Volume 224 — Massachusetts Reports

<p>Contract, Construction, Performance and breach, Failure of consideration, Implied. Practice, Civil, Judgment ordered under St. 1909, c. 236.</p> <p>In an action against an administrator for money had and received by his intestate to the use of the plaintiff, it appeared that the intestate, when he was attempting to perfect some machines for an inventor, procured money from the plaintiff, his friend, to defray his personal expenses until he could get some money from the invention and signed an agreement that the money should "be paid according to the following conditions in stock” of a corporation to be organized to manufacture and sell the machines “and in cash. Said ” plaintiff "shall receive of me three hundred shares of the stock of the . . . company and as further recompense for the loan and accommodation I will set aside 1200 shares of my own holdings in said company, all the dividends on which shall be devoted to repaying said ” plaintiff “ three hundred dollars in cash.” The intestate labored diligently but in vain to perfect the machines. The machines were a failure and no corporation ever was formed. Held, that by the provisions of the' contract the plaintiff was to receive his pay in shares of the capital stock and in dividends on shares to be issued to the intestate, and in no other way; that the failure to form the corporation was no fault of the intestate, and that, the intestate having performed the contract to the best of his ability, the action could not be maintained because there was no failure of consideration for the contract.</p> <p>It also was held, for the same reasons, that an action could not be maintained for breach of the contract by the intestate.</p> <p>An action of contract, the declaration in which contained two counts, the first upon a contract in writing and the second for money had and received, was heard by a judge without a jury, and the defendant asked for certain rulings which applied to both counts. The judge made no disposition of the rulings, but ordered judgment for the plaintiff on the second count, and the defendant excepted. This court were of opinion that a judgment should have been ordered for the defendant upon the second count, and, it clearly appearing also that the plaintiff could not maintain his action upon the first count, held, that under St. 1909, c. 236, judgment should be entered for the defendant upon both counts.</p>

<p>Insurance, Life. Evidence, Presumptions and burden of proof, Best evidence, Public records. Practice, Civil, Rulings and instructions, Exceptions, Verdict.</p> <p>In an action upon a policy of life insurance containing a provision which reads, “Conditions. Provided, however, that no obligation is assumed by said Company prior to the date hereof, nor unless on said date the insured is alive, in sound health . . .,” proof that on the date of the policy the insured was in sound health is a condition precedent to recovery, and the burden of proving compliance with that condition rests upon the plaintiff.</p> <p>Proof of the performance of a condition precedent of a policy of life insurance is not affected by St. 1907, c. 576, § 21, providing in substance that “No . . . warranty made in the negotiation of a . . . policy of insurance by the assured . . . shall be deemed material or defeat or' avoid the policy . . . unless . . . made with actual intent to deceive or unless the matter . . . made a warranty increased the risk of loss.”</p> <p>An error of a judge presiding at the trial of an action upon a policy of life insurance, in instructing the jury that the burden of proof rested upon the defendant to show that the policy had been avoided by breach of a condition precedent that at its date the insured was in good health, is not cured by a further instruction that, if it appeared to the minds of the jury that the insured “was not in sound health at the time when the policy was taken out, then by the express terms of the policy there could be no recovery.”</p> <p>It is proper, at the trial of an action upon a policy of life insurance where a material issue is, whether the insured at the date of the policy was in sound health, to refuse to admit as evidence a copy of a card, the original of which had been destroyed, which was kept by the State board of health, not as a public record in the sense of R. L. c. 35, § 5, but as a part of the board’s voluntary activities without legislative requirement, and whidh purported to state that a sample of sputum of the insured had been examined by the bacteriologist and found to be tuberculous, especially when it does not appear that the bacteriologist who made the test might not be called as a witness.</p> <p>If a jury, in an action where the plaintiff is entitled to interest, return a verdict for the plaintiff in a certain sum “with interest,” the presiding judge has power, before the verdict is recorded, to order the amount of the verdict to be amended by the addition of interest.</p>

<p>Attorney at Law, Disbarment. Disbarment Proceedings.</p> <p>Disbarment proceedings are not begun by a writ, and the usual form of procedure, which here was followed, of filing a petition in the Superior Court setting forth certain causes for disbarment, upon which an order of notice to appear and show cause why his name should not be stricken from the roll is issued to the accused attorney in the usual - form signed by the clerk and, together with a copy of the petition, is delivered in hand to such attorney, violates no constitutional right and no statutory provision.</p> <p>Where, after a hearing on the merits upon disbarment proceedings in which the petition alleged only one ground for disbarment, the trial judge made findings of' fact in which he found that the ground alleged in the petition was “abundantly established,” and also found two other grounds for disbarment which were not alleged in the petition, but made an order for disbarment based on the single-matter alleged in the petition, it was said, that it was not necessary to determine whether, after a trial in which the accused attorney had had ample opportunity to be heard on all matters, the order for disbarment might not have been based on one or both of the grounds not included in the petition, or to determine whether the petition under the circumstances might not have been amended to-conform to the evidence.</p> <p>Where an attorney at law brought an action for a woman client against certain defendants, and the action was settled by the entry of judgment for the defendants upon an agreement in writing signed by this attorney without the knowledge or special consent of his client and without giving her notice of it after it was entered, and where such entry of judgment was a part of the consideration given by such attorney for an option to him from the defendants to purchase certain real estate, and the attorney concealed this transaction from his client until she learned of it at some time later and brought a suit against him to enforce her rights, an order for the disbarment of the attorney is warranted.</p> <p>In disbarment proceedings based on the facts stated above, the circumstanc'e, that the real estate speculation entered into by the attorney through the option thus acquired by him turned out disastrously for him, has no bearing upon his want of faithfulness to his client.</p> <p>If in such disbarment proceedings it should have been found that the attorney originally had authority from his client to dispose of her case as he deemed best, this would not justify his want of fidelity to her.</p> <p>The facts narrated above also were held to have justified a further finding made by the trial judge that the attorney was “guilty of gross misconduct in his office.”</p> <p>The provisions of it. L. c. 173, §§ 79, 109, that in an action at law where exceptions have been filed judgment shall not be entered unless the exceptions are adjudged immaterial, frivolous or intended for delay, have no application to disbarment proceedings, in which an order for the disbarment of the accused attorney properly may be entered while exceptions taken by him are pending.</p> <p>A judge of the Superior Court is not disqualified from hearing a petition for the disbarment of an attorney at law by reason of such judge’s membership in the bar association that instituted the proceedings. Following Boston Bar Association v. Casey, 211 Mass. 187.</p> <p>The denial of a motion for a rehearing in disbarment proceedings here was held to have been a matter wholly within the discretion of the trial judge.</p> <p>In disbarment proceedings, where an order for the disbarment of the accused attorney has been held by this court to have been warranted and a finding that the attorney was guilty of gross misconduct in his office also has been held to have been warranted, it is not a question of law for determination by this court whether an absolute removal or merely a suspension from practice for a specified period was required in order that the demands of justice might be met and the protection might be afforded to the public which only an upright bar can give.</p>

<p>Jurisdiction, Non-resident defendant. Practice, Civil, Special appearance, Law of trial. Judgment. Waiver.</p> <p>Construing together R. L. c. 170, § 1, and §§ 6 and 9 of the same chapter, the meaning is that, where an effectual attachment of property of a non-resident defendant has been made, the best kind of notice which can be given under the circumstances shall issue, in order to afford the non-resident defendant an opportunity to come into court and be heard on the question whether the property so attached ought to be held to‘satisfy a judgment in accordance with the terms of § 1.</p> <p>If a non-resident defendant, on whom no personal service has been made but whose property has been attached by trustee process, appears specially and answers and defends the case for the sole purpose of protecting his rights in the goods, effects and credits in the hands of the alleged trustee without submitting himself generally to the jurisdiction of the court, he has a right to be heard in protection of his property thus attached, and the judgment rendered, if against him, will be valid only to secure the application of the attached property to the satisfaction of the judgment.</p> <p>In the case stated above a judgment in the defendant’s favor would be no bar to a further prosecution of the plaintiff’s claim against other property or against the defendant personally in case an effectual attachment or personal service afterwards should be made.</p> <p>Where a non-resident defendant, on whom no personal service had been made but whose property had been attached by trustee process, appeared specially for the sole purpose of protecting his rights in the attached property, but the trial judge ruled that if the defendant desired to contest the case he must answer generally and submit himself to the jurisdiction of the court, and the defendant then, after having excepted to the ruling of the judge, answered generally and filed cross interrogatories for the taking of a deposition without further questioning the jurisdiction of the court, the defendant by this compliance with the ruling of the judge, which until reversed was the law of the trial, did not waive his special appearance nor his exception based on it.</p> <p>The provision of R. L. c. 173, § 118, relates only to the effect of a general appearance and answer to the merits where the defendant’s rights have not been saved by previous pleadings.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 9, 1915; and,</p> <p>Petition for a writ of mandamus, filed in that court on March 5, 1915, both proceedings being brought by Mary P. Teele, a stockholder in the defendant corporation, to compel compliance by it with the provisions of St. 1903, c. 437, § 44.</p> <p>That section is as follows: "A stockholder in any corporation which shall have duly voted to sell, lease or exchange all its property and assets or to change the nature of its business in accordance with the provisions of section forty, who, at the meeting of stockholders, has voted against such action may, within thirty days after the date of said meeting, make a demand in writing upon the corporation for payment for his stock. If the corporation and the stockholder cannot agree upon the value of the stock at the date of such sale, lease, exchange or change, such value shall be ascertained by three disinterested persons, one of whom shall be named by the stockholder, another by the corporation and the third by the two thus chosen. The finding of the appraisers shall be final, and if their award is not paid by the corporation within thirty days after it is made, it may be recovered by the stockholder from the corporation in an action of contract. Upon payment by the corporatian to the stockholder of the agreed or awarded price of his stock, the stockholder shall forthwith transfer and assign the stock certificates held by him at, and in accordance with, the request of the corporation.”</p> <p>The cases were consolidated and were heard together by Braley, J. He found, among other facts, the following:</p> <p>The purposes of the corporation since its incorporation in 1864 were “the quarrying and preparing for the market of stone in the towns of Rockport and Gloucester in the County of Essex and Commonwealth of Massachusetts, and for selling the saíne.”</p> <p>At a meeting of the stockholders of the defendant on November 6, 1914, Mary P. Teele alone voting in opposition, the purposes of the corporation were changed to read as follows:</p> <p>“The purposes for which said corporation is established are to quarry stone and prepare the same for market, to buy, sell and deal in the same; to acquire, own or lease any lands containing stone, or other lands, for any purposes of the Company; to enter into and carry out contracts for the construction, alteration and repairing of all kinds of structures, including buildings, roads, docks, breakwaters, sea walls, aqueducts, canals and other water ways, so far as said contracts may be necessary or advantageous for placing many such structures stone quarried or prepared by the Company; to lay out and construct railroads, railways, telephone and telegraph lines, and to construct, equip, purchase, sell, own or lease vessels of every nature and description, so far as such railroads, railways, lines and vessels may be necessary and appurtenant to any purposes of the Company; and as incidental to the other purposes of the Company to buy, sell, and deal in, general merchandise, and hold, purchase, or otherwise acquire, and sell or otherwise dispose of, shares of the capital stock and bonds or other securities of other corporations, and to exercise all the rights of ownership thereof, including the right of voting; to do all and everything necessary or convenient for the accomplishment of any of the purposes or objects or powers above mentioned or incidental thereto.</p> <p>“The Corporation is to have the power to conduct its business both within and without the Commonwealth, and may have and maintain such offices as may be necessary therefor.”</p> <p>On November 10, 1914, the plaintiff made a demand upon the defendant in writing to make payment for her stock, which it refused. The plaintiff then, on or about December 8, 1914, appointed an appraiser in accordance with the statute and duly-notified the defendant. The defendant, however, refused to appoint an appraiser to fix the value of the plaintiff’s shares of stock, and refused to take any action in the premises.</p> <p>Since its organization the corporation frequently had bought and sold paving blocks and other forms of granite, which, on account of form, color, quality, or for other reasons, could not be furnished from its own quarries; frequently had leased and purchased lands containing stone, for the purposes of the company; had entered into and carried out contracts for the construction, alteration and repair of- different structures, including roads, docks, breakwaters, and sea walls, in so far as said contracts were advantageous for placing in such structures, together with other materials necessary for their construction, the stone quarried or prepared by the company; from 1887 to the present time had built numerous lines of railroad for the purpose of connecting different parts of its various quarries, and also had built temporary lines of railroad for the purpose of delivering stone where delivery by water or by other ways had been found impracticable; also had built' and maintained telephone and telegraph lines for the purpose of connecting various parts of its plant; also had owned and maintained, purchased and sold, constructed, built, and repaired, vessels of every nature and description used by it for the purpose of transporting stone and constructing sea walls and similar structures, having owned and operated a fleet of sloops, schooners, barges, tugs, exceeding twenty in number; had bought, sold and dealt in general merchandise at a general store maintained by the company for the convenience and advantage of its employees and for the profit of the company; at various times had acquired by purchase, or taken for indebtedness or held for security and sold and disposed of, shares of the capital stock and bonds or other securities of other corporations in connection with the business of the corporation.</p> <p>All of the foregoing transactions were authorized by the directors and stockholders, to whom reports of the transactions were submitted each year, of which full statements appeared in the annual reports.</p> <p>Mary P. Teele was represented by her attorney at some of these meetings and received during her ownership dividends from time to time and made no protest regarding the business operations of the company. Her husband during his life acted as attorney for the corporation and was informed of all of its transactions during the time, and advised and assisted in the contracts for the building of various structures and the acquisition of various parcels of real and personal property and the exercise of all the other powers claimed by the corporation. But whether the information which he thus obtained was communicated to his wife did not appear.</p> <p>It also appeared that, after the institution of these proceedings, Mary P. Teele received and cashed a check for a dividend upon her shares of stock in the defendant. The single justice found that, owing to the circumstances of her age and health, she did not thereby waive her rights as stated in these proceedings.</p> <p>After the hearing before the single justice Mary P. Teele died and Arthur P. Teele, the executor of her will, was admitted to prosecute the case in her stead.</p> <p>At the request of the parties the single justice reported the cases on the pleadings and the findings of fact for determination by the full court.</p>

<p>Commonwealth. Actionable Tort. State Forester. Agency, Scope of authority or employment.</p> <p>The provisions of R. L. c. 201 do not permit the maintenance against the Commonwealth of a petition for the assessment of damages resulting from an ordinary tort committed by an officer or employee of the Commonwealth in the performance of duties prescribed by law.</p> <p>The State forester, neither by the provisions of St. 1904, c. 409, § 2, which describe bis general duties, nor by Res. 1915, cc. 2, 23, directing him “to provide employment for needy persons deemed by him to be worthy thereof . . . upon the improvement and protection of forests and in any other public work which may ... be proper” in his opinion, is authorized to cut cord wood or clear brush upon the land of a private person for a price to be paid to the Commonwealth, and by his doing so the Commonwealth is not made subject to the liability of a private person engaged in private business to answer in damages for torts committed by its employees in such work.</p> <p>The Commonwealth cannot be presumed to have consented to be impleaded in its own courts to answer for torts committed by the employees of one of its officers acting beyond the scope of authority conferred by law.</p>

<p>Commonwealth Flats. Landlord and Tenant, What constitutes relation, Construction of lease. . Tax, Of leased land on Commonwealth Flats. Constitutional Law, Proportional and reasonable taxation, Equal protection of the laws. Words, “All annual taxes,” “Municipal.”</p> <p>Under an indenture between the Commonwealth, acting by the board of harbor and land commissioners, empowered thereunto by R. L. c. 96, § 3, and the Boston Fish Market Corporation, throughout which the corporation is described as “lessee” and by the provisions of which, aptly phrased to create the relation of landlord and tenant, the Commonwealth “doth hereby demise and lease unto” the corporation certain parts of Commonwealth Flats for a term of fifteen years and gives to it extensive rights as to the erection of substantial buildings which would be expensive and valuable improvements to the property, and the corporation agrees to pay a certain sum as “rent,” the corporation is not given a mere license under R. L. e. 96, § 17, but it is a lessee of the premises.</p> <p>And, if the lessee named above uses the premises for the purpose of subletting portions of them to persons who deal in fish, the premises are “leased” to it “for business purposes,” although it does not itself engage in a mercantile business; and therefore, under the provisions of St. 1909, c. 490, Part I, § 12, the premises are subject to taxation.</p> <p>The general exemption from taxation of the property of the Commonwealth in St. 1909, c. 490, Part I, § 5, cl. 2, does not apply to those portions of the Commonwealth Flats that are “leased for business purposes,” which are expressly subjected to taxation by § 12.</p> <p>The mere fact, that the Commonwealth by St. 1909, c. 490, Part I, § 12, subjects some, but not all, of the land of which it is the proprietor to taxation when it is leased, is not a violation of c. 1, § 1, art. 4 of the Constitution of Massachusetts, requiring that all property taxes must be "proportional and reasonable,” and violates no constitutional right of any citizen.</p> <p>For the same reasons that statute is not in contravention of the clause of the Fourteenth Amendment of the Constitution of the United States assuring “equal protection of the laws.”</p> <p>A provision in a lease by the Commonwealth to a corporation of a portion of the Commonwealth Flats, that the lessee "shall also pay ... all annual taxes which may be assessed upon the premises leased. ... By ‘annual taxes,’ as applied to the leased premises, is meant the annually recurring municipal tax, and not any betterment taxes for street construction or other special taxes or assessments,” requires the lessee to pay all the tax as assessed under St. 1909, c. 490, Part I, § 12, the word "municipal” as here used including the county and State taxes.</p>

<p>Negligence, Street railway, In use of highway. Practice, Civil, Conduct of trial: withdrawal by judge of erroneous instruction.</p> <p>In an action under St. 1906, c. 463, Part I, § 63, by an administrator against a corporation operating a street railway for causing the death of the plaintiff’s intestate by reason of a collision of a car of the defendant with a bicycle which the intestate was riding, the presiding judge in the course of his charge, alluding to the conduct of the intestate, said, “If, as he came out of P Street, from any reason — his inexperience, perhaps, — for something that we know nothing about, — if he lost temporarily the control of that machine, and if before he gained it he found himself right in front of this car, so that he could not control it, you would be justified in finding that he was not in the exercise of due care, and it is important that he should be in the exercise of due care in order to recover.” There was evidence to which this instruction was applicable. Held, that the instruction gave the plaintiff no ground for exception.</p> <p>In the same case there was some evidence that the plaintiff’s intestate in his manner of turning the comer from one street into another was violating a street traffic regulation, and the judge in instructing the jury in regard to this matter said, “Whether the boy knew the traffic regulation or not is of no consequence.” Held, that this instruction in the connection in which it was used was not erroneous.</p> <p>At the trial of the same case the judge in his charge in commenting on a statement previously made in writing by one of the plaintiff’s witnesses, which had been used in the cross-examination of the witness for the purpose of contradicting him, spoke of it as if it were affirmative probative evidence, whereas the only use that properly could be made of the statement was in contradiction of the witness’s testimony for the purpose of impeaching its credit. When the judge’s attention was called to this matter at’the close of his charge, he instructed the jury as to this and two or three other statements of a similar character, that they were “competent to be considered merely as tending to contradict, if they do contradict, what those different witnesses testified to, and go to affect the credibility” . of those witnesses, and were not to be considered in any other way. Held, that the erroneous instruction was withdrawn by the judge and thereby cured, and therefore afforded no ground for exception.</p>

<p>Clams. Practice, Criminal, Sentence, Writ of error. Pleading, Criminal, Complaint. Writ of Error.</p> <p>It is erroneous, cupón a complaint under R. L. c. 91, § 113, charging the defendant with having taken clams within prohibited bounds and containing no averment of a previous conviction for a like offence, to impose a sentence for more than a first offence, although in fact there may have been previous convictions which, if averred and proved, would have warranted the imposition of a greater sentence.</p> <p>The averment of a previous conviction of a certain crime is an essential part of the description of the crime of having committed a second or other subsequent crime of the same nature, and such an averment must be included in the complaint or indictment for the subsequent crime in order to support a sentence for the repeated offence.</p> <p>The provision of R. L. c. 193, § 12, that, if a final judgment upon a criminal complaint is reversed by reason of error in the sentence, “such judgment shall be rendered ... as the court below should have rendered, or it may be remanded for that purpose to said court,” does not deprive this court of its power, when such error is disclosed and it is apparent that the defendant has suffered enough for the crime of which he was convicted, to reverse the judgment of sentence and discharge the prisoner.</p> <p>Where, upon a writ of error, it was disclosed that a sentence directing the payment of a fine of $50 and ordering that the defendant stand committed until the fine was paid, was imposed upon a complaint for a violation of R. L. c. 91, § 113, in having taken clams within prohibited bounds, for which no fine larger than $10 should have been imposed, and that the plaintiff in error, after being imprisoned twelve days, paid the fine, this court, being of opinion that the petitioner in error had suffered enough for the crime committed, ordered the judgment of sentence reversed, that the petitioner in error be not remanded for further sentence, and that he be awarded a judgment for costs against the Commonwealth to be paid by the county in which he was convicted.</p>

<p>Two indictments, found and returned on March 6, 1915, the first charging the defendant in two counts with forging a promissory note and the second charging that he "did steal money,” in amount $925, "one piece of paper” of that value, “of the property of one Hyman Slessinger.”</p> <p>The defendant consented to be tried on both indictments at one trial, and was tried before Irwin, J.</p> <p>There was evidence tending to show that Slessinger gave the defendant $925, being induced to do so by representations of the defendant as to the good standing of the persons purporting to be the signers, other than himself, of the following promissory note:</p> <p>“$2000.00 Boston, July 21, 1914.</p> <p>Three months after date I promise to pay to the order of Louis W. Reycroft Two Thousand 1/100 Dollars. Payable at any bank in Boston.</p> <p>Value received. James F. Kennedy</p> <p>P. O. Box 1113, Boston.</p> <p>(On back)</p> <p>Waiving demand and notice</p> <p>Louis W. Reycroft</p> <p>Joseph P. Logue</p> <p>Samuel Carver.”</p> <p>The defendant admitted that all the handwriting and signatures upon the note were in his handwriting.</p> <p>Slessinger, in cross-examination, testified that he had seen the defendant frequently and knew he was a lawyer for eight or ten years and did not make up his mind to make any loan until the defendant signed the note. In redirect examination, subject to an exception of the defendant "to both the form and the substance,” he was asked “whether or not you would have parted with your money or drawn this check to Carver if he had not made the representations to you that Kennedy was good, that Reycroft was good, that Logue was good, and that it was a perfectly good note?” He answered “I would not.”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the defendant asked the judge to order a verdict of not guilty on each count of the indictments. The judge refused so to do and the jury found the defendant guilty on both indictments. The defendant alleged exceptions.</p> <p>On the indictment for forging and uttering, no sentence was imposed.</p> <p>On the indictment for larceny, after exceptions were alleged by the defendant, the defendant was sentenced to the House of Correction at Deer Island for one year, and, on motion of the defendant, the presiding judge ordered that execution of the sentence be stayed until further order of the court. Thereafter the defendant appealed from the sentence, and his exceptions then were allowed.</p>

<p> Wrongful Registration of Land. Deed. </p> <p>An action of contract against the Treasurer and Receiver General under R. L. c. 128, §§ 95, 96, to recover compensation out of the assurance fund created under other sections of that statute for an alleged wrongful registration of a parcel of land belonging to the plaintiff, cannot be maintained by one whose only title to the land is derived from a deed purporting to convey the land to him, which is dated and was delivered after the decree of registration complained of and after a copy of such decree was received for transcription at the registry of deeds, the loss having been incurred, if at all, by the person who owned the land when the wrongful registration was made.</p> <p>A deed of land, in which the description by metes and bounds is followed by the words “Together with all our rights in said Channel of Island End River if any,” conveys the rights of the grantors in the estuary named, but does-not convey a right to compensation under R. L. c. 128, § 95, for the loss of land that was a part of a dam across Island End River through a wrongful registration of such land by a decree of the Land Court.</p>

<p>Tort in the nature of trespass quare clausum fregit against the city of Newburyport for forcibly entering the plaintiff’s close in the town of West Newbury described in the declaration and causing it to be overflowed with water. Writ dated March 17, 1915.</p> <p>The defendant in its answer alleged that the acts complained of by the plaintiff were done by the defendant through its board of water commissioners by right of eminent domain exercised on September 21, 1914, under authority of St. 1908, c. 403, by a taking filed and recorded in the registry of deeds; that “the plaintiff’s land described in the declaration is situated by the Artichoke River or a tributary thereof between the Plummer Spring Road and the Turkey Hill Road in West Newbury, and that a portion of said land along said river or its tributary is below the elevation of twenty feet above mean low water in the Merrimac River; that the acts done by the defendant on the lands of the plaintiff, as alleged in the declaration, have been confined to those portions of said land which lie below the aforesaid elevation of twenty feet, and consist merely of flowing part of said land and removing therefrom certain trees, bushes and other matter in pursuance of the aforesaid taking and in the exercise of the rights acquired thereby, said acts having been deemed proper by the defendant’s board of water commissioners and designed to carry out the purposes of the aforesaid St. 1908, c. 403.”</p> <p>A copy of the taking was annexed to the answer, containing with the rest of the instrument the words of description of the right to flow which are quoted in the opinion.</p> <p>The plaintiff demurred to the answer, setting forth as grounds of demurrer the following:</p> <p>“ 1. That the answer does not state a legal defence to the plaintiff’s declaration substantially in accordance with the rules contained in R. L. c. 173, and amendments thereto.</p> <p>“2. That the alleged instrument of taking set forth in the defendant’s answer does not contain a description of the plaintiff’s lands alleged to be taken by virtue of St. 1908, c. 403, sufficiently accurate for identification.”</p> <p>In the Superior Court the case was heard upon the demurrer by McLaughlin, J., who ordered that the demurrer be sustained, and, being of opinion that this ruling and order ought to be determined by this court before any further proceedings in the Superior Court, reported the case for such determination. It was agreed that, if the order was wrong, the demurrer was to be overruled and the case was to stand for trial; otherwise, a default was to be entered and the case was to stand for hearing on the assessment of damages unless the defendant should within thirty days from the filing of the rescript file an amended answer, leave to file such answer in that event being given.</p>

<p>Contract on a judgment for $800 obtained on June 3, 1904, in the Municipal Court of the City of Boston. Writ dated October 22, 1912.</p> <p>In the Superior Court the case was submitted to Dubuque, J., upon an agreed statement of facts. Thereby it appeared that on July 15, 1905, the sum of $125 was paid by the defendant “in order to have the judgment discharged,” and the following indorsement was made upon the execution and was signed by the plaintiff’s attorney: "July 15, 1905. Received on the within named execution $125 in full satisfaction and the same is hereby returned to Court, not having been in the hands of an officer.”</p> <p>It was stated in the agreed statement of facts that “ In consideration thereof Johnson [[the defendant] agreed to pay the balance of $675.” The defendant never paid anything except the $125 mentioned above.</p> <p>The judge ordered that judgment be entered for the plaintiff in the sum of $675 with interest at six per cent per annum from June 3, 1904. From the judgment entered in pursuance of this order the defendant appealed.</p>

