Volume 229 — Massachusetts Reports

<p>Tort, afterwards amended into an action of contract or tort and later into an action of contract, by the administrator of the estate of Harry W. Clark, late of the town of Fairhaven, the declaration containing before amendment six counts respectively for the alleged suffering and death of the plaintiff’s intestate caused by an injury received by the intestate on May 7, 1913, when in the employ of the defendant by reason of negligence of servants of the defendant and defects in its ways, works and machinery and negligence of a superintendent. Writ dated May 6, 1914.</p> <p>After the defendant had answered, the plaintiff filed a motion for leave to amend his writ by adding after the words, “in an action of tort,” the words, “or contract,” so that the action would appear therein as .“tort or contract,” and for leave to amend his declaration by substituting therefor a declaration containing four counts, of which the first was in contract and the remaining counts in tort. The allowance of the amendment, subject to the defendant’s exception, is described in the opinion.</p> <p>Without waiving this exception, the defendant demurred to the substituted declaration, and this demurrer was sustained by Sanderson, J.</p> <p>Thereupon the plaintiff moved to amend his writ and declaration so that they might read, “in an action of contract,” and should include only the first count in the substituted declaration, and this motion was allowed by Sanderson, J., the defendant’s counsel saying that he did not object to the allowance of the motion.</p> <p>The substituted declaration in contract was as follows:</p> <p>"First count: And the plaintiff says that on or about the seventh day of May, 1913, the defendant corporation conducted a telephone business in this Commonwealth; that in the conduct of that business it maintained certain wires strung on poles on Washington Street in Fairhaven, in this county and Commonwealth; that the plaintiff’s intestate was an employee of the defendant on said seventh day of May, 1913, and that as such employee it was part of his duty to work about a pole on said Washington Street and to ride on a certain chair suspended from one of the wires strung on said pole; that while the plaintiff’s intestate was so employed on said seventh day of May, 1913, he was severely injured by coming in contact with a wire containing electricity which was on said pole, causing him to be thrown to the ground, from which injuries the intestate died the following day; that the defendant established, maintained and agreed with the plaintiff’s intestate for a valuable consideration to administer a fund known as the 'Employees’ Benefit Fund,’ the defendant company undertaking and agreeing to insure its employees, including the plaintiff’s intestate, so that in case of death by accident occurring in and due to the performance of work for the company, upon receiving notice thereof, the company was to pay to the dependents of dead employees a sum equal to three years’ average wages but not to exceed five thousand ($5,000) dollars, and to pay the funeral and other expenses of the deceased, up to one hundred ($100) dollars; that the intestate left his father dependent upon him for support; that due notice of the death of the intestate and claim for payment under said fund was duly given to the defendant company, but the defendant company refused and still refuses to make any payment under said ‘Employees’ Benefit Fund’; and the plaintiff says he is the father of the intestate, and the administrator of his estate; and that all conditions and stipulations to be performed by the plaintiff or his intestate were duly performed, or the defendant waived their performance.”</p> <p>To the substituted declaration as amended the defendant, without waiving its exceptions previously filed, demurred. This demurrer was argued before Dubuque, J., who made an order overruling it. The defendant appealed.</p> <p>The defendant, without waiving its exceptions or its demurrer to the substituted declaration as amended, filed an answer to the substituted declaration as amended. Later the defendant, without waiving its exceptions or its appeal, filed a motion for leave to amend its answer to the substituted declaration as amended, by adding the allegation that the plaintiff had brought an action of tort in the Superior Court against the Union Street Railway Company to recover damages for the injuries and death of his intestate on account of the same accident for which the present action was brought; that in said action against the Union Street Railway Company the plaintiff had recovered judgment; that the plaintiff had received full satisfaction of the aforesaid judgment; that the plaintiff in consideration of the sum of $1,700 had released the Union Street Railway Company from any liability on account of the injuries to and death of his intestate, and on account of any cause of action arising therefrom, and that by reason of the foregoing the plaintiff had discharged and released the defendant from any liability on account of the injuries to and death of his intestate.</p> <p>Afterwards this action of contract came on for trial before Dubuque, J., and a jury.</p> <p>At the beginning of the trial the judge denied the defendant’s motion to amend its answer to the plaintiff’s substituted declaration “for the reason that the matters therein [in the proposed • amendment] set forth are not a bar to recovery on the substituted declaration as amended, which is an action of contract.” The defendant excepted.</p> <p>The evidence at the trial, so far as material, is described in the opinion. At the close of the evidence the defendant asked the judge to rule that upon the pleadings and all the evidence the plaintiff was not entitled to recover and to order a verdict for the defendant. The judge denied the motion, stating, however, that there was doubt in his mind regarding the correctness of this ruling but that he thought that the better course would be to submit the case to the jury. Accordingly he submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $3,020.59. The defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on February 10, 1916, by Alice Tamar English, of London in the Kingdom of Great Britain, against Charles R. English of Boston, the husband or former husband of the plaintiff, and one Mary E. Childs, for an order to reconvey to the plaintiff a certain parcel of land with buildings thereon in the part of Newton called West Newton belonging to the plaintiff, which the defendant Charles R. English wrongfully conveyed to the defendant Childs under the pretended authority of a power of attorney from the plaintiff dated September 13, 1909, and which the defendant Childs conveyed to the defendant English.</p> <p>The case was heard by Jenney, J., who made a finding of facts, including the facts that are stated in the opinion. The judge made an order that a decree be entered dismissing the bill as to the defendant Childs without costs and directing the defendant English to convey the property to his former wife, “inasmuch as a reconveyance is necessary in order to remove the cloud from her title caused by his attempt to vest the same in himself.”</p> <p>Later by order of the judge a final decree was entered dismissing the bill as to the defendant Childs without costs and ordering the defendant English to execute and deliver to the plaintiff a quitclaim deed of the premises described in the bill, subject to a certain mortgage, and that the defendant English also pay to the plaintiff $71.86 as the balance due on an accounting for the rents and profits less the expenses of the property from January 13,1916, to April 1, 1917.</p> <p>The defendant Charles R. English appealed.</p>

<p>Milk. Constitutional Law, Class legislation.</p> <p>The statute contained in R. L. c. 56, §§ 57, 62, as amended by St. 1910, c. 641, §§ 1, 2, making it a criminal offence to sell milk which is not of good standard quality and providing that “A producer of milk shall not be liable to prosecution for the reason that the milk produced by him is not of good standard quality unless” the sample of the milk has been taken in a certain way and unless he has failed to bring his milk to the legal standard within twenty days after notice in writing, while giving no such privilege and exemption to dealers in milk who are not producers, does not violate any right secured by the Constitution of the United States. Following St. John v. New York, 201 U. S. 633.</p> <p>Nor is the statute described above in contravention of any provision of the Constitution of the Commonwealth.</p>

Complaint, received and sworn to in the First District Court of Eastern Middlesex on May 5, 1915, under St. 1909, c. 534, § 7, as amended by St. 1915, c. 16, § 3, charging that the defendant on May 3, 1915, at Malden “did operate a certain automobile in and upon a certain public street, to wit: Pleasant Street in said Malden, during the period of from one half an horn: after sunset to one half an hour before sunrise, without displaying at least two white lights, visible not…

<p>Petition, filed on March 20,1917, by ten qualified voters of the town of Hubbardston for a writ of mandamus addressed to J. Frank Flagg, the moderator of the annual town meeting held on February 5, 1917, and William H. Wheeler, the town clerk of Hubbardston, commanding them to make a recount for school committee, counting as blank seven ballots which at the town meeting were counted for Maud Vanston Lufkin as a member of the school committee and declaring George H. Helton, the opposing candidate, to have been elected a member of the school committee.</p> <p>The case was heard by Carroll, J., who made the findings of fact and the ruling of law that are described in the opinion. He made an order for a decree that a writ of mandamus should issue and at the request of the parties reported the case for determination by the full court. If the ruling of law made by the single justice was right, the writ was to issue. If the ruling made by him was wrong, the petition was to be dismissed.</p>

<p>Contract, the declaration containing two counts, the first for $8,285 on an account annexed and the second for the alleged breach of an express contract in writing, which it was alleged that the plaintiff was prevented from completing after he had furnished labor and materials to the amount of $7,625. Writ dated July 10, 1912.</p> <p>The defendant filed a declaration in set-off, which is described in the opinion.</p> <p>In the Superior Court the case was tried before Sanderson, J. The work and labor were upon, and the contract in writing related to furnishing, the ornamental iron work for the construction of the St. James Theatre in Boston. The defendant offered to introduce evidence showing the amount of loss occasioned him by the delay in opening the theatre, but the judge ruled that such loss was immaterial and excluded the evidence. The defendant excepted. There was conflicting evidence on the question of waiver of performance by both parties. Other evidence is described in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to rule and instruct the jury as follows:</p> <p>“14. If the jury find that it would have cost the plaintiff to complete the work more than the unpaid balance of the contract price, the plaintiff cannot recover under the second count of his declaration.</p> <p>“ 15. If the defendant did at any time fail to make any payment due the plaintiff under the terms of the contract, the plaintiff waived any right which he might otherwise have had to insist upon such non-payment as an excuse for the non-performance of his part of the contract by continuing to perform his work and insisting upon the right to complete his contract.”</p> <p>The judge refused to make either of these rulings. The jury found for the plaintiff both on his declaration and on the defendant’s declaration in set-off. The jury made the general and special findings that are stated in the opinion; and the defendant alleged exceptions, which are there described.</p> <p>The case was submitted on briefs.</p>

<p>Contract against a corporation operating bowling alleys in Boston for wrongfully discharging the plaintiff in less than two months after having agreed to employ him as manager for one year at the compensation of $30 a week and five per cent of the net profits. Writ dated March 7, 1916.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The evidence, so far as it appeared in the bill of exceptions, is described in the opinion. At the close of the evidence the judge submitted to the jury the following questions:</p> <p>“1. Was an agreement made between Leavitt as treasurer of' the defendant company and the plaintiff Hartford to employ Hartford as manager of the defendant alleys for a term of one year?” The jury answered, “Yes.”</p> <p>“2. If there was such an agreement, and if the plaintiff is entitled to recover damages for a breach thereof, what is the amount of such damage?” The jury answered, “$1,240.20.”</p> <p>The judge ruled that there was no evidence that Leavitt had authority to make a contract, binding upon the defendant, to hire the plaintiff for one year, and ordered the jury to return a, verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Contract against the St. Louis Rubber Company a corporation, the Paul Revere Trust Company being summoned as trustee, for an alleged wrongful discharge under a contract of employment. Writ dated November 11, 1914.</p> <p>On October 29, 1915, the plaintiff obtained a verdict for $780. The defendant was adjudicated a bankrupt on May 15, 1916, and was discharged in bankruptcy on November 29, 1916. On February 7, 1917, the plaintiff filed a motion for a general or special judgment against the bankrupt to enable the plaintiff to bring an action against the sureties on a bond which was given by the bankrupt to dissolve an attachment made by the trustee process. The sureties on the bond were permitted to intervene and object to the allowance of the motion. The motion was heard by Lawton, J. The material facts and proceedings are stated in the opinion.</p> <p>The sureties asked the judge to make the following rulings:</p> <p>“1. The plaintiff could have asked the judge, at the hearing on the first motion for a special judgment, to grant such judgment on the second or statutory bond.</p> <p>“2. It was the duty of the plaintiff to introduce all his evidence and reasons for the granting of a special judgment at the hearing on the first motion for a special judgment.</p> <p>“3. The plaintiff’s failure to request the judge to grant a special judgment on the second or statutory bond at the hearing on the plaintiff’s first motion for a special judgment is a bar to any subsequent motion by the plaintiff for a special judgment.</p> <p>“4. That part of the motion filed on February 7, 1917, which asks for a special judgment, is now res judicata because of the order denying a special judgment.</p> <p>“5. The plaintiff having stated in open court, at the hearing on the first motion, that he desired a special judgment on the common law bond rather than on the statutory bond, such action is an election of remedies on his part.</p> <p>“6. The plaintiff having stated in open court that he desired a special judgment on the common law bond, he must be deemed to have waived his right to ask for a special judgment in the second or statutory bond.”</p> <p>The judge refused to make any of these rulings and made the following memorandum of decision:</p> <p>“It is this order of January 26, 1917, denying the motion for special judgment that, the sureties assert, makes the present motion for special judgment res judicata. They have filed six requests for rulings, which are annexed hereto. I ruled that the order denying the first motion is not a final judgment or decree, but is in the nature of an interlocutory judgment, decree or order, and refused the sureties’ requested rulings, the first and second being refused as immaterial. To the foregoing ruling and refusals to rule, the sureties seasonably saved their exceptions.”</p> <p>At the request of the counsel for the sureties the judge reported the case for determination by this court. If the rulings and order were correct, special judgment was to issue as ordered; otherwise, the motion was to be denied.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Street railway, Res ipso loquitur.</p> <p>Where a woman enters an electric car at an elevated terminal station, after the car has discharged a load of passengers and has passed round a loop before taking others, and finding all the windows of the car open seats herself, with no other person near her, at one of the windows with her arm resting on the window sill and, when the car has proceeded about two miles, the window falls on her elbow and injures her severely, in an action against the corporation operating the car for her injuries thus sustained, these facts afford no evidence of negligence on the part of the defendant.</p> <p>The unexplained fall of a window of a passenger car which is operated on a street and elevated railway is in itself no evidence that the window was unsafe or defective or that the servants of the corporation operating the car were negligent. Following Faulkner v. Boston & Maine Railroad, 187 Mass. 254.</p>

Tort for personal injuries sustained by the plaintiff on May 5, 1906, when employed as a laborer by the defendants, who were building contractors, by reason of a dangerous and defective cleat to hold in place a ladder furnished by the defendants which the plaintiff was ordered to ascend in the course of his employment, the declaration containing two counts, the first at common law for negligence in setting the plaintiff at work without warning in an unsafe and dangerous…

<p>Contract or tort, the declaration containing three counts as described in the opinion. Writ dated May 20, 1914.</p> <p>The defendant demurred to the declaration.. The demurrer was heard by McLaughlin, J., who made an order overruling it.</p> <p>Later the case was tried before Hitchcock, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to order a verdict for it. This the judge refused to do, and he “submitted to the jury under appropriate instructions to which no exceptions were taken other than ... to the refusal to direct a verdict for the defendant” three questions, which with the answers to them were as follows:</p> <p>“1. Was Barry acting as agent of the defendant company, and engaged in the prosecution of its business in endeavoring to induce the plaintiff to obtain additional subscriptions for the newspaper published by the defendant?” The jury answered, “Yes.”</p> <p>“2. In endeavoring to induce the plaintiff to obtain additional subscriptions for the newspaper published by the defendant company, did Barry make to the plaintiff any representations as to existing facts, which were false, and which Barry knew to be false, with the intention that the plaintiff should act thereon as if they were true?” The jury answered, “Yes.”</p> <p>“3. Did the plaintiff act upon false representations made by Barry as he would not have done had he known them to be false?” The jury answered, “Yes.”</p> <p>The jury returned a general verdict for the plaintiff in the sum of $595.30; and the defendant alleged exceptions.</p>

<p>Appeal to the Superior Court under St. 1911, e. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to Francis J. McMahon as the next of kin of James E. McMahon, late of Salem, dependent upon his earnings for support at the time of the injury that caused his death when he was in the employ of the Bay State Street Railway Company.</p> <p>The case was heard by Fox, J. The evidence reported is described in the opinion. The following extracts are taken from the report of the arbitration committee:</p> <p>“ When the employee died, he had money in the Salem Five Cents Savings Bank, the Warren Savings Bank of Peabody, the Salem Savings Bank and the Salem Co-operative Bank, to the amount of $338.” The father testified that, as far as he knew, “the money which James had in the bank when he died belonged to him.”</p> <p>“That the payment to his mother of $27 with which to buy a bed and bureau and the saving by the employee of the sum of $288.87 toward the keeping of his agreement with his mother to pay for certain alterations which were being made upon the family home were in fact contributions toward the support of the mother, who was the custodian of the family fund and who disbursed the fund for the benefit of its members.</p> <p>“That the total contribution of the employee to the support of his mother was $315.87.</p> <p>“That the annual earnings of the deceased employee during the year preceding his death were $818.52.</p> <p>“That the amount due a person wholly dependent, therefore, would be $10, or the maximum weekly payment under the statute.</p> <p>“That the amount due the partial dependent is 315.87/818.52 of $10 each week for a period of five hundred weeks from the date of the injury; that is $3.86 per week for the statutory period.”</p> <p>The judge made a decree, in accordance with the decision of the Industrial Accident Board, that there be paid to Francis J. McMahon, administrator of the estate of James E. McMahon, a weekly payment of $3.86 for a period of five hundred weeks from August 6, 1916, the date of the injury. The insurer appealed.</p>

<p>Negligence, In use of highway. Motor Vehicle. Law of the Road.</p> <p>At the trial of an action for personal injuries sustained in a collision of a motor car in which the plaintiff was travelling with another motor car driven by the defendant, after the car in which the plaintiff was travelling had come from an intersecting road and, instead of passing “to the right of the intersection of the centres of said ways before turning to the left,” had turned directly to the left and was driven upon a street car track which was at the left hand side of the highway, it is right for the presiding judge to refuse to rule that, if the jury should find that the collision occurred some sixty-five feet or more from the intersection of the two roads, the law of the road contained in R. L. c. 54 applies to the case and the provisions of St. 1909, c. 534, § 14, as amended, do not apply, because the question, whose negligence caused the collision, cannot be determined without considering what occurred at the intersection of the ways and the jury may find that, if the car in which the plaintiff was travelling had passed to the right of the intersection of the centres of the ways before turning to the left, the collision would not have occurred.-</p> <p>In the same case it was held that it also was right for the presiding judge to refuse to rule that, if the jury should find that the car which the plaintiff was driving was at the time of the collision substantially off the travelled part of the highway and was running on the street railway track, the plaintiff was not violating the law of the road; because, if the plaintiff was driving outside the travelled part of the way, he was none the less within the terms of the statute and it was his duty to drive to the right of the middle of the travelled way if it was reasonably prudent and safe for him to do so, and that, if he was driving on the street railway track, he was so near the travelled part of the way that the driver of the defendant’s car had a right reasonably to expect that he would observe the law of the road if this could be done safely.</p> <p>In the same case the judge instructed the jury that, while the driver of the plaintiff’s car had violated the statute, the plaintiff was not necessarily precluded from recovery, that if a man was on a highway where he should not be, that would not authorize another to rim him down and that it was a question for' the jury to determine, whether such an emergency existed as to show that the. driver of the plaintiff’s car was using the care of a reasonably prudent and careful man in being where he was when the collision occurred, and that, if it was found that he was, he could not be held to have been negligent." Held, that' this was an accurate statement of the law. 1</p>

<p>Contract by a real estate broker to recover a commission of five per cent on the sum cf $50,000 for procuring the exchange of certain real estate in Worcester, belonging to the defendant called “White Oak” and valued at that sum, for the equity in a certain apartment block in Boston belonging to one Scheffreen, who was represented in the transaction by Harriet B. Howe, another real estate broker in Worcester. Writ dated January 28, 1916.</p> <p>The defendant’s answer, as amended, contained in addition to a general denial the following: “And the defendant further says that if the plaintiff shall prove that the defendant employed him as his broker as set forth in the declaration, the plaintiff thereafter made a contract with the broker representing the other principal in the exchange of properties thereafter made, by the terms of which the plaintiff agreed to give to such broker a part of the commission which he might receive from the defendant, and that said contract was neither known of nor assented to by the defendant nor by the other principal, and that said contract between the two brokers was against public policy, and that the plaintiff is not entitled to recover.”</p> <p>In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. The defendant offered in evidence two deeds, each bearing stamps of $25, contending that the amount of the stamps placed upon the deeds by the two principals was competent evidence of the value of the property, which was to be determined as the basis of estimating the broker’s commission in case the jury did not find the special contract set out in the declaration. The judge excluded the evidence, subject to the defendant’s exception. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“ 1. The plaintiff having admitted that he made a contract with the broker representing the other principal by which he agreed to give to such broker, in case of an exchange, one half of any commission which he might receive from the defendant, and the plaintiff having admitted that neither principal knew about such contract between the brokers, the plaintiff is not entitled to recover.</p> <p>“2. If the plaintiff made a contract with the broker representing the other side by the terms of which he, the plaintiff, was to give one half or a,ny part of his commission to such broker, and if such contract between the two brokers was not known and assented to by the principals, the plaintiff cannot recover.”</p> <p>The judge refused to make either of these rulings and gave to the jury in substance the following instructions, which were requested by the plaintiff:</p> <p>“The fact that the plaintiff had an arrangement with Miss Howe to divide his commission with her does not affect his rights in this case. If the jury finds that the negotiating of the exchange and the consummation of the agreement for exchange were accomplished between the principals, the defendant Blake and Mr. Scheffreen, and that the plaintiff merely brought the parties together, the plaintiff is entitled to such commission as was agreed upon between the parties, or, if the jury finds that there was no agreement, to the customary and established commission which applies to property such as the defendant Blake’s was, and this, notwithstanding any agreement between the plaintiff and Miss Howe as to the division of the commission between them.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,384.78, of which, by order of the judge on a motion for a new trial, the plaintiff remitted $525.50, leaving the verdict to stand in the sum of $1,859.25. The defendant alleged exceptions.</p>

Tort for damage to a motor car belonging to the plaintiff from being run into by an electric car operated by the servants of the defendant in April, 1916, at the intersection of Brookline Avenue and Emerald Street in Brookline. Writ in the Municipal Court of the City of Boston dated August 17, 1916. The defendant’s answer contained a general denial and an allegation that at the time of the accident the plaintiff was not in the exercise of due care.

