides that a city accepting that statute shall pay compensation in the manner provided in the workmen’s compensation act “to such laborers, workmen and mechanics employed by it as receive injuries arising out of and in the course of their employment, or, in case of death resulting from any such injury.”</p>

<p> Workmen’s Compensation Act. Proximate Cause. </p> <p>If a workman employed by a subscriber under the workmen’s compensation act, who had lost one eye before he entered such employ, is totally incapacitated for work by the loss of his remaining eye from an injury arising out of and in the course of his employment, he is entitled to compensation under the act, although his total incapacity is in part the result of the previous accident by which he lost the first eye.</p>

<p>Bankruptcy. Judgment, Special.</p> <p>In an action of contract, the defendant in which filed a petition in bankruptcy while the action was pending and obtained a discharge, but, although a suggestion of bankruptcy was filed, the defendant filed no answer setting up his discharge in bankruptcy as a bar to the plaintiff’s claim, it was assumed in the record before this court and in the briefs of the counsel on both sides that the discharge had the same effect that it would have had if duly pleaded, and the case was so treated by this court.</p> <p>In the case mentioned above there was no existing attachment or equitable lien, no bond had been given to dissolve the attachment and no money had been paid into court. The trial judge ruled that the discharge in bankruptcy barred the action and that no special judgment could be entered under R. L. c. 177, §§ 24, 25. Held, that the ruling was right.</p> <p>In an action at law a deposit of money by the defendant’s attorney with the. plaintiff’s attorney acknowledged to have been received “ in lieu of attachment bond ” cannot be made the foundation of a special judgment under R. L. c. 177, §§ 24, 25, being a form of security not recognized by that statute.</p>

<p>. Bill in equity, filed in the Superior Court on August 8, 1912, praying for an accounting for the alleged trust fund described in the opinion.</p> <p>The case was heard by Hamilton, J., who found the facts that are stated in the opinion and ordered that a decree be entered directing the defendant to pay to the plaintiff a sum of money equal to the interest allowed to the defendant by the Middlesex Safe Deposit and Trust Company upon the deposit by the defendant of $3,000, which had been placed in his hands to secure the payment by the plaintiff of the rent under a ten year lease to bim from the Wamesit Power Company, a corporation, as stated in the opinion.</p> <p>From the decree entered in pursuance of this order the defendant appealed.</p>

<p>Trust, Construction. Limitations, Statute of. Equity Jurisdiction, Laches. Equity Pleading and Practice, Intervening petition.</p> <p>By an interlocutory decree in equity it was ordered that certain specified property should be transferred to a trustee named, “in trust, to pay all present just debts, charges and expenses, of said E. R.,” including what might be found to be due to the trustee, to provide for the support of E. R. and to dispose of the balance of the estate remaining at her death. A petition to intervene in ' the suit was filed seven years and a half after the decree was made by an alleged creditor of E. R., setting forth a claim for services performed for her about nine years before the filing of such petition, and alleging that the trustee at all times had known of the petitioner’s claim. Upon demurrer it was held, that on the allegations of the petition the petitioner had a beneficial interest in the property held by the trustee, which was charged with the payment of the debt due to the petitioner, and therefore that the statute of limitations would not begin to run in favor of the trustee unless and until the trust was repudiated by him.</p> <p>In the same case it was held, that the petition disclosed no laches that would bar the petitioner’s claim, as it did not appear that any one other than the petitioner had been harmed by his delay in filing his petition.</p> <p>Where in an intervening petition in a suit in equity setting forth a claim, against a fund in the hands of a trustee, for money due the petitioner for services performed, it is alleged that “an attorney . . . without her [the petitioner’s] knowledge and against her express instructions signed her name to releases of her claim against said trust for the consideration of $30, no part of which she has ever accepted or received,” there is no occasion for the petitioner to aver an offer to return the $30.</p>

<p>Covenant. Contract, Construction. Landlord and Tenant.</p> <p>A lease of certain real estate was executed on June 9, 1913, for a term of twelve years beginning June 1, 1913. As of April 1, 1912, the land (apart from the buildings) was assessed for the tax year 1912-1913 at $98,900. As of April 1, 1913, the same land was assessed for the tax year 1913-1914 at $125,000; but when the lease was executed neither party to it knew or could have known of the change in the assessed valuation. The lease contained the following provision: “The Lessee covenants to pay to the Lessors the said rent as aforesaid and . . . further covenants that during said term in every tax year in which the valuation of the land (not including the buildings thereon) ... as valued by the Assessors for assessment of taxes shall exceed such present valuation thereof, namely, $98,900, he will pay to the Lessors as additional rent six (6) per cent of the amount of such excess.” Held, that by this provision the parties to the lease agreed upon $98,900 as the "present valuation” of the land for the purpose of ascertaining the rent to be paid, and that accordingly the lessor was entitled to additional rent equal to six per cent upon the difference between $125,000, the amount of the increased assessment, and $98,900, that is to say, upon $26,100.</p> <p>In the same lease it was provided that the additional rent above described should “be paid as follows: On the first day of October of the year in which such valuation shall first exceed such present valuation the Lessee shall pay to the Lessors one-half of said six (6) per cent, and thereafter on the days hereinbefore specified for the payment of rent the Lessee shall pay one-twelfth (1/12) of said six (6) per cent. On the first day of October in each year during said term there shall be an adjustment, and thereafter the monthly payments of such additional rent shall be based on the then excess, if any, in such valuation until the next adjustment. If such additional rent shall be payable hereunder in the tax year beginning April 1, 1913, or in the tax year beginning April 1, 1925, the same shall be apportioned.” It was said, that this provision for apportionment presumably meant that, if such additional rent should be payable for the first year of the lease, the lessee should pay on October 1 only for the four months’ period from the beginning of the term instead of for the half year from April 1.</p>

<p>Contract, Performance and breach. School, Teacher’s salary.</p> <p>A contract with a city, to perform the duties of a teacher of manual training in the public schools of the city at a fixed yearly salary, is a contract for the personal services of the teacher requiring Ms individual judgment and ability and is subject to the implied condition that the teacher shall be alive and able to do the work, and therefore is terminated by the teacher’s death.</p> <p>Where a teacher of manual training in the public schools of a city, who is employed by the year at a fixed salary payable in monthly instalments, dies dining the summer vacation after the expiration of eleven months of the school year when he has performed all the service required of Mm for that year, nothing is due to Ms executor or administrator for the twelfth month, Ms contract of service being entire and having been terminated by his death and he having been paid in full for his services up to that time.</p>

<p> Snow and Ice. Notice. </p> <p>In an action under R. L. c. 51, §§ 20-22, as amended by St. 1908, c. 305, and St. 1913, c. 324, for personal injuries resulting from the fall of ice or snow upon the plaintiff from the roof of a building, where both the owner and the lessee of the building are made defendants, proof of a correct notice in writing addressed to and delivered to the owner, is not proof of a notice to the lessee, and, if it appears that the building was within the exclusive control of the lessee and the plaintiff discontinues his action as against the owner, he cannot maintain the action against the lessee without proof of a notice to him.</p>

<p> Workmen’s Compensation Act. Proximate Cause. </p> <p>Where in a claim under the workmen’s compensation act against a city that had accepted the provisions of St. 1913, c. 807, the evidence warranted findings that the employee had “a pre-existing constitutional disease, known as syphilis,” which being dormant left unimpaired his ability to perform certain arduous work for which he was employed, and that by reason of an accident arising out of and in the course of his employment his nervous system suffered a shock sufficiently severe to aggravate and accelerate the consequences of this condition until general paralysis and insanity resulted, depriving him of all capacity for work in the future, it was held, that an award rightly was made to him of compensation for total incapacity under the provisions of St. 1911, c. 751, Part II, § 9, as amended by St. 1914, c. 708, § 4.</p>

<p>Landlord and Tenant. Negligence, Of one controlling real estate.</p> <p>In an action by the tenant of a store in a building against his landlord, who was the owner of the building and in control of its roof and pipes, for damage to the plaintiff’s goods alleged to have been caused by the negligence of the defendant in permitting a pipe or conductor leading from the roof to become leaky and out of repair, where there is evidence that at the time of the letting the roof and the pipe were in good repair, that the defendant retained control of the roof and the pipes leading from it, that a waste pipe leading from the roof directly over the plaintiff’s store was overloaded, that the cap and strainer at the entrance of the pipe on the roof were allowed to become and remain detached or raised from their place so as to permit leaves from neighboring trees to enter the pipe and obstruct it until the accumulation of pent up water overflowed into the plaintiff’s shop and damaged his goods, the plaintiff is entitled to go to the jury.</p>

<p>Capital and Income. Trust, Duties of trustee. Corporation, Dividend.</p> <p>Where a dividend is declared on shares in a corporation that are held by a trustee under a trust requiring the payment of the net income to certain beneficiaries for life with an ultimate remainder over of the principal of the fund, and where the vote of the directors of the corporation recited that such dividend was "declared out of accumulated surplus profits of this company,” which recital is true, the whole of the dividend must be treated as income and distributed to the beneficiaries for life, although the larger part of the dividend is payable in shares of another corporation and the whole dividend amounts in value to $33.30 on each share of $100. Following Gray v. Hemenway, 206 Mass. 126, and Gray v. Hemenway, 212 Mass. 239.</p> <p>A dividend made by a corporation from its accumulated surplus profits is none the less to be treated as income because a part of the surplus came from a special dividend that it received upon the shares of another corporation held by it and which was derived by such other corporation from its profits in the sale of certain property held by it.</p> <p>Nor is such a dividend any the less to be treated as income because derived in part from profits gained in the conversion into shares of certain convertible bonds previously issued by the corporation.</p> <p>It seems, that, where a corporation holds shares of another corporation as a part of "the corporate property used in its business but does not permanently capitalize '. the shares, such shares are available for distribution in a dividend of surplus :profits when no longer needed as “floating capital.”</p>

<p>Probate Court, Late entry of appeal.</p> <p>Upon a petition under R. L. c. 162, § 13, which provides that “If a person who is aggrieved [by a decree of the Probate Court] omits, without default on his part, to claim or prosecute his appeal and it appears that justice requires a revision of the case, the supreme court of probate . . . may, upon bis petition and upon terms, allow an appeal to be entered and prosecuted,” it appeared that no notice of the appeal had been filed in the registry of probate as required by § 10 and that, near the end of the thirty days mentioned in that section, the petitioner went to the clerk’s office for the purpose of having an appeal entered and, without paying or tendering any entry fee, left “upon the counter” or gave “to someone whom he met there” a paper purporting to be a “copy of the objections,” that the next day, when the paper was discovered, notice of the finding of the paper was sent by the clerk to the office of the petitioner’s counsel, that the only reply received was that the member of the firm in charge of the case “was away and to hold on to the paper,” and that thereafter the thirty days expired without anything more being done. Held, that no sufficient excuse for the omission of the steps necessary for taking and perfecting an appeal was shown and that the petition should be dismissed. '</p>

<p>Negligence, Toward licensee, Wilful or reckless conduct, Agreement to assume risk. Contract, Validity. Evidence, Materiality, Interrogatories. Practice, Civil, Conduct of trial: interrogatories,-argument to jury.</p> <p>A tailor, who is sent for by the wireless telegraph operator on a vessel lying in port to bring on board a uniform that he has made for the operator to be tried on, and who is injured by a heavy bundle of canvas being dropped upon him from a great height, having been permitted to come on board the vessel for his own pecuniary gain, is a mere licensee, and the company owning and operating the vessel owes to him while on board merely the duty to refrain from wilfully or recklessly injuring him.</p> <p>In an action for injuries received in the manner above described, it is evidence for a jury of wilful, wanton or reckless conduct on the part of the servants of the owner of the vessel, that a roll of canvas, which struck the plaintiff while he was on the main deck and broke his leg, was thrown deliberately over the rail from the upper or boat deck without the slightest consideration for the safety of whomsoever might be in the path of the canvas as it descended.</p> <p>If a person was on a vessel lying in dock under a pass in writing which he accepted and used, on which it was stipulated that "The person accepting this Free Permit, in consideration thereof, assumes all risks of accident, and expressly agrees that the [owner of the vessel] shall not be liable under any circumstances whether by negligence of its agents or otherwise for any loss or injury to the person using this permit on steamer, gangway, or pier property,” he cannot maintain an action against the owner of the vessel for injuries caused by a heavy roll of canvas being recklessly thrown down upon him by the owner’s servants when he was on the main deck.</p> <p>The contract contained in such a pass is not void as contrary to public policy or the policy of the law.</p> <p>In an action brought for the injuries caused in the maimer above described, it is proper for the defendant to ask one of its witnesses, who was a sailor on board the vessel, “whether or not a parcel of canvas one and a half feet thick” and from twelve to fourteen feet long, as described by the witness, “could have been conveniently carried down the stairways,” this having some bearing on the question of recklessness.</p> <p>In the same action the plaintiff can put in evidence the orders given by the boatswain, in reply to an inquiry by one of the sailors whether the canvas was to be carried down or dropped down, “Throw it down; take a chance and throw it down.”</p> <p>In an action against a corporation for personal injuries, the plaintiff in his cross-examination of a witness for the defendant may make use of the substance of an answer to one of the interrogatories propounded by the plaintiff to the defendant’s president, this being a way of putting the answer in evidence; and, if the defendant does not choose to put in evidence the 'interrogatory and the entire answer to it or all the interrogatories and answers relating to that subject, this does not deprive the plaintiff’s counsel of the right afterwards to refer to the substance of the answer in hte closing argument to the jury.</p>

<p>Supreme Judicial Court. Equity Pleading and Practice, Appeal, Decree.</p> <p>On an appeal by the defendants from a decree ordering the specific performance of a contract to purchase certain hotel property from the plaintiff, entered by order of a judge of the Superior Court in pursuance of the rescript stating the decision of this court in King v. Connors, 222 Mass. 261, where the only question presented was whether the decree appealed from conformed to the rescript, it was held, that the decree must be construed in the light of the findings of the master confirmed by the decision of this court, and that it was not open to the defendants to discuss any issue thus disposed of.</p> <p>It appearing in the case mentioned above that the only new matter in the decree was the requirement from the plaintiff of a bond to secure the defendants from any damages they might sustain by reason of the existence of a certain lease, it was held, that this provision, which was inserted in the decree solely for the protection of the defendants, could give them no ground for complaint.</p>

<p>Devise and Legacy. Trust. Tax, On legacies and successions.</p> <p>A testator by the residuary clause of his will created a trust, in regard to which he made the following provision: “I desire that this Trust terminate ten years after the decease of my wife E, and the original Trust Fund be divided equally between my two children E and W. ... If either of my children die without issue, before the termination of this Trust, I wish one-half part of the income he or she would receive if living be given to the surviving child, & the other half part to such Charitable and Educational purposes as my Trustees shall see fit. If both children die without surviving issue then I wish the whole income to be given to Charitable and educational purposes as before mentioned and at the termination of this Trust if both children shall have died without issue surviving I wish the property to be given to such Charitable and educational purposes as the Trustees think best, unless either child shall have left a wife or husband, then I desire the Trustees to give to such wife or husband such proportion of the income or original fund as they think would be given by me if I were then alive.” Upon the termination of the trust, ten years after the death of the testator’s widow, the administrator of the estate of the testator’s daughter, E, who died intestate six years after the death of her mother, leaving a husband and two children, brought a bill for instructions. The husband and one of the surviving children of the plaintiff’s intestate had died before the termination of the trust, and when the bill was filed a surviving son of the intestate was her only heir at law. The plaintiff asked to be instructed whether his intestate had an estate in the principal of the trust fund at the time of the termination of the trust which passed to her son and was subject to a succession tax or whether her interest was divested at her death and her son took what had been her share as a legatee under the will of his grandfather, the original testator. Held, that the plaintiff’s intestate upon her father’s death took a vested estate in one half of the principal of the trust fund, which was to come to her upon the termination of the trust, subject to be divested by the happening of, certain contingencies which did not occur, and that her son upon the termination of the trust took this half of the trust fund as her heir at law and next of kin, so that under St. 1909, c. 490, Part IV, § 1, the Commonwealth was en-' titled to collect a succession tax upon the passing of the property.</p>