<p>Practice, Civil, Requests and rulings. Negligence, Of gas company. Gas Company. Evidence.</p> <p>A presiding judge properly may refuse to make a ruling that is based on the assumption of the truth of the testimony of witnesses called by the party asking for the ruling which the jury are not bound to believe.</p> <p>In an action against a gas company for personal injuries sustained by reason of negligence of the defendant’s servants in turning on the gas in the house occupied by the plaintiff without first stopping up an open gas pipe that had been left when a gas stove was removed by the former tenant, the defendant asked the judge to rule that there was no evidence that any servant of the defendant turned on the meter. There was evidence that two employees of the defendant, who put in the meter, which was in the cellar, after they had done so came up stairs and tried to light the gas in the kitchen, and that, when they found that it would not light, they left the house without returning to the cellar, saying that they must send the “drip-man,” and that afterwards when the drip-man had come and had pumped the drip out in the yard, the gas escaped which caused the plaintiff’s injuries. Held, that the facts that the two employees tried to light the gas in the kitchen and left without returning to the cellar warranted a finding that they left the gas turned on.</p> <p>In the same case the plaintiff testified that after the drip-man had pumped the drip out in the yard he went through a door from the yard into the cellar and then came into the kitchen where he lit the gas, that the plaintiff, who was there, said to him that she smelt “gas awful strong,” to which he replied, “You smell the gas from my hands. It comes from my hands and clothes, I am full of it;” whereupon the plaintiff said, “You sure it’s all right, everything is all right, you sure?” and the drip-man replied, “Everything is all right.” It was admitted that it was the defendant’s duty “to see everything was tight in regard to escaping gas.” There was evidence that the two employees, who could have been found to have left the gas turned on, reported to the defendant that they left it turned off. Held, that, if the defendant’s employees left the gas turned on and the defendant sent the drip-man to pump out the drip without notifying him of that fact, that could have been found by the jury to have been an act of negligence, even if the reason for not notifying him was that the two employees had reported that they left the gas tinned off.</p> <p>In the same case it was held that the jury were not bound to believe certain testimony of the drip-man, which was not contradicted, to the effect that it was no part of his duty to see that no jets were open, that he had a right to assume that the plaintiff had been using the gas “right along” and that he was sent to pump out the drip because of “poor pressure.”</p> <p>In the same case the plaintiff testified that, after the drip-man left, the smell of gas got stronger and stronger, yet, after she had gone out into the yard to take a pitcher of water to her children, she went back into the pantry and there was overcome by the gas and became unconscious. She was asked on her cross-examination, why, if the gas smelled stronger and stronger, she went back into the house, and answered that she went back because she believed “ what he Ethe drip-man] had said, that it came from his hands and clothes, and I believed the smell was still in the house.” Held, that on the facts disclosed by the evidence the jury were warranted in finding that by the time the plaintiff went back she had been affected so far by the escaping gas that she was not in a normal condition and that therefore her act of returning to the pantry was not as matter of law a failure to exercise ordinary care.</p>

<p>Bill in equity, filed in the Superior Court on September 12, 1904, by part owners of a lot of land on Richards Avenue in North Attleborough who sought, as the successors in title of Ellen Miller, to whom the land was conveyed by Henry L. Kendall on May 30, 1881, to restrain the defendants from obstructing by the erection of a building or otherwise an alleged private street or way forty feet wide running from Richards Avenue to Church Street.</p> <p>The case was referred to a master who filed a report in which were found the facts that are stated in the opinion.</p> <p>No exceptions to the master’s report appear to have been filed and the case was heard upon that report by White, J.</p> <p>The judge having said that he wished to hear evidence as to what would be a reasonable width of a way for vehicles and travellers, all the parties agreed that ten feet would be such a width, the plaintiffs not waiving their claim to ownership in the way or to a right by prescription.</p> <p>The judge made a final decree enjoining the defendants from interfering with or obstructing the plaintiffs’ right of way in a strip of land ten feet wide, running northerly from Richards Avenue along the west boundary of the plaintiffs’ land to a point eighty feet distant from that avenue, and ordering the defendants to pay to the plaintiffs the costs of suit taxed at $95.28.</p> <p>The plaintiffs appealed from the decree.</p>

<p>Stockbroker, Liability to customer. Damages, In contract. Stock Exchange, Rules of. Agency, Scope of authority. Election. Contract, Rescission, Ratification.</p> <p>In an action of contract against a stockbroker by one of his customers there was evidence that the defendant had purchased for the plaintiff a large number of shares of a certain stock which was dealt in actively on the stock exchange and was bought and sold daily, that the defendant agreed to carry these shares for the plaintiff on margin and to deliver them to him on demand regardless of the state of the market, that against the plaintiff’s objection and protest the defendant from time to time sold these shares until all of them were sold, sending to the plaintiff immediately after each sale notice of the sale and an account of it, that after the final sale the defendant sent to the plaintiff a check for the balance shown by the account to be due, which the plaintiff kept, and that the plaintiff thereafter demanded the return of all the shares of stock and brought his action for damages. Held, that the plaintiff could recover only nominal damages, as he might have purchased the shares at substantially the prices at which they were sold by buying them back on receiving notice of each sale; and that the rule as to computing damages by the highest intermediate value of the shares is not applied to such a case in this Commonwealth.</p> <p>Where a stockbroker holds shares of stock belonging to a customer with a general authority, either express or implied, to sell them, he has no authority to sell them to himself without the knowledge and assent of his customer, and, if he does so, the sale is voidable by the customer, although it may have been at auction and the full market price has been paid so that no harm has resulted.</p> <p>Although one who employs a stockbroker to buy or sell shares of stock for him on a stock exchange is bound by the established usages of that stock exchange so far as they are not illegal or contrary to sound public policy, whether he knows of them or not, he is not bound by a usage of the stock exchange which permits a broker to buy for himself without the knowledge of his customer shares of stock which such customer has entrusted to him for sale.</p> <p>One who employs a broker to sell for him shares of stock on a stock exchange is bound by a usage of the stock exchange, which also is embodied in an express rule, permitting brokers to purchase shares of stock from their customers when acting, not for themselves personally, but as brokers for other customers; and, where such sales were made at market prices and there is nothing to indicate that the selling customer was not dealt with fairly, he cannot avoid the sale by showing that he did not know of the usage or rule.</p> <p>One, who has the right to avoid a sale of shares of stock made for him by a broker to the broker himself personally under a usage of the stock exchange unknown to the customer, must exercise his right of avoidance within a reasonable time after he learns of the facts or after he might learn of the facts by inquiry under circumstances that would put a man of ordinary intelligence upon inquiry.</p> <p>In the present case, where the plaintiff had received and retained the defendant’s check for the balance of his account as stated by the defendant, it was held, that it could not be ruled as matter of law that the plaintiff had affirmed the sales which he sought to avoid.</p> <p>In an action against a stockbroker by a customer, where the plaintiff has established the fact that he exercised his right of avoidance of such sales of shares of stock within a reasonable time, the plaintiff, if he shows that the defendant made certain sales of the plaintiff’s stocks to himself personally, can recover the difference between the value of the stocks when sold and their value when the sales were made known to and were repudiated by him, with interest from that date.</p>

<p>Municipal Corporations, By-laws and ordinances, Officers and agents. Nuisance-Mandamus. Words, "By-laws.”</p> <p>In St. 1913, c. 655, § 1, providing that every city and town, except Boston, which accepts the provisions of the statute, “may, for the prevention of fire and the-preservation of life, health and morals, by ordinances or by-laws not inconsistent with law . . . regulate the inspection, materials, construction, alteration, repair, height, area, location and use of buildings and other structures within its limits,” tire word “by-laws” means general rules which shall afford some standard of conduct to the landowner so that he may know where to locate, how to design, construct, equip and otherwise prepare for use his proposed building, and some principle to direct the licensing board as to the exercise of their judgment and discretion in granting or denying a permit.</p> <p>A town is not given power or authority by St. 1913, c. 655, § 1, to adopt and enforce a by-law vesting in its selectmen the power in their absolute and uncontrolled discretion to refuse permission to erect a factory, however perfect in design, non-combustible in material, and safe and sanitary in equipment; and if, purporting to act under authority given by such a by-law, the selectmen refuse for no stated reason to grant permission for the erection of a factory which in every way conforms in design, material, safety and sanitary provisions to standards set by the town in an elaborate and comprehensive code of building by-laws, a writ of mandamus should issue to compel the granting of a permit.</p> <p>Enumeration by Rugg, C. J., of classes of cases illustrating the regulation, that properly may be delegated to the discretionary supervision of a local board, of occupations and of uses of property which may create nuisances.</p>

<p>Contract, Construction, Performance and breach. Evidence, Competency, Relevancy and materiality.</p> <p>At the trial together of two actions of contract, the first by a lumberman against a lumber dealer for a balance alleged to be due under a contract in writing for the sawing and piling of certain lumber, and the second by the dealer against the lumberman for the repayment of an alleged over-payment by the dealer to the lumberman, where a provision of the contract required that the lumberman should cause each board or plank to be measured "and mark the number of feet thereon, and shall guarantee this measurement, and it shall be measured again” by the dealer "when put on the cars,” and providing for an adjustment in accordance with the correction of the lumberman’s measurements by those of the dealer, it appeared that the lumberman caused measurements to be made and recorded, but that the dealer did not, but merely made a tally of the lumberman’s recorded figures. Held, that such tally was not a compliance by the dealer with the requirements of the contract as to measurements by him.</p> <p>At the same trial the dealer offered evidence of measurements made by purchasers of the lumber from him to the effect that the measurements marked thereon by the lumberman were too large. The evidence was excluded. Held, that the exclusion was proper, the evidence being incompetent.</p> <p>It appearing that the only measurements made in accordance with the provisions of the contract were made by the lumberman, it was held, that his measurements were conclusive and binding upon the parties unless there was a mathematical error made by him in adding them.</p> <p>Evidence offered by the dealer as to the result of the tally taken by him, which was excluded, tended to show that the total of the measurements recorded by the lumberman, 748,831 feet, was about 50,000 feet in excess of the tally. Held, that the evidence should have been admitted because it tended to show a palpable mathematical error by the lumberman in adding his measurements.</p>

<p>Workmen’s Compensation Act, Dependency. Husband, and Wife.</p> <p>A married woman, who at the time of her husband’s death was living apart from him merely on account of his inability to obtain 'and perform sufficiently remunerative work to provide a home for his wife and child, cannot be found to have been living apart from him for justifiable cause within the meaning of St. 1914, c. 708, § 3 (o) in the amendment of § 7 of St. 1911, c. 751, Part II.</p> <p>Where in the presentation of a claim under the workmen’s compensation act by the alleged dependent widow of an employee who at the time of his death was living apart from him by reason of his inability to provide a home for his wife and child, it appears that the employee during a married life of more than twelve years paid doctors’ bills, grocery bills, bought clothes for the child and gave money to his wife amounting in all to between $200 and $300, it is the duty of the Industrial Accident Board to determine in accordance with the fact under St. 1911, c. 751, Part V, § 2 and under the last paragraph of Part II, § 7 (c) as amended by St. 1914, c. 708, § 3, whether the widow was dependent upon her husband at the time of the injury that caused his death.</p>

<p>Eminent Domain, Way, Private, Extinguishment. Evidence, Self-serving statement, Of intention. Railroad.</p> <p>If an instrument of taking by right of eminent domain of a certain location by a railroad corporation contains no language to show that a private way which .crosses the location is extinguished, the mere facts that, upon the map which the corporation filed with the county commissioners is the statement “This-location covers and includes all the land lying between the lines tinted red on-said map,” and that the "lines tinted red” crossed black lines designated as-the lines of the private way, do not show that the private way where it crossed the location was extinguished by the taking.</p> <p>Where land or an interest in land is taken by right of eminent domain, the description in the instrument of taking should be as definite and certain as is necessary for a conveyance of land by a deed.</p> <p>If the language used in an instrument of taking by eminent domain is so ambiguous and obscure as to make uncertain the nature and extent of the taking, the taking will be held to be invalid.</p> <p>Where, at the trial of a suit by a railroad corporation to enjoin one claiming a private right of way across the railroad location from using such way, the plaintiff contended that so much of the way as crossed the location was extinguished by the taking of the location and the meaning of the instrument, and plan which were filed when the taking of the location was made is an issue, evidence of what the corporation intended by the filing is incompetent, the question being, not what the corporation intended to do, but what it did.</p>

<p>Negligence, In use of highway, In use of automobile ladder truck by fire department, Traffic rules, Imputed.</p> <p>If a captain in the fire department of a city is in charge of an automobile ladder truck thirty-six feet in length and four and one half tons in weight, and is sitting beside the driver while an agent of the manufacturer of the truck is instructing members of the department how to handle it, and if the truck is driven along a street at the rate of from ten to fifteen miles an hour toward a crossing with a street about thirty feet wide upon which there is a double line of street car tracks, and if the driver’s view of street railway cars approaching from Ms left is such that, by reason of a building built to the line of the sidewalk he has an unobstructed view of the track to Ms left for about ninety-five feet when he is tMrty feet from the nearer car tracks, and if neither the driver nor the captain look up the track to their left until they are about eleven feet from the track, when they see a street car, negligently driven, about two car lengths away and are unable to stop the truck in time to avoid a collision, a finding, in an action by the captain against the street railway company for personal injuries so received, that the plaintiff was in the exercise of due care, is not warranted, whether he be judged by Ms own conduct or by that of the driver of the truck.</p> <p>Article 3, § 1, of the street traffic regulations of the city of Boston, wMch provides that “Police, Fire Department, emergency repair wagons, Umted States mail veMcles and ambulances shall have the right of way in any street and through any procession,” has no application to an automobile ladder truck of the fire department which, in charge of a captain of the department, is upon a street merely in order that an employee of its manufacturer may instruct the fireman in its operation.</p>

<p> Payment. </p> <p>Where the maker of a check that had been deposited in a bank by the payee stopped payment of it and, after payment was refused, one acting in behalf of the payee deposited in the bank to his own credit his own check for an amount sufficient to cover the payment of the unpaid check as security to guarantee the bank against loss in enforcing payment of the unpaid check, whereupon the bank put the deposited check through the clearing house in the usual way and held the proceeds of that check in place of the check itself, it was held, that this did not constitute payment of the unpaid check and that, in an action brought by the bank upon such unpaid check against its maker, these facts were not admissible as evidence of payment or on any other ground of defence.</p>

<p>Contract, Construction, In writing. Bond.</p> <p>Where an application to a surety company to become surety on a bond to prosecute an appeal from a municipal court has written upon its margin the words, “Premium, $5,” and the provision as to a premium reads as follows, “To pay the said Company ... a premium of dollars ($ ) annually in advance so long as said bond shall remain in force,” the judge presiding at the trial of an action of contract for premiums after the first year should supply the word “five” where the omission occurs, especially where there is oral evidence, admitted without objection, that such was the mutual understanding and agreement of the parties.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff from being struck by a railroad train of the defendant while he was at work in the employ of the Hugh Nawn Contracting Company close to the defendant’s railroad track near an overhead bridge which crossed the track at a curve thereof, the declaration alleging that the plaintiff was at work for his employer on the defendant’s premises by the invitation or with the knowledge and consent of the defendant or by the invitation or with the knowledge and consent of the defendant corporation that the Hugh Nawn Contracting Company and its employees should then work on or within the defendant’s premises. The defendant was alleged to have been negligent by reason of the speed of the train, a failure to ring the bell or sound the whistle on the locomotive, whereby it came suddenly and swiftly from under a bridge that concealed its approach, and a failure to warn the plaintiff by signal or otherwise of the danger. Writ dated August 27, 1912.</p> <p>In the Superior Court the case was tried before Brown, J. It appeared that the Hugh Nawn Contracting Company was engaged in filling land of the Commonwealth on Charles River, north of and adjoining the defendant’s location west of the Essex Street Bridge, with gravel loaded at the defendant’s Essex Street yards and hauled in cars propelled by the defendant’s locomotives on tracks not built nor controlled by the defendant from the Boylston Street subway to a switch at Cottage Farm whence they were sent back and delivered to the contracting company upon the temporary tracks being used for its work.</p> <p>Other evidence is described in the opinion.</p> <p>At the close of the plaintiff’s evidence a verdict was ordered for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bills and Notes, Validity, Ratification. Mortgage. Equity Jurisdiction, To have note and mortgage declared void for duress. Duress. Equity Pleading and Practice, Appeal, Exceptions to ruling of master. Compounding of Felony. Evidence, Relevancy, Remoteness.</p> <p>A note and a mortgage securing the note, procured to be signed by duress exerted upon the maker and mortgagor, are voidable merely and not void, and therefore can be ratified and confirmed by the maker and mortgagor.</p> <p>If a woman under duress executes and delivers a note and a mortgage securing it in consideration of a return to her of documents which might have been the basis of criminal proceedings against her husband and also of the transfer to her of several mortgages, and, during the next eight months, while consulting counsel, makes monthly payments of interest upon the note, destroys the documents incriminating her husband and realizes $4,870 upon the mortgages transferred to her, she must be taken to have ratified and confirmed the note and mortgage so that she is unable to maintain a suit in equity to have them declared void and to enjoin the foreclosure of the mortgage.</p> <p>Where at the hearing of a suit in equity the evidence was taken by a commissioner, the plaintiff, on an appeal from a decree dismissing the bill, may rely upon contentions not made before the trial judge.</p> <p>In the present suit to enjoin the foreclosure of a mortgage, on an appeal from a decree dismissing the bill, the evidence having been taken by a commissioner and being before this court, the plaintiff for the first time contended that the evidence showed that the note and mortgage were void because their consideration was the compounding by the defendant of a felony of the plaintiff’s husband or the stifling of a criminal prosecution against him, but this court. held, that, upon the facts and inferences to be drawn from them, the plaintiff had failed to sustain the burden of proving that there was a contract to compound a felony or to stifle a criminal prosecution.</p> <p>In a suit in equity, one of the issues to be heard by a master was the extent of indebtedness between the plaintiff’s husband and the defendant, and the master found that certain notes of the plaintiff’s husband never were protested by the defendant and that no specific demand was made upon them until a general demand for the settlement of the entire indebtedness, and that the course of dealing between the plaintiff’s husband and the defendant had been such that there was an implied waiver of the necessity of demand, notice or protest. The plaintiff offered to show what occurred as to another mortgage held by the defendant, “for the stated purpose of showing a custom between” the same parties "as to their dealing with mortgages similar to those in issue in this case.” The master excluded the evidence subject to the plaintiff’s exception. Held, that, it not appearing that the custom thus offered to be proved was different from that found by the master, nor what period of time the evidence referred to, the exception must be overruled.</p>

<p>Dense and Legacy, Vested interest.</p> <p>A testator by his will gave nothing to any one who was not a near relation, gave specific legacies to his wife and to his only child, and gave the residue of his estate to trustees who, after paying certain annuities and during the lives of the wife and child, were to divide the income between them. If the child died before the wife, her share of the income was to be paid to the testator’s nephews and nieces, children of his sisters and of a certain brother, equally, the issue of a deceased nephew or niece to take the parent’s share by right of representation. The issue of another brother were entirely excluded from the benefits of the trust. Upon the death of the survivor of the wife and child, the trustees were directed to retain a sum sufficient to pay the annuities and to distribute the rest of the estate “among my said nephews and nieces . . . share and share alike, the issue of any such deceased nephew or niece, taking its parent’s share by right ■of representation,” and, upon the death of the survivor of the annuitants, to pay over all sums remaining to the “same parties and in like manner.” Held, that at the death of the testator the interest in remainder in the trust fund vested in the children then living of his sister and of the designated brother.</p>

<p>Bills and Notes, Delivery. Payment. Insurance, Life. Practice, Civil, Verdict, Exceptions. Jurisdiction. Contract, Performance and breach.</p> <p>The mere facts, that an agent of a life insurance company took to a beneficiary under a policy a check payable to the beneficiary’s order for the amount to which he was entitled, that the beneficiary indorsed it by signing his mark on the back and that the agent then took it away because the beneficiary wanted cash and not a check, do not prove that the check was delivered to the beneficiary and are not conclusive evidence of payment to the beneficiary of the amount due to him.</p> <p>And where, at a trial of an action by the beneficiary against the insurance company for a balance due of the amount called for by the policy, besides the facts stated above, there is evidence that the beneficiary, when he called for the money due him at the office of the company, was paid a part of what was due him and was induced to leave the remainder with the company “on call” and bearing interest, and that the agent without authority from the beneficiary invested the balance in the capital stock of another corporation, a finding of the jury for the plaintiff for the full unpaid amount of the policy is warranted.</p> <p>And, because such an action is on the policy and is not to recover back the amount invested by the agent in the capital stock of another corporation, the plaintiff is not required, as a condition precedent to bringing his action, to tender back that stock, a certificate for which had been delivered to him in a sealed envelope without his knowledge.</p> <p>Nor should the presiding judge instruct the jury that the plaintiff is limited in his recovery to the amount unpaid of the sum called for by the policy less the value of the stock in the other corporation.</p> <p>Jn the present case, where the presiding judge gave the instruction just described and the jury found for the plaintiff in the full amount claimed by him without making any deduction on account of the stock of the other corporation, it was held that the defendant was not harmed by the judge’s error in its favor.</p>

<p>Tort for personal injuries sustained on December 31, 1912, when the plaintiff was a passenger on a street railway car operated by the defendant on Broadway Extension in the part of Boston called South Boston. Writ dated January 11, 1913.</p> <p>In the Superior Court the case first was tried before Stevens, J. The jury returned a verdict for the plaintiff in the sum of $1,750, which was set aside by the judge.</p> <p>' There was a second trial before King, J., at which the jury returned a verdict for the plaintiff in the sum of $1,800. The defendant made in writing the motion for a new trial which is described in the opinion and the judge indorsed thereon the order there quoted.</p> <p>Thereupon there was a third trial before Fessenden, J. After the jury were impanelled, the plaintiff’s counsel asked the judge to rule that the trial be limited to the question of the amount of damages, contending that St. 1911, c. 501, applied to the granting of the motion for a new trial by King, J., and to the statement filed by him. The judge refused so to rule, and ordered that the trial proceed upon all the issues. The plaintiff excepted. At the close of all the evidence, the plaintiff’s counsel asked the judge to rule as follows: "The only question for 'the jury is as to the amount of damages.” The judge refused to make this ruling and submitted the case to the jury upon all the issues. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Supreme Judicial Court. Practice, Civil, Amendment. Equity Pleading and Practice, Amendment. Jurisdiction.</p> <p>St. 1905, c. 263, which repealed so much of R. L. c. 156, § 5, as gave the Supreme Judicial Court jurisdiction over certain actions in contract or replevin, did not take away the power of that court under R. L. c. 173, § 52, to allow an amendment changing a suit in equity in that court into an action at law; and under St. 1909, c. 33, and St. 1911, c. 275, the Supreme Judicial Court in allowing such an amendment either may order that an action of contract into which a suit in equity has been amended shall be removed to the Superior Court for trial or may order that after the amendment the action of contract shall be tried in the Supreme Judicial Court, as was done in the present case.</p>

<p>Poor Debtor, Examination. Arrest, On civil process. Constitutional Law.</p> <p>St. 1906, c. 203, § 1, which provides that a judgment debtor summoned for examination before a magistrate preliminary to an order for his arrest on execution shall be examined on oath upon the charges specified in the notice to him and that “such examination may be in the presence of the magistrate or otherwise as he shall order,” is constitutional and is not in violation of the Declaration of Rights, arts. 1, 10, 11, 30.</p> <p>When a judgment debtor appeared before a judge of a municipal court for examination under St. 1906, c. 203, at the suggestion of the counsel for the judgment creditor the judge ordered that, while the judge was in a room near or adjoining, a stenographer provided by the creditor’s counsel should take a complete record of the questions and answers and should prepare a typewritten transcript thereof for each counsel, that, after these transcripts had been examined fully by the parties, such changes might be made as would make the questions and answers conform to the truth, and that then the questions and answers should be read to the judge in the presence of the debtor and should be signed and sworn to by him. Held, that this procedure, which was in conformity with the statute, was judicial and that the statute in authorizing it was not an encroachment by the legislative upon the judicial department of the government.</p> <p>It also was held that this procedure conformed to established and appropriate methods of procuring and presenting evidence.</p> <p>It also was held that the statute was a law regulating rights of property and liberty within constitutional limits.</p> <p>Tn a case where the procedure above described was followed, the judge refused to put the stenographer under oath, and it was held, that the refusal was proper, because the duties of the stenographer were such that there was no occasion for her being sworn.</p>

<p>Contract for the breach of an alleged agreement in writing which is printed below. Writ dated July 2, 1914.</p> <p>The contract declared upon was as follows:</p> <p>“December 4, 1895.</p> <p>“This is to certify that I, James Noyes, do promise to give to my son Elbridge Noyes my homestead place, all of my adjoining meadow, my Knight Pasture, Highfield Pasture, all of my stock consisting of cows, horses, hogs, and all of my farming implements, carts, wagons so forth in consideration that he remain on the farm and manage the same for me in my old age if he should leave at any time this agreement shall be valid and he shall share as I may make further provisions.</p> <p>“James Noyes.</p> <p>"And I, Elbridge Noyes do promise to stay on the farm and comply with the above wishes and to carry out this agreement ■with my father, James Noyes, to the best of my ability.</p> <p>“Elbridge Noyes.”</p> <p>In the Superior Court there was a second trial of the case before Sanderson, J. The evidence is described in the opinion. James Noyes died on January 1, 1913, survived by five sons, two daughters and three grandchildren, who were the issue of two deceased sons. He left real estate valued at $10,935 and personal property valued at $12,921.44. His will was dated July 3, 1903. The following extract from it shows the provisions for the plaintiff and also the devise of the homestead to the testator’s son James Addison Noyes, who was appointed one of the executors:</p> <p>“To my son Elbridge Noyes of said Newbury two pieces of land in said Newbury known as the ‘Jerry’ field, and the ‘Ilsly’ field, containing about ten acres, these lots being bounded on the east by land of Knight, Ilsly, and Noyes; on the south by land of Rolfe and Bray; on the west by land formerly of David Little; and on the north by Hay street.</p> <p>“Also one piece of marsh land off Plum Bush known as the ‘Barn’ lot, containing about ten acres. Also the piece of marsh land, known as the ‘Smith’ lot adjoining the above mentioned ‘Barn’ lot on the south, containing about fourteen acres.</p> <p>“Also one undivided half of the ‘Highfield’ pasture so called in said Newbury, said half being about twenty acres.</p> <p>“Also one undivided half of the cow pasture in said Newbury, on the road leading to Knight’s Mill, said pasture being located near Fowle’s ice house.</p> <p>“Also one undivided half of the ‘Bradley’ meadow in the Town of Rowley, near Cedar Point said half comprising about six acres.</p> <p>“I desire the appointment of my sons Thomas Noyes, and James Addison Noyes, as the Executors of this my last will, and request that they may be exempt from giving any surety or sureties on their Probate bond.</p> <p>“To my son James Addison Noyes of said Newburyport, my homestead lot in said Newbury, situated on East High Street •comprising about thirty acres of land with the dwelling house .and all other buildings thereon, said land being bounded . . .”</p> <p>Exceptions to the admission of certain testimony of the witnesses Perkins and Little are described in the opinion.</p> <p>The defendants asked the judge to instruct the jury as follows:</p> <p>“If the plaintiff and his father entered into the alleged agreement of 1895, the written contract which they entered into in 1901 was a rescission of the earlier contract, and the plaintiff is not entitled to recover.”</p> <p>The judge refused to give this instruction and the defendants excepted. The judge, under instructions appropriate and correct if the instruction requested was refused properly, submitted to "the jury the question, whether upon all the evidence in the case the parties had rescinded the agreement declared on. The defendants contended that upon all the evidence in the case they were entitled as a matter of law to the instruction requested.</p> <p>An exception in relation to the measure of damages is described in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $9,354; and the defendants alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Evidence, Competency.</p> <p>On an exception to the exclusion of a question to a witness the burden is on the excepting party to show that the answer to the question, as the judge understood the question and as he had a right to understand it, was competent.</p> <p>In order to show that an assistant cashier in a shop made a certain pencil mark on a payment stamp on a bill to indicate that the acknowledgment of payment was cancelled as having been stamped on the bill by mistake, where such assistant cashier has failed to identify the pencil mark as having been made by her, it is not competent to show that she had made similar marks on other occasions, this having no tendency to show that she made the mark in question.</p>