<p>Tort for personal injuries received shortly after half past ten o’clock on the evening of March 26, 1915, in the Boylston Street subway station in Boston by reason of falling or being pushed into an open space between the station platform and the step of an electric car of the defendant which the plaintiff by the defendant’s invitation was attempting to enter as a passenger. Writ dated May 14, 1915.</p> <p>In the Superior Court the case was tried before Dana, J. The evidence is described in the opinion. Upon the evidence the judge was of the opinion that the plaintiff as matter of law was not entitled to recover and accordingly ordered a verdict for the defendant and at the request of the plaintiff reported the case for determination by this court. If the plaintiff was entitled to go to the jury, the case was to stand for a new trial; if not, judgment was to be entered for the defendant on the verdict.</p>

<p>Contract by William H. Wright of Westminster in the county of Windham in the State of Vermont against Ida S. Graustein of Cambridge, the Charlestown Trust Company, a corporation established under the laws of this Commonwealth and having a usual place of business in Boston, and the Westminster National Bank, a corporation established under the laws of the United States and having a usual place of business at Gardner in the county of Worcester, being summoned as trustees. Writ in the Municipal Court of the City of Boston dated October 5, 1916.</p> <p>The defendant filed the following answer in abatement: “Now comes the defendant in the above cause of action and says that she is a resident of Cambridge, Massachusetts, Middlesex County; that she has no money and never has deposited any in the Charles-town Trust Company, alleged trustee, nor has she ever had any business transactions with the Charlestown Trust Company.”</p> <p>The plaintiff filed a motion to overrule the defendant’s answer in abatement. The hearing upon the motion is described in the opinion. The trial judge denied the motion and sustained the answer in abatement. At the request of the plaintiff the judge reported his decision to the Appellate Division.</p> <p>The Appellate Division ordered that the order sustaining the answer in abatement be vacated and that the answer in abatement be overruled. The defendant appealed.</p>

<p>Contract by a constable against an attorney at law on an account annexed for $119.59 for services rendered. Writ in the Municipal Court of the City of Boston dated May 19, 1916.</p> <p>The defendant’s answer as amended contained a general denial and further alleged that before “the bringing of this action the plfl.irit.iff and the defendant had an accounting together at which time there was found due the plaintiff a balance of $24.”</p> <p>The defendant also filed a declaration in set-off on an account annexed for $150 for services rendered by the defendant to the plaintiff. At the trial in the Municipal Court the evidence, as stated in the opinion, was conflicting. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. That upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. That upon all the evidence the defendant Murphy is entitled to recover on his declaration in set-off.</p> <p>“3. That the plaintiff cannot recover an amount greater than was found due by the parties in their accounting together.”</p> <p>The judge found for the plaintiff in the amount claimed. He refused to make the rulings one and two and denied the third ruling because “I do not find that an accounting was made.”</p> <p>At the defendant’s request the judge reported the case to the Appellate Division. The Appellate Division made an order dismissing the report and the defendant appealed.</p> <p>After the order of the Appellate Division and before judgment, the defendant, “acting upon the suggestion contained in the opinion of the Appellate Division,” moved that the case might be reopened for the purpose of a hearing on the question of damages. This motion was granted by the trial judge, who after a hearing assessed the damages in the sum of $112.59. The defendant, without waiving his former appeal, filed another appeal from the order of the Appellate Division dismissing the report after the reduction of the damages.</p> <p>R. L. c. 174, § 11, is as follows: “Judgment in an action in which a declaration in set-off has been filed shall be rendered in favor of the party to whom a balance is found due for the amount of such balance, not exceeding the jurisdiction of the court or trial justice, with costs. If the amounts found due to the respective parties are equal, judgment shall be rendered in favor of each for such amounts and an entry shall be made that the judgments are satisfied by the set-off, with costs to either party, or without costs, as the court orders. If, on the set-off in an action upon a claim assigned to the plaintiff before action is brought, a balance is found due to the defendant, or if a balance is found due from any person other than the plaintiff, judgment shall not be rendered against the plaintiff for the balance.”</p> <p>The case was submitted on briefs.</p>

<p>Evidence, Self-serving statements, Letters. Letters. Practice, Civil, Discretionary power of judge. Witness, Cross-examination.</p> <p>In an action of contract letters written by the plaintiff to one of the defendants, which were not a part of a mutual correspondence between the parties and were not in reply to any communication from the defendant to whom they were addressed and were not referred to afterwards in any conversation between the parties and which remained unanswered, cannot be put in evidence by the plaintiff, being excluded properly as self-serving statements.</p> <p>Upon the cross-examination as a witness of one of- the parties to an action at law the exclusion of questions which properly may be regarded as immaterial and as having a tendency to raise collateral issues is within the discretionary power of the presiding judge.</p>

<p>Petition, filed in the Land Court on June 23, 1916, to register the title to a parcel of land bounding southerly on Eliot Street in Boston and including the southerly portion of what is known as Boylston Place, as more fully described in the opinion, alleging the non-existence of any rights or easements of the respondents in the petitioners’ portion of Boylston Place other than a right of drainage.</p> <p>The case was heard by Davis, J., who made the findings quoted in the opinion and ruled that the respondents had of record no rights or easements in the part of Boylston Place included in the petitioners’ land other than the right of drainage granted by a certain indenture of 1853. The respondents alleged exceptions to this ruling.</p> <p>A copy of a plan or diagram, which was annexed to the bill of exceptions as an exhibit, is printed on page 79. On this diagram the locus is marked by that word and the lots which were owned by the parties to the indenture of 1853 other than one Brackett and which were alleged by their owners to be dominant tenements are marked with the letter D.</p>

<p>Contract by the Attorney General in the name of the Treasurer and Receiver General under St. 1907, c. 474, § 10, as amended by St. 1912, c. 17, against the city of Boston to recover amounts paid at the rate of $4 a week for the support at the Lakeville State Sanatorium of two persons alleged to have had throughout the period of such support legal settlements in Boston. Writ dated July 8, 1916.</p> <p>The first count of the declaration related to the support at the-sanatorium of one John H. Clark. The second count related to the support at the sanatorium of Jennie McLean from December 7, 1915, to May 31, 1916, amounting to $101.41.</p> <p>In the Superior Court the case was heard by Dubuque, J., upon an agreed statement of facts. The second paragraph of the agreed statement of facts related only to John H. Clark and has become immaterial because the exceptions in regard to the first count were waived. The rest of the statement, consisting of the first and third paragraphs, was as follows:</p> <p>“1. Jennie McLean and John H. Clark were inmates of the Lakeville State Sanatorium for the periods of time set forth in the plaintiff’s declaration. They were each supported therein during said periods at the expense of the Commonwealth. No security has been given for their support, and no payment has been made to the Commonwealth on account thereof.”</p> <p>"3. Jennie McLean was born in Ireland on July 26, 1862. In 1892 she came to Boston and was married to Charles McLean, who had a settlement in Boston. In 1900 Charles McLean moved to Worcester and remained there until January, 1901, when he went to New York in the State of New York, and has resided there continuously to the present time. Jennie McLean continued to reside in Boston until admitted to said Sanatorium on December 7, 1915.”</p> <p>The judge found for the plaintiff in the sum of $71.43 on the first count of the declaration and in the sum of $101.14 on the second count, $172.57 in all, with interest from the date of the writ. By order of the judge judgment was entered for the plaintiff in the sum of $178.05; and the defendant appealed.</p>

<p>Husband and Wife. Contract, Implied in law.</p> <p>Where the facts are not such as to bring the case within the provision of St. 1910, c. 576, making a wife liable jointly with her husband to the amount of $100 for a debt for necessaries furnished with her knowledge or consent, if she has property to the amount of $2,000, no action can be maintained against a husband and wife jointly upon a promise implied in law to pay for necessary board furnished to them, the promise which the law implies in such a case being a promise on the part of the husband alone to pay for such necessaries.</p> <p>In the case deciding the point stated above, the question, whether the plaintiff on the facts of that case could recover against the defendant husband alone, was not before the court.</p>

<p>Tort for personal injuries sustained by the plaintiff at about four o’clock in the afternoon of December 30, 1914, when she had come out of the store of one Shapiro and was on the sidewalk at the comer of Lowell Street and Causeway Street in Boston, from being struck on the head and shoulder by a new piece of wood alleged to have fallen from a building in process of construction by reason of the negligence of a servant of the defendant at work on the building, which was being erected by the defendant. Writ dated May 14, 1915.</p> <p>In the Superior Court the case was tried before Sanderson, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for him. The judge refused to do this and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $300. The defendant alleged exceptions.</p> <p>. The case was submitted on briefs.</p>

<p>Negligence, In maintenance of store. Evidence, Competency.</p> <p>In an action against the proprietor of a store by a customer for personal injuries sustained when the plaintiff caught her foot in a strip of matting about forty-five feet long, four feet wide and a quarter of an inch thick, it appeared that the store was well lighted and that the matting was of a kind in common use made of cocoanut fibre. The plaintiff testified that after she fell she noticed that for the space of about twelve inches the matting was raised at the centre, but there was no evidence that it did not lie smoothly on the floor up to the time that the plaintiff caught her foot and fell and there was no evidence that the matting was worn, defective or curled up. Held, that there was no evidence of negligence on the part of the defendant, the condition of the matting before the accident being wholly a matter of conjecture.</p> <p>In the case above described the plaintiff offered to show that at a time after the accident another person fell over the same matting when it was in the same position that it was at the time of the accident and excepted to the exclusion of this evidence but afterwards waived her exception, and it was said that the evidence offered was clearly inadmissible.</p>

<p>Frauds, Statute of. Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>In an action on an alleged guaranty by the defendant, one H E J, of the payment for certain goods furnished by the plaintiff to a corporation, called the G C Co., of which the defendant was the treasurer, the statute of frauds was pleaded, and the plaintiff to satisfy the statute relied on the following letter addressed to the plaintiff: “I will personally see to it that your bill is met on the 15th of each month. . . . Yours very truly, G C Co., By H E J.” There was evidence, which had been admitted without objection, that the defendant had promised orally to guarantee the account and that he had failed to answer a letter from the plaintiff, written on receipt of the letter quoted above, stating, "We also note that you will personally guarantee the account.” Held, that, even considering as extrinsic circumstances the oral promise and the unanswered letter, neither of which was admissible in evidence, the alleged memorandum as matter of law was not signed by the defendant and could not be found by a jury to have been signed by him.</p> <p>In the same case the plaintiff relied upon a letter signed by the defendant in a subsequent correspondence between the parties as completing a memorandum to satisfy the statute when coupled with the letter quoted above, but it was held that, although such a coupling might have been resorted to if the defendant in the subsequent letter had acknowledged the guaranty contained in the first letter as having been made by Mm, tMs was not the case, and the subsequent letter, wMch was not a memorandum in itself, did not help the matter.</p> <p>Although where the words of a contract m writmg are ambiguous the extrinsic circumstances under wMch it was written may be shown by oral evidence to enable the court to view the words m the same light that the parties did, yet where the extrinsic facts are not m dispute, or after their existence has been shown, the construction of the ambiguous instrument in the light of these circumstances is for the court.</p>

<p>Trust, When future estate vests. Deed. Bankruptcy, Rights of trustee. Words, “Then.”</p> <p>A deed made by an unmarried man conveying property to a trustee to pay the income to the settlor during his life and upon his death to distribute the trust fund among his children if he should leave any, the issue of any deceased child to take the share of such child by right of representation, and “if he [the settlor] shall leave no issue to distribute said trust fund among those who would take his real and personal property if he had then died intestate,” where the settlor died without issue leaving as those who would take his property if he had died intestate two brothers and a sister, of whom one brother had been adjudged a bankrupt two years before the settlor’s death, gave the bankrupt brother no vested interest in the trust fund before the persons who were to take that fund were determined upon the death of the settlor, and therefore his trustee in bankruptcy has no claim upon the fund.</p>

<p>Judgment. Equity Pleading and Practice, Demurrer. Equity Jurisdiction, To set aside judgment at law.</p> <p>A judgment rendered in an action at law where the court had jurisdiction of the parties and of the subject matter cannot be impeached collaterally by a party to it either at law or in equity, the only remedy for a person aggrieved by such a judgment being by review or by a proceeding to reverse it upon a writ of error.</p> <p>A demurrer to a bill in equity seeking to set aside a judgment rendered against the plaintiff in an action at law by a court having jurisdiction of the parties and of the subject matter, where the bill contains an allegation that the notes on which the judgment was obtained were executed on Sunday, does not admit that the judgment is tainted with illegality and therefore void, because such a judgment is conclusive between the parties until it is reversed or set aside by appropriate proceedings at law.</p> <p>It is no ground for maintaining a suit in equity to set aside a judgment rendered against the plaintiff in an action at law by a court having jurisdiction of the parties and of the subject matter, that the promissory notes on which the judgment was obtained were executed on Sunday and that the plaintiff had an absolute defence to the action.</p>

<p>Executor and Administrator, Notice. Equity Jurisdiction, To set aside mortgage, To rescind sale induced by fraud, To establish trust, To recover money wrongly paid by executor.</p> <p>In a suit in equity, by certain minors entitled to the remainders under a trust created by a will, to set aside a mortgage made by the former executors of the will, acting as trustees, to the defendants, who were a firm of wholesale shoe dealers, to secure the payment of the indebtedness of the executors to the defendants for shoes sold to the executors while they were carrying on the retail shoe business of the testator after his death in the name of his estate, it appeared that the executors were not authorized to carry on the business of the testator, but that the managing executor had represented to the defendants that they had such authority, and that, when the defendants later discovered the executors’ want of authority and the deceit practiced upon the defendants by the managing executor, instead of rescinding the sale and demanding back their goods, they took from the executors as trustees a mortgage of the real estate of the testator as security for their account against the executors. The trial judge found that, as to the goods shipped by the defendants after the testator’s death, they did not suspect and had no reason to suspect any breach of trust. Held, that the defendants, knowing of the death of the testator, ought to have inspected the probate records, which would have shown them that the executors had no authority to conduct the business and would have led to the further discovery that the persons interested in the remainder were minors, and that the finding of the trial judge as to the actual state of mind of the defendants was immaterial, and accordingly that the mortgage must be set aside.</p> <p>With the suit described above was tried a suit by the members of the firm of wholesale shoe dealers, the defendants in the^ first case, against the administrators de bonis non of the estate of the testator to impress a trust for their claim upon the funds remaining in the hands of the administrators de bonis non. There was no finding that the goods furnished by the firm which were in the store when the administrators de bonis non took possession could be identified, and the evidence indicated that, although these goods might have been identified and separated, this was not done and it appeared that afterwards all the goods in the store, including these and all the others, were sold for a single price. Held, that it was too late for the members of the firm to attempt to rescind their sales of goods, or, if they could have rescinded the sales, to follow the goods or their proceeds.</p> <p>In a cross bill filed by the administrators de bonis non, who were the defendants in the suit described above, in which the remaindermen joined through their guardian ad litem, it was sought to compel the firm of wholesale shoe dealers to repay the amount of the money paid to them by the former executors without authority on the principle of Hines v. Lexers & Sargent Co. 226 Mass. 214. The trial judge was “not satisfied that the business was conducted by the executors at a loss.” Held, that, if there was no loss, there was no debt to the estate to be paid, and that the cross bill must be dismissed.</p>

<p>Contract, Construction. Sale, Acceptance. Bill of Lading.</p> <p>Where a customer of a salt company ordered from the company a certain amount of salt at an agreed price “F. O. B. cars, Boston” and the salt company shipped by rail to Boston, under a bill of lading in which the company itself was named as the consignee, a larger amount of salt than that required by the customer’s order and indorsed on the bill of lading an order to “Deliver to order of” the customer, this was held to indicate an intent on the part of the seller to reserve to itself the right of disposing of the salt until the railroad company in Boston in behalf of the seller and in the exercise of the authority conferred by the indorsement on the bill of lading should appropriate and deliver to the customer from the mass the quantity and kind of salt ordered by him.</p> <p>Where, in attempted pursuance of a contract of a salt company to sell to a customer four hundred bags of salt at an agreed price, a railroad corporation as the agent of the salt company tenders to the customer the contents of a car containing not only the four hundred bags of salt called for by the contract but also fifteen barrels of salt that had been bought by another person and where the customer in order to obtain the salt would have been obliged to advance freight charges in excess of the amount that he had agreed to advance, the customer has the right under St. 1908, c. 237, § 44, els. 2, 3, either to accept the part of the salt described in his contract “and reject the rest, or he may reject the whole,” the customer not being bound to incur the trouble or risk of procuring a severance of the fifteen barrels from the four hundred bags cf salt.</p>

<p>Petition, under St. 1916, c. 269, § 20, filed in the Superior Court on September 28, 1917, by the executors of the will of Joseph Faulkner, late of Hamilton, -who died on November 29, 1916, appealing from the refusal of the Tax Commissioner to abate an income tax upon income received during the period from January 1, 1916, to November 29, 1916, by the petitioners’ testator before his death and income received by the petitioners as such executors during the period from November 30,1916, to December 31, 1916.</p> <p>The case was submitted upon an agreed statement of facts to Hitchcock, J., who by agreement of the parties reported it without decision under the provisions of St. 1917, c. 345, for determination by this court.</p> <p>St. 1916, c. 269, is entitled, "An Act to impose a tax upon the income received from certain forms of intangible property and from trades and professions.”</p> <p>Section 1 of that statute is as follows: "There shall be levied in the year nineteen hundred and seventeen, and in each year thereafter, a tax upon incomes as hereinafter set forth.”</p> <p>Section 8 of the same statute begins as follows: "The income received by persons since deceased shall be taxed to their estates.”</p>

<p>Negligence, Res ipso loquitur, landlord and Tenant, Falling of plaster of ceiling.</p> <p>The fact that a part of the plaster of the ceiling of the kitchen of a tenement fell on the tenant about two weeks after an authorized agent of the landlord had replastered the ceiling, if wholly unexplained, is no evidence of a defect in the plaster or of negligence or want of skill in laying it.</p>

Contract on an account annexed for $14 as the price of four mourning hats and two mourning veils furnished to the defendant for the use of his minor daughters. Writ in the Municipal Court of the City of Boston dated March 3, 1916. The evidence at the trial in the Municipal Court is described in the opinion. The defendant asked the judge to make five rulings.

<p>Contract or tort for the value of a pair of diamond earrings, the declaration alleging in the first count, that the earrings were en~ trusted to the defendant who promised to return them and failed to do so, in the second count, that on September 15,1914, the defendant to whom the earrings had been entrusted refused to return them upon demand, in the third count, that on September 15, 1914, the defendant converted to his own use the earrings, which were of the value of $90, and in the fourth count that the defendant owed the plaintiff $90 according to an account annexed. Writ in the Municipal Court of the City of Boston dated January 25. 1915.</p> <p>At the trial in the Municipal Court the plaintiff introduced evidence which tended to show that the plaintiff, being the owner of a pair of diamond earrings, allowed one Wyner, who was a partner in the theatre business of one Levitan and who sometimes sold goods for the plaintiff, to take them into his possession to sell them to Levitan, but that the title to them and the entire beneficial interest in them remained in the plaintiff; that afterwards, in September, 1914, Wyner, Levitan and the defendant were in the lobby of a theatre in Boston, and that Wyner handed the earrings to the defendant, enclosed in a box, and that the defendant took them into his hands to inspect and examine and appraise them; that at that time the lobby was crowded with people, about two hundred in number; that the defendant, having received the earrings into his hands, carried the earrings a short distance across the lobby to a place near a light for the purpose of examining them, and that the defendant dropped one of the earrings and it was lost, and that the plaintiff has not since received it; that afterwards the defendant went to the plaintiff’s store and talked with the plaintiff, that the plaintiff then demanded the earrings, and that .the defendant then told the plaintiff that, if he would refrain for a short time from bringing an action against the defendant for the loss of the earrings, he, the defendant, would pay the plaintiff $85; that the plaintiff did so refrain for such time, but that the defendant did not pay that sum to the plaintiff and did not return either or both of the earrings to the plaintiff or to Wyner.</p> <p>The defendant testified that, while he was standing in the lobby, Wyner and one Levitan came to the defendant and asked him to appraise the earrings, Wyner saying to Levitan, “Here is Mr. Huhn, he will tell you what they cost;” that the defendant took the earrings from either Levitan or Wyner and, as he opened the box, one of the earrings dropped on the floor and was not recovered although the loss was reported to the police; that the defendant’s promise to the plaintiff at the plaintiff’s store to pay for the earrings was made by him on behalf of Levitan who had sent him to adjust the loss and that he returned the one earring to Levitan from whom he had received it.</p> <p>The judge found the facts to be those put in evidence by the plaintiff. He found that the defendant, in handling and dealing with the earrings did not exercise such care as a reasonably prudent man would have exercised under the circumstances, but handled and dealt with them in a careless and negligent manner. He found that, before the bringing of the action, the plaintiff demanded the earrings of the defendant and that the defendant did not return either or both of them to the plaintiff or to Wyner.</p> <p>At the close of the evidence the defendant asked the judge to rule “that upon all the evidence judgment must be directed for the defendant.” The judge refused so to rule and “found for the plaintiff in tort for $85,” which he found to be the value of the two earrings. At the request of the defendant the judge reported the case to the Appellate Division.</p> <p>The Appellate Division made the order, “Report dismissed,” and the defendant appealed.</p>

<p>Bill in equity, filed in the Superior Court on November 14, 1916, by the Marion Street Garage Company, a corporation established under the laws of this Commonwealth, alleging that the plaintiff had been granted a certificate giving it the right to do business as a public garage at 39 Marion Street in Brookline, and that the defendant had interfered unlawfully with its business by bringing an action against one Carpenter, the manager of the plaintiff’s garage business, in which upward of fifty persons had been summoned as trustees, and praying for an injunction and for damages; and a</p> <p>Bill in equity, filed in the Superior Court on December 11, 1916, by Walter J. Sugden, the defendant in the first bill, alleging that the plaintiff on May 15, 1915, purchased from one Davis the business of a public garage at 39 Marion Street in Brookline, which he afterwards sold to Carpenter named in the first bill, who gave to the plaintiff a mortgage to secure a balance of the purchase money, that the plaintiff also obtained from Davis a lease of the premises, which he afterwards with the consent of Davis sublet to Carpenter, and that Carpenter had committed a breach of the covenants in his sublease by underletting the premises without, the consent or knowledge of the plaintiff or of Davis, whereupon the plaintiff entered and took possession of the leased premises; praying that the Marion Street Garage Company and the other defendants be enjoined from removing from the premises certain records, accounts and property mortgaged to the plaintiff by the defendant Carpenter.</p> <p>The suits were heard together by Lawton, J., who made the findings that are stated in the opinion. The finding of the judge which is referred to in the opinion as disposing of the first suit was as follows: “In the case of the Marion Street Garage Company against Sugden, the first paragraph alleges that the plaintiff corporation was duly organized and granted a certificate, and I so find. I am not able to find that the second part of the first paragraph, namely, ‘and on July 6, 1916, began and has since continued to do a public garage business at 39 Marion Street in said Brookline,’ is true. I find that to be a fact which Kaine says he told Rowley on August 31, ‘We havewaited till this time before the corporation takes over the business.’ There is no evidence that at or after that date the corporation ‘took it over.’ Carpenter does , not say when he wrote the assignment or why he did it rather than to have his lawyer Kaine do it. He says he delivered ‘the papers’ to the company July 8. Kaine says that when Carpenter handed him the Sugden-Carpenter lease the assignment was already written on it. I am not satisfied of this or that the lease was ever delivered to the corporation. There are no records of meetings of the corporation or directors after the record of July 6.”</p> <p>By order of the judge final decrees were entered in favor of Walter J. Sugden in both suits. The plaintiff in the first case and the defendants in the second case appealed.</p>

<p>Tort for personal injuries sustained on September 5, 1915, near the Stony Beach station on the Nantasket branch of the defendant’s railroad from being run into negligently by a train of the defendant when the plaintiff was alleged to have been a passenger of the defendant. Writ dated October 11, 1915.</p> <p>The defendant’s answer contained a general denial and an allegation that the plaintiff was guilty of negligence which contributed to his alleged injury.</p> <p>In the Superior Court the case was tried before Brown, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for it. The judge refused to do this. The defendant then asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. Upon all the evidence the plaintiff was not in the exercise of due care.</p> <p>“3. At the time of the accident the plaintiff was not a passenger.”</p> <p>“5. When the plaintiff stepped from the gravel fill between the two tracks on to the exposed sleepers or ties between the rails of the Pemberton bound track, he became a trespasser, or at most a mere licensee, and this was his status at the time of the accident.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $600. The defendant alleged exceptions.</p>

<p>Petition, filed in the Probate Court for the county of Norfolk on January 27, 1917, under St. 1909, c. 490, Part IV, § 21, by the executors of the will of Edward J. Mitton, late of Brookline, and by George W. Mitton, individually, as one of the legatees under that will, praying for the determination of questions in regard to the legacy and succession taxes due upon the estate of the testator.” The questions which the petitioners prayed the court to determine were as follows:-</p> <p>"1. What interests passing to the children of the testator under said will are presently taxable.'</p> <p>“2. Whether your petitioners are entitled to have the tax upon the entire estate certified and determined.</p> <p>"3. Whether your petitioners are entitled to a settlement of the tax upon the basis of the present value of the estate and a rate determined by having all elements which create uncertainty in respect to the value of each interest and consequently as to the rate of taxation thereon and render it impossible to compute considered in the light most unfavorable to them.</p> <p>“4. Whether said George W. Mitton is entitled to have the tax upon his future interest determined and certified if he is willing to waive the right to a possible diminution in the value of his interest by the birth of additional issue.”</p> <p>The Probate Court made a decree “that the only interests of the children of the testator in the trust of the residue of his estate created by the third paragraph of his will upon which legacy and succession taxes are due and payable at the expiration of two years after the date of the giving of bonds by said executors are the interests of said children in the income of the trust during the life of the widow and for a period of ten years after his death; that legacy and succession taxes upon the additional interests in the income of the trust for the remainder of the ten year period only which came into the possession and enjoyment of the children of the testator upon the death of the widow of the testator became due and payable at the expiration of one year after the death of the widow; that all the remaining interests in said trust, particularly including the interests of the children of the testator and their issue in the income of the trust after the expiration of the ten year period and until the termination of the trust, and all interests in the principal of the trust, are interests which take effect in possession or enjoyment after the expiration of a life estate or a term of years, and that, it being impossible to compute the present value of said remaining interests, the executors are entitled now to pay taxes thereon only in the event that the Tax Commissioner, with the approval of the Attorney General, shall enter into an agreement with them effecting such a settlement of the amount of said taxes as he shall deem to be for the best interests of the Commonwealth; and it further appearing that the executors have now paid all taxes due and payable upon the interests of the children of the testator in the income of the trust for the ten year period both during and after the life of the widow, and that no agreement has been entered into with the Tax Commissioner, approved by the Attorney General, for the settlement of any taxes upon any non-computable interests, it is further decreed that the executors are not now entitled to have determined or to pay any further taxes on account of said estate, such taxes not being payable until the expiration of one year after said remaining interests come into the possession or enjoyment of the beneficiaries of said trust.”</p> <p>The petitioners appealed. The appeal was heard by Crosby, J., who made certain findings of fact, including the facts that are stated in the opinion, and reserved the case upon the petition, the answer, the decree of the Probate Court, the appeal and the findings of fact made by him for determination by the full court.</p>