<p>Small Loans Act. Equity Jurisdiction, Under small loans act. Equity Pleading and Practice, Bill.</p> <p>Although under the small loans act notes given in violation of its provisions are declared by St. 1911, c. 727, § 17, as amended by St. 1912, c. 675, § 5, to be void, and the amount of any unlawful interest paid upon them may be recovered back in an action at law, a remedy in equity also is,given expressly by St. 1911, c. 727, §§ 10, 13, as amended by St. 1912, c. 675, §§ 3, 4.</p> <p>In a suit in equity under St. 1911, c. 727, §§ 10, 13, as amended by St. 1912, c. 675, §§ 3,4, to recover the amount of unlawful interest paid on notes made void -by the small loans act, where the bill prays for an accounting, although the defendant may be entitled to be paid so much of the loans as were not made in contravention of the statute or of the general principles of equity, yet it is not necessary for the plaintiff’s bill to contain an offer to pay the defendant any amount that may be found to be due to him upon the accounting prayed for, and the omission of such an offer is no ground of demurrer.</p> <p>In such a suit in equity to recover back unlawful interest paid on void notes, where the allegations in the plaintiff’s bill were somewhat vague and informally stated, it was held, that the facts intended to be relied upon were stated with sufficient clearness to allege proper grounds for relief.</p>

<p>Two actions'of tort, the first for assault and battery alleged to have been committed upon the plaintiff by one William E. Durand, an agent of the defendant, and the second by the husband of the plaintiff in the first action for consequential damages. Writs dated respectively April 13, 1911, and September 21, 1912.</p> <p>In the Superior Court the cases first were tried together before Hitchcock, J. The jury returned verdicts for the plaintiffs, and the defendant alleged exceptions, which were sustained in a decision reported in 218 Mass. 112.</p> <p>The cases were tried again before Bell, J. At the close of the evidence, the material portion of which relating to the only question now before this court is stated in the opinion, the defendant asked the judge to make, among others, the following rulings:</p> <p>“1. On the evidence the verdict should be for the defendant.”</p> <p>“9. If the defendant did, in fact, charge the goods to Durand, the canvasser, and he was thereafter held liable for the value, his act in attempting to retake the goods was on his own responsibility, even although he may, at the time, have been employed by the defendant in some other capacity.”</p> <p>“13. If the defendant charged the goods to Durand, in effect making a sale to him, and he later in attempting to retake the goods committed an assault on the plaintiff, the fact that the goods were later left by him in the store of the defendant would not constitute a ratification of his acts committed in retaking them in the absence of any knowledge on the part of the defendant of the means which he had employed in so doing, and there is no evidence upon which it may be found that anyone in authority from the defendant knew the goods were left in the store.”</p> <p>“17. If you believe that the defendant employed Durand merely for the purpose of selling the goods, that thereafter it sent another representative to request the return of the goods, subsequently charged them to Durand, that the title of the goods at that time passed to him, and that Durand, in entering the house of the plaintiff on the day of the alleged assault did so for the purpose of obtaining possession in order that he might turn the goods back to the defendant and receive credit for their value, verdict must be for the defendant.”</p> <p>“19. If you believe that the defendant did on September 3, 1910, charge the goods to the plaintiff, your verdict should be for the defendant.”</p> <p>The judge refused to make these rulings and submitted the cases to the jury, who returned a verdict for the plaintiff in the first case in the sum of $2,000 and a verdict for the plaintiff in the second case in the sum of $350. The defendant alleged exceptions.</p>

<p>Tort against Edward J. Hammond and Arno J. Pendleton, trustees of the Beacon Street Corner Trust, for personal injuries sustained by the plaintiff on May 31, 1913, at about five o’clock in the afternoon, from the falling of a dumb-waiter upon her wrists when the plaintiff was using it in connection with the apartment occupied by her in a house belonging to the defendants. The first count of the declaration alleged a failure to maintain the dumb-waiter in a safe and proper condition for the plaintiff’s use and the third count alleged that the dumb-waiter was constructed in an unsafe and dangerous manner. The other counts were waived. Writ dated August 15, 1913.</p> <p>In the Superior Court the case was tried before Irwin, J. The evidence is described in the opinion. It was stated in the bill of exceptions that, after about a week of the existence of the first lease to the plaintiff, the dumb-waiter “was used exclusively by the plaintiff and those occupying under her and those having occasion to send up and take down material on the dumb-waiter to and from the apartment of the plaintiff.” There was evidence that one McSweeney was the janitor of this building, as well as of other buildings, that he “tended the heating apparatus which furnished heat to the various apartments, took off ashes and garbage placed on the waiter by the plaintiff and lowered sometimes by the plaintiff, sometimes by himself, and sent up ice, milk and groceries left in the basement for the plaintiff.. He testified that the milk and groceries usually were left in boxes or compartments allotted to the different tenants in the entrance to the basement and that when he came round, usually about five o’clock in the afternoon, he sent the plaintiff’s up on the waiter.” There also was evidence that “Grocery men, provision men and others were accustomed also to use the dumb-waiter, but solely in connection with the plaintiff’s apartment.”</p> <p>At the close of the evidence the defendants asked the judge to make various rulings, among which were the following:</p> <p>“1. On all the evidence the plaintiff cannot recover.</p> <p>“2. The plaintiff is not entitled to recover under the first count.”</p> <p>“4. The plaintiff is not entitled to recover under the third count.”</p> <p>The judge refused to make these rulings and submitted the case to the jury on the first and third counts. The jury returned a verdict for the plaintiff against both defendants personally in the sum of $500; and the defendants alleged exceptions.</p>

<p>Trust, Construction, Administration.</p> <p>A testator by his will gave the rest and residue of his estate to his sister for life with a power of disposal during her lifetime and directed that, after her death, “the balance” undisposed of by her should be held by the town of his residence in trust to use the income for the preservation of a monument at his grave and for the care and beautifying of his lot in the cemetery, with a direction that the town should not expend more than four per cent a year for such purposes. The testator owned no lot in a cemetery at the time of his death but was buried in a lot owned by his sister, for the perpetual care of which she had paid to the proprietor of the cemetery the sum of $55. The amount usually left in trust for the perpetual care of a lot in that cemetery was $100. At the death of the sister, “the balance” undisposed of included several parcels of land. At a time when there had accumulated in money in the possession of the town under the trust the sum of $677, the heirs at law of the testator and those claiming under the will of the sister brought a bill in equity seeking to have the lands in the possession of the town as trustee conveyed to them on the ground that the other funds held by the trustee were ample for the performance of the trust. Held, that the trustee in the performance of the trust was not controlled by the standard adopted in the care of the lots in the same cemetery, and therefore that the bill must be dismissed. ■ -</p> <p>It was intimated that, if the average net income in a series of years should exceed four per cent upon the principal, a question fairly might be raised as to the disposition of the surplus.</p> <p>And also that a like questioñ fairly might be raised if it should, prove' impossible reasonably to expend the income in the manner provided by the trust without waste.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Equity Pleading and Practice, Amendment from equity to law, Costs. Bills and Notes, Whether joint or joint and several.</p> <p>The interest under an insurance policy of one insured by a contract of fire insurance on a building in the Massachusetts standard form, after the destruction of the building by fire but before the insurance company has elected whether it will pay the loss or will rebuild the building, is property which can be reached and applied in a suit in equity under R. L. c. 159, § 3, cl. 7, in satisfaction of a debt of the insured.</p> <p>The provisions of R. L. c. 173, § 52, empowering the Supreme Judicial Court or the Superior Court to allow amendments changing a suit in equity into an action at' law or an action at law into a suit in equity “upon terms,” do not require that, in granting such a motion, costs shall be imposed upon the moving party, but the imposition of costs still is left, under R. L. c. 203, § 14, and Equity Rules 12 and 21, within the discretion of the court and such an amendment may be allowed without costs.</p> <p>Under R. L. c. 73, § 34, cl. 7, where a promissory note contains the words, “I [with the word ‘We’ written above it] promise to pay,” and is signed by two . persons, they are jointly and severally liable thereon.</p> <p>The payee of a joint and several promissory note at the same time may pursue his remedy against one of the joint makers in equity and against the other at law.</p>

Contract against the executor of the will of Charles H. Greenwood, late of Boston, for interest alleged to be due to the plaintiff by reason of a delay beyond a year in the payment of a legacy. Writ dated August 25, 1915.

<p>Replevin of an automobile. Writ in the Municipal Court of the City of Boston dated April 24, 1915.</p> <p>In the Municipal Court the presiding judge found for the plaintiff, and, at the request of the defendant, reported the case to the Appellate Division. His report stated the following facts among others:</p> <p>The automobile in question was owned by the plaintiff, but, with the consent of the plaintiff, was registered in the name of one Sewell. On or about October 4, 1914, Sewell with the plaintiff’s permission took the automobile on a personal errand to Canton. Late in the day he rode into the defendant’s garage in Boston and stated that he was the owner of the automobile and that he desired to store it. After the defendant had stated his terms for storage, Sewell said that he would leave it “a few days.” He did not give the defendant any information as to the true facts regarding the ownership of the automobile and never communicated with the defendant thereafter.</p> <p>The plaintiff asked Sewell about the automobile frequently but did not learn of its whereabouts until in February, 1915.</p> <p>The plaintiff for the first time communicated with the defendant on February 24, 1915, when, with her approval, a letter was written to the defendant stating that the automobile was hers and was "registered in the name of John M. Sewell simply because it would have been an inconvenience for” her “to register it in her own name.” The letter continued: “We wish to notify you to hold the car subject to our disposal. The storage etc., Mr. Sewell contracted and will have to pay. Under no conditions should Mr. Sewell be allowed to take the car from your garage unless you receive written instructions from us.”</p> <p>The report continued as follows:</p> <p>“Nothing further was done by either party until the time of replevying.</p> <p>“At the time of replevin the defendant claimed and demanded payment of a storage lien up to May 4, 1915, which would be tho. end of an even seven months from October 4, 1914, of $105. This report contains all the evidence material to the questions reported.”</p> <p>The judge also found, “that the plaintiff’s conduct as to Sewell’s, use and control of the automobile was not known to the defendant.”</p> <p>Other material facts are stated in the opinion. The Appellate Division ordered judgment for the defendant; and the plaintiff appealed.</p>

<p>Negligence, Employer’s liability. Evidence, Opinion: experts, Photographs, Deposition. Practice, Civil, Conduct of trial.</p> <p>Where, before the workmen’s compensation act went into effect, an employee of the proprietor of a lumber yard was injured by the falling upon him of a temporary lumber pile as he was assisting in loading a plank from the pile to a wagon, he cannot recover for his injuries in an action against his employer under the employers’ liability act based upon alleged negligence of a superintendent, who was the defendant’s yard foreman and who a few days before the accident had ordered the pile placed where it was, if it appears that the superintendent was not present when the plaintiff was injured and there is no evidence that he was present when the lumber was piled, nor that he directed the piling, nor that he selected for the work other than competent and experienced men, nor that he knew that the pile when completed was unsafe or knew or should have known that it probably would become unstable and dangerous from any cause other than interference with the support one plank afforded to the other, nor that he directed the removal of the plank nor that it was his duty as yard foreman to superintend the performance of such work.</p> <p>In the case above described, it appeared that the plaintiff was a teamster of sixteen years’ experience in the defendant’s yard, that he was assisting in the loading of the plank at the direction of a “tallyman,” so called, whose duty, upon receiving orders on slips of paper from the defendant’s office, was to procure from the superintendent men to assist in loading on teams the lumber called for on the order as he should find it, he having charge of the loading of the teams and the men being under a duty to obey him; but there was no evidence that the tallyman had any knowledge of the manner in which the pile which fell had been built or of its condition as to safety beyond what was apparent to the observation of the plaintiff and his experienced co-workers. Held, that there was no evidence that the accident was attributable to any act or default of the tallyman in connection with any matter over which he had or had assumed to have power of superintendence.</p> <p>A workman in a lumber yard cannot recover in an action at common law against his employer for injuries, received by him, while loading lumber from a pile to a wagon, before the workmen’s compensation act went into effect, and caused by improper construction of the pile, if it appears that the piling was done by his fellow servants.</p> <p>It is a proper exercise of discretion by a judge presiding at the trial of an action for personal injuries due to the falling of a temporary pile of lumber alleged to have been caused by its improper construction, to exclude expert testimony upon the question of the proper piling of the pile, the subject requiring no peculiar learning or experience and being one upon which the jury can have no difficulty in forming an opinion for themselves as to the likelihood of the pile to fall and injure a person near it.</p> <p>It is improper for a judge presiding at a trial of an action for personal injuries caused by the fall of a pile of lumber to admit in evidence unverified photographs of piles of lumber, if they are not received as chalks and it is not contended that they represent actual conditions as they existed at the time of the accident.</p> <p>Where, after the plaintiff has rested at the trial of an action at common law, the defendant also rests without having introduced any evidence and without offering in evidence a deposition of a witness, which had been taken at his request and by consent of parties under Rule 35 of the Superior Court two days before the trial of the action, copies having been submitted to the counsel for both parties but the original not having been filed with the clerk of the court as required by Rule 36, it is proper for the presiding judge to refuse to permit the plaintiff to introduce the deposition in evidence.</p>

<p> Review, Writ of. </p> <p>The granting or denial of a petition for a writ of review is a matter of discretion.</p> <p>On a petition for a writ of review no relief will be given from results that naturally followed negligence of the petitioner’s counsel in the preparation or the trial of the petitioner’s case in the Superior Court.</p>

<p>Workmen’s Compensation Act, Notice, Filing claim.</p> <p>Under the provision of St. 1911, c. 751, Part II, § 18, that a claim for compensation under, the workmen’s compensation act shall not be barred for want of notice “if it be shown that the association, subscriber or agent had knowledge of the injury,” proof that the injured workman within three days from the time he received the injury gave oral notice of it to his foreman and that “a report of the injury to the employee was filed promptly by the subscriber,” establishes knowledge of the subscriber which makes proof of notice unnecessary.</p> <p>Ignorance by an injured workman of the requirement of St. 1911, c. 751, Part II, § 23, as added by St. 1912, c. 571, § 5, that a claim'in writing for compensation shall be filed with the Industrial Accident Board within the six months prescribed by § 15, cannot be found to be a “mistake or other reasonable cause” for the omission to file such a claim by one who had given oral notice of his injury to his foreman and a notice of it by letter to the insurer, in which he wrote, “If there is anything I should do please let me know as I don’t know just what to do,” and to which the insurer had answered, "You will, therefore, be obliged to present yourself at this office at an early date for the purpose of an examination” but did not mention any requirement as to filing a claim in writing with the Industrial Accident Board.</p>

