Volume 228 — Massachusetts Reports

<p>Bill in equity, filed in the Superior Court on July 21, 1914, and described in the opinion.</p> <p>In the Superior Court the suit was referred to a master. The material facts found by the master are described in the opinion. The defendants filed exceptions to and a motion to recommit the report, as well as several motions for leave to amend their answers, all of which are described in the opinion. After a hearing by Fox, J., an interlocutory decree was entered by his order overruling the exceptions and denying the motions. The defendants moved that such interlocutory decree be vacated. After a hearing, that motion also was denied by the same judge and, upon a motion by the plaintiffs for a final decree, he reserved the case for determination by this court upon all the pleadings and the master’s report.</p>

<p>Civil Service. Certiorari. Words, “Final and conclusive.”</p> <p>The provision of St. 1911, c. 624, § 1, as amended by St. 1915, c. 251, that, on a petition of a person holding an office classified under the civil service rules of the Commonwealth to the police, district or municipal court within the judicial district where such person resides for review of the action of an officer or board in removing the'petitioner, “The decision of the justice of said police, district or municipal court shall be final and conclusive upon the parties,” means that the justice’s findings of fact shall be final and binding on the parties, but it does not leave the parties without remedy if there are essential errors of law apparent on the record of the proceedings depriving such a party of substantial rights, and a person so aggrieved may maintain a petition for a writ of certiorari to quash such erroneous proceedings.</p> <p>Petitions for writs of certiorari were brought by the commissioner of public works of the city of Boston against a justice of the Municipal Court of the Dorchester District of that city to quash orders made by that judge upon reviews under St. 1911, c. 624, § 1, as amended by St. 1915, c. 251, reversing orders made by the petitioner abolishing the office of supervisor of permits of the public works department and the offices of division engineer and superintendent of main drainage of the sewer and water service of the public works department, on the ground that the orders abolishing the offices were made in bad faith as an attempted evasion of the requirements of the civil service statutes. The returns of the respondents to the petitions set forth sufficient facts to warrant the finding of the judge of the municipal court that the orders of the petitioner abolishing the offices were not made in good faith. Held, that the decision of the judge that the orders of removal were made without proper cause and in bad faith showed no error of law and was not reviewable on a writ of certiorari.</p> <p>In the case described above, it was pointed out that the decision of this court upon the record presented was not to be taken as an intimation that either the petition or the return was correct in form, both of them containing defects to which no objection had been raised.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 13, 1916, by the trustee under the will of Susannah Whitney, late of Cambridge, for instructions.</p> <p>Material portions of the eighth, tenth and eleventh clauses of the will were as follows:</p> <p>“Eighth. I give devise and bequeath unto my sons Augustus Anson and Benjamin White, one undivided half part of all the real estate of which I shall die seized and possessed, situate in the town of Brookline aforesaid . . . upon the following trusts, viz, that they the said trustees & the trustees or trustee for the time being under these presents, after all incidental and necessary expenses attending the execution of this trust, together with a reasonable compensation to themselves for their services shall receive and apply the net interest and income of said premises, or of the proceeds thereof, to the- sole and exclusive use of my two daughters Susan Elizabeth and Abigail White equally, for and during their natural lives. And in case either of my daughters should die, leaving a child or children who shall attain the age of twenty one years, then to convey deliver and pay over said deceased parent’s share to said child or children as they respectively become of age equally, to have and to hold the same to him her or them their heirs and assigns forever; and if only one child of either of my said daughters, attain that age, then that such child shall have the whole of its parent’s share. But if either of my daughters should die and leave no child who shall attain the age of twenty one years then I give devise and bequeath such deceased’s share equally to be divided between the survivors of my children Augustus Anson, Benjamin White, Susan Elizabeth and Abigail White, but the share of said deceased sister’s share so dying as aforesaid, to which either of my said daughters may be entitled as aforesaid, shall be held upon the same trusts as above expressed, but the share which either of my sons aforesaid may be entitled to out of either deceased sister’s share, shall be held by them their heirs and assigns forever. And if both my said daughters shall die leaving no child which shall attain the age of twenty one years, then the whole of said deceased sisters shares I give devise and bequeath to my said sons Augustus Anson and Benjamin White, to have and to hold the same to them their heirs and assigns forever. But my will is that in case either of my said daughters die leaving a child or children that the income of said deceased parent’s share shall be appropriated to the support and education of such child or children until he she or they attain twenty one years, or until their death before that time.”</p> <p>“Tenth. I give devise and bequeath two undivided fourth parts of all the rest and residue of my estate, both real personal and mixed, of whatever kind, and wherever situate of which I may die seized and possessed, or to which I may be entitled at the time of my decease, unto my two sons Augustus Anson, and Benjamin White. To have and to hold the same to them their heirs and assigns forever.</p> <p>“Eleventh. I give devise and bequeath the other two undivided fourth parts of the said rest and residue of my estate, both real personal and mixed, of whatever kind and wherever situate, of which I may die seized and possessed, or to which I may be entitled at the time of my decease, unto my sons Augustus Anson and Benjamin White. . . . upon the same trusts and subject to the same mediate and final disposal as expressed in the eighth clause of this my will, and with the same rights and powers and subject to the same duties and obligations as therein expressed ...”</p> <p>It appeared that Benjamin White Whitney had died in the year 1880 intestate, unmarried and without issue, leaving as his heirs at law and next of kin his two brothers, William L. and Augustus A. Whitney, and his two sisters, Susan E. W. Brackett and Abigail W. Whitney, later Abigail W. Howe; that Augustus A. Whitney had died on July 29, 1891, intestate and without issue, but leaving a widow Evelyn A. Whitney and as his heirs at law and next of kin William L. Whitney, Susan E. W. Brackett and Abigail W. Howe.</p> <p>It also appeared that Susan E. W. Brackett had died in the year 1894, leaving a will and one codicil, which had been allowed and under which the Society for the Prevention of Cruelty to Children and the Meadville Theological School, defendants in this suit, were made the residuary legatees in equal shares, and that a final account of the executor showing distribution in full had been allowed by the Probate Court.</p> <p>It further appeared that Abigail W. Howe, formerly Abigail W. Whitney, died on January 3, 1916, leaving a will and two codicils, under which Radcliffe College, a defendant in this suit, was made the residuary legatee; and that her estate was amply sufficient to pay all debts and legacies, so that the residue of the estate will be a substantial amount. Proof of this will was allowed after rescript from this court stating the decision reported in Whitman v. Whitney, 225 Mass. 213.</p> <p>Evelyn A. Whitney, the widow of Augustus A. Whitney, died in the year 1898 intestate, unmarried and without issue, leaving as her only heirs at law her sisters Lucy T., Caroline L., Ellen M. and Martha E. Sawyer, of whom Ellen M. and Martha E. Sawyer alone survive and are the administratrices of her estate and the sole heirs at law and next of kin of her and of their sisters.</p> <p>William L. Whitney, Julia A. Wright and Lucy A. Whitney, defendants, are the sole heirs at law and next of kin of their father, William L. Whitney, the eldest son of the testatrix, who died on May 29, 1900, intestate, William L. Whitney being the adminisr trator of his estate.</p> <p>The ninth paragraph of the bill alleged that the estate which came into the hands of the plaintiff and of his predecessors was all real estate, or the proceeds from the sales of real estate, except certain securities received from the executors of the will of Susannah Whitney, the whole of which securities were appraised at the time of their receipt on February 17, 1869, at the sum of $14,004.75.</p> <p>The suit was heard by Pierce, J., by whose order a final decree was entered on January 26,1917, excluding the evidence described in the opinion and instructing the plaintiff that Ellen M. and Martha E. Sawyer as next of kin of Evelyn A. Whitney, deceased, the widow of Augustus A. Whitney, were entitled to five sixteenths of the personal property set out in the ninth paragraph of the bill of complaint, less such proportional part of the expenses of the administration and distribution of the estate in the hands of the plaintiff as might be allowed by the Probate Court upon his final accounting, and that such amount as so determined be paid over to said Ellen M. and Martha E. Sawyer; that after such payment, the residue of the trust fund in his hands, at the time of the final termination of the trust and the final distribution of the trust estate, be distributed, one third to Radcliffe College, one sixth each to the Meadville Theological School and the Society for the Prevention of Cruelty to Children, one ninth each to William L. Whitney, Lucy A. Whitney and Julia A. Wright.</p> <p>All of the defendants except Ellen M. and Martha E. Sawyer appealed.</p>

<p>Appeal from a decree of the Probate Court for the county of Worcester allowing the will of Harriette A. Whitmore.</p> <p>Issues, described in the opinion, were framed and the case was tried before Crosby, J. It appeared that the testatrix was taken to the Memorial Hospital at Worcester at the suggestion of her physician, Silas P. Holbrook, husband of Louisa S. Holbrook, the principal beneficiary under the will, on September 8, 1915, that the will was executed on September 28 at the hospital, three hospital nurses being witnesses, and that the testatrix died there on October 17,1915. Other material evidence, the course of the trial, requests of the appellants for rulings and rulings by the single justice and exceptions by the appellants are described in the opinion.</p> <p>The portions of the charge to which the appellants’ nineteenth exception related was as follows: “There has been some suggestion in the argument in reference to the acts of Mr. Brady, the attorney who made this will, some suggestion with reference to his conduct in this matter. In reference to that, gentlemen, I want to say that no question arises in this case as to whether this will was procured to be made by Mr. Brady, and you should leave that out of the case. There is no question raised upon these issues concerning any influence which may have been exercised if any by Mr. Brady. The sole question in this case is upon this question whether this will was procured to be made by reason of undue influence of either the doctor or Mrs. Holbrook, and nobody else. That is the only question. Those are the only persons whose influence is to be considered in connection with answering this third question.”</p> <p>The issues were answered favorably to the proponents of the will; and the appellants alleged exceptions.</p> <p>The case was argued at a special sitting of this court on April 13, 1917.</p>

<p>Workmen’s Compensation Act, Knowledge of the injury, Procedure. Superior Court.</p> <p>The provision of the workmen’s compensation act contained in St. 1911, c. 751, Part III, § 18, which makes it the duty of an employer, who is a subscriber, to “keep a record of all injuries,” and "within forty-eight hours . . . after the occurrence of an accident resulting in personal injury a report thereof shall be made in writing to the Industrial Accident Board,” requires the employer to find out and report the facts of each injury, not to make a report of claims or statements of injuries.</p> <p>Such a report made to the Industrial Accident Board by the timekeeper of a construction company, which was a subscriber under the act, that the employee “ruptured himself about three weeks ago and just began to feel the effects of it the last few days,” is evidence warranting a finding under St. 1911, c. 751, Part II, § 18, that the subscriber had knowledge of the injury which made a notice under § 15 unnecessary.</p> <p>In order that such knowledge should dispense with the necessity of notice it must be shown to have existed within the time when a notice in writing, if required, should have been given, that is, as soon as practicable after the happening of the injury.' Following Jeremiah Murphy’s Case, 226 Mass. 60.</p> <p>In a claim under the workmen’s compensation act of compensation for an injury by a rupture, there was evidence that a rupture of the kind which the employee had does not manifest itself immediately upon the strain which causes the rupture and that in an ordinary case of this kind it would not develop for two or three weeks after the strain. It appeared that the injury to the employee first manifested itself on the eighteenth day of a certain month by a swelling in the employee’s groin and that this proved to have been the result of a strain sustained by him on the first day of the month. It appeared also that the employer had knowledge of the injury on the twenty-second day of the month. Held, that a finding was warranted that the injury occurred on the eighteenth day of the month and that the subscriber had knowledge of it as soon as practicable after the happening thereof.</p> <p>On an appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board, when copies of the decision of the board and all papers in connection therewith have been transmitted to the Superior Court it is the duty of that court to take such action and to make such a decree as the law requires on the facts found by the board. The Superior Court has jurisdiction over the claim to compensation in the same way and to the same extent that it has over a suit in equity pending in that court in which the facts have been found by a master. Following McNicol’s Case, 215 Mass. 497.</p> <p>In an appeal to the Superior Court from a decision of the Industrial Accident Board on a claim under the workmen’s compensation act, where the-record shows that the insurer asked the Industrial Accident Board for certain rulings, the making of which would have resulted necessarily in a decision that the employee was entitled to no compensation, and further shows that the board without referring expressly to the requests for rulings made an award of compensation to the employee, it must be taken on this record that the insurer’s requests for rulings were refused, and there is no occasion to remit the report to the Industrial Accident Board in order that the board may state whether they granted or refused the requests.</p> <p>Where on an appeal to the Superior Court in a proceeding under the workmen’s compensation act the insurer moved that the report be recommitted to the Industrial Accident Board in order that a portion of certain testimony which the board on review had ordered should be stricken from the record should “be set out verbatim or indicated by page and line of the testimony,” and the judge denied the motion, it was held, that, if it was necessary to state what the evidence was which was stricken out, a statement of such evidence would be sufficient, and that it would not be necessary that the testimony should “be set out verbatim or indicated by page and line,” so that the motion was denied properly.</p> <p>Where in a proceeding under the workmen’s compensation act the record showed that at the hearing before the arbitration committee the insurer requested “that the typewritten testimony submitted by the insurer be embodied in the evidence in the report” and the record stated that “in place thereof a verbatim transcript, by the board’s stenographer, of the evidence given by the employee is attached hereto. The extracts of the testimony of Dr. R as furnished by the insurer are attached as corrected,” and where the extracts mentioned were all the evidence introduced by the insurer, it was held, that the action of the committee gave the insurer all its rights.</p>

<p> Compromise of Controversy Concerning Will. </p> <p>It here was pointed out that a compromise of a controversy concerning a will which the court may authorize under R. L. c. 148, § 15, is not a modification of the will but is merely an agreement of the parties interested, who, if they all are ascertained and in being and of age, can make such an agreement that will be binding irrespective of the statute.</p> <p>The cotut has no jurisdiction under R. L. c. 148, § 15, to authorize an executor to adjust by compromise a controversy concerning a will by an agreement to which trustees to whom property is devised and bequeathed by the will are not parties.</p>

<p>Landlord and Tenant. Contract, Reformation. Equity Jurisdiction, To reform contract. Damages, In contract. Equity Pleading and Practice, Decree.</p> <p>In a suit in equity by a lessee to reform a lease to him of the basement of a business building and for an abatement of rent, the trial judge found that “the-whole basement under the building leased to the plaintiff includes the space under the sidewalk and outside the vertical plane of the walls of the building.’” There was nothing to show that the portion of the basement under the sidewalk was not used in connection with the basement as a whole. Apparently it was constructed originally for such use and was not accessible to any one except the plaintiff. The plaintiff and the defendant both had acted in accordance with an understanding that the lease covered the whole basement, including the part under the sidewalk. Held, that the finding of the judge was warranted.</p> <p>Where the parties to a lease have put upon it a certain construction as to the extent of the premises covered by it, which is not contrary to its terms and is not forbidden by any rule of law, both parties will be bound by such construction.</p> <p>Where a lease of a basement of a business building provided that the lessors might “introduce additional machinery, pipes, wires or fixtures, if they should elect so to do,” this was held to authorize the placing by the lessor of steam or water pipes in the basement during the term of the lease.</p> <p>The lessor of a basement in a business building, finding it necessary, in order to make alterations in a store above, to erect certain posts and stringers in the basement, made an agreement in writing with the lessee of the basement that the lessor should be permitted to erect the posts and stringers as shown on a certain plan attached to the agreement and that the lessee should have a yearly reduction of $500 in the rent paid by him. This placing of the posts and stringers in accordance with the contract and the plan necessitated the closing up of a window in the toilet room in the basement. Held, that the closing up of the window in the toilet room gave the lessee no right to relief in equity by damages or otherwise, it having been paid for by the reduction of rent already made.</p> <p>In the same suit in equity brought by the lessee against his lessor it was held, that the plaintiff was entitled to no relief or damages for any interference with or impairment of the ventilation of the toilet room caused by the closing up of the window.</p> <p>In the same suit it was held that the plaintiff was entitled to no damages by reason of the impairment of the ventilation and light of the basement caused by the lessor placing in the basement pipes which he had a right to place there under the terms of the lease, there being no evidence to show that the lessor in exercising his right to place the pipes there did not act reasonably and in good faith.</p> <p>In the same suit it was held that this court could not say that a finding of the trial judge was not warranted to the effect that “the plaintiff was not at fault for refusing to permit attempts at repairing injury not explained to him.”</p> <p>In the same suit the trial judge found that the structure in the basement under the sidewalk was not built by either the plaintiff or the defendant, and it appeared that the structure was used by the city of Boston in connection with its high pressure water system, but the evidence failed to show who placed it there, and it was held, that there was no evidence to show a taking by the city by right of eminent domain and consequently that the plaintiff was not entitled to a suspension or abatement of “a just proportion of the rent” under a clause of the lease relating to a taking by right of eminent domain.</p> <p>In the same suit the trial judge made a finding that the plaintiff because of the presence of the structure was entitled to a reduction of rent. The ground on which the judge made this finding did not appear in the record. The judge assessed the damages at $200 a year and ordered a final decree by which the annual rent reserved in the lease should be reduced by that amount each year during the term of the lease. Held, that the defendant would not be liable in damages unless the structure under the sidewalk was erected and maintained upon the leased premises by his authority or consent express or implied.</p> <p>It also was held that, in any event, the assessment of damages was erroneous, as the judge had no power to change the contract between the parties, and, if the plaintiff should be entitled to damages, the total amount must be assessed in one sum which the defendants should be ordered to pay to the plaintiff.</p> <p>In the suit above described it was ordered that the decree should be reversed and that the case should stand for hearing upon the question, whether the structure in the basement under the sidewalk was placed there and afterwards maintained by license or authority of the defendants, and that, if it should be found that it was, the damages sustained by the plaintiff by reason thereof should be determined.</p>

<p>Equity Pleading and Practice, Master’s report. Deed. Way, Private. Municipal Corporations. Sewer. Equity Jurisdiction, To enjoin continuing trespass, Damages.</p> <p>Where a suit in equity is reserved and reported by the trial judge for determination by this court upon a master’s report, to which no exceptions were taken, the parties are deemed to have accepted the master’s report and are concluded by his findings of fact, and the only question to determine is what decree is to be entered upon the pleadings and the facts as found by the master.</p> <p>In determining in a suit in equity the question of fact, whether the owner of a tract of land, who conveyed it to different persons by a number of deeds made between the years 1825 and 1850 describing the land as abutting on certain private streets, intended to convey to the grantees of the several lots any right in the fee of such private streets, it is proper to consider the state of the law in this Commonwealth at the time the deeds were made.</p> <p>Where a master in a suit in equity, whose findings had been accepted by the parties, in passing upon the question of fact stated above found “that the original grantor, J P, did not intend to part with the fee in the two streets in question” and further found that “the plaintiff has whatever title J P retained in these streets,” it was held that the master was plainly right in finding that the title to the fee in the two streets in question was in the plaintiff.</p> <p>In the same suit it was found by the master that the two streets never had been laid out as public ways and never had become such ways by dedication or prescription and that the use of them by the public was permissive, and it appeared that the town in which they lay, against which the suit was brought, with knowledge of the plaintiff’s claim of ownership and against his protest had constructed sewers through these streets without authority to do so. Held, that the plaintiff was not required to accept indemnity in money damages and was entitled to relief by injunction.</p> <p>In the case above described it was found by the master that the plaintiff was damaged in the sum of $250 by reason of the acts of the defendant, which sum included all past and future damages that might accrue to him, and it was held, that the maintenance of the sewers in the plaintiff’s land was a substantial continuing trespass, for which an assessment of past and future damages could not be made rightfully without the plaintiff’s consent.</p> <p>Id the same suit it appeared that the abuttors on the two streets generally had made connections with the sewers constructed by the defendant and that sewer assessments had been laid by the defendant and had been paid by the abuttors, and it was held, that, in view of these facts, the defendant should be allowed a reasonable time within which it might acquire by proper legal proceedings the right to lay and maintain its sewers in the two private streets, if it should choose to. do so. Accordingly a decree was entered awarding an injunction and commanding the defendant to remove the sewers within five months unless previously the defendant should have acquired the legal right to their maintenance, the court in the meantime retaining the bill for the assessment of damages already suffered.</p>

<p>Workmen’s Compensation Act, Personal injury, Procedure. Practice, Civil, Vacating decree. Words, “Personal injury.”</p> <p>Neurosis of the nerves supplying certain muscles, resulting from a posture which causes a cigar-maker when at his work to bend with shoulders forward so as to induce “pressure on the brachial plexus,” is not a “personal injury” within the meaning of St. 1911, c. 751, Part II, § 1, for which such employee may be awarded compensation under the workmen’s compensation act.</p> <p>Upon an appeal from a decision of the Industrial Accident Board in a claim under the workmen’s compensation act the Superior Court may vacate a decree which was made by that court without notice of a pending petition by the insurer for a rehearing before the Industrial Accident Board.</p>

<p>Petition, filed on February 16, 1917, and allowed to be filed in its amended form on March 20, 1917, by Charles S. Ashley, who was elected mayor of New Bedford on December 5, 1916, against three justices of the Superior Court, for a writ of prohibition prohibiting the respondents from proceeding to hear and determine an election petition of Edward R. Hathaway and four others, charging the present petitioner with having' violated the corrupt practices act and seeking to have his election as mayor of New Bedford declared void, alleging “that on January 25 last Edward R. Hathaway and four others of said New Bedford made written application to a justice of the Superior Court sitting in Suffolk County for leave to file an election petition and obtained an order thereon giving such leave, and thereafter on January 26, 1917, filed in the Superior Court for the County of Suffolk an election petition asking to have the aforesaid election of this petitioner as mayor of New Bedford declared void; that neither the said application, nor the said order, nor the said petition, alleged that the said Hathaway and four others, or any of them, had the right to vote for this petitioner, or had the right to vote at the election in which this petitioner was chosen mayor, and no evidence that they or any of them had such right was introduced at the hearing on said application; that the subpoena issued on said election petition was not returnable fourteen days after the date of the filing of the petition as required by law; that the said writ of subpoena did not bear test of the first justice of the court to which it was returnable; that at the time said election petition was filed no court was legally constituted for the trial of said petition; that at the time said petition was filed the respondents had not been and were not legally assigned for the hearing and determination of election petitions, and had not then been and are not now legally assigned for the hearing and determination of the aforesaid election petition; that the respondents, claiming to be legally assigned for the hearing and determination of election petitions, are intending^ and proceeding to hear, and determine the said election petition brought against this petitioner; that the statute under which the respondents are acting, and the statutes creating, defining, penalizing and punishing corrupt practices at elections are unconstitutional and violate the Constitution of the Commonwealth of Massachusetts; that the statute under which the respondents are acting and the other statutes aforesaid are unconstitutional and in violation of Section 1 of Article 14 of the Amendments to the Constitution of the United States, in that they abridge the privileges and immunities of citizens of the United States, in that they deprive persons of life, liberty and property without due process of law, and in that they deny persons within their jurisdiction equal protection of the laws; and that the respondents have no jurisdiction to hear and determine said election petition.”</p> <p>The respondents filed an answer. By orders of the court Edward R. Hathaway and the Attorney General were permitted to intervene as parties respondent.</p> <p>The special appearance of the present petitioner in the Superior Court for the purpose of moving to dismiss the election petition against him, which is mentioned in the opinion, was filed on February 10,1917, and was as follows: “And now, without waiving any rights, and without submitting himself to the jurisdiction of the court, the respondent, appearing specially for the sole purpose of objecting to the jurisdiction, says that the subpoena in this case was not made returnable fourteen days after the date on which the petition was filed, and that no proper subpoena has been duly served upon the respondent. Wherefore, he prays that the petition be dismissed.”</p> <p>The case came on to be heard before Braley, J., upon the amended petition, the answer to the original petition and the answer to the amended petition. It was admitted that all the allegations of fact in the amended petition and the answers were true, and the single justice found them to be true. The justice reported the case for determination by the full court, with the stipulation that the petition was not to be denied on the ground of discretion.</p> <p>The case was argued at a special sitting of this court on June 18, 1917.</p>

Four writs of scire facias in the Municipal Court of the City of Boston dated June 17,1915, against the Globe Optical Company, a corporation, which had' been charged as trustee in four actions brought by trustee process against the New England Wholesale Opticians, Incorporated, a corporation, as the principal defendant. In each of the cases judgment was entered against the Globe Optical Company for the amount claimed with interest and costs.