<p>Petition, filed on September 29, 1917, for a writ of mandamus addressed to the members of the civil service commission commanding them to authorize the petitioner’s appointment as the head of the police department of the city of Cambridge and the payment to him of the salary therefor, and to recognize the petitioner’s appointment to that office as being legal and not in violation of the civil service laws and the rules made thereunder.</p> <p>The case was heard by Crosby, J. The petitioner asked the single justice to make the following rulings:</p> <p>“1. Upon all the evidence and agreed facts the petitioner is entitled to a writ of mandamus as prayed for in his petition.</p> <p>“2. By virtue of an ordinance of the city of Cambridge, a copy of which ordinance is annexed to the petitioner’s petition, creating departments of police and fire in said city, the police department of said city is a principal department of said city and the head of said department designated in said ordinance as 'chief of police department,’ is not affected as to his selection or appointment by It. L. c. 19, and acts in amendment thereof and in addition thereto or by any rule or rules made thereunder by the civil service commission. ■</p> <p>“3. Upon all the evidence and agreed facts the police department of the city of Cambridge is a department of said city and under and by virtue of St. 1915, c. 267, Part III, § 5, the head of such department is appointed by the mayor of said city and such appointee is subject to confirmation by the city council of said city and, therefore, is not affected as to his selection or appointment by R. L. c. 19, and acts in amendment thereof and in addition thereto or by any rule or rules made thereunder by the civil service commission.</p> <p>“4. Upon all the evidence and agreed facts the petitioner, appointed by the mayor of the city of Cambridge to the office of chief of the police department of the said city, is an officer of the city within the meaning of R. L. c. 19, § 9, and acts in amendment thereof and in addition thereto whose appointment under and by virtue of the ordinance of said city, a copy of which ordinance is annexed to the petitioner’s petition, is subject to confirmation by the said city council, and, therefore, is not affected as to his selection and appointment by said It. L. c. 19, and acts in amendment thereof or in addition thereto or by any rule or rules made thereunder by the civil service commission.</p> <p>“5. The legal effect of St. 1911, c. 468, being ‘An Act to extend the provisions of the civil service act to chiefs of police of certain cities and towns’ is to bring the office of chief of police in such cities and towns as have accepted said act under the operation of the civil service laws and the rules made thereunder by the civil service commission to the same degree, effect and extent only, as respects said office, as though said office had not been excepted from the operation of R. L. c. 19, but had been included therein.</p> <p>“6. The appointment of your petitioner as head of the police department of the city of Cambridge is the appointment of the head of a principal department of said city within the meaning of R. L. c. 19, § 9.</p> <p>“7. The appointment of your petitioner as head of the police department of the city of Cambridge is the appointment of an officer of said city within the meaning of R. L. c. 19, § 9.</p> <p>‘‘8. If prior to the enactment of St. 1915, c. 267, the head of a police department of a city, whose appointment, subject to confirmation by the city council of said city, was within the provisions of R. L. c. 19, and acts in amendment thereof .or in addition thereto or by any rule or rules made thereunder by the civil service commission, the acceptance and adoption by such city of St. 1915, c. 267, Part III, withdrew said office from the operation of the provisions of R. L. c. 19, and acts in amendment thereof or in addition thereto or by any rule or rules made thereunder by the civil service commission.”</p> <p>The single justice was “of opinion and ruled that by R. L. c. 19, § 9, as amended by St. 1911, c. 468, § 1, the office of chief of a police department is subject to the civil service rules. Attorney General v. Tillinghast, 203 Mass. 539. Lattime v. Hunt, 196 Mass. 261. The effect of St. 1911, c. 468, construed in connection with R. L. c. 19, § 9, is to place chiefs of police under civil service the same as other members of the police department, regardless of any exceptions made under R. L. c. 19, § 9. Although generally under R. L. c. 19, § 9, heads of departments are exempted from civil service, still chiefs of police by St. 1911, c. 468, § 1, are expressly made subject thereto. The fact that the appointment of a chief of police must be confirmed by the city council does not exempt the office from the civil service rules, because by the express terms of St. 1911, c. 468, § 1, such office is subject to the rules of the civil service.”</p> <p>The justice ruled that the petition could not be maintained, and accordingly refused to make the rulings requested by the petitioner “because unsound in law or immaterial in view of the foregoing rulings.” He made an order that the petition for a writ of mandamus be denied; and the petitioner alleged exceptions.</p>

<p>Negligence, Contributory. Electricity. Evidence, Matters of common knowledge.</p> <p>It has become a matter of common knowledge that physical harm is likely to follow contact with a wire charged with an electric current and also that copper wires are used for the transmission of such a current.</p> <p>Where before the enactment of St. 1914, c. 553, a painter, whose employer had agreed to paint a large iron smoke stack on the top of a power house, twice already had ascended a ladder placed against the stack, the foot of which, instead of being put on the roof of the power house where it might have been put perfectly well, had been placed on the small adjoining roof of a substation of an electric light company, which was surrounded by a parapet wall from eight to twelve inches high enclosing a space substantially occupied by copper wires uninsulated and carrying a high voltage of electricity, plainly open to view and sizzling and hissing, and where this painter, on returning from partaking of refreshments at a neighboring hotel, went on the roof of the electric light substation without rubbers or gloves and placed one hand on the ladder ready to ascend it for the third time, and received a shock of electricity that resulted in his death, it was held, that as matter of law he was not in the exercise of due care at the time of his injury, and that neither the proprietor of the power house and stack nor the electric light company maintaining the wires was liable for causing his injury or death.</p>

<p>Bastardy Proceedings, Dismissal by agreement, Intervention by overseers of the poor.</p> <p>After a bastardy proceeding under R. L. c. 82, begun on complaint of the mother, has been dismissed by agreement of the complainant and the putative father, it is too late for the overseers of the poor of the municipality wherein the mother has a settlement to intervene to prosecute the complaint.</p> <p>St. 1913, c. 563, relative to illegitimate children and their maintenance, does not apply to a motion and application by the overseers of the poor of the municipality wherein the mother of such a child has a settlement to be permitted to intervene to prosecute a bastardy proceeding under R. L. c. 82, begun in January, 1913, on complaint of the mother relative to a child bom in 1912 and dismissed on July 18,1913, by agreement of the mother and the putative father, because by § 9 of the statute it does not affect proceedings begun before July 1, 1913.</p> <p>The rights given to a municipality by R. L. c. 82, § 18, which provides that no settlement made by the father and mother of an illegitimate child shall relieve the father from liability to any city or town or the Commonwealth for the support of the child, cannot be enforced by permitting the overseers of the poor to intervene to prosecute a proceeding, begun under that chapter on complaint of the mother, after that proceeding has been dismissed by agreement of the mother and the putative father.</p>

<p> Poor Debtor. Officer. Notice. </p> <p>Where a judgment creditor lives on the ground floor of a three apartment house, if a notice by the judgment debtor, who had been arrested in poor debtor proceedings and had recognized with surety, that he desired to take the oath for the relief of poor debtors, was placed by a constable upon a large unused ice chest belonging to the judgment creditor in the common hall on the ground floor, which had, besides the front door, three doors leading from it, two to the creditor’s apartments and one to the common water closet, and from which a common stairway led to the second floor, such notice was not served upon the creditor by leaving it at his last and usual place of abode and does not satisfy the requirements of R. L. c. 168, § 34.</p>

<p>Negligence, Railroad. Evidence, Competency, Materiality.</p> <p>At the trial of an action against a railroad corporation for personal injuries received by a passenger when, as she was leaving a car on a train of the defendant at a station, the door of the car closed upon her hand, it appeared that in approaching the station the train ran on a straight track with a down grade of not more than three per cent, that the car was crowded and passengers were standing in the aisle near the door through which the plaintiff was to pass, and that as the plaintiff left the car she followed others. There was no evidence that there was a catch to hold the door in place when open nor of any defect in the door or its appliances, nor was there any evidence to show by whom the door was opened. Held, that there was no evidence warranting a finding of negligence of the defendant.</p> <p>At the trial above described, a question, asked by the plaintiff in cross-examination of the conductor of the train, as to how many brakemen the law required a railroad to have on the platform of its trains, properly was excluded.</p> <p>It also was proper to exclude at the same trial, where there was no evidence to show that the brakeman opened the door, a question asked the same conductor as to whether the brakeman “was ... in the habit of fastening the door back, opening the door.”</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 compensation upon the claim, as a dependent, of Bridget O’Toole, the widow of Patrick J. O’Toole, late of Boston, who was injured when in the employ of the city of Boston on August 4, 1915, and died as the result of the injury, the claim being made under St. 1913, c. 807, accepted by the city of Boston.</p> <p>The case was heard by Jenney, J. The evidence reported is described in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board, awarding to Bridget O’Toole as the dependent widow of Patrick J. O’Toole $10 a week for a period of four hundred weeks from August 4,1915. The city of Boston appealed.</p>

<p>Contract, with a declaration as amended in two counts, the first count being upon an account annexed containing six items, amounting in all to $2,370.21 for commissions “on lease 33, 35, 37 Tremont St., Boston, from Arthur L. Braus to” the defendants, for “commission on lease of store and basement, 35 Tremont St., from” the defendants to William Sheinwald, for “commission on lease 3d floor, 37 Tremont St.,” from the defendants to “ Imperial Photographic Studio, Inc.,” and for interest. The second count was upon a quantum meruit for $2,500 for services rendered to the defendants "in connection with leasing and subleasing the estate known as 33, 35 and 37 Tremont Street, Boston, during the years 1911, 1912, 1913 and 1914.” Writ dated July 31, 1914.</p> <p>In the Superior Court the action was tried before Chase, J.</p> <p>One contention of the defendants was that, if they were indebted to the plaintiff, they were indebted to him jointly with one William V. Fischel, who was living and should have been joined as a plaintiff in the action. The evidence on this issue was conflicting. At the close of the evidence the defendants moved that a verdict be ordered for them. The motion was denied, and a special question was submitted to the jury, “Were the plaintiff and Fischel partners?” The jury answered the question in the negative.</p> <p>The defendants received a sublease of the premises in question from Braus at a yearly rental of $18,500, they paying the taxes.</p> <p>Other evidence on the other issues involved is described in the opinion, where also are set out other contentions and requests of the defendants for rulings. A further special question, “Was the the payment of a commission to the plaintiff upon the Braus lease dependent upon a condition which had not been performed prior to July 31, 1914, [the date of the writ]?” was submitted to the jury, and was answered in the negative.</p> <p>The jury found for the plaintiff in the sum of $2,370.21; and the defendants alleged exceptions.</p>

<p>Evidence, Admissions, Remoteness, Of value. Husband and Wife. Agency, Existence of relation.</p> <p>Where at the trial of an action of contract a material issue is,' whether a certain agreement for the sale of real estate, purporting to be signed and sealed by the defendant’s husband as her agent, was authorized by her, testimony of a witness, that at a trial of another action between different parties he heard the defendant testify that she gave full authority to her husband to do with the property as he pleased, is admissible. • ■ ‘ ’</p> <p>At the trial of an action for breach of a contract for the sale of certain real estate by the defendant to the plaintiff, a real estate expert called by the plaintiff, having stated that he viewed the premises about three weeks before the trial, testified as to their value. The defendant alleged a general exception to the admission of the testimony, and in this court contended that the evidence was inadmissible since it related to the value of the premises at the time of the trial and not at the time of the breach of the contract. Held, that the exception must be overruled, because the record did not show that the witness was permitted to testify as to the value of the premises at the time of the trial.</p>

<p>Tort, by a minor by her father and next friend, for personal injuries sustained on February 8, 1911, by reason of snow and ice falling upon her from an occupied building of the defendant, on Gore Street in the part of Cambridge called East Cambridge, when the plaintiff was travelling on the adjoining public sidewalk of that street. Writ dated October 15, 1912.</p> <p>In the Superior Court the case was tried before Sisk, J. It is stated in the bill of exceptions that “there was evidence which warranted the jury in bringing in a verdict for the plaintiff, as they did, if a due and sufficient notice had been given in accordance with the provisions of St. 1908, c. 305.” The plaintiff contended that she had given such a notice and the defendant denied that he had received such a notice. The evidence upon this subject is described in the opinion. The judge refused to rule as matter of law that the. defendant had received no notice in compliance with the statute. He submitted the question to the jury, who returned a verdict for the plaintiff in the sum of $449.75. The defendant alleged exceptions, it being stipulated by the parties that, if the judge was wrong in submitting the case to the jury, judgment was to be entered for the defendant; otherwise, judgment was to be entered on the verdict.</p>

<p>Negligence, In leaving coal hole open, Res ipso loquitur.</p> <p>Where the iron cover of a coal hole in a sidewalk, that ordinarily fitted in a rabbet and was held in position by its own weight and also was held in place by a weight fastened by a heavy wire to a ring in the bottom of the cover, was found at half past three o’clock in the morning on the sidewalk eight or nine inches away from the hole with nothing attached to it and there was nothing to show when, by whom or for what purpose the cover was removed, a traveller who was injured by stepping into the hole at this time under these conditions, cannot maintain on these facts an action against the person in control of the building to which the coal hole appertained, because these facts are not evidence of negligence on his part.</p> <p>The presence on a sidewalk of a coal hole cover eight or nine inches from the uncovered hole is not in itself evidence of negligence on the part of the person controlling the building served by the coal hole.</p>

<p>Contract for failure to deliver the chassis of a motor car or to return to the plaintiff $275 paid by the plaintiff therefor. Writ in the Municipal Court of the City of Boston dated March 1,1916. The declaration was as follows:</p> <p>“And the plaintiff says that on or about the 7th day of January, A. D., 1916, the defendant agreed with the plaintiff to sell and to deliver to him, the said plaintiff, a certain automobile chassis for the sum of Two Hundred Seventy-five Dollars ($275), which sum of money the plaintiff paid to the defendant forthwith. That subsequently on or about the 1st day of February, A. D. 1916, the defendant refused to deliver to the plaintiff the said automobile chassis, although demand for the same was made by the plaintiff of the defendant. Neither has the defendant paid back to the plaintiff the sum of $275 which was paid by the plaintiff to the defendant as aforesaid.</p> <p>“Wherefore the plaintiff says that he is entitled to his damages from the defendant.”</p> <p>The defendant’s answer was a general denial.</p> <p>On removal to the Superior Court the case was tried before O’Connell, J. The evidence is described in the opinion. The bill of exceptions, besides the statement of the evidence described in the opinion, contained the following statement:</p> <p>• “The plaintiff rested, and the defendant testified in his own behalf that on January 7, 1916, he owned this burned chassis, which he sold; that he bought it of the Liverpool and London and Globe Insurance Company and paid for it by his check; that the owner of the automobile originally, before it was burned, was a man, named Connolly; that after it was burned he held it. He was ready to give it up. He did not refuse to give it up, not definitely. He wanted to show his power before he gave it up. He did not refuse absolutely to give it up. That was laying down there. Nobody had claimed it. The insurance company did not want it. They sold it to the defendant and the defendant sold it to the plaintiff.”</p> <p>The defendant made a motion in writing asldng the judge “to direct a verdict for the defendant for the reason that upon the pleadings and the evidence the plaintiff was not entitled to recover.” The judge denied the defendant’s motion and refused to direct a verdict for the defendant. The jury returned a verdict for the plaintiff in the sum of $287; and the defendant alleged exceptions.</p>

<p>Drain, Private. Municipal Corporations, Order to connect with sewer. Boston.</p> <p>Where one of a number of landowners who had the right to use in common a private drain continued to use it for many years after all the others having the right had made connections with a public sewer and had ceased to use the private drain, this does not make the person who continued to exercise his right to use the drain liable for damage to property from an overflow of waste water from the drain, which was due wholly to the act of a third person who built a foundation wall across the drain and which was not due to any negligence on the part of the person who continued to use the drain.</p> <p>It here was said that an order of the health department of Boston, addressed to a landowner who has been using a private drain, ordering him to make a connection with the public sewer in the adjoining street, does not require him to abandon the use of the private drain, where the order contains no prohibition of its use.</p>

<p>Twelve petitions, filed in the Superior Court for the county of Barnstable on February 11, 1914, by the-Boston, Cape Cod and New York Canal Company, hereinafter called the canal company, under St. 1899, c. 448, § 16, for the assessment by a jury of the damages to which the respective respondents are entitled by reason of injury caused by the petitioner in the construction of its canal to oyster fisheries where the respondents had been given licenses by the town of Bourne to plant, grow and dig oysters.</p> <p>The respondents, under the circumstances described in the opinion, severally had filed petitions for the assessment of their damages with the commissioners on inland fisheries and game, who had made awards. These twelve petitions were filed because the canal company was dissatisfied with those awards.</p> <p>In the Superior Court by agreement of the parties the petitions were referred to three commissioners under a rule which provided that their reports should be final as to matters of fact, but subject to review by the court as to matters of law. The material portions of the reports of the commissioners are described in the opinion.</p> <p>The cases were heard together in the Superior Court upon the reports of the commissioners by Jenney, J., who refused to make certain rulings requested by the petitioner, which are described in the opinion, confirmed the reports of the commissioners and ordered judgments for the respective respondents in the following sums: Frank H. Henshaw, $1314.59; Edward S. Berry, $992.65; Salathiel H. Perry, $2,171.09; Frederic Raymond, $2,276.23; Preston L. Blackwell, executor, $1,182.30; Sarah F. Butler, administratrix, $9,315.80; Hiram L. Perry, administrator, $1,057.48; Missouri H. Stevens, administratrix, $3,519.08; Benjamin F. Berry, $7,112.65; Charles F. Berry, $7,847.32; William B. Taber, $2,181.45; John F. Perry and others, $3,190.73.</p> <p>The petitioner alleged exceptions.</p> <p>St. 1899, c. 448, § 16, is as follows: “In case of any injury to any fishery, including oyster fisheries, caused by said canal company by "the deposit of excavated material, or in any other way, the canal company shall pay to the owner or licensee of said fishery, or to the towns of Sandwich or Bourne in case the fisheries destroyed or damaged are public fisheries, such damages as shall upon the application of either party be estimated by the commissioners on inland fisheries and game, in a manner similar, so far as may be, to that provided in laying out highways, and with a right of appeal to a jury by proceedings similar to those provided for in section five of this act.”</p>

<p>Contract, the declaration, as amended, being in three counts. The first count was for $475 and interest, for money lent. The second count was for the same sum, for money paid and expended to the accoimt of the defendant. The third count was for $521.86 and interest from June 11, 1916, “for money paid for the use of and on and for the account of the defendant.” Writ in the Municipal Court of the City of Boston dated June 7, 1916.</p> <p>After the trial in the Municipal Court, the judge ruled that the plaintiff could not recover on the first count. He found for the plaintiff in the sum of $521.86 and interest from June 11,1916, and at the request of the defendant reported the case to the Appellate Division. The Appellate Division dismissed the report, and the defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act. Agency, Existence of relation.</p> <p>A journeyman paper hanger was hired by the foreman of the wall paper department of a corporation conducting a department store, who gave the journeyman his orders and instructions and whenever wall papering was required directed him to go to the purchaser’s residence and hang the paper and also approved his bills. The name of the journeyman did not appear on the corporation’s pay list of employees, because he was paid by the roll at a varying rate with the amount of his expenditures for car fares and paste and received a check weekly for the amount due him. Upon a claim by him under the workmen’s compensation act for compensation for an injury sustained in the course of his work by a fall from a step-ladder, he testified that while at work “he was his own boss,” but the other evidence showed that in case of unperformed or imperfect work by him the corporation would be liable to the purchaser and that the power to direct what should be done in satisfaction of the purchaser’s contract was in the corporation, whose orders given through the foreman the journeyman uniformly obeyed and executed. Held, that a finding was warranted that the journeyman at the time of his injury was in the employ of the corporation and was not an independent contractor within the meaning of St. 1911, c. 751, Part III, § 17.</p>

<p>Marriage and Divorce, Connivance. Evidence, Presumptions and burden of proof.</p> <p>The connivance which will constitute a bar to a libel for divorce need not be express connivance. It may be established by evidence which shows either active or passive consent on the part of the libellant to adulterous acts of the libellee.</p> <p>A judge who heard a libel for divorce brought by a husband and charging adultery found, on evidence warranting the finding, that the libellant entertained the co-respondent at his home one evening and night and, knowing that the alleged co-respondent had purchased and had a pint of whiskey, left him with his wife while he spent the evening elsewhere; that, returning, he from outside his house saw the pair in familiar attitudes and, through a window, heard them agree to a clandestine meeting in a neighboring city the following day when there would be an opportunity for an adulterous act; that the libellant then entered the house, saw evidences of the use of the whiskey by both of the pair, treated them pleasantly and slept that night with the alleged co-respondent; that the next morning the libellee asked him for money for a dress, that he told her he had not enough for that, that she asked him for $5 for a skirt which he gave her; that she left for the city by an early train; that he told the alleged co-respondent that he should spend the day in the neighborhood; that the co-respondent left him and thereupon the libellant went to the city and, by use of detectives, caught the libellee and the alleged co-respondent together under circumstances which would warrant a finding of adultery. From such finding the judge drew the inference that the libellant, deliberately throwing the libellee off her guard, gave her money intending to aid her in carrying out her purpose in going on her adulterous enterprise, and ruled as a matter of law that the libellant was guilty of connivance and dismissed the libel. Held, that the judge’s inference of fact and ruling of law were warranted.</p>

<p>Mandamus. Constitutional Law, Trial by jury. Jury and Jurors. Attorney ' at Law. Practice, Civil.</p> <p>Neither by constitutional provision nor by statute is a petitioner for a writ of mandamus given a right of trial by jury of issues of fact raised by the pleadings.</p> <p>It is within the discretionary power of a justice of this court in the matter of a petition for a writ of mandamus to allow a motion of the respondent to amend his answer.</p> <p>While it would be proper, upon the hearing of a petition for a writ of mandamus commanding a justice of the Superior Court to recognize the petitioner as an attorney at law and counsel for the plaintiff in a suit pending for hearing before him, for the Attorney General to appear for the respondent, he is not required so to act, and it is proper for the respondent to be represented by members of the bar of the Commonwealth who hold no other official position in the Commonwealth.</p> <p>It being a criminal offence for a disbarred attorney to continue to practice law, a petition by him for a writ of mandamus to compel a justice of the Superior Court to recognize him as an attorney at law and as counsel for the plaintiff in a suit in equity called for hearing before the justice must be denied.</p>

Tort for damage to the plaintiff’s horse and pedler’s cart and to the fruit contained in the cart from being run into on the morning of August 5, 1913, on Rutherford Avenue in the part of Boston called Charlestown by a motor truck belonging to the defendant by reason of the negligence of the driver of the truck alleged to have been the servant of the defendant.