<p> Workmen’s Compensation Act. </p> <p>There is nothing in St. 1911, c. 751, Part II, §§ 15, 23, as amended by St. 1912, c. 571, § 5, which requires that a claim for compensation under the workmen’s compensation act shall state anything more than “the time, place, cause and nature of the injury;” and the particular results of the injury, which often cannot be anticipated, are not required to be stated.</p> <p>An agreement under the workmen’s compensation act between the insurer and an injured employee for specific additional compensation for twenty-five weeks for the loss of three fingers, and its approval by the Industrial Accident Board, are not a final determination that the injury to the employee consisted of the loss of three fingers and was not an injury to the hand rendering it incapable of use, and the injured employee, after the compensation under the agreement has been paid in full, still has the right to claim other additional compensation for a further period of twenty-five weeks under St. 1913, c. 445, § 1, as amended by St. 1914, c. 708, § 6 (e), for a hand “not lost but so injured as to be permanently incapable of use.”</p>

<p>Landlord and Tenant. Damages, In recoupment. Corporation.</p> <p>In an action upon a covenant in a lease for the rent of a store, the defendant sought to recoup damages for the breach by the plaintiff, the lessor, whose place of business was near by on the same street, of a covenant in the lease by which he agreed not to sell neckties or underwear during the term of the lease. It appeared that the leased store was not used by the defendant personally but was used by a corporation, of which the defendant was manager, to which he had transferred all his business and of which he held all the capital stock except two or three shares, and that the relation of the lessee to the corporation was known to the lessor when the lease was made. Held, that the defendant could recover in recoupment only nominal damages, as the loss from the plaintiff’s breach of the covenant not to sell neckties and underwear had been suffered by the corporation and not by the defendant; that the corporation, which was not a party to the lease, had no rights under the covenant, and that the defendant, with whom the covenant was made, could not claim damages suffered by him as the manager and principal stockholder of the corporation, such indirect consequential loss as he thus had sustained not being as matter of law within the contemplation of the parties to the covenant nor following a breach of the covenant as a natural consequence.</p>

<p>Contract, What constitutes. Trust, Personal liability of trustee.</p> <p>If two persons, who are the trustees of a real estate trust, make a contract in writing for work and material to be furnished to them and sign the contract with the word "trustees” after their names, they are none the less on this account liable on the contract personally.</p>

<p>Practice, Civil, Appeal. Evidence, Presumptions and burden of proof. Municipal Court of the City of Boston.</p> <p>A judge of the Municipal Court of the City of Boston, at the trial before him of an action of contract, rightly may refuse to make a ruling that “Upon all the evidence the finding should be for the defendant,” if there is evidence on which he can and does find for the plaintiff.</p>

<p>Tort for personal injuries received in a collision between an automobile of the R. & L. Company, in which the plaintiff was, and an automobile of the defendant. Writ dated June 5, 1913.</p> <p>The action was tried before King, J., together with one by. the same plaintiff against the R. & L. Company. In the course of the cross-examination, by the counsel for the defendant Armstrong, of an employee of the R. & L. Company, it appeared that one Warren, the driver of the automobile of the R. & L. Company, had made a report to his employer immediately after the accident. In cross-examination of the witness by the counsel for the plaintiff, it appeared that the report had been sworn to but that the original could not be found, and that the witness could not remember that the report was signed “William H. Warren, R. & L. Company, 915 Boylston Street, Boston.” On redirect examination the witness was shown a paper procured from the plaintiff’s counsel, which he testified was a copy of that report. After a colloquy of the counsel for the two defendants and the judge, the paper was offered and excluded.</p> <p>The counsel for the plaintiff then asked the witness, “Since looking at the paper ... is your memory so refreshed that you are now able to remember that Mr. Warren signed the paper William H. Warren, R. & L. Company, 915 Boylston Street?” and the witness answered, "No, no, because—”</p> <p>The counsel for the R. & L. Company then again offered the paper, and, the plaintiff stating that he had no objection to it, the judge admitted it.</p> <p>In the course of the colloquy with regard to the admission of the paper, the counsel for the defendant Armstrong stated to the presiding judge, “One further question. You have admitted it, as I understand it, as against the plaintiff, how can it be against the plaintiff?”</p> <p>The judge replied, “I don’t know, but he didn’t object to it, I don’t know that it acts against him, but he is not objecting to it, it being offered by one defendant, as between the R. & L. Company and the plaintiff, it is received without objection. As against the defendant Armstrong it is excluded, and the jury are expressly told not to consider it as far as Armstrong is concerned.”</p> <p>The entire paper then was read to the jury, the judge repeatedly interjecting instructions that it was in no sense evidence that the jury could consider against the defendant Armstrong. The defendant Armstrong excepted. The contents of the paper were as follows:</p> <p>“Saturday, May 3rd, 1913. About 4.45 P. M. while driving a Garford automobile, Model G. 8 Chasis 214 touring car, registered in Massachusetts under number 0526J, property of the R. & L. Company, on Cross Street, Somerville, in the direction of Boston, Mass., a car driven by David B. Armstrong, registered under number 0834B Massachusetts, came out of Flint Street, giving no audible signal, and struck the car I was driving at right hand rear wheel, breaking three spokes in wheel, bent rear fender beyond, repair, dented touring body, smashed hub cap and caused injuries to the brake and axle. This accident was unavoidable on my part. The occupants of my car were E. A. Gilmore, 200 Devonshire Street, Irene Kennedy, 200 Devonshire Street, and Reginald Gilmore, 14 years old. The occupants of the car driven by David Armstrong were Abner T. Armstrong and J. W. Palmer of Somerville. I was driving at the rate of 15 miles an hour and was on the proper side of the road, namely, the right hand side. The registration number 0834B, Massachusetts, is under the name of Armstrong and Curtis, Somerville, Mass. William H. Warren, R. & L. Company, 915 Boylston Street, Boston.”</p> <p>There was a verdict for the plaintiff in the sum of $15,505. On motion of the defendant it was ordered that the verdict be set aside unless the plaintiff should remit $6,000 therefrom, the judge filing the following memorandum:</p> <p>"1. I deem the damages awarded the plaintiff excessive for the injuries sustained by her.</p> <p>“2. Through no intention, or censurable fault of counsel, but through probable inadvertence of a witness, the jury that tried this cause learned, or had reason to believe, that the defendant had at the time of the plaintiff’s injury some sort of insurance relating thereto and affecting his liability therefor. It seems to me natural, if not almost inevitable, that a verdict should in such a case, and that this verdict does, to a substantial extent, reflect the influence upon the jury of this information. With some hesitation I concluded at the time not to stop the trial of this cause and another being tried therewith because such information or suggestion of insurance had come to the knowledge of the jury. Nor do I now feel called upon to set aside the verdict absolutely. But it seems to me to be in furtherance of justice to give the plaintiff an opportunity to remit a part of her verdict, and only in case of her refusal to do so, to set aside the verdict absolutely and direct a new* trial.”</p> <p>Other facts are stated in the opinion.</p> <p>The defendant alleged exceptions.</p>

<p>Equity Jurisdiction, For establishment of debt against estate barred by short statute of limitations. limitations, Statute of. Executor and Administrator. Words, “Culpable neglect.”</p> <p>In a suit in equity under R. L. c. 141, § 10, against an administrator to establish a debt alleged to be due to the plaintiff which was barred under § 9 of that chapter because no suit for its collection had been commenced within two years from the time when the administrator gave his bond, it appeared that the debt was a balance due upon a promissory note given by the deceased to the plaintiff in January of a certain year payable in four months; that on the due date the deceased made a payment on account of the note and died two years later, that the defendant gave bond as administrator less than two months thereafter, that the plaintiff and the deceased had lived in that part of Boston formerly West Roxbury, that the plaintiff never saw nor heard from the deceased after the payment was made on account of the note and never made any attempt to find him until about two years and eight months after his death, when he wrote to the administrator, and that, for a period of from four to six months after the death of the defendant’s intestate, the plaintiff was absent from the Commonwealth. Held, that a finding was warranted that the plaintiff had been guilty of “culpable neglect,” which under the provisions of the statute was a bar to the suit</p>

<p>Bill in equity, filed in the Superior Court on September 1, 1911, and afterwards amended, against the Worcester Five Cents Savings Bank and one Francis J. Yates, a building contractor, alleging in substance that the plaintiffs had given to the defendant bank a mortgage to secure their promissory note for $4,800, that only $1,600 of that amount had been paid to the plaintiffs by the defendant bank, that the defendant bank had paid to the defendant Yates without authorization by the plaintiffs an additional $2,000, that, because the plaintiffs had refused to recognize that payment as a part of the debt secured by the mortgage and to pay interest thereon, the defendant bank had begun foreclosure proceedings, and that the plaintiffs always have been ready and willing to pay the defendant bank $1,600 and interest and still offered to do so. The prayers of the bill were that the defendant bank be enjoined from proceeding further with the foreclosure proceedings, that the amount due to the bank from the plaintiffs be determined, and that, upon payment of such amount by the plaintiffs to the bank, the mortgage be discharged.</p> <p>The suit was referred to a master. The substance of his findings is stated in the opinion, where also are described seven motions by the plaintiffs. The motions were heard by Fox, J., and, as stated in the opinion, five of them were denied. The plaintiffs alleged exceptions to the denial of such motions and the exceptions were allowed. While these exceptions were pending, the following order, purporting to be a decree and signed by Wait, J., was filed:</p> <p>“This cause came on to be heard on motion to confirm the master’s report and for a decree, and was argued by counsel. On consideration thereof it is ordered that the exceptions to the report of the special master be and they are overruled, the report of the special master be and it is confirmed; and it is further ordered, adjudged and decreed that the bill of complaint be and it is dismissed, without costs.”</p> <p>The plaintiffs appealed from the foregoing “decree.”</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 15, 1914, begun by Maria Emma Keefe (and afterward prosecuted by the executor of her will) against John H. Cogswell, administrator de bonis non of the estate of John D. Gilman, and Wilford D. Gray, administrator with the will annexed of the estate of Annie C. Gilman, who was the wife of John D. Gilman, alleging in substance that the plaintiff was the owner of certain real estate in South Boston which was subject to a mortgage securing a note of $800 held by John D. Gilman at the time of his death; that Annie C. Gilman had been appointed administratrix of the estate of her husband and had performed all her duties as administratrix and had distributed substantially all the assets of the estate among herself and the next of kin, two sons, and that among the assets distributed to herself were the Keefe note and the mortgage securing it, but that by accident, mistake or inadvertence she did not make a formal assignment of the mortgage to herself; that on her death Annie C. Gilman by her will gave the Keefe note to the plaintiff and directed the executor of her will to discharge the mortgage, both the note and the mortgage then being among her effects; that the defendant, the administrator with the will annexed of her estate, denied that the note and mortgage were a part of her estate and had delivered them to the defendant, the administrator de bonis non of the estate of John D. Gilman. The prayers of the bill were that the mortgage should be discharged and that the note should be delivered to the plaintiff.</p> <p>After the suit was brought, Maria Emma Keefe died and the executor of her will was admitted to prosecute the suit in her stead.</p> <p>The suit was referred to a master. Among other facts, he found that the mortgage and mortgage note in question originally had been given to one O’Keefe, who had indorsed the note in blank and had executed an assignment of the mortgage and had delivered both to John D. Gilman, who held them at the time of his death, that Annie C. Gilman never had filed any account of her administration of the estate of her husband, and that her will was made three days before her death. He also found that the “only evidence of any distribution of the estate of John D. Gil-man by Annie C. Gilman by which it may be determined that she had set apart the said note and mortgage to herself as part of her distributive share therein is such inference as may be drawn from the clause in her will whereby she sought to dispose of the same as her individual property.” “Other material facts found by him are stated in the opinion.</p> <p>A final decree dismissing the bill was entered by order of Pierce, J., and the plaintiff appealed.</p>

<p>Venue. Eminent Domain. Boston. Damages, For property taken or impaired under statutory authority.</p> <p>A petition to assess damages for land taken by the street commissioners of the city of Boston under St. 1909, c. 486, § 31, by a taking originally invalid which after-wards was made valid by the confirmatory statute St. 1914, c. 569, can be filed only in the county of Suffolk, and such a petition filed in the county of Middle-sex must be dismissed.</p>

<p> Lowell. Referendum. Municipal Corporations. </p> <p>An order passed by the municipal council of Lowell to extend a certain street in that city from one street named to another street named is not “the granting, renewal or extending of any general franchise or general right to occupy or use the streets, highways, bridges or. public places in the city,” and therefore under the provision of the amended charter of the city of Lowell contained in St. 1911, c. -645, § 61, a petition for a referendum vote upon such order must be filed in the office of the city clerk during the ten days next following the passage of the order, and not merely during the thirty days next following its passage.</p>

<p>Tax, Excise on corporate franchise, On shares in national banks. Corporation, Excise on franchise of domestic business corporations. Bank. National Bank.</p> <p>Under St. 1909, c. 490, Part III, §§ 11, 20, 41, 43, the tax commissioner, in determining the amount of the franchise tax to be levied upon a domestic business corporation owning shares of stock in national banks, should treat such shares under § 43 as "securities which if owned by a natural person resident in this Commonwealth would be liable to taxation,” and should refuse to make deductions of the value of these shares under § 41 as “securities which if owned by a natural person resident in this Commonwealth would not be liable to taxation;” such shares being none the less liable to taxation because the taxes upon them are required by the statute to be paid by each bank after being assessed to the owner of the shares in the city or town where such bank is located, and the bank being given a lien on the shares for the payment of such taxes.</p> <p>The rule for determining the amount of the franchise tax to be levied on domestic business corporations, which is stated above, does not violate U. S. Rev. Sts. § 5219.</p> <p>Our tax law makes no discrimination in favor of shareholders of trust companies as against shareholders of national banks.</p> <p>A difference in the method of taxing shares of stock in national banks and shares in other moneyed corporations does not amount to discrimination under U. S. Rev. Sts. § 5219, where it does not appear that this difference results in imposing a greater burden on national banks than upon other moneyed capital.</p> <p>In deciding the points stated above it was assumed, without deciding it, that the payment of the property tax upon the shares of national bank stock owned by the plaintiff, a domestic business corporation, was valid.</p>

<p>Workmen’s Compensation Act, Dependency, Time of filing claim. Evidence, Competency, Official records.</p> <p>If the widow of a deceased employee, who makes a claim under the workmen’s compensation act as having been dependent upon her husband for support at the time of his death, is a native and resident of a foreign country and never has been in this country, where her husband remained continuously for six or eight years before his death, and if there is no evidence that she was living apart from her husband for justifiable cause or that he deserted her, she cannot be awarded compensation under clause (a) of St. 1914, c. 708, § 3, as a person conclusively presumed to have been wholly dependent for support upon the deceased employee, and the question whether such widow was actually dependent in whole or in part upon her husband at the time of his death must be determined under St. 1911, c. 751, Part V, § 2, and the last paragraph of clause (c) of St. 1914, c. 708, § 3.</p> <p>Evidence, that an employee living continuously in this country for six or eight years before his death during that time sent to his wife living in a foreign country sums of money amounting in all to $161, there being nothing to show the circumstances of the wife nor whether she had other and independent means of support, does not warrant a finding that such wife was wholly dependent upon the earnings of her husband for support at the time of the injury that caused his death.</p> <p>Whether the provisions of the workmen’s compensation act relating to the death of employees were intended to benefit widows or other dependents living in a foreign country and having no domicil in this Commonwealth, here was referred to as a question that was not raised and consequently was not considered.</p> <p>A deposition of a claimant for compensation as a dependent under the workmen’s compensation act is competent evidence upon the question of the dependency of the claimant, and the weight to be given to it is to be determined by the arbitration committee and the Industrial Accident Board.</p> <p>In support of the claim of an alleged dependent widow under the workmen’s compensation act living in a foreign country, post office records are admissible in evidence to show that the deceased employee purchased money orders payable to his wife.</p> <p>Under St. 1912, c. 571, § 5, providing that “The failure to make a claim [under the workmen’s compensation act] within the period prescribed by section fifteen [six months after the injury] shall not be a bar to the maintenance of proceedings under this act if it is found that it was occasioned by mistake or other reasonable cause,” the fact, that the widow of a deceased employee, who makes a claim as his dependent, resides in Italy, does not in itself warrant a finding that there was reasonable cause for her failure to file her claim within six months after the injury to her husband that resulted in his death.</p> <p>Whether the requirement of the workmen’s compensation act, that a claim under the act must be filed within six months after the occurrence of the injury to the employee, is one that can be waived by the insurer, here was spoken of as a question which it was not necessary to decide in the present case.</p>