Bill in equity, filed in the Supreme Judicial Court on March 4, 1916, praying that the defendant Samuel B. Donovan be restrained from bringing or maintaining any action at law against the plaintiff as principal or against the New England Casualty Company as surety upon a bond to dissolve a temporary injunction granted in a suit in equity brought by the defendant Samuel B. Donovan against Joseph A. Donovan and the present plaintiff, as described in the opinion.

<p>Bills and Notes. Evidence, Presumptions and burden of proof, Admissions, Of identity. Estoppel. Practice, Civil, Interrogatories. Pleading, Civil, Answer, Defence of fraud.</p> <p>In an action on a promissory note against the maker, where the defendant had admitted that he signed the note, but there was no evidence in regard to the indorsement of the note by the third person to whom it was made payable, and the note was introduced in evidence with a signature upon its back purporting to be that of the payee, it was said that if nothing more had appeared the pre- . siding judge should have ordered a verdict for the defendant, as an indorsement •does not prove itself.</p> <p>In the case stated above the defendant read to the jury the plaintiff’s answers to interrogatories propounded to him by the defendant, in which the plaintiff answered, “ There is no indorsement by [the payee] to me. The note in question was indorsed [by the payee] in blank before maturity and for value paid [by a certain firm who] assigned the same to me.” The judge ordered a verdict for the plaintiff. Held, that the judge was wrong in ordering this verdict, because when the defendant read and put in evidence the answer of the plaintiff, he did not preclude himself from arguing to the jury that the answer was not true, and that therefore the case should have been left to the jury.</p> <p>In the same case it was stated in the bill of exceptions that the note produced “was printed upon yellow paper,” whereas in answer to an interrogatory the plaintiff had stated that the note was not printed on yellow paper, and the defendant contended that he was entitled to go to the jury on the question of the identity of the note, but it was held, that no question of identity was open to the defendant, as he had admitted on the witness stand that the note produced was signed by him and that it was the note described in the declaration.</p> <p>In an action on a promissory note the defence of fraud in the making of the note is not open to the defendant unless it is set up in the answer. Following Hunting v. Downer, 151 Mass. 275.</p>

<p>Bill in equity, filed in the Superior Court on July 1, 1912, by the Muskeget Island Club, a corporation, against William H. Prior and Charles A. Prior, seeking the removal from a portion of the Island of Muskeget, owned in common by the plaintiff, the defendant William H. Prior and other persons, of a building erected there by the defendant William H. Prior.</p> <p>The case was referred to a master “to hear the parties, examine their vouchers and evidence, state the accounts, and make report thereof to the court.” The master filed a report containing the findings that are stated in the opinion. Later the case was heard upon the master’s report by Wait, J., who made a final decree ordering that the master’s report be confirmed, that the bill be dismissed as to the defendant Charles A. Prior without costs, and that the defendant William H. Prior forthwith remove his house from the premises described in the bill, that he be restrained permanently from further maintaining such a house and that the plaintiff recover its costs against him in the sum of $24.40. The defendant William H. Prior appealed.</p>

<p>Negligence, Street railway. Carrier, Of passengers. Street Railway. Pleading, Civil, Variance, Specifications.</p> <p>In an action against a corporation operating a street railway for personal injuries, the plaintiff testified that, while he was standing in the aisle of a car of the defendant with his hand in a strap suspended from the top of the car for- the purpose of affording such support, the car “ came to a very sudden stop with a terrible jerk, it seemed as though it struck something; that it jerked his hold, he fell through the window, kind of sideways, that his left hand went through as far as his body would let it, that there were other people in the car and three women were taken off; they were pretty well shaken up and water had to be brought to them.” Another passenger, who was standing directly, back of the plaintiff in the car, testified that the car “ came to a sudden stop with a violent jerk; that he had hold of a strap with his left hand and when the car gave that jerk it just threw him around,” that he “just managed to hold up” that “his knees kind of left him and he went forward on to the side seat,” and described the manner in which the car stopped by saying, “It was more so than an ordinary stop; enough to throw anybody around.” Held, that there was evidence for the jury of negligence on the part of the defendant in the operation of the car.</p> <p>In the same case the plaintiff, in compliance with an order of the court made upon a motion of the defendant, filed specifications, which contained a statement that the plaintiff’s hold was broken and he was thrown down by the passengers who were thrown off their feet by the sudden stopping of the car. The plaintiff, on his cross-examination, testified that, after he was thrown down, women who were thrown down were thrown on to him. But the plaintiff also testified that he had told his attorney how the accident happened and that what he told his attorney was to the same effect as the statements made in the specifications. Held, that the plaintiff’s contradictory testimony did not require the finding of a variance between the allegations contained in the specifications and the proof.</p> <p>In the same case it was stated in the specifications that the negligence relied upon by the plaintiff was negligence of the defendant’s motorman, and the defendant contended that there was no evidence that the accident happened through the negligence of the motorman. One of the plaintiff’s witnesses testified, in answer to a request to describe the accident, “Why it seems to me as if he threw the application of the brakes on like that (indicating by clapping hands together).” Held, that this evidence warranted a finding that the sudden stopping of the ear was caused by the negligence of the motorman.</p> <p>In the same case it was said that, under the view of the evidence taken by this court, it was not necessary to consider the defendant’s contention that a statement contained in a specification stands in all respects and for all purposes as if it were a part of the declaration.</p>

<p>Tax, Excise imposed on foreign corporations. Corporation, Foreign: taxation. Constitutional Law. Evidence, Matters of common knowledge, Presumptions and burden of proof.</p> <p>1914, c. 724, providing that every foreign corporation subject to the excise tax of one per cent of the par value of its authorized capital stock, not exceeding 32,000 in any year, imposed by St. 1909, c. 490, Part III, § 56, shall pay in each year, "in addition to the tax imposed by said section fifty-six, an excise tax to be assessed by the tax commissioner of one one hundredth of one per cent of the par value of its authorized capital stock in excess of ten million dollars as stated in its annual certificate of condition,” is constitutional and valid.</p> <p>It here was said to be manifest that a State is not debarred from imposing an excise upon the granted privilege of being a corporation because the corporation is engaged in interstate as well as intrastate commerce.</p> <p>It also was said that it seemed to be indubitable that the use by a State of a percentage on the authorized capital stock of a foreign corporation as the measure of an excise or license fee imposed for permission to such foreign corporation to do an intrastate or local business within its borders is not a decisive element in determining the validity of the imposition of the tax.</p> <p>The excise for doing business in this Commonwealth lawfully may be imposed under St. 1909, c. 490, Part III, § 56, as amended by St. 1914, c. 724, upon a corporation organized in another State, which carries on the manufacture of paper in this Commonwealth and has a mill within the Commonwealth and a sales office within the Commonwealth where it makes sales of its goods manufactured at its domestic mill to purchasers domiciled in Massachusetts, to whom the goods are delivered by intrastate commerce, although the charter of such corporation authorizes it "to maintain, conduct and manage in the State of New York and elsewhere the business of manufacturing, producing, selling and dealing in any and all kinds of paper,” and it maintains and operates twenty-three paper mills or plants • connected with the manufacture of paper, situated chiefly in New Y ark, V ermont, New Hampshire and Maine, and although about eighty-six per cent of the sales and contracts negotiated and made through its Boston office or for execution in Massachusetts require or contemplate the transportation and delivery of goods from a mill situated outside Massachusetts to purchasers in Massachusetts, or from its Massachusetts mill to purchasers outside Massachusetts, and only about fourteen per cent of such sales and contracts relate to goods to be delivered to a Massachusetts purchaser from its Massachusetts mill.</p> <p>The statute does not deny to such a corporation equal protection of the laws under the Fourteenth Amendment of the Constitution of the United States.</p> <p>It is matter of common knowledge that there are in this Commonwealth many mills for the manufacture of paper, and, in the absence of evidence to the contrary, it will be assumed that such mills are salable in the market at fair prices.</p> <p>The fact that a foreign corporation doing business in this Commonwealth acquired its real estate in Massachusetts while St. 1903, c. 437, § 75, was in force and before the enactment of St. 1907, c. 578, (now St. 1909, c. 490, Part III, § 56, as amended by St. 1914, c. 724,) does not show that such corporation has been denied .the equal protection of the laws by being made subject to the excise imposed by the later statutes.</p> <p>If the statute imposing an excise on foreign corporations doing business in Massachusetts discriminates in favor of the large and against the small corporations, one of the class of the large corporations cannot be heard to complain of this discrimination by which it is not aggrieved.</p> <p>The objection, that the excise imposed on foreign corporations doing business here by St. 1909, c. 490, Part III, § 56, as amended by St. 1914, c. 724, is unconstitutional because it is unreasonable in amount, cannot be raised by a foreign corporation which is conducting here a purely local business that is distinct and separable from the interstate business conducted by it, and which is not a public service corporation directly engaged in interstate commerce, so that the corporation has the option of giving up the local commerce and business if it does not care to prosecute them under the excise imposed.</p> <p>Assuming that it were open to the petitioner in the present case to contend that the excise imposed on it as a foreign corporation was invalid because ¡unreasonable in amount, and assuming also that the point must be decided on the present record which did not disclose sufficient facts to determine whether the excise was excessive, it appearing that the petitioner had extraordinarily large financial resources and that the amount of the excise in question was $5,500, it was said, that the court “know of no principle of law which requires the conclusion that a license fee of that amount is unduly or unreasonably great, to a corporation of such large capital as the petitioner, for the privilege of admission to the local markets of this Commonwealth for the transaction of an intrastate business in the manufacture and sale of an undisclosed quantity of paper of undisclosed value and out of which an undisclosed profit is realized.”</p>

<p>Petition, filed in the Supreme Judicial Court on November 1Ó, 1910, under St. 1909, c. 490, Part III, § 70, by the Locomobile Company of America, a corporation organized under the laws of the State of West Virginia, having its factory in Bridgeport in the State of Connecticut, where it is engaged in the business of manufacturing and selling motor cars, and occupying in Boston under a lease a three story building used for an office, a salesroom and a repair shop for the purpose of repairing cars of its own make and second hand cars taken in exchange for those of its own make, to recover a tax or excise paid by the petitioner as a foreign corporation and alleged to have been imposed unlawfully.</p> <p>The case was heard by Loring, J., upon an agreed statement of facts, sufficiently described in the opinion.</p> <p>The petitioner asked the single justice to make the following rulings:</p> <p>“1. As applied to the petitioner, the foreign corporation excise tax of Massachusetts, assessed and levied on it under St. 1909, c. 490, Part III, § 56, St. 1914, c. 724, is unconstitutional and void, because it conflicts with the 'commerce’ clause contained in § 8 of art. 1 of the Constitution of the United States.</p> <p>• “2. As applied to the petitioner, the said excise tax is unconstitutional and void, because it is in contravention of the 'due process of law’ clause contained in the Fourteenth Amendment to the Constitution of the United States.</p> <p>“3. As applied to the petitioner, the said excise tax is unconstitutional and void, because it conflicts with the ‘equal protection of the laws’ clause contained in the Fourteenth Amendment to the Constitution of the United States.</p> <p>“4. As applied to the petitioner, the said excise tax is unconstitutional and void under the principles set forth in the Western Union and Pullman decisions (216 U. S. 1, 56), which apply to business corporations engaged in interstate commerce, and are not confined, in their application, to quasi public corporations.</p> <p>“5. The principles of the Western Union decisions (216 U. S. 1, 56) apply wherever, as here, the same instrumentalities and the same agencies carry on in the same places interstate commerce and domestic business in conjunction with each other.</p> <p>“In an excise, measured, as here and in the Kansas tax, by the entire authorized capital, it is totally unnecessary to show that the domestic business is ‘inextricably interwoven’ with the interstate commerce transacted by the same instrumentalities, or to prove that the interstate and intrastate business cannot be separated, or that they are carried on in such close connection that the intrastate business cannot be abandoned without serious impairment of the interstate commerce. Such factors did not appear in the Kansas tax.</p> <p>“It suffices to show, as here, that the two classes of business,, interstate and domestic, are carried on, in conjunction, by the same agencies and at the same places. If so, a tax of this description necessarily burdens to a substantial degree the interstate business of the company, as was held in the Western Union case.</p> <p>“The Baltic decision (231 U. S. 68) only applies to cases where the local business is carried on wholly apart from the interstate commerce.</p> <p>“ 6. If the local or domestic business is fairly incident to interstate commerce transacted here, which constitutes the great bulk of the total business, the said tax, imposed for the privilege of carrying on such local business, is unconstitutional under the ‘commerce’ clause.</p> <p>“7. As applied to the petitioner, the amount of said excise is ‘unduly great,’ having reference to the real value of the local business and the property used therein, and is so ‘ disproportioned’ to the volume and profits of the local business and to the value of the privilege taxed that it should be regarded as a mere ‘device’ to reach or burden the interstate portion of the company’s commerce, property, and profits, and, consequently, is unconstitutional.</p> <p>“8. If, as here, the petitioner is engaged in this State in the work of conducting some kind of interstate commerce, as their principal function, and in connection therewith, and by the same instrumentalities, a small percentage of local business, a tax measured by the entire capital, both interstate and domestic, is unconstitutional because its necessary effect is to burden directly and substantially the interstate portion of the company’s capital, business, and property, and is, consequently, based on an unlawful measure, as was decided in the case of the Kansas tax in precisely the same terms as the statute of 1909 here involved (216 U. S. 1, 56).</p> <p>“9. As applied to the petitioner, the said tax under the said Act of 1914 is unconstitutional because it does not afford ‘equal protection of the laws,’ in that it arbitrarily and without reason classifies companies having less than $10,000,000 capital and those having in excess of that amount, and arbitrarily taxes the former class, consisting of the smaller corporations, at a rate twice as high as that imposed by reason of such excess on the larger and richer corporations, thereby unfairly and arbitrarily discriminating in favor of those best capable of standing the burdens of taxation.</p> <p>“10. The said tax under said act of 1909 is also unequal and unconstitutional, under the ‘equal protection of the laws’ clause, because it charges, without discrimination, the same rate for the local privilege without regard to whether the company’s local business amounts to one per cent or ninety-nine per cent of its total sales or commerce here transacted, and because, further, the provision for a maximum of $2,000 unfairly and unequally discriminates against the smaller corporations, the corporation with $10,000,000 capital paying precisely the same as that with $100,000,000 capital and paying nothing whatever on its capital in excess of $10,000,000.</p> <p>“11. If, as in the case of the petitioner, the company receives as a part of the consideration for sale of new machines for delivery in this State from another State, old second hand machines and if its sales here made are confined to the resale of these second hand machines and if it does no local business other than repairing machines sold in interstate commerce; and if, further, the abandonment of the privileges of reselling second hand machines or making such repairs would necessarily affect substantially the amount of sales made by the company for delivery from another State into this State, then the local business is fairly incident to its interstate commerce and the said excise is unconstitutional because it necessarily burdens the interstate commerce of the company. The said excise tax does not apply to such a company; and, if so applied, would be unconstitutional under the Federal Constitution.</p> <p>“12. Although a tax otherwise lawful may, in some instances, be measured by capital or gross receipts, the Massachusetts excise uses an unlawful and unconstitutional measure, because, being measured by the entire capital stock, it necessarily affects directly and substantially that part of the capital employed in interstate commerce or outside of this State, as was held as to the Kansas tax in precisely the same terms as said act of 1909 (216 U. S. 1, 56).</p> <p>“13. In the case of the petitioner, the increase of capital resulted in an increased tax of $300 per annum.</p> <p>“If, as is shown, the increased capital was all invested outside of the State, resulting in an increase of interstate commerce, and no increase of domestic business whatever resulted in Massachusetts, it necessarily follows that the increase of the tax must have been paid out of the increase of interstate business and necessarily became a direct burden on interstate commerce or property outside of the State, in which Massachusetts has no interest, and the said excise is, therefore, unconstitutional.</p> <p>“14. St. 1909, c. 490, Part III, § 56, as amended by St. 1914, c. 724, as applied to this petitioner is unconstitutional under the Massachusetts Constitution, because it exceeds the power of the Legislature to impose and levy ‘reasonable’ duties and excises, as limited by Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution.</p> <p>“The Massachusetts excise is wholly unreasonable.</p> <p>“ 15. The petitioner, upon the agreed facts, is entitled to recover the tax paid by it.”</p> <p>The single justice refused to make any of these rulings and ordered the entry of a decree dismissing the petition. The petitioner alleged exceptions.</p>

<p>Bill in equity, filed on February 12, 1916, and amended on November 21, 1916, as of March 4, 1916, by the insured under a policy of endowment life insurance, seeking the cancellation of the policy of insurance and a return of the premiums paid under it on the ground stated in the opinion, and seeking in the alternative the establishment of an equitable lien upon the insurance money for the amount of the premiums paid by the plaintiff. The amendment to the bill referred to above was by adding to it the following: “The defendant, Mary S. H. Rouse, is the only child of the plaintiff and of Fanny F. S. Hayes, and interested in the cause as sole heir at law and the residuary legatee under the will of said Fanny F. S. Hayes, deceased, the plaintiff’s wife.”</p> <p>The defendants demurred to the bill as amended, and the case was heard upon the demurrers by Carroll, J., who overruled the demurrers, and, being of opinion that the interlocutory decree or order overruling the demurrers so affected the merits of the controversy that the matter ought, before further proceedings, to be determined by the full court, reported the question for such determination.</p>

Bill in equity, filed in the Supreme Judicial Court on February 2, 1914, by the assignee of Annie B. McCarthy against the Barton Child Company, a corporation, to enforce the pledge and transfer of the defendant’s book accounts to said Annie B. McCarthy by an instrument under seal dated December 3, 1910.

<p>Tort, originally with a single count as follows: “And now comes the plaintiff in the above entitled cause and says that the defendant is a corporation operating a private hospital in that part of Boston called Roxbury and that on the twenty-fourth day of December nineteen hundred and eleven the plaintiff was etherized in the operating room of the defendant and that the charge for operating expenses included the proper guarding of the plaintiff’s person while under the ether from any unwarrantable interference and this duty was so negligently performed that the plaintiff suffered great damage to wit: the loss of a diamond ring from her finger.” Writ in the Municipal Court of the City of Boston dated January 31,1912.</p> <p>. The case was removed to the Superior Court and. on November 24, 1913, the plaintiff was allowed to amend her declaration by adding a second count as follows: “ Second count: And now comes the plaintiff and says that the defendant is a corporation operating a private hospital for hire in that part of Boston known as Roxbury, in which the defendant was accustomed and undertook to provide the necessary care, attention, operating room and attendance of nurses for persons who wished to go there for medical or surgical treatment and who were ready and willing to pay for the same; that on or about the twenty-fourth day of December, 1911, the plaintiff was an inmate of the said hospital, paying a valuable consideration for board, room, nurses, use of operating room, attendance, and all necessary care incident to an operation to be performed on the plaintiff in said hospital, partly under the care of the said defendant and its nurses while in the operating room of said hospital and wholly under the care of the said defendant and its nurses outside of the operating room; that during the operation and for some time thereafter the said plaintiff was under the influence of ether; that at the said time the plaintiff possessed and wore on the ring finger of her left hand a valuable diamond ring; that the said ring was lost, stolen or in some way was removed or disappeared from the finger of the said plaintiff while the said plaintiff was under the care of the said defendant, its servants and agents; that the said disappearance or loss of the ring was due to the negligence of the defendant, its servants or agents or to the illegal acts of commission of the servants or agents of the defendant. And the plaintiff further, says that in all the premises she was in the exercise of due care.” .</p> <p>The case was tried before Morton, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the plaintiff asked the judge to make, among others, the following rulings:</p> <p>“ 1. The defendant being a corporation can act only through its officers, agents or servants; and therefore the defendant is liable for a theft committed by its agents or servants, while acting within the scope of their employment, precisely the same as though the theft had been committed by the defendant itself, provided you find that a theft was committed.”</p> <p>“5. Both the hospital and nurses were in the general control of the defendant, and, during the time that the plaintiff remained in the operating room, the nurses who assisted at the operation remained in the general control of defendant who paid them for their services, and subject to its orders and, therefore, as matter of law, they were not, for the time being, the servants of the operating physicians, but they were merely subject to their directions as to details, and therefore the defendant might be found liable for a theft committed by the nurses while the plaintiff was in the operating room, provided you find that a theft was in fact committed.”</p> <p>“11. Before the plaintiff was etherized the ring had been in the personal possession of the plaintiff and under her immediate care. After she was etherized a change was thereby made in the actual physical situation. After the plaintiff was etherized the ring was in the personal possession of the defendant and under its immediate care acting through its nurses. From the nature of the transaction, since the plaintiff had lost the use of her senses, the plaintiff had ceased to be in charge of the ring and the defendant had as matter of law assumed the entire charge of the ring as well as the plaintiff’s body and the clothing, if any, which covered her body.</p> <p>“ 12. The general control of the hospital was in the defendant. By the nature of the contract between the plaintiff and the defendant the custody of the plaintiff’s wearing apparel and adornments of the person must have been in the defendant when the plaintiff was under the influence of ether, and the consideration paid ought, as a matter of business, to secure some protection to the plaintiff where the condition of being under the influence of ether, to which she was expected to conform, put it out of her own power to look after her effects herself.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury with the instructions described in the opinion. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, Rescission, Performance and breach.</p> <p>In an action by a mason on an account annexed for work and materials furnished for a cottage of the defendant, it appeared that there had been a special contract between the parties for doing certain mason’s work at the cottage for an entire price and that this contract required the building of twenty-five concrete piers, concrete basement walls and a chimney with a fireplace of West Barnstable brick, which was brick of a well known quality. This contract afterwards was modified by the substitution of tapestry brick for West Barnstable brick in the fireplace. An auditor found that this was such a radical departure from the original contract as to amount to a revocation of it. Held, that this finding was warranted'and that the plaintiff might recover on a quantum meruit.</p> <p>In the case above described it appeared that in laying the tapestry brick and building the fireplace the plaintiff followed the personal directions of the defendant and that he used ordinary skill. It further appeared that the fireplace when finished was not a good fireplace and was not constructed in a "workmanlike manner,” but that this result was due to the failure of the defendant to furnish the plaintiff with adequate plans and necessary materials. Held, that the plaintiff was not responsible for these defects and, in spite of them, might recover the value of the work and materials furnished.</p> <p>In the same case it appeared that the plaintiff instead of building the basement walls of concrete, as had been required by an unchanged part of the original contract, built these walls of artificial concrete or cement blocks laid in lime mortar, and that in consequence the walls as constructed were not impervious to water, as they should have been. The auditor found that it would cost $20 to make the walls built equal to those agreed upon and required. On the evidence presented the only way to determine the amount of the deduction from his claim which the plaintiff ought to sustain by reason of his failure to follow the defendant’s direction in this respect was to deduct $20 from the total fair value of the work and materials furnished. The judge who heard the case did this. Held, that this was right.</p>

<p>.Contract by a physician on an account annexed to recover $59 for professional services. Writ in the Municipal Court of the City of Boston dated April 6, 1915.</p> <p>The defendant’s answer as amended alleged “that the fees for which the plaintiff brings this action are subject to the approval of the Industrial Accident Board and that such fees have never been approved by said board.”</p> <p>The Municipal Court found for the plaintiff, and, at the request of the defendant reported the case to the Appellate Division. The Appellate Division made an order that the report be dismissed; and the defendant appealed.</p>

<p>Agency, Real estate broker, Commission. Contract, Performance and breach.</p> <p>In an action by a real estate broker to recover a commission for procuring a purchaser for the defendant’s farm, it was held, that the judge, who at the request of the defendant had given a ruling that the plaintiff could not recover unless by the time agreed he produced “a customer ready, able and willing to enter into a binding, that is, written, contract to take the property,” was right, under the circumstances disclosed by the evidence, in modifying the ruling by stating that he did not intend to rule “that the actual physical presence of the customer at the time and place was necessary.”</p> <p>It is not a universal rule that a real estate broker cannot earn a commission for procuring a purchaser for his customer’s land without obtaining a binding contract signed by the purchaser.- The signature of the purchaser' is only a condition precedent to the payment of a commission when it is made so expressly by the broker’s contract of employment or such a condition fairly is to be implied from that contract.</p>