<p>Bill in equity, annexed to a writ of attachment in the Superior Court dated November 18, 1913, and afterwards amended, against Wilbur F. Whitney, the Sub-Target Gun Company, a Massachusetts corporation, the Sub-Target Gun Company, a Maine corporation, and Louis L. G. de Rochemont, the trustee in bankruptcy of the Maine corporation, alleging that the plaintiff was the payee of certain notes given by the Maine corporation to him and the assignee of the proceeds of a contract between the Maine corporation .and the United States government, that that corporation had been adjudicated a bankrupt and that receivers of its assets had been appointed, that a sale of rights under the contract had been made by the receivers to the defendant Whitney, who had transferred his rights to the Massachusetts corporation, and that the Massachusetts corporation had completed the contract and had received the pay therefor. The prayers of the bill were that the plaintiff be paid the amounts of his notes and interest from the proceeds of the contract in the hands of the Massachusetts corporation.</p> <p>The case was heard by Jenney, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. The judge filed a memorandum, containing the following, among other findings of fact:</p> <p>For some time previous to September 16, 1912, there was in existence a corporation organized under the laws of Maine and named the Sub-Target Gun Company. On that date it entered into a contract with the United States to furnish and deliver at the naval torpedo station of the United States at Newport, Rhode Island, as the commandant of that station might direct and within ninety days from said date, numerous parts designed to be used in the construction of torpedoes for $4,694. Time was made an essential element of the contract. The contract further provided that in case the company failed in any respect to perform the contract, the same might at the option of the United States “be declared null and void, without prejudice to the rights of the United States to recover for defaults therein or violations thereof,” and that “ any transfer of the contract, or of any interest therein, to any person or party” by the company “shall annul the same so far as the United States are concerned.” The company entered upon the performance of this contract.</p> <p>In November, 1912, being in need of money to carry on its business, the company borrowed of the plaintiff $1,000 and gave to him its note for that amount payable in one month and bearing interest at the rate of one per cent per month after maturity, together with an assignment of “money to be received” on account of the contract, above described, and at the same time agreed in writing that it would set apart that sum from the amount coming due to it from the United States government under the contract, and would not use nor suffer that amount to be used, but would turn it over to the plaintiff with interest in payment of the loan.</p> <p>On January 7,1913, the company, needing more money to carry on its business, borrowed of the plaintiff $600 more, and gave to him its note and an assignment upon terms exactly similar to those included in its agreement of the previous November.</p> <p>Thereafter proceedings in bankruptcy were instituted against the company and receivers were appointed by the United States District Court for the District of Massachusetts. The company then was very largely indebted and the defendant Whitney was a creditor for more than $50,000. There was no evidence that the notes and assignments to the plaintiff were void or voidable as a preference, or that he knew or had reason to believe that the corporation was insolvent at the time when the moneys were advanced by him and the assignments received by him.</p> <p>At the time of the appointment of the receivers, the company had performed a substantial amount of work under its contract and had expended in that performance approximately $1,700, but it had not completed any of the parts provided for in the contract,, and in consequence of such non-completion had not made any delivery under the contract or received any payment on account thereof.</p> <p>On April 11, 1913, the receivers filed in the District Court a petition for the sale of all the property of the company “including machinery, tools, stock on hand, furniture, patents, interests in patents, contracts, etc.;” and in the petition recited that it was very essential that the property of the bankrupt be disposed of as a going concern ’ subject to all incumbrances.” On this petition, on April 28,1913, the receivers were ordered to sell such property forthwith.</p> <p>On May 5, 1913, the receivers reported to the District Court that they had sold “ all the property and estate of said bankrupt subject to all liens and incumbrances,” to the defendant Whitney for $5,000 and requested that they “be authorized on receipt of the consideration in cash to complete the sale by executing the proper instruments transferring to said purchaser all the right, title and interest in said property, subject to all incumbrances.” On the same day that court ordered that the sale be confirmed.</p> <p>Acting under the authority thus given, the receivers sold and delivered all of the property of the company to the defendant Whitney for $5,000 but gave him no bill of sale or other transfer in writing except assignments of contracts of the company other than that herein involved. The omission to make a formal assignment of the contract in controversy was intentional. The receivers and Whitney then knew of the. existence of the assignments to the plaintiff and that the plaintiff had advanced money to the corporation.</p> <p>Whitney, one of the receivers and one Danforth then caused to be organized a new corporation under the laws of Massachusetts under the name of the Sub-Target Gun Company, the Maine corporation assenting to the use of the name. The certificate of the new corporation provided, among other things, that the corporation was organized “in particular to acquire the business formerly carried on by the Sub-Target Gun Company, with the plant, machinery, stock and all other properties connected with the business, and the good-will of the business, and the benefit of all pending contracts, and the stock in trade thereof.”</p> <p>The property sold by the receivers to Whitney, as well as other property of Whitney, was transferred to the new corporation; but Whitney purposely omitted making any formal written or oral assignment to the new company of the contract in question with the United States.</p> <p>The new company then took possession of all the property of the old company, including the parts that were in process of completion under the contract with the United States, and finished the torpedo parts substantially in accordance with the original contract. As the parts were completed from time to time, they were shipped to the United States naval station at Newport and were accepted, and the new corporation was paid therefor in accordance with the terms of the original contract. The new company received from the United States under the terms of the contract $4,266.82.</p> <p>Before completing the parts, the new company sent to Newport an agent who made some arrangement, the terms of which were not in evidence, for the completion of the work required by the contract in accordance with its terms. There was no assent of the United States government, however, to any transfer of the contract to the new corporation or to the assignment to the plaintiff' as collateral security.</p> <p>At the time of the sale of the assets of the company to Whitney, and by Whitney to the new company, the receivers and Whitney believed that the contract had been completed to about eighty per cent of the entire work and materials required thereby, but later it was found that the cost of what had been done under the contract was approximately $1,700. The new company paid approximately $2,700 to complete the contracts. The new corporation, acting through its officers, had full notice of all the facts in regard to the claims of the plaintiff.</p> <p>The plaintiff did not prove his claim in bankruptcy, and no dividend was paid to the creditors of the corporation.</p> <p>Pending determination of the suit, the defendant Whitney died and the executors of his will were admitted to defend in his stead.</p> <p>By order of the judge, a decree was entered, directing the new Sub-Target Gun Company to pay to the plaintiff the amount due to him upon his notes with costs of court, and dismissing the bill without costs against the defendants, executors of the will of Whitney, and de Rochemont, the trustee in bankruptcy of the old Sub-Target Gun Company. The new Sub-Target Gun Company appealed.</p> <p>The case was argued at the bar in November, 1915, before Rugg, C. J., Braley, Be Courcy, Crosby, & Carroll, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Guardian. Insane Person. Probate Court, Jurisdiction, Appeal. Jurisdiction. Estoppel. Words, “A person who is aggrieved.”</p> <p>Expenses incurred by the guardian of an insane person in the defence of the ward’s estate against proceedings for the collection of a charge for services, instituted by an attorney retained by the ward to render services in connection with the guardianship, are proper items in the guardian’s account.</p> <p>The proper place for the allowance of all expenses incurred and disbursements made in the proper execution of his trust by a guardian, executor, administrator, trustee or other fiduciary appointed by a probate court is in the account of his administration to the court appointing him.</p> <p>The provisions of R. L. c. 162, § 44, relating to the awarding of costs and expenses in cases which are contested before a probate court or before the supreme court of probate do not limit the power or jurisdiction of the probate courts to allow to fiduciaries appointed by that court items of expenses and disbursements properly incurred by them in such cases, but are merely supplementary thereto.</p> <p>On an appeal from a decree of a single justice of this court affirming a decree of a probate court allowing in the account of a guardian of an insane person certain items for expenses and disbursements incurred by the guardian in opposing in the probate court a successful petition of the ward to be discharged from guardianship, the report of an auditor, stating in substance that the items should be allowed because the guardian’s opposition to the petition was warranted by the ward’s condition, was printed in the record, but the record did not state that that report was the only evidence and no other evidence was reported. Held, that the decree must be affirmed because it could not be said as a matter of law that the items could not have been allowed properly.</p> <p>A guardian of an insane person is not "a person who is aggrieved,” within the meaning of B.' L. c. 162, § 9, by a decree of the probate court discharging him from his trust as guardian because the ward no longer is insane, and therefore has no right of appeal therefrom.</p> <p>It here was intimated that heirs presumptive of the ward might have a right of appeal from such a decree.</p> <p>On an appeal from a decree of a probate court allowing in a guardian’s account certain items for expenses, disbursements and services in connection with an unsuccessful appeal by the guardian from a decree discharging him from his trust on the ground that the ward no longer was insane, the reasons for appeal alleged by the ward were that the decree allowing the items was erroneous in law, that the probate court did not have jurisdiction to allow the items and that they were unwarrantable and not in the interests of the ward. A single justice of this court affirmed the decree of the probate court and the ward appealed to the full court. Held, that the reasons for appeal alleged by the ward were sufficient in statement to permit the consideration by this court of an objection to the items because the guardian had no right to appeal from the decree discharging him from his trust on the ground that his ward no longer was insane and because the court had no jurisdiction to consider such an appeal.</p> <p>Such an objection on the part of the ward is not a collateral attack upon the jurisdiction of the appellate court, the question at the hearing on the accounts being, whether the items were for charges properly incurred, and the burden being upon the guardian to show that they were incurred lawfully in the administration of his trust.</p> <p>The ward is not estopped to raise such an objection to the items in the guardian’s account merely because at no time during the proceedings attending the attempted appeal of the guardian from the decrees discharging him, which were • long and expensive, did the ward object that the guardian’s conduct in appealing was legally unwarranted or that the court lacked jurisdiction to entertain the appeal.</p>

<p> Constitutional Law. Labor. Labor Union. Equity Jurisdiction. </p> <p>The right to work is property and one cannot be deprived of it by legislative enactment, it being protected by the Fourteenth Amendment to the Constitution of the United States and by the guaranties contained in the Massachusetts Declaration of Rights.</p> <p>The provisions contained in St. 1914, c. 778, § 2, declaring that “in construing this act” the right to labor and to make and modify contracts to work "shall be held and construed to be a personal and not a property right,” and prohibiting the granting of an injunction to enforce such a right “where no irreparable damage is about to be committed upon the property or property right of either” the employee or the employer, are unconstitutional and void.</p> <p>St. 1914, c. 778, which provides in substance that the property right to labor for any individual or number of individuals associated together shall not be recognized in equity as property when assailed by a labor combination, unless irreparable damage is about to be committed upon property or a property right as there defined, would, if enforceable, deprive those employed in labor of “the equal protection of the laws” guaranteed by the Fourteenth Amendment of the Constitution of the United States and by the equivalent provisions contained in our Declaration of Rights.</p> <p>The power of courts to afford relief by injunction cannot be impaired by the Legislature in such a way as to prevent its use in favor of one property owner when it is preserved for the benefit of other property owners.</p> <p>This court, having held St. 1914, c. 778, to be unconstitutional on the grounds stated above, found it unnecessary to consider whether it also was unconstitutional by reason of the preference attempted to be conferred upon combinations of laborers.</p>

<p>Attorney at Law. Assignment. Contract, Validity. Champerty. Interest.</p> <p>Where a client, who is unable to provide funds for the payment of the expenses of the prosecution of a suit against a third person, before the suit is brought assigns to an attorney at law, to secure payment to him for his legal services, all his interest in and to the claim, and there is no agreement that the attorney should not be paid for bis services if he was unsuccessful in prosecuting the action, the assignment is not champertous and is valid.</p> <p>Where, by the provisions of such an assignment, it is clear that the whole amount of the claim was intended to be assigned, the assignee is entitled to receive accumulated interest as incidental to the right to receive the principal sum.</p>

<p>Equity Jurisdiction, Ratification of acts of trustee, Bill for instructions. Trust. Jurisdiction. Equity Pleading and Practice, Appeal.</p> <p>A suit in equity cannot be maintained by a trustee to establish the validity of the titles to certain parcels of real estate conveyed by him to various persons who are not parties to the suit, and to have the deeds which he gave as trustee and his acts as trustee ratified and confirmed.</p> <p>A trustee cannot maintain a bill in equity for instructions upon a question relating to the past administration of his trust.</p> <p>The consent of the parties to a suit in equity cannot confer jurisdiction of the subject matter of the suit upon the court, where it otherwise does not exist.</p> <p>The question, whether a court has jurisdiction to entertain a suit in equity, will be considered by the court on its own motion although it was not raised by any party to the suit.</p>

<p>Garage. License. Equity Jurisdiction, To enjoin private nuisance. Joint Tenants and Tenants in Common. Notice. Boston, Street commissioners.</p> <p>Under St. 1913, c. 577, as amended by St. 1914, c. 119, regulating the erection and • maintenance of garages in the city of Boston, which requires that a petition to the board of street commissioners for a permit to erect and maintain a garage shall “ contain the names and addresses of every owner of record of each parcel of land abutting thereon,” and that before the license is granted notice shall be given by registered mail “to every owner of record of each parcel of land abutting on the parcel” of land on which the building is sought to be erected, such a notice must be mailed to each one of a number of tenants in common owning an abutting parcel of land.</p> <p>The giving of the notice required by St. 1913, c. 577, as amended by St. 1914, c. 119, is a prerequisite to the jurisdiction of the board of street commissioners of Boston to grant a permit to erect and maintain a garage in that city so far as the rights of those entitled to notice are affected.</p> <p>A suit in equity may be maintained to enjoin the erection and maintenance of a garage in the city of Boston on land adjoining that of the plaintiff without lawful authority under St. 1913, c. 577, as amended by St. 1914, c. 119, upon showing special damage suffered by the plaintiff by reason of noise, confusion, noisome odors and the storing of large quantities of inflammable and explosive material, although by the acts complained of a public nuisance also was created.</p>

<p>Attorney at Law. Disbarment Proceedings, Exceptions, Appeal. Practice, Civil, Disbarment proceedings. Rules of Court.</p> <p>If the respondent in proceedings for the disbarment of an attorney at law, who at the hearing on the petition made no requests for rulings and took no exceptions, sixteen days after an order by the trial judge disbarring him procures an extension of time for the filing of a bill of exceptions and then within the extended time files a bill of exceptions in which for the first time he claims an exception to the findings and order of the judge, Rule 45 of the Superior Court requires that the bill shall be disallowed.</p> <p>Under Rule 44 of the Superior Court, a clerk of the Superior Court must decline to enter an appeal by a respondent from an order entered in disbarment proceedings if the appeal is not presented within twenty days after the order is made.</p> <p>No. exception lies, at the hearing of a motion for a new trial, to a ruling upon a question which was or might have been raised at the trial.</p> <p>The Superior Court, both under R. L. c. 165, § 44, and inherently, has power to remove an attorney at law from his office, not only because of misconduct directly connected with his official duties, but also for such criminal or gross wrongdoing as makes manifest his unfitness to exercise the duties of his office.</p> <p>In the present case, it was held to have been proper to order the disbarment of an attorney where it appeared that he had undertaken, as counsel and advisor of a man and his wife, to invest their money in mortgages on real estate, that mortgage notes amounting to $3,200 given for the money were fictitious and that none of them was secured by a mortgage, that the attorney fraudulently had converted to his own use the money so entrusted to him and had given the notes for the purpose of deceiving the man and his wife, that a check which he later gave them was dishonored and that a large part of the money remained unpaid at the time of the hearing.</p> <p>The respondent in disbarment proceedings has no right to a trial by jury.</p>

<p>Equity Pleading and Practice, Master’s report. Attorney at Law.</p> <p>Where by an interlocutory decree a suit in equity has been referred to a master “ to find the facts and to report the same to the court,” the duty of the master is performed by a statement of his conclusions with such narration of the facts as may be necessary to enable the court to comprehend the steps by which his conclusions have been reached and to decide whether they are correct in law.</p> <p>Under such a rule to the master he is required to report evidence only so far as is necessary to present intelligibly and fairly any question of law raised before him at the hearing.</p> <p>Under such a rule the master is not required to report all the evidence even by a request to rule that one of the parties is not entitled to prevail on all the evidence.</p> <p>Where, under such a rule, after the master has submitted his draft report, requests for rulings or exceptions raise questions whether certain findings are supported by the evidence, this does not require as a matter of right that the master should report substantial parts of the evidence.</p> <p>The intention and effect of the rule to the master quoted above is to leave to his final determination the decision of all matters of fact.</p> <p>A motion to recommit the report of a master made under such a rule for further findings and the report of parts of the evidence is addressed to the discretion of the trial judge, and ordinarily such a motion is not granted in the absence of some special reason.</p> <p>It here was said, that it is difficult to conceive of any matter more purely a question of fact than the fair value of the services of an attorney at law.</p>

<p>Medford. Municipal Corporations, General meetings, Officers and agents, Order of aldermen.</p> <p>Section 7 of St. 1903, c. 345, the charter of the city of Medford, as amended by St. 1906, c. 252, § 1, is as follows: “General meetings of the inhabitants of the city may from time to time be held, according to the right secured to the people by the Constitution of the Commonwealth; and such meetings may, and upon the request in writing of fifty qualified voters setting forth the purposes thereof shall, be called by the board of aldermen. The board, upon request in writing of twenty-five per cent of the qualified voters, shall order placed upon the official ballot for a municipal election any question of public interest set forth in such request, provided that such question can be answered by ‘Yes’ or ‘No.’” Held, that the vote provided for by the last part of this section is merely advisory and that such a vote cannot take away or suspend any powers of the board of aldermen of that city.</p> <p>Accordingly a petition signed by twenty-five per cent of the qualified voters of that city presented to the board of aldermen requesting that there be placed on the official ballot at the next municipal election to be held in about eleven months from that time the questions, whether a city hall should be built and, if to be built, whether it should be built under the supervision of three or more citizens, does not take away or suspend the power of the board of aldermen of that city to pass an order for the construction of a city hall; and a subsequent vote by the voters of the city at the next municipal election not to borrow or appropriate money for a city hall has no binding effect on the city.</p> <p>In such a case, a bill in equity under R. L. c. 25, § 100, by ten taxable inhabitants of the city of Medford to restrain the mayor and city treasurer of that city from borrowing money to construct a city hall will be dismissed, as here was ordered.</p> <p>Section 16 of St. 1903, c. 345, the charter of the city of Medford, provides that any order of the board of aldermen may be passed through all its stages at one session by unanimous consent of the members of the board present, and that, should one member or more object, action on the measure shall be postponed for at least one week. An order to construct a city hall accompanied by a letter from the mayor was presented to the board of aldermen of that city at a regular meeting and was referred to a committee. The committee unanimously recommended the adoption of the order by a report which was presented to the board . of aldermen at a meeting held two weeks later. Its adoption was moved and, after discussion, the order was adopted on a roll call by the votes of sixteen members in the affirmative and three in the negative. Held, that the order was not passed through all its stages at one session, as its presentation at the meeting when it was referred to a committee was its first reading and constituted one stage, so that its passage two weeks later was upon its second stage, and that therefore it was not necessary to consider whether a negative vote was equivalent to an objection.</p>

<p>Tax, Excise on domestic business corporation. Corporation, Excise on franchise. Pledge, Pledgee deemed owner for purposes of taxation. Words, “ Merchandise.”</p> <p>For the purposes of the interpretation of the tax act, pledged property, tangible as well as intangible, is deemed to be owned by the one in possession, whether this is a domestic or a foreign corporation or a natural person.</p> <p>Under St. 1909, c. 490, Part III, § 43, the tax commissioner when ascertaining, for the purpose of imposing the excise authorized by the statute, the value of the corporate franchise of a domestic corporation engaged in the business of lending money at interest secured by pledges of articles of personal property of which it holds possession while the general title to the articles is in its customers, in computing the maximum limit of twenty per cent of the value of the things named in the statute must include under the word "merchandise” the articles of personal property thus held in pledge.</p>

<p>Equity Jurisdiction, Suit to redeem from tax sale. Tax, Redemption from tax sale, Notice by non-resident owner of tax title. Equity Pleading and Practice, Appeal, Decree. Deed, Construction, In trust. Trust, Succession of trustee. Eminent Domain. Damages, For property taken or impaired under statutory authority.</p> <p>On an appeal from a decree for the plaintiff in a suit in equity in the Superior Court under St. 1909, c. 490, Part II, § 76, to redeem land from a tax sale, where the evidence was taken by a commissioner but no statement of facts found was-made by the judge, this court must review the evidence and decide the case on their own judgment both as to facts and as to law, but the trial judge’s findings as to facts upon oral testimony necessarily implied by his disposition of the case are not to be reversed unless plainly wrong.</p> <p>In a suit in equity under St. 1909, c. 490, Part II, § 76, to redeem land from a tax sale which occurred more than two but less than six years before the commencement of the suit, if it appears, that the defendant, who purchased the land at the tax sale, did not reside in the town where the land was and had not appointed the agent nor given the notice required of such a non-resident owner of a tax title by St. 1909, c. 490, Part II, § 46, a decree should be entered for the plaintiff if the general equities disclosed by the evidence require it. Following Davidson v. Stafford, 210 Mass. 145.</p> <p>In the present suit it appeared that, shortly after the assessment of the tax for the collection of which the land was sold, the land was conveyed to a trustee for an unincorporated association of individuals called a land company, that the trustee died before the sale, leaving his affairs considerably involved, that two persons-who in turn had succeeded him as trustees had been diligent in efforts to disentangle his affairs and had had no actual notice of the tax sale until just before the commencement of the suit, that the property in the meantime had been taken by the town by eminent domain for water supply purposes, that the value of the-claim for damages for such taking of the land was said to be $2,000 and that the amount due on redemption was $14. Held, that the general equities required a decree for the plaintiff.</p> <p>A deed of land recited that the consideration was paid by B “as he is Trustee of a voluntary association known as the” O Company. The grant was to B “Trustee” and the habendum to B, “Trustee, and his successors theirs and assigns.” A declaration of trust by B as trustee of the O Company, an unincorporated association of individuals formed for the purpose of dealing in land, was recorded in the same registry of deeds as was the deed. The declaration of trust was not referred to specifically in the deed. Held, that the conveyance was intended to be to B in his capacity as trustee for the association.</p> <p>Where, upon the death of a trustee who held title to land as trustee of an unincorporated association of individuals called a company, a declaration of which trust was recorded in the registry of deeds, two successors were appointed in turn, the first by the Probate Court and, upon his death, the second by selection of the holders of a certain number of the shares, both of which methods were provided for in the declaration of trust, the trustee last appointed thereby succeeds under the provision of R. L. c. 147, § 6, to a right to maintain a suit in equity under St. 1909, c. 490, Part II, § 76, to redeem the land from a sale-made after the death of the original trustee for the collection of a tax assessed before the property was conveyed to the original trustee.</p> <p>Where in such a suit it appears that a decree should be made for the plaintiff, but it also appears that since the tax sale the land has been taken by eminent domain by the town for water supply purposes and that a claim for damages resulting from such taking is unsatisfied, the decree should recite that the plaintiff is entitled to redeem upon the tender or payment of the tax, interest and proper charges, should state the fact of the tax sale and the taking by the town and should include a mandate that the defendant execute and deliver to the plaintiff an assignment of all his right, title and interest in the damages accruing from such taking, together with the right to use his name so far as necessary for the collection of the damages by petition or otherwise, but without expense to him.</p>

<p>Contract by the receiver of the First National Bank of London,. Kentucky, for the amount of an assessment alleged to have been made by the comptroller of the currency of the United States on the defendant as a shareholder in that bank. Writ dated June 8, 1915.</p> <p>In the Superior Court the case was tried before Fox, J.</p> <p>The plaintiff offered in evidence, certified as true by a certificate bearing the seal of the comptroller of the currency and signed by one alleging himself to be "acting comptroller of the currency,” copies of the original certificate of the "deputy and acting comptroller of the currency,” dated November 28, 1888, authorizing the bank to do business, of the original certificate of the comptroller of the currency dated December 26, 1908, authorizing extension of the corporate existence of the bank, of the original declaration dated April 9, 1914, by the comptroller of the currency that the bank was insolvent, of the commission appointing the plaintiff receiver, and of the assessment upon the shareholders, dated August 20, 1914, and signed by the comptroller of the currency, which directed the plaintiff "to take all necessary proceedings, by suit or otherwise, to enforce . . . the said individual liability of the said shareholders.”</p> <p>These copies were admitted in evidence subject to exceptions by the defendant.</p> <p>It did not appear that the defendant had any notice of any application for or of any granting of an extension of the incorporation period of the bank.</p> <p>Other evidence is described in the opinion. The trial judge ordered a verdict for the defendant and reported the case to this court for determination upon a stipulation by the defendant that if the ordering of a verdict was wrong and on any issue and upon the competent and admissible evidence the cause should have been submitted to the jury, judgment should be entered forthwith for the plaintiff for $1,000 with interest from September 21, 1914; otherwise, or if the Superior Court did not have jurisdiction of the cause, judgment should be entered on the verdict.</p>

<p>Bill in equity, inserted in a writ of trustee process dated June 25, 1915, seeking to have the defendant Clinton Cotton Mills adjudged indebted to the plaintiff in the sum of $8,096 and interest and to reach and apply in satisfaction of that debt “any money or moneys due or that may hereafter become due from” the defendants Harding and Tilton to the Clinton Cotton Mills “under any contract or contracts now existing” between them.</p> <p>The case was heard by McLaughlin, J., on an application for a preliminary injunction against Harding and Tilton, on the bill without an answer, and there were in evidence, besides the contract between Harding and Tilton and the Clinton Cotton Mills, a statement, signed by the plaintiff and the attorney for Harding and Tilton, of what Harding, who was absent, would testify if he were present.</p> <p>One clause of the contract between Harding and Tilton and the Clinton Cotton Mills was as follows:</p> <p>Article III, clause 2. “The Agents shall make general advances to the Mill from time to time as required up to the aggregate maximum amount of Two Hundred and Twenty-five Thousand Dollars ($225,000), but not more. They shall also make advances up to the full market value against unsold merchandise consigned to them up to an amount of Twenty-five Thousand Dollars ($25,000), but not more. The Agents shall accept consignments of manufactured products against sales and make payments therefor or advances thereon up to the full market value of such consignments, less commissions, expenses and New York freight allowance. The $225,000 general advances and also any advances up to $25,000 against unsold merchandise shall be covered by six months’ notes of the Mill bearing interest at the rate of six per cent (6%) per annum and renewable at the request of the Agents. These notes shall be endorsed by Mercer S. Bailey and William J. Bailey and may be retained by the Agents or used by them in their own loans.”</p> <p>Other provisions of the contract are described in the opinion.</p> <p>From the statement of Harding it appeared that the entire advance of $225,000 had been made by his film to the corporation, for which they held the corporation’s unmatured notes; that the corporation also owed the firm $7,528.03 for advances by the firm beyond the amounts of sales made by the firm of the corporation’s goods, which included sales of goods on ten days’ credit for which the firm had not been paid by the customers.</p> <p>It further appeared from the statement that there also were amounts, probably double in amount the sum claimed by the plaintiff, covered by contracts already entered into by the firm with their customers for delivery of Clinton Cotton Mills products to be manufactured in the future. Such amounts were not payable to the firm in any event until after delivery of the products had been made; but by the terms of the firm’s contract they were bound to make deliveries as called for in the contracts, and orders to that effect in every instance had been given by the firm to the Clinton Cotton Mills. As deliveries under such contracts were made the firm would be in position to apply such amounts, less commissions, freight allowances and other charges, to the credit of the Clinton Cotton Mills.</p> <p>The judge, after finding the facts above described, ruled that under the contract between the Clinton Cotton Mills and Harding and Tilton, the right of the corporation, in accordance with the terms and conditions therein contained, to receive the proceeds of sales of its products under those contracts of sale already made by Harding and Tilton when the notice was served, was not property or any right, title or interest of the Clinton Cotton Mills which could be reached to be attached or taken on execution in an action at law, but was property, right, title and interest of the Clinton Cotton Mills which could be reached and applied under the provisions of R. L. c. 159, § 3, cl. 7; and accordingly an interlocutory decree for a temporary injunction was issued. Harding and Tilton appealed.</p> <p>Thereafter Harding and Tilton filed a demurrer and a plea and the Clinton Cotton Mills filed a special appearance and a motion to dismiss the suit, and the plaintiff filed a motion to strike from the record the special appearance and the motion to dismiss.</p> <p>The suit was further heard upon the demurrer, plea and motions by McLaughlin, J., and by his order an interlocutory decree was issued overruling the demurrer and plea and denying both motions; and, being of the opinion that the two interlocutory decrees above referred to so affected the merits of the controversy that the matter ought to be determined by this court before further proceedings, the judge reported the case, “the decrees to be affirmed or such further or different order or orders or decree or decrees to be entered as justice and equity may require.”</p>