<p>Bill nsr equity, filed in the Superior Court on March 16,1914, seeking to establish a resulting trust in favor of the plaintiff in certain land and the buildings thereon on Lewis Avenue in Arlington standing in the name of the defendant, the wife of the plaintiff, and praying that the defendant be ordered to convey the real estate to the plaintiff and to refrain from disposing of it otherwise.</p> <p>The case was heard by Wait, J., who found the facts that are stated in the opinion and ordered that the bill be dismissed, without costs. From a final decree entered in pursuance of this order the plaintiff appealed, and the judge, at the plaintiff’s request, made a report under R. L. c. 159, § 23, of the material facts found by him.</p>

<p>Tort by the administrator of the estate of John J. Walsh for the conscious suffering and death of the plaintiff’s intestate on November 23, 1914, caused by his falling down an elevator well while in the employ of the defendant when delivering milk in a building on the corner of State Street and Commerce Street in Boston. Writ dated December 5, 1914.</p> <p>The original declaration contained two counts. The defendant demurred, the demurrer was sustained and the plaintiff amended his declaration by adding a third and a fourth count. The defendant demurred to the third and fourth counts, the demurrer was sustained and the plaintiff amended his declaration by adding a fifth, a sixth, a seventh and an eighth count. The defendant then demurred to these counts. The substance of the allegations is stated in the opinion.</p> <p>The case was argued on the last demurrer before Morton, J., who sustained the demurrer and ordered judgment for the defendants. The plaintiff appealed.</p> <p>St. 1911, c. 751, Part I, § 1, is as follows: “In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defence: 1. That the employee was negligent; 2. That the injury was caused by the negligence of a fellow employee; 3. That the employee had assumed the risk of the injury.”</p>

<p>Executor and Administrator, Liability on bond. Bond, Of executor or administrator. Fraud, As against creditors.</p> <p>In an action on the bond of an administrator, where the declaration alleges that the plaintiff as a creditor of the intestate has recovered judgment for his debt against the administrator, that the administrator has neglected upon demand made by the plaintiff to pay the debt to the plaintiff or to show sufficient goods or estate of the intestate to be taken on execution for that purpose, it is right for the trial judge to refuse a request of the defendant, opposed by the plaintiff, to order the removal of the case to the jury waived list, the issues being questions of fact for a jury.</p> <p>Where at such a trial the principal defendant admits that the plaintiff brought an action against him as administrator and recovered judgment for the debt and that the defendant failed to expose goods or estate to be taken in satisfaction thereof, and where it is not disputed that the amount of the judgment debt is larger than the penal sum of the bond with interest from the date of the writ, the trial judge in his discretion properly may order a verdict for the plaintiff in the penal sum of the bond with interest thereon from the date of the writ.</p> <p>It is no defence to such an action on an administrator’s bond for the administrator to prove that he filed in the Probate Court an account purporting to show that the assets which had come to his hands had been exhausted in the payment of charges and preferred claims, if it does not appear that such account ever was allowed by the Probate Court.</p> <p>Nor is it a defence to such an action on an administrator’s bond for the administrator to show that, about a month after the entry of the plaintiff’s judgment and the issuing of execution thereon, the administrator filed a petition in the Probate Court representing the estate to be probably insolvent, if no further proceedings upon such petition are shown.</p> <p>Where, in an action on an administrator’s bond, the plaintiff in interest contends "that the former administrator whose bond is in suit committed a breach of the bond in failing to institute proceedings to recover certain property conveyed by the intestate in fraud of bis creditors, and it appears not only that the former administrator had knowledge of the intestate’s fraudulent conveyance but also that he and one of the sureties on the bond were the fraudulent grantees, no contention of the defendants can prevail which is founded on the assumption that the former administrator was ignorant of the intestate’s conveyance in fraud of creditors.</p>

<p>Physicians and Surgeons. Clairvoyant. Evidence, Of intent.</p> <p>At the trial of a complaint under R. L. c. 76, § 8, for practicing medicine without being lawfully authorized and registered, where the defendant assumed to be a clairvoyant and also contended that he merely sold medicines as the agent of two corporations, it is proper for the presiding judge to instruct the jury that, if the defendant was a clairvoyant and as such came within the exception contained in § 9 of the same chapter, he lawfully could not prescribe medicine for the cure of disease, even if the diagnosis of the disease and the kind of medicine prescribed were revealed to him through clairvoyance, and to leave it to the jury to say whether in selling the medicines the defendant was acting entirely as the agent of the corporations or was engaged in the practice of medicine.</p> <p>At the trial of complaints under R. L. c. 76, § 8, for practicing medicine without lawfully being authorized and registered on the two days named in the respective complaints, where the defendant contends that on the days named he merely was selling medicines as the agent of certain corporations, the Commonwealth, for the purpose of showing the defendant’s intent by his behavior in the course of his business, may introduce evidence of sales of medicines by him on days other than the days named in the complaints when his conduct tended to show that he was prescribing the medicines that he sold.</p>

<p>Agency, Termination. Equity Jurisdiction, For an accounting. Dentist. Good Will.</p> <p>In a suit in equity for an accounting, it appeared that the plaintiff was a dentist and that the defendant, who was his younger brother, also was a dentist, that the plaintiff employed the defendant as his assistant at a salary of $30 a week, that the plaintiff became insane and wholly incapable of practicing his profession, that the defendant for a time, apparently believing that the plaintiff’s incapacity was only temporary, continued to practice dentistry at the same office sending out bills in the plaintiff’s name and charging the plaintiff in a cash book $30 a week for his, the defendant’s, services, that after a few months the defendant, learning that the plaintiff was not improving, began and continued to practice dentistry on his own account at the same office but wholly in his own name, that about two years and a half after the plaintiff had become insane he wholly recovered, and brought the suit in equity for an accounting. It was held:</p> <p>1. That the insanity of the plaintiff terminated the relation of master and servant between the plaintiff and the defendant.</p> <p>2. That, as the defendant, although not bound to do so, had carried on the business on the plaintiff’s account for a certain length of time, he had for this period put himself in the position of one who voluntarily takes upon himself the duties of an agent and so becomes responsible to his principal as such agent, and therefore that the defendant must account to the plaintiff for his profits during this period.</p> <p>3. But that the defendant was not bound to continue this relation indefinitely and had a right to carry on the practice of dentistry on his own account, paying the plaintiff for any of the plaintiff’s machinery, tools and furniture of which he made use, and accordingly that the period for which the defendant was bound to account to the plaintiff for his profits ended when the defendant ceased to carry on the work of the office for the benefit and on account of the plaintiff.</p> <p>It seems, that the practice of dentistry, which depends for its success on personal qualities and professional skill, has no good will that arises merely from the place where it is carried on.</p>

<p>Boston Transit Commission. Negligence, In construction of subway.</p> <p>The Boston Transit Commission, in constructing the Dorchester tunnel under the authority given to them by St. 1911, c. 741, and in making contracts in the name" of the city for such construction under § 17 of that statute, are acting as public officers and not as servants or agents of the city.</p> <p>A corporation engaged as a contractor in building a section of the Dorchester tunnel under a contract with the Boston Transit Commission as authorized by St. 1911, c. 741, § 17, has a right to use the part of the public streets necessary for the performance of its contract, but in doing so it is not relieved, from the duty of using proper care in performing its contract and is liable for an injury caused by its negligence to a traveller on the highway in the exercise of due care.</p> <p>Consequently such a contractor has a right in the course of its work to place a timber on the sidewalk of a street, but in doing so it must take precautions by barriers, signs or other adequate means to protect the travelling public from harm.</p> <p>In an action against such a contractor for personal injuries caused by the unguarded presence of a timber or plank on a sidewalk of a public street where such construction was going on, if there is evidence that the defendant was constructing this section of the subway, that the timber or plank was the property of the defendant, that it was near a derrick belonging to the defendant, that within a few minutes after the plaintiff was injured two employees of the defendant removed the plank, and that nobody except the defendant had any timber or planks at the part of the street where the plaintiff was injured, the jury is warranted in finding that the plank was placed where it was by the servants of the defendant acting within the scope of their authority.</p> <p>In the case stated above it was held to be a misleading error for the presiding judge to instruct the jury that, “if the plaintiff has satisfied you that the defendant placed there on the sidewalk something that was likely to have caused injury, that was a nuisance,” and that “the defendant had no right to place an obstruction there; ” because the defendant in the performance of its contract had a right to place an obstruction on the sidewalk if it took sufficient precautions to guard the travelling public from harm.</p>

<p>Two actions of tort by the same plaintiff, the first against the Boston and Maine Railroad and the second against the T. Stuart and Son Company, a corporation engaged in business as a contractor, for personal injuries sustained on May 6, 1913, at about three o’clock in the morning on a private way in Somerville called Village Street, by reason of the plaintiff striking his foot against a stake protruding above the sidewalk of that private way that had been placed there negligently by the defendants and negligently left there unguarded and unlighted. Writs dated November 12, 1913.</p> <p>The declarations, except in the name of the defendant, were the same in the two actions. The nature of the allegations in the five counts of each of the declarations is indicated sufficiently in the fifteenth paragraph of the opinion.</p> <p>In the Superior Court the cases were tried together before Brown, J. The evidence is described in the opinion. At the close of the evidence each of the defendants asked the judge to make various rulings, among which were the following:</p> <p>"13. The plaintiff had no greater rights against the defendant than he would have against the owner of the land where his accident happened if the stake in question had been placed or allowed to remain where it was by such owner under the same circumstances as it was placed by the engineer of the defendant Boston and Maine Railroad or allowed to remain where it was by the defendant T. Stuart and Son Company.</p> <p>“14. Village Street being a private way, all persons using it without the express or implied invitation of one or more of the abutting owners were mere licensees as to whom the defendant would owe no duty except not intentionally or recklessly to expose them to injury.</p> <p>“15. If the jury believe that the plaintiff came upon Village Street to leave milk at the house of Mrs. McDonough, one of the abutting owners, and then, having left the milk there, for his own purposes and to suit his own convenience used Village Street as one of the public, he thereupon became' a licensee in his use of Village Street and was obliged to take the street as it was.”</p> <p>. "18. If the jury believe that the work of reconstructing Village Street was still under way at the time of the accident and that the defendant T. Stuart and Son Company had not then completed the work of preparing the sidewalk for the use of travellers, the defendant railroad owed the plaintiff no duty to make that sidewalk or that part of the street where the sidewalk later was constructed any better or safer than it was.</p> <p>“19. Village Street being a private way, no further act than posting a barricade or sign with the words ‘Street closed: No passing’ was necessary to close the street.</p> <p>“20. Since Village Street was a private way, if the jury believe that the defendant T. Stuart and Son Company had posted a sign ‘Street closed: No passing’ in a conspicuous place upon the street, any one then using Village Street used it at his peril.</p> <p>“21. If the plaintiff, because of his daily acquaintance with Village Street, knew that the work of reconstructing the street was in progress and knew that the conditions in the street were constantly changing as the work progressed, that knowledge on his part called for the exercise by him of greater vigilance for his own safety.</p> <p>“22. If the plaintiff knew or in the exercise of reasonable care ought to have known the conditions as they existed in the street, he went upon the street at his peril.</p> <p>“23. If, at the time of his accident, Village Street was not graded nor fitted for public travel, the plaintiff went upon it at his peril.</p> <p>"24. If, in the use of Village Street, travellers thereon were (so far as the abutting owners were concerned) licensees or trespassers, such travellers were licensees or trespassers so far as the defendant was concerned.</p> <p>"25. If the jury believe that the most direct way for the plaintiff to have gone to his team on the morning of the accident was by way of Dane Street and that, instead of retracing his way on Village Street to Dane Street, the plaintiff after leaving the milk at Mrs. McDonough’s for purposes of his own as one of the public used Village Street, he thereby became a licensee who had to take Village Street as it was.</p> <p>"26. The abutting owner of 13 Village Street had a legal right to place and to maintain a stake like the one in question on his property line and such owner would owe no duty to any one using Village Street as regards such a stake.</p> <p>“27. The defendant would owe the plaintiff no greater duty as to such a stake than the abutting owner:</p> <p>“28. If the jury believe that the sign ‘Street closed: No passing’ was a sufficient notice to close the way, Village Street, then the plaintiff in using Village Street had to use it at his peril.”</p> <p>The judge refused to make any of these rulings. His charge to the jury contained the following portions to which the defendants excepted:</p> <p>“Now this stake, on the evidence, apparently was driven on what was supposed to be the old fence line. Whether that is the true property line or not in my opinion in this case makes very little difference. Of course if this plaintiff was in on private property where he was not invited to be, where he had no business to be, nobody owed him any duty except not to wilfully injure him. If this stake was not in the highway, in the private way, any part of it, was a foot or two over and he got hurt over there, nobody then owed him any duty except as I shall show you later.”</p> <p>“Now I said in my opinion it made very little difference whether this stake was on the true property line or very near it, and by that I mean this: that if this defendant had allowed that work to go on in such a way that a well defined beaten path had been made on what was to be the sidewalk when they got through, and that reached over the property line an inch or two or these stakes were driven so near to that, whether it is in the highway or not I do not think it would make much difference if they put something there that was in the nature of a trap. Now whether they allowed that thing to go on or whether it did go on is a question of fact for you to determine. If there was a well defined path where this sidewalk now is and a stake was driven in that, then that is a circumstance you can consider because these defendants ought to have realized that somebody in the night time would come along.”</p> <p>In each case the judge submitted to the jury four special questions, which with the answers of the jury to them were as follows:</p> <p>“1. Was the plaintiff in the exercise of due care? ” The jury answered “Yes.”</p> <p>“2. What were the approximate cause or causes of the plaintiff’s accident?” The jury answered, “He stumbled over protruding stake in beaten path.”</p> <p>"3. Was the defendant Boston and Maine Railroad [T. Stuart and Son Company] negligent? If you answer yes, state what that negligence was.” The jury answered, “The unprotected condition of protruding stake.”</p> <p>“4. What are the plaintiff’s damages?” The jury answered, "$9,000.”</p> <p>Thereupon in each of the cases the judge ordered a verdict for the plaintiff in the sum of $9,000; and both defendants alleged-exceptions.</p>