<p>Tort for personal injuries sustained on December ll,1914, whéá the plaintiff was in the employ of the defendant at Gardiner in the State of Maine, by reason of an explosion of dynamite. Writ dated April 12, 1915.</p> <p>The plaintiff’s declaration contained seven counts, but the plaintiff waived all except the first, second' and fifth;- The first count alleged that the defendant negligently put the plaintiff at work in an unsafe place; the second count alleged that the defendant negligently failed to warn the plaintiff of dangers of which the defendant had knowledge and the plaintiff did not; and the fifth count alleged that the defendant negligently failed to inspect a certain blast after it had been fired, in consequence of which the plaintiff was injured.</p> <p>The answer contained a general denial and alleged lack of due care on the part of the plaintiff and assumption of risk by him.</p> <p>In the Superior Court the case was tried before Chase, J. The following facts were not in dispute at the trial. In the autumn and winter of 1914 the defendant was doing the excavation and other work in connection with the construction of a slow sand filter for the Gardiner water district. At first dirt and boulders were excavated, and early in November operations had been begun upon , a ledge on the premises, necessitating a good deal of blasting. Before this there was some blasting of small boulders, but, after work on the ledge itself began, there was blasting regularly — one or two blasts every day. There were roughly twenty men engaged on the work, laborers, teamsters, a blacksmith and the man who ran the boiler. The day before the accident there had been a failure of some of the holes to explode, but finally the blast was fired. The following day the men were removing the broken pieces of stone. One of these stones, in size about six or seven feet long and four feet through, was difficult to move. One Miller had a pair of horses attached to this stone with a chain and was endeavoring to move it, and one Luciano and the plaintiff were assisting him by using an iron bar on the stone, when there was a sudden explosion, causing the injuries for which this action was brought. The testimony of the plaintiff and that of the defendant and the nature of the accident are described in the opinion.</p> <p>: At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. On all the evidence the plaintiff is not entitled to recover on his first count.</p> <p>“3. On all the. evidence, the plaintiff is not entitled to recover on his second count.”</p> <p>"6. On all the evidence the plaintiff is not entitled to recover on his fifth count.”</p> <p>“ 10. On all the evidence the plaintiff was not in the exercise of due care.”</p> <p>' “12. On all the evidence the plaintiff assumed the risk of the happening of such an accident as is alleged in his declaration to have taken place.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury on the first, second and fifth counts of the plaintiff’s declaration in a charge to which the defendant took no exception. The jury returned a verdict for the plaintiff in the sum of $10,000; and the defendant alleged exceptions to the refusal of the rulings requested by him.</p> <p>St. 1911, c. 751, Part I, § 1,is as follows: "In an action to recover damages for personal injury sustained by an employee in the course: of his employment, or for death resulting from personal injuries so sustained, it shall not be a defence: 1. That the employee was negligent; 2. That the injury was caused by the negligence of a fellow employee; 3. That the employee had assumed the risk of the injury.”</p>

<p>Bill in equity, filed in the Superior Court on February 4, 1913, to enforce an alleged trust in certain hides and the proceeds thereof named in a trust receipt dated March 22, 1910, and signed “E. F. Mulholland Co.”</p> <p>After the entry of the rescript issued in pursuance of the decision reported in 224 Mass. 448, an interlocutory decree was made by Lawton, J., recommitting the case to the master for the purposes stated in the opinion. The master filed a supplemental report, to which no objections or exceptions were filed, and thereafter by order of Wait, J., after a hearing of the parties, a final decree was entered, which ordered</p> <p>“That the master’s supplemental report be and the same is hereby confirmed; and, it appearing that the plaintiff received the bill of lading as the agent of ICaufman, and upon accepting the draft to which it was attached, took title to the hides as security to itself for payment of the amount it had obligated itself to pay to Kaufman, and that it thereafter paid Kaufman out of its own funds; and that the only title which E. F. Mulholland Company ever had in and to the hides was such title as it held under the terms and provisions of the trust receipt;</p> <p>“That as a matter of law, in view of the findings of the master and inference to be drawn therefrom, the deposits and the leather are sufficiently identified with Lot No. 73 to impress them with the trust claimed;</p> <p>“That the claim of the Peoples National Bank against the firm of E. F. Mulholland and Company, composed of the defendant Mulholland and the late Cornelius J. Coughlin, be and hereby is established at the sum of $4,540.57, together with interest thereon at the rate of six per cent from October l‘, 1911, amounting in all on this tenth day of November, 1916, to $[53933.01, at which sum the debt due to the plaintiff as aforesaid is established;</p> <p>“That the defendant Coughlin, as administratrix of the estate of the late Cornelius J. Coughlin, has in her hands, possession and control the sum of $2,241.22, and the sum of $997.59 (together with any interest that may have accumulated thereon since the date of the deposit of said sums in the Federal Trust Company) as the proceeds of the property of the plaintiff described in the plaintiff’s trust receipt set forth in the bill, together with 1,510 feet of mat calf leather and 10,452 feet of black ooze calf leather, which is also the proceeds of the property of the plaintiff described in said trust receipts, and that said moneys and said leather are the property of the plaintiff; and the said defendant Coughlin, administratrix as aforesaid, shall forthwith pay over and deliver unto the plaintiff said moneys and said leathers, the same to be applied in reduction of the debt due the plaintiff;</p> <p>“That the defendant Mulholland pay unto the plaintiff the aforesaid sum of $5,933.01, with interest thereon subject to a credit to be allowed of the amount paid to the plaintiff, together with that realized from the aforesaid leather, and let execution issue therefor. The defendants are hereby directed to pay the plaintiff its costs, amounting to $61.28, and execution is to issue therefor.”</p> <p>The defendant Ellen T. Coughlin, administratrix, appealed from this decree.</p>

<p>Bill in equitt, filed in the Supreme Judicial Court on July 27, .1916, by the trustees under the will of Edwin Ginn of Winchester, who died on January 21, 1914, leaving a will dated July 20, 1911, with a codicil dated February 17, 19.12, for instructions.</p> <p>The case came on to be heard before Pierce, J., who at the request of the parties reserved it upon the pleadings and the master’s report for determination by the full court.</p> <p>The specific instructions requested by the trustees were as follows:</p> <p>“First: Whether the plaintiffs shall set aside any of the trust property as a separate fund to be held by them for the benefit of the World Peace Foundation, as provided by the will, and if so, what property shall be so set aside and held.</p> <p>“Second: In what manner and by what method is the amount or rate of income payable to the World Peace Foundation under said will to be reckoned; whether it shall be that amount of income received from a specified part of the trust property designated for that purpose, or shall be the average rate of income received on the whole trust property, or any specified part thereof, of which the sum of $800,000 is to be deemed a fractional part, or whether it shall be reckoned in any other manner.</p> <p>“Third: Whether in the reckoning of the income payable to the World Peace Foundation under said will, proceeds of the sales of vacant real estate shall be treated as principal of the trust property, or whether the same shall be apportioned between principal and income.</p> <p>“Fourth: Whether in the reckoning of the income payable to the World Peace Foundation under said will, the premiums paid upon the bonds of the executors and of the trustees under the will shall be charged against principal or against income.</p> <p>“Fifth: Whether in the reckoning of the income payable to the World Peace Foundation under said will, any deductions shall be made on account of local annual taxes or of inheritance taxes, heretofore assessed upon and paid by the representatives of this estate from the property in their hands, or which shall hereafter be assessed upon the plaintiffs and paid by them thereon, and, if so, on what basis such deductions shall be reckoned.</p> <p>“Sixth: Whether the plaintiffs shall deduct from the several annuities given by the will the amount of Massachusetts inheritance taxes and other taxes assessed and paid thereon, or whether the same are payable from the capital of the estate, or any part thereof, or are to be dealt with in any other maimer.</p> <p>"Seventh: Whether the plaintiffs shall deduct from the income payable under the will to the World Peace Foundation the amount of any taxes upon the interest of the said foundation, under the will, paid to the State of Minnesota, or whether the same were payable from the capital of the estate, or any part thereof, or are to be dealt with in any other manner.</p> <p>"Eighth: Whether the annuities given by said will are a charge upon both principal and income of said estate, and whether a fund is to be erected by the plaintiffs for the support of said annuities, and if so, what property is to be so set aside, or otherwise designated and held for the protection of the respective annuitants, and what amount thereof, and in what manner shall the same be invested by the plaintiffs.</p> <p>“Ninth: Whether the plaintiffs are to set aside and designate shares in Ginn and Company or other property, to be held for the purposes designated in article fifteen, clause eight of the will, for the benefit of the testator’s sons, Maurice or Edwin, or either of them, and if so, what amount of property is to be so set aside and held, and for what period shall the same be held.</p> <p>“Tenth: Whether the plaintiffs are to reserve and set aside, or designate in any manner, any portion of the income from the trust estate, and hold the same for the purposes stated in article fifteen, clause eight of the will, for the benefit of the testator’s sons, Maurice or Edwin, or either of them, and if so, what amotint of income is to be so set aside and held, and for what period shall the same be held.</p> <p>“Eleventh: Whether any amount is payable to the World Peace Foundation from the accumulated income of the trust now in possession of your plaintiffs, on account of income due to said foundation, accumulated and remaining unpaid for the year 1914, or for the year 1915, down to January 21, 1916.</p> <p>“Twelfth: Whether the plaintiffs shall pay from the cash now in their hands and possession the amounts given by the will to the legatees named in article fifteen, clause thirteen thereof, as modified by the codicil, and, if so, from what date interest thereon, if any, shall be paid to the respective legatees.</p> <p>“Thirteenth: Whether the amount of said legacies contained in article fifteen, clause thirteen, in case the court shall decide that the same be not now paid, shall be held by the plaintiffs as a part of the whole residuary trust fund, or shall be set aside in a separate fund and held for the benefit of said legatees pending the time when the court shall decree that the same may be paid over, and if so, as of what date shall the same be set asideTand shall interest run thereon, or shall the same be dealt with in any other manner.</p> <p>“Fourteenth: Whether the remaining cash principal of the trust fund, or any part thereof, now in the possession of the trustees, shall be paid over to the residuary legatees, and if not, in what manner the same shall be held and managed by the plaintiffs.</p> <p>“Fifteenth: Whether the accumulated cash income, or any part thereof, now in the possession of the trustees, shall be paid over to the residuary legatees or dealt with in any other manner.</p> <p>“Sixteenth: Whether the plaintiffs, as trustees, have any power under the will to invest and reinvest the trust property, or any part thereof, and if not, whether the court will grant such power and authority, and in so doing will define the extent and limits of the power as granted.</p> <p>“Seventeenth: Whether the gifts to Marguerita and Edwin under article fifteen, clause five, are for their lives respectively, or for any other period.”</p>

<p>Contract, What constitutes. Equity Jurisdiction, To compel specific performance of contract.</p> <p>The signing of an agreement in writing to subscribe for the shares of a proposed Massachusetts corporation, which refers to a prospectus, in which it is stated that counsel advise that a new corporation be formed to take over the property of a certain Virginia corporation and there follows an outline of the proposed capitalization of the new Massachusetts corporation and a statement of the terms on which stockholders in the Virginia corporation may exchange their shares for shares in the new Massachusetts corporation, does not create a contract of the subscribers with the Virginia corporation or with any of its stockholders.</p> <p>Negotiations, proposals or schemes, which do not possess the essential elements of a completed contract, cannot be enforced in equity by a bill for specific performance. Nothing short of a completed contract can be made the foundation of such a bill.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on October 30, 1916, against Joseph C. Gethro of Norwood and the New England Equitable Insurance Company, a corporation organized under the laws of this Commonwealth engaged in the business of casualty insurance, alleging that on June 23, 1914, the defendant insurance company entered into a contract with the defendant Gethro by which it insured him in the sum of $5,000 against loss or damage on account of bodily injury or death by accident of any person for which he would be responsible by reason of the operation of a motor car of which he was the owner, that on July 4, 1914, the plaintiff received severe bodily injury by reason of the negligence of the defendant Gethro in the operation of his motor car and brought an action against that defendant in which he recovered judgment against him in the sum of $6,862.33 damages and $78.40 costs, that this judgment was not satisfied in whole or in part by the defendant Gethro out of his insurance for the sum of $5,000 with the defendant insurance company or otherwise, and that under St. 1914, c. 464, the plaintiff was entitled to have the insurance money applied to the satisfaction of his judgment. The prayer of the bill was that the defendant insurance company might be ordered to pay to the plaintiff the sum of $5,000 so far as might be necessary for the satisfaction of the plaintiff’s judgment against the defendant Gethro.</p> <p>The defendants demurred to the bill, assigning as causes of demurrer the following:</p> <p>“ 1. That the statute under which recovery from the defendants or either of them is sought is unconstitutional, and therefore the plaintiff sets up no cause of action cognizable in law or equity.</p> <p>“2. That the matters set forth in the bill of complaint are insufficient in law to enable the plaintiff to maintain his action, either in law or in equity.”</p> <p>The case was heard upon the demurrer by Pierce, J., who ordered that the demurrer be overruled and, at the request of the defendants, reported his ruling for determination by the full court, such orders or decrees to be entered as equity and justice might require.</p> <p>St. 1914, c. 464, is entitled “An Act to regulate the payment of losses under contracts for casualty insurance,” and is as follows:</p> <p>“Section 1. In respect to every contract of insurance made between an insurance company and any person, firm or corporation, by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or death by accident of any person, for which loss or damage such person, firm or corporation is responsible, whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage, or death, occasioned by said casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the said assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void.</p> <p>“Section 2. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death, if the defendant in such action was insured against said loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money, provided for in the contract of insurance between the insurance company and the defendant, applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.”</p> <p>The act was approved on May 2, 1914.</p>

<p>Two bills IN equity, filed in the Superior Court on September 5, 1916, the first by Rose Williams, and the second by Barnett Williams, her husband, the plaintiffs respectively having recovered judgments against the defendant Nelson for bodily injuries to the plaintiff Rose and alleged loss or damage arising therefrom, seeking under St. 1914, c. 464, to have the insurance money under a policy of casualty insurance issued to the defendant Nelson by the defendant United States Fidelity and Guaranty Company applied to the-satisfaction of the said judgments.</p> <p>The suits were heard together by Jenney, J. The material findings of the judge are stated in the opinion. The defendant insurance company asked the judge to make the following findings:</p> <p>“ 1. The defendant requests that the court shall find that at the time of the accident the automobile was being driven or manipulated by James H. Nelson, a minor under the age of sixteen years.</p> <p>“2. The conditions precedent of the policy have not been complied with of satisfied.</p> <p>“3. James E. Nelson was not in a position in the automobile at the time of the accident so that he could have prevented the accident by applying the levers or pedals provided for stopping the automobile.</p> <p>“4. James E. Nelson was not in a position in the automobile at the time of the accident so that he could properly drive or manipulate the automobile.”</p> <p>The judge stated that he had made the fourth finding requested and had made the third in substance. The first and second requests he refused. He ordered that a decree should be entered directing the defendant insurance company to pay to the plaintiff Rose Williams the amount of the judgment in her favor with interest, and that a similar decree should be entered in the suit of Barnett Williams.</p> <p>Later by order of the judge final decrees were entered in accordance with the findings and orders made by him. The defendant insurance company appealed, the evidence being reported as taken by a commissioner appointed under Equity Rule 35.</p> <p>R. L. c. 159, § 2, is as follows: “.The Supreme Judicial Court shall have original and exclusive jurisdiction in equity of all cases and matters of equity which are cognizable under the provisions of any statute and are not within the jurisdiction conferred by the provisions of the preceding section, unless a different provision is made; and the Superior Court shall have like original and exclusive, or like original and concurrent, jurisdiction only if the statute so provides.”</p>

<p>Petition, filed in the Probate Court for the County of Middle^sex on March 3, 1917, under St. 1909, c. 490, Part IV, § 20, by the executors of the will of Edwin Ginn, late of Winchester, to recover $52,958.04, that being the amount, determined by the Tax Commissioner, of a legacy and succession tax paid by the petitioners to the Treasurer and Receiver General and alleged to have been imposed unlawfully on the passing by the will of the testator of a devise and legacy to the World Peace Foundation, a corporation organized under the laws of this Commonwealth and alleged to be a charitable institution exempt from taxation.</p> <p>The Probate Court made a decree that the tax was assessed without authority of law and was exacted wrongfully, and ordered that the entire tax so assessed should be abated. The Treasurer and Receiver General appealed, and filed the following objections to the decree: “1. The provision in the will of Edwin Ginn for the benefit of the World Peace Foundation is not a devise or bequest to or for the use of a charitable, educational or religious society or institution, the proprety of which is by the laws of this Commonwealth exempt from taxation, or for or upon trust for any charitable purpose to be carried out within this Commonwealth, within the meaning of the legacy and succession tax law. 2. The tax described in the petition was duly assessed in accordance with the provisions of the legacy and succession tax law, and the decree ordering its abatement was accordingly contrary to law.”</p> <p>The appeal came on to be heard before Loring, J., who at the request of the parties reserved the case, upon the pleadings and the transcript of the testimony taken in the Probate Court, for determination by the full court.</p>

<p>Evidence, Competency, Of value, Admissions, Opinion: experts, Returns to Tax Commissioner. Witness, Impeachment of. Corporation, Returns to Tax Commissioner. Practice, Civil, New trial.</p> <p>At the trial of a petition under St. 1906, c. 463, Part I, § 37, by a corporation for the assessment of damages to the petitioner’s land and factories by changes of grade made in the abolition of the grade crossing of a railroad with a highway, where the president of the petitioner has testified as a witness, the presiding judge in his discretion may admit in evidence, as bearing upon the credibility of the witness, the annual reports made by the petitioner to the Secretary of the Commonwealth under St. 1903, c. 437, § 45, R. L. c. 110, § 51, and Pub. Sts. c. 106, § 54, and a letter to the local assessor, all signed by the witness as president, who in his testimony had placed the value of the corporate property materially in excess of the statements of such value in the reports and the letter, and also may admit in evidence for the same purpose returns to the Tax Commissioner for certain years made under Pub. Sts. c. 13, § 38, as amended by R. L. c. 14, § 37, which, although not signed by the witness, could be found by the jury to have been rendered with his knowledge and consent.</p> <p>In the same case it was held, that the reports and returns, which were made before August 1, 1903, having been executed by the petitioner’s officers, were competent evidence of value in behalf of the respondent.</p> <p>It is within the discretionary power of a presiding judge to determine whether a witness offered as an expert is qualified sufficiently to give an opinion on the matter in question.</p> <p>In the same case it was held, that, in admitting the returns in evidence, the presiding judge should have instructed the jury to disregard the items stating the market value of the shares of the petitioner, as these statements, required by statute to be made for the information of the Tax Commissioner, did not represent that the market or trading value of its capital stock corresponded with the value of its real estate that had been damaged by the changes of grade.</p> <p>In the same case it was said that it was not necessary to decide whether under St. 1913, c. 716, § 1, the error mentioned above would have been sufficient to require a new trial, as a substantial error was committed in admitting other evidence.</p> <p>In the same case it was held that the admission in evidence of returns, made by the corporation to the Tax Commissioner after August 1, 1903, when St. 1903, c. 437, § 48, took effect, which made such returns confidential and privileged and no longer admissible in evidence as admissions, was a material error seriously prejudicial to the petitioner, and required that the exceptions should be sustained. Following Brackett v. Commonwealth, 223 Mass. 119, 126.</p>

<p>Statute, Construction. Contract, Of conditional sale. Sale, Conditional. Mortgage, Of personal property. Notice. Equity Jurisdiction, To restrain removal of personal property. Municipal Corporations, City or town clerk. Real or Personal Property.</p> <p>St. 1912, c. 271, § 1, is as follows: “No conditional sale of heating apparatus, plumbing goods, ranges or other personal property which are afterwards wrought into or attached to real estate shall be valid as against any mortgagee, purchaser or grantee of such real estate, unless within ten days after the making of the contract of conditional sale, such contract, or a memorandum thereof signed by both parties thereto, is recorded in the clerk’s office of the city or town in which the real estate is situated.” Reid, that, the clause “, or a memorandum thereof signed by both parties thereto,” being enclosed in commas, the requirement of the signing by both parties does not apply to the contract of conditional sale itself when that is recorded but merely is intended to ensure the correctness of the memorandum, and the record of an original contract of conditional sale of heating apparatus signed by the purchaser and not by the seller, made within the required time in the clerk’s office of the city in which the real estate is situated, is constructive notice of the contract, and gives the seller as against the mortgagee of the real estate the right to remove such heating apparatus, if unpaid for.</p> <p>Under the statute quoted above, although R. L. c. 25, § 64, requires a city or town clerk to keep an index of instruments entered with him which are required to be recorded, the indexing of the record of such a contract of conditional sale is not a part of the record, and accordingly the recording within the required time by the city clerk of such a contract of conditional sale of plumbing materials installed in a house is none the less constructive notice of the instrument to a mortgagee of the house because the city clerk by mistake omitted to index the record of the contract in the name of the purchaser of the plumbing materials and inserted in the index only the name of their seller.</p> <p>In a suit in equity involving the validity of the contracts of conditional sale for heating apparatus and plumbing materials mentioned above, it was found by a master to whom the case was referred that the heating apparatus and the plumbing materials were attached to the houses in the usual way, that they were of a stock pattern of a type easily duplicated in the open market and that they could be removed without causing any substantial injury to the buildings. Held, that a finding by the master that the heating apparatus and the plumbing materials were personal property was warranted.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding to William C. O’Brien, who was employed as a mason by the firm of Harmon and Hopkins at Taunton, specific compensation (in addition to the compensation theretofore paid to him) of $10 a week for a period of fifty weeks from April 11, 1916, the date of his injury, for reduction of vision in his right eye to one tenth of normal with glasses under the provision of St. 1911, c. 751, Part II, § 11 (b), as amended by St. 1914, c. 708, § 6.</p> <p>The case was heard by Fox, J. The evidence reported by the arbitration committee is described in the opinion. No new evidence was presented before the Industrial Accident Board and the rulings and findings of the arbitration committee were affirmed and adopted. The board found that the employee had sustained a reduction of vision in the injured right eye to one tenth of normal with glasses as a result of a personal injury which arose out of and in the course of his employment; and that there was due the employee a weekly compensation of $10 for a period of fifty weeks, less an overpayment by the insurer of $8.57, the net sum due the employee being $491.43.</p> <p>The judge made a decree in accordance with the décision of the Industrial Accident Board ordering the insurer to pay to the employee the sum named above. The insurer appealed.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding to Thomas Levangie, the employee, under the circumstances stated in the opinion additional compensation for a period of one hundred weeks on the ground that both legs were permanently incapable of use by reason of his injury.</p> <p>The case was heard by Fox, J. The proceedings and the essential facts are described in the opinion. The judge made a decree that the insurer should pay to the insured the sum of $1,000 for specific compensation. The insurer appealed.</p>