<p>Frauds, Statute of. Practice, Civil, Conduct of trial: requests for instructions; Action prematurely brought, Waiver of defence. Waiver.</p> <p>Where an owner of real estate, who has made a contract to sell the real estate, orally agrees with the owner of a second mortgage upon the property that, if the owner of the real estate will discharge his contract of sale and will not appear at a sale in foreclosure of the second mortgage, which is about to take place, and will not bid in the property, the second mortgagee will sell the property to the purchaser to whom the owner has agreed to sell it and will pay the owner a certain amount of money, if the owner thereupon discharges his contract of sale and refrains from attending the foreclosure sale and the real estate is sold by the mortgagee, the mortgagee’s oral agreement to pay a sum of money is not within the statute of frauds.</p> <p>Where, at the trial of an action by the owner against the mortgagee for failure to pay to the plaintiff the sum of money in accordance with the oral agreement above described, there is evidence tending to show that all that the plaintiff agreed to do was to discharge his rights under his contract of sale and that he did not agree to procure a release from the purchaser, and that he had discharged the contract of sale, a request of the defendant for a ruling, in .substance that the plaintiff could not recover unless the jury found that the plai .tiff and his customer had released each other from the contract of sale, properly may be refused.</p> <p>It appeared that the above described action was upon a right of recovery which was alleged to have vested in the plaintiff on a certain day, but that the foreclosure sale did not occur until sixteen days later. Neither in the pleadings nor at the trial of the action was any question raised as to the action being brought prematurely, and no exception was taken. Held, without determining that there was merit in such contention, that under the circumstances it was not open to the defendant in this court.</p>

<p>Lowell. Civil Service. Municipal Corporations, Removal of officers. Mandamus. Practice, Civil, Conduct of trial, Election.</p> <p>Under the provision of the city charter of Lowell contained in St. 1911, c. 645, § 40, the treasurer and collector of taxes of that city can be removed from office by the municipal council only in the manner provided in the civil service law contained in St. 1904, c. 314, as amended by St. 1905, c. 243.</p> <p>A statement contained in a vote of the municipal council of Lowell purporting to remove the treasurer and collector of taxes of that city, that “After due consideration of the testimony adduced at the hearing, and the exhibits, it appears that [the person in question] failed to exercise proper diligence in discharging the functions of his office. Therefore, we find such failure and neglect of duty is contrary to the good of the service,” does not supply the want of a compliance with the provisions of the civil service law, where no notice of the proposed action ever was given and no copy was furnished to the person sought to be removed of any writing stating specifically the reasons of removal and no opportunity was afforded him to prepare and present his defence as required by St. 1904, c. 314, St. 1905, c. 243.</p> <p>The same is true in regard to a like vote passed under like circumstances purporting to remove the purchasing agent of Lowell.</p> <p>In the case last mentioned it was pointed out that a letter of the city solicitor to the petitioner’s counsel advising him of the nature of the evidence to be introduced at the hearing did not cure the failure to comply with the provisions of the statute, which requires specifications not from the city solicitor but from the municipal council.</p> <p>At the hearing by a single justice upon a petition for a writ of mandamus addressed to the municipal council of a city commanding the members of that council to reinstate the petitioner as an officer of the city, where the respondents have filed a plea in abatement and also have demurred to the petition and likewise have filed an answer, it is within the discretionary power of . the single justice to order the respondents to elect whether they will proceed on the plea in abatement or on the demurrer or on the answer.</p>

Tort against a corporation engaged in constructing a sewer in Judson Street in the part of Boston called Roxbury for damage done on May 15, 1915, to the plaintiff’s house numbered 28 on Judson Street alleged to have been caused by negligent blasting by the defendant. Writ dated October 20, 1915. In the Superior Court the case was tried before Brown, J. The evidence is described in the opinion.

<p>Negligence, Contributory.</p> <p>In an action for personal injuries sustained, after St. 1914, c. 553, went into effect, by a boy about ten years of age from being run down by a motor car driven by the defendant when the plaintiff was crossing a public square on foot, where the answer alleged that the plaintiff was not in the exercise of due care and where there was evidence that the plaintiff went across the square “on a dog trot” continuing in the same direction, and the plaintiff testified that when about to cross he looked up and down and heard no automobile horn and did not change his course from the time he left the curbstone, and there was evidence “that the automobile changed direction and ran the plaintiff down; that it seemed to chase him,” it was held that the plaintiff had a right to go to the jury on the question of his due care.</p>

<p>Tort for damage resulting from a negligent failure of an alleged agent of the defendants to procure and attach to a policy of insurance covering furniture of the plaintiff a consent of the insurance company to a removal of the furniture to a new location. Writ dated July 14, 1915.</p> <p>In the Superior Court the case was tried before Hamilton, J. The material facts and evidence are described in the opinion. At the close of the evidence the defendant moved that a verdict be ordered for the defendants, and also asked for the following rulings among others:</p> <p>“1. Upon all the evidence the plaintiff cannot recover.</p> <p>“2. Upon all the evidence it cannot properly be found that the defendants are legally responsible to the plaintiff for any neglect of which Mr. Hallett may have been guilty in connection with the not obtaining the assent of the Buffalo German Insurance Company to the transfer of the plaintiff s property to the location where the fire occurred.</p> <p>“3. There is no evidence of negligence on the part of the defendants.</p> <p>“4. There is no evidence of any neglect on the part of the defendants of any duty which they owed to the plaintiff.”</p> <p>“6. The fact, if it be a fact, that Mr. Hallett was paid or allowed a commission by the defendants when the policy was issued is immaterial to any issue involved in this case.”</p> <p>“8. The fact that on the occasion of the plaintiff’s removal from Lynn to Nahant he gave the policy in question to Mr. Hallett and Mr. Hallett procured the assent of the defendants to such removal and they made the necessary indorsement on the policy and gave the policy back to Mr. Hallett, is immaterial to any issue involved in this case.”</p> <p>"15. When the plaintiff gave the policy in question to Mr. Hallett for the purpose of obtaining the assent of the Buffalo German Insurance Company to the removal of his property to the building where the fire occurred, Mr. Hallett thereupon became, for that purpose, the agent of the plaintiff.”</p> <p>“17. The fact that the defendants, as agents for the Westchester Fire Insurance Company, had frequent dealings with Mr. Hallett, who was also an agent of that company, with relation to policies of that company is immaterial to any issue involved in this case.</p> <p>“ 18. Whatever duties Mr. Hallett was under to the plaintiff sprang from his promise to obtain the assent of the company to the transfer and not from any relationship which existed between himself and the defendant.”</p> <p>The motion was denied and the rulings were refused. The jury found for the plaintiff in the sum of $329.80. The defendants alleged exceptions.</p>

<p>Negligence, Plaintiff’s due care, In use of highway, Street railway. Practice, Civil, Waiver of right given by statute. Waiver.</p> <p>Where the trial of an action of tort, against a street railway company for personal injuries, received after St. 1914, c. 553, went into effect and resulting from the plaintiff being rim into in the night time by a street car of the defendant as he was crossing a highway at a cross walk lighted by street lights, was tried on the footing of an action for injuries received before that statute went into effect, and there was evidence warranting, among other findings, findings that the plaintiff as he approached the defendant’s tracks was conscious of his danger and had his mind actively directed to its avoidance, that he looked in both directions for approaching cars and saw none, that, until he was within fifteen feet from the track, his view in the direction from which the car that struck him came was obscured by a team and that until it was too late to avoid the accident he did not look again in that direction because he was required to pick his way with care over the cross walk owing to its being made treacherous by small stones and gravel placed there during street repairs, the question of his due care is for the jury.</p> <p>At the same trial there was evidence tending to show that the defendant’s rules required the motorman to use extra care in passing excavations near a track such as were shown to exist in this case; that he saw the plaintiff when the car was seventy-five feet from the cross walk and the plaintiff was fifteen feet from the street car rail, walking slowly; that the motorman started to slow up, that the plaintiff went more slowly when within four or five feet of the rail and that then the motorman put on speed and “took a chance to slow up” and stop the car if the plaintiff kept on going; and that the car was going at the rate of five miles an hour and could have been stopped within twenty-five or thirty feet. Held, that the question of the negligence of the motorman was for the jury.</p> <p>In this action for personal injuries received after St. 1914, c. 553, went into effect, where the plaintiff attempted to waive the provisions of that statute and consented to the judge charging the jury that the statute put upon the defendant only the burden of going forward and did not disturb nor change the burden of proof, the jury found that the plaintiff was in the exercise of due care, and this court stated that the question, whether such a waiver by the plaintiff could be made, had become immaterial.</p>

<p>Equity Pleading and Practice, Demurrer, Misjoinder. Equity Jurisdiction, To enjoin criminal prosecution. Hawkers and Pedlers.</p> <p>In a suit in equity by six plaintiffs, each engaged in a different business, to enjoin an alleged anticipated unlawful interference with their business, the defendant demurred, assigning various causes of demurrer but not assigning as a cause of demurrer the improper joinder of the plaintiffs in a single suit, and the question of misjoinder of the plaintiffs was treated by this court as not open upon the demurrer.</p> <p>A suit in equity cannot be maintained by one engaged in business to enjoin the chief of police of a city from committing an alleged apprehended unlawful interference with the plaintiff’s business by instituting a complaint against the plaintiff for an alleged violation of R. L. c. 65, § 13, as amended by St. 1916, c. 242, § 1, in regard toc hawkers and pedlers by exhibiting samples of his goods in a room hired by him in a hotel in that city without first obtaining a license.</p> <p>The fact, that a person engaged in business may be injured in respect to his business by prosecution for an alleged crime, in conducting his business in an unlawful manner, is not a sufficient ground for a suit in equity by that person asking the court to ascertain in advance whether the business as conducted by him is in violation of a penal statute.</p> <p>In the case in which the points above stated were decided, it was said that whether the plaintiffs, or any of them, were guilty of any infraction of the criminal law was a question to be tried in a criminal court and not in this suit in equity.</p>

<p>Guardian. Probate Court, Accounts, Appeal, Decree.</p> <p>Upon an appeal to the Supreme Judicial Court from a decree of the Probate Court upon an account of a guardian purporting to be a final account, a decree may be entered by order of a single justice which, following the practice in equity, makes an adjudication as to disbursements and charges of the guardian in connection with that account and hearings upon it up to and including the termination of proceedings respecting it.</p> <p>Where a decree entered by order of a single justice upon such an appeal does not purport to make any adjudication as to disbursements and charges of the accountant since the date to which the “final account” runs and relating to the litigation as to the allowance of that account, but remands the case to the Probate Court “for further proceedings,” the accountant should be permitted to file in the Probate Court a further account bringing before the court for determination the question whether such items should be allowed.</p> <p>The mere fact that the account which was appealed from was entitled a “final account” does not preclude the accountant from seeking an adjudication upon the later items in the subsequent account.</p> <p>By such an account, also, may be brought before the Probate Court the propriety of payments by the accountant of premiums upon his bond dining years when the question of the allowance of the alleged final account was pending.</p> <p>By R. L. c. 150, § 20, the guardian is given a right also to include in such an account an item showing a payment to the ward of a balance which by the decree modifying the former account was found still to be due to the ward from him.</p>

<p>Equity Jurisdiction, To reach and apply property not attachable at law. Equity Pleading and Practice, Demurrer, Appeal.</p> <p>A claim, arising from a decree, which was made in a suit in equity brought by trustees of a building trust and a receiver of the property of the trust appointed by a court of equity against a former trustee of the trust and which directed the defendant to pay to the plaintiffs a certain amount of money that represented losses sustained by the trust through breaches of trust by the defendant, is a “debt” within R. L. c. 159, § 3, cl. 7, as amended by Sts. 1902, c. 544, § 23; 1910, c. 531, § 2, giving jurisdiction in equity of suits to reach and apply in payment of á “debt, any property, right, title or interest, legal or equitable, of a debtor, . . . which cannot be reached to be attached or taken on execution in an action at law.”</p> <p>It here was pointed out that a claim for unliquidated damages arising from a breach of a contract cannot be reached to be attached or taken on execution in an action at law against the plaintiff by one of his creditors.</p> <p>A right of such a debtor to damages, arising from a breach of a contract by a bank to lend to him a certain amount of money upon his note secured by a mortgage upon certain land when he should secure title to the land, is a property right within the provisions of the above statute, although an action is pending by the debtor against the bank for the enforcement of the right and the damages are unliquidated.</p> <p>Where, in a suit in equity, under R. L. c. 159, § 3, cl. 7, as amended by Sts. 1902, c. 544, § 23; 1910, c. 531, § 2, to reach and apply, in payment of a debt, a claim of the debtor to damages for a breach of a contract, which the debtor is seeking to enforce by an action at law, the bill alleges facts which, if proved, will establish such breach of contract and the defendant demurs, the truth of the facts so alleged are admitted by the demurrer and it is not open to the defendant to contend that the defendant in the action at law by the debtor contests liability and that his liability is not established.</p> <p>It is immaterial to the maintenance of such a suit that the value of the claim of the debtor which the plaintiff seeks to reach and apply to the payment of his debt is uncertain, since it is of a nature that can be ascertained “by sale, appraisal or by . . . means within the ordinary procedure of the court.”</p> <p>An appeal from an interlocutory decree granting an injunction in a suit in equity cannot be brought before this court before final decree upon a report which relates only to the correctness of an interlocutory decree overruling a demurrer to the bill; and it therefore must be dismissed.</p>

<p>Negligence, Of one controlling real estate, Invited person. Landlord and Tenant, Landlord’s liability to invitee of tenant. Nuisance.</p> <p>At the trial of an action of tort against the owner of an apartment house for personal injuries received by a florist’s errand boy who fell down steps leading to the basement of the apartment which in darkness and rain he mistook for the entrance to the building whither he was going on an errand to a tenant of the defendant, there was evidence tending to show that the first of the steps down which the plaintiff fell was within half an inch of the line of the public street, that there was no guard in front of the steps and that they were unlighted. It appeared that the defendant had control of the common entrance and passageways of the premises, that the tenant to whom the plaintiff was going on an errand had been a tenant at will of the apartment in the building for ten years and that the condition of the premises as to the steps in question had not been changed at all dining his tenancy. Held, that, if it be assumed that the plaintiff was upon the premises on business for a tenant and thus by the implied invitation of the defendant, his rights while there were no greater than those of the tenant; that the duty of the defendant to the tenant as to the basement steps was merely to use due care to keep them in the condition in which they were or purported to be at the time of the letting, and that, on the evidence, there was no evidence of a failure to perform that duty.</p> <p>In the above described action, it further was held that neither the fact that the defendant had a janitor on the premises who kept the hallways lighted, nor the # fact that “there was a means of lighting that place [the basement steps] by night,” was evidence tending to show that the defendant had assumed the obligation of lighting the steps.</p> <p>In the above described case, it also was held that, since it appeared that, when injured, the plaintiff had ceased to be a traveller upon the highway, a violation by the defendant as to the steps in question of an ordinance of the city where the building was, providing that “No person shall maintain an entrance to his estate by steps descending immediately from or near the line of a public street, unless the same is securely guarded,” was not evidence of negligence of the defendant.</p> <p>Where the owner of a building used as an apartment house has permitted a condition which amounts to a nuisance to exist with respect to steps leading from a public street to a basement of the building and, while the nuisance is in existence, lets an apartment to a tenant, retaining control of the steps, if thereafter a person going upon the premises upon business with that tenant is injured by reason of the nuisance, such person cannot recover from the owner.</p>

<p>Pleading, Civil, Waiver of formal defect. Negligence, Proximate cause. Proximate Cause. Witness, Inference from failure to call. Evidence, Presumptions and burden of proof.</p> <p>In an action, before the enactment of St. 1914, c. 553, against a street railway corporation by an administrator for causing the death of the plaintiff’s intestate, the defendant, after having taken part in the trial of the case on its merits without objecting to the form of the declaration, cannot raise for the first time, at the argument before this court of its exception to the refusal of the presiding judge to order a verdict for it, the objection that the declaration contains no allegation that at the time of the injury that caused his death the intestate was in the exercise of due care.</p> <p>In an action by an administrator for causing the death of the plaintiff’s intestate by an injury due to the negligence of a servant of the defendant, if it appears that by reason of the negligence of the defendant’s servant the plaintiff’s intestate sustained an injury to his kidneys that was the immediate cause of his death which was hastened thereby from one to two years, a finding is warranted that the injury was the proximate cause of his death.</p> <p>In an action by an administrator against a street railway corporation for causing the death of the plaintiff’s intestate by reason of the carriage in which he was driving one horse and leading another being overturned when the defendant’s motorman, as the plaintiff alleged, sounded the whistle on his car just as he was opposite the carriage and when the horses were frightened and were prancing and the intestate had held out his hand to warn the motorman of their condition of fright, there was evidence of a declaration of these facts by the intestate, and the controlling question of fact to be decided was whether the defendant’s motorman sounded the whistle when his car was abreast of the frightened horses driven and led by the intestate. It appeared, upon the cross-examination of one of the defendant’s witnesses, that the motorman who was operating the defendant’s car at the time of the accident, and who no longer was in the defendant’s employ, was downstairs in the court house “with the other witnesses,” and the defendant asked the presiding judge to rule that “Upon all the evidence in this case no inference can be drawn against either the plaintiff or the defendant for failure to produce the motorman.” The judge refused to make this ruling and left it to the jury to determine what inference, if any, was to be drawn in favor of, or against, either party, from the failure to call the motorman as a witness. Held, that the refusal of the judge to make the ruling requested and his instruction to the jury both were right.</p> <p>The mere fact that a witness is available to both parties does not necessarily preclude a jury from drawing an inference from the failure to produce him.</p>

<p>Contract under St. 1909, c. 504, § 82, by the Treasurer and Receiver General, at the request of the State board of insanity, to recover for the support of the defendant’s daughter Lena Morin at the price of $2.50 a week at the Northampton State Hospital for the insane. Writ dated March 31, 1915.</p> <p>In the Superior Court the case was heard by O’Connell, J., without a jury. The essential facts found by him are stated in the opinion.</p> <p>The plaintiff offered evidence to prove that Eugene W. Morin, the husband of Lena Morin, had no property at the date of the writ or at the time of the trial and was not then of sufficient ability to pay for the support of his wife and that .there was no reasonable prospect of Morin accumulating property which could be levied upon to satisfy any judgment which might be obtained against him for such support. The defendant objected to the admission of this evidence. The judge stated that he would admit the evidence de bene, and, if he finally decided that the evidence was competent, its admission should be subject to the defendant’s exception. The evidence was admitted and the judge made findings based on it, including findings that Eugene W. Morin had no property and that there was no reasonable prospect of his accumulating property which could be levied upon to satisfy any judgment that might be obtained against him for the support of his wife in the hospital.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. Upon all the facts and the law, the plaintiff is not entitled to recover and the verdict must be for the defendant.</p> <p>“2. Under St. 1909, c. 504, § 82, the Treasurer and Receiver General cannot recover for the support of an insane person who is an adult married woman from any of the kindred of such person while her husband is living in the Commonwealth.</p> <p>“3. A father is not 'bound by law’ to support his adult daughter except she be a pauper and then only under the provisions of the statutes in such case provided.”</p> <p>The judge refused to make either of these rulings and ruled that the defendant was liable. He found for the plaintiff in the sum of $404.23; and the defendant alleged exceptions.</p> <p>R. L. c. 81, §§ 9, 10, are as follows:</p> <p>“Section 9. A pauper, his executor or administrator shall be liable in an action of contract to a city or town in which he has a settlement for expenses incurred by it for his support.</p> <p>“Section 10. The ldndred of such poor persons, in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, living in this Commonwealth, and of sufficient ability, shall be bound to support such poor persons in proportion to their respective ability. The mother shall be under the same legal obligation to support her pauper children as the father, but she shall not be liable to criminal prosecution for the enforcement of such obligation.”</p> <p>St. 1909, c. 504, § 82, is as follows: “The price for the support of inmates, other than State charges, of the institutions mentioned in section fourteen, and of the Massachusetts School for the Feeble-Minded, shall be determined by the trustees of the respective institutions. The price for the support of State charges shall be determined by the State board of insanity at a sum not exceeding five dollars per week for each person, and may be recovered by the Treasurer and Receiver General from such persons if of sufficient ability, or from any person or kindred bound by law to maintain them. The Attorney General shall upon request of the said board bring action therefor in the name of the Treasurer and Receiver General.”</p>

<p>Contract for $730.52, with interest, upon a contract in writing made by letter for the price of certain lumber sold and delivered to the defendant. Writ dated August 16, 1911.</p> <p>The defendant’s answer, besides a general denial and an allegation of payment, contained the following: "Further answering the defendant says that the plaintiff agreed to deliver the lumber under the contract as it should be required by the defendant for the use in the building, to wit, the Classical High School, at Lynn, which the defendant, to the plaintiff’s knowledge, contracted to erect at that time in the city of Lynn; and the defendant says that the plaintiff did not make the shipments on time, and as the lumber was required to be used in the building; and the defendant says that by reason thereof he was greatly damaged, and is, therefore, entitled to recoup in this action.”</p> <p>In the Superior Court the case was tried before Wait, J. The essential facts shown by the evidence and the instructions of the judge upon the defendant’s claim in recoupment are stated in the opinion. A part of that portion of the charge was as follows: “In other words, you can accept goods and if you accept them you are bound to let the man that sold them to you know of any claim you are going to make against him within a reasonable time after you know you are going to make the claim or ought to have known that the breach you claim is in existence.</p> <p>“Now, that is important in this case, gentlemen. If these goods were not up to the contract, if they were less in amount than they ought to have been, or if the delay in their delivery was such as to cause damage, it was up to the defendant if he proposed to accept the goods to give notice of that claim within a reasonable time, and if he did not, no matter whether his claim is good, bad or indifferent, he cannot maintain it, and it is a question for you in this case if there was any right which the defendant had on account of any breach of the contract through delay in delivery or through lack of quantity or quality, whether if he knew of it he made a claim within a reasonable time.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,028.18; and the defendant alleged exceptions.</p>

<p>Contract or tort for damages for an injury sustained on October 2 or 3, 1912, by a race horse belonging to the plaintiff, named Oom Paul, when being transported over the defendant’s railroad from West Springfield to Palmer. Writ dated January 7, 1914.</p> <p>The defendant’s answer, in addition to a general denial, alleged that the horse was transported under the terms and conditions of a live stock contract filed with the interstate commerce commission as a part of the tariffs of the defendant filed with that commission as required by the statutes of the United States, and containing the provision quoted in the opinion.</p> <p>In the Superior Court the case was tried before Dubuque, J. In compliance with an order of the judge the plaintiff elected to rely on the second count of his declaration, which was in tort. The evidence is described in the opinion. At the close of the evidence the defendant, among other requests, asked the judge to make the following rulings:</p> <p>“4. The plaintiff cannot recover for any loss or damage to his , horse, unless he made a claim in writing, verified by affidavit, within five days from the time the horse was removed from the car at Palmer.</p> <p>“5. The defendant’s agent at Palmer had no authority to waive this requirement about presenting a claim in writing.”</p> <p>The judge submitted to the jury two special questions, which with the answers returned by the jury were as follows:</p> <p>“1. Was the plaintiff’s horse ‘Oom Paul’ injured in the course of transportation in the defendant’s car through the defendant’s negligence on October 2 or 3,1912, between Northampton, Massachusetts, and Palmer, Massachusetts?” The jury answered, “ Yes.”</p> <p>“2. If you answer yes, then what was the amount of damage suffered by the plaintiff resulting from the injury to said horse? ” The jury answered, “$364.91.”</p> <p>There was sufficient evidence to warrant the special findings of the jury upon the question of the defendant’s negligence and the extent of the damage suffered. After the special verdicts were returned, upon motion of the defendant the judge ruled that as a matter of law the plaintiff was not entitled to recover and ordered the jury to return a general verdict for the defendant. He reported- the case for determination by this court. It was agreed by the parties, that' if there was material and competent evidence upon which the jury might have found that there was a waiver by the defendant of the five days’ clause in the shipping contract, this court might treat the case as if the jury had found there was a waiver of the provisions of this clause by the defendant. If the ■ordering of the verdict was right, the verdict for the defendant was to stand. If the ordering of the verdict was wrong, a verdict was to be entered for the plaintiff for such amount as this court might deem proper.</p> <p>The case was submitted on briefs.</p>