<p>Evidence, Materiality, Competency. Practice, Civil, Exceptions, Conduct of trial. Negligence, Street railway.</p> <p>In an action against a street railway corporation for personal injuries sustained in consequence of a collision between a car of the defendant and a coach in which the plaintiff was a passenger, which occurred on a square in a city crossed by intersecting streets, it is proper for the presiding judge to permit witnesses for the plaintiff to testify, against the defendant’s exception, that cars of the defendant always stopped at this square even when there were no passengers to get on or off, the fact of the stopping having a tendency to show, in the absence of evidence to the contrary, that such stopping was because of the danger from' the intersecting streets and to protect travellers on the highway.</p> <p>In the same case a witness for the plaintiff testified that the car of the defendant was “going at a very good rate” and, when asked by the plaintiff’s counsel what he meant by a “very good rate,” answered, “Well it was going so fast that a man could not cross the track at the rate it was going.” The defendant’s counsel asked to have this answer stricken out. The judge allowed it to stand and the defendant excepted. Held, that the exception must be overruled, as it did not appear that the defendant was harmed by the answer of the witness, which was of no significance as tending to show the rate of speed at which the car was moving.</p> <p>In the same case it was held that evidence in behalf of the plaintiff was admissible to show that the car was late, from which and other circumstances in the case it might be inferred that the motorman in striving to make up lost time was going at an unusual rate of speed; and it also was held that evidence was admissible to show that the trolley came off before reaching the place of the accident, this tending to explain a cause of the delay.</p> <p>In the same case the presiding judge refused to allow the defendant to ask the plaintiff, who was in the employ of a manufacturer, whether after the accident he received a pension from his employer. The defendant made no offer of proof showing what answer he expected. Held, that sufficient facts did not appear on the record to show that the evidence was admissible, and an exception to its exclusion was overruled.</p> <p>In the same case there was evidence that the coach was struck “near its front wheels, turning the coach end for end and overturning it,” that the nearer end of the coach was ten feet from the track after it landed and that “the driver was thrown from his seat over the coach.” A witness for the plaintiff was allowed, against the defendant’s exception, to testify that his father, who was driving the coach at the time of the accident, was killed by the collision. Held, that, in the absence of anything to show that this evidence was introduced for the purpose of creating a prejudice against the defendant on a collateral issue, it was admissible in connection with the other evidence as tending to show the severity of the impact.</p> <p>Where a party to an action has excepted to the admission of certain evidence, otherwise competent, on the ground that it tends to create a prejudice against him on a collateral issue, the burden is upon him to disclose in his bill of exceptions sufficient evidence to show that the evidence objected to by him was introduced in such a way or at such a time as to demonstrate its purpose to arouse prejudice.</p> <p>In the same case the motorman who was operating the car at the time of the accident was a witness for the defendant, and the plaintiff in order to contradict him introduced parts of his testimony given at the inquest upon the death of the driver. The defendant, on redirect examination, asked him, “Did you realize that the inquiry at the inquest was whether or not you were to blame for the death of” the driver? The defendant’s declared purpose in asking this question was to show that the witness at the inquest was under a severe mental strain and that the contradictions in his testimony were to be attributed to that fact. The judge excluded the question, subject to the defendant’s exception. Held, that it could not be said that the exclusion of the question was a wrongful exercise of discretion.</p>

<p>Contract for $802.50, the price of a carload of straight clipped white oats alleged to have been sold by the plaintiff to the defendant. Writ in the Municipal Court of the City of Boston dated November 14,1910.</p> <p>The defendant in its answer, in addition to a general denial, alleged that, if any such contract was entered into between the plaintiff and the defendant, such contract was for the sale of goods of the value of $500 or upward, as appeared from the plaintiff’s declaration; that the defendant did not accept or receive the goods or any part thereof, or give something in earnest to bind the alleged agreement or in part payment thereof, and that there was no note or memorandum in writing of the alleged agreement or sale signed by the defendant or its agent in that behalf as required by St. 1908, c. 237, § 4.</p> <p>On appeal to the Superior Court the case was tried before Dubuque, J. At the close of the evidence the plaintiff asked the judge to rule that the case was not within the statute of frauds. The judge refused to make this ruling and found for the defendant. At the request of the plaintiff the judge reported the case for determination by this court.</p> <p>St. 1908, c. 237, § 4, is as follows:</p> <p>“ (1) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upward shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.</p> <p>"(2) The provisions of this section shall apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.</p> <p>“(3) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.”</p> <p>Section 78 of the same chapter is as follows: “Section five of chapter seventy-four of the Revised Laws and all acts and parts of acts inconsistent herewith are hereby repealed.”</p>

<p>Trust. Power. Words, “Either.”</p> <p>A settlor created by deed a trust for the maintenance and support of his wife and children. He directed that, after his own death and that of his wife, the trustees upon each child arriving at the age of twenty-one years should convey and transfer to such child his or her share, and the trustees further were authorized to apply any part of the principal for the benefit of the children, when in their judgment it became necessary. By the deed of trust the settlor was given power “in and by his last will and testament to debar and prohibit either of his said children from any share or part of said trust property, the income, profits and accumulations thereof anything herein to the contrary notwithstanding." In his will, after reciting this power, the settlor provided as follows: "Now it is my will and I do debar and prohibit either of said children from receiving and I do debar and prohibit the trustees hereinafter named from paying over, conveying or transferring to either of my said children any part or share of the principal of said trust estate.” The will provided that the income from the trust fund should be used for the support of the testator’s widow and children and the survivor of them as directed in the trust deed and further provided as follows: “ but I authorize and direct my said trustees to pay over out of the said net income, rents and profits, the sum of five thousand dollars to each of my sons on his arriving at the age of thirty years.” At the death of the testator’s widow there were five children living, all over twenty-one years of age, and two of them were sons, each of whom was over thirty years of age. Upon a bill by the trustees for instructions, it was held, that the power of revocation was a valid one and was exercised properly by the settlor; and therefore that the trust could not be terminated until the death of the last survivor of the settlor’s children and that in the meantime no child could receive any part of the principal.</p> <p>Held, also, that the word “either,” as used in the phrase “either of his said children” in the deed of trust, and also as used by the settlor in his testamentary exercise of the power, was used in the sense of “ any,” and excluded all his children from the principal of the trust.</p> <p>Held, also, that the settlor had the power, which he had exercised properly by his will, to direct that $5,000 should be paid from the income of the trust to each of his sons, and that the right of the other children to share in the income was postponed until the two payments of $5,000 each had been made from the net income accumulated for the purpose.</p> <p>Held, also, that the discretionary power given by the deed of trust to the trustees, to apply any part of the principal for the benefit of the children when in their judgment it became necessary, was revoked.</p>

Contract, by the Federal Coal and Coke Company, a corporation, against (by substitution by amendment after bankruptcy) the trustee in bankruptcy of the firm of J. K. Dimmick and Company, who did business in Philadelphia in the State of Pennsylvania, for the alleged breach of a contract in writing dated September 14, 1909, in refusing to receive and pay for any further deliveries of coke after the delivery of five hundred and forty-four tons.

<p>Negligence, Causing death. Actionable Tort. Comity. Jurisdiction. Executor and Administrator. Death.</p> <p>An executor or administrator appointed in this Commonwealth may bring in the courts of this Commonwealth an action for the negligent causing in another State or country of the death of his testator or intestate if a remedial statute of such State or country gives to an executor or administrator the right to recover damages “for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused.” Following Walsh v. Boston & Maine Railroad, 201 Mass. 527.</p> <p>Lord Campbell’s act, St. 9 & 10 Vict. c. 93, giving a right of action for damages resulting from death caused by negligence, is remedial and not penal.</p> <p>Although St. 9 &.10 Vict. c. 93, giving a right of action for damages resulting from death caused by negligence and requiring that such action shall be brought in the name of the executor or administrator of the person deceased but for the benefit of the wife, husband, parent and child of such person, vests no right of property in the deceased which survives to his personal representative, such an action under that foreign statute may be brought in this Commonwealth against a corporation having a usual place of business here by an administrator appointed here of the estate of a person whose death was caused in English waters by the negligence of the defendant.</p>

<p>Tort by the administrator of the estate of Annie J. Chase for expenses incurred for medicine, nursing, care, medical and surgical attendance rendered necessary by reason of injuries received by the plaintiff’s intestate while a passenger upon a street railway car of the defendant. Writ dated November 11, 1914.</p> <p>The action was tried, together with an action by the same plaintiff for the death and conscious suffering of the intestate, before Irwin, J. In the other action the jury found for the plaintiff in the sum of $7,000 for the death and $150 for conscious suffering. In the present action the evidence showed and the parties admitted that the plaintiff’s intestate was injured by the negligence of the defendant and that charges of $90 for services of a surgeon and $22.95 for hospital expenses were proper and reasonable and were necessitated by the injuries caused by the defendant’s negligence.</p> <p>By agreement of the parties, the judge ordered a verdict for the plaintiff for the amount of his claims and reported the case to this court for determination, a verdict to be ordered for the defendant if the ordering of a verdict for the plaintiff was error; otherwise, the verdict for the plaintiff was to stand.</p>

<p>Negligence, Causing death, Railroad.</p> <p>Where a driver of an automobile, the brakes and mechanism of which were in proper condition and which could have been stopped within sixteen feet, on a clear day approached a crossing at grade of a railroad with a travelled way at the rate of from six to twelve miles an hour along a highway where, throughout a course beginning one hundred and six feet from the crossing and running to a point seventy feet from it, there was an unobstructed view between two houses of a stretch of the tracks of the railroad to his left, beginning three hundred and twenty-two feet from the crossing and running to a point fourteen hundred and seventy-eight feet from it, and did not look up the track to his left until he was seventy feet from the crossing, when he made a motion toward his emergency brake but the forward movement of the automobile was retarded only slightly and it ran upon the railroad track and was struck by a railroad train, of which he had had no warning by whistle, bell or signal, and he was killed, an action against the railroad company for his death cannot be maintained under St. 1907, c. 392, § 1, because there is no evidence which would warrant a finding that the decedent was in the active exercise of care for his safety.</p> <p>It also was held that the foregoing facts do not call for an application of the rule permitting a finding of due care on the part of one, who, suddenly and without fault on his part finding himself in a position of impending and unexpected danger, becomes confused, because the decedent’s own carelessness placed him in such a position.</p> <p>It appearing that the decedent’s wife was with him in the automobile and also was killed and the only evidence as to her conduct being that, as the automobile approached the crossing, she was looking toward her right, it was held, that, if she was trusting to the care and caution of her husband, there could be no recovery for her death because he was negligent, and, if she was not so trusting, there could be no recovery because there was no evidence that she did anything for her own safety.</p>

<p>Negligence, Of child, In use of highway, Street railway.</p> <p>Where, at the trial of an action against a street railway company for personal injuries received when the plaintiff, a strong, bright boy between five and six years of age, on a summer evening in 1910 during daylight was run into by a street car of the defendant, the plaintiff’s evidence shows that he had been playing beside the street with other boys at a watering trough in which there was a turtle, that suddenly he seized the turtle and, pursued or followed by his companions, ran diagonally across the street without looking for cars until he reached the defendant’s tracks, that a bystander called out a warning to him of an approaching street car, that he then paused a moment and was struck by the car which came to a stop within fifteen feet, that the car was in plain sight and that there was no other traffic in the street, it is proper to order a verdict for the defendant at the close of the plaintiff’s evidence.</p>

<p>Practice, Civil, Amendment, Parties, Nonsuit.</p> <p>A judge presiding at a trial of an action of contract upon an account annexed for work, labor and materials has power during the trial to allow an amendment adding as a party plaintiff one who, according to the testimony of the original plaintiff on cross-examination, was a partner at the time of the incurring of the debt for the recovery of which the action is brought; and it is not necessary that the trial should be stopped or that the plaintiff should become nonsuit.</p>

<p>Petition, filed in the Superior Court for the county of Hampden on December 27, 1913, and subsequently amended, to vacate a decree of divorce, which was entered nisi in that court on October 22, 1912, and which became absolute on May 5, 1913, and to dismiss the libel.</p> <p>As stated in the opinion, Alice G. Sampson upon her own application was made a respondent to the petition. Both respondents demurred to the petition as amended. The causes of demurrer assigned by the respondent Henry J. Sampson were as follows:</p> <p>“1. That the petitioner has not stated such a case as entitled her to any relief against these respondents or either of them.</p> <p>“2. That the petitioner has not alleged that she did not have due and proper notice of the pendency of the libel for divorce.</p> <p>“3. That the petitioner has not set forth specifically and with sufficient detail the false and fraudulent misrepresentations alleged to be made to her by this respondent, and which the petitioner says induced her not to appear in the suit and contest it, and to believe that the libel proceedings had been discontinued and dropped.</p> <p>“4. That the petitioner has not set forth specifically and with sufficient detail the method, means and manner in which she alleges this respondent concealed from her the granting of the decree nisi until it had become absolute.</p> <p>“o. That the petitioner does not allege any good reason for not bringing this petition sooner than she has done, and within a reasonable time after the decree nisi had become absolute.</p> <p>“6. That the place of filing the libel is a matter of venue and not of jurisdiction.</p> <p>“7. That the petitioner has not sworn to her amended petition.”</p> <p>The causes of demurrer assigned by the respondent Alice G. Sampson were the same with two additional causes assigned as follows:</p> <p>“8. That the petitioner does not allege any reason why relief should be granted against this respondent, who has married the other respondent in good faith.</p> <p>“9. That the petitioner has not alleged any good reason why the petitioner did not bring proceedings before this respondent and the other respondent were married.”</p> <p>The demurrers were argued before Raymond, J., who made orders overruling both demurrers, to-which each of the respondents excepted. Later the case was heard by Raymond, J., upon the issues raised by the answers of the respondents. He found the facts that are stated in the opinion and concluded the memorandum of his findings of fact as follows:</p> <p>“The court finds,</p> <p>“First: That the respondent Henry J. Sampson had no legal residence in Springfield; that his domicil and legal residence during all of the time while the divorce proceeding was pending were at Westport, where he now lives.</p> <p>“Second: That the petitioner never deserted the respondent Henry J. Sampson.</p> <p>“Third: That the petitioner has always been faithful to her marriage vows.</p> <p>“Fourth: That the petitioner never resided in Providence.</p> <p>“Fifth: That the respondent Henry J. Sampson by his conduct toward the petitioner and by the representations which he made to her fraudulently prevented her from appearing at court and contesting his libel at Springfield.</p> <p>“Sixth: That the court had only apparent jurisdiction of the libels in Hampden County, founded on the respondent Henry J. Sampson’s false allegation of domicil.</p> <p>“Seventh: That the respondent Henry J. Sampson obtained his divorce by false testimony.</p> <p>“Eighth: That the petitioner did not unreasonably delay filing the petition to vacate the decree for divorce.”</p> <p>The judge ordered that the decree absolute and the decree nisi be vacated and annulled and that the libel be dismissed. The respondents alleged exceptions.</p> <p>The first part of R. L. c. 175, § 20, is as follows:</p> <p>“Section 20. Any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court, or before a person who has authority to receive evidence, except as follows:</p> <p>“First, Neither husband nor wife shall testify as to private conversations with each other.”</p>

<p>Contract, What constitutes, In writing. Carrier, Of passengers: limitation of liability for baggage.</p> <p>Where one having a certificate for a third class passage in a steamship exchanged it for a third class ticket and sailed on the steamship, he thereby accepted a stipulation printed in English on the ticket limiting the liability of the steamship company for loss of baggage to $50, although he did not understand the English language and before receiving his ticket he asked the person in charge of the ticket office to have his baggage insured and offered to pay for such insurance and was told by the man in the ticket office that this was not necessary.</p>