<p>Capital and Income. Trust, Apportionment of expenses caused by misappropriation.</p> <p>Where the two trustees holding a trust fund created by will were also the beneficiaries for life of the trust, being entitled to the income of the trust in equal shares, and where one of these trustees wilfully misappropriated a large amount of the trust property and in consequence was removed, and his co-trustee, who was shown to have been culpably negligent in permitting the misappropriation to occur, died, and thereafter a new trustee was appointed, to whom a surety company, which was the surety on the bond of the defaulting trustee, paid the amount of the defalcation, the new trustee was instructed that he should pay the general expenses of the investigation of the trust estate and of the doings. of the former trustees, which had resulted in the exposure of the extensive misappropriations, and also should pay the expenses incident to the recovery of certain real estate in another State from an attempted fraudulent sequestration of it by the dishonest trustee, out of income in his hands which under the terms of the trust would go to the former trustees as beneficiaries, instead of paying these expenses from the capital of the trust which belonged to blameless remaindermen, because the expenses were caused by the misconduct of one beneficiary and the culpable carelessness of the other.</p> <p>In the case stated above it was pointed out, that the fact that one of the former trustees and beneficiaries had died was immaterial, as those who claimed under the beneficiaries stood in their shoes.</p> <p>In the same case it also was pointed out that the fact, that the full amount misappropriated from the capital of the trust fund had been restored by the surety upon the probate bond of the defaulting trustee, did not change the equities of the case, because, after the amount taken had been paid back, the trust fund still would be depleted by the amount of the expenses named above.</p> <p>Upon the same bill for instructions, in answer to another question, it was held, that the expenses incidental to the prosecution of the action on the probate bond against the defaulting trustee and his surety could not be charged to income, because of the theory of the law that the taxable costs prescribed by the Legislature and recoverable in such an action on the bond were a full indemnity for these expenses. Following Mclntire v. Mower, 204 Mass. 233.</p> <p>In the same case it also was held, that, if the new trustee, before the payment made by the surety, had found the trust fund so depleted that he was obliged at the start to use some of the capital to meet the general expenses caused by the faithlessness of the trustees, the capital should be made whole by restoring to it this amount out of the income payable to the beneficiaries whose active or culpable fault as trustees had caused the expenses.</p>

<p>Conservator. Contract, Implied in law. Practice, Civil, Admission of truth of facts set forth in a pleading. Pleading, Civil, Answer. Estoppel. Bank.</p> <p>Description by Carroll, J., of the relation of a conservator appointed under R. L. c. 145, §§ 40, 41, as amended by St. 1910, c. 95, to the property of his ward.</p> <p>If a conservator makes a deposit in a bank in his own name as conservator for his ward, the bank is accountable to him and not to his ward for the amount of the deposit.</p> <p>A conservator, after the death of his ward, has a right to retain the possession or custody of the property of the ward in his hands until his account has been passed upon by the Probate Court, and, until the amounts due to him for services and expenses have been determined by that court, he may hold possession of the property against the executor of the will of his deceased ward.</p> <p>Under a statement, in a report of a case by the presiding judge, that “At the trial the allegations and facts set forth in the answer of the defendant were admitted to be true,” the plaintiff is not bound by a mere conclusion of law alleged in the answer.</p> <p>In an action of contract, where the plaintiff has admitted at the trial that “the allegations and facts set forth in the answer of the defendant” are true, and the answer contains a statement which may be either a conclusion of law or a statement of fact and which, if it is a statement of fact, is of doubtful meaning and the decision of the case depends upon its meaning, the presiding judge should not order a verdict for the defendant, but should leave to the jury the question of fact that is doubtful upon the statement in the answer, if, as in the present case, there is evidence for the plaintiff upon that issue.</p> <p>In an action for money had and received brought by a conservator against • trust company, with which, as alleged, he had deposited the money in his own name as conservator for his ward, it appeared that the ward of the plaintiff had died and that the defendant had paid the amount of the deposit to the executor of her will without the knowledge or consent of the plaintiff. The judge allowed the defendant to introduce in evidence, subject to the plaintiff’s exception, a petition of the executor for a partial distribution of the estate of the plaintiff’s ward, in which the plaintiff had joined and in which the estate was represented as including the amount of the deposit with the defendant. The defendant contended that the plaintiff was estopped by this proceeding, to which he was a party, from claiming the fund deposited by him as conservator, but no such defence of estoppel was set up in the answer. It was held that the defence of such an estoppel, not being set up in the answer, was not open to the defendant, but it was said, that, if the defence had been open under the pleadings, it could not prevail, because the plaintiff by joining in the former proceeding had not lost his right to claim the deposit if it stood in his own name and the contract of the defendant was made with him and not with his deceased ward.</p>

<p>Petition, filed in the Superior Court on June 2, 1913, by the executrix of the will of David W. Bishop, late of Lenox, who died at Paris, France, on December 1, 1911, under St. 1909, c. 490, Part I, § 77, .for the abatement of a tax assessed on the estate of the testator for the year 1912, and, after a partial -abatement by the assessors, paid under protest by the petitioner.</p> <p>The case was referred to a commissioner, appointed under St. 1909, ,c. 490, Part I, § 79, “ to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.”</p> <p>The case was heard by Jenney, J., upon the commissioner’s report and an agreed statement of facts supplemental thereto. The judge made an order confirming the findings of fact set forth in the commissioner’s report and made a decree that the taxes assessed against the petitioner in the sum of $7,450.79 and paid by her under protest on May 31, 1913, as alleged in the petition, be abated and that judgment be entered for the petitioner in the sum of $7,450.79 with interest thereon in the sum of $1,657.80 together with taxable costs. At the request of the parties, the judge reported the case upon the pleadings, the commissioner’s report, the agreed statement of facts, the findings of the judge and the order of judgment thereon for determination by this court.</p> <p>St. 1909, c. 490, Part I, § 43, is as follows: “The assessors shall in all cases require a person, firm or corporation bringing in a list to make oath that it is true. The oath may be administered by any of the assessors or by their secretary or head clerk. If the person, firm or corporation bringing such list is absent from the place in which the tax is to be assessed during the whole period when such oath may be made, it may be administered by a notary public, whose jurat shall be duly authenticated by his seal.”</p>

<p>Probate Court, Appeal, Supreme Judicial Court. Conservator.</p> <p>Under R. L. c. 162, § 23, which gives to the Supreme Judicial Court on an appeal from a decree of the Probate Court the power to “enter such decree thereon as the Probate Court ought to have entered ... or make any other order therein, as law and justice may require,” the authority of the appellate court is limited necessarily to the issues heard and determined in the Probate Court, and the statute cannot be construed to confer on the Supreme Judicial Court jurisdic- . tian to determine matters not necessarily involved in the determination of the issues before the Probate Court.</p> <p>Accordingly on an appeal from a decree of the Probate Court allowing with certain modifications the accounts of a conservator of the property of a deceased ward, the allowance of which was opposed by the executor of the will of the ward, it was held that the single justice who heard the appeal was right in refusing as matter of law to allow charges of the conservator for services of counsel rendered and expenses incurred after the decree of the Probate Court was made, and it was said that the conservator must seek relief by the presentation of a ■supplemental account in the Probate Court.</p> <p>In the same case it was held that such charges could not be allowed as costs and expenses under R. L. c. 162, § 44, because under the circumstances of the case the account allowed was not a final account nor in the nature of a final account.</p> <p>In the same case it was held that a finding of a master in regard to the account of the conservator, that it was prudent for the conservator to leave deposited in a trust company uninvested a balance of from $1,200 to $2,000, earning only two per cent, could not be said to be clearly erroneous, where the master also found that the condition of the ward was such that at any time the conservator “might be called upon to defray the cost of doctors, nurses and attendants” and also of the removal of the ward to an asylum and of treatment there.</p> <p>In the same case the master found that certain presents of money and furs by the conservator to the persons who had personal custody of the ward were made solely for what the conservator conceived to be the interest and benefit of the ward, that the expense to the estate of the gifts was small and that the results were of inestimable value to the ward, and it was held that the payments for the presents were wise and judicious expenditures of the money of the ward.</p> <p>In the same case it appeared that it was necessary for the conservator to attend the funeral of the ward and that he made a charge for expenses incurred in attending the funeral, but there was no evidence to show the amount of such expenses, and it was held that an exception to the master’s finding must be overruled.</p> <p>In the same case certain charges of the conservator related to the collection by him of money due on a policy of the Massachusetts Hospital Life Insurance Company and it appeared that by the terms of the policy, which was called an “annuity in trust,” the principal sum was to be paid "to the said conservator or his successors,” and it was held that the cofiection of the money due on the policy was proper and that all reasonable expenses incidental to its coEeetion were incurred properly by the conservator.</p> <p>In the same case the evidence relating to the reasonableness of the charges of the conservator for his own services was not reported, but the master’s conclusion of fact, that the charges were reasonable, was in accordance with the evidentiary facts reported by the master and was affirmed by the single justice who heard the case, and it was held that an exception to the finding must be overruled.</p> <p>"Upon cross appeals taken by an executor and by the conservator of the property of the testatrix from a decree of the Probate Court allowing with certain modifications the account of the conservator, the question of taxable costs rests wholly in the discretion of the single justice who hears the appeals.</p>

<p>Equitable Restrictions. Land Court. Constitutional Law, Taking property for private purpose with full compensation cannot be authorized. Eminent Domain. Real or Personal Property.</p> <p>Equitable restrictions are real estate as a part of the land to which they are appurtenant.</p> <p>St. 1915, c. 112, purporting to confer on the Land Court jurisdiction “to hear and determine the question whether or not equitable restrictions arising under contracts, deeds or other instruments, limiting or restraining the use or the manner of using land are enforceable in whole or in part,” and undertaking to authorize that court, if it shall find that the restrictions are valid though not enforceable, to refer the case to the Superior Court for the ascertainment of damages, and, “ at any time after such assessment for the benefit of the persons or property entitled thereto,” giving a petitioner under the statute the right to pay the amount of damages with interest into the Superior Court, and providing that, upon certification of the fact of such payment to the Land Court, that court may register the title to the petitioner’s land free from restrictions, is unconstitutional and void, because the taking of property for a private purpose without the consent of its owner upon payment of full compensation is a violation of arts. 1, 10 of the Declaration of Rights and cannot be authorized by statute.</p>

<p>Contract by Wendell D. Rockwood, who on December 21, 1915, was elected mayor of Cambridge for a term of two years from the first Monday of January, 1916, for $5,000, alleged to be the amount of his salary from January 3, 1916, to January 1, 1917.</p> <p>In the Superior Court the case was submitted to Fox, J., upon an agreed statement of facts, of which the substance is stated in the opinion. The judge found the facts to be as stated in the agreed statement of facts and reported the case for determination by this court, such judgment to be entered as should be in accord with such determination.</p> <p>St. 1915, c. 267, Part III, § 7, so far as material, is as follows: “The mayor shall receive for his services such salary as the city council by ordinance shall determine, not exceeding five thousand dollars a year, and he shall receive no other compensation from the city. His salary shall not be increased or diminished during the term for which he is elected.”</p> <p>St. 1915, c. 267, Part 1, § 4, is as follows: “All ordinances, resolutions, orders or other regulations of a city or of any authorized body or official thereof, existing at the time when such city adopts a plan of government set forth in this act, shall continue in full force and effect until annuled, repealed, modified dr superseded.”</p>

<p>Evidence, Competency, Remoteness. Motor Vehicle. Practice, Civil, Exceptions, Discretionary power of presiding judge. Witness, Questions to show character.</p> <p>The fact that a party to an action did or did not do a certain act cannot be proved by evidence that at other times it had been his custom to do or not to do this act.</p> <p>In an action for personal injuries caused by the collision of a bicycle which the plaintiff was riding with a motor truck operated by the defendant, the plaintiff testified that he was on the right hand side of the road and that the defendant swerved with his motor truck to the left in order to turn a corner to the right and thus ran into him, while the defendant testified that he was driving on the right hand side of the road, not intending to turn the corner, and that the plaintiff’s bicycle was wobbling from one side of the road to the other and ran into the truck. A witness for the plaintiff was allowed, without objection from the defendant, to testify that he had seen the defendant’s truck go up this same road at other times. On cross-examination the defendant, subject to the plaintiff’s exception, was allowed to ask the witness "What kind of a turn” the defendant’s truck “customarily” made in going round the corner in question, and the witness answered that the truck turned close to the corner when he had seen it. The defendant contended, that, the plaintiff having asked the witness on his direct examination as to the defendant’s truck having been driven up this road at other times, the presiding judge in his discretion might allow the defendant to introduce further evidence on this immaterial issue, but it was held that the question in regard to the manner of turning the corner was not opened by the plaintiff, so that the rule as to the discretionary power to allow an immaterial issue to be met after being opened did not apply.</p> <p>In the same case it was held that the plaintiff was harmed by the admission of the incompetent evidence in regard to the defendant’s customary way of turning the corner, because, if the jury had believed the plaintiff’s testimony that the defendant swerved to the left, they could find that the defendant was violating St. 1910, c. 605, § 5, which requires that a motor vehicle “ approaching a crossing of ways” shall “keep to the right of the intersection of the centres of both ways, when turning to the right.”</p> <p>In the same case it appeared that two of the plaintiff’s own witnesses had testified that after the accident the defendant’s truck was on the right hand side of the road about fifty feet before reaching the corner in question, and the defendant contended that in the light of this evidence the admission of the incompetent evidence as to the defendant’s customary way of turning the corner could not have harmed the plaintiff, but it was held that this testimony of the plaintiff’s two witnesses was in conflict with the testimony of the plaintiff himself and that the jury were at liberty to believe the plaintiff.</p> <p>At the trial of an action of tort for personal injuries, where the plaintiff and the defendant both have testified as witnesses, it is within the discretionary power of the presiding judge to allow the plaintiff and the defendant each to be asked how many children and how much of a family he has in order to enable the jury to learn in a general way “what sort of a man is on the witness stand.”</p>

<p>Workmen’s Compensation Act, Medical and hospital services. Physicians and Surgeons.</p> <p>Where a manufacturer, who was a subscriber under the workmen’s compensation act, had posted notices in his factory giving the name and location of a hospital where “medical and hospital attendance” would be furnished for injured employees, and an injured employee, when urged to go to the designated hospital, replied that he “did not want to bother,” and afterwards was attended by a physician of his own choosing, under St. 1911, c. 751, Part II, § 5, as amended by St. 1914, c. 708, § 1, the insurer is not liable to the physician for any part of his services.</p>

<p>Negligence, Contributory. Evidence, Competency. Practice, Civil, Exceptions.</p> <p>In an action for personal injuries sustained in a place of amusement maintained by the defendant called “The Giggler,” consisting of passageways full of surprises produced by mechanical contrivances, where it appeared that the plaintiff was hurt by slipping on a long strip of sheet metal over which she was walking, having hold of an iron hand rail sufficiently to guide her steps, the plaintiff testified that there was a reason why she did not take a firm hold of the rail, and then was allowed, subject to the defendant’s exception, to state that she “felt a little afraid of it,” that she “did not really know what to expect,” and that she “was afraid of shocks, . . . an electric shock.” The plaintiff also testified that she held tighter on the rail as she felt herself falling and had hold of it all the time. Held, that, under the conditions shown, the evidence was competent as bearing upon the plaintiff’s due care, and that, moreover, its admission could not have harmed the defendant, as it did not appear that the plaintiff’s injury resulted in any degree from the nature of her grasp upon the support.</p>

Petition, filed in the Municipal Court of the City of Boston on October 10, 1916, to vacate a judgment of that court. The record contained a copy of the petition and of the jurat thereon, and a copy of an order of notice upon the petition issued by the Municipal Court of the City of Boston on October 13,1916.

<p>Mandamus. Elections, Official ballot.</p> <p>Upon a petition for a writ of mandamus, which is a proceeding at law, this court has no jurisdiction to change or reverse a decision as to the facts made by the single justice who heard the case unless the finding of fact is not warranted by the evidence.</p> <p>Upon a petition for a writ of mandamus a finding of a single justice, warranted by the evidence presented before him, that the surname of a candidate for Governor always has been spelled “McCall” and never has been spelled “MacCall,” that the name of the candidate is “McCall" and not “MacCall” and that under St. 1913, c. 835, § 259, “the name of Frederick W. Mansfield should precede that of Samuel W. McCall in the arrangement of names in alphabetical order upon the official ballot of candidates for Governor,” is a finding of fact which is not open to revision by this court.</p>

<p>Permitting Building to be used for Prostitution. Constitutional Law. Evidence, In corroboration, Circumstantial.</p> <p>At the trial of a complaint under R. L. c. 101, § 11, as amended by St. 1914, c. 624, § 14, for permitting a building under the defendant’s control to be used for prostitution, assignation and lewdness, where the complaint contains only one count and charges no other offence, it is error for the presiding judge to instruct the jury that, if the defendant let the building knowing at the time she let it that the tenant was to use the premises for the purposes prohibited by the statute, they could find the defendant guilty, because letting a building for the purposes of prostitution, assignation and lewdness is a separate and different crime defined in the same section of the statute, and under art. 12 of the Declaration of Rights no defendant can “be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, . described to him.”</p> <p>At the trial of a complaint under R. L. c. 101, § 11, as amended by St. 1914, c. 624, § 14, for permitting a building under the defendant’s control to be used for prostitution, assignation and lewdness, where evidence has been introduced tending to show the control of the defendant over the house in question, two internal revenue receipts for taxes paid for the sale of intoxicating liquors issued to the defendant and found enclosed in envelopes in a desk in the house in question properly may be admitted in evidence as tending to corroborate the evidence in regard to the defendant’s control over the house.</p>

<p>Indictment found and returned in the county of Worcester on the third Monday of January, 1917, charging that the defendants, Coyne and Farrell, on August 28,1916, did break and enter in the night time the dwelling house of George R Wallace in Fitchburg with intent to commit, larceny therein and therein did steal various enumerated articles of jewelry, the property of Helen M. Wallace.</p> <p>• The defendants were tried before Sanderson, J. The jury returned a verdict of guilty against each of the defendants, and the defendants alleged exceptions to the admission of certain evidence, which, with the manner of its introduction, is described fully in the opinion.</p>

<p>Covenant, Running with the land. Railroad, Duty to fence. Fence. Pleading, Civil, Declaration, Common counts. Practice, Civil, Exceptions, Amendment.</p> <p>A covenant in a deed to a railroad corporation that the grantor will and that his heirs, executors and administrators shall make and maintain at all times thereafter a good and sufficient fence or fences or wall or walls on the boundary lines between the grantor’s own land and the granted premises, “which fences or walls shall be forever kept, maintained and made at my expense and the expense of my heirs, executors, administrators and assigns,” is a covenant running with the land and binding on the grantor’s successors in title.</p> <p>Review by Loring, J., of the successive statutes in regard to division fences between railroad locations and the land of adjoining owners.</p> <p>Under the'provision of St. 1879, c. 205, § 2, as now embodied in St. 1906, c. 463, Part II, § 104, that, “If a person other than the railroad corporation is required by law or contract to erect or maintain fences along a part of the line of the railroad, the corporation shall erect such fences or keep them in repair as provided in the preceding section, and may recover the reasonable cost thereof in an action of contract from such person,” an owner of adjoining land, who is-bound by a covenant in a deed to make and maintain a division fence between his land and the location of the railroad, has the right at his election to build and maintain the division fence, and the right of the railroad corporation to build the fence at the reasonable expense of the landowner only arises when the landowner has elected not to perform the work himself.</p> <p>Where the declaration in an action of contract contains only a count on an account annexed for work done and materials furnished, the plaintiff cannot recover for a breach of a covenant in a deed without amending his declaration by substituting or adding a count for breach of the covenant.</p> <p>In an action of contract where the presiding judge ordered a verdict for the defendant, and the verdict was ordered rightly upon the pleadings, and it did not appear that the judge did not order the verdict for the defendant upon the pleadings, but it appeared that by amending its declaration the plaintiff would have a right to go to a-jury, upon exceptions alleged by the plaintiff, it was ordered that the plaintiff should have leave to amend its declaration and that, if such an amendment should be filed in the Superior Court within a required time, the case should stand for trial; and that otherwise the exceptions should be overruled.</p>

Two actions of tort, the first by a married woman for personal injuries sustained by her on June 4, 1915, when she was alighting as a passenger from a car of the defendant, and alleged to have been caused by the defective and improper condition of the step of the car, and the second action by the husband of the plaintiff in the first case for expenses incurred by reason of such injuries to his wife. Writs dated August 19, 1915.

<p>Negligence, In disposal of ashes. Proximate Cause.</p> <p>In an action against a street railway corporation, which was not a subscriber under the workmen’s compensation act, by a workman employed by the defendant to pull out ashes from under the boilers in its power house, load them into a wheelbarrow or truck and empty them into an ash pit usually partly filled with water, for injury to one of the plaintiff’s eyes from the hot ashes splashing up with steam and heat after the plaintiff had tipped a load of ashes into the pit, it appeared that the plaintiff had been engaged in this work for more than a year and that the same method of disposing of the ashes had been in use during the whole of that time, and there was no contention that this method was not proper and usual, and it was held, that there was no evidence of negligence on the part of the defendant.</p> <p>In the same case it appeared that there was a water pipe under the boilers from which little streams of water trickled out. One witness testified that this was to wet the ashes and that, if the ashes stayed there long enough, they became cool. Another witness testified that this water was “ to keep the clinker bar cool.” The plaintiff testified that at the time of the accident this water had stopped coming down, and that sometimes the water did not come down when there was a fire. Held, that on all the testimony it could not have been found that the failure to cool the ashes with water was negligence of the defendant directly causing the plaintiff’s injury.</p>

<p>Bill in equity, filed in the Probate Court of the county of Hampden on September 13,1915, by Edwin F. Lyford, the executor óf and trustee under the will of Sherman D. Porter, late of Springfield, for instructions.</p> <p>On appeal to the Supreme Judicial Court the case was heard by Pierce, J. At the hearing, the allegations of fact contained in the bill were admitted to be true, and in addition the parties filed the following statement of agreed facts: “ The parties to the above entitled case agree that for the purposes of this case the court may take it to be a fact that Sherman D. Porter and his wife, Elizabeth T. Porter, perished on the 26th day of August, A. D. 1913, in a common disaster caused by the collision of a railroad train with an automobile in which they were riding, and that they died at the same instant of time. The parties further agree that there are sufficient assets in the estate of Sherman D. Porter to pay interest on the several legacies of the respective appellants from the date of the death of Elizabeth T. Porter and to leave in addition thereto a considerable " residue to the town of East Longmeadow and the Springfield Hospital. Ethan Taylor, Maybelle Taylor Allen, Alfred H. Taylor, and the city of Springfield wish it to be understood that their reason for entering into this agreement is that in the opinion of their counsel it is not material in this matter to determine whether Mrs. Porter survived her said husband, but that to prove such fact, i. e., that Mrs. Porter did survive her husband, would necessitate the expenditure of an amount of time and money, that in their counsels’ opinion would be far larger than the amount at issue in this matter would justify.”</p> <p>At the close of the hearing four of the defendants, as explained in the opinion, asked the single justice to make the following ruling: “On all the evidence, these defendants are entitled to interest on their respective legacies contained in the clauses of the residuary bequest numbered ‘thirteenth,’ ‘fourteenth’ and ‘fifteenth,’ each amounting to the sum of $15,000 and ‘thirty-sixth,’ amounting to the sum of $10,000, at the rate of six per cent per annum from August 26, 1913, the date of the death of Elizabeth T. Porter.”</p> <p>The justice refused to make this ruling and ruled that those defendants were entitled to interest on their respective legacies from one year after the death of Sherman D. Porter. Those defendants alleged exceptions. The proceedings by which two other defendants, who afterwards became parties to the suit, were permitted to join in the exceptions by an order of consolidation and a stipulation of the parties are stated in the opinion.</p>

<p>Devise and Legacy. Trust, Termination. Release. Estoppel.</p> <p>A testator devised and bequeathed the residue of his estate to his executors as trustees to pay during the life of his wife one half of the net income to his wife and the other half of the net income to his son and, upon the death of his wife, to pay, convey and deliver all the property to his son, “ to have and to hold to him and his heirs and assigns forever.” Held, that the son took a vested remainder.</p> <p>Under the will above described the residue amounted to $63,300. The executors paid to the wife $23,837.46 and to the son, who was of age, $39,462.54 and took from each a release under seal acknowledging full satisfaction of all claims against the estate and the executors. The release of the son was of all claims or demands to be made by him or his heirs or legal representatives. The son died nineteen years after this transaction and the testator’s widow died four years later. Thereupon the surviving executor of the will filed his account asking for the allowance of the two payments stated above. The children of the son appealed from a decree allowing the account. Held, that, if the executors as trustees had no right to end the trust and distribute the fund when they did so, the appellants, claiming as the children of the son, had no standing in court to complain of it, being bound by their father’s release under seal.</p> <p>It also was held that, even if it were open to the appellants to object to the transaction by which the trust property was divided, there was nothing to show that the widow and the son did not receive each the full value of their respective interests in the $63,300, in the division of which the son had acquiesced during the nineteen years that he had lived thereafter.</p>