<p>Contract or tort by the lessee under a lease in writing dated September 28, 1912, for the term of two years from October 1, 1912, the declaration containing two counts, each for an alleged' breach of the covenant of quiet enjoyment by an eviction of the plaintiff by the defendant, the lessor, as explained in the opinion. Writ dated August 22, 1913.</p> <p>The second count of the declaration, which is described in substance in the opinion, contained the following allegations:</p> <p>“That the defendant, who was the lessor named in said lease, wrongfully contriving and intending to injure the plaintiff and to deprive him of the benefit of his possession of said premises, and of the benefit of said lease, wrongfully interfered with certain subtenants of the plaintiff’s of certain portions of said demised premises, and by misrepresenting and pretending to them, that the plaintiff’s said lease was terminating or abrogating, or that the plaintiff had no rights thereunder, preventing the plaintiff’s said subtenants from paying the rent due from them to the plaintiff for their said portions of said premises, and caused said tenants or some thereof to pay said rent to the defendant or her agent, and prevented the plaintiff from receiving the same.</p> <p>“And the defendant by the means aforesaid caused the plaintiff’s said subtenants to attorn to her, as their landlord in view of the rent, and thereby ousted the plaintiff from a large and material part of the demised premises, and rendered the plaintiff’s occupation, use and enjoyment of the remainder of said premises of substantially no value to him, whereby the plaintiff was evicted from and compelled to remove and did remove from and vacate and give up said premises to the defendant, who repossessed herself thereof.</p> <p>“And the defendant has ever since excluded the plaintiff from all and singular the demised premises and denied his rights under said lease.</p> <p>“By reason and by means whereof the plaintiff has wholly lost the benefit of said lease and of his rights thereunder, and the profits to which he was entitled per subletting said premises, and has been otherwise greatly damnified.”</p> <p>In the Superior Court the case was tried before Hitchcock, J. The plaintiff made in writing an offer to prove certain facts, which are stated in the opinion. The judge ruled that the facts offered to be proved were not sufficient in law to warrant a verdict for the plaintiff and ordered the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January-13, 1917, by the Boston Safe Deposit and Trust Company, a corporation, as the executor of the will of Andrew R. Winslow, late of Boston, for instructions.</p> <p>The case came on to be heard by Crosby, J., upon the pleadings and an agreed statement of facts. The clause of the codicil to the will of the testator which was to be interpreted is quoted in the opinion. Among the agreed facts were the following:</p> <p>Andrew R. Winslow, the testator, was the only son of John B. Winslow and Polly Robinson Winslow. At the time of her marriage to the testator’s father the testator’s mother had no independent means of her own. The testator’s father died on February 12, 1890, intestate and a widower, leaving property worth approximately $75,000, and on March 17, 1890, the testator was appointed the administrator of his father’s estate, giving a bond approved by the Probate Court for Suffolk County in the amount of $100,000.</p> <p>On April 12, 1890, the testator made the will referred to in the bill.</p> <p>Both at the time of the death of John B. Winslow and on April 12, 1890, Amelia A. Greene, Mary E. Whitaker, Charles N. Winslow, and Wanton T. Sherman, the legatees mentioned in the first paragraph of the will, constituted the testator’s only living first cousins on his father’s side.</p> <p>On October 21, 1904, the testator executed a codicil to his will, which was referred to in the bill and contained the provisions quoted and described in the opinion.</p> <p>Of the first cousins of the testator named in the first clause of the will Wanton T. Sherman died after the will was drawn and before the codicil was executed, leaving two sons and two daughters. The daughters died, never having married and intestate, after the execution of the codicil but before the death of the testator, so that the only issue of Wanton T. Sherman living at the time of the testator’s death were his sons, the defendants Joseph B. Sherman and Henry W. Sherman.</p> <p>Mary E. Whitaker, mentioned in the first paragraph of both the will and the codicil, died on June 11, 1906, intestate, leaving no husband, and as her only heir at law Josephine W. Whitaker, who was appointed administratrix of her mother’s estate on September 4, 1906. The testator knew of her death.</p> <p>Charles N. Winslow died on December 29, 1904, leaving a widow, Henrietta E. Winslow one of the defendants, who was appointed executrix of his -will on February 6, 1905. Charles N. Winslow left no issue, no father, mother, brother, sister, nephew or niece. The testator was thus one of his next of kin at the time of his decease.</p> <p>The testator died on January 21, 1916, never having married, leaving an estate appraised at $226,374.42, and, surviving him, in addition to Amelia A. Greene, Josephine W. Whitaker, Joseph B. Sherman, and Henry W. Sherman, hereinbefore mentioned, who then constituted, with the exception of the children of Amelia A. Greene, the only living descendants of Andrew Winslow, the testator’s paternal grandfather, his second cousin George F. Winslow, and as his only , heirs at law and next of kin on his mother’s side certain first cousins.</p> <p>A list of the stocks and bonds included in the estate of the testator at the time of his death was appended to the agreed statement of facts. Their value as appraised in the inventory of the testator’s estate was $131,458.75.</p>

<p>Cant act. Construction. Evidence, Presumptions and burden of proof. Accord and Satisfaction.</p> <p>One engaged in the business of collecting and selling statistical information relating to motor cars wrote to a manufacturer of motor cars in October, 1915, offering to furnish statistics to October 1 for $900 and at the rate of $200 a month for the remaining months of that year, and stating that, “if during next January you do give us an order for our service during 1916 at $200 per month we will cancel the amount of $900.” In November, 1915, the manufacturer wrote accepting the offer. On January 31,1916, the manufacturer wrote, “Will you please' consider this letter our orderfor your monthly service as arranged for in our letter of November 4, for the calendar year of 1916, at a cost to us of $200 per month. This will cancel the previous charges in this connection and authorize the continuance of the service, as previously arranged for.” The furnisher of statistics acknowledged this in a letter dated February 10, in which a “ credit memorandum . . . for the $900” was enclosed. On August 1,1916, the manufacturer refused to carry out the contract and the furnisher of statistics brought an action against it for breach of contract, in which among other items he included the original charge of $900. Held, that, while the plaintiff was entitled to recover on the other items, he had released the defendant from the original charge of $900, and that the defendant’s subsequent failure to carry out the terms of the agreement did not revive this obligation, the making of the contract for 1916 and not its performance having been accepted as ' extinguishing the charge of $900 for the statistics up to October 1, 1915.</p> <p>In the same case it was said, that, the burden being on the plaintiff to prove the contract and the letters by which the contract was made showing the extinction of the charge of $900 by the agreement to pay $200 a month in 1916, there was no ground for saying that the burden was on the defendant to prove a defence of accord and satisfaction.</p>

<p>Evidence, Self-serving statement, Declarations of deceased persons, Opinion. Physicians and Surgeons.</p> <p>In the trial of an action by a woman against a corporation operating a street railway for personal injuries, where it had appeared that a physician, who had treated the plaintiff after her injuries before she went on a vacation with her husband and had treated her again after her return from the vacation, had died in the following month, the plaintiff, after testifying that she had a talle with the deceased physician about "that trip,” was asked, ‘Will you state what you told the doctor about your condition, and what he advised you to do, . . .?” and subject to the defendant’s exception answered, “I told him I felt sorry this had happened, because Mr. IC [the plaintiff’s husband] was to go on his vacation and if I had to stay home, why it would spoil his vacation, because he could not have it later.” There was a verdict for the plaintiff. Held, that this testimony clearly was inadmissible and that it might have harmed the defendant, so that the defendant’s exception must be sustained.</p> <p>In the same case the plaintiff was asked, “What did the doctor advise you to do?” and, subject to the defendant’s exception, answered, “Advised me to go away a few days and see how it affected me, because he thought I was in such a horribly nervous state that if I got among. strangers or got away from home, possibly my nerves would feel better.” Held, that this testimony as to the statements of the deceased physician was not admissible under R. L. c. 175, § 66, because the statements purported to have been the advice of the physician to the plaintiff as his patient based on his opinion of her nervous condition, and could not have been found to have been made upon the personal knowledge of the declarant.</p> <p>After making the answer above described, the plaintiff further testified that in consequence of her talk with the deceased physician she went to Washington, and it was pointed out that the fact that the plaintiff acted upon the advice did not make the advice admissible under the statute.</p>

<p>Agency, Scope of authority. Insurance, Credit.</p> <p>One who knows that he is dealing with a special agent is bound to ascertain" the nature and extent of his authority.</p> <p>■A general agent of a credit insurance company has no power or authority by an oral agreement to dispense with or override an express agreement made with the insurance company by an applicant for a policy of credit insurance in his ’ written application for the insurance.</p> <p>Where an applicant for a policy of credit insurance makes his application by filling in and signing a printed form supplied by the insurance company, without reading the terms of the application or the conditions of the policy expressly referred to in the application, which is printed on the back of the form of the policy applied for, these conditions containing a stipulation for a minimum initial loss of S500 to be borne by the insured and a stipulation that the insurance shall be void unless the person whose credit is insured is in sound financial condition on the day the premium is paid, and there is nothing to prevent the applicant from informing himself of the terms of the application and the conditions of the policy, • and where also the application provides that the conditions and stipulations therein shall constitute the agreement between the undersigned and the insurance company, “any verbal or written statement, promise or agreement, by any agent of the said company to the contrary notwithstanding,” the applicant • is bound by the terms of the application he has signed, although at the time of signing he is assured orally by a special agent of the company that full protectian will be given to the account in question without any deduction and without any proviso as to the financial condition of the person whose credit is assured when the premium is paid, and although the acts of this special agent are confirmed by the oral assurance of a general agent of the company.</p>

<p>Landlord and Tenant, Covenant to pay taxes. Tax, On income. Words, "For,” “In respect of.”</p> <p>A covenant in a lease of real estate, by which the lessee agrees to pay "all taxes and assessments whatsoever which may be payable for or in respect of the leased premises during the term thereof, except assessments for betterments,” binds the lessee to pay all taxes except betterments imposed upon the real estate but not taxes imposed upon the income in the form of rent accruing therefrom, and, where the lessor has paid a federal income tax on the rent received by him from the leased premises, he cannot recover the amount so paid from the lessee.</p>

Bill in equity, filed in the Superior Court on July 30, 1917, against the surviving trustee under the will of Silas Pierce, late of Boston, to enforce the specific performance of an alleged contract to sell and convey to the plaintiff two lots of land -with the buildings thereon numbered 47 and 49 on Hammond Street in Boston. The material allegations of the bill are described in the opinion. The defendant demurred to the bill.

<p>Insurance, Pire: computation of partial loss.</p> <p>In an action upon a policy of fire insurance in the Massachusetts standard form to recover for the partial loss of a building by fire, in applying the general rule stated in Hewins v. London Assurance Corp. 184 Mass. 177, 181, that, where a building is partially destroyed by fire, the loss is the difference between the value of the building before the fire and the value of the part remaining after the fire, it is proper for the presiding judge to instruct the jury that in estimating the value of the part of the building remaining the cost of repairing it is a very material matter and that, if the repairs must conform to certain requirements of the building laws, the nature of those requirements must be considered in determining the cost of the necessary repairs.</p> <p>In the same case, where the jury under the instructions described above, as amplified and explained by the judge, found that the value of the building before the fire was a certain amount and that its value after the fire was a certain other amount, it also was held that the jury in fixing the fair value of the part of the building remaining after the fire must have considered and have made allowance for the restrictions of the building laws as affecting such value.</p>

Tort for personal injuries sustained on December 16, 1916, alleged to have been caused by slipping upon an accumulation of ice on the sidewalk in front of and adjoining the house of the defendant numbered 40 on Albion Street in Boston. Writ in the Municipal Court of the City of Boston dated May 9, 1917. The evidence at the trial in the Municipal Court is described ■ in the opinion.

<p>Workmen's Compensation Act. Evidence, Presumptions and burden of proof. Words, “Furnish.”</p> <p>The requirement of the workmen’s compensation act contained in St. 1914, c. 708, § 1, that for the first two weeks after an injury to an employee the insurer “shall furnish reasonable medical and hospital services,” is not complied with by having posted notices in the employee’s place of work to the effect that he could be treated for injuries at a certain hospital, without having made arrangements with that hospital for such services and without having done' anything more after the employee’s injury than to direct him to go to that hospital.</p> <p>In the case where the point above stated was decided, there was evidence that notices had been posted at the place of work of the employee to the effect that he could be treated for his injuries at the hospital to which his foreman suggested after his injury that he should be taken and to which the employee declined to go, and it was held,, that, although this evidence would have supported a finding by inference that arrangements for the treatment of employees at that hospital had been made, it did not require such an inference as matter of law, and that a finding by the Industrial Accident Board that there was no evidence that any arrangements had been made to furnish treatment was warranted, there having been no direct evidence to that effect.</p>

<p>Three actions of tort against the town of Dighton by three minors by their next friend for alleged unlawful exclusion from the public schools of that town. Writs dated November 18, 1914.</p> <p>In the Superior Court the cases were tried together before White, J. The certificate of Dr. F. A. Shurtleff, deceased, described in the opinion, was admitted in evidence by the judge, subject to the defendant’s exception. The other evidence also is described in the opinion. At the close of the evidence the defendant asked the judge to make in each of the cases the following rulings:</p> <p>“1. There is no sufficient evidence in this case to warrant the jury in finding that the plaintiff was unlawfully excluded from the public schools of the defendant town.”</p> <p>“3. On all the evidence in the case, the plaintiffs are not entitled to recover.”</p> <p>The judge refused to make these rulings and “ submitted the cases to the jury upon instructions to which no exception was taken.” The jury returned a verdict for each of the plaintiffs in the sum of $100, and the defendant alleged exceptions.</p>

<p>Bankruptcy. Judgment, For purpose of proof in bankruptcy proceedings.</p> <p>In an action of contract, where the plaintiff would be entitled to a judgment but for the discharge in bankruptcy of the defendant pleaded as a defence to the action, the plaintiff upon motion is entitled to an order to have judgment entered for him in the sum ascertained, such judgment not to be enforced against the bankrupt personally or to be operative beyond such value as the bankruptcy act attributes to it as evidence of the amount due as a provable claim in bankruptcy, and that execution on said judgment be stayed perpetually.</p>

<p>Tax, On personal property held in trust. Trust, Taxation. Words, “Office furniture.”</p> <p>Where in a return made by trustees to the assessors of a city of the taxable personal property in their hands as such trustees they included an item of “office furniture ” in an office used by the trustees, and there was nothing to indicate that the trustees carried on a business therein within the meaning of St. 1909, c. 490, Part I, § 23, cl. 1, it was held that the office furniture was subject to taxation with the securities held by the trustees as a part of an indivisible fund.</p> <p>Where the trustees of a trust created by the will of a resident of this Commonwealth were three in number and only one of them was a resident of the Commonwealth, and the sole beneficiary of the trust was not a resident of the Commonwealth, and where all three of the trustees filed with the assessors of a city in this Commonwealth a joint return of the taxable personal property in their hands as such trustees, it was held that such action was within the lawful power of the trustees and that the two non-resident trustees thereupon became subject to assessment in that city jointly with their co-trustee, who was a resident of that city.</p> <p>In the case in which the point above stated was decided, it was said that the court did not intend to decide that the property could not have been assessed lawfully to the resident trustee alone.</p>

<p>Writ of scire facias dated May 20, 1915, brought by a physician against Samuel A. Fuller, the alleged trustee of goods, effects or credit of Edric R. Taylor, against whom the plaintiff obtained a judgment in an action for compensation for professional services reported (in its relation to the trustee) in 220 Mass. 265. In that action the trustee was defaulted for his failure to comply with an order of the court as to further answers to certain interrogatories, and it was ordered that judgment be entered for the plaintiff. In the decision of this court, referred to above, which was made on February 26, 1915, it was decided that there was no error in the orders of the Superior Court and that the default of the trustee was to stand.</p> <p>The scire facias came on for trial at a jury session before Morton, J. A jury was empanelled. The defendant then waived trial by jury, as also did the plaintiff, who had not claimed such a trial. No finding was made by Morton, J., but later he ordered that the case be marked on the short trial list for the session without a jury. At that session the case was heard by Hardy, J.</p> <p>The plaintiff introduced in evidence the pleadings and record in the original action and the pleadings and record in the scire facias. Among the facts disclosed by those pleadings and records were the following:</p> <p>In 1912, or earlier, Edric R. Taylor brought an action against the Boston and Maine Railroad and recovered judgment. Execution issued for $12,850 in his favor. Samuel A. Fuller, Esquire, who was Taylor’s attorney in that action, collected the entire amount of the execution.</p> <p>In September of 1912, W. Russell MacAusland, who had been one of Taylor’s physicians after the accident on which the action against the railroad company was based, brought an action in the Municipal Court of the City of Boston against Taylor for his services, naming Mr. Fuller as trustee. The writ was served on Mr. Fuller on September 23, 1912, and was entered in the Municipal Court on the return day, October 19, 1912. On October 23, 1912, Mr. Fuller, as attorney for Taylor, removed the action to the Superior Court by claiming a trial by jury and paying the requisite fee. This was the original action upon which the scire facias was based.</p> <p>On March 23,1914, a trial was had in the Superior Court before Hitchcock, J. The presiding judge ordered a verdict for the plaintiff in the sum of $436.50, the full amount claimed. There were no exceptions and no appeal was taken, and execution eventually was issued in the plaintiff’s favor. That execution was returned to court, showing attempts to levy upon both the defendant and the alleged trustee, but in no part satisfied.</p> <p>The interrogatories six and nine, mentioned in the opinion with the answers of the defendant, were as follows:</p> <p>“Interrogatory 6. If your answer to Interrogatory 5 is in the affirmative, set out in full a copy or copies of such accounting or all such accountings, and state the date or dates on which you rendered it or them.”</p> <p>Answer: “Excepting in so far-as this is answered in the answer to Interrogatory 5, I decline to answer on the ground that it is immaterial and irrelevant, unless ordered to do so by the court.”</p> <p>“Interrogatory 9. What amount did you charge said Edric R. Taylor for your services in connection with the action mentioned in Interrogatory 1?”</p> <p>Answer: “I decline to answer on the ground that it is immaterial and irrelevant unless ordered to do so by the court.”</p> <p>The judge at the original trial ordered the defendant to make further answer to these interrogatories, and for his failure to do this he was defaulted as stated above. On the trial of the scire facias the defendant offered no evidence except his own testimony. He offered to show to whom he paid various sums of money from the $12,850 in his hands as attorney for Taylor with the' dates and amounts of such payments and the amount he charged Taylor for his own services and expenses. He offered no other material testimony. The plaintiff objected to the introduction of this evidence, and the judge admitted it subject to the plaintiff’s exceptions.</p> <p>The judge found for the plaintiff in the sum of $200.25, and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Amendment of docket entries, Exceptions. Negligence, Of one controlling real estate. Elevator, landlord and Tenant. Agency, Scope of authority. Custom. Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>A trial judge has power to order the correction of the docket record by the entering nunc pro tune of an order previously made by the court, which through inadvertence had not been entered on the docket by the clerk.</p> <p>The third floor of a building was leased to one whose business caused the accumulation of much waste paper, which this lessee gave to any one who would come there and take it away. There was a freight elevator in the building and there also was a passenger elevator which was operated to this floor. The lease of this lessee contained a provision that, “The lessee agrees to use the freight elevator for freight purposes only and will allow no person to ride on the same.” A man who was sent there with a large bag to get waste paper found that there was not waste "paper enough to fill his bag and, leaving the bag to be filled on another day, started without it to go down from the third floor by the freight elevator. The elevator was not at that floor, the gate was up and he fell down the well, sustaining injuries that caused his death. In an action by the administrator of his estate against the owner of the building, who was the lessor in the lease mentioned above, for the conscious suffering and death of the plaintiff’s intestate, it was held that the plaintiff’s intestate, who could have no greater rights than the lessee under whose implied invitation he came upon the premises, had no right to use the freight elevator for his own transportation, so that the intestate was at most a licensee and the plaintiff could not recover.</p> <p>In the case described above the plaintiff contended that the defendant had waived the requirement of the covenant by permitting lessees and their invitees to use the freight elevator for the transportation of passengers unaccompanied by freight. There was evidence that the lessee and other lessees in the building having similar leases violated the covenant, and it could have been found that the janitor of the building knew what was going on and did not remonstrate, but there was no evidence that the janitor had any authority to modify the provisions of the lease and no evidence that the defendant had any knowledge of the violation of the covenant. Held, that the implied acquiescence of the janitor did not bind the defendant.</p> <p>In the same case the plaintiff contended that the requirement of the lease had been abrogated by a custom or usage of the tenants, of which the defendant should have known, but it did not appear that such a custom or usage existed when the lease was made, and it was held, that, even if such a custom had been shown to have been in existence when the lease was made, oral evidence in regard to it could have no effect to contradict the clear and unambiguous covenant of the lease in writing.</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 awarded compensation to Martha Rice, whose fingers were injured in the course of her employment, when, being sixteen years of age, she was a “spare time worker” in the Valley Woolen Mill at Cherry Valley, a village near Worcester.</p> <p>The case was heard by J. F. Brown, J. The facts in regard to the only point in controversy are stated in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board, in which it was ordered and adjudged “that the employee is at present totally incapacitated for work because of the injury; that the average weekly wages of the claimant are $7.50; and that there is due her to June 8,1917, a total compensa-tion of eighty-four and fourteen hundredths dollars ($84.14) and a weekly compensation of $5.00 during the continuance of her total incapacity.” The insurer appealed.</p> <p>The case was submitted on a brief by the insurer.</p>

<p>United States Mail. Way, Public. Law of the Road. Jurisdiction, Over mail carriers. Constitutional Law.</p> <p>A mail carrier, driving a horse attached to a mail wagon and engaged in distributing the United States mail on a public highway or on a public parkway, is subject to the rules and regulations made respectively by the street commissioners and the park commissioners requiring a traveller to drive on the right hand side of a road and in turning to the left into another street to pass to the right of and beyond the centre of the intersecting street before turning.</p> <p>Although under U. S. St. 1884, c. 9, “all public roads and highways while kept up and maintained as such are declared to be post routes,” and whoever knowingly and wilfully obstructs or retards “the passage of the mail, or any carriage, horse, driver, or carrier” is'subject upon conviction to fine or imprisonment or both under the statutes of the United States, yet the public ways laid out and maintained by the Commonwealth and its subdivisions can be altered or discontinued only by the authorities that laid them out and such authorities also have the power of supervision and control inherent in the Commonwealth and can make and enforce reasonable regulations for the use of such public ways.</p> <p>The regulations relating to the operation by drivers of vehicles on the public ways, which are mentioned above, are reasonable and constitutional and their violation properly is punishable as a criminal offence.</p>

<p>Negligence, Employer’s liability. Election. Workmen’s Compensation Act, Defence of election of remedy under.</p> <p>In an action by an employee of a firm of masons against the members of a firm of teamsters for personal injuries alleged to have been sustained by reason of the negligence of a driver of the defendants, whom the plaintiff was helping to back his team, the defendants contended that the plaintiff had elected to recover compensation from the insurer of his employers under the workmen’s compensation act. It appeared that the plaintiff’s employers were insured under the act and that persons injured in their employ were taken to a certain hospital, to which the plaintiff was taken after his injury, that the plaintiff was treated at the hospital for over nine weeks and paid all charges of the hospital except for the two weeks following his injury. It appeared that the services for the first two weeks were charged by the hospital to the plaintiff’s employers and were not paid. The plaintiff was not asked to pay for the services for the first two weeks. The plaintiff testified that he knew what his rights were under the workmen’s compensation act, but he did not know who sent for the ambulance that took him to the hospital and it did not appear in evidence who sent for it. It did not appear that the plaintiff knew that his employers were insured under the act. Held, that there was no evidence for the jury that the plaintiff had elected to accept the benefits of the workmen’s compensation act.</p>

<p>Libel and Slander, Words not actionable in themselves, Special damage. Malicious Interference. Damages, In tort.</p> <p>The words “Why wouldn’t she have attractive gowns since two men are buying them for her” and "A C buys them for her as well as her husband,” spoken orally concerning a married woman and A C, a married man, do not import adultery and are not actionable in themselves without the allegation and proof of special damage.</p> <p>In the declaration in an action of tort for slander brought by A C for injury done him by the speaking of the words quoted above, allegations that the plaintiff, being engaged in business as a manufacturer, has had his “business relations with persons who had theretofore held him in good esteem . . . destroyed and disrupted; that his credit was damaged; that persons who had theretofore done business with him ceased to do so,” because "they did not care to have ■ business relations with a man of such depraved and vicious character,” are good as averments of special damage and state a cause of action without stating the names of the persons who severed their relations with the plaintiff by reason of the speaking of the words.</p> <p>In the case described above it was said that, if the defendant required greater certainty of averment for the purposes of defence to the action, he could file a motion for specifications and the trial judge could order the plaintiff to furnish the names of the persons referred to in his allegations of damage.</p> <p>In an action of tort for slander brought by the married woman concerning whom the words quoted above were alleged to have been spoken, the declaration alleged that the defendant intended falsely and maliciously to “charge the plaintiff with being a woman of immoral character; ” and it was held that the allegations did not impute the commission of any criminal offence and consequently did not state a cause of action without allegations of special damage.</p> <p>In the same case it also was held that averments of loss of reputation, the alienation of friends who shunned her society, the suffering of mental anguish and of consequent physical illness were descriptive only of general and not of special damages.</p>