<p>Audita querela under R. L. c. 192, §§ 1, 2, by George M. Brooks of Arlington and Frank P. Brooks of Plymouth against William E. Neal of Lynn, as receiver of the property of the American National Bank of Boston, to restrain him from instituting or prosecuting any further proceedings upon a judgment against the plaintiffs for $6,425.01 damages and $30.40 costs alleged to have been discharged by a release under seal. Writ dated February 19, 1913.</p> <p>The release, of which a copy was attached to the writ and declaration, was as follows:</p> <p>“Know all men by these presents that I, William E. Neal, of Lynn, in the County of Essex, the Receiver of the American National Bank, of Boston, in the District of Massachusetts, duly appointed by the Comptroller of the Currency of the United States of America and qualified as such receiver, acting under and in pursuance of the authority of the decree of the District Court of the United States entered on April 18, 1911, on my petition as such receiver for leave to compromise a certain claim of the said American National Bank against George M. Brooks, of Arlington in the County of Middlesex, in consideration of the sum of three hundred twenty-five (325) dollars to me paid by said George M. Brooks, the receipt whereof is hereby acknowledged, hereby on behalf of the said American National Bank and of myself as receiver thereof release and forever discharge said George M. Brooks from all liability upon a certain promissory note for the sum of five thousand one hundred thirty-five and ninety hundredths (5135.90) dollars, made by the said George M. Brooks and one Frank P. Brooks, and against judgment thereon amounting to six thousand four hundred fifty-five and forty-one hundredths (6455.41) dollars, duly recovered in the Superior Court in the County of Suffolk and Commonwealth of Massachusetts under date of September 7, 1909, upon which execution was issued September 29, 1909.</p> <p>“In witness whereof I have hereunto set my hand and seal this twenty-sixth day of April, 1911. Willliam E. Neal, Receiver. [Seal]”.</p> <p>In the Superior Court the case was tried before King, J. The facts appeared which are stated in the opinion. It was admitted that the receiver received the sum of $325 named in the release in compromise of his claim against George M. Brooks. Subsequently on a pluries execution on the same judgment Frank P. Brooks was summoned for examination in poor debtor proceedings under R. L. c. 168, and this writ of audita querela was brought.</p> <p>The defendant asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence the plaintiff cannot recover.</p> <p>“2. Upon all the evidence the plaintiff Frank P. Brooks is not entitled to any relief.</p> <p>“3. Upon all the evidence the plaintiff Frank P. Brooks is not entitled to recover.</p> <p>“4. Upon the law and the evidence, the defendant is entitled to have the court declare and adjudge that said judgment referred to in the plaintiff’s complaint is still valid and subsisting and undischarged so far as it affects or relates to said Frank P. Brooks.</p> <p>"5. The alleged release given by William E. Neal, receiver, is not a valid release.</p> <p>“6. The alleged release purporting to be signed by the defendant in this action was beyond his powers or authority to give.</p> <p>“7. The alleged release set up by the plaintiffs in this action purporting to be signed by the defendant was not effectual to discharge and release the defendant Frank P. Brooks.</p> <p>“8. The defendant, being receiver, had only such powers as were conferred upon him by the order and decree of the court, which was, namely, only to compromise the claim so far as it referred to the plaintiff George M. Brooks and had no effect to discharge or release or compromise the claim or judgment as against the defendant Frank P. Brooks.</p> <p>“9. The defendant, acting as receiver, had no right or authority to release the judgment complained about by payment of a portion thereof.</p> <p>“ 10. Any purported release of the judgment for money in consideration of a less sum, is invalid, and the release set up by the plaintiff is invalid to discharge the plaintiffs, and especially the plaintiff Frank P. Brooks.”</p> <p>The judge refused to make any of these rulings, and made the following orders:</p> <p>“1. The plaintiffs are entitled to judgment for relief adapted to the case and to the prayer of the writ.</p> <p>“2. The judgment obtained in this court on September 7, 1909, in favor of the defendant in this action and against the plaintiffs herein for $6,455.41 was discharged by an instrument in writing under seal, executed by the defendant on April 26, 1911, purporting to release and discharge George M. Brooks, the plaintiff herein, and joint judgment debtor in said judgment with Frank P. Brooks.</p> <p>“Said instrument contained no reservation of rights against Frank P. Brooks and amounted to a technical release of both judgment debtors, the plaintiffs herein.</p> <p>"3. The defendant and all persons claiming under him are to be permanently enjoined from hereafter causing to be issued against the plaintiffs, or either of them, any further or other executions for the collection of said judgment or any part thereof and from instituting or prosecuting any further proceedings against the plaintiffs or either of them in this or any other court of this Commonwealth, for the enforcement or collection of said judgment or any part thereof.</p> <p>“4. The plaintiffs are to have judgment for their costs against the defendant in this action.”</p> <p>The defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Supreme Judicial Court.</p> <p>Where upon a bill of exceptions it appears that certain evidence, to the admission of which an exception was taken, might conceivably have been competent in some aspects of the trial and the record is so meagre that it cannot be said that the admission of the evidence adversely affected the substantial rights of the excepting party, the exception will be overruled.</p> <p>Where a bill of exceptions fails to indicate that there was any evidence to which certain rulings refused by a presiding judge were applicable, the exceptions to the refusal to make the rulings will be overruled without considering whether they are sound in law or not.</p> <p>Upon a petition to establish exceptions, which comes before this court upon the report of a commissioner, it is not appropriate to make a motion under St. 1913, c. 716, § 3, for an amendment of the record in this court, because the only exceptions that can be established and considered are those that the trial judge refused to allow.</p> <p>Where upon a petition to establish exceptions it had been asked improperly that a copy of the charge of the trial judge might be annexed to the record, it was said, that an examination of the copy of the charge presented for annexation disclosed no error, for the reason that the evidence was not set forth with sufficient fullness to show that the charge was not apt and complete.</p>

<p>Petition, filed on September 27,1915, by certain citizens of the town of Danvers for a writ of mandamus directed to the board of fire engineers of that town, commanding them to keep, maintain and care for the combination motor pumping engine, which is mentioned in the opinion, at the fire station on River Street in the part of the town of Danvers called Danversport, until the town shall vote otherwise.</p> <p>The case was submitted upon the petition and answer and an agreed statement of facts to Braley, J., who at the request of the parties reserved and reported it for determination by the full court.</p>

<p>Two actions of tort for personal injuries alleged to have been received by the plaintiffs by reason of their being thrown from the back platform of a street car of the defendant by the sudden starting and jerking of the car as they were in the act of alighting. Writs dated June 16, 1913.</p> <p>In the Superior Court the cases were tried together before Chase, J. The material evidence and the exceptions of the defendant are described in the opinion. There was a verdict for the plaintiff in the first action in the sum of $1,200, of which the plaintiff remitted all in excess of $500, and for the plaintiff in the second action in the sum of $6,500. The defendant alleged exceptions.</p>

<p>Contract for $1,733.33 for services as cashier in the collecting department of the defendant, from which the plaintiff alleged that he was discharged illegally. Writ dated February 16, 1915.</p> <p>In the Superior Court the case was heard by Jenney, J., without a jury. The material facts found by him are stated in the opinion. The plaintiff requested the following rulings of law, which were refused by the judge:</p> <p>“1. The letter of June 15, 1914, to the plaintiff by John J. Curley, city collector, constituted a discharge or removal before an opportunity for a public hearing as provided by statute.</p> <p>“2. The plaintiff having been peremptorily removed or discharged before he was given an opportunity for a public hearing as provided by statute, the discharge was illegal.</p> <p>“3. The discharge or removal being illegal and not in conformity to the statutes, the plaintiff is entitled to recover.”</p> <p>“6. The defendant has failed to sustain the burden of proof on the question of damages, and therefore the plaintiff is entitled to recover on his declaration for the amount claimed.”</p> <p>° The judge found that, if the plaintiff was entitled to compensation to the commencement of the action, he was entitled to recover the amount claimed in his declaration; but that, if he was entitled to recover only until October 1, 1914, the amount of his recovery should be $758.33 and interest. He found for the defendant and reported the case for determination by this court.</p>

<p>Insurance, Fidelity. Bond. Contract, What constitutes. Agency, Scope of authority. Waiver.</p> <p>Where a bond of a surety company, insuring the fidelity of an employee of the insured, contains a provision that it shall “be invalid and of no effect unless signed by the Employee,” and a provision that no one of its provisions shall “be deemed to have been waived by or on behalf of” the insuring company "unless the waiver be clearly expressed in writing, over the signature of its President or Vice-President and Secretary or Assistant Secretary and its seal thereto affixed,” and following such provisions are agreements purporting to be made by the employee and an in testimonium clause in which his name is mentioned and a blank place is marked for his signature, the requirement of the signature of the employee is not waived by the insurer by a letter to the insured, not signed by any of the officers authorized to make such a waiver for the corporation and not shown to have come to their knowledge, in which the bond, unsigned by the employee, is enclosed and which states, "Enclosed please find duly executed bond . . . which we trust will be found in proper form. Enclosed also find bill for premium on this bond, on which we trust you will favor us with an early remittance,” although the insured relies on the letter and makes no attempt to obtain the signature of the employee.</p>

<p>Municipal Corporations, Officers and agents, Superintendent of streets. Public Officer. Evidence, Relevancy and materiality.</p> <p>Where a town, which had not authorized the election of road commissioners or a surveyor of highways, voted “That the board of selectmen be instructed to employ a competent engineer, who shall be a practical road builder, as superintendent of streets,” such vote has merely an advisory, and no mandatory effect.</p> <p>Under R. L. c. 25, § 86, a superintendent of streets, appointed by the selectmen of a town which has not authorized the election of road commissioners or a surveyor of highways, although he acts “under the direction of the selectmen,” has the powers, performs the duties and is subject to the liabilities and penalties of surveyor of highways and road commissioners, and therefore he is a public officer and is not an agent of the town.</p> <p>On a review of the evidence at the trial of an action of tort by a landowner against a town for injuries caused by the flooding of the plaintiff’s land caused by the overflowing, at the time of an unusual rainstorm, of a natural watercourse into which the town had caused surface drainage from streets to be emptied, it was held that the evidence was clear and convincing that the overflowing was caused by the clogging of a culvert by the falling of a capstone, that there was no evidence to show how long the capstone had been dislodged or that the culvert when unobstructed was not adequate in form and dimension to provide for the full flowage of the stream; and that, if there were any negligence in not discovering that the capstone had fallen into the culvert or in failing to recover it, it was negligence of the superintendent of streets, who under R. L. c. 25, § 86, was a public officer for whose negligence the town was not liable.</p> <p>Evidence that the superintendent of streets worked under the direction of the selectmen was held not to be relevant or material in such an action.</p>

<p>Judgment, Petition to vacate. Bond, Supersedeas. Practice, Civil, Amendment.</p> <p>On a petition, filed under R. L. c. 193, §§ 15-17, to vacate a judgment in the sum of over $15,000, a judge of the Superior Court issued an order that notice issue and that, upon the filing of a bond for $5,000, a writ staying execution should issue. The error in accepting a bond insufficient in amount was called to the attention of the judge at the hearing on the return day of the notice, and thereupon the petitioner proffered a bond sufficient in character and amount, which the judge, subject to an exception by the respondent, approved. Thereafter the judge ordered that the judgment be vacated and that a writ of supersedeas should issue. Held, that, the hearing upon the petition being still open at the time of the acceptance of the proper bond, the court had power and authority to correct the error in the acceptance of the insufficient bond by the acceptance and filing of the new bond which was legally sufficient.</p> <p>The granting of a petition for the vacation of a judgment rests largely in the discretion of the judge.</p> <p>In the present case, where such a petition was granted upon evidence from which it appeared that the attorney for the defendant in an action of contract, returnable in the Superior Court in the county of Suffolk, on the day before the last day within which an appearance could be entered for the defendant went to the office of the clerk of the court, that, having searched for the case in the general index of pending cases without success because the case was not there, he asked assistance of a subordinate in the office to whom he handed the summons, that such subordinate after an inquiry reported that the case was not entered, that the attorney then searched the list of non-entered writs without success and departed without leaving an appearance card with the clerk, and that the case was properly listed in an index called a “current index,” that the defendant was defaulted for non-appearance and that the judgment sought to be vacated was entered against him, it was held, that it could not be said that the judge in vacating the judgment had exercised his discretion improperly.</p>

<p>Negligence, Of street railway. Agency, Scope of employment.</p> <p>Where a woman passenger in the exercise of due care is standing upon the platform of a terminal station of an elevated railway and two employees of the railway company, who have finished their work for the day and are waiting on the platform to take a car to carry them home or elsewhere for their own purposes, either while making passes at one another by way of joke or in stepping back to avoid a pass or blow from a stranger, negligently bump into the woman and push her off the platform into a pit, the railway company cannot be found to be liable for her injuries thus sustained; because the two men were not in a legal sense the servants or employees of the company when their negligent acts were committed.</p>

Tort by a minor, by his next friend, for personal injuries sustained by the plaintiff from being struck in the eye by a loose guy wire or wire cable hanging from a telegraph pole owned and controlled by the defendant on August 4, 1912, on Western Avenue, a public highway in Lynn. Writ dated August 28, 1912. In the Superior Court the case was tried before Brown, J. The place of the accident is described in the opinion.

<p>Contract, Construction, Performance and breach. Damages, In contract.</p> <p>In an agreement to purchase a Sterling engine to be shipped from Buffalo, where in the order for the engine no-time for delivery is named, a requirement of delivery within a reasonable time is implied.</p> <p>In an action on such a contract, evidence that within five months from the date of the order a notice was given by the seller to the purchaser that the engine was ready for shipment, that the notice was followed eleven days later by a letter, stating that, no reply having been received, the shipment, in the absence of notification to the contrary, would be made a week after that, and that the engine was shipped in accordance with this statement, was held to warrant a finding that the contract was performed by the seller within a reasonable time and that he was entitled to recover damages for the defendant’s refusal to receive the engine.</p> <p>It also was held that, in assessing damages for the breach of this contract, the plaintiff’s loss of profit and the freight charges paid by him properly might be included.</p>

<p>Evidence, Declarations of deceased persons, Opinion.</p> <p>Under R. L. c. 175, § 66, which provides that “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made [with other requirements] upon the personal knowledge of the declarant,” a declaration of opinion by a deceased person cannot be admitted, even when such person, if living, would be allowed to testify to the opinion inquired about.</p> <p>In an action by an administrator against a street railway company for causing the death of the plaintiff’s intestate, the physician who treated the intestate, after the injury that was alleged to have caused his death was not living at the time of the trial, and the plaintiff was allowed, subject to the defendant’s exception, to answer the question, “What did [the deceased physician] say was the cause of his [the intestate’s] condition?” To which the plaintiff answered, “He said the accident, being thrown out of the carriage.” There had been evidence that the intestate for a long time before the accident had been suffering from hardening of the arteries, which might have resulted in his death even if the accident had not happened. Held, that the admission of the question and the answer in regard to the opinion of the physician was harmful error which required the sustaining of the exception.</p>