<p>Bill in equity, filed in the Superior Court on March 10, 1916, to rescind a contract for an exchange of real estate, in pursuance of which the plaintiffs conveyed to the defendants certain real estate on Friend Street in Adams and the defendants conveyed to the plaintiffs a farm in Savoy owned by the defendant Charles Chamberlain and called Chamberlain farm, on the ground that the defendant Charles Chamberlain falsely and fraudulently represented that the Chamberlain farm contained one hundred and twenty acres of land, whereas the deed of the defendants conveyed only seventy-three acres of land and the most valuable part of the land pointed out by the defendant Charles Chamberlain as constituting the farm was found to be outside the true boundary lines thereof. The bill alleged that after purchasing the farm and personal property from that defendant the plaintiffs, believing that the boundaries were as represented by him sold the farm and personal property to one Antonio Chaliux, and pointed out to him the boundaries which the defendant Charles Chamberlain had shown to them and represented to Chaliux that those were the boundaries of the premises they conveyed to him by their deed; that immediately before the filing of their bill the plaintiffs discovered that the representations made by the defendant Charles Chamberlain as to the acreage and his representations that the stones and iron pins pointed out by him were the corners of his farm were false; that the plaintiffs thereupon felt bound to rescind the contract of sale they had entered into with Chaliux and rescinded that sale and thus at the time of filing this bill were the owners of the premises and the personal property conveyed to them by the defendants; that the plaintiffs called the attention of the defendants to the allegations set forth in the bill and demanded a return of the Friend Street premises, and offered to return to the defendants the premises conveyed to them and the personal property, but that the defendants refused to rescind the contract. The prayer asked that the defendants be ordered to rescind the contract and to execute, acknowledge and deliver to the plaintiffs a warranty deed of the Friend Street premises conveying a title thereto good in every manner as they had received the premises from the plaintiffs, upon the plaintiffs making such restitution to the defendants as the court should order, which the plaintiffs offered to do.</p> <p>The case was referred to a master, who filed a report containing the findings that are stated in the opinion. The' defendants filed exceptions to the master’s report, and the case was heard by Wait, J., upon the defendants’ exceptions to the master’s report and a motion of the plaintiffs to confirm the report. The judge made an interlocutory decree overruling the defendants’ exceptions to the master’s report, confirming the report and adopting “the findings therein.”</p> <p>Later by order of the same judge a final decree was entered, ordering that upon the payment or tender to the defendants by the plaintiffs of the sum of $186, and the return or tender of the personal property mentioned in the master’s report and the delivery or tender of a good and sufficient warranty deed, conveying the premises at Savoy, Massachusetts, described in the deed of Charles Chamberlain to the plaintiffs dated July 18, 1914, to the defendant Charles Chamberlain, free from all incumbrances, and executed and acknowledged by the plaintiffs, the defendants should execute, acknowledge and deliver to the plaintiffs a good and sufficient warranty deed of the premises on Friend Street in Adams, Massachusetts, described in the deed of the plaintiffs dated July 18, 1914, free from all incumbrances, and further should pay to the defendants [plaintiffs]] their costs in the sum of $32.28.</p> <p>The defendants appealed from the final decree.</p>

<p>Bill in equity, filed in the Superior Court on April 2, 1915, by the administrator of the estate of William P. Burbank, late of Pittsfield, for the alleged benefit of the creditors of the plaintiff’s intestate, alleging that on July 1, 1913, the plaintiff’s intestate owned the beneficial interest in a certain farm in Pittsfield, the legal title to which stood in the name of Alfred C. Pitt, also of Pittsfield, and that the plaintiff’s intestate, then being insolvent, in fraud of his creditors caused Alfred C. Pitt to convey the farm to the intestate and the defendant, then Jennie M. Burbank, now Jennie M. Brouthers, as tenants by the entirety, whereupon the intestate and the defendant now Jennie M. Brouthers jointly made a mortgage of the farm to Alfred C. Pitt for $6,000; praying that the interest of the intestate in the farm might be conveyed to the plaintiff to apply for the benefit of the creditors of the intestate’s estate.</p> <p>The case was referred to a master, who filed a report containing the findings stated in the opinion.</p> <p>The case was heard by Fox, J., upon the plaintiff’s exceptions to the master’s report. The judge made an interlocutory decree overruling the plaintiff’s exceptions to the master’s report and ordering that the master’s report be confirmed “except as to the finding that William P. Burbank was insolvent on July 1,1913.”</p> <p>Later by order of the same judge a final decree was entered ordering that the bill be dismissed with costs to the defendants in the sum of $18.49. The plaintiff appealed.</p>

<p>Contract for $784.75 on a policy of fire insurance in the Massachusetts standard form with certain additional clauses as described in the opinion, being the amount of a loss by fire of property covered by the policy on July 28, 1914. Writ dated January 29, 1915.</p> <p>In the Superior Court the case was submitted to Callahan, J., upon an agreed statement of facts, containing the facts which are stated in the opinion. The judge found for the defendant and by his order judgment was entered for the defendant. The plaintiff appealed.</p>

<p>Married Woman. Husband, and Wife. Physicians and Surgeons. Contract, Implied in fact, Validity.</p> <p>A married woman may bind her separate estate by an express promise, or by conduct and words from which a promise may be inferred, to pay for necessaries furnished to her while living with her husband.</p> <p>Where a physician rendered professional services to a married woman living with her husband, made charges to her for his services apparently with her knowledge and gave a credit of $10 on his bill for a load of hay cut from land belonging to her, and where she said to the physician that she would leave property enough to pay his bill and that he would get his pay after her death, in an action brought by the physician against the executor of the will of the woman for hia services up to the time of her death, it can be found that the defendant’s testatrix intended the plaintiff to understand that her estate should be bound to pay his charges if they were not paid before her death, and that this would be equivalent to a promise to pay the debt after her death, on which the plaintiff could recover.</p> <p>“A contract to pay money after one’s own death is valid.” Citing Earle v. Angelí, 157 Mass. 294, 296.</p>

<p>Complaint, received and sworn to in the District Court of Franklin on July 14, 1916, under St. 1904, c. 305, charging that the defendant, Julius Galatta of Greenfield, on July 14, 1916, at Greenfield, “did wantonly destroy the personal property of another, to wit, the growing crops of George Speleos, by digging them up, and all of the value of $50.”</p> <p>On appeal to the Superior Court the defendant was tried before Aiken, C. J. Before the trial the defendant moved to quash the indictment upon the ground that the allegations contained in the complaint set forth no offence under the provisions of St. 1904, c. 305, in that the complaint did not allegó that the destruction complained of was in a manner or by a means not particularly described or mentioned in R. L. c. 208. The Chief Justice denied the motion, and the defendant excepted.</p> <p>' The following facts appeared in evidence: One Constantino Corsiglia was the owner of a two-tenement house numbered 11 on Elm Street in the town of Greenfield with a garden plot adjoining, a part of which had been and was used and occupied by Speleos for garden purposes before the time of the complaint. Speleos occupied the upper tenement in the house and had appropriated a part of the garden plot. On June 29, 1916, Corsiglia executed to the defendant a written lease of the entire premises for the term of one year from July 1, 1916. The defendant notified Speleos to vacate the premises. Other material facts are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the Chief Justice to rule that upon all the evidence the defendant was entitled to a verdict of not guilty. The Chief Justice refused- to make this ruling. He “instructed the jury that as between Speleos (the complainant) and Galatta (the defendant) the growing crops that were in the garden belonged to Speleos as a matter of law, and ■that Speleos had a right to go upon the premises to cultivate them and to harvest them when they were mature.” To this instruction the defendant objected and pointed out to the court that as between Speleos and Galatta Speleos was a tenant at sufferance only, and contended that therefore the rule of law as to'growing crops between a landlord and tenant at will did not apply. The Chief ‘ Justice refused to change his charge, and the defendant excepted.</p> <p>The defendant further asked the Chief Justice to rule “that the rule of law as to growing crops between a landlord and tenant applied only to farm property and did not apply to tenement property situate in a city or town.” The Chief Justice refused to change his charge, and the defendant excepted.</p> <p>The jury returned a verdict of guilty. After the jury had returned their verdict of guilty and before sentence was imposed, the defendant made a motion in arrest of judgment upon the same ground as was alleged upon his motion to quash. The Chief Justice denied the motion, and the defendant excepted.</p> <p>The defendant alleged exceptions.</p> <p>St. _1904, c. 305, is as follows: "Whoever wantonly destroys or injures the personal property of another in any maimer dr by any means not particularly described or mentioned in chapter two hundred and eight of the Revised Laws shall be punished by a fine of not more than five hundred dollars or by imprisonment for not inore than one year; but if the value of the property so destroyed or injured is not alleged to exceed fifteen dollars the punishment shall be a fine of not more than fifteen dollars or imprisonment for not more than thirty days.”</p> <p>R. L. c. 208, §§ 105, 106, are as follows:</p> <p>“Section 105. Whoever wilfully and maliciously enters an orchard, nursery, garden or cranberry meadow, and takes away, mutilates or destroys a tree, shrub or vine or steals, takes and carries away any fruit or flower; without the consent of the owner thereof, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months.</p> <p>, “ Section 106. Whoever wilfully and maliciously, and without permission of the owner or person having control thereof, enters upon the orchard, garden or other improved land of another, with intent to cut, take, carry away, destroy or injure the trees, grain, grass, hay, fruit or vegetables there growing or being, shall be punished by imprisonment for not more than six months or by a fine of not more than five hundred dollars; and if the offence is committed on the Lord’s day, or in disguise, or secretly in the night time, the imprisonment shall not be less than five days nor the fine less than five dollars.</p>

<p> Devise and Legacy. Will. Evidence. </p> <p>A testatrix, living in Springfield, provided by her will that, upon the death of a certain life beneficiary, the proceeds of the sale of a certain house should "be given toward the building of an Episcopal Church in the Highlands, which shall be an independent church, not a mission church, as I feel that such a church is much to be desired there.” At the time of the death of the beneficiary for life there was an incorporated Episcopal church in the district called • the Highlands, which had not been completed when it first was erected and • still remained unfinished, and there was not, nor had there been at any time, any Episcopal church building in the Highlands except the one thus described. Held, that the church thus described was entitled under the terms of the will to receive the proceeds from the sale of the house.</p> <p>In a suit in equity by the trustee under a will for instructions, where it appears that by the clear terms of the will the proceeds from the sale of a certain house of the testatrix are given to a certain chinch corporation, a letter written by the testatrix dated nearly eight years after the date of her will and addressed to the executors of her will but not executed as a codicil, declaring her intention to make a change in her will in regard to the disposition of the proceeds from the sale of the house in question, is not admissible in evidence and cannot be considered by the court..</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board upon the claim of Harold Clancy as the alleged dependent of James Francis Clancy, an alleged employee of the city of Springfield, which had accepted the provisions of St. 1913, c. 807. In the decision appealed from the board found and decided that there was no contract of hire, express or implied, oral or written, within the meaning of § 6 of that statute and of St. 1911, c. 751, Part V, § 2, between. James Francis Clancy, the deceased employee, and the city of Springfield, and therefore dismissed the claim for compensation.</p> <p>The case was heard by Fox, J. The facts as agreed upon are stated in the opinion. The judge made a decree dismissing the claim in accordance with the decision of the Industrial Accident Board. The alleged dependent appealed.</p>

<p>Contract by an administrator with the will annexed of the estate of Elizabeth T. Porter, alleged to have been the widow of Sherman D. Porter, against the executor of the will of Sherman D. Porter, to recover the amount of the legacies bequeathed to the plaintiff’s testatrix by the will of the defendant’s testator. Writ dated September 19, 1914.</p> <p>The clause of the will of Sherman D. Porter under which the legacies were claimed was as follows: “First. To my wife, Elizabeth T. Porter, I give and bequeath the sum of Fifty Thousand ($50,000) Dollars, also all my household furniture, furnishings, books, pictures, watches, jewelry, ornaments, clothing and all my household goods, and personal property about my homestead, also all my robes, blankets, automobile and other articles of personal property about my barn, not including in this bequest and gift, however, any cash, stocks, bonds, notes, choses in action, or similar property, except said sum of Fifty Thousand ($50,000) Dollars, not including my clock in the hall of my house.”</p> <p>The defendant’s amended answer denied that the plaintiff’s testatrix survived the defendant’s testator or ever became his widow.</p> <p>In the Superior Court the case was tried before King, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to rule that on the pleadings and on the evidence the plaintiff could not recover. The judge refused to make this ruling, and submitted the case to the jury, concluding his charge as follows:</p> <p>“If Mrs." Porter survived him [her husband] by the minutest fraction of time that is conceivable, that is sufficient time for that legacy to vest in her; and if it vested in her and she then, or immediately thereafter, died, it passes under her will. And it is upon that theory that this suit is brought. . . .</p> <p>“Then the whole controversy before you, gentlemen, is which of these two, husband or wife, survived the other, if either, did survive? But you cannot find a verdict for the plaintiff, whatever your wish may be in the matter, unless you are satisfied upon all the evidence that she survived her husband by some fraction of time however small.</p> <p>“If you are satisfied upon all the evidence before you, taking into account the spoken word of every witness, taking into account not only what the persons said upon the witness stand but how they said it, taking into account the probabilities or improbabilities of what they said, taking into account every fair inference which you may draw from that testimony, — if you can say . . . that upon that you are satisfied that she survived, she, Mrs. Porter, survived her husband by the minutest fraction of time, that is sufficient, and the plaintiff is entitled to the sum I have specified. If you cannot say that, that is not sufficient, and your verdict must be for the defendant.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $55,901.50; and the defendant alleged exceptions, as explained in the opinion.</p>

<p>Tort by a tinsmith and roofer for personal injuries received on April 8, 1915, by reason of the breaking of a defective ladder, furnishing the only means of access to the roof of a building of the defendant numbered 34 on Front Street in Worcester, which roof the defendant had employed the plaintiff to repair. Writ dated July 9, 1915.</p> <p>In the Superior Court the case was tried before White, J. The plaintiff in his testimony described the accident as follows: "I have been in the tinsmith and roofing business for sixteen years. I went to the defendant’s building at the request of Tom Cunningham to repair the roof. I had worked on the building three times previously at the request of Mr. Cunningham and had always received pay for my work from Mr. Poli, each time going on to the roof in the same way. When I arrived at the building I went to the top floor and found a ladder standing there extending up into the skylight or scuttle. I sent a man ahead of me to open the scuttle cover. I then went down to get a broom. When I came up I had three brooms in my right hand and held on to the ladder with my left hand and I was in a hurry and went up, and when at the middle of the ladder, the left side broke and I swung around and fell down, I didn’t get up to the top and then I hit my left side and that is all.” The plaintiff also testified, “The ladder when it broke one side it started to slide down and of course I followed it and I hit my back and didn’t know anything.” He also testified, “I saw Tom Cunningham and I asked him if I would take my own ladder and he said, ‘No, that is not necessary; you may use the ladder up there.’ ” Other evidence showed that Cunningham was the janitor of the building and was employed by the defendant to have charge of it. There was evidence that the ladder was defective and that it belonged to a tenant of the defendant.</p> <p>At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant, and at the request of the plaintiff reported the case for determination by this court, with the stipulation that, if the ordering of the verdict was right, judgment was to be entered for the defendant on the verdict; and that, if the case ought to have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $2,500.</p>

Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board, awarding compensation to Dominica Uzzio, the dependent widow of Sebastian Uzzio, who at the time of his death was in the employ of the American Woolen Company in the part of Fitchburg called West Fitchburg. The case was heard by Sanderson, J. The evidence is described in the opinion.

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board in regard to the construction of St. 1915, c. 236, in passing upon the claim to compensation of Raymond Gagnon, who at the time of his injury on June 8, 1916, was in the employ of the Stoddard Rubber Company at Millbury.</p> <p>The case was heard by O’Connell, J. The report of the Industrial Accident Board stated that the board made, with two other rulings likewise requested, the following rulings requested by the employee:</p> <p>“3. In determining ‘weekly wages’ under St. 1915, c. 236, the committee of arbitration is not limited to the probable increase in the same industry in which the employee was working at the time of the accident.</p> <p>“4. In determining ‘weekly wages’ under St. 1915, c. 236, the committee of arbitration is not limited to the probable increase in the particular company for which the employee was working at the time of his injury.</p> <p>‘‘5. In determining ‘weekly wages’ under St. 1915, c. 236, the committee of arbitration is entitled to consider the personal appearance of the injured employee, his age and experience, his physical strength, his mental ability, his character, his family conditions, his station in life, his plans for the future if the accident had not occurred; that is, the committee is entitled to take into account every fact and condition which appears as to the personality of the injured employee himself, and as to all of his prospects in the future under the natural conditions confronting him before the accident in determining what his probable average wages would be under such conditions for the period of time covered by the act.”</p> <p>The report also stated that the board refused, with other rulings likewise requested, to make the following ruling requested by the insurer:</p> <p>“2. In determining weekly wages, under St. 1915, c. 236, the committee of arbitration is entitled to consider the probable natural increase in the wages of the injured party in the same employment in which he was engaged when injured, and cannot take into consideration the possible conjectural- increase in wages which might be earned in the future by the injured employee in any possible conjectural position, employment or station in life.”</p> <p>St. 1915, c. 236, is entitled “An Act relative to compensation to young and inexperienced workmen who receive injuries.” All the material portion of the act is quoted in full in the opinion.</p> <p>The report of the Industrial Accident Board was filed on March 31, 1917. The employee, Raymond Gagnon, testified before the board that he was eighteen years old. The board found “that the average weekly wages of the employee,. Raymond Gagnon, under St. 1915, c. 236, and the general provisions of the workmen’s compensation act, had it not been for the occurrence of the injury, would have been $12 a week at the end of one year from the date of the injury, that is, June 8, 1917; and that on June 8, 1918, he would have been able to earn an average weekly wage of $20.”</p> <p>The judge made a decree in accordance with the decision of the Industrial Accident Board ordering that the insurer should pay to Raymond Gagnon “the total sum of $2,095.21, with interest thereon, according to law.” The insurer appealed.</p>

<p>Two actions of tort, the first by a married woman for personal injuries sustained by her on March 18,1916, by striking her hand upon one of the iron pickets of a fence belonging to and maintained by the defendant, when she was falling by reason of having slipped upon ice and snow upon the sidewalk on Church Street, a public highway in the village of Whitinsville in the town of Northbridge, adjoining the foundation of the fence, and the second action by the husband of the plaintiff in the first case for loss of services and medical expenses suffered and incurred by reason of her injuries. Writs dated June 10, 1916.</p> <p>In the Superior Court the cases were heard together by O’Connell, J., without a jury. The evidence is described in the opinion. At the close of the evidence the judge ruled that as matter of law there was no evidence of negligence on the part of the defendant and found for the defendant in both cases. The plaintiffs alleged exceptions.</p>

<p>Contract by a real estate broker for a commission alleged to be due to the plaintiff from the defendants, who were brother and sister and were the joint owners of certain land in Worcester with two houses thereon, for procuring a customer to buy this real estate. Writ dated July 2, 1915.</p> <p>In the Superior Court the case was tried before White, J. The facts shown by the evidence are stated in the opinion. At the close of the evidence, the judge ruled that upon the whole evidence the plaintiff was not entitled to recover and ordered a verdict for the defendants. The plaintiff alleged exceptions.</p>

Bill m equity, filed in the Probate Court of the county of Worcester on February 18, 1916, by the trustee under the will of Martha J. Roper, late of Sterling, for instructions.

<p>Two actions op tort by the administrator of the estate of Matti Hurnanen, late of Gardner, the first against Bronislaw Nicltsa and the second against the Gardner Automobile Company, a corporation, the declaration in each action containing two counts, as stated in the opinion, for causing the death and conscious suffering of the plaintiff’s intestate by running into him on September 11, 1915, with a motor car operated by the defendant Nicksa and alleged to belong to the defendant corporation. Writs dated respectively September 16 and December 10, 1915.</p> <p>The answer in each case contained a general denial and an allegation that the death and suffering of the plaintiff’s intestate were caused by his negligence in stepping or jumping in front of the motor car.</p> <p>The cases were tried together before Sanderson, J. The course of the trial and the answers of the jury to the questions submitted to them are stated in the opinion, where also are stated the facts in regard to the ownership and registration of the motor car. The judge ruled “ as a matter of law that the man named in the contract [of conditional sale], the defendant Nicksa, had title which makes him the owner under the registration law of automobiles” and that the registration of the car under the facts shown was a legal registration. The jury in answer to the questions submitted to them by the judge found that the plaintiff’s intestate was not in the exercise of due care and that the defendant Nicksa was not negligent in operating the motor car. By instruction and order of the judge the jury returned a verdict for the defendant in each of the cases; and the plaintiff alleged exceptions.</p>

<p>Evidence, Of handwriting, To impeach witness, Admissible for limited purpose. Admissions. Practice, Civil, Exceptions. Letter.</p> <p>In an action of contract by a physician for compensation for services rendered to the defendant’s wife, the defence relied upon was that the defendant was living apart from his wife for justifiable cause consisting of her cruel and abusive treatment of him, and there was evidence of such treatment. To controvert this the plaintiff called the defendant’s wife as a witness, who testified that she found in the mail box at her home two letters addressed to her husband which she opened and showed to him, that he took them, “looked at them and just smiled,” would not read them and threw them on the table, and that the witness took them up. The letters were of an incriminating character. The defendant testified that he never had seen them before they were shown to him by his ■wife, that he knew nothing about them and that they did not come into his possession. The defendant called as a witness a woman whom the defendant’s wife had named as having been suspected by her of improper relations with her husband. This woman testified that she did not write the letters, that she never had seen them and did not recognize the handwriting. At the request of the plaintiff’s attorney she then wrote on a piece of paper the defendant’s address and some further words taken from the letters. These specimens of handwriting were admitted in evidence without objection. The plaintiff then offered the two letters in evidence, and the judge admitted them, subject to a general exception by the defendant.. Held, that the letters were admitted rightly for the purpose of comparison of handwriting to identify the writer of the letters, and also for the purpose of contradicting the testimony of the woman witness that she did not write the letters and never had seen them.</p> <p>In the same case it also was held, that the contents of the letters were not admissible to show any tacit admission on the part of the defendant of the truth of the statements contained in them, there being no evidence of any act of the defendant that brought about the sending of the letters and he having testified that he did not know of them and would not read them, so that the letters, however clearly the writer of them might be identified, would not warrant in themselves any inference against the defendant.</p> <p>In the same case it was held, that, the defendant not having asked the judge to restrict the effect of the letters to the identity of the handwriting and the impeachment of the witness, his general exception to their admission in evidence could not be sustained, as they were admissible for the purpose of such impeachment by contradiction.</p>

<p>Tort for personal injuries sustained by the plaintiff on February 22, 1915, at a station of the defendant at Winchendon, by reason of being forcibly ejected negligently and wilfully from a car in a train of the defendant which the plaintiff had entered by the defendant’s invitation.' Writ dated November 24,1915.</p> <p>In the Superior Court the case was tried before Sanderson, J. The evidence and the course of the trial are described in the opinion. The judge refused to order a verdict for the defendant and submitted the case to the jury in the manner there described. The jury returned a verdict for the plaintiff in the sum of $5,000; and the defendant alleged exceptions to the refusal to order a verdict in its favor and to thfe portion of the judge’s charge which is described and quoted in the opinion.</p>

<p>Tort for personal injuries sustained on August 19, 1915, at about half past six o’clock in the morning while crossing Main Street in Worcester, where the tracks and roadbed of the defendant were in process of repair. Writ dated August 21,1915.</p> <p>In the Superior Court the case was tried before O’Connell, J. The evidence is described in the opinion. A foreman of the street department of the city of Worcester, who had charge of the “grouting,” testified that “this grouting consisted in mixing sand and cement and pouring it into block pavings.”- At the close of the evidence the judge ruled that the plaintiff could not recover and ordered a verdict for the defendant. At the request of the parties he reported the case for determination by this court, with a stipulation that, if his ruling and the ordering of the verdict were wrong, judgment was to be entered for the plaintiff in the sum of $600; otherwise, judgment was to be entered for the defendant.</p>