<p>Tort for person^ injuries sustained on May 1, 1914, at the corner of Centre Street and Cedar Street in the part of Boston called Roxbury by reason of a collision between a semi-convertible street railway car of the defendant and an automobile driven by the plaintiff. Writ dated May 9, 1914.</p> <p>In the Superior Court the case was tried before Raymond, J. There was evidence, for the plaintiff, that the plaintiff was driving westerly down Cedar Street toward Centre Street in a Ford five-seated automobile; that in front of him was a baker’s cart, which somewhat obstructed his way; that after the baker’s cart turned up Fort Street, at his left, the plaintiff proceeded on the right hand side of Cedar Street to go directly across Centre Street and then to turn to his left down Centre Street toward Jamaica Plain; that on Centre Street were parallel tracks of the defendant, cars running from his left toward his right as the plaintiff faced Centre Street on the track nearer to him, and from his right toward his left on the farther track; that as he approached Centre Street his view of the defendant’s tracks on his left was obstructed by the baker’s cart and by a high stone wall with a paling fence on top of it; that when he was six or eight feet from the nearer car track he was going very slowly in his automobile, due to his progress having been obstructed by the baker’s cart; that he had been listening and looking for any approaching street car and neither had seen nor had heard any; that at that point he saw, about thirty-five or fifty feet distant from him, a street railway car approaching on his left; that he could not stop nor reverse nor go into high speed and deemed it best to go directly ahead across the street; that when he looked at the motorman he noticed that the motorman was turning his head and was looking at the baker’s cart; that before the plaintiff could get across in front of the car his automobile was struck and overturned; and that the speed of the street railway car was about twenty miles an hour.</p> <p>The foregoing evidence tending to show due care on the part - of the plaintiff and negligence on the part of the defendant’s motorman was contradicted on both of these issues by evidence introduced by the defendant.</p> <p>At the close of his charge to the jury the judge, at the request of the plaintiff, instructed the jury as follows:</p> <p>“While the plaintiff was not excused from using his own senses of sight and hearing, he had a right to assume that the motorman of the approaching street railway car would give the warning signal when approaching crossings and would so slacken the car’s speed as to protect travellers whose presence at the crossing in the operation of the street railway might be expected.</p> <p>“I thought I covered that in my charge but, if I did not, I assent to that as the law. On the question of his [the motorman’s] negligence you should bear in mind whether or not he did the things the rules called for as to sounding gongs and the rate of speed and watching out, etc. All of that is for you.</p> <p>“If the jury shall find that the motorman was disobeying a rule of the defendant with regard either to the speed at which he approached the crossing, the ringing- of a gong or the giving of other signals, or the keeping of a lookout for other persons on the highway, they may find that the motorman was negligent and that his negligence caused the plaintiff’s injury.</p> <p>“That is, that is evidence from which you may find that, if on all the evidence you do say that he was not using reasonable care.”</p> <p>The judge submitted to the jury two special questions as follows:</p> <p>“Was the plaintiff in the exercise of due care?”</p> <p>“Was the defendant negligent?”</p> <p>The jury answered the first question in the affirmative and the second question in the negative. The answers were returned in the midst of a session of the court, and thereupon the presiding judge in the absence of the counsel and without sending for them or requesting their attendance, ordered a verdict for the defendant.</p> <p>The plaintiff filed a motion that the verdict of the jury be set aside and a new trial granted on the following grounds:</p> <p>“1. Because the verdict was against the law as stated to the jury by the court.</p> <p>“ 2. Because the verdict was against the evidence and the weight of the evidence.</p> <p>“3. Because the special findings of the jury were inconsistent with each other and with the evidence.</p> <p>“4. Because both of the special findings of the jury could not be based upon the same findings of basic facts by the jury; one or the other of the findings was wrong.”</p> <p>The motion was heard by the presiding judge and, before the argument upon it, the plaintiff presented to the judge the following requests for rulings:</p> <p>“1. As a matter of law on all the evidence, the findings of the jury both that the plaintiff was in the exercise of due care and that the defendant was not negligent were unwarranted.</p> <p>“2. As a matter of law on all the evidence and upon the findings of the jury in answer to the special questions, there was a mistrial.”</p> <p>The judge refused to make the rulings requested by the plaintiff and denied the motion. The plaintiff alleged exceptions.</p>

<p>Agency, Existence of relation, Scope of authority.</p> <p>Where, at the trial of an action for personal injuries received by the plaintiff, when he was a traveller on the highway, by reason of his being run into by an automobile, there is evidence tending to show that at the time of the accident the automobile was being driven by the defendant’s son-in-law, that the defendant was the proprietor of a fruit, confectionery and ice cream store and had been so for a number of years, that during these years the son-in-law had lived with bim over the store and had worked with Mm in the business, that he continued to do so for a number of months after the accident, that previous to two months before the accident a large part of the business had been carried on at adjoining beaches by the use of a team, that then the team was given up and an automobile was purchased wMch was used in its place, that the automobile was insured in the name of the defendant and that Ms name in full was painted on its outside, the jury are warranted in finding that the automobile was owned by the defendant and that the son-in-law was Ms employee, although the defendant offers evidence tending to explain the circumstances in detail and to show that he did not own the automobile and that Ms son-in-law was not in Ms employ.</p> <p>And where at the same trial the plaintiff testifies that at the time of the accident the driver was the only person in the automobile and that its rear door was open, disclosing inside an ice cream freezer and candy boxes, the jury are warranted in finding further that the driver at the time of the accident was engaged in Ms employer’s business, although the defendant’s evidence tended to controvert that of the plaintiff.</p>

<p>Toet for personal injuries received, when the plaintiff was in an automobile owned by the defendant, by reason of a collision between it and another automobile. Writ dated February 9, 1914.</p> <p>In the Superior Court the case was tried before King, J. The material evidence is described in the opinion. There was a verdict for the plaintiff in the sum of $15,505, of which the plaintiff remitted all but $9,505. The defendant alleged exceptions.</p>

<p>Summary process under R. L. c. 181 for the possession of certain land in Woburn. Writ in the Fourth District Court of Eastern Middlesex dated October 15, 1915.</p> <p>On appeal to the Superior Court the case was tried before Stevens, J. The evidence is described in the opinion. At the close of the evidence the judge submitted to the jury the two following questions:</p> <p>“ 1. Did the defendant accept the lease from Edmund Reardon [the owner of the land] dated June 1, 1915, with the understanding that it was in force before he received the letter from Reardon dated August 2, 1915, but said to have been mailed August 11, 1915?</p> <p>“2, Did the defendant execute the lease from Edmund Rear-don dated June 1, 1915, with the understanding that it was in force before he received the letter from Reardon dated August 2. 1915, but said to have been mailed August 11, 1915?”</p> <p>To each of these questions the jury answered “Yes.” Thereupon the judge ordered a verdict for the defendant, and with the consent of the parties reported the case for determination by this court.</p>

<p>Equity Jurisdiction, To enjoin enforcement of judgment at law. Equity Pleading and Practice, Master’s report: exceptions, motion to recommit.</p> <p>A court of equity has no supervisory jurisdiction over courts at law.</p> <p>In a suit in equity brought to restrain the enforcement of a judgment at law, which was entered after two trials on the merits and after the merits had been considered for a third time on a petition for a writ of review, which was denied, where the only new matter alleged in the bill was disposed of completely by the findings of a master and was shown to be without foundation, it was ordered that the bill be dismissed with costs.</p> <p>In a suit in equity exceptions to a master’s report based on objections that certain findings of the master were not warranted by the evidence or that certain findings were not made by the master, if the evidence on which, the master acted is not reported, must be overruled.</p> <p>A motion in a suit in equity to recommit a master’s report, in order that he may report the evidence that was given in previous trials at law between the same parties and may make findings on questions that were decided or involved in those trials and are not material to the suit in equity, must be denied.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 7, 1916, by the trustee under the will of Martha Parsons, late of Milton, who died on May 15, 1899, for instructions as to the distribution of the trust fund to be made by reason of the death on November 5, 1915, of the last survivor of the mother, sister and brother of the testatrix to whom the net income of such fund had been payable during their joint lives.</p> <p>The case came on to be heard before Loring, J., who reserved it upon the bill and answers for determination by the full court.</p>

<p>Partnership. Equity Jurisdiction, Accounting between partners.</p> <p>On a bill for an accounting brought by two retiring partners against the three remaining partners who were to continue the business formerly carried on by the firm, it appeared that there had been no bad faith on the part of any of the partners but- that the bookkeeping and accounting had been done under a somewhat complicated system and were full of mistakes and errors resulting apparently from lack of care and diligence, and that all the partners, (including one who by common consent in addition to having charge of a special department exercised a general oversight of the conduct of the business and of the office, the bookeeping and the accounting,) believed the business to have been prosperous and were deceived as to its real condition until this was revealed by the report of an expert accountant. A master, to whom the case was referred “to state the accounts in accordance with the terms of the partnership,” refused to make a finding as to negligence of the overseeing partner, although there was some evidence tending to show that such partner ought to have known that the books were kept badly and exhibited defects and errors. Held, that the refusal was proper, as the negligence of one partner had no bearing on the questions to be determined, and that under the circumstances disclosed the only course open to the master was to correct the errors so far as possible and from all credible evidence ascertain the true condition of the partnership.</p> <p>So far as losses result to a partnership from errors of judgment of one partner not amounting to fraud, bad faith or reckless disregard of his obligations, they must be borne by the partnership.</p> <p>In the case above stated it appeared that the termination of the partnership took effect on the first day of January of a certain year, and it was held, that the taxes assessed upon the partnership property as of the preceding first day of April were expenses to be borne wholly by the partnership, there being nothing in the partnership agreement indicating any apportionment of such taxes between the firm and the continuing partners.</p> <p>In the same case it was held that the expense of the expert accountant employed to examine and report on the books of the firm was charged rightly to the partnership, the results of his work being equally available to all the partners.</p>

<p>Witness, Cross-examination, Direct examination. Practice, Civil, Control of cross-examination by judge. Charity. Corporation, Charitable.</p> <p>Where, in an action of tort against a corporation for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant in a wood yard operated by it, the defendant in its answer alleges that it is a charitable corporation and that the wood yard was operated by it in carrying out its charitable purposes, and at the trial the plaintiff calls as a witness the superintendent of the defendant, who was one of its incorporators, and makes inquiry as to the general management of the defendant’s enterprises, the witness in cross-examination by counsel for the defendant may be permitted to state the purposes for which the wood yard was established and maintained.</p> <p>And, where it does not appear that the superintendent, although an employee and a member of the corporation, had shown bias or prejudice in his testimony, the presiding judge was held properly to have ruled that the plaintiff, who had called him as a witness, should not be permitted to cross-examine him.</p> <p>A charitable corporation, organized “for the purpose of assisting discharged prisoners and others, ” by furnishing them with a temporary home and employment, to lead honest and useful lives, which maintains for its purposes a lodging and boarding house called a Home, and a wood yard where employment is given to persons needing its help, who are paid something for their work and are given lodging, board and sometimes clothing, and the expenses of which corporation are paid in part from a sale of the wood from the wood yard, in part from the income from invested funds and in part from voluntary contributions, the corporation deriving no profit from its enterprises, cannot be held liable in an action of tort brought by an inmate of its Home and a worker in its wood yard for personal injuries received by him due to a defective condition of a wood chopping machine of which the defendant’s superintendent knew or should have known.</p>

<p> Devise and Legacy. </p> <p>In an action under R. L. c. 141, § 19, against the executors of the will of the plaintiff’s father for a legacy of $100,000, it appeared that the clause of the will under which the plaintiff claimed the legacy was as follows: “To my son [the plaintiff] ... I give and bequeath the sum of $100,000 out of which bequest are to be first paid all notes signed or endorsed by him and owned by me at the time of my decease, with interest; also all notes signed or endorsed by the Languages Printing Company of New Jersey and owned by me at the time of my decease, with interest; and also all notes signed or endorsed either by said [the plaintiff] or by said Languages Printing Company of New Jersey and held in trust for me at the time of my decease, with interest. Upon settlement of said bequest the balance if any above said indebtedness is to be paid to my said son in money.” The executors in defence put in evidence an unpaid note of the Languages Printing Company for $100,000 indorsed by the plaintiff and payable to a trustee for the testator. The plaintiff offered to prove that the note had been extinguished by a merger of the mortgage given to secure it, and also offered to show that the testator, when he made his will, knew -of the mortgage and the merger and of other transactions that made the note legally unenforceable. The trial judge refused to admit the evidence offered and found for the defendants. Held, that the refusal and finding were right; that, although the debt of $100,000 due from the printing company might not have been collectible, it was the testator’s intention in spite of this fact that this loan should be treated as in the nature of an advancement to his son and that the balance only, if any, should be paid to him as a legacy.</p>

<p>Abortion. Evidence, Dying declarations, Testimony of accomplice. Practice, Criminal, Conduct of trial, New trial, Exceptions.</p> <p>At the trial of an indictment under R. L. c. 212, § 15, for using unlawful means with intent to procure the miscarriage of a woman, whose death resulted, a dying declaration made by the woman, offered in evidence under R. L. c. 175, § 65, is not rendered inadmissible by the fact that, at its close, with her right hand held raised, supported by one of her attending physicians, she repeated after another physician the words, “I say this realizing I am about to die and this is true, so help me God.”</p> <p>Contradictory statements, in a dying declaration by a woman under such circumstances, as to the name of the person responsible for her pregnancy affect the weight only and not the competency or admissibility of the declaration as evidence.</p> <p>Where, at the trial of an indictment under R. L. c. 212, § 15, for using unlawful means with intent to procure the miscarriage of a woman, whose death resulted, there is evidence tending to show that the woman made a dying declaration stating in substance that she, being pregnant, went to the office of a certain physician on “Massachusetts Avenue, near Symphony Hall” in Boston, that he used certain means to procure a miscarriage, that he sent her to a Mrs. H at a certain address, where he came on two subsequent days and curetted her; and where there also is testimony by her family physician and other medical experts to the effect that the condition which resulted in her death was caused by an abortion being committed when she was three or four months pregnant, and other evidence tending to show that the defendant’s name is the same as that of the physician named in the dying declaration, that he had an office as a physician on “Massachusetts Avenue, near Symphony Hall” in Boston, that there was no other physician of his name practicing medicine in Boston, and that the woman afterwards was treated at the house of Mrs. H at the address mentioned in the dying declaration by a physician who had an office on Massachusetts Avenue within five hundred and fifty feet of Symphony Hall, a verdict of guilty is warranted.</p> <p>And if, at such trial, Mrs. H, called by the Commonwealth, testifies in substance that she received the woman at her house in response to a telephone message from one who called himself “Dr. Turner that you spoke to a few months ago,” that later that Dr. Turner afterwards called on the woman, that he had offices at two addresses, which she gave, and one of which was on "Massachusetts Avenue, near Symphony Hall,” such testimony is admissible although in further direct examination the witness states that the Dr. Turner who called upon the woman was not the defendant and did not look like him, and that his name was Theodore W. Turner while the defendant’s name was Augustus W. Turner.</p> <p>The Commonwealth, at such trial, may introduce in evidence under R. L. c. 175, § 24, to impeach the credit of the witness Mrs. H as to some of her statements, evidence of statements made by her to various police officers immediately after the death of the woman to the effect that the doctor who called upon the woman at her home was named Augustus W. Turner and that he had an office at the address on Massachusetts Avenue near Symphony Hall, if, before the evidence of such statements is introduced, the circumstances under which they were made, sufficient to designate the particular occasions, have been mentioned to the witness and she has been asked if she made the statements and has been given an opportunity to explain them.</p> <p>At such trial, testimony of a police officer is admissible to the effect that, four days after the alleged criminal act of the defendant and two days before the death of the woman, at a time when other evidence showed that the woman was at the house of Mrs. H, he saw Mrs. H and the defendant talking together on Massachusetts Avenue near the corner of Boylston Street in Boston.</p> <p>In this case it was held, that, under the circumstances, the discretion of the presiding judge as to permitting the Commonwealth to cross-examine or lead the witness Mrs. H could not be said to have been exercised so as manifestly to have prejudiced the defendant.</p> <p>At the trial above described, the jury were instructed that they should disregard all of Mrs. H’s testimony unless they were satisfied beyond a reasonable doubt of the identity of the defendant as the Dr. Turner who called at her house when the woman was there; and a motion to have her entire testimony stricken out was held to have been denied rightly.</p> <p>A woman, whose death has been caused by a criminal operation to procure a miscarriage, is not an accomplice to the crime although she voluntarily went to the person who performed the operation and paid him for doing it, and, at the trial of an indictment for the crime under R. L. c. 212, § 15, the defendant may be convicted upon evidence contained in a dying declaration of the woman introduced under R. L. c. 175, § 65, without the introduction of evidence in corroboration of her statements.</p> <p>Where a motion for a new trial after a verdict of guilty upon an indictment under R. L. c. 212, § 15, for using unlawful means with intent to procure the miscarriage of a woman, is based upon the ground of the wrongful admission of testimony of one of the witnesses of the Commonwealth, as to whom in his opening the prosecuting officer had stated that he anticipated “difficulty in getting the truth from this woman,” and on the ground that, in his closing argument, the same officer had referred to the same witness as "an abortionist nurse,” the determination of the question, whether the motion shall be granted, lies wholly in the discretion of the presiding judge, and his denial of it cannot be reversed upon exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on September 8, 1908, by the administrator de bonis non of the estate of Albert H. Bird, to recover the amount of certain checks drawn on the defendant and on the Eliot National Bank, the American National Bank, the Commercial National Bank and the City Trust Company, by one William L. Baker, as administrator-of the estate of the plaintiff’s intestate, to the personal order of Baker, indorsed by him and deposited in his personal account with the defendant. The prayers of the bill were that the defendant might be adjudged a trustee of the. proceeds of such checks, and might be compelled to account for such proceeds.</p> <p>The case was referred to a master, who found the following facts among others:</p> <p>Between January 8, 1904, and March 17, 1906, Baker deposited with the defendant in an account in his name as administrator of the estate of Albert H. Bird by eleven deposits $24,792.96. All of these deposits were of money belonging to that estate for which he was accountable as administrator. The defendant had notice of this by the opening and carrying of the account as "Wm. L. Baker Adm. Est. of Albert H. Bird.”</p> <p>On April 18 and December 29, 1905, Baker’s personal account with the defendant was overdrawn. On the next succeeding bank day after each overdraft occurred, he made deposits to that account consisting of checks ‘drawn on his administrator’s account and checks drawn on other sources. In each instance the checks drawn on other sources were more than sufficient to take up the overdraft. The master found that, by reason of the fact that the deposits of checks drawn on sources other than the funds of the administrator’s account were sufficient in amount to repay the overdraft, the plaintiff had not shown that such overdrafts were repaid by deposits of checks drawn on the administrator’s account.</p> <p>At times Baker had checks upon his personal account certified. Sometimes on the same day as and sometimes on the day before the certification, he deposited with the defendant checks, drawn by him upon his administrator’s account with the defendant or checks drawn by him upon his account as administrator for the same estate in other banks, sufficient in amount at least to make certification possible.</p> <p>When a customer of the defendant wished a check of his certified he presented his check to the discount clerk for certification. That clerk inquired of the bookkeeper in charge of the ledger on which that customer’s account was carried as to whether he had a sufficient balance to his credit to warrant the bank in certifying the check. If there was such a balance, the discount clerk made out a charge memorandum against the customer, stamped a certificate on the check, had the certificate signed by an officer of the bank and then delivered the check to the customer. The charge memorandum was handed to the paying teller, who made a note of it and passed it to the bookkeeper who kept the customer’s account. That bookkeeper charged the customer with the amount of the memorandum and noted on the ledger that the charge was on account of a certified check. When the customer’s account was so charged the amount of the charge was credited to an account called the certified check account, and when the check certified was paid the last named account was charged therewith. It would happen frequently that when a depositor presented a check for certification the balance to warrant the certification was made up of a deposit, made on the same day, without which the certification requested would have been refused.</p> <p>The defendant is a national bank, and the federal laws with regard to certification forbid the certification of checks for a depositor unless there are actual funds in the account where the check is certified. For this reason, and for the protection of the bank against loss, care was exercised by the defendant to ascertain the true state of an account, and in some cases extraordinary care was used, the extent of the investigation depending upon who the depositor was.</p> <p>The dates of the certifications of Baker’s checks upon his personal account made possible by the deposit in the personal account of checks on the Bird estate account were February 16, April 17, April 20, 1905, and March.19 and 23, 1906.</p> <p>The master found, as to the examination of the condition of Baker’s personal account which was made before the certification of his personal checks, that “there was no evidence whatever, except upon one occasion hereinafter referred to, that the defendant ever examined into the nature of the deposits so made by Baker to ascertain whether or not they were the equivalent of cash.”</p> <p>The “one occasion” referred to above is described by the master as follows: “At some time while Baker had these deposits with the defendant, the bookkeeper who had charge of the ledger in which Baker’s individual account was kept became aware that Baker was transferring funds from the Bird estate account to his own. He spoke to some one in the bank about this; but to whom he spoke, or what he said, I cannot determine. This evidence did not satisfy me that this bookkeeper suspected, much less knew, that Baker was misappropriating funds of the Bird estate. On February 21, 1906, this bookkeeper had occasion to examine the deposit made by Baker to his own account that day, consisting of a $4,000 check on the Bird estate account, and put the letters ‘O.K.’ after the entry crediting Baker for its amount. There was no evidence to show why he examined this deposit. I infer that he must have satisfied himself as to the source of the deposit, and in the course of so doing seen the check deposited. Baker was charged on that day with a check for $1,800 on his individual account.”</p> <p>A draft for $3,000 dated Uniontown, Kentucky, March 20,1906, drawn by one George M. Gilbert upon Baker, payable to the order of the Uniontown Savings Bank at the defendant bank, was presented to the defendant on March 23, 1906, for payment. On that day Baker drew a check for $3,000 upon his individual account with the defendant, payable to the order of the defendant, and passed it to the defendant’s note teller. On the same day he drew a check upon his administrator’s account with the defendant for $4,000 and deposited it in his individual account. Without this deposit his check for $3,000 upon his individual account would not have been good. The defendant received the check for $3,000, charged it to Baker’s personal account and credited the amount of it to the National Bank of Commerce of New York, which had forwarded the draft to it.</p> <p>The master further found that, “on and after February 21,1906, when Baker deposited to his individual account a check for $4,000 drawn on the Bird estate account, the defendant, judged from the standpoint of a reasonably prudent banker, had knowledge of such facts as would reasonably lead it to suspect that Baker, in drawing, and depositing or cashing, checks to his own order on the Bird estate account, was using without authority funds of the Bird estate for his own private purposes;” but that “at no time did the defendant have any actual knowledge or suspicion whatever that Baker was using without authority the funds of the Bird estate for his own private purposes, and the defendant was not privy to his so using those funds for such purposes.” He also stated that it seemed to him that the case was governed by the decision in Allen v. Puritan Trust Co. 211 Mass. 409, and that the defendant was under no liability to account to the plaintiff.</p> <p>The evidence was not reported. The plaintiff, by objections and exceptions to the master’s report, contended that the defendant should be required to account to him for the amount of the checks on Baker’s administrator’s account deposited to his individual account on the days following the overdrafts, for the amount of the checks on the administrator’s account deposited to the personal account for the purpose of making it possible to certify checks drawn on the personal account, and for the amount of the check on the administrator’s account deposited to the personal account for the purpose of enabling Baker to give a check to the defendant on the personal account for the amount of the Kentucky draft paid for him by the defendant.</p> <p>The case was reserved by Pierce, J., for determination by the full court.</p>

<p>Contract for demurrage alleged to be due under the provisions of a charter party described in the opinion. Writ dated January 23, 1911.</p> <p>In the Superior Court the case was heard by Hardy, J., without a jury. The material facts are stated in the opinion. The judge found for the plaintiff in the sum of $4,819.21; and the defendant alleged exceptions.</p>

<p>Wagering Contracts. Stockbroker. Pleading, Civil, Declaration. Practice, Civil, Auditor’s report, Exceptions. Conflict of Laws.</p> <p>Allegations in the declaration in an action of contract against a stockbroker in which the plaintiff seeks to recover sums paid to the defendant for transactions upon margins, that the plaintiff “had no intention to perform said contract” to purchase certain stocks upon margin, and that the defendant “had reasonable cause and well knew that the plaintiff had no intention to actually perform said contract,” are not the equivalent of, nor can they be construed into, an affirmative allegation of the fact, which is a prerequisite to the maintenance of an action under R. L. c. 99, § 4, that at the time of malting the contract the plaintiff intended that there should be no actual pm-chase or sale.</p> <p>If, at the trial of such an action, the plaintiff testifies that he told the defendant that he wished to trade on margin, buying when he desired and selling when he desired, taking the market quotation, and, if there was a rise, to sell and to settle his account on the rise and fall of the market, and that he did not want the stock certificates, a finding is warranted that the plaintiff intended at the time of the contract that there should be no actual purchase or sale.</p> <p>Bindings of an auditor to whom was referred an action of contract against a stockbroker for the recovery of money paid to the defendant for transactions alleged to have been upon margins, that all the purchases and sales ordered by the plaintiff "were actual transactions,” and that in “every case, whether of purchase or sale, a check for the full amount duly passed from or to the defendant as the case might be,” where the auditor also finds that, at all times between the purchase and sale of each kind of stock, the defendant had on hand or within his immediate control enough of the stock to meet the demands of all his customers including the plaintiff, are not inconsistent with other findings of the auditor in substance that, in the case of certain purchases there was no actual delivery of certificates to the defendant because, on the same date as the purchase by the defendant from the plaintiff, the defendant sold for another customer the same number of shares that he purchased from the plaintiff, and, according to the custom of brokers under such circumstances, the broker from whom the defendant purchased delivered the stock directly to the broker to whom he sold, “rather than through the defendant, thereby saving unnecessary steps, and accomplishing the same result; ” and that there was for the same reason no delivery to the defendant in the case of certain sales for the plaintiff on the same days when the defendant purchased the same number of shares of the same stock for other customers.</p> <p>The findings of the auditor in the above described case being the only evidence upon the issue to which they related, a verdict was held properly to have been ordered for the defendant because as a matter of law he had sustained the burden of proving under R. L. c. 99, § 4, that all the purchases and sales upon orders placed with him by the plaintiff were “actual.” '</p> <p>In such an action the plaintiff’s knowledge or ignorance of how much of the money deposited by him “was put on each security” was held not to be material to the determination of the issue of his intention at the time of the making of the contract or of the issue of the defendant’s reasonable cause to believe that the plaintiff had an intention that there should be no actual sale or purchase.</p> <p>An exception to the exclusion of a question at a trial will not be sustained where there is no offer of proof to show what answer to the question was expected.</p> <p>In this action against a stockbroker with offices in Boston, New York and Chicago, to recover under the laws of Massachusetts certain amounts of money paid to the defendant as margins upon wagering contracts, where it appeared that the money was paid and the orders were given in Chicago, where the plaintiff lived, it was not determined but it was assumed that R. L. c. 99, § 4, applied, it being held that under the circumstances the defendant had done nothing to render him liable under the statute.</p>

<p>Trustee Process. Practice, Civil, Appeal, Costs.</p> <p>It here was not disputed that an attempted service by trustee process upon an alleged trustee merely by serving the writ upon another as his agent is insufficient.</p> <p>One who is summoned as trustee by trustee process is a party to the action, and an order discharging him is a final judgment so far as he is concerned, he having no interest in the principal controversy. Therefore an appeal from such an order may be entered in this court without waiting until the action is disposed of on its merits and is ready for judgment.</p> <p>In deciding the point stated above it was said that the decision was confined strictly to the facts of the case and does not narrow the general rule as to appeals from interlocutory orders illustrated in Weil v. Boston Elevated Railway, 216 Mass. 545.</p> <p>Under R. L. c. 189, § 69, if a person attempted to be summoned by trustee process as trustee is discharged by an order of the court because the service upon him was insufficient, he may be awarded costs and counsel fees by the order of discharge.</p>

<p>Way, Private: by prescription.- Easement, By prescription.</p> <p>'The acquisition of a right of way over a passageway by its continuous use during a period of more than twenty years is not impaired by a temporary obstruction of the way in the course of that period by means of barrels and planks placed there by a stranger without authority from or ratification by the owner of the land over which the right of way is acquired.</p>

<p>Deed, From tax collector. Tax, Collector’s deed. Evidence, Presumptions and burden of proof.</p> <p>St. 1911, c. 370, providing that the deed of a collector of taxes conveying land sold for non-payment of taxes, if recorded within thirty days, “shall be prima fade evidence of all facts essential to its validity,” establishes a rule of procedure which applies to deeds executed in pursuance of sales made before as well as of those made after its enactment.</p> <p>Where a deed given by a collector of taxes in pursuance of a sale for non-payment of taxes describes well known land by the numbers of lots on a described plan filed in the registry of deeds, giving the number of the book of plans and the number of the plan, the description is sufficient for reasonable identification of the land conveyed, which is all that is required.</p> <p>In a tax collector’s deed, in which the essential facts in regard to the sale in pursuance of which the deed was given are recited, a mistake of twenty-five cents in favor of the delinquent taxpayer in the' computation of interest at the sale for non-payment of taxes and a mistake of five cents against such delinquent in the determination of his interest in the surplus following a later sale of the unredeemed land do not make either the sale or the deed voidable.</p> <p>Under the provision of R. L. c. 13, § 43, that the deed of a collector of taxes given pursuant to a sale for non-payment of taxes “shall convey ... all the right and interest which the owner had in the land when it was taken for his taxes,” the fact that the deed purports to convey the whole of the real estate described instead of all the right, title and interest which the owner had does not affect the title given by the deed and therefore does not invalidate the deed.</p> <p>Where land is sold to the town in which it lies for non-payment of taxes and seven years later, the land not having been redeemed, the unredeemed land is sold by the town under St. 1909, c. 490, Part II, § 68, the later sale is not in any accurate sense a tax sale, and its validity or invalidity cannot affect the title of the town as the purchaser at the previous tax sale; and accordingly the title given by the deed of the collector of taxes of the town after the later sale is not impaired by the fact that the assessment of taxes required by R. L. c. 13, § 66, to be made after the town bought the land “as though the same were not so taken or purchased” was only in fact made in the last one of the seven intervening years.</p>

Two actions of tort, the first by a married woman for personal injuries sustained by her on January 22, 1912, by reason, of a defective stairway in a house alleged to be owned and controlled by the defendant, in which the plaintiffs occupied a tenement and used the stairway in common with other tenants, and the second action by the husband of the plaintiff in the first action for expenses incurred by reason of her injuries. Writs dated April 13, 1912.