<p>Negligence, Trespasser, Contributory, In use of automobile, In use of highway, Of child playing on highway, Violation of municipal ordinance. Trespass. Child. Evidence, Presumptions' and burden of proof, Violation of ordinance as evidence of negligence.</p> <p>A boy twelve years of age rolling a hoop upon a highway is not, merely by reason of that fact, a trespasser upon the way.</p> <p>At the trial of an action against the owner and driver of an automobile by a boy who, after the enactment of St. 1914, c. 553, when twelve years of age and while playing at rolling a hoop on a public way in a city, was run into from behind by the automobile, there was evidence tending to show that the plaintiff, in rolling his hoop, started across the way in a diagonal direction, first looking backward and seeing no automobile approaching and hearing no horn sounded, that the way was seventy-two feet wide with a single track of a street railway in the middle, that when the plaintiff was in the middle of the way the automobile was about sixty feet behind him, that the defendant in his automobile came behind the boy close to the right hand curbstone, that there were no other vehicles upon the street to interfere with or to prevent the defendant from avoiding a collision, and that the plaintiff was run into from behind when he was in the gutter on his and the defendant’s right hand side of the way. The defendant’s evidence tended to show that, when the automobile was going slowly, the plaintiff ran in front of it. Held, that it could not be ruled as a matter of law that the defendant had overcome the presumption of due care of the plaintiff raised by St. 1914, c. 553, and that the questions, whether the plaintiff was guilty of contributory negligence, and whether the accident was caused by negligence of the defendant, were for the jury.</p> <p>Whether the conduct of the plaintiff interfered “with the convenient and free use of” the highway “by persons travelling or passing along” it, so that it was a violation of an ordinance of the city, providing that “No person shall, within the limits of any public street or highway in the city, play at any game of ball, snow-ball, foot-ball, or any other game, amusement, or exercise, interfering with the convenient and free use of such street or highway by persons travelling or passing along the same,” was held to be a question for the jury, so that it could not be ruled as a matter of law that the only duty owed to the plaintiff by the defendant was to refrain from wanton or reckless misconduct.</p>

<p>Negligence, Employer’s liability, On a steamship, Res ipso loquitur. Ship. Death. Conflict of Laws. Jurisdiction. Evidence, Presumptions and burden of proof, Matter of conjecture.</p> <p>If one, employed upon a ship upon the high seas owned and operated by a Massachusetts corporation, receives injuries resulting in his death, the questions, whether any, and, if any, what action can be maintained under the circumstances, are determined by the common law and the statutes of this Commonwealth.</p> <p>In this action to recover for the death of an employee upon a steamship caused by the explosion of a boiler tube, after a review of the evidence it was held, that there was evidence upon which findings were warranted, either that the explosion was due to a defective condition of pumps which fed water to the boiler, or to improper action of apparatus which fed oil as fuel, or to both causes, and that such defective condition was known or in the exercise of reasonable care should have been known to those in control of the ship for the employer, that therefore the cause of the explosion was not left to conjecture, and that the question of the defendant’s liability was for the jury.</p> <p>At such trial, the fact that the explosion occurred while the boiler was being subjected to the use for which it was designed was held to be in itself evidence of a defective condition.</p> <p>It also was held, that, while the plaintiff was bound to offer evidence to show that the explosion was caused by negligence of the defendant, he was not required to point out the particular act or omission which caused the accident.</p> <p>It also was held that proper inspection of the boiler tubes was, in the present case, a duty of the defendant which could not be delegated, so that, if the performance of that duty was left by the defendant to a fellow servant of the plaintiff’s intestate who was negligent and whose negligence caused the death, the defendant would be liable.</p> <p>It also was held, that, upon the evidence in the present case, the question, whether there had been negligence in the performance of the duty of inspection, was for the jury.</p>

<p>Landlord and Tenant. Negligence, Of one controlling real estate.</p> <p>Where the owner of a house let to a single tenant at will has agreed to make general repairs during the tenancy, and fails to keep his agreement, this does not make him liable in tort to the tenant for personal injuries sustained by the tenant by reason of the giving way of rotten steps that the owner had failed to repair after being told that they were “shaky” when apparently they were in good condition.</p>

<p> Constitutional Law. Elections. Legislature. House of Representatives. Corrupt Practices. </p> <p>So much of St. 1914, c. 783, § 10, as undertakes to impose upon the courts the duty of inquiry into corrupt practices in connection with the election of members of the General Court is contrary to c. 1, § 3, art. 10, of the Constitution, which provides that “The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members,” and also to art. 30 of the Declaration of Rights, which declares the separation of the legislative and judicial departments of the government.</p>

<p>Negligence, Employer’s liability, Assumption of risk. Pleading, Civil, Answer.</p> <p>At the trial of an action by an employee against his employer for personal injuries caused by the breaking of a movable skid over which it was the plaintiff’s duty to haul a loaded hand truck, it appeared that the plaintiff had been employed by the defendant at the same work for two or three years, the work during that period being carried on in the same manner as at the time of the accident, that the skid had been decayed and old, and rotten from water, during all that time, and that the plaintiff had known of this condition. Held, that the evidence showed a contractual assumption by the plaintiff of the risk of injury from the breaking of the skid, and that therefore he could not recover.</p> <p>It also was held that, under the circumstances above stated, the question of the liability of the defendant would not be affected by the fact that a superintendent of the defendant was negligent in selecting and placing the skid for use by the plaintiff.</p> <p>A portable skid, adapted for use in difficult places and in use by a steamship corporation between a street and the end of a permanent platform over which from a steamship longshoremen employed by the corporation wheel loaded hand trucks, is not a part of the ways, works or machinery of the corporation.</p> <p>In an action of tort by an employee against his employer for personal injuries, the defence that there was a contractual assumption of the risk of the injury may be relied on without being set up affirmatively in the answer.</p>

<p>Two actions of tort for personal injuries alleged to have been suffered by the plaintiff by reason of a loose plank in the covering of the excavation for the construction of the subway under Boylston Street in Boston, alleged to be a defect in that highway caused by negligence of the defendant contracting company. Writs dated December 13, 1913.</p> <p>In the Superior Court the cases were tried together before Raymond, J. The testimony of the plaintiff and of Clarkson as to the planks in question, referred to in the opinion, was in substance as follows: The plaintiff testified that at the time of her injury she observed the board, that it was not nailed down, that it was raised above the level of the other boards and was loose, that it was raised its width over the board next to it and that it moved when she stepped on the end of it. She also testified that, upon her return to her place of employment three weeks after the accident, she observed the board and that it appeared to be the same as at the time of the accident. Clarkson, who had not seen the board at the time of the accident, described its condition as it was three weeks after the accident, when the plaintiff returned to the store where she was employed.</p> <p>Other material evidence is described in the opinion. In each case there was a verdict for the plaintiff in the sum of $2,000; and the defendants alleged exceptions.</p>

<p>Deed, Construction. Contract, Construction. Easement, Extent of. Trespass.</p> <p>In an action of contract against a corporation to recover compensation for the damage done by extra poles erected by the defendant on the land of the plaintiff in the exercise of an easement, it appeared that the plaintiff by deed had granted to the defendant “the perpetual right and easement to erect, repair, maintain and patrol a single or double line of poles or towers and wires strung upon the same and from pole to pole and from tower to tower, for the transmission of high or low voltage electric current, with all necessary anchors, guys and braces, to properly support and protect the same, over and across ” the land described, and that the deed also contained the following provision: "In further consideration, the second party has paid to the first party the sum of five dollars for each one hundred feet of land crossed by the above mentioned pole or tower line, for a single line of poles or towers; and the party of the second part hereby agrees to pay for any extra poles or towers set on the above described property five dollars for each one hundred feet of land crossed by the wires strung upon the same.” It further appeared that the defendant later erected a pole between each of the two existing towers and one pole beyond the outside tower at each end of the line, that these poles were connected only with telephone wires already existing, that they took the place of weights and bars that previously had supported these wires and that no new wires were strung on the new poles. Held, that under the easement and the contract contained in the deed the defendant had no right to erect the new line of poles merely to support existing wires, and therefore that the poles were unauthorized structures, whose erection was a trespass, and accordingly that the plaintiff could not recover compensation for “extra poles” in an action of contract, although he might be permitted to amend his action into an action of tort.</p>

<p>Tort by the driver of a four horse caravan for personal injuries sustained by reason of being thrown from his seat to the ground by being run into by a street railway car of the defendant on Commercial Street in Boston on September 17, 1913. Writ dated October 23, 1913.</p> <p>In the Superior Court the case was tried before Lawton, J. At the close of the plaintiff’s evidence, which is described in the opinion and a footnote, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Claiming trial by jury, Exceptions. Contract, In writing, Performance and breach, Waiver. Waiver.</p> <p>In an action at law, where the defendant had claimed a jury trial and, when the case came on for trial, waived the claim and moved to have the case taken from the jury list, whereupon the plaintiff moved orally for a trial by jury, and where the presiding judge denied the defendant’s motion to have the case taken from the jury list and ordered that the trial proceed before a jury, it was held, that, although the judge was wrong in denying the defendant’s motion, because a party claiming a trial by jury has a right to waive that claim, yet this error did the defendant no harm and would not support an exception, because the plaintiff had a right to move orally for a trial by jury and the judge had power to grant that motion as he did.</p> <p>A contract in writing can be changed or modified by a subsequent oral agreement of the parties, and the performance of any requirement of the contract may be waived orally or by the conduct of the parties.</p>

<p>Probate Court, Vacation of decree, Jurisdiction. Judgment.</p> <p>On a petition to vacate a decree of the Probate Court made more than twelve years before the filing of the petition, it appeared that the decree sought to be vacated declared that the petitioner had died more than seven years before that time and ordered the distribution of a fund that had been deposited in a savings bank for his benefit, directing the bank to pay the fund to the petitioner’s two sons, who were his only heirs and next of kin, which was done, that the fund was the share to which the petitioner was entitled under the residuary clause of his mother’s will, that when his mother died he was in the Philippine Islands, that he did not learn of her death nor of the petition of his sons for the distribution of the fund until many years thereafter, that before filing his petition to revoke the decree he was unable to come to this Commonwealth and unable to prove his indentity without coming here, and that after learning of the proceedings and the decree he used due diligence in filing his petition. Held, that the decree must be vacated and a decree entered establishing the petitioner’s right to the fund as against his sons, but imposing no liability upon the savings bank for paying over the fund by order of the Probate Court, the decree of that court, which distributed a fund over which the court had jurisdiction, not having been void ab initia but having been in force up to the time of its correction.</p>

<p>Easement, By prescription. Equity Jurisdiction, To enjoin continuing trespass.</p> <p>Where for a period of more than twenty years the roof of a building openly and conspicuously has extended four feet over the adjoining land, causing water to drip and snow and ice to fall thereon, the boundary line between the two lots of land running through the centre of the wall of the building over and beyond which the roof extends, and where during this period there have been different successive owners of both of the lots of land but the lots never during the period have been owned by the same person and the extension of the roof beyond the boundary always has been maintained under a claim of right, an easement by prescription has been established, and a bill in equity by the owner of the servient estate to restrain the owner of the dominant estate from permitting the roof to project over the plaintiff’s premises must be dismissed.</p>

<p>Appeal to the Superior Court from a decision of the Industrial Accident Board approving a bill of Dr. Francis A. Cregg for the sum of $50 to be paid by the insurer for performing an operation for hernia on the employee Jerry Pecott on November 4, 1914, Dr. Cregg being the family physician of Pecott and not one of the two physicians provided by the insurer.</p> <p>The’ case was heard by McLaughlin, J. The facts found by the Industrial Accident Board are stated in the opinion. The judge made a decree affirming the decision of the Industrial Accident Board and ordering the insurer to pay Dr. Cregg “$50, said sum being a reasonable fee for the services performed under the statute.” The insurer appealed.</p>

<p>Railroad, Liability for collision at crossing. Negligence, Gross.</p> <p>At the trial of an action under St. 1906, c. 463, Part II, § 245, for personal injuries caused by a collision at a grade crossing of a railroad with a highway between a train of the defendant and an automobile driven by the plaintiff, where the plaintiff, upon showing that the defendant failed to give the signals required by law, is entitled to recover “unless it is shown that, in addition to a mere want of ordinary care,” he “was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury,” the presiding judge read to the jury certain passages from the opinion of the court in Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 145, 146, which the defendant had asked him to give as instructions to the jury. These passages related to the exercise of ordinary care by a person operating an automobile at a railroad crossing, and the judge said, “I read you that rule that you may have in your mind some standard of what is ordinary or due care.” The judge also said, “And I am going to read to you from a decision of the Chief Justice of our Supreme Court with respect first as to what constitutes due care of the plaintiff under circumstances of this nature, and under circumstances involving the operation of an automobile over a grade crossing, because the law with respect to automobiles is a new one.” Upon exceptions by the plaintiff, • after a verdict for the defendant, it was held, that the language of the judge amounted to giving the instructions requested as rulings of law and that the jury would be warranted in believing that the words read to them measured the standard of the plaintiff’s conduct, and consequently the plaintiff's exception to the giving of these instructions was sustained.</p>

<p>Fraud. Contract, Rescission. Assignment, For the benefit of creditors. Set-off.</p> <p>In an action by the assignee for the benefit of creditors of an insolvent corporation, which had been a dealer in automobiles and motor vehicles as the sales agent of another corporation, to recover the amount of a subscription signed by the defendant to take and pay for at par a certain number of shares of the capital stock of the plaintiff’s assignor, the defendant as a defence sought to rescind the contract on the ground that he was induced to subscribe for the stock by false representations made by the treasurer of the company. An auditor, to whom the case was referred under a rule that his findings of fact should be conclusive, found that the statement made to the defendant by the treasurer was that “ the business was in a flourishing condition and that the company had a great many prospects for the sale of new cars and had made a number of contracts with subagents for the sale of cars and that he believed there was an opportunity or even certainty that the company would make a lot of money.” The auditor also found “that it was explained to the defendant that the business [of the company for which the plaintiff’s assignor was sales agent] had not been long established and had up to that time been run at a loss, but that [the plaintiff’s assignor’s treasurer] hoped and believed and stated that their prospects for success were good and that the business was flourishing.” The auditor found that no misrepresentation of material facts had been made to the defendant, and judgment was given for the plaintiff. Held, that the finding was warranted that the treasurer of the plaintiff’s assignor made no such misrepresentations as would give the defendant a right to rescind the contract.</p> <p>A creditor of an insolvent corporation, who is liable to the corporation upon an unpaid subscription for shares of its capital stock, when sued upon his subscription by the common law assignee for the benefit of creditors of the corporation, cannot set off the debt of the corporation to him, but must pay for his shares in full and is entitled on his claim against the corporation only to his ratable share in the distribution of the assets among the creditors.</p>

<p>Equitable Restrictions. Frauds, Statute of. Equity Jurisdiction, Mistake.</p> <p>In a suit in equity to enforce an equitable restriction alleged to have been imposed on-the defendant’s land, if the alleged restriction is not contained in the defendant’s deed nor in those of any of his predecessors in title and the deeds refer to a plan filed in the registry of deeds on which there is no indication of any restriction, the restriction cannot be imposed upon the land by oral evidence of an alleged intention on the part of the original grantor who divided a large tract of land into lots and filed a plan of them in the registry of deeds.</p> <p>It does not help the plaintiff in a suit in equity to enforce an alleged equitable restriction not contained in the defendant’s deed nor in those of any of his predecessors in title, to undertake to show that the alleged restriction was omitted from the defendant’s deed by accident or mistake, the remedy to correct such a mistake, if there was one, being by a bill to reform the deed.</p> <p>In a suit in equity to enforce an equitable restriction alleged to have been imposed on the defendant’s land, where it appears that no owner of the lot of land of which the defendant owns a part ever created any restriction upon it, a recital in a mortgage given by the owner of the part of the lot not owned by the defendant, stating mistakenly that the mortgagor’s land is subject to the restriction in question, does not create such a restriction even upon his own land, still less on the land of the defendant.</p> <p>In the present suit to enforce an equitable restriction alleged to have been imposed on the defendant’s land, where it appeared that no owner of the land ever had created by deed any restriction upon it, it was said, that it was unnecessary to consider whether the statute of frauds would be a bar to the relief sought by the plaintiff.</p>