<p>Negligence, Employer’s liability. Wires. Electricity. Notice.</p> <p>If a superintendent of a telephone company at twenty minutes before three o’clock in the afternoon orders one of his workmen to go upon a pole to paint it, the pole supporting not only the wires of the telephone company but also upon an upper cross arm the wires of an electric light company, and assures the workman that the electric light wires on the top cross arm are not charged with electricity and are “always dead until after four o’clock,” whereas the electric light wires are charged with a dangerous voltage of electricity, and the workman thereupon, obeying the superintendent, ascends the pole and receives a shock of electricity which causes him to fall to the ground, sustaining injuries, in an action by him against his employer for his injuries thus sustained there is evidence for the jury that the order was a negligent one and that it was given by the superintendent within the scope of his authority.</p> <p>In the same case it appeared that the notice of the time, place and cause of the injury given by the plaintiff' under St. 1909, c. 514, § 132, as amended by St. 1911, c. 178, after stating the time and place of the accident, stated that “The injuries were caused by defective insulation and improper covering of wires upon the cross arms or gains of said pole, said wire being charged or electrified at the time, with electricity or other powerful current which caused [the plaintiff]] to receive a shock or charge which resulted in his falling to the ground and receiving a broken leg.” No objection to this notice was made at the trial. At the argument before this court the defendant sought to raise the question of the suffxciency of the notice upon an exception to the refusal of the trial judge to rule that upon the pleadings and evidence the plaintiff was not entitled to recover. Held, that, assuming that the objection was open to the defendant, the notice sufficiently stated the cause of the accident without specifying that the direct cause of the plaintiff’s injury was the negligence of the defendant’s superintendent.</p> <p>In the same case it was held, that, even if the notice had been insufficient in stating the cause of the injury, it was plain on the record “that there was no intention to mislead, and that the employer was not in fact misled thereby,” the defendant through its superintendent having been in possession of all the facts.</p>

<p>Tort for damage to the plaintiff’s horse, wagon and harness sustained on November 4, 1915, by reason of a swinging staging hanging from an overhead bridge of the defendant above and across Parker Street in the town of Gardner, whereby the plaintiff’s horse was frightened badly so that he ran away and injured himself and broke the wagon and harness. Writ dated January 11, 1916.</p> <p>In the Superior Court the case was tried before Raymond, J. The evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant and reported the case for determination by this court. If the judge’s ruling in ordering the verdict was right, judgment was to be entered for the defendant; if it was wrong, judgment was to be entered for the plaintiff in the sum of $100, damages and costs.</p>

<p>Building Laws. Tenement House. Building Inspector. Practice, Civil, Exceptions. Constitutional Law. Words, “Civil cause.”</p> <p>It here was assumed, but without so deciding, that an appeal to a judge of the Superior Court from an order of a building inspector under St. 1913, c. 655, § 55, applying for an order forbidding the enforcement of the order of the inspector is a “civil cause” within the meaning of R. L. c. 173, § 106, so that it may be brought before this court upon exceptions alleged in the Superior Court under that statute.</p> <p>The provision of the building laws contained in St. 1913, c. 655, § 20, that “A building which is used, in whole or in part, as a . . . tenement house which has ten or more rooms or in which eight or more persons are accommodated or lodge or reside above the second story, the owner ... of which is notified in writing by an inspector that the provisions of this act are deemed by him applicable thereto, shall be provided with proper egresses or other means of escape from fire, sufficient for the use of all persons accommodated . . . lodged or resident therein; but no owner ... of such building shall be deemed to have violated this provision unless he has been notified in writing by such inspector what additional egresses or means of escape from fire are necessary,” is a police regulation for the protection from fire of the lives of human beings within the constitutional power of the Legislature. . ■</p> <p>One, who under St. 1913, c. 655, § 55, has appealed to a judge of the Superior Court from an order of a building inspector applying for an order forbidding the enforcement of the order of the inspector, cannot be heard in that proceeding to contend that the statute of which he is taking advantage is unconstitutional in not providing for a trial by jury as to the establishment of the fundamental facts on which the jurisdiction of the inspector rested.</p> <p>Whether a person who has taken such an appeal to a judge of the Superior Court, if afterwards a criminal prosecution or proceedings in equity should be instituted against him for failure to comply with the requirements imposed by the order of the building inspector, would have a right to a trial by jury, here was referred to as a question that was not before the court.</p> <p>The statute quoted above is not unconstitutional in its operation upon the landowner in failing to provide for a trial by jury in connection with the review by a judge of the Superior Court of the order of the inspector.</p> <p>On such an appeal to a judge of the Superior Court applying for an order forbidding the enforcement of an order of a building inspector, the landowner contended that the structure in question, instead of being a tenement house, consisted of two houses, and the judge found on evidence warranting such a finding that the building was one tenement house. Held, that this was a finding of fact which could not be pronounced erroneous.</p> <p>In the same case it was contended by the landowner that a requirement of the order of the building inspector, that there should be an electric light at each landing of the front and rear stairways of the building, which should be kept lighted throughout the night, was unreasonable. No subsidiary facts or accompanying circumstances were shown indicating that the requirement was not a reasonable one or that it was in any respect capricious. Held, that this was a matter of detail largely discretionary in which the decision of the inspector when approved by a judge of the Superior Court would not be disturbed.</p>

<p>Husband and Wife. Alienation of Affections. Enticement and Seduction. Evidence, Circumstantial, Matters of common knowledge.</p> <p>In an action for enticing and seducing the plaintiff’s wife and thereby depriving the plaintiff of connubial consortium, where there is evidence of inclination and opportunity for adultery between the plaintiff’s wife and the defendant, the plaintiff may be allowed to prove that, after he had lived apart from his wife for more than a year during a period when the defendant was living in the same house with the plaintiff’s wife, the plaintiff’s wife had a child.</p> <p>It here was said that the jury could find as a matter of common knowledge and experience that a child born on a certain day was begotten approximately nine months before.</p> <p>In the same case, in addition to the evidence above described, there was evidence that, when the plaintiff’s wife was well advanced in pregnancy and the defendant knew her condition, he said, “that he would be very glad to marry her if it was so that he could, if it was so that she could get married.” Held, that the case, including the evidence wrongly excluded, should have been submitted to the jury.</p>

Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to John O’Brien, who was employed by the Standard Comb Company in its factory at Leominster, for an injury received on September 12, 1916, as described in the opinion.

Bill in equity, inserted in a common law writ dated February 9, 1917, against an attorney at law and the Bar Association of the City of Boston, praying that the defendant attorney be removed from his office and that the defendant association “ show cause, if any it has,” why this prayer should not be granted.

<p>Equity Pleading and Practice, Costs, Memorandum of decision.</p> <p>Nothing is better settled than the rule that in a suit in equity the awarding of costs rests in the sound discretion of the trial judge.</p> <p>Where in a suit in equity the trial judge before making a decree dismissing the bill filed a memorandum of decision, in which he ordered that costs should be awarded to the defendants, and, after a subsequent hearing, revoked this order for costs and ordered the entry of a decree dismissing the bill without costs, it was held that there was nothing in the action of the judge to indicate an abuse of discretion.</p>

<p>Petition, filed in the Land Court on November 28, 1910, and amended on April 5, 1915, by the trustee under an agreement dated January 23, 1903, creating a trust called the Marblehead Associates, praying for an order cancelling the memoranda of an attachment and of a sheriff’s deed upon the certificate of title issued by the Land Court to Charles D. Wainwright as trustee of the Marblehead Associates and for the issuing to the petitioner of a new certificate of such title free from incumbrances.</p> <p>The case was heard by Dams, J. The evidence is described in the opinion. The petitioner asked the judge to rule that he was entitled to a decree expunging the registration of the attachment and of the sheriff’s deed and ordering the issuing of a certificate of title to the petitioner free from such attachment and deed. The judge refused to make this ruling and also refused to make other rulings requested by the petitioner. He ruled that the attachment was valid and that the execution sale was valid, and ordered that the petition should be denied. The petitioner alleged exceptions.</p>

<p>Contract on an account annexed under St. 1915, c. 146, § 2, for $1,900 alleged to be due as the rent of a store at 412 Main Street in Worcester according to the terms of a lease in writing dated November 17, 1908, and $17.42 for interest thereon to the date of the writ. Writ dated January 7, 1916.</p> <p>The answer, among other alleged defences, alleged that the plaintiffs evicted the defendant from the leased premises and that the plaintiffs accepted from the defendant a surrender of his lease.</p> <p>In the Superior Court the case was tried before Sanderson, J., without a jury. He found the facts that are stated in the opinion, and, subject to the defendant’s exception, made certain rulings requested by the plaintiffs which are described in the opinion. The defendant asked the judge to make the following rulings:</p> <p>“1. That on or about March 1, 1915, the lease upon which the plaintiffs’ action is founded was, surrendered by operation of law.</p> <p>“2. That between February 22, 1915, and October 1, 1915, the plaintiffs evicted the defendant, to which eviction the defendant assented, and the plaintiffs cannot recover.</p> <p>“3. That the defendant is entitled to damages by way of set-off to an amount equal to the sum which the plaintiffs claim is due for rent.</p> <p>“4. That the plaintiffs are estopped from collecting any rent of the defendant.”</p> <p>The judge refused to make any of these rulings. He found that the plaintiffs did not intend to evict the defendant and that they had not either by acts or words evicted him. He also found that the plaintiffs had not accepted a surrender of the lease to the defendant. The judge made a general finding for the plaintiffs and assessed damages in the sum of $2,544. The defendant alleged exceptions.</p>

<p>Devise and Legacy. Trust, For promotion of applied science, Interpretation.</p> <p>A testator by a deed of trust, incorporated in and confirmed by a codicil to his will, provided that, after the payment of certain annuities, eighty per cent of the net income of his estate should be accumulated until it amounted to one million dollars and then should be transferred to the President and Fellows of Harvard College, a corporation constituting Harvard University, that thereafter such eighty per cent should be paid over annually until the death of the last annuitant, when the residue of the estate was to be paid over, estimated as to be at that future time about twenty-three million dollars. He provided that the net income of the fund should be used to promote applied science in the manner pointed out by the instrument, and an intention was manifested that not only the investment of the fund but also the education which the fund made possible should be under the control and direction of the university and should be admininistered by it. He provided that, if Harvard University failed to accept the trust, it should go to a new Massachusetts corporation to be organized by the trustees which should receive and apply the endowment “for the purposes and upon the terms above set forth in respect to said gift to Harvard College.” Harvard University accepted the trust and undertook to make with the Massachusetts Institute of Technology, here called the institute, an agreement whereby three fifths of the income of the endowment fund were to be devoted to an engineering school which should be carried on at the institute and be controlled and conducted by the institute, vesting practically in the institute the substantial organization, control, direction and administration of the work to be done under the agreement. Upon a bill in equity filed by the President and Fellows of Harvard College for instructions, it was held, that the proposed agreement was not authorized by the terms of the trust and could not be carried out lawfully by means of the funds received under the deed of trust and the codicil in question.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on December 30, 1916, by the trustees under the will of Samuel A. Walker, late of Nahant, who died on May 23, 1880, for instructions.</p> <p>The case came on to be heard before Crosby, J., who at the, request of the parties reserved it upon the bill and the answers thereto for determination by the full court. The essential facts disclosed by the record are stated in the opinion.</p>

<p> Negligence. Motor Vehicle. Proximate Cause. </p> <p>Where one operating a motor car heard the blowing out of one of the tires of the car and instantly knew that the metal locking ring attached to the collapsed tire might come off if he continued to run the machine, instead of stopping the car almost instantly, as he might have done, let it run on for at least twenty feet, when the locking ring came off and, rolling across the street, struck and injured a traveller on the sidewalk, in an action by the traveller against the owner of the car, whose servant was operating it, for his injuries thus sustained, there is evidence for the jury that the plaintiff’s injuries were caused by the negligence of the defendant’s servant.</p> <p>Where one has been guilty of a negligent act which he knew was likely to cause harm to some person, he or his employer is none the less liable for an injury caused by the negligent act because he could not have foreseen the precise thing that happened.</p>

Tort, with a declaration in two counts, each for the same cause of action, to recover $2,000 damages for an alleged wrongful exercise of a power of sale contained in a mortgage in a foreclosure sale on May 31, 1915, of certain real estate of the plaintiff in the town of Medway in the county of Norfolk, it being alleged that there had been no breach of condition at the time of the foreclosure sale and also that the statutory requirements were not complied with.

<p>Evidence, Opinion: experts, Of foreign law. Practice, Civil, Counsel as witness, Auditor’s report, Exceptions. Bond, Execution. Partnership. Conflict of Laws.</p> <p>In an action against the surety on an alleged bond of indemnity, just before the close of the evidence the defendant raised the point that the bond was not executed properly. It was signed “H Brothers and B, By AM B, one of the firm.” ¡The attesting clause recited that “said principals have hereunto set their hands and seals,” but no seal was affixed to the signature described above. After the evidence had been closed, the presiding judge at the request of the plaintiff reopened the case and allowed the plaintiff to introduce testimony that the contract guaranteed and the bond of indemnity were delivered in the State of New York, and the plaintiff contended that the execution of the bond was valid and binding on the surety under the laws of New York. The plaintiff’s counsel offered as an expert witness as to the law of New York his associate counsel, who knew the law of New York only by investigation and study, never having practised in that State, calling the attention of the judge to the New York decisions on which the proposed witness based his opinion. Subject to the defendant’s exception, the judge allowed the witness to testify as an expert. Held, with some hesitation, that, although the judge well might have declined to accept the witness as an expert, yet under the circumstances of the trial it could not be said that the determination by the judge of the preliminary question of the qualification of the expert was clearly wrong and that therefore it must stand.</p> <p>In the case above described it also was held that, the testimony of the expert as to the law of New York having been admitted, it was not necessary to consider whether the evidence in the case would warrant a finding that the signature in the firm name by one of the partners was ratified by his copartner and was binding under the law of this Commonwealth, the bond having been delivered in the city of New York where the persons concerned carried on business, so that it was to be assumed that the liability of the surety was to be determined by the law of New York.</p> <p>In the same case it was held that an issue in regard to the cause of the decay of the timbers and planking of a chartered tugboat properly was left to the jury with careful instructions upon conflicting evidence.</p> <p>In the same case the evidence consisted of an auditor’s report and of oral testimony, and the defendant excepted to the refusal of the presiding judge to make certain rulings which dealt only with the evidence contained in the auditor’s report. Held, that these exceptions must be overruled because the judge was not obliged to select for special comment the part of the evidence which was contained in the auditor’s report.</p>

<p>Trustee Process, Costs of trustee. Practice, Civil, Costs.</p> <p>The provision of St. 1852, c. 312, § 9, that" If no declaration shall have been inserted in the writ, or filed pursuant to the eighth section, it shall be a discontinuance of the action. And the defendant or trustee may have judgment for costs,” which was re-enacted in substance in Gen. Sts. c. 129, § 9, and in Pub. Sts. c. 167, § 9, was omitted from R. L. c. 173, § 11, and it here was held that such omission was intentional, and that where a writ served by trustee process seasonably was returned to court but the plaintiff neglected to enter it and the trustee did not appear, such trustee cannot maintain a complaint for costs against the plaintiff who sued out the writ.</p>

<p>Tort against the trustees of the Standish Building Trust, so called, as the owners of a building numbered 367 on Boylston Street in Boston, for personal injuries sustained by the plaintiff, who was a salesgirl in the employ of a tenant occupying portions of the first and second floors of the building, on the morning of June 14, 1915, by reason of the plaintiff falling when, having been excluded from the use of the elevator, she was descending from the second to the first floor on a marble staircase that wound round the elevator and was lighted insufficiently. Writ dated December 16, 1915.</p> <p>In the Superior Court the case was tried before O’Connell, J. The evidence is described in the opinion. At the close of the evidence the defendants asked the judge to order a verdict for. them. This the judge refused to do. The defendants then asked the judge to make the following rulings:</p> <p>“If the plaintiff for a period of five or six years had used the stairway on which she fell on an average of twelve times a day, and if on going up the stairway just before her accident she observed that the electric lights were not lighted, and if before starting to descend the stairway she also noticed that the electric lights in the hallway were not lighted, and under those circumstances continued to go down the stairs and fell because of any darkness, then she was not in the exercise of due care and cannot recover.</p> <p>“The right of the plaintiff’s employer to recover against the defendants under similar circumstances would be determined by the terms of the written lease which he took from the defendants, and if the said lease provides that the defendants shall not be liable to the lessee or to any other person for any injury, loss or damage to any person or property on the premises or in the said Standish Building, this provision would preclude the plaintiff’s employer from recovering in an action against the defendants for any damage to his person or property, and the plaintiff’s rights being the same and only the same as those of her employer, she cannot recover in this action.”</p> <p>It appeared in evidence that the lease from the defendants to the plaintiff’s employer contained a covenant of the lessee “that in no case whatsoever shall the lessors be liable to the lessee, or to any other person for any injury, loss or damage to any person or property on the premises, or in the Standish Building. . . ,</p> <p>The judge refused to make either of these rulings and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $2,500, of which the plaintiff remitted the sum of $1,000. The defendants alleged exceptions.</p>

<p>Probate Court, Appeal.</p> <p>On an appeal from a decree of the Probate Court the appellant is confined to his objections to the decree appealed from which he has stated under the requirement of R. L. c. 162, § 10.</p>

<p>Bill in equity, filed in the Superior Court on January 25,1917, by the trustee in bankruptcy of the Mattapan Motor Car Company, a business corporation, to set -aside as an unlawful preference an assignment of certain accounts by the bankrupt to the defendant, the Beacon Trust Company, as described in the opinion.</p> <p>The case was heard by Jenney, J. He made a finding of facts, including the findings that are stated in the opinion, and ordered that a decree be entered setting aside the assignment to the Beacon Trust Company as a preference and ordering the defendant to pay the plaintiff’s costs.</p> <p>Later by order of the judge a final decree to this effect was entered, from which the defendant appealed.</p>

<p>Bill m equity, filed in the Superior Court on July 2, 1915, by the owner of a parcel of land with the buildings thereon in the part of Quincy called West Quincy, to remove from the plaintiff’s title a cloud created by a certain tax sale, alleged to be invalid, and by a deed given thereunder.</p> <p>The case was referred to a master, who filed a report, in which he found the facts that are stated in the opinion. He found and ruled that the tax title under which the defendant claimed, and which was a cloud on the plaintiff’s title, was invalid, and that the plaintiff was entitled to a decree relieving his title from the incumbrance. He also found that, if the court should determine that the tax deed was valid, the plaintiff was entitled to redeem the premises from it.</p> <p>The defendant filed exceptions to the master’s report and also filed a motion that the report be recommitted to the master for amendment.</p> <p>The case was heard by Raymond, J., who made an interlocutory decree, which, without mentioning the exceptions, ordered that the report of the master be confirmed. The defendant appealed from this interlocutory decree.</p> <p>Later the case was heard further by Raymond, J., upon the master’s report and by order of the judge a final decree was entered in favor of the plaintiff. The defendant appealed from the final decree.</p>

<p>Unlawful Interference. Assignment, Of wages. Proximate Cause. Damages, In tort.</p> <p>One, who serves on the employer of a workman a notice of a supposed assignment of wages by the workman, which in fact was made by a different person of the same name, and on being informed by the workman of the mistake unjustifiably refuses to withdraw the notice and thereby causes the workman’s discharge, is liable to the workman in an action of tort for -the damages resulting from this unlawful interference with his employment. Following Lopes v. Connolly, 210 Mass. 487.</p> <p>In such an action it appeared that the plaintiff was discharged by his employer under a rule, that “ any employee executing an assignment of wages will be liable to immediate discharge,” and the presiding judge refused to rule at the defendant’s request that the defendant “is not bound by the rule unless it is proven that he had notice of the existence of the rule or reasonable cause to believe that such a rule existed.” Held, that the request for the ruling was refused rightly.</p> <p>In the same case the judge also refused to rule at the request of the defendant “that the employer had no right to discharge the employee so as to render the defendant liable in damages without using reasonable prudence to ascertain whether or not the L D employed was the L D described in the notice.” Held, that the request for the ruling was refused rightly.</p> <p>In the same case it was held that the judge rightly refused to make a ruling which assumed that the plaintiff’s employer acted arbitrarily in discharging him, there being no evidence to support this assumption, it appearing clearly that the plaintiff’s contract of employment was terminated because of the supposed violation of one of its conditions, namely, that the employee should not assign his wages.</p> <p>In the same case it was held that a portion of the judge’s charge was correct which, properly interpreted, stated that, if the superintendent of the plaintiff’s employer without further investigation mistakenly treated the plaintiff as the maker of the assignment of wages, the defendant, without whose unlawful interference the superintendent would not have acted, was the efficient cause of the plaintiff’s discharge.</p> <p>In the same case it was held that the question, whether the defendant wilfully interfered with the plaintiff’s contract of employment, was for the jury and, if they found that he did so wilfully interfere, the plaintiff was entitled to reasonable compensation for his mental distress and anxiety. Citing Lopes v. Connolly, 210 Mass. 487, 495.</p>

<p>Practice, Civil, Ordering verdict. Insurance, Life.</p> <p>In an action on a policy of life insurance, .the defence relied upon was that the insured falsely represented in his application for the policy that he never had cancer or tumor and was then in good health, and that he never had been under treatment in any hospital and last had been treated by a physician twenty-one • years before for measles, whereas an exploratory operation had been made upon the insured at a hospital, which had been discontinued because the ether affected iiim so badly, and there was testimony of the hospital surgeons that at that time in their opinion there was undoubtedly a cancer or a cancerous growth, and they expressed the opinion that at the date of the policy the insured had a cancerous growth and was not then a healthy man. This evidence was not contradicted. One surgeon testified that he did not tell the insured what was the matter with him. He also testified that “ The only positive way of determining the existence of a malignant tumor is by a microscopic examination, that no such examination was had in this case, and except for that it is purely a matter of opinion of the different doctors based upon the symptoms they have before them.” It was not conceded at the trial that the insured actually had cancer or a cancerous growth at the time the policy was issued. The judge ordered a verdict for the defendant. Held, that, the burden being on the defendant to show that the misstatements of the insured were made in bad faith or that their falsity increased the risk, the question of fact whether the insured had cancer or a cancerous growth when he made the application should have been submitted to the jury, because the jury might not have believed the opinions expressed by the surgeons, although they were uncontradicted.</p> <p>In the same case it was said that, even if the presiding judge felt that the evidence establishing the fact that the insured had the disease was so .overwhelming that ia. Verdict disregarding it ought not to be permitted to stand, it was wrong to order a verdict for the defendant.</p>