<p>Landlord and Tenant, Covenant to pay taxes. Contract, Construction.</p> <p>A lease-was made for a term of twenty years from May 1, 1893. The lessee covenanted to pay “all the taxes ...» except betterments, whether in the nature of taxes now in being or not which may be assessed upon or payable for or in respect of the said premises or any part thereof during the said term.” The lessee paid the taxes assessed as of May 1,1893, and the taxes assessed for each succeeding year until the last year of the term, which ended on April 30, 1913, but refused to pay the tax assessed as of April 1,1913, asserting that he already had paid the taxes for twenty years and that St. 1909, c. 440, which changed the day of assessment from May 1 to April 1, was not contemplated by the parties when the lease was made. Held, that the lessee must comply with the terms of the express covenant he had made, although the result was that he had to pay the taxes for twenty-one years under a twenty year lease, it not being open to this court to modify the lease in accordance with a conjecture as to what agreement the parties would have made had they foreseen the likelihood of a change in the tax law.</p>

<p>Negligence, In operating automobile. Joint Tortfeasors.</p> <p>In an action for personal injuries sustained when the carriage in which the plaintiff was driving was run into by an automobile belonging to the defendant’s brother and operated negligently by the defendant’s son, there was evidence that the automobile was occupied by the defendant and his brother, his wife and his son, who were on an excursion for their common enjoyment, that the defendant’s son was without a license and was “learning to drive the car,” that the defendant with knowledge of his son’s inexperience, shortly before the accident and as the car was approaching from behind the carriage in which the plaintiff was travelling, said, “Look out and keep on your right” and told him to “look out for the plaintiff’s team because the team was right in the middle of the road” and that the driver “was trying to get on the left.” Held, that it could be found that the directions given by the defendant were intended to control or influence the conduct of the defendant’s son in operating the car and that the question o£ the defendant’s negligence was for the jury.</p> <p>In the same case there also was evidence that the defendant’s brother, who owned the car, also gave directions to the defendant’s son as its driver, and it was held, that this evidence, if believed, would not be a defence for the defendant, as it might be found that the defendant participated with his brother in the active management of the car.</p>

<p>Complaint, received and sworn to in the First District Court of Essex on September 14, 1915, charging that the defendant on August 21, 1915, at Salem “did occupy a stand within the limits of the market, to wit, the area south of the market house for the sale of certain articles, to wit, peaches, the said stand not having been assigned to him by the board of control having supervision of the said market and area,” in violation of an ordinance of the city of Salem which was passed on April 23, 1915, to take effect on May 3, 1915.</p> <p>In the Superior Court before Quinn, J., the case was submitted upon an agreed statement of facts which contained the facts that are stated in the opinion. After a jury was impanelled the counsel for the defendant stated that upon the agreed facts the jury would be justified in returning a verdict of guilty and suggested that the judge should order such a verdict. Thereupon the judge ordered the jury to return a verdict of guilty, which they did. With the consent of the district attorney, and at the request of the defendant’s counsel, who stated that he simply wished to raise a question of law, "whether the city of Salem could require a permit and the payment of a fee therefor before one could occupy a stand in the market,” the judge reported the case for determination by this court. If the ordering of the verdict was correct, judgment was to be entered accordingly; otherwise, the verdict was to be set aside.</p> <p>The revised charter of the city of Salem is contained in St. 1912, c. 559. Section 63 of Part I of that chapter is as follows: “Nothing contained herein shall be construed to affect the authority, power, privileges, rights and obligations created and given by any special act of the General Court and now vested in and exercised by the city of Salem, unless the same are inconsistent herewith.”</p> <p>The case was submitted on briefs.</p>

<p>Contract, Rescission. Sale, Warranty. Election. Automobile. Words, “Offer.”</p> <p>In the provisions of the sales act relating to rescission for a breach of warranty contained in St. 1908, c. 237, § 69, els. 3,4, the word “offer” as used in relation to an offer to return the goods is synonymous with the word "tender.”</p> <p>Where the buyer of an automobile for the price of $3,000 paid for it with another automobile agreed to be worth $2,000, $500 in cash and $500 in notes, where the seller gave an oral warranty that the $3,000 car was in perfect running order, which it was not, and where the buyer, after repeated trials of the car and repeated unsuccessful attempts of the seller to put it in order, wrote to the seller, “This is a formal notice to you that I shall not accept the Chadwick car — which is, as you know, now at [a certain garage, the place of repair.] . . . it has never once been in anything like proper condition. I am done with it absolutely, and I would not have it at any price,” but thereafter the buyer did not offer to return or tender the car to the seller and demand the return of the consideration until one month and four days after the date of his letter, it was held, that the buyer by his failure to return the car or to offer to return it within a reasonable time after he had knowledge that the warranty was broken had lost his right to rescind the sale.</p>

<p>Evidence, Opinion: experts, Remoteness, Competency. Negligence, Street railway. Practice, Civil, Conduct of trial: curing error in admission of evidence. Words, “Sharp curve.”</p> <p>In an action by an administrator against a corporation operating a street railway for causing the death of the plaintiff’s intestate when he was a passenger on a car of the defendant and the car was entering upon a curve, where the plaintiff had introduced evidence of a rule of the defendant requiring motormen in going round “sharp curves” not to run over four miles an hour, the plaintiff was permitted, against the defendant’s objection, to ask an expert the question, "Assuming that the radius of this curve is one hundred and fifty feet to one hundred and sixty, as you have stated, whether or not this is a sharp curve? ” and the witness answered, “Yes.” Held, that it was error to allow the question to be put to the expert, as the words “ sharp curve ” were to be understood by the jury according to their common and accepted usage and not in a mathematical or scientific sense.</p> <p>In the same case the presiding judge of his own motion called the attention of the jury to the fact that the opinion of the expert witness above mentioned was immaterial and ordered that the question and answer should be stricken out and instructed the jury not to consider it, saying to them, “It is a practical question, both in its aspect as regards the conduct of the motorman and as regards what you say about that curve. You have seen the curve. It is for you to say whether it comes under the definition of a sharp curve or not.” Held, that the error in the admission of the evidence was cured fully by the explanation and instruction of the judge.</p> <p>In the same case the defendant offered evidence to show the nature of the curve with reference to the ease with which cars could go round it without jerks and in this connection offered to show that the curve was constructed according to the recommendations contained in a certain handbook so that there would be a minimum of jerk and jolt. The presiding judge excluded the evidence. Held, that its exclusion was proper, as the judge rightly might have considered it too remote.</p> <p>In the same case it was admitted that the plaintiff’s intestate five years before the accident had met with an injury by which his skull was fractured, and the defendant then offered to show by expert testimony that a fractured skull impairs equilibrium, that habits of alcoholic drinking, whether constant or intermittent, still further impair equilibrium and that the intestate since the fracture of his skull had drunk intoxicating liquors and had been drunk from time to time. The judge excluded the evidence. No evidence was offered to show that the balance of mind or body of the intestate was less than normal at the time of the accident or that he was under the influence of liquor at that time. Held, that the evidence was excluded properly.</p> <p>In the same case the defendant offered to show “the number of cars that would be passing by at this time and the time between the cars.” No offer was made to show the number of cars that in fact passed over that street on that day at that time. The judge excluded the evidence. Held, that the exclusion was proper.</p>

<p>Gift. Trust, Creation.</p> <p>The aunt in this country of a girl seven years of age then living in Ireland deposited in a savings bank in her own name as trustee for the girl $200 that belonged to the girl as the only next of kin of her deceased mother, and afterwards deposited in this account $350 to which was added the accumulated interest. Later when the girl came to this country the aunt showed her the bank book and told her that the money that her mother had left was to be put in the bank in trust for her. For more than seven years the aunt collected wages earned by the girl, amounting to 81,190, and told the girl that she was saving them for her and was putting them with her mother’s money so that the girl should have that in trust. In fact she deposited in the trust account 8350 of the wages and mingled the balance with her own money. The aunt stated to the girl that she could have the money in the trust account if anything happened to the aunt and that the account would be something that the plaintiff always could have. In a suit in equity brought by the girl after the aunt’s death against the executor of her will, it was held, that these facts with the inferences naturally to be drawn from them were sufficient to justify, if not to require, a finding that the account in the savings bank became a completed gift when the plaintiff’s aunt first informed her that the original deposit of money in that account was the money that had belonged to the plaintiff’s mother, and that the gift was accepted by the plaintiff.</p> <p>In the same case it was held, that the plaintiff’s wages, which were collected by the defendant's testatrix for a period of seven years with the declared purpose of holding them for the plaintiff, were impressed with a trust that was not terminated by their being deposited in the savings bank fund nor by their being mingled with other money of the defendant’s testatrix.</p>

<p>Boston, Street commissioners. Street Commissioners. License. Nuisance. Contract, What constitutes. Way, Public: license to use for private purpose.</p> <p>A permit granted by the board of street commissioners of the city of Boston under St. 1913, c. 680, to erect and maintain a post with a clock thereon set in the sidewalk of a public street of that city, without limitation as to time and without express reservation of a power to revoke the permit, is a revocable license, and the right granted does not become a contract by the erection of a post and clock in accordance with its terms.</p> <p>In this Commonwealth a right granted to a private person to use a public street for a private purpose is a mere license revocable at pleasure.</p>

<p>Contract with two counts, the first upon a covenant in a lease in writing for rent of suite 16 in the Whittier Building in Cambridge due on the first days of April and May, 1915, with interest thereon, and the second count for use and occupation of the same premises for the month of April, 1915, and until May 20, 1915, according to an account annexed, claiming $47.50 damages and eighty-five cents for interest to the date of the writ. Writ in the Municipal Court of the City of Boston dated July 26, 1915.</p> <p>The case was presented to a judge of the Municipal Court of the City of Boston upon an agreed statement of facts, the substance of which was as follows:</p> <p>The lease above mentioned was made and dated on August 1, 1913, between the defendant and the trustee of the Associated Trust. The description of the term of the lease is quoted in the opinion.</p> <p>The defendant entered under the lease and paid rent thereunder at the rate of $28.50 a month in advance to the trustee of the Associated Trust, to and including June 30, 1914. On December 1, 1913, the trustee of the Associated Trust gave to the Cambridge Realty Company a mortgage of the Whittier apartments in which the suite was. The mortgage was in the usual form of real estate mortgages and contained the provision that "until default in the performance or observance of the condition of this deed, I and my heirs and assigns may hold and enjoy the granted premises and receive the rents and profits thereof.” On or about June 24, 1914, the Cambridge Realty Company as mortgagee entered upon the Whittier apartments and took possession thereof for breach of the conditions in the mortgage, and on the same day the defendant received a notice from the Cambridge Realty Company that thereafter "your rent will be payable to us, at the same rate which you are now paying.”</p> <p>On July 1, 1914, the defendant received from the Associated Trust the following notice: “We hereby authorize you to pay all rent due beginning July 1st to the Cambridge Realty Company, in accordance with a transaction which we have with them, which is only temporary.”</p> <p>After the receipt of these notices, the defendant paid $28.50 a month in advance for occupation of suite 16, to the Cambridge Realty Company, for the months of July, August, September, October, November and December, 1914.</p> <p>On August 27, 1914, the plaintiff in this action was appointed receiver of the Associated Trust by decree of the District Court of the United States for the District of Massachusetts, directing him as receiver among other things to take possession of all properties of the Associated Trust and to collect the income thereof, and ordering all persons owing money to the Associated Trust to pay it to the receiver.</p> <p>The Cambridge Realty Company surrendered possession of the Whittier Apartments to the receiver as of January 1, 1915, and some time in December, 1914, the superintendent of the Whittier Apartments notified the defendant orally that the Cambridge Realty Company had surrendered possession of the estate to the receiver and that he should pay the receiver thereafter for the occupation of the premises.</p> <p>Thereafter the defendant paid to the plaintiff $28.50 a month on the first day of each month from January 1, 1915, to March 1, 1915, for suite 16 for the months of January, February and March.</p> <p>On February 26, 1915, the defendant delivered to the plaintiff as receiver a letter or notice as follows: “You are hereby notified that I shall on the 31st day of March next quit and deliver up the premises now occupied by me as your tenant, namely Suite 16 in the Whittier Apartments, 885 Massachusetts Avenue, Cambridge, Mass.”</p> <p>The plaintiff on February 27, 1915, replied to the foregoing letter or notice as follows: “I cannot accept this notice. Your tenancy is under a lease which does not terminate until August 31, 1915. I shall be obliged to hold you responsible for the rent until that date.”</p> <p>On March 11, 1915, the defendant vacated suite 16 and moved to another building.</p> <p>On May 20, 1915, the trustees of the Associated Trust, acting under permission given by the District Court, conveyed the estate 885 Massachusetts Avenue, “subject to said mortgage and to all existing leases upon said premises,” to the Whittier Realty Company, a Massachusetts corporation.</p> <p>The defendant before the arguments asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence in the case as a matter of law the plaintiff cannot recover.</p> <p>“2. The Cambridge Realty Company after taking possession as mortgagee on July 1,1914, was entitled to rent from the defendant by privity of estate only, and not by privity of contract.</p> <p>“ 3. The Cambridge Realty Company was not an assignee of the lease.</p> <p>“4. The Associated Trust in assenting to payments by the defendant to the Cambridge Realty Company as mortgagee by letter dated July 1,1914, in effect gave notice to the defendant that the contract of lease was at an end.”</p> <p>The judge refused to make the first and fourth rulings requested, but made the second and third.</p> <p>The judge found for the plaintiff in the sum of $59, and at the request of the defendant reported the case to the Appellate Division.</p> <p>The Appellate Division made an order that the report be dismissed; and the defendant appealed.</p>

<p>Way, Public: relocation. Damages, For property taken or impaired under statutory authority.</p> <p>Where, before a vote was passed by a board of county commissioners relocating and widening a public road in a town, the road commissioners of the town caused sand to be dumped over the whole width of the proposed relocation and sloped the sand against the retaining walls of an old causeway, and, after the order of relocation had been passed by the county commissioners, the same road commissioners of the town restored these slopes of sand where they had been washed away over the whole width of the road as relocated, it was held, that these acts constituted as matter of law an entry and taking possession within the meaning of R. L. c. 48, § 92, and also within the meaning of § 28 of the same chapter, which provides that a petition for the assessment of damages by a jury must be filed before the expiration of one year “from the day when the highway is entered upon and possession taken for the purpose of constructing the same.”</p>

<p>Contract, Construction, Reformation. Covenant, Against incumbrances. Equity Jurisdiction, To reform instrument in writing, Specific performance. Words, “Incumbrance. ”</p> <p>Where in a contract for the sale and purchase of a parcel of land the seller agreed to convey “ a good title free from all incumbrances ” and the contract contained the provision that, “If [[the seller] shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease, but the acceptance of a deed and possession by [[the buyer] shall be deemed to be a full performance and discharge hereof,” and where the seller in good faith conveyed the land by a quitclaim deed which was accepted by the buyer, who, after he had taken possession under Ms deed and had made improvements, found that a natural watercourse ran across the rear of two of the lots embraced in the parcel and that certain rights in this watercourse were claimed by a town under a statute relating to surface drainage, the buyer cannot maintain a suit in equity to enforce the specific performance of the contract of purchase or to reform the deed by inserting in it a covenant agamst incumbrances, the defendant never having agreed to convey the land if it should be found to be subject to a permanent mcumbrance, the stipulated sole remedy in that case being a rescission of the contract.</p>

<p>Tax, Excise on domestic insurance company. Insurance, Excise on domestic company.</p> <p>Under St. 1909, c. 490, Part III, §§ 28, 33, the excise “on all premiums received for insurance” by a domestic (not life) insurance company is imposed on the gross amount of the premiums and not merely on their net amount after deducting such dividends, if any, as the board of directors of a mutual company may decide to repay to its policy-holders.</p>

<p>Negligence, Street railway, Causing death, Use of highway. Practice, Civil, Judge’s charge: misleading illustration.</p> <p>Where a man in the evening on leaving a sidewalk to cross a street fifty feet wide with two car tracks in the middle of it was seen to be looking in the direction of a plainly visible street railway car approaching on the farther track from two hundred and fifty to three hundred feet away and to be walking slowly with a hand in his pocket and his head down and was not seen to look in the direction of the car while crossing the street, and when he was on the nearer track and the car approaching on the farther track was distant somewhat more than thirty feet he was seen to take a step or two on the farther track where he was struck by the car and was knocked down and dragged about twenty-seven feet, in an action under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1, for causing his death, it was held, that there was no evidence that the decedent at the time of the injury that caused his death was actively in the exercise of due care as required by the statute, and judgment was ordered for the defendant.</p> <p>Where, at the trial of an action against a street railway corporation under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1, for negligently causing the death of a traveller on the highway, the presiding judge in his charge described to the jury the method of arriving at the penalty to be imposed on a defendant who was found guilty upon an indictment for manslaughter, it was said, that it was not necessary to decide whether the use of this illustration by the judge was as matter of law so prejudicial to a fair trial of the issues as to require a setting aside of the verdict and the granting of a new trial; because in the present case judgment was ordered for the defendant on another ground and because it was not reasonable to expect that a like illustration would be used in other cases.</p>

<p>Trustee Process. Attachment, Bond to dissolve.</p> <p>Where an attachment by trustee process has been dissolved by the giving of a bond with sufficient sureties approved by a master in chancery after notice and hearing given and conducted in pursuance of the requirements of R.L. c. 167, §§ 116, 117, the creditor of the trustee who was the defendant in the action in which the attachment by trustee process was made immediately may sue his debtor who was summoned as trustee without any further demand after the dissolution of the attachment.</p> <p>There is nothing in the Revised Laws nor elsewhere which requires that one who has been summoned as trustee by trustee process should receive any notice of an application by the defendant to a magistrate to dissolve the attachment.</p>

<p> Fisheries. Oysters. Cape Cod Canal. </p> <p>Under St. 1899, c. 448, § 16, providing for the recovery of damages to “any fishery, including oyster fisheries,” caused “by the deposit of excavated material, or in any other way” by the construction of the Cape Cod Canal, the licensee of oyster beds in Buzzards Bay may recover damages for loss suffered by reason of the pollution of the water over the flats by a sediment of sand and decayed organic matter stirred up by the excavations which caused the oysters to sicken and perish.</p>

<p>Practice, Civil, Exceptions, Cases tried together. Evidence, Presumptions and burden of proof. Insurance, Fire. Reference and Referee. Arbitrament and Award.</p> <p>When a bill of exceptions is presented to a trial judge for allowance, it is his duty to allow or to disallow it, and in disallowing it he may, if he deems it necessary, state his reasons in the certificate of disallowance. In the present case the judge allowed a bill of exceptions and in his certificate of allowance described amotion to dismiss the exceptions on the ground that they were not filed seasonably, on which he had not acted, and it was said, that a motion could have been made in this court to dismiss the exceptions for want of jurisdiction but that the motian to dismiss the exceptions filed in the trial court properly could not be considered by this court because it never had been passed upon by the trial judge.</p> <p>Where a number of cases, brought by the same plaintiff against different defendants on separate fire insurance policies for a loss arising from the destruction of the same property by the same fire, were tried together and a verdict was returned for the plaintiff in each of the cases, it was held, that a single bill of exceptions presented jointly by all the defendants properly might be allowed.</p> <p>In an action on a fire insurance policy the juryfound, in answer to a special question submitted to them, that the plaintiff did not set the fire nor cause it to be set, and the defendant excepted to the exclusion of certain evidence offered by it on this issue but failed to state in its bill of exceptions the evidence which, it contended, tended to show that the plaintiff set the fire, giving as a reason for such failure, that as the issue was left" to the jury it was to be presumed that there was some evidence on both sides. Held, that, in the absence of a statement of such evidence, the relevancy of the evidence excluded could not be determined, and that the exception must be overruled.</p> <p>It is a general rule that referees or arbitrators clothed with the power of deciding controverted questions between party and party must be disinterested and impartial unless by the mutual understanding of the parties they or some of them purposely are selected as partisans.</p> <p>In this Commonwealth, in an action upon an award of referees, the award can be impeached on the ground of alleged misconduct of the referees without resorting to a suit in equity to have the award set aside.</p> <p>Where the powers of referees are unrestricted by the terms of the reference, their decisions on all necessary questions of law and their findings of fact involved in the determination of the controversy submitted to them are final. If at the hearings before them they make errors as to the admission of evidence or in the scope allowed to counsel in argument, such errors are not reviewable.</p> <p>In an action on a fire insurance policy where the defendant sought to impeach the finding of the referees as to the amount of the loss on the ground of corruption of the referees by the plaintiff, it appeared that the plaintiff voluntarily paid for “lunches” furnished to the referees and offered them cigars, that the first luncheon was furnished with the knowledge of the defendant’s counsel who made no objection to proceeding before the referees, and that a second luncheon was furnished at which cigars were supplied, of which the defendant’s counsel did not know until the day after the award had been published. There was evidence that there was no concealment by the plaintiff on either occasion, that he did not act corruptly or with the intention of inducing the referees to decide in his favor and that the referees accepted the hospitality only as a courtesy, not deeming the occasion of any importance. Held, that the jury were warranted in finding that the referees had not been influenced improperly and had acted throughout the proceedings in good faith.</p> <p>In the same case it was contended by the defendant that the award was so grossly in excess of the actual amount of the loss as to show that the referees must have been biased or have acted corruptly, and a large amount of evidence as to the value of the insured property at the time of the fire was introduced by the parties. Certain evidence offered by the defendant on this issue was held to have been excluded properly by the judge in the exercise of a sound discretion on the ground that it was too remote, speculative, collateral and immaterial and that it tended to confuse the jury and to divert their attention from the material issues on which they were to pass.</p> <p>In the case above described it did not appear that a statement of all the evidence introduced by both parties before the referees was offered at the trial, and it was held, that the portion of such evidence printed in the record manifestly was insufficient to enable the jury to determine whether the referees committed such gross mistakes of overvaluation as to show misconduct.</p>

<p>Agency, Scope of employment. Negligence, In throwing a brick. Practice, Civil, Judge’s charge: comment on absence of witness. Evidence, Admission by failure to call witness, Res gestae.</p> <p>If an employee of the proprietors of a circus is engaged with other employees in pulling up the stakes of the circus tent preparatory to taking it down, while a performance is going on inside, and also is attempting to drive away a crowd of boys who have gathered about the tent and who keep coming back as often as they are driven off, and if, while so engaged, he picks up a brick and throws it at the boys and it hits on the head a man who is standing leaning against a fence on a public street fifty or sixty feet away, in an action by this man against the proprietors of the circus for his injuries thus sustained, it can be found that the person who threw the brick was acting within the scope of his employment in doing so, although the particular means he made use of might not have been contemplated by his employers.</p> <p>In the case above described the judge said in the course of his charge to the jury, "You may infer from the fact of no witness having been called by the defendants touching the relations between the defendants and the man in their employ who is said to have thrown the brick, you may infer if he was called that his testimony would not help the defendants.” - Held, that, while the judge well might have omitted this instruction, it could not be held to have been erroneous.</p> <p>In the same case it was held that evidence that the employee of the defendants in driving the boys away said, “Get to . . . out of here” and made other similar remarks was admissible as evidence of statements accompanying and explaining his acts.</p>

<p>Contract on a contract in writing to indemnify the plaintiff for all loss suffered by it on account of injuries to newsboys in the employ of the defendant, which is described more particularly below. Writ dated April 27, 1914.</p> <p>In the Superior Court the case was submitted to Chase, J., upon an agreed statement of facts as follows:</p> <p>On July 1, 1911, the Boston and Northern Street Railway Company, now the Bay State Street Railway Company, the name having been changed by act of the Legislature, entered into an agreement with the North Shore News Company. Under this agreement the street railway company granted to the news company the exclusive privilege of selling papers on all cars operated by the street railway company during the term of five years from the first day of July, 1911, upon certain terms and conditions.</p> <p>Paragraph four of the agreement was as follows: "4. That the said payments are made solely in consideration of the privilege herein granted and not as fares for newsboys in the employ of the News Company, who shall not be considered passengers for hire. And it is understood and agreed that the Street Railway Company shall not be liable to such employees of the News Company for injuries whether resulting or not from the negligence of the Street Railway Company, its officers, agents or servants. And the News Company hereby assumes and agrees to save the Street Railway Company harmless from all loss, cost or damage on account of injuries received by newsboys in its employer wearing its badge while boarding, riding upon or leaving the cars of the Street Railway Company, or while on or about its tracks. And the News Company agrees to pay all cost and expense incurred by the Street Railway Company in defending any suits brought against it for damages for such injuries, as well as the amount of all damages, if any, recovered from the Street Railway Company for such injuries.” ¡! Paragraph six of the agreement was as follows: “6. That the News Company, and every assignee or transferee of the privilege herein granted or any part thereof, shall carry, in some company or companies approved by the Street Railway Company, insurance against liability for injuries to the employees of the News Company on or about the cars and tracks of the Street Railway Company, such insurance to be written in such form as to protect both the News Company and the Street Railway Company from loss on account of liability for such injuries. The policies of insurance shall be filed with the General Auditor of the Street Railway Company, and shall be in form satisfactory to him, and in such amount as he shall from time to time require. ”</p> <p>On or about March 20, 1913, one David Higgins of Chelsea, a newsboy in the employ of the defendant, by his next friend, Thomas Higgins, brought an action in the Superior Court against the Bay State Street Railway Company, alleging in the declaration that the plaintiff was a newsboy and while on a car of the defendant was kicked by one of the agents or servants of the defendant and injured severely. The second count of the declaration alleged that the newsboy was assaulted by the defendant, its agents or servants by being kicked.</p> <p>The defendant appeared by its attorneys, filed a general denial and moved for specifications, and the plaintiff specified, as the time and place of the acts alleged in the declaration, February 12, 1913, on Broadway near Clinton Street, Chelsea, at about half past four in the afternoon. On July 10, 1913, the defendant propounded thirty-six interrogatories to the plaintiff, in answer to some of which the plaintiff said in substance that he was on the top step going into the car holding the two handles, when he was kicked in the stomach by the conductor and was thrown to the ground upon the pavement and injured; that he could not state how many persons were on the car because he did not have time to see before he was kicked off the car by the conductor. At the time the injuries were received David Higgins was boarding the car for the purpose of selling newspapers for the defendant.</p> <p>Due notice was given to the North Shore News Company to come in and defend the action, and on January 23,1914, Blodgett, Jones, Burnham and Bingham, Esquires, attorneys for the North Shore News Company, entered their appearance for the defendant, which they withdrew, however, on January 30. On February 24, 1914, the case was tried before a jury, who found, in answer to a special question, that the defendant’s conductor actually did kick the plaintiff, David Higgins, in the stomach, so that the conductor’s foot came in such forcible contact with his person that his hold on the car was broken and he was knocked into the street. They assessed damages for the plaintiff in the sum of $800. Costs were taxed amounting to $53.05. Upon the judgment execution issued, which was paid by the Bay State Street Railway Company, the entire amount of the execution being $857.85, including interest.</p> <p>In the defence of this action the Bay State Street Railway Com-pony incurred other expenses for attorneys’ fees, medical testimony, and other necessary assistance, amounting to $681.99, making the total amount paid on account of this case $1,539.84, of which the Street Railway Company demanded payment from the news company on April 2, 1914. Payment was refused, and the street railway company thereupon brought this action.</p> <p>It was agreed that the court might draw any proper inferences of fact from this agreed statement.</p> <p>Upon the above agreed statement of facts the judge found for the plaintiff in the sum of $1,611.79. From the judgment ordered by the judge in accordance with this finding the defendant appealed.</p>