<p>Will, Execution and attestation. Evidence, Presumptions and burden of proof.</p> <p>An instrument purporting to be the last will of one who had been “an old fashioned country lawyer—a squire” accustomed to drawing wills and other instruments was wholly in the handwriting of the alleged testator and the date in the in testimonium clause had been changed in the testator’s handwriting from a later date to that of the attestation clause. Two of the three persons named as witnesses had died before the instrument was presented for probate, and the surviving witness testified, “ I do not remember seeing him [the alleged testator] sign it because I was not looking at him,” and that when the instrument was presented to the witness for his signature it was folded and “ all the part which he took any notice of was the part where he signed. He did not notice whether the signature of [the alleged testator] was there or not.” It appeared that the alleged testator in the presence of the three witnesses stated that he wished the surviving witness “to witness his will; that probably it would be his last will,” that the alleged testator and the witnesses sat down at a table, that the alleged testator “took out an instrument from an envelope which he had in his pocket,” that “there were pen and ink upon the table,” that “he had the pen and ink and document right there by the table before him,” but that the surviving witness "was talking with [one of the other witnesses] and did not notice particularly what he was doing,” that the three witnesses signed this paper in the presence of the alleged testator and of each other, that the paper was folded but that it was not so folded as to conceal from their view the signature of the testator if it was written thereon, and that, after the paper had been subscribed by the witnesses, the alleged testator folded it and wrote something on the outside of it or on the envelope, and did not open it again. Held, that an inference was warranted that the will was executed by the testator in the presence of the three witnesses before it was subscribed by them and that its execution and attestation were complete and valid under R. L. c. 135, § 1.</p>

<p>Contract, Construction, Building contracts.</p> <p>In a building contract the contractor under the specifications relating to “Excavations” agreed to “remove all soil, earth and stones” from a designated area to a specified depth, and the owner agreed “to provide all labor and materials essential to the conduct of this work not included in this contract.” When the cellar had been partly dug, a ledge of solid rock was discovered which it was necessary to remove in order to continue the work, and this ledge was removed by the contractor with the knowledge of the owner. In an action by the contractor against the owner to recover for the removal of this ledge as extra work outside the contract, it was held, that the material to be excavated by the contractor, which was limited to “soil, earth and stones,” did not include the ledge of rock, the removal of which was the duty of the owner under the terms of the contract.</p> <p>In the action above described it appeared that the contract between the plaintiff and the defendant provided that “No alterations shall be made in the work except upon the written order of the Architect; the amount to be paid by the Owner or allowed by the Contractors by virtue of such alterations to be stated in said order,” and that the architect, although he orally had approved the excavation of the ledge as an extra, had given no written order for it. Held, that the excavation of the unforeseen ledge of rock could not be considered an alteration in the work, being a matter wholly outside the scope of the specifications of the contract, so that the provision above quoted did not apply to it and there was no reason why the plaintiff should not recover compensation for the extra work thus done by him.</p> <p>In the same action it was held, that it was immaterial that the defendant understood and supposed that the work of removing the ledge was done by the plaintiff as a part of the contract, the defendant as matter of law being bound to know and abide by the terms of the contract it had made.</p>

<p>Negligence, Invited person, Trespasser. Automobile.</p> <p>Where the agent of a manufacturer of automobiles, maintaining an automobile station in Boston, had established a rule prohibiting chauffeurs in his employ from carrying any employee in any customer’s car, which rule occasionally was violated but without the employer’s knowledge, and where one of such chauffeurs when driving a customer’s car was asked by a fellow employee, whose work for the day was done and who was waiting to take a street car, whether he was going in town, to which the chauffeur replied that he was, whereupon his fellow employee got into the automobile and sat in the rear seat, the chauffeur knowing “that he took chances of losing his job if he gave anybody a ride,” and thereupon the chauffeur proceeded on his way in the automobile and a collision occurred in which the fellow employee was injured, in an action for such injuries brought by him against his employer, it was held, that there was no evidence that the plaintiff was being carried in the automobile by invitation of the defendant and that accordingly the plaintiff was in the position of a trespasser to whom the defendant owed no duty of care.</p>

<p>Negligence, Street railway, Mental suffering. Practice, Civil, Rulings and instructions. Pleading, Civil, Declaration. Damages, Special.</p> <p>In an action by a woman, against a corporation operating street and elevated railways, for personal injuries alleged to have been sustained by reason of a car of the defendant running into the rear of another car of the defendant in which the plaintiff was a passenger, there was evidence that as a result of the collision all the passengers in the car in which the plaintiff was were thrown to the floor, that afterwards a man was seen putting" the plaintiff back upon a seat of the car, that she was carried out of the car to her home and was in a condition of collapse and unable to walk, that on the day of the accident or the next day the plaintiff’s husband “saw a mark on his wife’s right hip and right elbow that ' appeared to be a bruise,” that the physician who attended her on the day of the accident when he first examined her diagnosed her case as an injury to the back, “that he thought there was a little redness at the time ” although there were no abrasions or black and blue spots. Held, that this evidence warranted a finding that the injuries received by the plaintiff were not wholly mental, but were physical injuries for which she was entitled to recover damages together with damages for mental suffering that arose out of or accompanied such physical injuries.</p> <p>At the trial of an action by a woman for personal injuries, where it appears that, before the accident which caused her injuries, the plaintiff was a strong, healthy, robust woman about twenty-seven years of age, and there is nothing to indicate that she was “a person of peculiar sensitiveness,” it is proper for the presiding judge to refuse to give an instruction to the jury as to its not being the duty of the defendant to anticipate an injurious result which would happen only to a person of peculiar sensitiveness, irrespective of the question whether the ruling requested would be a correct one if it were applicable to the facts of the case.</p> <p>In an action against a corporation operating street and elevated railways for personal injuries sustained by reason of an accident, which caused mental suffering as well as some physical injury, a general averment of damages in the declaration is sufficient to cover the proof of physical and mental suffering of the plaintiff based upon permanent injury, a claim for permanent injury not being a matter of special damage.</p> <p>In the action mentioned above there was evidence that the plaintiff after the accident had suffered from hysteria which had continued down to the time of the trial, that as a result of this condition she had been in a state of unconsciousness on different occasions and had been confined to her bed most of the time, and her family physician testified that her ultimate recovery was problematical and unlikely. There was other medical testimony to the effect that in some cases of hysteria the persons so suffering became chronic invalids and that it could not be determined when, if ever, the plaintiff would recover. Held, that there was evidence warranting a finding that the plaintiff was injured permanently.</p>

<p>Equity Pleading and Practice, Reference to master, Motion to recommit, Premature suit. Voluntary Association. Syndicate. Contract, Construction, Consideration. Equity Jurisdiction, For an accounting.</p> <p>Where a suit in equity is referred to a master with an order to report his findings of fact and rulings of law, his report of rulings of law is advisory.</p> <p>Where by consent of the parties a suit in equity is referred to a master “to hear the parties and their evidence, to find the facts, decide the case, and report thereon to the court,” the master has authority to report not only his findings of fact but also his rulings of law.</p> <p>Where a suit in equity was referred to a master under the rule quoted above, and the master stated in his report, “The scope of the rule has been questioned by the parties, and I have interpreted the same to direct me to determine matters of law as well as matters of fact, and to make such findings as would have been made by a justice of this court had the case been heard by the court,” and where a motion to recommit the report to the master was denied by the single justice who heard the case, it was held, that, although the statement of the master was not strictly accurate, yet, when limited to its meaning in connection with other parts of the rule, it was essentially correct, and that at any rate the objecting party was not harmed by it, so that the denial of the motion to recommit was right whether considered as a matter of discretion or as a matter of law.</p> <p>Where a voluntary association, called a syndicate, was formed by an agreement between the subscribers and a governing board, called the syndicate managers, and the purpose of the syndicate was declared in the agreement to be the acquiring through a contract held by a certain corporation of fifty-two per cent of the capital stock of a certain copper company, “also for the purpose of purchasing remaining stock of said [copper company]; of providing additional working capital for continuing and developing the business of said [copper company] and of developing the property owned and controlled by said company, or which may be at any time acquired by it,” it was held, that the words “remaining stock” as used above meant remaining outstanding stock.</p> <p>By the syndicate agreement named above it was provided that “The syndicate managers shall have the sole direction and management and the entire conduct of the transaction and business of the syndicate; they are authorized to vote and act in respect of all stocks held by it, and to do any and all things by them in their sole and absolute discretion deemed proper, necessary or expedient to carry out the purposes of this agreement.” Under this and other clauses of the agreement, it was held, that the syndicate managers had authority to employ a certain expert and pay him for information valuable and necessary for a complete understanding of the business of the copper company.</p> <p>It also was' held that the syndicate managers had no authority to set aside certain shares of stock to be delivered to certain persons as a reward for faithful past services, such recognition of a moral obligation not being within the "purposes” of the agreement.</p> <p>It also was held that the syndicate managers had no authority to grant an option to purchase certain shares of stock to another person in consideration of present service and future service to be rendered, the “present” service having been rendered voluntarily and the grantee of the option being under no binding agreement to render any service in the future.</p> <p>The syndicate agreement above described contained the following provision in regard to the termination of the syndicate: “Unless the object of the syndicate shall be sooner attained as determined by the syndicate managers in their discretion, the syndicate shall remain in force for a period of three years from the date hereof. . . . Thereupon the affairs of the syndicate shall be wound up by the syndicate managers and the net proceeds in cash or securities, including all dividends and interest received, shall be distributed pro rata among the subscribers not in default.” In the last of the three years thus provided for the existence of the syndicate, the syndicate managers by proper votes and by acts in pursuance of them, under circumstances which made such action necessary for the purposes of the syndicate agreement, caused to be issued by the copper company $150,000 of its income bonds and issued, as a bonus distributed pro rata to the purchasers of these bonds, twenty thousand, five hundred shares of stock of the copper company, placing the remainder of the stock of that company owned by the syndicate in a voting trust for a period of three years or until such time as the income bonds should be redeemed by the copper company. Held, that these acts, performed by the syndicate managers in good faith, were a proper exercise of “their sole and absolute discretion,” there being no provision in the syndicate agreement that, when the affairs of the syndicate should be wound up by the syndicate managers at the end of the three years, there should be any distribution of the shares of stock of the copper company in specie to the subscribers.</p> <p>Three days after the expiration of the term of three years provided for in the syndicate agreement above described, certain subscribers to the syndicate filed a bill in equity against the syndicate managers, praying for a winding up of the syndicate and the distribution of its property among the subscribers. A master to whom the case was referred found “that a reasonable time for winding up the affairs of the syndicate, after the time when it terminated by the terms of the agreement, was one month after” the day of termination. Held, that the suit was brought prematurely, as the defendants at the time it was brought were under no obligation to account to the plaintiffs.</p>

<p>Voluntary Association. Syndicate. Words, “ Underwriting,” “ Syndicate,” “Good faith.”</p> <p>A dock property in East Boston was purchased by subscribers to an "underwriting syndicate” organized under an agreement in writing. By the syndicate agreement the subscribers appointed two syndicate managers, who were given "as full power over any and all the securities, real estate, property rights, privileges and franchises which they may at any time acquire, or which may at any time be controlled by them, as if they were the owners thereof,” including the power to mortgage, pledge or sell the whole or any part of such securities and property. It was provided that, “In consideration of the rights herein granted and of the premises, said Syndicate Managers will endeavor in good faith to accomplish the purposes of this undertaking.” The plan set forth in the syndicate agreement was to acquire the dock property at a price deemed to be less than its value and to sell it again at its greater true value to a real estate trust, to be organized by the syndicate, whose shares were to be sold to the public. The syndicate managers issued to the subscribers syndicate receipts, and with the money subscribed bought the dock property and conveyed it to trustees, who in return therefor issued to the managers five thousand shares of the par value of $100 each of dock trust stock. The managers then formed an operating corporation, to which the trustees leased the dock property for a term of thirty years at a rent sufficient to enable the trustees to pay all expenses, to reduce somewhat a mortgage on the trust property and to pay dividends on the dock trust stock at the rate of five per cent per annum. The managers then sold for cash at par fifteen hundred and ninety-eight shares of the dock trust stock. In spite of considerable expenditures for improvements the operating corporation for three years incurred a substantial deficit. The trustees wrote to the managers that the trustees would be obliged to reduce the dividends on the dock trust stock to three per cent unless two thousand of the shares, which were held by the managers unsold, should be deposited with the trustees as collateral security for rent and other charges. Thereupon a pledge agreement was made between the managers and the trustees, whereunder two thousand shares of the dock trust stock were deposited by the managers with the trustees to be held until referees should determine that the operating company had demonstrated its capacity to earn sufficient net income to pay its rent or that certain other things had happened, and, if the return of the two thousand shares' should not be authorized thus, then the trustees might at the termination of the lease cancel the two thousand shares and reduce to that extent the capital of the trust. The return of the shares thus held as collateral was not authorized in any of the ways provided, and the lease was terminated by the trustees for non-performance of its obligations by the operating corporation. Thereupon holders óf syndicate receipts, some of whom had bought them much above par, and none of whom had notice of the pledge agreement until long after its execution and the making of the pledge,^brought a suit in equity against the managers and the trustees to set aside the pledge agreement and to require the return of the two thousand shares to the syndicate managers. On an intervening petition certain holders pf dock trust shares, were admitted as defendants and contended that the pledge agreement was within the power of the managers and involved no breach of duty by the trustees. There was no contention that there was any actual bad faith on the part of the managers. Held, that the making and performance of the pledge agreement without notice to the holders of-the syndicate receipts were clearly within the broad powers given and intended to be given to the syndicate managers, and that there was no failure of duty on the part of the trustees, who indeed had assumed no obligations toward the holders of syndicate receipts.</p> <p>In the suit above described it appeared that by an express provision of the syndicate receipts every holder of them became a party to the underwriting agreement and was “ bound accordingly,” and it was held, that the fact that some of the plaintiffs had purchased their syndicate receipts at high prices was of no consequence, as each purchaser became a joint adventurer in the syndicate speculation with all its possibilities of loss as well as of profit.-</p> <p>In the same case it also was held, that the mere fact that the pledge agreement might not be concluded before the expiration of the syndicate did not show that the powers of the managers were exceeded in making it, and that there was nothing to indicate that there could not be a distribution of the assets of the syndicate when it expired, subject to the pledge agreement, if that still should be in force.</p> <p>In the same case it was held, that, although neither the managers nor the trustees were under any legal obligation to keep the capitalization of the trust within the limits of its actual earning capacity, yet the attempted execution of a purpose to accomplish this result, so far from being a breach of trust, was an attempt on the part of the managers to carry out in good faith what was deemed by the trustees to be a moral obligation. Moreover certain facts indicated that the pledge agreement was advantageous to the syndicate venture in a business way.</p> <p>In the same case it was held, that the rule against perpetuities had no application to the pledge agreement.</p> <p>It also was held that the pledge agreement under the circumstances disclosed was not contrary to the rule against restraints on alienation.</p> <p>In the same case, a cross bill having been filed by the trustees against all the other parties to the suit, praying that the two thousand shares of the dock trust held by them as collateral might be cancelled, it was held, that the relief prayed for in the cross bill should be granted, and that the principal bill should be dismissed with costs to the defendants but not to the interveners.</p> <p>In the case above described, in which the rights of the holders of syndicate certificates depended upon the terms of an “ underwriting agreement,” it was said that the word “ underwriting ” used in this connection means simply that the persons joining in the scheme agree to furnish the necessary money and to take the shares which are not bought by the public, and that the word “ syndicate ” used in this connection means an association of persons with a community of interest in the fund raised for carrying on the particular undertaking.</p>