<p>Contract for labor performed and materials furnished in repairing a motor car belonging to the defendant which he previously had bought from the plaintiff as a second-hand car. Writ in the Municipal Court of the City of Boston dated September 11, 1911.</p> <p>On appeal to the Superior Court on June 3, 1912, the case was tried before Fox, J. The contract in writing for the sale of the car by the plaintiff to the defendant was as follows:</p> <p>“Sec-Hand Green car</p> <p>Motor Car Order</p> <p>“J. H. MacAlman</p> <p>889 Boylston Street</p> <p>Boston, Mass., December 16, 1910.</p> <p>“We acknowledge receipt of your check for the sum of $1800.00 to apply upon your order entered this day as follows, viz:</p> <p>“Second-hand Stearns Motor Car, Model 30/60 equipped with Chain Drive.</p> <p>“G. Vaughan Body, Standard Tires and regular standard equipment. Color Body Maroon Color Running Gear Maroon Special Extras</p> <p>Remarks: Equipment to include Cape top, Prest-o-Lite tank, five lamps, horn, pump, jack, and kit of tools, tire irons.</p> <p>Price, inclusive of extras, $1800.00 f. o. b. Boston, Mass.</p> <p>Terms: Cash upon acceptance of this proposal.</p> <p>“To be delivered at Boston, Mass., on or before, at once, subject to strikes, accidents, transportation, unavoidable delays and causes beyond our control.</p> <p>“It is expressly understood that, in event of failure on our part to make delivery upon the date and for the causes stated, the - above payment will be refunded upon demand.</p> <p>“J. H. MacAlman.</p> <p>By Chas. I. Howell</p> <p>Salesman.</p> <p>“Accepted by Edward P. Gleason</p> <p>Purchaser</p> <p>By H. C. Prior</p> <p>Address 535 Beacon St., Boston.”</p> <p>The testimony offered by the defendant in regard to an alleged oral agreement to guarantee the machine for a year, which is described in the opinion, was admitted in evidence by the judge subject to the plaintiff’s exception.</p> <p>The full amount claimed in the declaration was $509.53. The defendant contended that all of this except certain items amounting to $113.37 was covered by the alleged guaranty. The judge submitted the case to the jury with the understanding and agreement of the parties that, if the finding of the jury was not for the full amount of the claim as set out in the declaration, namely, $509.53, the case was to be reported to this court for determination, with the further understanding that, if the evidence to prove the so called guaranty should have been excluded, judgment was to be entered for the plaintiff in the sum of $509.53. If on the other hand such evidence was admitted properly, judgment was to be entered by this court on the verdict.</p> <p>The jury returned á verdict for the plaintiff in the sum of $113.37; and the judge reported the case for determination by this court with a stipulation in accordance with the understanding and agreement stated above.</p>

<p> Agency. Partnership. Motor Vehicle. </p> <p>In an action against two partners, carrying on as a firm the business of roofers, for personal injuries sustained by the plaintiff from being run into when he was riding a bicycle on a highway by a motor truck belonging to the partnership and negligently driven by one of the defendants, it appeared that at the time of the accident the other defendant was on a vacation in another State and that defendant contended that his partner who was driving the truck was using it for his own private purposes at the time of the collision. The defendant who was driving the truck never had used it before except on business of the firm. He testified that when the collision occurred he had been out with the truck for more than two hours and was returning to his place of business. He testified further that at the time of the collision he was using this business truck solely for pleasure driving and that he had driven only six or seven miles. • There was evidence from which it could be inferred that he was returning from an inspection of the partnership work that had been going on that day. The judge refused to rule at the request of the other defendant that there was no evidence that at the time of the accident the partner driving the truck was acting within the scope of the partnership business and that there was no evidence that the partner driving the truck was acting as the agent of the other defendant. Held, that the refusal to make these rulings was right.</p> <p>If two partners own as partnership property a motor truck used in the partnership business, and one of the partners gives to the other permission to use the truck for pleasure trips, and if, while the partner to whom this permission is given is using the truck on a pleasure drive not on account of the business of the firm, he negligently runs down a traveller who is riding a bicycle on a highway, the absent partner, who lent his share in the motor truck to his copartner for pleasure purposes, is not liable to the injured traveller, because the loan for the outside purpose did not create an agency.</p>

<p>Agency. Municipal Corporations, Fire department. Public Officer.</p> <p>Where the chief of the fire department of a city was being carried to a fire in a motor car operated by a member of the fire department, who, while not acting under the personal direction or orders of his chief, lost control of the car through his negligence in driving it at an excessive rate of speed, and the car, crossing the sidewalk of a public street, struck and injured a traveller thereon, the traveller cannot recover damages for his injuries from the chief of the fire department, the member of the fire department whose negligence caused the injury not being an employee or agent of such chief.</p>

<p>Contract by a real estate broker to recover $312.50 as a commission for procuring a customer to purchase from the defendant certain real estate numbered 454 on Massachusetts Avenue in Lexington. Writ dated May 23, 1916.</p> <p>In the Superior Court the case was tried before Hardy, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $319.48. The defendant alleged exceptions.</p>

<p>Probate Court, Appeal, License to sell real estate. Insolvent Estates.</p> <p>On an appeal from a decree of the Probate Court in which the objections to the decree appealed from were the same as those stated in Murray v. Cangiano, ante, 435, and where there was no report of the evidence, it was held that there was nothing to support any of the objections stated.</p> <p>On an appeal from a decree of the Probate Court, where the question was not open under the objections filed, it was said that it was unnecessary to consider whether the appealing party was a creditor of a certain deceased person and, if he was, whether such a creditor, after the estate of the deceased person had been represeated insolvent, was a person aggrieved within the meaning of R. L. c. 162, § 9, by a decree of the Probate Court granting a license to sell real estate of the deceased for the payment of debts.</p>

<p>Bill in equity, filed as amended in the Supreme Judicial Court on February 3, 1917, by the administrator with the will annexed of the estate of William H. Weston, late of Boston, for instructions as to the claim of the defendant Marland L. Pratt, which is described in the opinion.</p> <p>The case was heard by Loring, J., upon the pleadings and certain facts which were agreed to. The substance of the facts is stated in the opinion. The single justice made a final decree by which the plaintiff was instructed “that it is not his duty to pay to the defendant Marland L. Pratt any of the sums claimed by said Pratt under the appointment made to him in the will of William H-. Weston and the agreements set forth in the bill in priority to the payment of the claims of the other creditors of the estate of said William H. Weston.”</p>

<p>'Negligence, Railroad, Causing death, Contributory.</p> <p>In an action against a railroad corporation under St. 1906, c. 463, Part I, § 63, for causing the death of the plaintiff’s intestate, a child two years and five months of age, when she was travelling alone over a grade crossing before the enactment of St. 1914, c. 553, it appeared that the plaintiff’s intestate was living with her aunt and that the aunt gave permission to her daughter, seven years of age, to go to a public playground and to take the intestate with her, telling her “to take good care of her and hold her hand,” knowing that the children had to cross the railroad tracks to get to the playground and that it was a dangerous crossing, that the children got safely to the playground and there met a boy nine years of age, with whom the girl of seven got on a tilt and “was having a great time there playing on the seesaw,” forgetting completely about the intestate, who met a boy four years of age and wandered with him out of the playground until they got to the grade crossing, where the intestate was run over and killed. Meld, that, the intestate being incapable of exercising care, the administrator must prove, in order to recover under the statute, the exercise of due care on the part of her custodian; that the question of the due care of the aunt was for the jury, but that the girl of seven, to whose charge the intestate had been confided, could not have been found to have exercised any care of her whatever, and that a verdict should have been ordered for the defendant.</p>

<p>Four actions of tort, the first for damage to a motor car owned and operated by the plaintiff and each of the other three actions for personal injuries sustained while travelling as invited guests in the motor car of the plaintiff in the first case, such damage and injuries having been incurred between eight and nine o’clock on the evening of July 4, 1915, by reason of a collision of the motor car with a street railway car owned by the defendant and alleged to have been operated negligently by the defendant’s servants on Grafton Street leading from the town of Grafton to the city of Worcester. Writs dated July 19, 1915.</p> <p>In the Superior Court the four cases were tried together before White, J. The material evidence is described in the opinion. The rule of the defendant, there referred to, was as follows:</p> <p>“Headlight, Arc, Use of. Arc headlights must not be used at places prohibited by ordinance or special instructions. When approaching a vehicle moving in the opposite direction, the arc light must be turned out, provided it can be done without endangering- the safety of car or persons, or in case of doubt, stop car.”</p> <p>At the close of the evidence the defendant asked the judge to order a verdict for the defendant in each case. The judge refused to do this. The defendant then asked the judge to rule in each of the three Hodgerney cases, as follows:</p> <p>"1. On all the evidence the plaintiff cannot recover and the verdict must be for the defendant.</p> <p>“2. The lack of care on the part of the driver of the automobile is imputed to the plaintiff, and if the driver of the automobile is guilty of contributory negligence the plaintiff cannot recover.</p> <p>“3. There is no evidence of negligence on the part of the defendant company which was the proximate cause of the injury to the plaintiff.”</p> <p>The defendant asked the judge to rule in the case of Willard H. Bailey as follows:</p> <p>“On all the evidence the plaintiff cannot recover and the verdict must be for the defendant.”</p> <p>The judge refused to make any of these rulings and submitted the cases to the jury. The jury returned a verdict for the plaintiff in each of the four cases, in the case of the plaintiff Bailey in the sum of $350, in the case of Mildred Hodgerney in the sum of $100, in the case of Louis J. Hodgerney in the sum of $15 and in the case of Rose Hodgerney in the sum of $500. The defendant alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff on November 27, 1915, by falling into a hole or opening in the floor of the cellar of the defendant’s place of business at the corner of Main Street and Pleasant Street in Worcester, when the plaintiff had gone there to deliver a barrel of goods. Writ dated December 15, 1915.</p> <p>In the Superior Court the case was tried before O’Connell, J. The evidence is described in the opinion. At the close of the evidence, the judge having refused to order a verdict for the defendant, the defendant asked him to make the following rulings:</p> <p>“1. Upon all the evidence the plaintiff cannot recover and the verdict must be for the defendant.</p> <p>“2. Upon all the evidence in the case the plaintiff was a mere licensee upon the premises of the defendant at the time of his injury and the defendant owed him no duty except to refrain from wantonly and wilfully injuring him.”</p> <p>The judge refused to make either of these rulings and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $432.32. The defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 7, 1915, by the Boston Tow Boat Company, alleged to be a corporation established under the laws of this Commonwealth and having a usual place of business in Boston, against the Medford National Bank and the Medford Trust Company, corporations, praying that both defendants be ordered to pay to the plaintiff the sum of $6,000 with interest and the amount of necessary expenses by reason of certain transactions described in the bill.</p> <p>The case came on to be heard before Crosby, J., who made certain findings of fact, and, being of opinion that the case presented no disputed issue of fact, reserved it upon the pleadings and the evidence, the whole of which was reported, for determination by the full court.</p> <p>St. 1918, c. 277, is as follows:</p> <p>“Section 1. Such of the following named corporations as are not already legally dissolved are hereby dissolved, subject to the provisions of sections fifty-two and fifty-three of chapter four hundred and thirty-seven of the acts of the year nineteen hundred and three:</p> <p>[Here follow the names of many corporations, including that of the Boston Tow Boat Company J</p> <p>“Section 2. Nothing in this act shall be construed to affect any suit now pending by or against any corporation mentioned in the first section hereof, nor of any suit now pending or hereafter brought for any liability now existing against the stockholders or officers of any such corporation, nor to revive any charter previously annulled or corporation previously dissolved, nor to make valid any defective organization of any of the supposed corporations mentioned in said first section.</p> <p>"Section 3. Suits upon dioses in actions arising out of contracts sold or assigned by any corporation dissolved by this act may be brought or prosecuted in the name of the purchaser or assignee. The fact of sale or assignment and of purchase by the plaintiff shall be set forth in the writ or other process; and the defendant may avail himself of any matter of defence of which he might have availed himself in a suit upon the claim by such corporation, had it not been dissolved by this act.</p> <p>“Section 4. This act shall take effect upon its passage.</p> <p>“Approved March 12, 1913.”</p>

<p>Negligence, Degrees of, Toward one transported gratuitously. Motor Vehicle, Duty of owner to one transported gratuitously.</p> <p>One who is travelling gratis in a motor car in company with its owner by such owner’s invitation and is injured by reason of the negligence of the chauffeur operating the car, who is acting at the time as the servant of the owner, cannot maintain an action against such owner for his injuries unless he can show gross negligence on the part of the chauffeur. West v. Poor, 196 Mass. 183, approved.</p> <p>Discussion by Loring, J., of degrees of negligence.</p> <p>Ground of decision in Davis v. Central Congregational Society, 129 Mass. 367, discussed by Loring, J.</p> <p>The measure of liability of one who undertakes to carry a person gratis is the same as that of one who undertakes to keep goods gratis. By Loring, J.</p> <p>The rule stated in Gill v. Middleton, 105 Mass. 477, 480, that “The law furnishes no definition of gross negligence as distinguished from want of reasonable and ordinary care, which can be of any practical utility,” is repudiated and overruled.</p> <p>Justice requires that to make out liability in case of a gratuitous undertaking the plaintiff must prove a materially greater degree of negligence than he has to prove where the defendant is to be paid for doing the same thing. By Lomare, J.</p>

<p>Bill in equity, filed in the Probate Court for the county of Suffolk, by the trustees under the will of Stephen Westcott, late of Boston, who died on June 13, 1874, for instructions as to the distribution of the residue of his estate.</p> <p>The Probate Court made a decree that the heirs at law of Emma W. Bullock, namely, Edith Russell Chesebrough and Westcote Herreshoff Chesebrough, were entitled to the personal property in the hands of the plaintiffs as trustees under the will of Stephen Westcott, the income of which was paid to Emma W. Bullock during her life. Elizabeth M. Colt, executrix of the will of Emma Russell Chesebrough and the Rhode Island Hospital Trust Company, the trustee under that will, appealed from the decree.</p> <p>The case came on to be heard upon the pleadings and an agreed statement of facts before Crosby, J., who reserved it for determination by the full court.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to have been sustained by the plaintiff on October 13,1914, at about 8 :30 A. M. from tripping and falling over some bricks protruding from the sidewalk of Moreland Street near or opposite Perrin Street in the part of Boston called Roxbury. Writ dated May 26,1916.</p> <p>In the Superior Court the case was tried before White, J. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions to the admission of certain evidence as the declaration of a deceased person under R. L. c. 175, § 66, as described in the opinion.</p>

<p>Petition, under St. 1909, c. 490, Part I, § 77, filed in the Superior Court on May 6, 1912, by the Atlantic Maritime Company, a corporation organized under the laws of the State of Maine, appealing from the refusal of the assessors of the city of Gloucester to abate a tax for the year 1911 imposed upon fishing vessels of the petitioner.</p> <p>The case came on to be heard by Lawton, J., upon an agreed statement of facts submitted as evidence, whereupon the judge by agreement of the parties “in accordance with the provisions of St. 1917, c. 345,” reported the case to this court for determination without making any decision thereon.</p> <p>St. 1917, c. 345, added a last sentence to R. L. c. 173, § 105, as previously amended, so that that section now reads as follows:</p> <p>“Section 105. A justice of the Supreme Judicial Court or of the Superior Court, after verdict, or after a finding of the facts by the court, may report the case for determination by the full court. If the justice is of opinion that an interlocutory finding or order made by him ought to be determined by the full court before any further proceedings in the trial court, he may report the case for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties. A justice of the Supreme Judicial Court or of the Superior Court may, upon request of the parties, in any case where there is agreement as to all the material facts, report the case to the full court for determination without making any decision thereon.”</p>

<p>Tort under R. L. c. 51, § 18, for an injury alleged to have been sustained on March 16, 1914, by reason of a defect or want of repair in the sidewalk of South Main Street in Fall River. Writ dated May 20, 1914.</p> <p>In the Superior Court the case was tried before White, J. The evidence bearing upon the question of notice is described in the opinion. The plaintiff when injured was walking with one Greenwood and other young men who had joined them, "The young men had been walking on the sidewalk when they came to a puddle and turned out to the edge near the curbing. They then proceeded in single file, walking on the curb stone, the plaintiff being the third or fourth in the group, and walking behind Mr. Greenwood. The young men had passed the puddle and stepped farther into the sidewalk on the right, and the plaintiff, following the men who had preceded him, was going ahead when his right foot sank into a hole, and his shoe was caught and held him so that he was thrown over on his side. He was picked up and fell over again and then was helped up and, although he contended at the trial that his leg was broken and he had received a Potts fracture, he did not know it at the time and was able to hobble away. The fact that he had received a break or Potts fracture was in dispute at the trial. The hole into which the plaintiff had stepped was about ten inches long, three or four inches wide and two or three inches deep. It was caused by a cobble stone which had been placed there sinking into the ground. The place where the accident happened was where a passageway was made across the sidewalk into the adjoining property. The sidewalk' was generally curbed north from Dwelly Street, but in this place there was a break in the curbing of about eight or nine feet to allow for the passageway. The sidewalk was made of dirt or cinders and was about four inches above the level of the gutter. Leading up from the level of the gutter to the sidewalk were some paving blocks set in three rows, one higher than the other. One of these paving stones in the middle row had sunk into the ground so that the hole of the size mentioned surrounded by other paving blocks existed and had been in that condition for at least one or two months. The spot where the accident happened was in the sidewalk to the east of the eastern line of the curbing. The plaintiff was a stranger in Fall River and had never been over the place of the accident before.”</p> <p>At the close of the evidence the judge on motion of the defendant ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>R.'L. c. 51, §§ 20, 21, are as follows:</p> <p>“Section 20. A person so injured shall, within ten days thereafter, if such defect or want of repair is caused by or consists in part of snow or ice, or both, and in all other cases, within thirty days thereafter, give to the county, city, town or person by law obliged to keep said way, causeway or bridge in repair, notice of the time, place and cause of the said injury or damage; and if the said county, city, town or person does not pay the amount thereof, he may within two years after the date of said injury or damage recover the same in an action of tort. Such notice shall not be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if it is shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby.</p> <p>“Section 21. Such notice shall be in writing, signed by the person injured or by some one in his behalf, and may be given, in the case of a county, to one of the county commissioners or the county treasurer; in the case of a city, to the mayor, the city clerk or treasurer; and in the case of a town, to one of the selectmen or to the town clerk or treasurer. If by reason of physical or mental incapacity it is impossible for the person injured to give the notice within the time required, he may give it within ten days after such incapacity has been removed, and in case of his death without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give the notice within thirty days after his appointment.”</p>

<p>Bill in equity, inserted in a common law writ dated July 21, 1914, against the executor of. the will of Katherine F. Gardner, late of Swansea, the aunt of the plaintiff, praying that a trust in favor of the plaintiff be established in a fund of $2,500 in the hands of the defendant as executor, which constituted the proceeds fromthe sale of certain real estate in Swansea, as described in the opinion.</p> <p>In the Superior Court the case was heard by Dubuque, J., who made findings of fact, which are stated in substance in the Qpinion, and ruled that-upon the facts found the plaintiff was entitled to recover the amount of the proceeds from the land sales, namely, $2,224.75 with interest from the date of the writ. Later by order of the judge a final decree was entered for the plaintiff; and the defendant appealed.</p> <p>R. L. c. 147, § 1, is as follows: “No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by an instrument in writing signed by the party or by the attorney of the party creating or declaring the trust.”</p>

<p>Petition, filed in the Probate Court for the county of Bristol on August 29,1916, by the trustees under the will of Sylvia Ann How-land, late of New Bedford, who died on July 2, 1865, for a decree authorizing the distribution of the trust fund held by them among the lineal descendants of Gideon Howland, late of Dartmouth, (who died on May 23,1823,) who were living at the death of Hetty Howland Robinson Green, the beneficiary for life under the trust, who died on July 3, 1916.</p> <p>It appeared that of the grandchildren of Gideon Howland there were on July 3, 1916, forty-five who either were living or whose descendants were living at that date; and that of these forty-five grandchildren three were living on July 3, 1916, and forty-two had died.</p> <p>The Probate Court made a decree ordering that the trustees should convert the trust estate into cash and should distribute the proceeds to the persons named therein in the proportions there stated, giving to each of the three living grandchildren one forty-fifth share and to the descendants of each of the other forty-two grandchildren in question one forty-fifth share.</p> <p>Certain of the respondents appealed from the decree.</p> <p>The case came on to be heard before Crosby, J., who by agreement of counsel reserved all questions of law arising in the case upon the record and an agreed statement of facts for determination by the full court, such decree to be entered as justice might require.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 26, 1916, and amended on February 16, 1917, by Emily Tod of Liverpool in England, the widow of James Tod, late of Malden, who died on January 26, 1915, against the executors of the will of James Tod, praying that the defendants be restrained from collecting a note made by the testator for $5,000 payable to the defendant William G. Mitchell out of the assets of the.estate of the testator in Massachusetts and that they be ordered to collect the expenses of administration and the debts of the estate of James Tod out of the assets of his estate in England.</p> <p>The allegations of the bill as amended are stated in the opinion. The defendants demurred to the bill and alleged the following causes of demurrer:</p> <p>“1. That the plaintiff has not stated in her bill such a cause as entitled her to any relief in equity against these defendants.</p> <p>“2. Because it appears by said bill the assets belonging to the estate of the late James Tod which are in England are not within the jurisdiction of this court.”</p> <p>The case came on to be heard on the bill as amended and the demurrer before Pierce, J., who by agreement of all the parties reserved it for determination by the full court.</p>

<p>Tort, the declaration alleging that the plaintiffs owned pasture land in Swansea which they used for pasturing cows and which adjoined premises owned and occupied by the defendant, that without the knowledge of the plaintiffs the defendant by its agents and employees negligently and wrongfully threw upon such pasture land of the plaintiffs poisonous substances whereby three heifers belonging to the plaintiffs were poisoned and caused to die. Writ dated October 26, 1914.</p> <p>In the Superior Court the case was tried before Morton, J. At the close of the plaintiffs’ evidence, which is described in the opinion, the judge ordered a verdict for the defendant and reported the case for determination by this court, with a stipulation of the parties that, if the ordering of the verdict was wrong, judgment was to be entered for the plaintiffs in the sum of $500; and that otherwise the verdict, as ordered, was to stand.</p>

<p>Complaint, received and sworn to in the Fourth District Court of Eastern Middlesex on September 15, 1916, under R. L. c. 100, § 1, charging that the defendant at Woburn on September 13,1916, “unlawfully did expose and keep for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, . .'. not having . . . any license, authority, or appointment, according to law, ... to expose, keep for sale, or sell said liquors.”</p> <p>In the Superior Court the defendant was tried before Stevens, J. The evidence for the Commonwealth is described in the opinion. The defendant offered no evidence and asked the judge to order a verdict of not guilty. This the judge refused to do. The defendant then asked the judge to make five rulings, of which the judge made the second and fourth and also the fifth with a certain modification. The others were as follows:</p> <p>“1. On all the evidence in the case, the defendant is entitled to an acquittal.”</p> <p>“3. There is no evidence in this case that the defendant illegally exposed any liquors for sale.”</p> <p>The judge refused to make either of these rulings and submitted the case to the jury in the manner described in the opinion. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Bills and Notes, Consideration. Husband and Wife. Practice, Civil, Rulings, Memorandum of decision.</p> <p>In an action against a husband and wife jointly on a promissory note signed by both of them as makers, where it appears that the wife signed the note as a joint and several maker with full knowledge of its tenor and that the note was given for money lent by the plaintiff to the husband to be secured by a mortgage of the husband’s real estate, a good consideration for the wife’s promise is shown.</p> <p>A judge before whom a case is tried without a jury properly may refuse to make a ruling correct in law if it is not applicable to the facte of the case as found by him on evidence warranting such findings.</p> <p>If a judge, before whom an action at law has been tried without a jury and who has been asked to make certain rulings of law, takes the case under advisement and does not deal with the requests for rulings until some time later when he files a memorandum of decision with a finding against the party who made the requests, there is no error of law in this if the party whose requests for rulings have been refused is allowed to except to the refusal.</p>