<p>Contract, Construction, Performance and breach. Evidence, Opinion: experts. Practice, Civil, Exceptions, Conduct of trial.</p> <p>In an action to recover the amount which should have been payable to the plaintiff as royalties on the use of a trademark called “Cresco” in the sale of a certain kind of corset with a disconnected waist, it appeared that the plaintiff had sold to the defendant the right to use the trademark, agreeing that, so long as the defendant observed and fulfilled the terms and provisions of the agreement, the plaintiff would not engage directly or indirectly in the manufacture of corsets, and that the defendant “hereby agrees that it will pay [the plaintiff] royalties upon the sales made hereafter by [the defendant] of all corsets branded Cresco ’ having a disconnected waist, . . . and will continue to pay said royalties until [the plaintiff] has received from said royalties a total sum of” $7,500, “and covenants and agrees that until such time as the full amount of royalties herein agreed upon shall be paid, that it will use its utmost endeavors to manufacture and sell such corsets.” About a year and a half later the defendant reported sales upon which the total royalties due the plaintiff and unpaid amounted to $66.62, and the plaintiff asserted that the defendant had violated its agreement to “use its utmost endeavors to manufacture and sell such corsets” by doing practically nothing to sell corsets under the trademark “ Cresco” and claimed as damages the amount of the royalties which the plaintiff would have received if the contract had been performed according to its alleged true intent. The defendant contended that the only effect of its violation of the agreement was to release the plaintiff from his obligation not to engage in the manufacture and sale of corsets. Held, that the covenant of the defendant to use its utmost endeavors to manufacture and sell corsets under the plaintiff’s trademark was an affirmative and independent agreement for the plaintiff’s benefit, for the breach of which he was entitled to recover such a sum of money as would have been due and payable to him had the covenant been kept and performed.</p> <p>In the action above described, a witness for the plaintiff, who was an expert in regard to the sale of “Cresco” corsets, was asked, subject to the defendant’s exception, "What is the way to sell these Cresco corsets? How should they be sold? How should they be got on the market? ” and was permitted by the presiding judge to answer the questions. It appeared that the “Cresco" corset was a “specialty” corset which was sold on the market by methods not common in the sale of standard corsets. Held, that the jury could not be presumed to have knowledge of unusual and uncommon forms of trade bargains, and therefore that the subject was a proper one for expert testimony, the evidence being helpful, if not necessary, to assist the jury to determine whether the defendant had used its utmost endeavors to manufacture and sell the “Cresco” corset.</p> <p>At the trial of an action for the alleged breach of a contract in writing, certain evidence was admitted by the presiding judge, subject to the defendant’s exception, which might have been excluded as relating to oral conversations that afterwards were merged in and superseded by the contract in writing, and the presiding judge said, “I think [the defendant’s counsel] was right there. I will let the evidence stay in subject to your exception; then I will talle with you later about what would be the correct construction of this contract. I think that is better than for us to pause to discuss the question now. We can do it more intelligently later on.” The matter was not again called to the attention of the judge, who in his charge instructed the jury-in accordance with the contention of the defendant. Held, that the defendant had no ground for exception.</p> <p>The ordinary rule here was mentioned that the denial by a presiding judge of a motion for a new trial is not a matter of exception.</p>

<p>Dog, Keeper. Husband and Wife. Practice, Civil, Order of judgment under St. 1913, c. 716, § 1.</p> <p>In an action under R. L. c. 102, § 146, by a boy against a husband and wife to recover double damages for having been bitten by a dog alleged to have been kept by the defendants jointly or by one of them individually, it appeared that the boy was bitten by a dog, that this dog was given by an acquaintance of the defendant husband to the eleven year old son of the defendants, that the defendant husband took the dog to a farm owned by the defendant wife and operated by the defendant husband through a foreman, which the defendants used as a summer home, that the defendant husband’s foreman lived with his wife in a cottage on the farm and that the employment of the foreman included the services of his wife without any separate pay for her, that the foreman ran the farm, the bills being paid by the defendant husband, and that the foreman’s wife fed the dog at the cottage, that the defendant wife had nothing to do with the management of the farm and had nothing to do with the dog, which she did not like and wished her son to get rid of, and that the defendants’ son who owned the dog was only occasionally at the farm and was not there at the time the plaintiff was bitten by the dog. Held, that there was no evidence that the defendants jointly were the keepers of the dog and no evidence that the defendant wife was its keeper, but that a finding was warranted that the defendant husband was the keeper of the dog.</p> <p>In the same case it was said that the mere fact of ownership by the wife of the farm on which the dog was kept by the husband was not sufficient to raise an inference of the joint keeping of the dog by the husband and wife and thereby to overcome the presumption of the exercise of dominant authority by the husband and of compliance by the wife.</p> <p>In this action of tort, where the jury had returned a verdict against a husband and wife jointly, this court under the power conferred by St. 1913, c. 716, § 1, ordered that judgment be entered against the defendant husband and for the defendant wife.</p>

<p>Husband and Wife. Agency. Evidence, Presumptions and burden of proof. Limitations, Statute of. Payment.</p> <p>In an action by a physician for charges for services rendered to the wife and minor child of the defendant, where the evidence warrants a finding that the defendant had seen the plaintiff at the defendant’s house and knew that the visits were made by the plaintiff as a physician in response to calls from the defendant’s wife, and where there is no evidence that the defendant ever had forbidden the plaintiff to render or his wife or child in the plaintiff’s presence to receive the services of the plaintiff on his account, the facts, that the defendant privately had instructed his wife never to run any bills and from time to time when she told him she needed it had given her money to pay all expenses, do not rebut the presumption of the agency of the wife, which is an inference from her relation to her husband as the manager of his household, to pledge her husband’s credit for medical services that are reasonably necessary for her or the family, and therefore in such an action it is right for the presiding judge to refuse to rule at the request of the defendant "that the defendant was not liable to the plaintiff for this bill, even if it was for necessaries furnished to his wife and minor child, unless the defendant refused or failed or neglected to furnish them himself.”</p> <p>In an action by a physician on an account annexed for charges for services rendered to the wife and minor child of the defendant, where the defendant had pleaded the statute of limitations and the plaintiff’s claim was barred by the statute unless a certain payment of $5, which was credited in the plaintiff’s account, had been made to the plaintiff by or in behalf of the defendant at the date alleged, the plaintiff testified that “he had received a payment of $5” on the account at the time alleged, but he offered no evidence to prove that the payment was made by the defendant, by the defendant’s wife or by any one who had authority to act for the defendant. Held, that there was no evidence on which the jury could find an acknowledgment on the part of the defendant of an existing liability at the time of the alleged payment of $5, and that they should have been instructed to that effect.</p>

<p>Agency, Existence of relation. Motor Vehicle.</p> <p>Where the general manager of a corporation conducting ten lunch rooms, whose duty it was to supervise the lunch rooms, lent a motor car owned by him to the assistant manager of the same corporation, whose duty it was to visit each of the ten lunch rooms daily and get from them the cash receipts of the day, and where, as the assistant manager was driving the car on one of these trips, he negligently injured a traveller on the highway, in an action brought by the injured traveller against the manager of the lunch rooms as the owner of the car, it was held that there was no evidence that the assistant manager was acting as the agent of the defendant in driving the car, both he and the defend- ■ ant being servants and agents of the corporation in whose employ they acted in different capacities.</p> <p>In the case above described the defendant testified that at the time of the accident the assistant manager was acting under his general direction and it appeared that the assistant manager reported the accident to the defendant, and it was held that this evidence did not tend to show that the assistant manager was acting as the agent of the defendant in driving the car for the purpose of collecting the daily cash receipts of the corporation that employed him. Distinguishing Higgins v. Bickford, 227 Mass. 52.</p>

<p>Practice, Civil, Exceptions, Instruction to disregard certain evidence. Evidence, Admission by failure to produce certain evidence. Witness, Credibility, Failure to call.</p> <p>Where at a trial of an action of tort evidence is offered by the plaintiff, against the objection of the defendant, of certain matters for which the plaintiff claims damages and the evidence, subject to the defendant’s exception, is admitted, but afterwards the presiding judge tells the jury to disregard this evidence and again in his' charge instructs them that the plaintiff can recover nothing for such matters, the rights of the defendant are protected fully, and his exception to the admission of the evidence cannot be sustained, because, if the evidence was admitted erroneously, the jury must have understood clearly that it was not to be considered.</p> <p>In an action of tort, where it was material for the plaintiff to show that he had paid off a mortgage on personal property belonging to him held by the defendant as mortgagee, the failure of the defendant to produce his ledger, when called for by the plaintiff, is competent for the consideration of the jury, and, if the defendant contends that he cannot produce the ledger because it has been lost or destroyed, it is for the jury to say on the evidence whether the ledger could have been produced, and, if they find that it was within the power of the defendant to produce the ledger and he failed to do so, they may infer . that, if produced, the ledger would not have supported the defendant’s contention in regard to the account between the parties.</p> <p>Where a witness for a party to an action has testified that he was in the employ of that party when the events to which he has testified occurred, it is right for the presiding judge to instruct the jury that they may consider the fact that the witness was in the employ of the party at the time referred to in determining the degree of credibility to be given to his testimony.</p> <p>At the trial of an action of tort for the alleged wrongful taking of certain household furniture under the claim of a mortgage which the plaintiff contended had been paid and discharged, the evidence showed that the defendant employed a certain expressman- to go to the plaintiff’s house and remove the furniture, and the defendant did not call as witnesses the men employed by this express-man who took the furniture away. There was no evidence to show that the men were in the employ of that expressman at the time of the trial or that the defendant had any knowledge of them or their whereabouts or could have produced them as witnesses. There was no evidence that these men were within the control of either the plaintiff or the defendant. The presiding judge by his instructions to the jury allowed them to infer that the testimony of these men, if they had been produced as witnesses, would have been unfavorable to the contention of the defendant. Held, that the instructions of the judge in this respect were erroneous and that an exception to this portion of his charge must be sustained, because under the circumstances shown no inference properly could have been drawn from the failure to call these witnesses that their testimony, if given, would have been favorable to the contention of either party.</p>

<p>Attorney at Law. Agency, Scope of authority. Judgment, Satisfaction of.</p> <p>An attorney at law has no authority to bind his client by assenting to the discharge from arrest of .a judgment debtor of the client without payment in full ' of the judgment, unless it was done with the personal knowledge and consent of the client as judgment creditor.</p> <p>In the present case, where an attorney at law acting for a judgment creditor assented, without authority to do so, to the release from arrest of the judgment debtor after he had been brought before a court and before any hearing had been had, it was said that it was not necessary to consider whether, if the judgment creditor had been bound by the act of his attorney, the release would have satisfied the judgment so that no action could be maintained upon it.</p>

<p>Contract, originally brought by Michael A., Thomas F. and James F. Cavanaugh, doing business as a copartnership under the name Cavanaugh Brothers, to whom afterwards was added as a plaintiff James Reid, with a declaration, as amended, in three counts. In the first count the plaintiffs alleged in substance that they purchased of the defendant a carload of straight clipped white oats that were guaranteed to be cool and sweet and paid the defendant therefor, but that the defendant never had delivered the oats to them. In the second count they alleged in substance that they and the defendant entered into an agreement whereby the defendant was to deliver to them two carloads of oats in August) 1912, and two carloads in December, 1912, for which they were to pay the defendant certain prices, respectively, less the freight on each car, by draft attached to the bill of lading; that the agreement was fully performed by both parties as to all excepting the second carload; that the second carload arrived in the freight yard at Manchester, New Hampshire, where the plaintiffs were, in September, 1912, and that the plaintiffs were obliged to pay $537.93 upon the draft attached to the bill of lading thereof without having had an opportunity to examine the contents of the car; that the contents were examined as soon as possible thereafter and were found to be in a condition not fit for use; that the plaintiffs thereupon immediately notified the defendant and demanded of the defendant the sum of money paid to it for the carload, but the defendant refused to repay such sum to the plaintiffs. In the third count the plaintiffs alleged that they paid to the defendant $537.93 for which there was no consideration and that, although often requested to return such sum, the defendant had refused so to do. Writ dated December 1,1914.</p> <p>The answer, besides containing allegations of general denial and payment, set up the statute of frauds.</p> <p>In the Superior Court the case was tried before Keating, J.</p> <p>There was evidence introduced by the plaintiffs that one of them called the office of the defendant in Boston on the telephone, asked for the oats salesman, inquired how the market was on oats, was quoted a price for immediate shipment, ordered two cars to be delivered in a couple of weeks, when the defendant “could get them to us,” and two for December shipment; that he had been buying oats from the defendant right along, and that it did not need much talk, because he was always getting what he bought; that he told the salesman that he wanted “number Two white oats, clipped white oats, to be cool and sweet,” and was told that he could have them. The testimony of the defendant’s salesman did not agree with this last statement. The salesman testified that nothing was said about the grain being cool and sweet.</p> <p>After the telephone communication, the defendant sent by mail to the plaintiffs two papers, called in the record “confirmations,” one referring to the cars for immediate shipment, and one to those for December shipment. These were received by the plaintiffs’ bookkeeper. The plaintiffs’ evidence tended to show that the bookeeper said nothing to the plaintiffs about them. The paper referring to the carload in question in this action was as follows:</p> <p>Established 1861.</p> <p>Telephone, 1685 Fort Hill.</p> <p>OFFICE OF</p> <p>THE D. W. RANLET CO.</p> <p>GRAIN AND FEED.</p> <p>708 CHAMBER OF COMMERCE.</p> <p>Incorporated 1906.</p> <p>14378</p> <p>Bofron, 7/25/_1ftii</p> <p>Cavanaugh Bros.</p> <p>Manchester N.H. 2 Cars abt- 1500 Bus. cash Ranlet Grade tt <« 31/38 straight clipped white oats «< «< Price 41 3/4 Arr cool & sweet Time of Shioment August Destinahnn Manchester, N.H.</p> <p>Line:</p> <p>Terms:</p> <p>Arrival</p> <p>This sale subject to rules of Boston Chamber of Commerce governing trade in grain.</p> <p>State or official board of trade, inspection and test weights shall be final.</p> <p>This is a contract and will be considered mutually binding unless we are advised of its non-acceptance by wire.</p> <p>If any error in above please advise by return mail.</p> <p>We thank you for the order.</p> <p>Yours truly,</p> <p>THE D. W. RANLET CO.. D Smith</p> <p>The carload of oats in question was billed to the order of the defendant at Manchester, New Hampshire, and the bill of lading was indorsed by the defendant and was attached to a draft "for the purchase price less the freight and the draft with the bill of lading attached was placed in a Boston bank for collection and was forwarded to a Manchester bank where the plaintiff Reid paid it and received the bill of lading.</p> <p>Other 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, the parties having stipulated that if, upon the competent and admissible evidence, the ruling was right, judgment should be entered for the defendant; but, if upon the evidence the jury were warranted in returning a verdict for the plaintiff Reid, judgment was to be entered for the plaintiff in the sum of $645.52.</p> <p>. It further was stipulated that it was to be made a part of the record that the plaintiffs Cavanaugh disclaimed any right, title or interest in the action and in the subject matter of the contract concerning which the action was brought, and assented to the maintenance of the action by the plaintiff Reid for his personal benefit. •</p> <p>After the trial of the case (it having appeared in evidence at the trial that the Boston and Maine Railroad had in its possession $306.23, over and above its charges, from the. sale of the car of oats in question), the parties by mutual agreement and with the express stipulation that it should be without prejudice in any event to either party, by joint order withdrew from the Boston and Maine Railroad and paid over to the plaintiffs that sum and the plaintiffs released the trustee to that extent, and it was agreed that in the event of a judgment for the plaintiffs that sum should be credited on the judgment, so that, in the event of judgment for the plaintiffs, execution should be issued in the sum of $339.29 with interest from February 14, 1916, and costs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on October 1, 1912, against the corporation, the Trustees of Amherst College (hereinafter called Amherst College), David Sears and the Attorney General of the Commonwealth by the trustees under a declaration of trust, known as the David Sears Real Estate Trust, who claimed an undivided one half interest in two parcels of real estate and alleged that they were entitled to an accounting as to rents under the circumstances hereinafter described, as successor to David Sears, by virtue of the twentieth paragraph of his will, placing the residue of his real estate in trust, and a conveyance in 1889 by the trustees under the will through one Minot as a conduit to themselves.</p> <p>David Sears was the common source of title of both the plaintiffs and the defendant college. The defendant college claimed under two deeds, dated, respectively, 1844 and 1847. The 1844 deed conveyed to Amherst College the legal title of certain property on the corner of Leverett and Barton Streets in Boston, together with the lessor’s interest in a lease of that property expiring in 1928. The 1847 deed conveyed to Amherst College the legal title of certain property on Brattle Street in Boston, together with the lessor’s interest in a lease of that property expiring in 1919. The plaintiffs contend that the conveyances made by these deeds of 1844 and 1847 to Amherst College were upon certain trusts, that those trusts were invalid in part by reason of an interest in the income given therein to David Sears or his nearest heir by the name of Sears for the time being who shall demand it, which was a violation of the rule against perpetuities, and that a trust resulted to David Sears and his heirs as to an undivided half of the fee of the Leverett Street property, subject to the lease expiring in 1928, and as to an undivided half of the fee of the Brattle Street property, including an undivided half of the lessor’s interest in the lease expiring in 1919.</p> <p>The suit was referred to a master upon the issues other than those relating to an accounting for rent. The material findings of the master, the evidence reported by him and the objections and exceptions to his report by the defendant Amherst College are described in the opinion. The suit was reserved by Crosby, J., upon the pleadings, the master’s report and the exceptions thereto, for determination by the full court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 28, 1917, for a rescission of a contract entered into by the plaintiffs and the defendant, acting by the Boston transit commission, for the construction of a section of the Dorchester tunnel, so called, after the work had been completed by the plaintiffs, and for a recovery upon a quantum meruit for work done and labor and materials furnished.</p> <p>The defendant demurred to the bill. The demurrer was heard and was sustained by Carroll, J., who reported the case to the full court for determination, with a stipulation that, if the full court should overrule the demurrer, the defendant was to answer over and the cause was to be heard upon the merits, and, if the full court should sustain the demurrer, a decree was to be entered dismissing the bill unless the court should thereafter allow an amendment to the bill.</p>

<p> Grade Crossing. Public Service Commission. Lynn. </p> <p>The rulings or orders of a State board or commission, to review, annul, modify or amend which jurisdiction in equity is given to the Supreme Judicial Court by St. 1906, c. 463, Part III, § 157, and by St. 1913, c. 784, § 27, are such rulings or orders as are made by the board or commission acting as such.</p> <p>The public service commission, in making an apportionment of costs incurred by reason of the changes at Silsbee Street in Lynn under St. 1912, c. 492, § 15, in connection with the abolition of grade crossings of highways with the railroad, was substituted in place of the special commission provided for in St. 1906, c. 463, Part I, § 29; and orders and rulings made by them in making such an apportionment were not orders and rulings made by them as a State board or commission.</p> <p>The Supreme Judicial Court has no jurisdiction in equity under St. 1906, c. 463, Part III, § 157, or under St. 1913, c. 784, § 27, to review, annul, modify or' amend an order or ruling made by the public service commission when acting as a special commission under St. 1912, c. 492, § 15, as above described.</p>

<p>Tort for personal injuries received by the plaintiff, when he was walking on Ocean Avenue near Beach Street in Revere, by reason of a crutch which he was using passing through an opening in a drain cover which was concealed by papers, circulars and refuse. Writ dated August 9, 1911.</p> <p>In the Superior Court the case was tried before Fessenden, J. The material evidence is described in the opinion. The jury, in reply to a special question, found that the damages sustained by the plaintiff were $2,000. The judge ordered a verdict for the defendant and reported the case to this court for determination upon these conditions: If the judge’s action in ordering a verdict for the defendant was wrong, final judgment was to be entered for the plaintiff in the sum of $2,000 damages; if it was right, judgment was to be entered for the defendant.</p>

<p> Workman’s Compensation Act. </p> <p>A man, who was employed as a door-tender to stand outside the door of the cooling room of a pork packer to open the door when persons passed in or out, was accustomed in warm weather to keep a bottle of drinking water under a sink or tank in the cooling room, because there was no other convenient way of getting drinking water in that part of the building for his luncheon. For some time this door-tender and other employees, with the knowledge of the foreman, had had bottles of tea and coffee which were placed in the cooling room to be kept cool for use with their meals, and this was permitted by the superintendent and by the management, although the practice of the door-tender of placing a bottle of drinking water under the sink in the cooling room for his personal use was not known to the superintendent or to the management. On a morning in July the door-tender went into the cooling room, took a bottle from under the sink and drank from it, supposing it to be his bottle of water. The bottle contained muriatic acid and had been left there by the tinsmith employees of the pork packer, who had been doing some soldering. The acid caused the death of the door-tender, and his dependent next of kin made a claim for compensation under the workmen’s compensation act. Held, that a finding was warranted that the death of the employee resulted from an injury arising out of and in the course of his employment.</p> <p>In the claim above described it also was held, that there was no error in ordering the insurer to pay to the two surviving partly dependent daughters of the deceased employee equal sums of money, there having been ample evidence to support the findings as to the partial dependency of each of the daughters upon the money which was contributed each week by the deceased employee to the family fund for the support of the family.</p>

<p>Tort by a physician against Carrie A. Roberts, in control of a two-family house numbered 629 on Main Street in Malden, Charles M. Josselyn, a real estate agent, and Frank A. McAllister, a constable, alleging a conspiracy to injure the plaintiff by evicting the plaintiff from the lower tenement of the house, where he lived with his wife and had an office for practising medicine, the declaration being described further in the opinion. Writ dated September 19, 1916.</p> <p>In the Superior Court the case was tried before Morion, J. The material facts shown by the evidence are stated in the opinion. At the close of the evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions, including certain exceptions to the exclusion of evidence which are mentioned in the opinion.</p>