<p>Insurance, Accident. Proximate Cause. Practice, Civil, Province of jury, Charge of judge. Evidence, Presumptions and burden of proof.</p> <p>In an action on a policy of accident insurance where by the terms of the policy the insurance was against "loss of life . . . resulting from bodily injuries ... effected directly and independently of all other causes through accidental means,” it appeared that the insured had a predisposition to rupture, that he accidentally fell and ruptured himself, that an operation, if not necessary, was the only proper way in which the injury should be treated, that thirteen days after the injury an operation was performed, that there was a satisfactory healing of the wound, but that thirteen days after the operation the insured died owing to some “obscure physiological poisoning due to certain unknown changes in the bodily functions brought about by etherization.” It was held, (1) that the jury were warranted in finding that the predisposition to rupture was not a cause of the accident; and (2) that, the insured having come to his death through the etherization which was an incident of the operation that was the proper treatment of his accidental injury and which could be found to have been a necessary or proper result of such injury, a finding was warranted that his death resulted from bodily injuries “effected directly and independently of all other causes through accidental means.”</p> <p>St. 1907, c. 576, § 21, provides that “No . . . warranty made in the negotiation of a . . . policy of insurance by the assured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such . . . warranty is made with actual intent to deceive or unless the matter . . . made a warranty increased the risk of loss.” A warranty, contained in a policy issued by an accident insurance company insuring against loss of life, stated that the insured was in sound condition physically. He had had from his birth a predisposition to rupture, and after taking out the policy accidentally fell and ruptured himself, in consequence of which he died. In an action on the policy there was no evidence that the warranty of sound condition was made with intent to deceive. Held, that, assuming that a predisposition to rupture was unsoundness of condition, it was a question of fact for the jury to determine whether such unsoundness increased the risk of loss.</p> <p>In the same case there was evidence, introduced by the defendant and not objected to by the plaintiff, not only that a predisposition to rupture increased the risk of loss but also that accident insurance companies generally did not take such a risk. Held, that the jury were not bound to believe the testimony to this effect and might make a finding to the contrary.</p> <p>In the same case the judge in the course of his charge to the jury said, “All parties to a contract, whatsoever contract it may be, who sign it or accept it, are presumed to know the terms thereof; but this presumption is not conclusive.” It was plain from the context that this was said by the judge in connection with the question whether the insured had an actual intent to deceive the defendant in the statements made by him in the warranties. Held, that in the connection in which it was used and must have been understood the statement of the judge was correct.</p>

<p>Tax, On legacies and successions. Statute, Construction, Repeal.</p> <p>It was not the intention of the Legislature, when by St. 1909, c. 268, they re-enacted the whole of St. 1907, c. 563, § 1, with a single amendment placing an adoptive father or mother on an equality with a natural parent, to change the existing law relating to the rate of taxation upon property subject to a succession tax by repealing § 25 of St. 1907, c. 563, which provides that “This act [St. 1907, c. 563] shall not apply to estates of persons deceased prior to the date when it takes effect, or to property passing by deed, grant, sale, or gift made prior to said date.”</p>

<p>JPractice, Civil, Severance of joint liability by death. Surety. Guarantor. Contract. Assignment.</p> <p>A joint liability in contract is severed by the death of one of the joint promisors and thereupon the promisee may proceed severally either against the surviving promisor or against the representative of the estate of the deceased promisor.</p> <p>In consideration of a surety company becoming surety on each of the bonds given separately by two joint trustees, the two trustees made a contract in writing with the surety company agreeing to indemnify it for all liabilities incurred upon the bonds. One of the trustees from time to time misappropriated to his own use securities and money belonging to the trust fund. His co-trustee negligently contributed to this result either by signing the transfers of certificates of the shares of stock misappropriated or by authorizing the embezzling trustee by power of attorney to sign his name as trustee. The acts of the embezzling trustee were such that the surety company should have been put upon its guard, but it had no actual knowledge of the misuse of the trust funds and acted in good faith. In an action on the bond of the embezzling trustee the surety company was held liable as surety and paid a judgment for the amount of the sum misappropriated. The co-trustee whose negligence had contributed to the misappropriation died, and the surety company sued the executor of his will on the agreement of indemnity given to it by the trustees. The defendant contended that the surety company had lost its right of action on the agreement by its negligence in not discovering earlier the fact that the embezzling trustee was misappropriating the trust funds. Held, that, the contract being one of guaranty given for the protection of the plaintiff, it owed no duty to the defendant’s testator, who was one of the joint guarantors, to keep him advised as to the dealings with the trust property by his co-trustee and co-guarantor, it being the business of the defendant’s testator to protect himself by seeing that his co-trustee performed the guaranteed duties.</p> <p>In the action described above one of the claims made by the plaintiff was for unpaid premiums on the bonds from 1904 to 1912 inclusive. It appeared that in November, 1902, a new trustee took possession of what remained of the trust property and that in December, 1802, the embezzling trustee was removed. In February, 1904, the action on his bond was brought. In May, 1905, the co-trustee, the defendant’s testator, died. By the agreement of indemnity the trustees had agreed to pay to the surety company, the plaintiff, “ as fee or premium, S50, on the 20th day of July, in each year hereafter until we shall serve upon the surety company a certified copy of an order of court releasing or cancelling said bond or other competent written legal evidence of the termination of its liability as surety upon such bond.” Held, that, as the embezzling trustee was removed in December, 1902, no liability could have accrued against a surety for him by reason of his conduct after that date, and that, as the defendant’s testator died in May, 1905, the only premium for which his estate could be held was that due on July 20, 1904, for $50 with interest thereon to the date of Ms death.</p> <p>In the action described above one of the defendants held assignments of the interests of the two trustees as beneficiaries of the income of the trust fund as security for their indebtedness to Mm. Held, that tMs defendant as assignee stood in no better position than Ms assignors.</p>

<p> Adverse Possession. </p> <p>Where one and his successors in title entered a peninsula of land containing about six hundred acres under a deed purporting to convey the entire title to the whole tract, which was recorded in the registry of deeds, and for a period of more than twenty years made use of the various parts of the peninsula, respectively arable land, marsh and woodland, for such purposes as usually accompany exclusive ownership of like property, a title by adverse possession was held to have been established.</p>

<p>Negligence, Of one controlling real estate. Nuisance. Practice, Civil, Exceptions. Pleading, Civil, Declaration. Joint Tortfeasors.</p> <p>One, who places and maintains a stucco ornament negligently constructed and of improper materials on the front of a building belonging to him so that it projects over a public sidewalk and constitutes a continuing nuisance dangerous to persons using the way, does not escape liability for injuries caused by pieces of the stucco breaking off and falling on persons passing below by letting the building to another and taking no precaution to guard against the danger or to provide that the tenant should do so.</p> <p>Where the owner and the tenant of a building were sued jointly for personal injuries caused by negligence in the construction and maintenance of the building, and at the trial of the action the jury, on evidence amply warranting such findings, returned a verdict for the defendant tenant and for the plaintiff against the defendant owner, an exception of the owner to a refusal of the presiding judge to rule that the plaintiff could not recover on the allegations of joint liability in the declaration must be overruled; because, even if the ruling should have been given, its refusal gave the defendant owner no ground for complaint, as by the verdict of the jury the defendant tenant was out of the case and there was nothing to prevent the entering of judgment for the plaintiff against the defendant owner, which would operate as a discontinuance against the defendant tenant and effect his discharge from liability.</p>

Bill in equity, filed in the Supreme Judicial Court on September 13,1915, by Robert H. Gardiner of Gardiner in the State of Maine, as the trustee under a declaration of trust of the Perry Real Estate Trust, against Birney C. Parsons, as assignee for the benefit of creditors of the Lewis F. Perry and Whitney Company, a corporation, and the Lewis F. Perry and Whitney Company, setting forth the facts that are stated in the opinion and praying the ascertainment and enforcement…

<p>Negligence, Where act of third person intervenes, Dangerous substance, Contributory negligence. Proximate Cause. Practice, Civil, Judge’s charge, Province of jury.</p> <p>In an action for personal injuries due to the negligence of the defendant’s servant in placing a dangerous substance where it was likely to cause injury, it is no defence that the injuries also were due to the subsequent negligence of a third person.</p> <p>One, who deposits a dangerous substance in a place where as a natural consequence injury ensues, is in no way excused from liability for the consequence of his wrongful act by the fact that the place of deposit was the land of a third person and not in his control.</p> <p>An employee, who is injured by reason of an explosion of a dangerous substance negligently placed on the land of his employer by another person, in an action against such person- for his injuries is not debarred from recovery by the fact that negligence on the part of his employer contributed to his injury.</p> <p>In an action of tort for personal injuries, where the charge of the presiding judge contained a correct statement of the law applicable to the case and was deficient only, if at all, in not undertaking to define by illustration the circumstances under which an act of negligence is the cause of an injury, but where that objection to the charge was not brought to the attention of the judge at-the trial, the objection is not open to the excepting party upon an exception to the portion of the charge in question on the ground that it does not state the law correctly. In the action of tort mentioned above it was said that whether one thing was the cause of another is a question of fact on which little help can be given to a jury except by way of illustration.</p>

<p>Telegraph Company. Ticker Service. Public Service Commission. Carrier, Of messages, Discrimination. Practice, Civil, Parties. Interstate Commerce. Constitutional Law.</p> <p>Under St. 1913, c. 784, § 2 c, the public service commission have power, by an order passed by them to that effect, to compel a telegraph company doing business in this Commonwealth to furnish to a person properly applying for them quotations of the sales upon the New York Stock Exchange by means of a ticker service on the same terms that such quotations are furnished by it to other persons, although in the contract between the New York Stock Exchange and the telegraph company under which the quotations are obtained by that company it is provided that such quotations shall not be furnished to any subscriber unless “the subscriber shall have been approved by the exchange” and the person in question was not approved by the exchange as a subscriber.</p> <p>In a proceeding under St. 1913, c. 784, § 28, by the public service .commissioners to enforce the order of the commission above described it is not necessary that the New York Stock Exchange or its officers and members should be made parties, as, whatever their interest in the subject matter may be, the proceeding deals-only with the rights acquired by the telegraph company in the quotations.</p> <p>In the decision stated above it was pointed out that the contract between the New York Stock Exchange and the telegraph company which was in force when the order of the public service commission was issued was made when St. 1913, c. 784, was in effect.</p> <p>Although the sending of stock quotations by the New York Stock Exchange to a telegraph company at its place of business in Boston is interstate commerce, yet the furnishing of such quotations by the telegraph company to its customers or patrons in its ticker service at their Boston offices is domestic business and is analogous to selling at retail in the local market a commodity purchased at wholesale outside the Commonwealth. Consequently the federal interstate commerce act does not apply to such ticker service and it is subject to the law of this Commonwealth.</p>

<p>Jurisdiction, Over foreign corporation. Corporation, Foreign: place of business, service upon. Equity Pleading and Practice, Service on foreign corporation, Plea to jurisdiction, Motion to reopen hearing on plea, Waiver of plea. Constitutional Law. Interstate Commerce. Waiver.</p> <p>Where a resident of this Commonwealth is the New England passenger agent of a railroad corporation organized under the laws of another State and is advertised as such agent by the corporation, is the person to whom others in the neighborhood of his place of business look for information as to travel and accommodations to be had on the corporation’s railroad system, uses the corporation’s frank for that business, receives money for transportation orders on the corporation’s line and accounts for such money to the corporation, sells tickets for passenger transportation which are accepted as good without further countersigning or stamping, is striving constantly to direct travel from all of New England over the corporation’s railroad system and takes up complaints in regard to service with executive officers of the corporation, a finding is warranted that the railroad corporation is engaged in business in as well as soliciting business in this Commonwealth, and under St. 1913, c. 257, such corporation may be served with process in the manner provided for service in actions against domestic corporations.</p> <p>St. 1913, c. 257, providing that a foreign corporation “which is engaged in or soliciting business in this Commonwealth ” may be served with process in the manner provided for service against domestic corporations is not made unconstitutional because it applies to corporations whose business transacted here is wholly interstate in its nature.</p> <p>The validity of the provision of St. 1913, c. 257, making the effect of soliciting business by a foreign corporation in this Commonwealth the same as that of transacting business here, was not involved in the present case, where the foreign corporation rightly was found to be doing business in this Commonwealth.</p> <p>After the close of a hearing in a suit in equity upon a plea to the jurisdiction of the court, a motion by the plaintiff to be permitted to introduce further evidence alleged to have been discovered since the hearing bearing on the issues raised by the plea was denied by the trial judge, and the plaintiff appealed from the order denying the motion. Held, that the motion was addressed to the discretion of the trial judge, and that his decision could not be revised.</p> <p>A foreign corporation which in a suit in equity has filed a plea to the jurisdiction of the court, denying that it has been served with process lawfully, does not waive this plea by taking part in an argument upon the question of whether a preliminary injunction ought to issue, where in doing so it expressly asserts its insistence on its rights under the plea, and by permission of the trial judge merely argues the question of the injunction in case the decision of the court should be against it on the question of jurisdiction.</p> <p>In overruling in the present suit in equity a plea of a defendant foreign corporation to the jurisdiction of the court based on the alleged want of lawful service, the question, whether the court had jurisdiction of the'subject matter of the suit, was not presented nor considered.</p>

<p>Witness, Contradiction. Agency, Scope of authority. Evidence, Competency.</p> <p>In an action of contract against a corporation, a witness, who had been employed by the defendant but no longer was in its employ, testified for the plaintiff before an auditor. After the hearing before the auditor this witness was taken back into the defendant’s employ in a city in another State, and his deposition was taken in that State, no cross-interrogatories being filed by the plaintiff. At the trial in court, after this deposition had been read by the defendant, the plaintiff was permitted, against the defendant’s objection, to put in evidence certain portions of the witness’s testimony before the auditor for the purpose of contradicting his testimony in the deposition. Held, that the fact that the witness had testified for the plaintiff before the auditor did not make him the plaintiff’s witness at the trial before the jury, and that the portions of his testimony before the auditor properly were admitted in contradiction of his statements as a deponent.</p> <p>In an action of contract to recover commissions and also damages for the breach of an alleged contract to employ the plaintiff as agent for the sale of the defendant’s product and the taking of contracts for doing work with such product, where the plaintiff has testified that a certain agent of the defendant solicited him in behalf of the defendant to take such an agency and promised him the alleged commissions, and where this agent has testified as a witness for the defendant that the defendant’s secretary simply had directed him to look up an agent for the sale of the product, but that he was not authorized to make any agreement to pay commissions on contracts, it is error for the presiding judge to exclude the testimony of the defendant’s secretary offered by the defendant to show that the authority of the defendant’s agent to engage an agent “was limited to an agency for selling the product.”</p>

<p>Marriage and Divorce, Annulment of marriage.</p> <p>Where a young man eighteen years and nine months of age married a woman twenty-one years of age after he frequently had had sexual intercourse with her during a period of about five months, after he had known for at least three months that she was pregnant and after his parents had told him not to marry her “but to wait and that time would tell whether or-not he was the father of”' her child, he cannot maintain a libel under R. L. c. 151, § 11, to annul the marriage on proving that his wife was pregnant by another man two months before he met her for the first time and that she induced him to believe that he was the only man who ever had had intercourse with her and that he was responsible for her condition; because it is plain that after the warning from his parents he was content to rely without investigation on the representations of the woman that he married.</p>

<p>Tort by Edward Ceresola, and afterwards by the administratrix of his estate, to recover damages for personal injuries sustained by him on May 1, 1912, when he was in the employ of the defendant, with a first count alleging a defect in the ways, works or machinery of the defendant, and a second count alleging that the plaintiff’s intestate in the exercise of due care was using a ladder in the service of and in obedience to an order of the defendant and was thrown to the ground and severely injured owing to a rung of the ladder pulling out or breaking or parting from the stringer. Writ dated August 15, 1912.</p> <p>In the Superior Court the case was tried before King, J.</p> <p>The plaintiff offered evidence tending to prove that her intestate was a tallyman in the employ of the defendant, that about ten o’clock on the morning of the day of the accident he went on an elevator to a landing about thirty feet from the ground and tallied lumber which was being passed out to load on a team; that at twelve o’clock he ceased work when the place closed down for the noon hour; that on returning after his dinner he was sent by the man in charge of the place and work up a ladder to the place where he had been working during the forenoon, the elevator not being available at this time; that this ladder stood in an upright and almost perpendicular position, and that when the deceased, Ceresola, had gone up about thirty or thirty-five feet one of the rungs of the ladder came out or broke at one end or his foot slipped; that he reached to grasp the side of the ladder, missed it and fell to the ground; that he was picked up in a semi-conscious condition and removed in an ambulance to the Boston City Hospital where he remained for seven days; that he had not been on this ladder before for nearly a month; that the sides of the ladder were two and one half inch spruce with holes bored clear through for the rungs; that the rungs were all the same size, without any shoulders or anything to prevent them from running through during a dry spell, the ladder being exposed to the sun; that it was old and dilapidated; that on several previous occasions the rungs had been loose and that the man in charge of the work knew it.</p> <p>The deceased, on leaving the hospital seven days after the injury, roomed on Falmouth Street opposite his sister and took his meals with her for a few weeks after the accident. About a month after the accident he met his brother on the street and complained that his back bothered him and that he was unable to do any work. One Pearson, called by the plaintiff, said that he had known the deceased for several years and was a fellow employee at the time of the accident, that he was the first to reach the deceased when he fell from the ladder, that he met the deceased about Labor Day of 1912 and that the deceased told him that he was unable to do any work and had not done any since the time of the accident. The administratrix testified that the deceased called on her at Christmas time and complained that his back was not yet well. The plaintiff offered no evidence of the condition of the deceased after Christmas, but stated before the jury that she did not claim any damages for the death of the deceased nor claim that the accident had anything to do with his death.</p> <p>The defendant introduced the record of the Boston City Hospital, which showed that the plaintiff arrived there in an ambulance in less than fifteen minutes from the time of the accident and that he remained there for seven days. The record was silent as to whether or not the plaintiff had taken any liquor at the time he arrived at the,hospital, but contained the statement that his foot slipped and he fell thirty-five feet.</p> <p>The defendant called one Flanagan for whom the plaintiff’s intestate worked as a cook in October, 1912, for a week or two at a time. Flanagan said that the deceased did not complain about the injury nor the accident.</p> <p>The defendant’s evidence tended to show that the plaintiff’s intestate was under the influence of liquor at half past nine o’clock or ten o’clock on the morning of the day of the accident. The plaintiff’s evidence tended to show that he was sober at that time and also at the time he was hurt.</p> <p>The defendant offered to show, by the testimony of a doctor in attendance at the Boston City Hospital, that on March 17, 1913, which was two days before the death of the intestate, the intestate said to the doctor, in answer to,the question as to what were his habits, that he drank daily twelve whiskeys and twelve beers and used one to two boxes of cigarettes a day.</p> <p>This evidence was offered both on the question of liability and on the question of damages. The judge ruled as follows: “On the question of liability I sustain the objection and refer particularly to the case of Hamsy v. Mudarri, 195 Mass. 418, and I save the rights of the defendant.”</p> <p>On March 17,1913, the deceased was taken to the Boston City Hospital “suffering from yellow-jaundice,” and died on March 19, 1913.</p> <p>The jury returned a verdict for the plaintiff in the sum of-$200; and the defendant alleged exceptions.</p>

<p>Contract, Construction. Water Company.</p> <p>A contract made by a water company to furnish water for use on a certain property at the same rate charged to the former owner of the property, which was a fixed sum for the year, and “that the rate would continue the same for the present,” means that the rate charged the former owner will be continued until changed by the company, and, after a notification from the company that the fixed rate thereafter will be treated as a minimum charge and that all water used in excess of a certain number of gallons will be charged for at meter rates, the water taker must pay according to the changed rate, and, if he refuses to do so, the company, under a right reserved by the regulations printed on its bills, may shut off the water for non-payment of water rates.</p>

<p>Negligence, In a retail store, Contributory.</p> <p>If the proprietor of a retail drug store maintaining a soda counter has placed an upright weighing machine so near the entrance of the store that its low base or platform is in the path of customers passing in and out and a woman turning from the soda counter to pass out of the store stumbles over the base of the weighing machine and is injured, in an action against the proprietor for her injuries thus caused it can be found that the defendant was negligent.</p> <p>In an action by a woman against the proprietor of a retail drug store for personal injuries caused by the plaintiff stumbling over the base of a weighing machine when she had turned from a soda counter to pass out of the store, under St. 1914, c. 553, it is a question for the jury, with the burden of proof on the defendant, whether the presumption of the plaintiff’s due care has been overcome by all the evidence.</p>

<p>Witness, Cross-examination. Evidence, Conflicting and correcting statements.</p> <p>Where, in an action against a corporation operating a street railway for personal injuries sustained when the plaintiff was a passenger on a car of the defendant, the plaintiff on her direct examination describes the maimer in which she was injured, and in her cross-examination there are read to/the witness her own answers to interrogatories, which give a different account of the way the accident happened, and she then testifies that her answers to the interrogatories give a correct and absolutely true description of the happening of the accident, notwithstanding anything that she has testified to on the witness stand, this is not to be treated as a mere instance of conflicting or inconsistent statements made upon cross-examination, and the plaintiff is to be bound by the statement last given as the truth.</p> <p>Where an electric street railway car suddenly moves backward for a considerable distance just as passengers have entered it and then without a substantial interval of time moves forward, and where both motions are of such violence as to throw a passenger each time against some part of the car, this is so contrary to common experience in the ordinary operation of street railway cars as to warrant an inference of negligence in the operation of the car.</p>

<p>Fraud, As against creditors. Equity Pleading and Practice, Decree.</p> <p>A deed was made by a married woman to her sister conveying certain real estatey which practically was all the property owned by the grantor. At the time the deed was made the grantor owed to a certain creditor about $1,500 for services rendered. The consideration for the deed was that the grantor and her husband should be supported as long as they or either of them lived by the grantee. There was no actual intent to defraud creditors, but the grantee as well as the grantor knew that the conveyance of the real estate would make the grantor insolvent and incapable of paying her debt to the creditor mentioned above. The grantor died, and the creditor mentioned above procured his own appointment as administrator de bonis non of the estate of the grantor and as such administrator brought a suit in equity against the grantee to obtain the satisfaction of his individual claim out of the real estate conveyed by the intestate to the defendant. Held, that, although the agreement of the defendant to support the grantor and her husband was a valuable consideration and the deed! was good between the parties, the conveyance was fraudulent in law as against creditors and might be avoided by them.</p> <p>Accordingly in the case described above it was ordered that, unless the defendant within a time limited should pay the individual claim of the plaintiff as a creditor and should pay also the expenses of administration and the costs of suit incurred by the plaintiff, the real estate should be sold under a license previously granted byithe Probate Court and the proceeds applied to the satisfaction of the plaintiff’s claim, any surplus being paid to the defendant.</p> <p>In the case described above it appeared that the defendant, after the conveyance of the real estate to her, received from the net income produced by it a sum of money sufficient to repay her for all expenses' incurred in the support of the grantor and her husband, so that it was not necessary to consider whether, if this had been otherwise, she would have been entitled to be reimbursed for such expenses out of the proceeds from the sale of the real estate.</p>

<p>Negligence, Dangerous substance, Res ipso loquitur. Lime.</p> <p>A canner who buys lime from a manufacturer of that substance, packs it in cans and sells the cans of lime to retail dealers, is not liable for an injury caused by the explosion of one of the cans of lime, when it was being opened by a customer who had purchased it from a retail dealer, in the absence of evidence that lime is a dangerous substance or that the canner of the lime was negligent as to the manner of packing or sealing it in the can, and also in the absence of evidence that, if there was anything defective or dangerous in the composition of the lime, the canner had any reason to know of it.</p> <p>The fact that a person was injured by the explosion of a can of lime when it was being opened is not in itself evidence that the canner who packed the lime in the can and put it on the market did so negligently.</p>

<p>Practice, Civil, Exceptions, New trial. Words, "I am content.”</p> <p>At the close of the evidence at the trial of an action of tort the defendant’s counsel made thirty-seven requests for instructions. The presiding judge stated that he should not read any of these requests to the jury, but should deliver his charge and then the defendant’s counsel, if he desired to do so, might call the judge’s attention to any instruction requested which he thought had not been given in substance. At the close of the charge the defendant’s counsel again called attention to his requests and tried to take an exception to the refusal of all of them that were not given in the charge. The judge refused to allow an exception in that form, saying that he was entitled to have his attention called to anything requested as an instruction which the defendant thought that he had not given, and told the counsel to take his "own time about this.” Thereupon the jury were seated, and the counsel went through his requests for instructions and, after doing so, said, "I am content.” The jury returned a verdict for the plaintiff, and the judge allowed a bill of exceptions alleged by the defendant which stated the facts narrated above. Held, that by the words “I am content” the defendant’s counsel stated to the judge his satisfaction with the manner in which his requests had been dealt with, that therefore no exception was taken and the bill of exceptions should have been disallowed, and that the judge by his formal allowance of the bill of exceptions could not bring into existence, to affect the rights of the plaintiff, exceptions that never had been taken.</p> <p>A number of months after a verdict had been returned for the plaintiff in an action of tort, the defendant filed a motion for a new trial on the ground of newly discovered evidence. From the affidavits in support of the motion it appeared that the testimony alleged to be new was that of two persons who had not been called as witnesses at the trial, but that the defendant and his witnesses had testified at the trial to what the affiants had told them, which was the same in substance as the contents of the affidavits. The trial judge denied the motion. Held, that the evidence was not newly discovered, and that there was nothing to show an abuse of discretion on the part of the judge in denying the motion for a new trial.</p>

<p>Negligence, In railroad station, Railroad.</p> <p>In an action by a woman against a railroad corporation for personal injuries sustained, when St. 1914, c. 553, was in force, in a station of the defendant by falling over a portable step when the plaintiff was walking toward the train for which she had purchased a ticket, where the plaintiff has testified that “as she walked down the platform she was looking straight ahead and that at no time did she remember looking down to see where she was stepping, nor did she at any time look to see where she was putting her feet as she walked along there,” this does not show as matter of law that the plaintiff was negligent, and on this and other evidence the question whether under all the circumstances she was in the exercise of ordinary care properly may be left to the jury.</p> <p>In an action against a railroad corporation by a passenger, who, when walking along the platform in a terminal railroad station to take a train for which he had purchased a ticket, was injured by falling over a portable step, of the kind usually placed on the station platform for the use of persons entering or leaving Pullman cars, that had been left unguarded and had been allowed to become displaced so as to be for some moments in the path of passengers on the way to their trains, it is a question for the jury whether the defendant was negligent in allowing the step to get out of place.</p> <p>If, in such an action, it appears that the care of the use of such steps on the station platform was left by the defendant to the servants of the Pullman Company, the defendant is responsible for their negligence which results in harm to its passengers.</p>

<p>Two actions of tort, the first for personal injuries to the plaintiff and damage to the plaintiff’s horse and wagon, with a second count for consequential damages by reason of injuries to the plaintiff’s wife, all sustained on January 22, 1913, when the plaintiff’s wagon, in which he was driving with his wife on Main Street in the town of Wayland, was run into from behind by a motor truck operated negligently by a servant of the defendant, and the second action by the wife of the plaintiff in the first action for personal injuries sustained in the same collision. Writs dated January 23, 1913.</p> <p>In the Superior Court the cases were tried together before Dana, J. At the close of the evidence, the substance of which is described in the opinion, the defendant asked the judge to rule in each case that on all the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling and submitted the cases to the jury. The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $1,492, which afterwards was reduced to $750, and in the second case in the sum of $2,500. The defendant alleged exceptions.</p>

<p>Land Court. Practice, Civil, Report by judge.</p> <p>Under R. L. c. 128, § 13, as amended by St. 1910, e. 560, § 1, a judge of the Land Court has no power to report questions of law for determination by this court until the case reported is ripe for the entry of a final decree in the Land Court. Following the rule in Welsh, petitioner, 175 Mass. 68.</p>

<p>Probate Court, Procedure on appeal. Equity Pleading and Practice, Master’s report. Marriage and Divorce. Judgment. Jurisdiction, Submitted to by-collusion. Wrongdoer without Remedy.</p> <p>Under It. L. c. 162, § 15, which provides that probate appeals “shall be entered on the same docket with cases in equity, and shall have the same rights as to hearing and determination as such cases,” a reference of a probate appeal to an auditor “to hear the parties and their evidence, to find the facts, and report the same to the court” will be treated as a reference to a master and the auditor’s report will be treated as a master’s report.</p> <p>"Where a woman by collusion with her husband appeared in a suit for divorce brought by him against her in another State in which neither of them had a dnmip.il and allowed a decree for divorce to be obtained against her there for a cause recognized as a cause for divorce in this Commonwealth and which did not occur in this Commonwealth, and accepted a payment of money in full for all payments of alimony, and thereupon her former husband married another woman, and where thereafter the former wife brought a suit for divorce in which the first decree collusively obtained was declared to be valid and binding, and thereupon she married another man, she will not be allowed, upon the death of her former husband, from whom she collusively obtained the divorce, to set up such collusion and the want of jurisdiction of the court that granted the divorce and to claim the rights of a widow in her former husband’s estate.</p>

<p>Tort by a minor by his next friend for personal injuries sustained by the plaintiff on February 5, 1912, when he was coasting down Osborne Street in Fall River, “ said street having been duly licensed for coasting by the duly constituted authorities of the city of Fall River,” and was injured by a horse of the defendant, ridden by the defendant’s minor son about fourteen years of age, which jumped over the sled and kicked the plaintiff. The declaration contained two counts, with a third which was waived, the first count alleging negligence of the defendant’s son in the management of the horse and the second count alleging negligence of the defendant in entrusting the horse to his son who was unfit and unable to manage it. Writ dated May 23, 1912.</p> <p>In the Superior Court the case was tried before McLaughlin, J. There was evidence that at the time of the accident the plaintiff was in the exercise of due care and that the defendant’s son was negligent, and the only question raised by the exceptions was whether there was evidence on which the jury were warranted in finding that the rider of the horse, the defendant’s son, “was a servant of the defendant acting in the scope of his employment at the time of the accident.” The evidence on this issue is described in the opinion.</p> <p>At the close of the plaintiff’s evidence the defendant asked the judge to rule that on the whole evidence the plaintiff could not recover. The judge said he would make no ruling until the defendant rested; whereupon the defendant rested, and asked the judge to rule as follows:</p> <p>“1. That upon the whole evidence the plaintiff cannot recover. ”</p> <p>“4. That there is ño affirmative evidence that at the time of the alleged accident the rider was in the employ of the defendant or was acting within the scope of his employment, in the absence of which the plaintiff cannot recover.”</p> <p>The judge refused to make the rulings requested, and "submitted the case to the jury under full and appropriate instructions, to which no exceptions were taken.” The jury returned a verdict for the plaintiff in the sum of $1,243.83; and the defendant alleged exceptions to the refusal to make the rulings requested by him.</p> <p>The case was submitted on briefs.</p>

Libel, filed in the Superior Court on October 18, 1913, under R. L. c. 151, § 11, to annul a marriage performed on October 16, 1913. In the Superior' Court the case was heard by Dana, J., who reported it for determination by this court. The report was as follows: The libellant was a widower, whose wife died some three and one half years before, leaving two children whose ages were seven and five respectively.