<p>Contract upon an account annexed for a balance of $150 alleged to be due for the construction of a building at the corner of North Russell Street and Cambridge Street in Boston for the contract price of $23,500 with the following extras: Bond $63, Painting roof fences $15, Waterproofing basement $100, Plate glass insurance $14.33 and Fireproofing hall floors $30. Certain allowances and payments on account made the balance alleged to be due for the contract price and extras $150. Writ in the Municipal Court of the City of Boston dated May 13,1915.</p> <p>At the trial there was evidence tending to show that the plaintiffs and the defendant on June 10, 1914, entered into a contract in writing by which the plaintiffs agreed to provide all materials and perform all work for the erection of a certain building for the sum of $23,500 as shown on the drawings and provided in the specifications prepared by William G. Rantoul, architect. It was provided that the drawings and specifications should become a part of the contract.</p> <p>Article II of the contract contained the following clause: “It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said Architect, and that his decision as to the true construction and meaning of the drawings and specifications shall be final.”</p> <p>The specifications contained, among others, the following clauses:</p> <p>“The contractor, at his own expense, shall protect the owner by approved Surety Company’s bond for the amount of the contract.</p> <p>“In case of a discrepancy in figures, drawings or specifications, the matter is to be submitted to the Architect for adjustment.</p> <p>“ These specifications are not to be construed as a complete schedule of the work to be done, but all materials or labor called for or implied by either of them, or by the drawings, or required to make a complete or workmanlike job, in the opinion of the Architect, must be furnished or done the same as if here specified in detail.</p> <p>"The General Contractor is to employ George H. Wetherbee, Engineer, 12 West St., Boston, to establish the lot lines and grades and the General Contractor is to follow these lines.</p> <p>“If any extra work is required, a price for the same must be agreed upon and approved in writing by the Architect before such work is begun.”</p> <p>There was evidence tending to show that the plaintiffs provided all materials and performed all work for the erection of the building; that, when the plaintiffs submitted their figures for the erection of the building, the premium for the Surety Company’s bond, provided for above, was $125; that the figures were not accepted and the contract executed until two or three months thereafter, and in the interim the premium for a Surety Company’s bond had been raised to $188; that the architect directed the plaintiffs to charge the difference of $63 as an extra, and the premium of $188 was paid by the plaintiffs; that the painting of the roof fences was an extra, and the price of $15 for painting them was agreed upon orally between the plaintiffs and the architect, after which the plaintiffs painted the fences at the direction of the architect and charged it as an extra, that the architect asked the plaintiffs what they would charge to cover the entire basement floor with a layer of tar paper mopped in hot tar and over this put six inches of concrete composed of cement and gravel, that the plaintiffs said $100 and the architect told them to go ahead and do it and charge it as an extra, that the plaintiffs thereupon did it and that this was the item of extras called “Waterproofing basement;” that the architect orally directed the plaintiffs to insure the plate glass in the building and charge it as an extra, and the plaintiffs did insure the plate glass and paid the premium of $14.33 and charged the amount as an extra; that the architect asked the plaintiffs what they would charge to fireproof the hall floors, and the plaintiffs said $30 and the architect told them to go ahead'and do it and charge it as an extra, and the plaintiffs did it and charged it as an extra.</p> <p>The judge of the Municipal Court found that the plaintiffs made the payments and performed the work described above, which were agreed upon orally and were approved orally by the architect.</p> <p>The judge made the following statement of his decision: “But for the rule of law laid down in Stuart v. Cambridge, 125 Mass. 102, and supporting cases as to lack of power by the architect to waive a requirement in the specifications that the price for any extra work must be agreed upon and approved in writing by the architect before such work is begun, and for the fact that the failure of the architect to so approve in writing the prices for the extra work mentioned in this report was not personally waived or ratified by the defendant, I should have found for the plaintiffs for the amount claimed less two deductions, one of $2 for the cavity in the stair well in the basement and another of $2 for the fact that certain risers on the stairs projected above the stair floors, that is to say in the sum of $146.”</p> <p>The judge found for the defendant, and at the request of the plaintiffs reported the case to the Appellate Division. The Appellate Division made an order that the report be dismissed; and the plaintiffs appealed.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board, in which they found that the claimant, Agnes M. Murphy, the sister of the deceased injured employee, was a member of the employee’s family, although not his next of kin, and that she was partially dependent upon him for support, and made her an award of compensation as such dependent.</p> <p>In the Superior Court the case was heard by Jenney, J. The facts shown by the report are stated in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p> <p>The definition of dependents contained in St. 1911, c. 751, Part V, § 2, is as follows: “‘Dependents’ shall mean members of the employee’s family or next of kin who were wholly or partly dependent upon the earnings of the employee for support at the time of the injury.”</p>

<p>Savings Bank. Contract, Construction. Bills and Notes, Payment on forged order. Pleading, Civil, Equitable defence, Set-off.</p> <p>Where a depositor in a savings bank assents at the time of his first deposit, in accordance with a notice printed on his bank book, “ to all the regulations of the institution,” this does not incorporate in his contract with the bank a by-law subsequently adopted, without the knowledge of the depositor, that, “When a deposit book has been lost or destroyed, immediate written notice should be given to the treasurer . . .' the corporation will not be responsible for loss sustained, when a depositor has not given notice in writing of his book having been stolen or lost, if payment be made in whole or in part on account of such book on presentation.”</p> <p>A depositor in a savings bank is not.bound by a by-law of the bank, passed without his knowledge about four years after the contract of deposit was made, that “Any payment made to any person who presents a deposit book of this bank, or who shall present an order for the payment of money accompanied with such deposit book purporting to have been signed by the person to whom such book belongs, shall be deemed to be for the Bank as good and effectual a payment as that made to the owner of such deposit book.”</p> <p>In an action by a fraternal beneficiary corporation against a savings bank for the amount of deposits drawn out by the plaintiff’s treasurer upon forged orders, remissness of the plaintiff’s auditors, in failing to discover by semiannual or quarterly examinations of the treasurer’s accounts that the treasurer was misappropriating the funds of the corporation or was obtaining money from the savings bank on forged orders, is not evidence that the corporation participated in the treasurer’s fraud, and does not require a finding that the corporation was so negligent in failing to discover the fraud as to lose its right to recover the amount paid by the bank on the forged orders.</p> <p>In the case stated above the defendant relied, as an equitable defence under R. L. c. 173, § 28, on the facts that the plaintiff’s dishonest treasurer, who drew $3,345 on forged orders out of the savings bank, used for himself only $250 and deposited the remaining $3,095 in the plaintiff’s name and to its credit in a national bank, and that the money thus deposited was used in paying sick benefits and other legal obligations of the plaintiff. The plaintiff never offered to return any part of the deposit to the defendant savings bank. The judge who heard the case ruled that the plaintiff could recover only $250. Held, that the ruling was right.</p> <p>In the case described above the plaintiff did not demur to the equitable defence on the ground that the remedy at law was plain and adequate, and it was said that it was unnecessary to consider whether the defendant could have recovered under a declaration in set-off for money had and received.</p>

<p>Tort by the administrator of the estate of Archie L. King, late of Danvers, for causing the conscious suffering and death of the plaintiff’s intestate on October 18, 1914, by knocking him down with a motor car alleged to have been operated negligently by a servant of the defendant. Writ dated May 7,1915. .</p> <p>In the Superior Court the case was tried before Hitchcock, J. In the course of the trial certain declarations of the intestate in regard to the way in which the accident happened were offered in evidence and were admitted by the judge. The defendant asked the judge to make the ruling which is quoted in the opinion. The judge refused to make the ruling requested and instructed the jury that from the fact that the evidence had been received they might understand that the judge had decided that the statements were made in good faith and before the action was commenced and that they were made upon the personal knowledge of the declarant. He called the attention of the jury to the fact that the statements were not made under oath or subject to cross-examination and told them that it did not follow because the evidence was admitted that it had to be believed and that it was for them to give the evidence such weight as they thought it entitled to have.</p> <p>The jury returned a verdict for the plaintiff and assessed the damages in the sum of $750 for conscious suffering and in the sum of $2,500 for causing death. The defendant alleged exceptions to the judge’s refusal to make the ruling requested by it.</p>

<p>Bill in equity, filed in the Superior Court on July 7, 1915, seeking an order for the discharge of a mortgage on the stock in trade and fixtures of a bar room at 166 and 168 Coffin Avenue in New Bedford.</p> <p>The defendants filed an answer and a cross bill as described in the opinion. The case was referred to a master who filed a report containing the findings of fact that are stated in the opinion. The facts in regard to the defendants’ objections to the report, which are stated in the opinion, appeared in a certificate made by the master.</p> <p>The case was heard upon the master’s report by Raymond, J., who ordered that the exceptions to the master’s report be overruled and that the report be confirmed, and made a final decree that the defendants execute and deliver forthwith to the plaintiff a discharge of the mortgage given by Cornelius D. Murphy to James F. Moore dated April 28, 1906, and that the cross bill be dismissed, and awarded costs to the plaintiff. The defendants appealed.</p> <p>Equity Rule 31 of the Superior Court is as follows:</p> <p>“When the master has prepared a draft copy of his report, he shall notify the parties or counsel of a time and place when and where they may attend to hear the same, and suggest such alterations, if any, as they may think proper; upon consideration whereof, the master will finally settle the draft of his report, and give notice thereof to the parties or counsel; whereupon, after perusing the same, or being furnished with a copy thereof, if they so request and pay the usual fees therefor, five days shall be allowed for bringing in written objections thereto, which objections, if any, shall be appended to the report. No exception to a master’s report will be allowed without a special order of the court, unless founded upon an objection made before the master, and shown by his report, and unless filed with the clerk within fifteen days from the filing of the report. Notice of the filing of a master’s report shall be forthwith sent by the clerk to each party or his counsel.”</p>

Contract, by the assignee of Dora J. Hough, for $480.05 had and received to the use of the plaintiff’s assignor and interest thereon. Writ dated August 23, 1916. The defendant filed a declaration in set-off. In the Superior Court the case was tried before Callahan, J., and the jury returned a verdict for the plaintiff in the sum of $375. They found for the defendant on his declaration in set-off in the sum of $23.56.

<p>Surety. Bills and Notes. Pleading, Civil, Answer. Practice, Civil, Amendment.</p> <p>One of five sureties, who with their principal signed a promissory note as joint makers, if he pays the whole balance due on the note can maintain an action at law against one of his co-sureties to enforce contribution, and in such action can recover from the defendant one fifth of the amount paid by him.</p> <p>Where in such action it appears that one of the co-sureties had died before the plaintiff paid the balance due on the note, this does not change the proportion that he can recover from the defendant.</p> <p>A surety thus sued for contribution can set up the defence that he was discharged from his liability as surety, at least to the extent that he was injured thereby, by an arrangement made by the payee of the note with the principal maker without the consent or knowledge of the sureties whereby the payee gave up a part of the collateral security.</p> <p>In the same case it was held that this defence was not open to the defendant in the present case because it was not pleaded by him.</p> <p>In the same case it was held that, after a verdict had been ordered and had been entered for the plaintiff, the question whether the defendant should be allowed to amend his answer by setting up the defence of such a discharge from his liability as surety, which would require a new trial, was wholly within the discretion of the presiding judge, and that his refusal to allow such an amendment was final.</p> <p>Where the shares in a corporation held as collateral security for the payment of a promissory note signed by sureties as well as by the principal debtor have declined in value, the failure of the payee of the note to sell the shares before the decline does not discharge the sureties, if no wrongful conduct on the part of the payee appears and the sureties have stood by and let the decline in value proceed when they might have paid the note and have received and sold the collateral security.</p>

<p>Petition, filed in the Supreme Judicial Court on March 10, 1917, under St. 1913, c. 784, § 27, by the city of Fall River and its mayor and the president of its board of aldermen against the members of the public service commission and the Bay State Street Railway Company praying this court to review, annul, modify or amend the rulings and order made by the respondent commissioners on March 6, 1917, permitting the schedule, filed by the respondent corporation and referred to in such order, to become effective at the end of the period of suspension fixed by the respondent commissioners; and</p> <p>Contract by the city of Fall River against the Bay State Street Railway Company, as the successor and assignee of the Globe Street Railway Company, for the alleged breach of a bond under seal by which the Globe Street Railway Company covenanted to perform the conditions imposed upon it by an order, of the board of selectmen of the city of Fall River, passed on October 21, 1895, granting to that street railway company the right to lay its tracks on Slade’s Ferry Bridge and through certain streets according to plans on file, the alleged breaches being the failure of the Bay State Street Railway Company to perform the conditions imposed upon its predecessor, the Globe Street Railway Company, by failing to keep in repair the roadway of Slade’s Ferry Bridge and by failing to sell six tickets for a sum not exceeding twenty-five cents. Writ dated March 19, 1917.</p> <p>In the first case the respondent the Bay State Street Railway Company demurred to the petition and assigned the following causes for demurrer:</p> <p>"1. That said petition sets forth no ruling or order of the public service commission which is unlawful.</p> <p>“2. That by the provisions of the general law now in force this respondent may make rates for the service which it performs subject only to the power to regulate and prescribe the same that is lodged with the public service commission, which is given full and complete authority over all rates and charges for services rendered by common carriers, to be exercised notwithstanding any agreement entered into by reason of any requirement or recommendation of any board of public officials acting under delegated authority from the General Court.</p> <p>"3. That St. 1911, c. 552, was repealed by St. 1913, c. 784.</p> <p>“4. That the said commutation rate in Fall River if enforced as the petitioners seek to have it does not secure to the respondent a reasonable return for the service rendered and deprives it of its property without due process of law and denies to it the equal protection of the law in contravention of articles 10 and 12 of the Declaration of Rights and the Fourteenth Amendment of the Constitution of the United States.”</p> <p>The first case was heard upon the demurrer of the respondent the Bay State Street Railway Company by Loring, J., who made a final decree sustaining the demurrer and ordering that the petition be dismissed.</p> <p>The action of contract was heard in the Superior Court by Morton, J., without a jury. An agreed statement of facts was submitted as follows:</p> <p>The board of aldermen of the city of Fall River on October 21, 1895, passed the order described in the above statement. At the time of the order, and at the time of the execution by the respondent corporation of the bond mentioned in the plaintiff’s declaration, the regular fare‘duly established in and for the city of Fall River was five cents. After the order of October 21,1895, the Globe Street Railway Company put in operation its cars over the location therein named, and the cars have continued to be operated over such location by the Globe Street Railway Company and its successor, the Bay State Street Railway Company, up to the present time.</p> <p>Since St. 1911, c. 552, went into effect, the plaintiff has been obliged to pay $50 to keep in repair the roadway on said bridge and it has not been reimbursed for said sum. Since the enactment of St. 1898, c. 578, and up to the enactment of St. 1911, c. 552, the plaintiff paid all the expense of repairing the roadway of the bridge, and since the enactment of said chapter 552 the defendant has paid all such expense except the $50 above referred to. This location over the Slade’s Ferry Bridge was not the first location in Fail River which was granted to the Globe Street Railway Company.</p> <p>The defendant, Bay State Street Railway Company, has succeeded to the franchises, rights and obligations of the Globe Street Railway Company, which latter road was consolidated with the Brockton Street Railway Company on January 19, 1901, and was consolidated with the defendant on July 1, 1911.</p> <p>On March 15, 1917, the defendant discontinued the sale of six tickets for twenty-five cents.</p> <p>The plaintiff offered to prove that the officials and agents of the city of Fall River patronized the defendant street railway company and in the year 1915 the city purchased said four and one sixth cent tickets to the amount of $2,597.85, and in the year 1916 purchased said tickets to the amount of $2,547.25.</p> <p>The defendant objected to the admission of this evidence but, if admissible, agreed that the facts were as stated.</p> <p>The judge found the facts to be as stated in the agreed statement of facts and excluded the evidence contained in the plaintiff’s offer of proof. He found for the defendant and, at the request of the parties, reported all questions of law arising upon the facts as found by him and the offer of proof for determination by this court, with a stipulation that, if his decision was right, judgment should be entered for the defendant, and that, if his decision was wrong, the case should be remanded to the Superior Court for such further proceedings as this court might direct.</p>

<p>Contract for $1,000 against the principal and surety on a bond for $4,000 given under R. L. c. 197, § 28, to dissolve a mechanic’s lien on the interest of the principal defendant in a parcel of land on the corner of Broad Street and Main Street in Bridgewater. Writ in the Second District Court of Bristol dated October 25, 1915.</p> <p>On appeal to the Superior Court the case was heard by White, J., without a jury. The facts that appeared in evidence are stated in the opinion. The plaintiff offered in evidence the warrant of sale in the proceedings to enforce the mechanic’s lien together with a certified copy of it.</p> <p>The defendants objected to the admission of the warrant of sale on the ground that it was not competent evidence of any record,, that it was not a copy of the record and that it was not evidence of the things which are stated in it, and objected to the admission' of the certified copy for the same reasons and also on the ground that it was not a copy of the record of judgment.</p> <p>The judge admitted in evidence the certified copy of the warrant of sale, subject to the defendants’ exception.</p> <p>It was agreed by counsel that a demand for payment was made on the defendant Borden and that payment was refused; that x Ralph T. C. Jackson performed labor on the premises described in the bond; that he assigned his interest to the plaintiff and that the plaintiff had no other claim of lien.</p> <p>Before the arguments the defendants filed a motion that judgment be entered for the defendants “for that upon all the evidence the plaintiff cannot recover.” This motion was denied by the judge..</p> <p>The judge found for the plaintiff in the sum of $1,000, “being so much of the penal sum named in the bond as was within the jurisdiction of the Second District Court of Bristol.” He further ordered that execution issue in favor of the plaintiff in the sum of $870.58. The defendants alleged exceptions.</p>

<p>Res Judicata. Practice, Civil, Law of case, Exceptions. Jurisdiction. Corporation, Foreign. Equity Pleading and Practice, Amendment. Waiver.</p> <p>Where a suit in equity against a foreign corporation, which was begun by the insertion of the bill in a common law writ, is amended into an action at law, it remains the same proceeding, and á decision of this court, made in the suit in equity before the amendment, that the defendant was engaged in business as well as soliciting business in this Commonwealth and under St. 1913, c. 257, properly was served with process in the manner provided for service in actions against domestic corporations, is the law of the case, and the defendant cannot be allowed to set up in abatement of the action at law the alleged defence that the court has no jurisdiction for want of proper service on the defendant.</p> <p>In the same case it was said that the plaintiff, by filing a replication to the plea to the jurisdiction of the court in the suit in equity before the amendment into an action at law, did not waive his right to object to the reopening in the action at law of the issues disposed of in the suit in equity before the amendment.</p> <p>In the same case it was held, that, although the proper practice for the plaintiff would have been to join issue on the plea in abatement to the jurisdiction of the court contained in the defendant’s answer in the action at law, the fact that the plaintiff, instead of doing this, resorted to the procedure of moving to strike out from the defendant’s answer the portion adjudicated against the defendant in the suit in equity, which motion was allowed by the judge, did not injuriously affect the substantial rights of the defendant and under St. 1913, c. 716, § 1, gave it no right of exception.</p> <p>Where a foreign corporation actually doing business in this Commonwealth has been brought within the jurisdiction of a court of this Commonwealth by the service under St. 1913, c. 257, of a writ upon its agent, who is a resident of this Commonwealth, voluntarily appointed by it to have charge of its business here, it becomes answerable in this jurisdiction to any transitory cause of action, including an action at law on promissory notes made and negotiated by it in another State.</p>

<p>Equity Pleading and Practice, Waiver of want of equity, Costs, Report by judge. Practice, Civil, Costs. Judgment, Satisfaction. Joint Tortfeasors.</p> <p>Where in a suit in equity the defendant answers to the bill without demurrer and goes to trial on the merits he has waived any right to set up want of equity in the allegations of the bill.</p> <p>Where two persons are sued in separate actions for the same cause of action and a judgment for the full amount of damages with costs is entered against each of them, if one of them pays the judgment in full, this discharges the other from his liability for the damages but he still is liable for the costs awarded against him.</p> <p>Under the authority given to a trial judge by R. L. c. 203, § 9, where two cases are tried together, to “reduce the witness fees and other costs,” if the two cases are against different persons and each for the same cause of action and a recovery is had against each of the defendants, although the judge may order that only one set of costs shall be recovered provided that appears to be just, he is not obliged to make such an order, and, after a separate judgment for the full amount of damages with costs has been entered against each defendant, it is not possible to make such a readjustment.</p> <p>Although in the present suit in equity, which was reported by the trial judge for determination by this court, it was stated in the record that a “final decree” had been entered, the record was treated as presenting an order for a decree, because after a final decree the only report that the trial judge could make would be of the material facts in case of an appeal.</p> <p>In the same case it was said that, where on an appeal from a final decree in equity no error appears, the correct disposition of the case is by an order affirming the decree and not by an order dismissing the appeal as was provided by the form of the report in the present case.</p>

<p>Evidence, Privileged communications between attorney and client, Of soundness of mind, Presumptions and burden of proof. Attorney at Law. Will. Practice, Civil, Exceptions. Sanity.</p> <p>At the trial of a controversy between the proponent of a will, who was the husband of the alleged testatrix and was made the residuary legatee by the proposed will, and the heirs at law of the signer of the instrument, who was alleged by the contestants to have been of unsound mind, an attorney at law, who did not draw the alleged will but had acted as the legal 'adviser of the alleged testatrix, properly may bé permitted to testify as a witness for the contestants, against the objection of the proponent of the will, that "two or three years ago he had a conversation with the testatrix when she came to consult him relative to difficulties” with her husband and may tell what she said to him in that conversation.</p> <p>At the trial described above the same witness, subject to the proponent’s exception, was permitted to testify that he had warned the husband to keep away from his wife and had stated to him “that she dreaded him, that he had abused her and that she had become sick,” and that the husband had admitted that he had abused his wife and said that “he would go and live somewhere else.” Held, that this evidence had no bearing upon the question of the soundness of mind of the deceased wife and appeared to have been immaterial, and that its admission was harmless error under St. 1913, c. 716, § 1, and therefore afforded no ground for sustaining the exception.</p> <p>In the same case there was testimony indicating strange conduct and unusual remarks on the part of the alleged testatrix, there was evidence that she had suffered a stroke of paralysis and a physician testified that all such “shocks have an effect of some kind on the mind.” The single justice refused to rule that there was no evidence that would justify a finding that the alleged testatrix was of unsound mind. Held, that the refusal was right; that the burden was on the proponent of the will to show that the alleged testatrix was of sound mind, and that with the evidence stated above the general presumption of sanity did not as matter of law require a finding of testamentary capacity.</p>

<p>Mechanic’s Lien. Bond, To dissolve mechanic’s lien, Void as statutory bond but good at common law. Equity Jurisdiction, To restrain enforcement or compel discharge of lien securing satisfied debt.</p> <p>A bond to dissolve a mechanic’s lien given before January 1, 1916, under R. L. c. 197, § 28, as amended by St. 1906, c. 223, and St. 1909, c. 237, which is not recorded in the registry of deeds within ten days after its approval and which therefore is not good as a statutory bond, if executed under seal and delivered and accepted, is good at common law, and the obligee in an action upon it can recover the amount of his unpaid debt.</p> <p>In an action on such a bond it was said, that it was not necessary to determine, whether a municipal court in which the proceedings to enforce the mechanic’s lien were brought had jurisdiction to make an order dissolving the lien upon the filing of such a common law bond, because the obligee of the bond, after having recovered in his action upon it the full amount of his debt, would not be permitted to enforce his mechanic’s lien,' even if it was not dissolved, and, if he should try to do so, the landowner could maintain a suit in equity against him to restrain such enforcement and also might compel a discharge of the lien as shown by the record in the registry of deeds in case the satisfied creditor should refuse to make such discharge.</p>

<p>Legitimacy. Devise and Legacy. Words, “Lineal descendants.”</p> <p>The will of a testatrix gave the residue of her property, upon the termination of a life interest, to the “lineal descendants then living” of G H, the grandfather of the testatrix. It appeared that one of the grandchildren of G H whose issue were entitled to share in the gift left one son born in Michigan in lawful wedlock and two other sons born in Indiana and- remaining domiciled there, with whose mother the grandchild of G H went through a form of marriage, while his first marriage remained in force, which but for such former marriage would have been valid, and that the mother of the two last mentioned sons had no knowledge until after their birth of any impediment to her marriage with their father and had no reason to believe that he had contracted a former marriage, that a statute of Indiana, in force when the two Indiana sons were bom and still in force, provided that “When either of the parties to a marriage void, because a former marriage exists undissolved, shall have contracted such void marriage in the reasonable belief that such disability did not exist, the issue of such marriage begotten before the discovery of such disability by such innocent party, shall be deemed legitimate.” It further appeared that these three sons of the grandchild of G H were living at the time of the death of the beneficiary for life. Held, that the "lineal descendants then living” of G H must be those recognized as such by the law of this Commonwealth, that by such law the status of the sons of the grandchild as to legitimacy was dependent upon the law of their domicil unless that was contrary to the statute law or the public policy of this Commonwealth, which the statute of Indiana quoted above clearly was not, and that this law of their domicil showed that the two Indiana sons were legitimate, so that the three sons of the grandchild of G H were entitled to share equally as his lineal descendants.</p>