<p>Bill in equity, filed in the Superior Court on September 9, 1916, by a corporation engaged in the operation of a moving picture theatre in Haverhill against certain officers and members of a voluntary unincorporated association, called Local 302, American Federation of Musicians, and all other members of that local association too numerous to be named individually, to enjoin the defendants from enforcing a rule adopted by such local association, by which all members of the association were forbidden to perform in the plaintiff’s theatre unless the plaintiff should employ not less than five musicians for the purpose of furnishing musical accompaniments at its entertainments.</p> <p>The case was referred to a master, who filed a report. The material facts found by him are stated and described in the opinion. The special findings which are referred to in the opinion as being set forth in full in the statement of the case were as follows:</p> <p>“2. This rule is enforced against the members of the union by either fine or expulsion.”</p> <p>“4. There has been neither a boycott nor strike put in force or threatened to be put in force by the defendants or any of them against the plaintiff.</p> <p>“5. The defendants or any of them have in no wise disturbed or interfered with any existing contractual relation to which the plaintiff is a party.</p> <p>“6. The defendants or any of them have in no wise threatened the plaintiff or its business.”</p> <p>“8. Coburn, the organist, refrained from working in the plaintiff’s employ after September 10, 1916, because of the existence of said rule and the penalties incident to its violation.”</p> <p>The case came on to be heard by Lawton, J., who by agreement of the parties made an interlocutory decree confirming the master’s report and at the request of the parties reserved and reported the case upon the pleadings and the master’s report for determination by this court, such final decree to be entered as might be just and proper.</p> <p>The case was argued at the bar in January, 1917, before Rugg, C. J., Loring, Braley, De Courcy, & Crosby, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Negligence, Elevated railway. Elevated Railway. Evidence, Competency, Opinion: experts. Practice, Civil, Conduct of trial, Exceptions, New trial. Witness. Constitutional Law.</p> <p>In an action against a corporation operating an elevated railway for personal injuries sustained by stepping into an open space between a temporary station platform of the defendant and the step of a car forming part of a train of the defendant that was on tracks placed in a temporary location while extensive changes were being made in the arrangement of the station, where it appears that the design of the platform, the space between it and the cars and the relation of the rails to the platform were not permanent and were established by the defendant in accordance with its own plans, which were not approved by any public board, it is a question of fact on proper evidence, whether it was reasonable for the defendant, in the performance of the duty owed by it to its passengers, to provide guards or to give warning to persons about to enter the cars from the platform of the width of the space that they would have to step over.</p> <p>In an action of tort for personal injuries alleged to have been sustained by reason of the defendant’s negligence, all the circumstances under which the injuries were received ordinarily may be put in evidence and a considerable degree of discretion is vested in the presiding judge at the trial as to admitting evidence to show the incidents immediately preceding and attendant upon the accident.</p> <p>In the case above described the admission by the presiding judge of a question addressed to the plaintiff as a witness, whether as she was about to enter the car she was "in a position where” she “would have heard if anything had been said in regard to the space,” was held not to be reversible error, this being treated as an abbreviated question calling for a statement of the facts as to the precise position of the plaintiff with reference to the brakeman.</p> <p>In the same case it was held that the plaintiff properly was allowed to show by the defendant’s engineer that the temporary location of the defendant’s platform and tracks at that station, as they were for a period of about eight weeks including the time of the plaintiff’s injuries, was not approved by the railroad commission.</p> <p>In the same case it was held that an expert engineer properly was permitted to testify that in his opinion the temporary platform in use at the time of the plaintiff’s injuries was not a reasonably proper structure, this being a matter of engineering skill applied to complicated conditions and outside the range of common knowledge.</p> <p>In the same case an expert engineer, called as a witness by the plaintiff, after having testified and having been cross-examined at length on matters within his special department of knowledge, was permitted on his redirect examination to testify that he had been employed by the defendant as an expert in engineering, and it was held, that, although it would have been a wiser exercise of discretion by the presiding judge to have excluded this question, it being the better practice not to receive such evidence, yet the evidence was not strictly incompetent and its admission was not reversible error.</p> <p>In the same case a witness called by the defendant was at the time of the accident a motorman in the defendant’s employ, and was asked, whether the defendant ran any trains of five cars between eleven and twelve o’clock at night. The presiding judge excluded the question. Held, that the exclusion of the question was not reversible error, as it did not appear, and the defendant had made no offer to prove, that the witness’s knowledge of the train operations of the defendant was so comprehensive as to make his testimony on that subject of any value.</p> <p>In the same case a question was raised whether the defendant ought not to have installed a sliding platform to bridge the space into which the plaintiff fell, and the defendant introduced testimony to the effect that its expert did not know of any place where sliding platforms were used for a ten inch space or for any space less than fifteen or sixteen inches. After this, the plaintiff was permitted to introduce evidence that at another station of the defendant a sliding-platform to bridge a space of eleven inches had been used several years after the accident. Held, that this evidence could not be said to be wholly incompetent, as it bore upon the weight to be given to the testimony of witnesses called by the defendant.</p> <p>In the same case it was held that the presiding judge was right in refusing to make certain rulings which might have been applicable to an accident that happened in a subway, the station at which the plaintiff’s injuries were received having been a temporary elevated one.</p> <p>In the same case it also was held that the presiding judge was right in refusing to make certain rulings which assumed the existence of facts that were not established indisputably.</p> <p>In the same case it also was held that the presiding judge was right in refusing to make rulings that, whether correct or not, related to details and fragments of evidence concerning which the judge could not be required to make rulings or give instructions.</p> <p>It is wrong for a judge who has presided at a trial to indorse upon a bill of exceptions presented to him for allowance, that a certain statement contained in it is without foundation in fact but that he will "allow it as a statement of fact to prevent the delay which would be caused by sending this case to a commissioner.” Under B. L. c. 173, § 106, as amended by St. 1911, c. 212, § 1, a judge can allow exceptions only after making a preliminary finding that they “are conformable to the truth” and, if they are not conformable to the truth, he has no authority to allow them.</p> <p>Where the judge who had presided at a trial indorsed upon a bill of exceptions the certificate quoted above, it was held that the excepting party was right in thereafter presenting to this court a petition to establish the truth of his exceptions.</p> <p>At the trial of an action of tort against a corporation operating an elevated railway, for personal injuries caused by the alleged negligence of the servants of the defendant, the presiding judge during the trial “called the defendant’s counsel to the bench, and, not in the hearing of the plaintiff’s counsel and not in the hearing of the jury, but while the jury were in their seats, told the defendant’s counsel that he ought to settle the case, that he ought to be willing to pay anywhere from $3,750 to $5,000 to settle the case, adding that that did not mean that the court would set aside a verdict for twice that amount.” This was shown in support of a motion for a new trial, it being contended that this conduct of the judge was a violation of the defendant’s rights under art. 29 of the Declaration of Bights, which provides that, “It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.” Held, that, although the judge well might have refrained from voluntarily naming an amount that he thought properly could be paid by the defendant in settlement of the plaintiff’s claim, in the absence of any invitation from the parties to do this, yet the suggestion of a compromise was in no way inconsistent with the proper performance of his duties, and that the remarks of the judge quoted above, fairly construed, did not mean that the case had been prejudged by him.</p> <p>In the same case it was held that there was no ground for taking the case out of the general rule that the granting or denial of a motion for a new trial rests in the fair discretion of the trial judge.</p> <p>It also was said that it is only where there is an abuse of sound judicial discretion or an excess of jurisdiction or some similar error of law that this court can revise the exercise of this discretion by the trial judge.</p> <p>In the same case it was pointed out that the defendant did not take an exception at the trial to the remarks of the judge which it made the basis of its motion for a new trial, nor did it move that the trial be suspended or that the jury be discharged by reason of the remarks, but took its chance of obtaining a verdict.</p> <p>In the same case it was contended by the defendant that the record taken as a whole showed such an element of prejudice against it on the part of the presiding judge that a trial fair to it could not have been had, and it was said, that, assuming that such a contention was open to the defendant without its having taken any exception on that ground, a careful examination of the entire record failed to reveal such conduct on the part of the judge as would constitute reversible error or convince this court that the defendant did not receive fair treatment at the trial.</p>

<p>Workmen’s Compensation Act, Alien dependent, Dependency. Deposition. Evidence, Proof of foreign marriage, Judicial notice.</p> <p>Under St. 1915, c. 275, which provides that in a claim under the workmen’s compensation act a commission to take the deposition of a witness in a foreign country may issue from the Superior Court upon the written request of the Industrial Accident Board “or of any member thereof, together with interrogatories and cross-interrogatories, if any there be, filed with the clerk of the Superior Court for any county,” an oral application by the Industrial Accident Board and the filing of interrogatories by the secretary of the board are not a written request for a commission within the meaning of the statute.</p> <p>The words of the statute providing that a commission shall issue "upon the written request of the board or of any member thereof” mean that the application actually must be signed by the board or by some member of the board, and a written request by the secretary of the board cannot be held to be the request required.</p> <p>It seems that if such a commission to take the deposition of a witness in a foreign country is issued through inadvertence when by mistake or oversight no written request has been filed, the defect can be cured by the filing of a written request by the board or some member of it and the allowance of that request by the Superior Court by a nunc pro tune order.</p> <p>In a claim under the workmen’s compensation act the objection by the insurer to the deposition of the alleged dependent of the deceased employee in a foreign country, that before the commission to take the deposition issued no written request had been filed by the Industrial Accident Board or any member thereof, is an objection to the form of the deposition and cannot be taken for the first time when the deposition is offered in evidence at the hearing before the Industrial Accident Board, after the insurer has filed cross-interrogatories and the deposition has been taken in the foreign country and has been used without objection at the hearing before the arbitration committee.</p> <p>When a commission has issued for taking the deposition in a foreign country of the alleged dependent widow of a deceased injured employee in a claim under the workmen’s compensation act, there is no impropriety in the preparation of interrogatories to be propounded to such widow by the clerk of the Industrial Accident Board “in behalf of” the claimant and acting for an arbitration committee which has been formed to hear the case, the clerk stating that the alleged widow lives in a foreign land and is “without counsel in these proceedings,” and there being nothing in the interrogatories propounded to indicate a partizan attitude of mind.</p> <p>In regard to the same deposition it was held that there was nothing in an objection to the admission of the deposition on the ground that it did not appear that the deponent could be punished for perjury in the place where it was taken, the commission being in the usual form and directed to a consular officer of the United States accredited to a civilized nation.</p> <p>In regard to the same deposition it was pointed out that one of the interrogatories, which was objectionable in form but was answered properly, doubtless would have been expressed in the proper manner if the objection to its form had been made when the interrogatories were filed.</p> <p>Non-resident aliens, domiciled in the country of a friendly nation, who are dependent for support upon the earnings of a deceased injured employee insured under the provisions of the workmen’s compensation act, are entitled to the benefits of the provisions of that act.</p> <p>R. L. c. 151, § 37, in regard to proof of marriage, does not apply to records of foreign marriages, but it seems that, in order that a certificate of a foreign marriage should be received in evidence, there must be proof either of a statute of the foreign State or nation requiring the record to be made or of some legal obligation or established practice requiring the keeping of the record or of some fact respecting the authenticity of the record of the effect of which the court can take judicial notice.</p> <p>This court does not take judicial notice of the authority of town officials in the Kingdom of Italy in regard to the keeping of records.</p> <p>In the claim described above, although papers purporting to be copies of certificates of the marriage of the deceased employee and of the births of his children, which were received in evidence by the arbitration committee, were held to have been incompetent, it appeared that the widow of the deceased employee in her deposition testified to the fact of her marriage with the deceased and to the birth of their three children and their ages, and that this testimony was uncontradicted, and it was held that this evidence of marriage and birth was competent and that the erroneous admission of the copies of the certificates accordingly was harmless error.</p> <p>In the claim above described the Industrial Accident Board found that the deceased contributed to the support of his wife during the year before his death a certain number of lire which were equivalent to a certain number of dollars. It was contended by the insurer before this court that the board could not take judicial notice of the value of an Italian lira in United States money and that there was no evidence on the subject, but it appeared that the insurer did not take this objection at the hearing before the Industrial Accident Board or in the Superior Court unless it was raised by the general request for a ruling that no award could be made, and it was held that this objection, which if it had been raised at the proper time easily could have been met by the introduction of the required evidence, was not open to the insurer.</p> <p>In the claim above described, upon the question of dependency, the evidence was that the family of the deceased consisted of his wife and their three children, respectively nine, six and two years of age, who lived in Italy. The widow testified in her deposition that since her husband last left Italy her means of support had been money sent by her husband from the United States, that during the last year before his death she had received over two thousand lire and that before he left Italy they were supported "with the money we earned in working in the fields,” and that the deceased had no other property except "the house in which I lived at the time of his death.” There was no evidence to show how valuable the house was in which the widow lived, the nature of the deceased employee’s title to it, what its rental value was, what was its condition or state of repair, whether it was encumbered by mortgage or otherwise, or the character of the neighborhood, city or town in which it was. Nothing appeared except that the family lived in the house. The Industrial Accident Board found that the widow was wholly dependent upon the wages of her husband for support. Held, that the finding of total dependency was not warranted by the evidence, and that a further hearing should be given before the Industrial Accident Board in which the claimant ought to be allowed to introduce further evidence and the insurer should have the same privilege.</p> <p>In the same claim the board found as a fact that the three children of the deceased employee also were wholly dependent, and it was held that there should be a further hearing on this question also.</p> <p>In the same case it was said that, in a claim of this nature, where there are a widow and minor children wholly or in part dependent, the decree should be of easy comprehension and ought to contain a clause stating expressly that under the terms of the act the payment to the widow is to cease in case of her death before the expiration of the period of payment.</p>

<p>Power. Executor and Administrator, New assets. Limitations, Statute of, Special: new assets. Words, “New assets.”</p> <p>A power given by will to a beneficiary for life, to dispose by his will of property of the testator, gives the donee of the power no interest at law in the property over which he has the power of testamentary appointment and upon his death such property constitutes no part of his estate; but equity will enforce the equitable duty of such a donee of a power to exercise the power for the purpose of paying his debts before he gives away the property to other persons, and thus the creditors of such a deceased donee of a power acquire immediately upon his death the equitable right to enforce their claims against the property over which he has exercised the power of appointment.</p> <p>An administrator de bonis non with the will annexed of the estate of a testator upon his appointment filed an inventory, in which he included a “claim” of uncertain value, consisting of a suit.to recover'a fund maladministered by the executor of the will of the testator’s mother, of which by his will the testator had made an appointment under a power given him by his mother’s will. The administrator de bonis non had collected a part of this appointed fund and had included it in his inventory and in the same inventory made reference to the claim to the balance of the appointed property as a claim against the estate of the executor of the will of the donor. A considerable portion of the balance of this fund was collected by the administrator de bonis non three years later, and thereupon the creditors of the testator brought a suit in equity under R. L. c. 141, §§ 11,18, to establish their claim, otherwise barred by the special statute of limitations, against this fund as "new assets” of the testator’s estate. Held, that the collection of the portion of the appointed fund by the administrator de bonis non and its conversion into cash did not make the money thus collected new assets within the meaning of the statute.</p> <p>In the case above described the testator in his will made use of the common phrase directing the payment of his just debts, and it was pointed out that the use of this ancient and common form could not be regarded as an exercise of the power of appointment by the testator, it being nothing more than an expression of the obligation imposed by law.</p> <p>In the same case it was said that it was unnecessary to determine in that case whether the words “new assets” as used in the statute included such equitable assets as a fund appointed by a debtor testator to persons other than his creditors by the exercise of a power of testamentary appointment.</p>

<p>Workmen’s Compensation Act, Dependency.</p> <p>Under the provisions of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 7 (a), that a wife shall be presumed to have been wholly dependent for support “upon a husband with whom she lives at the time of his death,” the living together of husband and wife imports actual enjoyment of the marriage relation under a common roof and cannot include prolonged absences, even though one of the two remains at home and the other expects to return, and, where the physical separation has been continued for more than a year for reasons of mere business expediency, it cannot be found that a wife who stayed at their home in Nova Scotia was living with her husband, who was employed in this Commonwealth, at the time of his death.</p> <p>In a claim under the workmen’s compensation act by the alleged dependent widow-of a deceased employee, where it appears that the wife and five minor children of the employee lived in Nova Scotia in a house belonging to the wife, which was in good repair and had eight rooms in it, it cannot be found that the wife was wholly dependent for support upon her deceased husband. Following Derinza’s Case, ante, 435.</p> <p>Nor can it be found in the case stated above that the minor children of the employee were wholly dependent upon him for support.</p>

<p>Tort against the members of the governing committee of an incorporated social club in Boston known as the Boston Athletic Association for the alleged unlawful expulsion of the plaintiff as a member on May 25, 1914. Writ dated June 26, 1914.</p> <p>In the Superior Court the case was referred to an auditor. He filed a report stating his findings of fact and also the following conclusions:</p> <p>“1. That the defendants were justified in voting to expel the plaintiff, and that the various steps taken by them resulting in his expulsion were properly taken.</p> <p>“2. That there was no conspiracy on the part of the defendants, or any of them, as alleged in the first count of the plaintiff’s declaration.</p> <p>“3. That the defendants did not maliciously and falsely charge the plaintiff with conduct injurious to the good order, peace, and interest of the association; and did not maliciously, wrongfully, and in bad faith hear said charge, find it to be true, and thereupon expel him from the association, all as alleged in the declaration.</p> <p>“4. That the defendants gave the plaintiff a fair, adequate and proper opportunity to be heard in his own defence, which was denied in the declaration.</p> <p>“5. That the defendants, individually or collectively, are not liable to the plaintiff in this action.</p> <p>“And I so find.”</p> <p>Later the case was tried before Fox, J. The evidence is described in the opinion. The judge refused to order a verdict for the defendants and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1.</p> <p>The plaintiff filed a motion for a new trial, on the ground that the damages were inadequate. This motion was heard by the judge, who ruled that, while in his opinion the plaintiff was not entitled to any damages or to a verdict, he would not order a new trial because of the expense to the county.</p> <p>The defendants and the plaintiff both alleged exceptions.</p>

<p>Petition, filed in the Land Court on August 11, 1909, for the registration of the title to a parcel of land with buildings thereon on the southerly side of Cambridge Street in Cambridge.</p> <p>The petition was heard in the Land Court by Davis, J., who ordered a decree for the petitioner. Upon an appeal to the Superior Court by the respondent under St. 1905, c. 288, four issues were tried before Hardy, J. The findings upon the issues were favorable to the respondent; and the petitioner alleged exceptions, which, in a decision reported in 218 Mass. 448, were sustained by this court in relation only to the trial of the first issue and it was ordered that the verdict should stand as to all the issues except the first, to which the new trial was to be confined.</p> <p>The first issue was as follows: “1. Did James H. Duckrey before his attachment of the property in question have actual knowledge of the existence of the deed back from Jones to Williams July 5, 1901?”</p> <p>There was a new trial of this issue before Wait, J. There was evidence from the respondent’s witnesses tending to show that Duckrey had the knowledge specified in the issue, and there was evidence from the witnesses for the petitioner and also the report of the judge of the Land Court, which was read in evidence, tending to show that Duckrey had no such knowledge.</p> <p>The judge instructed the jury that the burden of proof was upon the petitioner to satisfy them that Duckrey did not have the knowledge called for by the issue.</p> <p>The jury answered the issue, “Yes,” and the petitioner alleged exceptions to the instruction in regard to the burden of proof given to the jury as above stated.</p>

<p>Bill in equity, filed in the Superior Court in its substituted form on October 18, 1915, to set aside a deed to the defendant Alta N. J. Fisher dated September 23, 1914, for the reasons set forth in the allegations of the bill, as described in the opinion.</p> <p>The case was referred to a master, who filed a report in which he found, among other things, that the deed to the defendant Alta N. J. Fisher, sought to be set aside, was not obtained through fraud or deceit and was a valid instrument.</p> <p>The case was heard by Jenney, J., upon the plaintiffs’ exceptions to the master’s report. He made an interlocutory decree that the exceptions to the report be overruled and that the report be confirmed. Later by order of the judge a final decree was entered, containing orders relating to the various parties in accordance with the findings of the master’s report. The plaintiffs appealed.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on March 19, 1917, under St. 1909, c. 490, Part IV, §§ 20, 21, by the executors of the will of Warren M. Hill, late of Boston, against the Treasurer and Receiver General for the abatement of a legacy and succession tax alleged to have been assessed unlawfully by an excess of $2,126.10, because in determining the amount of the property on which the tax should be imposed the Tax Commissioner failed to deduct from the amount of a fund appointed to certain persons by the will of the testator the part of such fund which had been applied to the payment of the testator’s debts.</p> <p>The Probate Court made a decree that the tax be abated, and the Treasurer and Receiver General appealed.</p> <p>In the Supreme Judicial Court the case came on to be heard by Crosby, J., who at the request of the parties reserved it for determination by the full court.</p>

<p>Two actions of contract, the first against the Lenox Motor Car Company, a corporation, for alleged breaches of contract in failing, to accept and pay for work and materials furnished by the plaintiff under four contracts in writing and two oral contracts, and the second by the same plaintiffs against Daniel S. Howard, Jr., and others upon a guaranty in writing of performance by the Lenox Motor Car Company of the contracts sued upon in the first action. Writ in the first case in Plymouth County dated November 17, 1916, and writ in the second case in Suffolk County dated July 1, 1915.</p> <p>The defendants in both actions seasonably claimed a trial by jury. Thereafter by agreement the cases were referred to an auditor under Rule 31 of the Superior Court “to hear the parties, to examine their vouchers, to state the accounts and file his report thereon to the court.” Thereafter the auditor filed “an elaborate report in each case dealing with all matters in issue covering respectively thirty-six and forty-one pages.” He found for the plaintiffs in both cases, in the first case, against the Lenox Motor Car Company, in the sum of $13,341.97, and in the second case, against Daniel S. Howard, Jr., and others, in the sum of $10, 000, which was the limit of the guaranty, with interest from the date of the writ.</p> <p>The cases were heard together by Fox, J. The report of the judge contained the following statement: “The records do not show that the defendants in either case took any exceptions to rulings made by the auditor, or to either of the reports or moved to-have either report recommitted or reviewed, other than ” a contention that the plaintiffs had no right to recover against the guarantors until the liability of the Lenox Motor Car Company had been liquidated and that the action against the guarantors was brought prematurely.</p> <p>The plaintiffs made a motion in each case under Rule 31 of the Superior Court for judgment to be entered according to the auditor’s report. Thereupon the judge made in each case the ruling which is quoted in full in the opinion, and denied the motions. The judge, being of opinion that these interlocutory orders made by him ought to be determined by this court before any further proceedings in the Superior Court, with the consent of the parties reported the cases for such determination.</p>

<p>Way, Private. Municipal Corporations. Equity Jurisdiction, Mandatory injunction.</p> <p>Where a private way fifty feet wide, leading from a public street to a pond, belongs, as an easement granted by deed, to the owner of certain land, if the superintendent of streets of the town in which it lies, acting under Gen. Sts. c. 43, § 83, (now R. L. c. 48, § 99,) for the public safety and to protect the town from liability for injuries, because a traveller has been drowned in the pond, places a barrier across the entrance to the way, thus preventing its use with vehicles, although leaving it accessible to pedestrians, and the barrier is maintained for many years, this does not affect the existence of the easement, and, if twenty-seven years after the erection of the barrier the town acquires by purchase and conveyance the land to which the right of way is appurtenant, the town acquires the right to use the private way over its full width for vehicles as well as for travellers on foot.</p> <p>Where a town as the owner of certain land owns as appurtenant to it an easement of the right to use a private way fifty feet wide, and brings a suit in equity for a mandatory injunction to compel the removal of a substantial brick wall built nineteen feet into such private way, it is no defence, that the superintendent of streets of the plaintiff and a member of the board of selectmen having in charge the highway district that includes the right of way, at the request of the defendant and at the cost of the town, placed curbing on an intersecting street extending across into the private way owned by the town to the same extent as the defendant’s wall and that the superintendent of streets, when asked by a contractor employed by the defendant whether he could lay a granolithic sidewalk over this nineteen foot projection into the private way, answered, “Yes,” because these acts did not constitute a license'by the town to interfere with the easement owned by it, which could not be relinquished nor extinguished by an act of any town officer not authorized by the town.</p> <p>In a like suit brought by the same town against another defendant for obstructing the same private way by erecting a building extending into it, it was held that for the same reason it was no defence, that the defendant had obtained the usual permits for constructing his building and had told the clerks or officials of the town that he proposed to put it “in any position he wanted to on the street” and had some general talk with the town engineer and one of the selectmen.</p> <p>In the same cases it was held that the defendants, having been aware of the existence of the indenture that created the right of way owned by the town and having been advised in a general way as to the State of their record title with reference to the easements in the private way when they built their obstructions, must be taken to have made these expenditures without excuse and under no misapprehension; and that, there being no suggestion that prompt action had not been taken when the matter came to the attention of the proper officers of the town, mandatory injunctions should issue ordering the defendants to remove the obstructions.</p>

<p>Tax, On personal property of foreign corporation. Corporation, Foreign: taxation. Constitutional Law.</p> <p>A corporation organized under the laws of another State, which has a contract to furnish a city in this Commonwealth with fire alarm lamps and with “boulevard lanterns, burners, domes and incandescent mantles ” for the lighting of public streets, parks and other public places, retaining its ownership in all the lamps and placing them on posts owned by the city, and which, for the purpose of performing its contract, hires an office in the city and places in it its own office furniture and owns also horses, wagons, carriages, sleighs and harnesses used in carrying out its lighting contract with the city, is liable to taxation upon all this property under St. 1909, c. 516, § 2, and St. 1909, c. 490, Part I, § 23, cl. 1, and, if it fails to pay such tax when regularly assessed to it, the collector of taxes of the city can maintain an action of contract against such foreign corporation for the amount of such tax.</p> <p>There is nothing in the statutes that authorize the collection of such a tax from a foreign corporation which violates any provision of the Fourteenth Amendment of the Constitution of the United States.</p> <p>When a foreign corporation comes into this Commonwealth to transact a local or intrastate business, it assents to be bound by our laws respecting such corporations, including the laws relating to taxation so far as they are valid.</p>

<p>Bill in equity, filed in the Superior Court on September 2, 1916, by Emeline Bradford of Lynn, and afterwards allowed to be prosecuted by the administrator of her estate, to compel the defendant Lilia Eastman to transfer and turn over to the plaintiff certain deposits belonging to Emeline Bradford and her estate in the Lynn Institution for Savings, the Commonwealth Savings Bank of Lynn and the Salem Savings Bank, these three banks also being made defendants.</p> <p>The case was referred to a master, who filed a report which contained the facts that are stated in the opinion. Later the case was heard by Quinn, J., upon the exceptions of the defendant Eastman to the master’s report. The judge made an order that the exceptions be overruled and that the report be confirmed, and that a decree be entered ordering the defendant Eastman to deliver forthwith to the plaintiff the bank books issued by the three banks named as defendants, the plaintiff to have his costs against the defendant Eastman and the bill to be dismissed without costs as to the defendant savings banks.</p> <p>Afterwards by order of the judge a final decree was entered in accordance with the judge’s interlocutory order, and the defendant Eastman appealed.</p>

<p>Tort for personal injuries occasioned by an assault upon the plaintiff, while he was in the employ of the defendant, by a fellow employee whom, it was alleged, the defendant was negligent in employing and in keeping in his employ because his temperament, reputation and character rendered him unsafe and unfit to mingle and work with his fellow workmen. Writ dated April 30, 1915.</p> <p>In the Superior Court the case was tried before J. F. Brown, J. The material evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort by the executrix of the will of Rosa A. Arnold, with a declaration in two counts, the first for causing conscious suffering, and the second for causing the death, of the plaintiff’s testatrix through negligence. Writ dated July 22, 1916. In the Superior Court the case was tried before Sanderson, J., the defendant relying on the release described in the opinion.