<p>Equity Jurisdiction, To compel transfer of shares to pledgee. Corporation, Foreign, Transfer of shares. Pledge. Uniform Stock Transfer Act.</p> <p>Where the owner of shares in a foreign corporation deposits the certificate for the shares with a stockbroker as additional margin to secure his account, signing his name on the back of the certificate below certain extracts from the articles of association of the corporation but signing no power of attorney and failing to comply with the requirements of the foreign law in regard to transfers of shares, expressing at the time of the deposit a willingness to sign a proper transfer when requested by the stockbroker to do so, and where the stockbroker pledges this certificate of shares to a trust company to secure a loan to him, and thereafter the stockbroker becomes bankrupt and the trust company then demands from the.original pledgor a transfer of the shares to it, if at that time the stock transactions have come to an end and the pledgor owes nothing to the stockbroker on account of margin and refuses to make the transfer and demands from the trust company the surrender of the certificate, a bill in equity by the trust company to compel a transfer of the shares to it will be dismissed, and upon a cross bill by the original pledgor the trust company will be ordered to deliver the certificate to him.</p> <p>In the case above described it was said that, although the provision of the uniform stock transfer act contained in St. 1910, c. 171, § 9, relating to the transfer of certificates of shares does not apply to a transfer of shares in such a foreign corporation, yet the general rule of equity applicable to the case is stated correctly in § 9.</p>

<p>Agency, Existence of relation.</p> <p>Where the owner of a horse and wagon lets them with a driver to carry merchandise from place to place as directed by a servant of the hirer who accompanies the driver for that sole purpose, the driver as matter of law is the servant of the owner of the horse and wagon and not the servant of the hirer.</p>

<p>Pledge. Mortgage, Of personal property. Trust, Creation.</p> <p>"Where a bank advanced to an importer of hides the money necessary to pay for a certain shipment of hides and, before advancing the money, received from the importer his promissory note for the sum to be advanced and an instrument in writing called a “trust receipt,” which gave a detailed description of the hides then imported and declared that the importer held them in trust for the bank, retaining liberty to manufacture or sell them on account of the bank, and that the bank at any time might take possession of them or of the product manufactured from them or of the proceeds of such of them as should have been sold, it was held, that this instrument did not operate as a pledge of the hides, because they never were delivered to the bank, nor did it constitute a mortgage of the hides as against creditors of the importer, because it was not recorded, and that the instrument created no trust in products manufactured from the hides and money received from the sale of a part of them which had been mingled with other products and other money so that they were not susceptible of separation and identification.</p>

<p>Estoppel. Negligence, Causing death. Joint Tortfeasors. Judgment. Execution,- Satisfaction of. Damages, Against joint tortfeasors.</p> <p>Where an action against a railroad corporation under St. 1907, c. 392, for negligently causing the death of an employee of a mill corporation was tried together with an action against the mill corporation under St. 1909, c. 514, § 128, for causing the same death, under both of which statutes the damages are to be assessed with reference to the degree of culpability of the defendant, there was evidence that the death in question was caused by the concurring negligence of both corporations and the presiding judge instructed the jury that it was important for them to know that in case of a judgment against each defendant there could be but one satisfaction. The plaintiff did not object to this instruction and verdicts were returned against both defendants, on each of which judgment was entered and execution issued. Held, that, if before the trial the plaintiff was entitled to have the action against each defendant for negligently causing the death of his intestate decided upon its own merits without regard to the fact that another action was pending against another defendant based upon the same facts, on which no opinion was expressed, the plaintiff, having acquiesced in the submission of the cases to the jury under the instruction quoted above, was estopped from collecting more than one judgment.</p> <p>An estoppel may be established by proof of silence when there was a duty to speak.</p>

<p>Contract on a contract in writing by which the defendants agreed to guarantee the punctual performance by the Francis Wilson, Inc., a corporation, of all the covenants and agreements of that corporation as the lessee under a lease from the plaintiff dated April 14, 1913, seeking to recover $583.33 with interest thereon from November 30, 1914, as the amount of rent due under that lease for the month of November, 1914. Writ in the Municipal Court of the City of Boston dated December 4, 1914.</p> <p>In the Municipal Court the trial judge made the findings that are stated in the opinion and the footnotes and made a general finding for the plaintiff in the sum claimed.</p> <p>At the request of the defendants the judge reported the case to the Appellate Division, who made an order that the report be dismissed. The,defendants appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 6, 1915, by the members of the board of survey of the town of Arlington, who under St. 1904, c. 3, § 5, succeeded to the duties of the board of selectmen, among other things, in matters affecting street railways.</p> <p>The defendant demurred, and the case was reserved by Braley, J., for determination by this court.</p> <p>St. 1913, c. 784, §§ 17, 19-22,29, referred to in the opinion, are as follows:</p> <p>“Section 17. All charges made, demanded or received by any common carrier subject to the supervision of the commission for any service rendered or performed, or to be rendered or performed by it or in connection therewith in the conduct of its common carrier business, or made, demanded or received by any two or more •common carriers joining in rendering or performing any service shall be just and reasonable, and every such common carrier and any two or more such common carriers joining in rendering or performing any service shall be entitled to make, demand and receive just and reasonable charges for any such service, and every unjust or unreasonable charge is hereby prohibited and declared unlawful; but charges heretofore established and set out in any schedule filed as hereinafter provided shall be deemed prima facie lawful until changed or modified by the commission under the powers conferred upon the commission by the provisions of this act, but this provision shall not give to such rates any greater weight as evidence of the reasonableness of other rates than they would otherwise have.”</p> <p>“Section 19. Subject to the powers of the commission to regulate and prescribe rates and charges, a common carrier may make commodity, transit, or other classes of rates. The furnishing by any common carrier of any service at the rates and upon the terms and conditions provided for in any existing contract executed prior to the first day of July, nineteen hundred and thirteen, shall not constitute a discrimination unless the commission shall so determine. The commission shall not be prevented from taking such action as it may deem proper by any commitment or agreement of a common carrier entered into by reason of any requirement or recommendation of any board of public officers acting under delegated authority from the General Court prior to the enactment hereof. Unless the commission shall determine otherwise common carriers shall be permitted, whether required to do so by law or not, to issue mileage, workingmen’s, excursion, school, or commutation passenger tickets, or reduced rate tickets for the transportation of children under twelve years of age, or of pupils attending schools, or joint interchangeable mileage tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of five hundred miles or more. All season tickets, before issuance, shall be subject to the approval of the commission as to the form thereof and the conditions named therein.</p> <p>"Section 20. Every common carrier shall file with the commission and shall plainly print and keep open to public inspection, schedules showing all rates, joint rates, fares, telephone rentals, tolls, classifications and charges for any service, of every kind rendered or furnished, or to be rendered or furnished, by it within the Commonwealth, and all conditions and limitations, rules and regulations and forms of contracts or agreements in any manner affecting the same, in such places, within such time, and in such form, and with such detail as the commission may order. In the case of common carriers the forms prescribed for such schedules and the requirements relative to the filing and publication thereof shall conform, as nearly as may be, to the forms prescribed by and the similar requirements of the interstate commerce commission. No common carriers shall, except as otherwise provided in this act, charge, demand, exact, receive or collect a different rate, joint rate, fare, telephone rental, toll or charge for any service rendered or furnished by it, or to be rendered or furnished, from that applicable to such service as specified in its schedule filed with the commission and in effect at the time. Nor shall any common carrier refund, or remit directly or indirectly, any rate, joint rate, fare, telephone rental, toll or charge so specified, or any part thereof, nor extend to any person or corporation any rule, regulation, privilege or facility except such as are specified in the said schedule and regularly and uniformly extended to all persons and corporations under like circumstances for the like, or substantially similar, service. Unless the commission otherwise orders, no change shall be made in any rate, joint rate, fare, telephone rental, toll, classification or charge, or in any rule or regulation or form of contract or agreement in any manner affecting the same as shown upon the schedules filed in accordance with this act, except after thirty days’ notice to the commission, which notice shall plainly state the changes proposed to be made in the schedule then in force and the time when such changes shall take effect, and such notice to the public as the commission shall order, to be given prior to the time, fixed in such notice to the commission, for the changes to take effect. The commission for good cause shown may allow changes without requiring the thirty days’ notice, under such conditions as it may prescribe, and may suspend the taking effect of changes under the circumstances and in the manner hereinafter provided. At the time when any changes take effect, they shall be plainly indicated upon existing schedules, or new schedules shall be printed and filed, as the commission may order. Nothing in this act shall be construed to prevent any telegraph or telephone corporation from continuing to furnish the use of its lines, equipment or service under any contract or contracts in force at the date when this act takes effect, or upon the taking effect of any schedule or schedules of rates subsequently filed with the commission, as hereinafter provided, at the rate or rates fixed in such contract or contracts: provided, however, that when any such contract or contracts are or become terminable by notice, the commission shall have power in its discretion to direct by order that such contract or contracts shall be terminated by the telegraph or telephone corporation party thereto, and thereupon such contract or contracts shall be terminated by such telegraph or telephone corporation as and when directed by such order.</p> <p>“Section 21. Whenever the commission receives notice of any change or changes proposed to be made in any schedule filed under the provisions of this act, it shall have power, either upon complaint or upon its own motion, and after notice, to hold a public hearing and make investigation as to the propriety of such proposed change or changes. Pending any such investigation and the decision thereon, the commission shall have power, by any order served upon the common carrier affected, to suspend the taking effect of such change or changes, but not for a longer period than six months beyond the time when such change or changes would otherwise take effect. After such hearing and investigation, the commission may make such order in reference to any new rate, joint rate, fare, telephone rental, toll, classification, charge, rule, regulation or form of contract or agreement proposed, as would be proper in a proceeding initiated after the same has taken effect. At any such hearing involving any proposed increase in any rate, joint rate, fare, telephone rental, toll or charge, the burden of proof to show that such increase is necessary in order to obtain a reasonable compensation for the service rendered shall be upon the common carrier. If at a hearing involving any proposed decrease in any rate, joint rate, fare, telephone rental, toll or charge demanded by any common carrier, it shall appear to the commission that the said rate, joint rate, fare, telephone rental, toll or charge is insuffident to yield reasonable compensation for the service rendered, the commission shall have power to determine what will be the just and reasonable rate or rates, fare or fares, telephone rental or rentals, toll or tolls, charge or charges, to be thereafter observed in such case as the minimum to be charged and to make an order that the common carrier complained of shall not thereafter demand, charge or collect any rate, fare, telephone rental, toll, or charge lower than the minimum so prescribed without first obtaining the consent of the commission, not to be given without a public hearing.</p> <p>“Section 22. Whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint, that the rates, fares or charges of any of them demanded, exacted, charged or collected by any common carrier now or hereafter subject to its jurisdiction, for any services to be performed within the Commonwealth, or the regulations or practices of such common carrier affecting such rates, are unjust, unreasonable, unjustly discriminatory or unduly preferential or in any wise in violation of any provision of law, or that the rates, fares or charges or any of them chargeable by any such common carrier are insufficient to yield reasonable compensation for the service rendered and are unjust and unreasonable, the commission shall determine the just and reasonable rates, fares and charges to be charged for the service to be performed, and shall fix the same by order to be served upon every common carrier by whom such rates, fares and charges or any of them are thereafter to be observed. It shall be the duty of every such common carrier to observe and obey every requirement of every such order so served upon it, and to do everything necessary or proper in order to secure absolute compliance with and observance of every such order by all its officers, agents and employees. The commission may, after investigation, authorize a common carrier in special cases to charge less for longer than for shorter distances for the transportation of passengers or property, whenever in the opinion of the commission such authorization is consistent with the public interests, and the commission may from time to time modify or revoke such authorization.”</p> <p>“Section 29. This act shall be deemed and construed as a remedial act and in enlargement and extension of all previous acts and existing laws conferring upon or vesting in the commission any jurisdiction, powers or discretion with respect to any subject or matter treated in this act. Except as above provided all acts and parts of acts inconsistent with any provision of this act, and all acts and parts of acts which would in any way limit or prevent the exercise to the fullest extent of any of the jurisdiction, powers, authority or discretion delegated herein to the commission are hereby repealed: provided, that nothing herein contained shall be construed to repeal, directly or by implication, the provisions of chapter five hundred of the acts of the year eighteen hundred and ninety-seven, or to authorize the commission to make any order or take any action inconsistent with the provisions of said act or with any rights which have been acquired by any common carrier under any statute prior to the passage of this act.”</p> <p>. The case was submitted on briefs.</p>

<p>Negligence, In use of highway, In operation of automobile.</p> <p>At the trial of a suit by a woman sixty-one years of age against one who, while operating an automobile, ran into the plaintiff, there was evidence that the plaintiff was a little deaf, that she had been walking from her home to church on a misty, rainy evening in March on her left hand side of the street because the sidewalk was muddy, that she then had crossed the street diagonally to the right hand side, that she thought there was an automobile about fifty feet from her as she neared that curb, that, perceiving that the sidewalk on that side also was muddy, she continued walking in the street for five or six steps, when she was struck from behind by the automobile, that the automobile had strong headlights and that there was nothing to prevent the defendant from seeing the plaintiff. Held, that under the circumstances the plaintiff had a right to walk in the roadway and that the questions, whether the plaintiff was in the exercise of due care and whether the defendant was negligent, were for the jury.</p> <p>One travelling on foot in the evening on a public way may be found to have been in the exercise of due care when walking in the roadway because the sidewalk was muddy.</p>

<p>Trust, Charitable. Charity. Religious Society. Constitutional Law. Bromfieli Street Methodist Episcopal Church in Boston. Cy Pres. Equity Pleading and Practice, Cross bill, Bill of review. Equity Jurisdiction, Administration cy pres, For removal of trustees, For an accounting. Attorney General.</p> <p>By a deed delivered and recorded in 1806, certain land was conveyed to trustees “to have and to hold . . . unto them . . . and their successors in office for ever in trust that they shall erect and build or cause to be erected and built thereon a house or place of worship for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and discipline which from time to time may be agreed upon and adopted by the Ministers and preachers of the said Church at their general conferences in the United States of America and in future trust and confidence that they shall at all times forever hereafter permit such Ministers and preachers belonging to the said Chinch ... to preach and expound God’s Holy Word therein. ” Held, that a valid charitable trust was created by the deed, whereby the legal title to the land was vested in the trustees for the use and benefit “of the members of the Methodist Episcopal Church in the United States of America” who might choose to attend worship in the church erected and maintained on the land.</p> <p>The above described trust deed also provided that the land was held “in further trust and confidence that as often as any one or more of the Trustees herein-before mentioned shall die or cease to be a member or members of said Church according to the rules and discipline as aforesaid then and in such case it shall be the duty of the stationed Minister or preacher authorized as aforesaid who shah have the pastoral charge of the members of the said church to call a meeting of the remaining trustees as soon as conveniently may be and when so met the said Minister or preacher shall proceed to nominate one or more persons . . . and the said trustees so assembled shall proceed to elect and by a majority of votes shall appoint the person or persons so nominated to fill such vacancy or vacancies.” The deed contained no provision that the trustees might incorporate and convey the land to the incorporated body. The trustees incorporated, but made no conveyance as trustees to the corporation. As vacancies occurred among the trustees, no uniform method of filling the vacancies was followed, but it was apparent from the records of the society and various statutes enacted relating to the corporation that the trustees and the governing officials and boards representing the society considered that the trustees were in charge administering the property in accordance with the rules of government of the society. ' Held, that the legal title to the property remained in the trustees appointed by the deed and in their successors chosen in accordance with its provisions, that it was not affected by the statutes relating to the incorporation of the" trustees, and that the purposes for which the trust was to be administered were not changed by the conduct of the trustees and the beneficiaries.</p> <p>By a decree in a suit in equity, in which all parties were represented and which was brought to determine the rights and powers of the trustees under the above described deed, it was ordered that the incorporated trustees should convey the property to certain persons named as trustees in the decree who should hold it subject to the trusts set forth in the original deed, and such conveyance was made. Held, that after such decree the trustees named in the decree became the only persons authorized to execute the trust, over which the court as a court of equity had acquired and retained full jurisdiction.</p> <p>The Legislature has no power to terminate such a trust.</p> <p>If, under a special statute providing that the trustees appointed by the court as above described might sell the property, and that the net proceeds of sale should “be held and disposed of by said trustees for the use of the members of the Methodist Episcopal Church in the United States of America, according to the rules and discipline which from time to time may have been or may be agreed upon and adopted at the general conferences of said church in the United States of America, and the final application of said proceeds, in accordance with said rules and discipline, to be a full discharge of the said trustees, the trusts of said deed being thereupon terminated,” a sale is made, the trustees thereafter continue to hold the proceeds of the sale subject to the trusts specified in the original deed and do not hold them subject to the trusts described in the statute.</p> <p>Whether a cross bill, filed in a suit in equity after a decision and rescript of this court determining issues of law raised by the original bill, which sought an adjudication of the rights of the plaintiffs in the cross bill, as four of nine trustees under a deed of land, in the proceeds of a sale of the land made under a decree of court, can be treated as in the nature of a bill of review of the decree of sale, was not determined in this suit, this court holding that, there being no evidence of accident, fraud or mistake affecting the decree and some of such plaintiffs, acting under advice of counsel, having sought the decree, the equities were against the plaintiffs and no reasonable ground for vacation of the decree was shown.</p> <p>A bill in equity cannot be maintained by the minority of trustees, who under a trust created by a deed of land hold, for the use and benefit of the members of the Methodist Episcopal Church in the United States of America who had chosen to attend worship in a church formerly upon the land described in the deed, a fund which is the proceeds of a sale of the land, to remove the majority of the-board from office because they are unwilling to accede to the views and desires, of the plaintiffs and ninety per cent of the members of the society which formerlyworshipped in the chinch.</p> <p>In 1806 land was conveyed to trustees in trust to erect a church thereon for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and discipline which from time to time might be agreed upon and adopted by the governing bodies of that church. In 1913, owing to changed conditions in the locality where the land and church building were situated, a sale of the property was made under a decree of court having jurisdiction of the parties and the subject matter, which directed that the proceeds of the sale should be held by the same trustees, and this court in a suit in equity to determine the rights of the trustees as to that fund determined that it should be held subject to the same trusts as those described in the original trust deed. Upon a cross bill by a minority of the trustees, it also was held, that no occasion was shown for an application of the doctrine of cy pres.</p> <p>In the same case it was stated that, if the trustees neglect or refuse to execute the trust or abuse their powers, the Attorney General on his own initiative or at the relation of those who are beneficially interested can petition for their removal and also can have relief in equity for an accounting.</p> <p>And it also was stated that, if the trustees are uncertain as to their powers and duties or are unable to agree among themselves as to them, they can ask for instructions, making the Attorney General a party defendant.</p>

<p>Bill in equity, filed in the Superior Court on December 2,1914, and afterwards amended, against Alexander T. Walker and Marcia G. Greenough, alleging in substance that on September 1, 1902, the plaintiff and the defendant Greenough made a contract, a memorandum of which stated that she did “sell to” the plaintiff the real estate known as “Ashley Hall” or the “ Whittemore Property” and certain personal property therein, the plaintiff to pay to her $450 monthly and $6,500 in cash at the expiration of three years and to have a clear title, the plaintiff agreeing that, in case he failed to pay the $6,500, he would turn over to her the estate with all improvements he had made thereon; that he entered into possession of the property and with the knowledge of the defendant Greenough expended at least $5,000 in permanent improvements; that he made all the monthly payments required by the contract, amounting to $1,350; that, owing to an outstanding mortgage upon the premises, the time for the final payment of $6,500 was extended to April, 1908; that, with knowledge of the agreement and of the expenditure by the plaintiff in improvements upon the estate, the defendant Walker induced the defendant Greenough to convey the property to him in fraud of the plaintiff; that on May 7, 1907, the plaintiff was notified in writing by real estate brokers acting for the defendant Walker that the sale and conveyance had been made to the defendant Walker and was directed to quit the premises, and that shortly thereafter the defendant Walker dispossessed the plaintiff and took possession of the premises.</p> <p>Both defendants demurred to the bill on the ground that the plaintiff was barred from relief by the statute of limitations and by loches.</p> <p>The demurrer was sustained by McLaughlin, J., and a final decree was entered dismissing the bill. The plaintiff appealed.</p>

<p>Equity Jurisdiction, Retention of suit for damages only. Damages, In equity.</p> <p>A bill in equity by the purchaser of all of the shares of the capital stock of a corporation operating a theatre alleged that the sale was induced by fraud of the seller in various respects and sought a rescission of the sale, repayment of the purchase price, an injunction restraining negotiation of notes given for part of the price and their cancellation, and the assessment of damages. The defendant opposed rescission when the suit was brought. During ten months while the suit was pending, the plaintiff carried on the business of the corporation and made the enterprise successful. The judge who heard the suit found that the sale was induced by fraud of the defendant in a certain particular, and, at the request of the plaintiff, who elected to waive the prayers of the bill relating to rescission, retained the suit for the awarding of damages only and found for the plaintiff in the sum of $1,000. Held, that, the court having had jurisdiction in equity when the suit was brought, the judge in a proper exercise of his discretion might retain it solely for the assessment of damages, and that his discretion was not exercised improperly.</p>

Tort for personal injuries, received by the plaintiff on May 24, 1912, while in the employ of the defendant in the construction of a dam which the defendant was building at Mountain Mills, Vermont, during 1911 and 1912, and caused under the circumstances described in the opinion by the breaking or bursting of a pipe used to conduct steam to steam drills used in excavation work. Writ dated July 19,1912.

<p>Petition, filed in the Superior Court on January 3, 1913, for the partition of three parcels of land, one in Newton and the other two in Waltham, in which the petitioner claimed to own two individed third parts.</p> <p>The case was heard by Hitchcock, J., without a jury. The only issue that was tried before him was between the petitioner Ida F. Tolman and the respondent H. Adelaide Hovey as to which of them was entitled to the one third interest in the property in question that formerly was owned by Bradshaw S. Tolman.</p> <p>It became material to determine whether Bradshaw S. Tolman had waived his right of appeal from a decree made on July 6,1910, in a suit in equity brought against him and John A. Tolman by George E. Tolman of Everett, the petitioner’s predecessor in title, because on August 27, 1910, George E. Tolman seized on an execution under the attachment in that suit all the interest of Bradshaw S. Tolman in the three parcels of land in question. By deed of October 9, 1907, Bradshaw S. Tolman had conveyed to H. Adelaide Hovey all his right, title and interest in the three parcels of land, subject to the attachment in pursuance of which the execution was levied.</p> <p>There was put in evidence the following stipulation filed in that suit and signed by the attorneys for the plaintiff and by the attorney for the defendants: "It is hereby stipulated and agreed that on July 1, 1910, a final decree may be entered for the plaintiff against the defendant, Bradshaw S. Tolman, in the sum of Four Thousand Eight Hundred and Twenty-seven and 64/100 (4827.64) Dollars with interest thereon from May 1,1904, and with costs.”</p> <p>On July 6, 1910, the following decree was entered in that suit: "This cause came on to be heard at this sitting upon the application of the plaintiff for the entry of a final decree in accordance with the stipulation filed herein on or about December 21st, 1909, and thereupon, it appearing that the plaintiff and the defendant Bradshaw S. Tolman consented thereto, and the plaintiff and the defendant Bradshaw S. Tolman severally waiving their rights to appeal therefrom, it was and is ordered, adjudged and decreed that the defendant Bradshaw S. Tolman pay forthwith to the plaintiff the sum of Six Thousand, Four Hundred and Sixty-two 69/100 (6462.69) Dollars damages and that execution in the common form issue therefor.” This decree was assented to in writing by the attorneys for the plaintiff and by the attorney for Bradshaw S. Tolman.</p> <p>The petitioner asked the judge to make the following rulings:</p> <p>“2. The petitioner Ida F. Tolman is the owner in fee simple of two undivided third parts of the land described in the petition.”</p> <p>“4. The attachment of the interest of Bradshaw S. Tolman had not lapsed on August 27, 1910.</p> <p>"5. The decree of July 6, 1910, was not a ‘consent’ decree.</p> <p>“6. It was open to either party to appeal from the decree of July 6, 1910.</p> <p>“7. There is a right to appeal within the meaning of R. L. c. 167, § 56, even though the parties have made an agreement waiving the appeal.</p> <p>“8. R. L. c. 167, § 56, prescribed a period of sixty days in which property attached should be held.</p> <p>“9. There was not a waiver of appeal within the provisions of R. L. c. 159, § 34.”</p> <p>The judge refused to make any of these rulings, and made the following rulings:</p> <p>"1. The attachment on December 16,1905, of all theright which Bradshaw S. Tolman had in and to any real estate in the county of Middlesex was a valid attachment of his undivided one third interest in the real estate in question.</p> <p>“2. The stipulation filed in the equity suit against Bradshaw S. Tolman on December 21, 1909, which was signed by the attorney of Bradshaw S. Tohnan, and the final decree which was entered on July 6, 1910, in conformity with the terms of the stipulation, constituted a decree which was consented to.</p> <p>"3. The entry of the final decree, containing a recital therein that ‘the plaintiff and the defendant Bradshaw S. Tolman severally waiving their rights to appeal therefrom/ was a sufficient entry of such waiver on the docket under the provisions of R. L. c. 159, § 34.</p> <p>“4. There being no right of appeal from a decree consented to, and any right of appeal having been waived, and the decree having further provided ‘that execution in common form issue therefor/ such execution could have been lawfully issued immediately after the entry of said final decree.</p> <p>“5. The attachment against Bradshaw S. Tolman continued in force until the expiration of thirty days after the entry of said final decree, and, no levy having been made upon the property so attached within said thirty days, all rights under the attachment terminated at the expiration of said thirty days after July 6, 1910.</p> <p>“6. The attempted levy and sale under the execution which was issued on August 6, 1910, was properly conducted, and if the same had been seasonably made would have been valid, and would have conveyed to George E. Tolman the undivided one third interest in said property which was owned by Bradshaw S. Tolman at the time of the attachment on December 16, 1905.”</p> <p>The petitioner excepted to all the rulings made by the judge except the first and sixth.</p> <p>The judge made the following order for judgment:</p> <p>“1. The petitioner Ida F. Tolman is entitled to have partition made as prayed for, and to have her interest in the premises described in her petition set out to her.</p> <p>“2. The rights of all parties interested in the premises are as follows: Ida F. Tolman, one third; John A. Tolman, one third; and H. Adelaide Hovey, one third.</p> <p>“3. That three commissioners be appointed and a warrant issued to them to make said partition.”</p> <p>The petitioner Ida F. Tohnan alleged exceptions.</p>

<p>Equity Pleading and Practice, Amendment, Appeal, Plea. Equity Jurisdiction, Minority stockholders’ bill. Corporation, Eights of minority stockholders, Officers and agents. Waiver. Election. Words, “Value oí the stock.”</p> <p>If the plaintiff in a suit in equity appeals from an interlocutory decree sustaining a demurrer to the bill on the ground of multifariousness and afterwards by leave of court amends the bill so that the objection of multifariousness is removed, he waives his right of appeal.</p> <p>If a defendant files an affirmative plea to a bill in equity and the plaintiff files-no replication thereto, the facts well alleged in the plea are admitted by the plaintiff and the sole question on the plea is, whether as a matter of law, upon the facts therein well alleged and the facts well alleged in the bill and not denied in the plea, the suit can be maintained.</p> <p>In St. 1903, c. 437, § 44, giving a stockholder in a corporation, who has voted against a sale by the corporation of all of its property and assets, a right, upon a demand in writing within thirty days after such vote, to receive “ the value of the stock ” held by him which, if he and the corporation cannot agree thereto, shall be determined by appraisers, the words, “the value of the stock,” mean not merely its market value if it is traded in by the public, but its intrinsic value, to determine which all the assets and liabilities of the corporation must be ascertained.</p> <p>If the owner of twenty-three per cent of the capital stock of a corporation, having voted at a stockholders’ meeting against action transferring all its property and assets and having made a demand in writing of the corporation for the , value of his shares -under St. 1903, c. 437, § 44, thereafter and while he is seeking to ascertain the real value of the shares discovers that the holders of the other seventy-seven per cent of the stock by conspiring together fraudulently have misappropriated to themselves large sums of money belonging to the corporation under the guise of salaries which were grossly exorbitant and greatly in excess of the fair value of the services rendered, have managed the affairs of the corporation to their personal profit and have so manipulated and falsified its books as to conceal their fraud and to obscure the true state of the corporation’s assets; and if about seventeen months after making such discovery the minority stockholder agreed with the majority stockholders to submit the matter of the appraisal of the value of his shares to three men then selected and determined upon as arbitrators under the above statute, but no hearings are held before such arbitrators, the minority stockholder has not thereby elected to waive his right to maintain a suit in equity to compel an accounting and restitution by the majority stockholders.</p> <p>The right given by St. 1903, c. 437, § 44, to a minority stockholder to compel a corporation, the majority of whose stockholders against his vote have voted to transfer all of its property and assets, to pay him the value of his shares, and his right, pending such payment to him, to compel an accounting by the majority stockholders who, while in control of the corporation, have misappropriated its property and manipulated and falsified its accounts so as to conceal their fraud and to make it difficult if not impossible to ascertain the true state of the corporation’s assets, are not inconsistent but are concurrent.</p> <p>Until such a minority stockholder has been paid the value of his shares, determined as provided by the statute, he still is a stockholder and has a right to pursue in equity his rights as such minority stockholder in behalf of the corporation against the majority stockholders to compel an accounting and restitution by them; because as a stockholder he is entitled to any enhancement in the value of his shares due to such restitution.</p> <p>The scope of a bill in equity is to be determined by its allegations and not by its special prayers for relief.</p> <p>If the owners of seventy-seven per cent of the capital stock of a corporation, who are its officers and are in full control of its affairs, cause a meeting of the stockholders to be called and in pursuance of a vote there taken against the vote of the owner of twenty-three per cent of the stock sell all of its property and assets to themselves to hold and manage under a trust which was not intended nor calculated by them to be in the interests of the corporation and of all of the stockholders but was deliberately planned and accomplished for the sole purpose of enabling them to acquire the property of the corporation for their own benefit and to protect and secure themselves against any attempt on the part of the corporation or of the minority stockholder to compel an accounting by them and a restoration of moneys theretofore wrongfully misappropriated by them and to enable them to carry on and enlarge the business for their sole personal advantage, such conduct is a deliberate fraud upon the corporation and the minority stockholder and he can maintain a suit in equity in his own behalf and in behalf of the corporation to set aside the transfer and to compel an accounting and restoration by the majority stockholders.</p>

<p>Contract by the collector of taxes of the town of Hardwick against one of three trustees under the will of Calvin Paige, late of the city of New York, who held a trust fund for the benefit during his life of one Joseph C. Paige, also a resident of Hardwick, for a tax of $525 on one third of the trust fund, alleged to be due under the provisions of St. 1909, c. 490, Part I, § 23, cl. 5. Writ dated August 2, 1912.</p> <p>The case was heard upon an agreed statement of facts by Fox, J., without a jury. The material facts are stated in the opinion. He found for the plaintiff in the sum of $623.71, and at the request of the parties reported the case for determination by this court.</p> <p>The case was submitted on briefs.</p>

<p>Fraternal Beneficiary Association. Words, “Secede,” “Disband.”</p> <p>A national association, formed “to create and having control over” State and local organizations, “and to provide for and comfort the sick and distressed members of the order,” is a fraternal beneficiary association and is not a charitable organization.</p> <p>In this suit in equity by the proper officer of a national fraternal beneficiary association against former officers of a subordinate lodge for the possession of certain property formerly of that lodge, the plaintiff contended that he was entitled to the property by reason of a law of the association and of the lodge which provided that, upon a lodge disbanding, such property should be turned over to him; but, upon facts found by a master to whom the suit was referred, it appeared that the lodge by a unanimous vote of its members had seceded from the national organization, and, there being no provision of the laws applicable to a secession of a lodge by a unanimous vote of its members, it was held that secession was not disbanding and, the provision as to a lodge disbanding therefore not applying, the suit was dismissed.</p>

Tort for personal injuries received on November 13,1912, when the plaintiff was operating an automobile truck in the scope of his employment by the defendant. Writ dated January 11, 1913.. In the Superior Court the case was tried before Hall, J. The material evidence is described in the opinion.

<p>Pleading, Civil, Declaration, Bill of particulars. Conversion. Contract, Implied. Evidence, Relevancy and materiality, Remoteness, Admissions, Testimony of witness in another proceeding. Witness.</p> <p>There is no objection to the combination, in a declaration in an action of tort or contract, of a count for the conversion of money with a count for money had and received and a count upon an account annexed, all being for the same cause of action.</p> <p>Such an action may be maintained although the plaintiff, upon the same facts, might have relief in a suit in equity for the termination of a trust and an accounting.</p> <p>"Where all the particulars necessary to a clear understanding of a cause of action are set forth in a declaration, they need not be repeated in a bill of particulars.</p> <p>It is not necessary to use in a declaration the same detail of description of a cause of action that is called for in the presentation of evidence.</p> <p>Where, at the trial of an action by the administrator of the estate of a mother against her daughter for money had and received, the plaintiff contended that the mother gave to the daughter sums of money at various times to be used for the mother’s support and that the daughter was retaining a portion of such money that had not been expended, and financial dealings between the parties from July, 1900, to May, 1912, were in evidence and the defendant contended and introduced evidence tending to show that there was an accounting between the parties in October, 1905, and that a different arrangement was made beginning on January 1,1906, the defendant properly was required in the discretion of the trial judge to answer the question, “What were your receipts in 1905 ? ”</p> <p>At the same trial an unsigned statement of the account between the parties which, according to some of the evidence, was handed by the defendant to the plaintiff, was admissible in evidence as an admission by the defendant, although she denied having given it to the plaintiff.</p> <p>Also, testimony of the defendant as a witness in a proceeding in the Probate Court, which tended to contradict her testimony at the current trial, was admissible in evidence.</p>

<p>Sale, Avoidance by vendor by reason of fraud. Fraud. Replevin. Practice, Civil, New trial.</p> <p>An action of replevin cannot be maintained by a seller of goods against the assignee for the benefit of creditors of the buyer, a corporation, to compel the return of the goods on the ground that the buyer purchased them with the actual but undisclosed intention not to pay for them, where it appears that up to the day after the sale the treasurer of the buyer had had a controlling interest in the company, that, being of ample means, he had indorsed its paper and that by reason of that fact it had met promptly all its maturing merchandise debts, although, without the financial backing given by the.treasurer, its business could not have been conducted successfully and the seller did not know and was not informed of that fact.</p> <p>Mere silence or failure by a buyer of goods to inform their seller of facts relating to the buyer’s financial responsibility, which for his own protection the seller ought to know, does not constitute fraud which will enable the seller to avoid the sale and maintain an action of replevin to compel a return of the goods.</p> <p>Evidence, tending to show that, at the time when a corporation purchased certain goods, it was insolvent, that its treasurer, who owned a controlling interest in its capital stock, who was of ample means, and who by indorsing its commercial paper had enabled the corporation to continue in business which it could not have done without his backing, thirty days before the sale sold his entire interest in the corporation to the president and retired from any active participation in the business, and that ten days after the sale the corporation made an assignment for the benefit of its creditors, will warrant findings that at the time of the sale the officers of the corporation had no present expectation that the former treasurer would continue to give the corporation his financial backing and therefore that they could have no reasonable expectation of ever making payment for the goods; and, on such findings, the seller of the goods may maintain an action of replevin for their return.</p> <p>Where, at the trial of an action of replevin by a seller against an assignee for the benefit of creditors of the buyer for the return of the goods on the ground that at the time of the sale the buyer had an actual but undisclosed intention not to pay for the goods, the judge orders a verdict for the defendant and, on exceptions by the plaintiff, it appears that the goods were sold in two parcels at dates a month apart, and that the evidence would not warrant a finding for the plaintiff as to the first sale but would warrant such a finding as to the second, the verdict as to the first sale should stand, but a new trial may be had, confined to the question of recovery of the goods included in the second sale.</p>

<p>Devise and Legacy. Executor and Administrator. Equity Jurisdiction, Bill for instructions. Equity Pleading and Practice, Decree.</p> <p>A testator, whose will was in his own handwriting and apparently was drawn by him without consultation with counsel, provided in that will as to the residue of his estate, first, that his wife “during her life” should have the income of the residue with a power to use the principal for “ the best interest of my children at her discretion” and upon her death “the residue to be divided equally among my children,” that, if either of his children should have died without receiving his or her share of his estate and should have left a child or children surviving, the share of such deceased child should go to his or her issue, but that if any of his children should have died before receiving his or her share and should have left no child surviving, the share of such deceased child should go to his or her brothers and sisters and their issue, if any, according to the right of representation. The testator then provided as follows: “And my will further is that if at any time after one year from the time of my decease, no child of mine shall be surviving my said executrix shall use all the said estate for her sole and separate use and benefit in all respects as she shall think best (both principal and interest) and may dispose of the same by will, but in case she should die after the death of all my children and shall not have disposed of all my said estate by will or otherwise that the residue thereof shall be divided equally among my sisters, A and M, (or be given to the survivor of them in case either of them shall die without leaving children) for their sole and separate use and benefit and that of their children.” The testator was survived by his wife, who waived the provisions for her in the will and claimed her statutory share of his estate. He also was survived by an only child, a son, who died testate and childless, leaving all his property to his widow. The widow of the first named testator was living. Held, that by the clause quoted above the testator in enlarging the power of his wife over the residue of his estate after the death of all his children, did not make an absolute gift to her of the whole property, but on the contrary made a valid gift over to his sisters.</p> <p>And, therefore, the widow having waived the provisions for her in the will, upon the death of the son during the widow’s lifetime the sisters took an absolute estate in the residue subject to the statutory rights of the widow.</p> <p>Where on a bill by an administrator for instructions the plaintiff is ordered to pay a share of the residue of an estate to the legal representative of a deceased residuary legatee, and where there is no dispute as to such share nor as to the persons entitled to receive it, it may be ordered in the alternative that the payment of such share may be made directly to the children of such deceased legatee without the appointment of an administrator to receive and distribute it.</p>

<p>Negligence, Railroad, In a freight yard. Railroad. Evidence, Relevancy. Witness, Cross-examination.</p> <p>In an action against a railroad corporation under the federal employers’ liability act to recover for the death of a freight conductor in the defendant’s employ, evidence that, after the deceased had had a conversation with the defendant’s yardmaster at the freight yard where the accident occurred, the deceased returned to his train and said to the engineer that, after dropping certain freight ears, he was going to return with the engine on a certain track, which turned out not to be clear and on which the accident happened, is not evidence that the yardmaster told the deceased to return on that track.</p> <p>In the same case it was held, that the yardmaster, having had no reason to suppose that the deceased would try to return on the occupied track, was under no duty to warn him not to do so.</p> <p>In the same case it was held that under the circumstances disclosed by the evidence it was the duty of the deceased, after having delivered the cars that he had brought to the freight yard, to go to the yardmaster to ascertain what track he was to use in going out.</p> <p>In the same case the plaintiff contended that under the rules of the railroad corporation the engineer was responsible equally with the deceased conductor for the proper handling of the train and relied on a rule of the defendant in regard to engineers which contained the provision, “ Should there be any doubt as to the right of road, or safety of proceeding, from any cause, consult with the conductor and be equally responsible with him for the safety and proper handling of the train.” But other rules of the defendant provided as follows: “ Engine Men. On the road, obey orders of the conductor as to starting, stopping, shifting cars; as to general management of the train, unless such orders endanger the safety of the train or would require a violation of' the rules or cause injury to persons or to property,” and “Conductors. Be responsible for all switching movements.” Held, that the rule first quoted in regard to the responsibility of engineers must be construed in connection with the other rules quoted.</p> <p>In the same case it was held that under the rules described above it was the duty of the engineer, unless he knew that the course adopted by the conductor would bring about a condition of danger, to follow the conductor’s orders.</p> <p>In the same case the plaintiff contended that the head brakeman was negligent because after climbing through the cars on the occupied track he sat down on the next trackj which was clear, waiting for the deceased conductor to come back with the engine on the clear track, instead of warning him not to return on the occupied track, and it was held, that, assuming that it would have been the duty of the head brakeman to have done what he could to prevent the accident if he had had any reason to foresee it,' yet he had no reason to suppose that the deceased conductor would undertake to return with the engine on the occupied track.</p> <p>In the same case the plaintiff contended that the fireman was negligent because in going into the freight yard on the parallel track he ought tó have seen from his side of the cab of the engine that there were cars on the occupied track by which the deceased conductor attempted to return, but it was held that it was no part of the duty of the fireman to examine the tracks in order to warn the conductor, who was in charge of the train subject to the orders of the yardmaster, as to which track he (5ught to take on coming back.</p> <p>It is not justifiable to found an inference nor an argument upon a palpable verbal slip made by a witness in one of his answers upon his cross-examination.</p> <p>In the case described above it was said that the deceased, although an experienced and careful conductor, neglected his duty four times before the accident that caused his death: first, in not reporting to the yardmaster with his way bills when he delivered the freight cars he had brought, second, in undertaking to use a track in going back with bis engine without permission from the yardmaster to do so, third, in failing to examine the track before thus using it without permission to find out whether it was clear, fourth, in having no light on the tender of the engine when backing down and in supplying this lack by standing with his conductor’s lantern at the rear end of the tender where he was killed by coming in collision with cars standing on the track; and it was held that on the evidence he was the only person who could have been found to be negligent and that the case came within the decision in Great Northern Railway v. Wiles, 240 U. S. 444.</p>

<p>Tax, Sale of land for the collection of. Attachment.</p> <p>A purchaser at a sale of land for the collection of taxes, who at the time of the sale has no interest in the land other than that derived at the tax sale, gets a new title in fee unincumbered by an attachment previously placed upon the land in an action brought against the person who owned it at the time of the tax sale; and if such purchaser afterwards conveys that title to one who, after the tax sale, acting for himself and in good faith, had purchased all the right, title and interest of him who had owned the land at the time of the tax sale, such second purchaser also gets a title unincumbered by the attachment or by a sale under an execution and levy following it.</p>

<p> Workmen’s Compensation Act. </p> <p>Under the workmen’s compensation act the Industrial Accident Board may be warranted in finding that a longshoreman, whose fingers were frozen while he was at work in his regular occupation of unloading a steamer at a pier when the thermometer stood at four degrees below zero, was exposed “to materially greater danger and likelihood of getting frozen than the ordinary person or outdoor worker on the date ” in question, and that the injury was one arising out of his employment within the meaning of St. 1911, c. 751, Part II, § 1.</p>

<p> WorJcmen’s Compensation Act. </p> <p>Where a plumber’s assistant, who had been sent by his employer to do some work for a customer that lived four miles away and was returning in the afternoon with a horse and wagon of his employer, was seen driving on the highway in a normal condition and five minutes later his unconscious body was found in the roadway at the left of the wheel tracks with a cut "over the eye and a contused surface around it and bruises on the back of the head and on a shoulder and the horse with the wagon attached was found some distance away jogging along up the road, and where such employee died without recovering consciousness and an autopsy showed that all the organs of his body were in normal and healthy condition, that there was no diseased condition of the heart and that there had been a hemorrhage which had caused his death, it was held, that the cause of the employee falling from the wagon, if he did fall, was purely a matter of conjecture and that there was no evidence on which it could be found that the death of the employee was the result of an injury arising out of his employment within the meaning of St. 1911, c. 751, Part II, § 1.</p>

<p>Assignment. Pledge. Corporation, Attempted over-issue of stock.</p> <p>A trust company in good faith took as collateral security for a loan an instrument purporting to be a certificate for shares in a street railway corporation. This instrument was identified as part of an attempted fraudulent over-issue of stock after all the authorized capital stock of the street railway corporation had been issued. Later the trust company made an assignment under seal to certain persons of "all claims and demands of every description and kind against the” street railway corporation “amounting to $77,062.22, which claims or demands are annexed to this assignment.” The only thing annexed to the assignment was a certified copy of a vote of the directors of the trust company authorizing its treasurer “to execute in behalf of this company an assignment of its claims against the [street railway corporation] amounting to $77,062.22 to” the persons named as assignees. Held, that the instrument held as collateral by the trust company, being void as a certificate, gave the trust company merely a right of action against the street railway corporation based on the ground that the street railway corporation was estopped to deny that the trust company was a holder of its shares, and that this claim and demand passed by the assignment to the assignees and no longer belonged to the trust company, which therefore could not maintain a suit in equity to compel the street railway corporation to issue to it a new certificate for the number of shares named in the instrument.</p> <p>In a suit in equity brought by the trust company against the street railway cor- . poration to compel the issuing of a new certificate to the plaintiff for the number of shares of stock of the street railway corporation named in the instrument described above, there was evidence on which the trial judge could have found that at the time the assignment was given it was known by all the parties that ' the persons represented by those named as assignees wished to obtain an assignment of all claims and demands against the street railway corporation for the purpose of effecting a reorganization which could not be carried through without obtaining all such claims and demands, of which that based on the possession of the alleged certificate was one, and it was held, that, if the judge found this fact, he was right, in view of all the circumstances disclosed by the evidence, in construing the assignment to include the claim.</p>

<p>Agency, Existence of relation. Workmen’s Compensation Act.</p> <p>Where a contractor in a city, who had agreed to construct a small brick garage in a neighboring village called M, applied to a master teamster for "a teamster to take some concrete window-sills, wheelbarrows, picks and shovels out to M the next morning,” and the next morning an employee of the teamster was sent with a team, and, while under the direction of the son of the contractor he was assisting in loading the window-sills on the team, he slipped and the sill they were carrying fell on him, causing injury, upon a claim under the workmen’s compensation act it cannot be found that such employee of the master teamster was in the employ of the contractor at the time of his injury.</p> <p>St. 1911, c, 751, Part III, § 17, provides that, “If a subscriber [under the workmen’s compensation act] enters into a contract, written or oral, with an independent contractor to do such subscriber’s work, or if such a contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contract with the subscriber, and the association would, if such work were executed by employees immediately employed by the subscriber, be liable to pay compensation under this act to those employees, the association shall pay to such employees any compensation which would be payable to them under this act if the independent or subcontractors were subscribers.” If a contractor, who is a subscriber under the workmen’s compensation act and has contracted to build a small brick garage, hires from a master teamster a teamster and a team to transport concrete window-sills, wheelbarrows and picks and shovels from the storehouse of the contractor to the place where they are to be incorporated into the proposed structure or are to be used in building it, such transportation may be found to be a part of the work of the contractor comprised in his contract, and, if so found, compensation under the statute may be awarded to a teamster who was sent in charge of the team and who sustained an injury arising out of and in the course of his employment in such transportation.</p>

<p>Equity Pleading and Practice, Bill, Decree. Equity Jurisdiction, To enforce collection of negotiable instrument, Equitable replevin.</p> <p>A bill in equity cannot be maintained to enforce the collection of certain negotiable bonds of which the plaintiff alleges that he was deprived unjustly by the defendant who procured possession of them by fraud and deceit, because a suit to collect a negotiable instrument can be maintained only by its holder.</p> <p>A plaintiff in equity, who alleges that he is entitled to become the holder of certain negotiable bonds and who wrongly has brought a bill to enforce the collection of the bonds which are not in his possession, cannot obtain the relief he seeks by amending his bill into a bill for equitable replevin, because, if the court should take jurisdiction of the bill as one of equitable replevin, it could not retain jurisdiction for the purpose of compelling the defendant to pay the bonds, such relief not being an incident to a bill of equitable replevin.</p> <p>. In a suit in equity, where it is plain that the plaintiff has mistaken bis remedy, if he has any, the better practice is, even where an absolute decree dismissing the bill would not be a bar to any proper action or suit to enforce the rights of the plaintiff in the matters complained of, to provide in the decree that the bill is dismissed without prejudice, and it so was ordered in the present case.</p>

<p>Agency, Broker’s commission. Broker.</p> <p>Where the owner of a hotel employed a real estate broker to find a tenant for it and the broker procured a person who executed with the owner a “memorandum of agreement” drafted with great care and setting forth certain terms of a proposed lease to be executed by the parties and “the principal points of their joint understanding,” but which did not contain "all that the lease was intended to contain” and left the unexpressed terms of the lease to be agreed upon subsequently between the parties, and where the parties subsequently failed to agree on such terms and after certain negotiations the proposed tenant refused to take a lease of the hotel on the terms required by the owner, the broker cannot recover a commission for his services, because, in an action brought by him against the owner for such a commission, there is no evidence that the proposed tenant was ready and willing to become a tenant of the hotel on the owner’s terms or that the owner accepted him as such a tenant.</p>

<p>Deed, Delivery. Cemetery Corporation. Municipal Corporations. Dedication.</p> <p>It seems that a deed, which was acknowledged five months after its date and was recorded eleven months after its acknowledgment, in the absence of other evidence of the time of its delivery, must be taken to have been delivered on the day of its acknowledgment.</p> <p>In this Commonwealth a dedication of land to a public use does not take effect without an acceptance by the public.</p> <p>An attempt or offer made by a burial ground corporation to dedicate a lot marked out upon its land by stakes or bounds for the erection of a soldiers’ monument, which was followed five months later by a deed from the corporation to the town of all its land that was accepted by the town without knowledge of the attempt or offer of the corporation to dedicate the lot for the purpose named, such purpose not being known by the town or by the public until nearly forty . years after the conveyance to the town, does not constitute a completed dedication, there having been no acceptance by the public.</p>

<p>Workmen’s Compensation Act, Dependency, Survival.</p> <p>"Where a deceased employee at the time of an injury that resulted in his death had no family, and Ms mother, who was Ms only next of Mn, was wholly dependent upon Ms earnings for support and filed a petition for compensation trader St. 1911, c. 751, Part II, § 7, and where, after an award had been made by an arbitration committee from wMch an appeal to the Industrial Accident Board was pendmg, such dependent died, it was held that such dependent had no vested right to compensation under the statute wMch could pass to the representative of her estate, except the right that had accrued for compensation from the date of the injury to the time of her death, and that no person was in existence to whom an award under the statute to take effect upon her death could be made.</p> <p>A weekly payment awarded to be made to a dependent under the workmen’s compensation act comes to an end when the dependent dies.</p> <p>It here was intimated, although not decided, that, where an employee dies from an injury within the workmen’s compensation act, leaving a widow and cMldren by such widow under eighteen years of age, and the widow subsequently dies while a petition by her for compensation under the act is pending or after an award has been made upon it, an order directing payments to be made to the widow may be reviewed by the Industrial Accident Board under St. 1911, c. 751, Part III, § 12, as amended by St. 1914, c. 708, § 11, and a new award may be made to such minor cMldren under St. 1911, c. 751, Part II, § 7, of payments for the period subsequent to the death of the widow.</p>

<p>Complaint, received and sworn to in the District Court of Southern Essex on May 24, 1916, for the alleged violation of a regulation of the board of health of the city of Lynn.</p> <p>On appeal to the Superior Court the defendant was tried before McLaughlin, J. The defendant renewed a motion, which had been denied in the district court, that the complaint be quashed “for the reason that it was received by and sworn to before the assistant clerk of said court, at a time when said court was not in session, and said assistant clerk had no warrant or authority in law so to receive said complaint or to take the oath of the complainant thereto.”</p> <p>The judge denied the motion, and upon the defendant’s plea of guilty imposed a fine of $5. At the request of the defendant, the judge stayed sentence under R. L. c. 220, § 3, and reported the case for determination by this court upon the question raised by the motion to quash.</p> <p>The case was submitted on briefs.</p>

<p>Constitutional Law, Apportionment of representation. House of Representatives. Suffolk County Apportionment Commissioners. Mandamus. Attorney General.</p> <p>On a petition by the Attorney General for a writ of mandamus addressed to the Suffolk County apportionment commissioners elected under St. 1913, e. 835, § 390, declaring an apportionment of representation in the legislative districts in that county attempted to be made by the respondents to be void as not in conformity with the Constitution and ordering them to proceed “as soon as may be” to divide the county of Suffolk into representative districts so as to apportion the number of representatives assigned to that county “ equally, as nearly as may be, according to the relative number of legal voters” in the several districts, a clause in the reservation for determination of the case by this court, stating that, if the question whether the respondents acted in good faith was material, this court might draw conclusions from the apportionment itself, was disregarded by this court, because this court has no power to decide facts in a proceeding at law and the question of good faith, if material, was one of fact, and it was held, that the case must be considered by the court on the footing that the good faith of the commissioners was presumed.</p> <p>By art. 21 of the Amendments to the Constitution, which provides that a "board of special commissioners . . . shall, on the first Tuesday of August next after each assignment of representatives to each county . . . proceed, as soon as may be, to divide the same into representative districts of contiguous territory, so as to apportion the representation assigned to each county equally, as nearly as may be, according to the relative number of legal voters in the several districts of each county,” the principle of practical equality of representation among all the voters of the Commonwealth is established.</p> <p>The Suffolk County apportionment commissioners elected under St. 1913, c. 835, § 390, in 1915 and in every tenth year thereafter, who are directed to “so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, according to the number of voters in the several districts,” must perform their duties as directed by art. 21 of the Amendments to the Constitution; and, where it is manifest from the inspection of an apportionment attempted to be made by them that there is grave, unnecessary and unreasonable inequality in the representation assigned by them to different districts, the Constitution has been violated and their attempted action is void.</p> <p>Among the inequalities, which were held to have been sufficient to make the attempted apportionment void, was the apportioning to one district of two representatives for 3,913 voters and in another district giving only one representative for 6,182 voters. Another inequality was apportioning one representative to a district with almost 5,000 voters and apportioning three representatives to another district with about 6,000 voters. There were many other similar disparities showing gross and palpable inequalities extending to a considerable number of the districts.</p> <p>A petition for a writ of mandamus addressed to the Suffolk County apportionment commissioners, who had filed a report purporting to make an apportionment of representation in the legislative districts in that county which was void as in violation of art. 21 of the Amendments to the Constitution, commanding them to proceed with the performance of their duties under St. 1913, c. 835, in accordance with the provisions of the Constitution, affords the appropriate form of relief and is a remedy expressly provided by § 502 of the statute named for enforcing the provisions of that chapter.</p> <p>The remedy by mandamus described above is available to a citizen and voter interested in the execution of the laws.</p> <p>In the case above described it was held, that, the public interests being involved, the Attorney General might institute and maintain a petition for a writ of mandamus to vindicate the public right.</p> <p>In the case above described it was held that in issuing the writ of mandamus no specific time need be fixed for the completion by the commissioners of their work, it being assumed that they would be actuated by a consciousness of serious public duty with the obligations thereby entailed.</p>