<p>Appeal from a decree of the Probate Court for the county of Plymouth allowing the will of Denis O’Neill, late of Abington.</p> <p>After the entry of the appeal in the Supreme Judicial Court the attorneys for the executrix marked the case for trial upon the list for the next jury sitting and filed a motion to dismiss the appeal on the ground that the appellants did not give the executrix notice of the entry of the appeal as required by R. L. c. 162, § 11. The motion was heard by Braley, J. The material evidence is described in the opinion. The single justice refused to rule that as matter of law sufficient notice of the entry of the appeal had been given, or to order further notice, if sufficient notice had not been given, and ordered a decree dismissing the appeal. The appellants alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort, the first for personal injuries received by reason of a fall upon ice on a sidewalk in front of a building owned by the defendant caused by water collected there from a spout on the building near the sidewalk. The second action was brought by the husband of the plaintiff in the first for consequential damages. Writs dated March 14, 1917.</p> <p>In the Superior Court the cases were tried together before Sanderson, J. The material evidence is described in the opinion. At the close of the evidence, the judge was of opinion that the notice relied on by the plaintiffs was insufficient in law. By agreement of the parties, however, the cases were submitted to the jury, who found for the plaintiff in the first action in the sum of $500, and for the plaintiff in the second action in the sum of $150. The defendant thereupon moved that the verdicts be set aside, and the judge allowed the motions “upon the sole ground that as a matter of law due notice of the. time, place, and cause of the injury had not been given as required by statute in the case of injuries from snow or ice,” and reported the case to this court for determination, with the agreement of the parties that if the notice was or might have been found to be a legal notice the motion for a new trial should be denied and judgment entered on the verdict, and if as a matter of law due notice of the time, place and cause of the injury had not been given, judgment should be entered for the defendant.</p>

<p>Conflict of Laws. Comity. Executor and Administrator. Conversion. Jurisdiction, Of court of other State. Evidence, Presumptions and burden of proof. Judgment, Of court of other State.</p> <p>A testatrix died, having her domicil in this Commonwealth and leaving property both in this Commonwealth and in the State of New York. Her will was not offered for probate in this Commonwealth, but was proved in a Surrogate’s Court in the State of New York and her son was appointed by that court the executor of her will. Thereafter the Probate Court for the county of this Commonwealth in which the testatrix was domiciled at the time of her death, upon a petition filed by the Tax Commissioner, appointed a certain person the administrator of her estate, and that person brought actions of tort for alleged conversion of personal property belonging to her estate against the executor appointed in New York and against one who had received as legatee certain personal property in this Commonwealth from or by authority of such New York executor. It was agreed that the plaintiff knew of no unpaid debts of the testatrix either at the time of his appointment or when the actions were brought, unless any inheritance taxes that might be assessed could be considered debts. No statutes of the State of New York as to the jurisdiction of the Surrogate’s Court were put in evidence and there was nothing to show the ground on which the New York court deemed it necessary or advisable to permit the proof of the will in that State before it had been presented for proof in this Commonwealth. Held, that under these circumstances it must be assumed that the Surrogate’s Court found such facts to exist as authorized it under the law of New York to allow original proof of the will, and that as a matter of comity the judgment of that court must be recognized as conclusive, and accordingly that the actions for alleged conversions could not be maintained.</p> <p>In the case above described it was pointed out that St. 1909, c. 527, § 7, amending St. 1907, c. 563, § 16, and relating wholly to taxes on legacies and successions, had no application.</p> <p>In the same case it was said that, there having been no contention that R. L. c. 148, § 3, was applicable, it was not necessary to consider the construction of that statute.</p>

<p> Executor and Administrator. Payment. </p> <p>A voluntary payment of a debt to an executor of the will of the creditor appointed in another State by the law of which he is authorized to receive it is valid.</p> <p>A testatrix at the time of her death had her domicil in this Commonwealth« but her will was not offered for probate here and was proved in a Surrogate’s Court in the State of New York, that was assumed to have had jurisdiction to admit the will to immediate probate, as decided in Morrison v. Hass, ante, 514. A trust company in this Commonwealth, which held money that belonged to the testatrix at the time of her death, paid it to such executor upon demand, and four years later the Probate Court of the county of this Commonwealth in which the testatrix was domiciled at the time of her death, upon a petition filed by the Tax Commissioner, appointed a certain person the administrator of her estate, who demanded from the trust company the payment of the fund that had belonged to the intestate on the ground that its payment to the New York executor was unauthorized. Held, that the defendant had the right to make the payment to the New York executor if it chose to do so without invoking the protection of our courts.</p> <p>In the same case it was pointed out St. 1909, c. 527, § 7, had no application to the action.</p> <p>In the same case it was said that R. L. c. 148, § 3, not having been relied upon by the plaintiff nor referred to by him as-applicable, need not be considered.</p>

<p>Workmen’s Compensation Act, Nature of injury, Dependency.</p> <p>The death of an employee, which was caused by overheating occasioned by unusually hard labor performed after the end of the ordinary work of the day and in a close and overheated atmosphere, may be found to have resulted from an injury covered by insurance under the workmen’s compensation act.</p> <p>Upon the claim of the alleged dependent widow of a deceased employee under the workmen’s compensation act, if it appears that the employee' came to this country from Armenia three and a half years before his death and since that time had lived and worked here continuously, while his wife had remained in Armenia, it cannot be found that his wife was living with him at the time of his death, and therefore under St. 1911, c. 751, Part II, § 7, she is not presumed conclusively to have been wholly dependent upon his earnings for support and the question of her dependency must “be determined in accordance with the fact” as it was at the time of her husband’s injury.</p> <p>One who was dependent upon the earnings of a deceased employee for support at the time of his death is not debarred from receiving compensation under the workmen’s compensation act by reason of residence in a friendly foreign country. Following Derinza’s Case, ante, 435.</p>

<p>Contract, What constitutes, Construction. Damages, In contract.</p> <p>In an action of contract to recover the sum of $250 it appeared that the defendant signed an instrument in writing containing the following provisions: ‘Thereby authorize you to execute for me a full-page Photo-Steel Engraved Plate and to insert prints therefrom in the Biographical and Historical work ‘Biographical History of Massachusetts/ the plate reverting to me as my property. . . . The total expense for the making of the plate and insertion of the portrait, including one dozen artist’s proofs with enlarged margin, is to be $250.00, for which I hand you my check, payable to H M P & Co., Depositories.” The plaintiff testified that he agreed orally to do all the things for which the $250 was to be paid. Held, that a finding was warranted that the oral agreement testified to by the plaintiff made the contract a bilateral one, and that by its terms the defendant promised to pay $250 forthwith in consideration of the plaintiff’s promise and before performance by the plaintiff.</p>

<p>Devise and Legacy, Who takes. Words, “Their issue,” “Issue.”</p> <p>A testator provided by his will that a trust fund, from which during the lives of his four children and the survivor of them the income was to be paid in substantially equal sums to his children and to the children of any deceased child by representation, upon the death of his last surviving child should be conveyed and delivered “ to all my then surviving grandchildren and their issue,” and it was held that the whole will showed a dominant purpose of the testator to treat his children or their issue with substantial equality in distributing the income and strongly indicated a purpose to distribute the principal in a like manner among the living grandchildren and the issue of those who should die before the time of distribution, and accordingly that the clause quoted above should be construed as if it read, “to all my then surviving grandchildren and [In case of their death to] their issue.”</p>

<p>Negligence, Railroad, In maintaining planking at grade crossing. Evidence, Competency.</p> <p>In an action against a railroad corporation for damage to the plaintiff’s wagon and horses by reason of one of the plaintiff’s horses catching one of his fore feet in a space between the planking and a rail of the defendant’s track at a grade crossing of a highway which it was the duty of the defendant to maintain, there was evidence that the distance between the planking and the rail where the horse caught his foot was two and a half inches and that the edge of the planking was worn and sloped down on the side toward the rail and was slippery, and it was held that this warranted a finding that the crossing was in a defective condition which rendered it unsafe for travellers and that such condition could have been discovered and remedied by the exercise of reasonable care and diligence on the part of the defendant.</p> <p>In the same case the plaintiff was allowed to go to the jury on the question whether the engineer was running the engine at an excessive and unreasonable rate of speed. The crossing tender testified that as soon as the horse fell he started from his shanty near the crossing and ran up the track on which the train was approaching with a red flag to stop the train, that he travelled from the shanty up the track about three hundred and thirty feet and that he saw the train when he was about half way to where he stopped, that the train was then about two hundred and fifty feet beyond a certain tower which was over eight hundred feet from the crossing. There was evidence that there were two or three freight cars on a side track about two hundred and fifty feet from the crossing and also that there was a curve in the track between the crossing and the approaching train, and that both of these things somewhat obstructed the engineer’s view of the crossing. Held, that upon all the evidence it was a question for the jury whether the engineer saw the crossing tender or in the exercise of reasonable care ought to have seen him and have stopped his train in time to avoid the collision.</p> <p>In the same case there also was evidence that the train consisted of five or six cars, each from forty to sixty feet long, that when it struck the plaintiff’s wagon it was running at the rate of fifteen or twenty miles an hour and that it was not brought to a stop until all but the last car had passed over the crossing. It appeared that the crossing was “a few hundred feet” from a passenger station at which the train was to stop. Held, that this court could not say that there was not evidence from which the jury might have found that the train was running faster than was reasonable under the circumstances.</p> <p>In the "same case it was held that evidence as to the height of the gates at the crossing and whether the engineer could have seen that they were raised was admissible in connection with other evidence upon the question, whether he was running the train at an unreasonable rate of speed as he approached the crossing.</p> <p>In the same case it was held that evidence as to the speed of the train was competent for the same purpose.</p>

<p>Two petitions filed in the Supreme Judicial Court on March 26, 1917, under R. L. c. 162, § 13, to be allowed to enter and prosecute appeals from a decree of the Probate Court for the county of Norfolk dated February 7, 1917, vacating a decree made by that Probate Court on April 6, 1900, which discharged the petitioner as the surety on the bond of William H. Drury of Waltham as trustee under the will of Francis Rupp.</p> <p>The petitions were heard by Crosby, J., who upon each of the petitions made a memorandum of decision containing the following statements:</p> <p>"My decision allowing the petition is based upon the evidence and statements of counsel for the petitioner recited in the transcript and other statements of counsel for the petitioner made in open court and not contradicted, and particularly upon the statement of the counsel for the petitioner that after the hearing before the judge of the Probate Court had been concluded, the counsel for this petitioner stated to the judge that if a decision adverse to him was to be made he desired to be notified of such decision as he would in that event appeal from the decision so made.</p> <p>"I found that the counsel for the petitioner never received any notice of the decision of the Probate Court, and I am not satisfied that any notice thereof was ever sent to the petitioner’s counsel; although I have no doubt that the register of probate honestly believes that such notice was sent by him.</p> <p>“I was of opinion, and so found, that the petitioner intended to claim and enter an appeal from the decree ordered in the Probate Court, and that its failure to do so was without default on its part, and that justice required that the appeals be entered, that the cases may be heard in this court.”</p> <p>The single justice upon each petition made a final decree that the petition be allowed; arid from these decrees the respondent appealed.</p> <p>R. L. c. 162, § 13, is as follows: “If a person who is aggrieved omits, without default on his part, to claim or prosecute his appeal and it appears that justice requires a revision of the case, the supreme court of probate or the Superior Court, in cases in which appeals may be taken thereto, may, upon his petition and upon terms, allow an appeal to be entered and prosecuted. . . .”</p>

<p>Landlord and Tenant, Covenant to pay taxes. Tax, On income. Words, “Assessment day.”</p> <p>A lease of city real estate for ninety-nine years contained the following covenant: “The Lessees covenant and agree to pay and discharge any taxes or excises which during the term may on any assessment day be lawfully levied or assessed to either the Lessors or the Lessees upon or against the rent payable hereunder for or in respect of the period between such assessment day and the last prior assessment day, or for or in respect of the period between the first of such assessment days and one calendar year prior thereto, whether levied or assessed upon the same as rental or income but not for any other taxes or excises in respect thereof.” In an action by the lessors against the lessees on this covenant to recover the amount of the normal federal income tax on the rent, which had been withheld by the lessees, it was held, that for the computation of the federal income tax the last day of the preceding calendar year is the “assessment day” and that the lessees were liable to pay to the plaintiffs the amount of the federal income tax imposed on the rent during the period described in the covenant, the phrase "but not for any other taxes or excises in respect thereof” referring merely to income taxes retroactively levied beyond the express limitation of the covenant.</p>

<p>Limitations, Statute of. Contract, In writing. Practice, Civil, Setting aside inconsistent answers by jury to special questions.</p> <p>In an action for a bonus or extra compensation for services rendered, the defendant pleaded the statute of limitations. It appeared that the defendant agreed to pay the plaintiff a bonus of $1,000 if he “should succeed in improving [by] a patentable device, the defendant’s ‘new style’ cloth buttonhole machine, so as to perfect the same and make it a success, or if he, at his option should invent and build a new patentable cloth buttonhole machine.” It further appeared that the plaintiff invented an improvement on the defendant’s “new style” machine which was patented more than six years before the date of the writ, and that he also invented an entirely new machine which was patented within six years before the date of the writ, and that at the time that the improvement to the defendant’s existing machine was patented the plaintiff was at work on the new machine which then had not been tested. Held, that it could not be ruled as matter of law that, when the plaintiff’s improvement on the defendant’s existing machine was patented, the plaintiff exercised his option by electing to earn the bonus of $1,000 on that improvement, and that it was for the jury to determine on the evidence as a matter of fact, whether the plaintiff had decided upon the invention of the new machine as a fulfilment of his agreement, and that, if he had, his claim was not barred by the statute of limitations.</p> <p>In the case described above it appeared that the contract sued upon was an oral one, although a condensed written statement of it, which did not embody the whole of the contract between the parties, was prepared for record in the Patent Office, and it was held, that this written statement was not a contract in writing which precluded the plaintiff from recovering on the oral agreement.</p> <p>A presiding judge, who has submitted special questions to the jury, has discretionary power to set aside answers of the jury which are clearly inconsistent so that it cannot be said which of them is true without entering upon the province of the jury.</p>

<p>Equity Jurisdiction, Specific performance. Equity Pleading and Practice, Parties.</p> <p>In a suit in equity to enforce the specific performance of an agreement to reconvey and reassign to the plaintiff licenses under certain patents, the defendants filed in court an assignment to the plaintiff of the licenses in question subject to the terms of a certain agreement with a person who was not made a party to the bill, but the plaintiff refused to accept any other than an unconditional assignment. The trial judge found that the person with whom this agreement was made had in good faith advanced $25,000 upon the security of the licenses in question. He refused to make a decree for specific performance by ordering the defendants to make an unconditional assignment of the licenses in the absence as a party to the bill of the person with whom the agreement was made, and said that, if such person should be made a party, he would not grant an order for specific performance without protecting the rights of such person in the property to be assigned. He made a decree dismissing the bill. Held, that the decree was right.</p>

<p>Landlord and Tenant. Covenant, In lease. Equity Jurisdiction, To restrain alteration of leased building in violation of covenant.</p> <p>In a suit in equity by the assignee of the rights of the sublessor under a sublease in writing to the defendant of a store on the ground floor of a building which was leased to such sublessor by its owner, to enjoin the defendant from cutting an opening in the partition wall between the leased store and an adjoining store in the next building, it appeared that by the terms of the lease the defendant covenanted “to keep the said leased premises in such repair, order arid condition as the same are in at the commencement of the said term” and “not to make or permit to be made any alteration or addition to the said leased premises, nor permit any hole to be made or drilled in the stone or brickwork of the said building, . . . except such and in such place and manner as shall have Keen first approved in writing by the Lessor.” It further appeared that the owner of the building also owned the next building, which also had a store on the ground floor, and gave the defendant permission in writing to cut an opening in the partition wall for the purpose of connecting the two stores, and that the defendant proceeded to cut such an opening although forbidden by the plaintiff to do so. Held, that the owner of the building had no power to authorize the defendant , to violate the obligations of his covenant in the sublease from the plaintiff’s assignor, and that the plaintiff was entitled to an injunction.</p>

<p>Contempt. Equity Pleading and Practice, Temporary injunction.</p> <p>In proceedings for contempt for violation of a temporary injunction in a suit in equity the merits of the suit in which the injunction was granted are not involved and are not open for examination.</p> <p>In proceedings for contempt for violation of a temporary injunction in a suit in equity where the court has jurisdiction of the subject matter and the parties the only question open is whether thq, order of the court has been disobeyed, and there can be no hearing in the contempt proceedings of the question whether or not the injunction is broader than the bill warrants or to determine whether on a final hearing the injunction should be dissolved.</p>

<p>Tort against the town of Stoneham for the alleged unlawful flooding of the plaintiff’s land on "Waverly Street in that town. Writ dated August 19, 1914.</p> <p>In the Superior Court the case was tried before Fessenden, J. The material facts shown by the evidence are stated in the opinion. The bill of exceptions contained the following statement: “It was agreed that the original basins, which caused the damage complained of, were put in by the town in or about the year 1907 although no vote specifically authorizing their installation appears in the town records.”</p> <p>At the close of the evidence the judge made the following statement:</p> <p>“No question is made that Mr. Sprague in 1891 was superintendent of streets appointed by the selectmen. No question is made that there was a superintendent of streets appointed by the board of public works, created by St. 1902, c. 263, who succeeded to the rights, duties and liabilities of the selectmen in the matter of highways and drains, so whether this grating was put in in eighteen ninety-one or nineteen hundred and seven, that it was done by the superintendent of streets either in repairing or caring for the streets.”</p> <p>The judge ordered a verdict for the defendant, but first permitted the jury to assess the damages in case the plaintiff was entitled to go to the jury. The jury assessed such damages in the sum of $300, and then by order of the judge returned a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Petition for partition, filed in the Superior Court on June 5, 1917, as described in the opinion, of a certain parcel of land with the buildings thereon in Newton, alleging that the petitioner is the owner of a life estate in an undivided half of the property.</p> <p>The respondent’s answer, among other matters, alleged that the respondent is entitled to the entire possession and exclusive occupancy of the property during the term of her natural life.</p> <p>The case was heard by Aiken, C. J., without a jury. The facts are stated in the opinion. The Chief Justice made the rulings requested by the respondent and refused to make certain rulings requested by the petitioner. He made an order that the petition be dismissed; and the petitioner alleged exceptions.</p>

<p>Tort.or contract, originally brought by Edna G. Heathcote of Newton and afterwards permitted to be prosecuted by George M. Heathcote, her husband, as the administrator of her estate, against the Curtis Publishing Company, a corporation organized under the laws of the Commonwealth of Pennsylvania and having a place of business in Boston, where it published and distributed a weekly newspaper called the Saturday Evening Post, and published therein an editorial article entitled “ Concerning the Three of Us” and certain advertisements of the North American Construction Company, whereby the plaintiff’s intestate was induced to order from that construction company “a Marsden (Aladdin) House,” to her alleged great loss and damage, as described in the opinion. Writ dated August 24, 1914.</p> <p>In the Superior Court the case was tried before Thayer, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ordered a verdict for the defendant and by agreement of the parties reported the case for determination by this court. If the ordering of the verdict was correct, judgment was to be entered for the defendant on the verdict. If there was any evidence warranting the submission of the case to the jury a new trial was to be ordered.</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 compensation to Patrick Comerford, an employee of one Connors, a master teamster, who was injured on May 6, 1915, when assisting in loading a concrete window sill upon his team for transportation to Mattapan to be used by the McDonald and Joslin Company in the construction of a small brick garage there.</p> <p>The case first was heard in the Superior Court by Wait, J., who made a decree in accordance with the decision of the Industrial Accident Board, and on appeal to this court, in a decision reported in 224 Mass. 571, it was ordered that the case should be recommitted to the Industrial Accident Board, where the employee might move for a hearing and for the introduction of further evidence upon the question whether the work performed by him was a part of the business of the McDonald and Joslin Company or was merely ancillary and incidental thereto.</p> <p>Such a motion having been made and granted, there was a further hearing before the Industrial Accident Board, who made an award granting the employee compensation under St. 1911, c. 751, Part III, § 17, and the insurer appealed to the Superior Court, where the case was heard by Wait, J. The findings of the board at the new hearing and the evidence on which they were based are described 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 case was submitted on briefs.</p>

<p>Contract, by Jennie I. Gavin, the wife of Thomas J. Gavin, of Watertown, against the Durden Coleman Lumber Company, a corporation organized under the laws of the State of Georgia, a manufacturer and a wholesale dealer in pine lumber having no place of business in this Commonwealth, with a declaration in two counts, the first count being for the use and occupation of a certain tract of land on Arsenal Street in Watertown from August 4, 1914, to January 4, 1915, at $25 a month, $125, and the second count as the assignee, through a third person, of a certain account of the plaintiff’s husband against the defendant, amounting to $486. Writ dated February 15, 1916.</p> <p>In the Superior Court the case was tried before Wait, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings, besides two others which were waived:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover and your verdict should be for the defendant.</p> <p>“2. Thomas J. Gavin (the husband of the plaintiff in this action) having elected to bring suit against the Boston and Southern Lumber Company on the items making up ‘ Count 2’ in the Second District Court of Eastern Middlesex at Waltham and the Municipal Court of the City of Boston, cannot later by the assignment of the bill to his wife thus enable her to maintain a suit on the same bill against this defendant.</p> <p>“3. As to the first count of the plaintiff’s declaration, which is a claim for use and occupation of land in Watertown from August 4, 1914, to January 4, 1915, the plaintiff having given a deed of this land to one James J. Hunnewell, she is precluded from recovery against this defendant during the time the title to said land was in Hunnewell.</p> <p>“4. Thomas J. Gavin (the husband of the plaintiff in this action) having elected to bring suit against the Boston and Southern Lumber Company in the Second District Court of Eastern Middlesex at Waltham, secured judgment and had execution issued to him on the item ‘August 4, 1914, Check paid Boston and Maine Railroad $325,’ the plaintiff in this action cannot, of course, prevail on that item against this defendant.</p> <p>“5. The bringing suit and taking judgment by Thomas J. Gavin (the husband of the plaintiff in this action) against the Boston and Southern Lumber Company was an election to hold the said Boston and Southern Lumber Company for the bill which it is now claimed is due this plaintiff by the Durden Coleman Lumber Company.</p> <p>“6. The bringing of suit by Thomas J. Gavin (the husband of the plaintiff in this action) against the Boston and SouthernLumber Company in the Municipal Court of the City of Boston for the same items claimed to be recovered for in count two of this suit, after Gavin knew the Boston and Southern Lumber Company in contracting the bill claimed to be agent for the defendant was an election on his (Gavin’s) part to hold the Boston and Southern Lumber Company for. the bill, and the plaintiff, by taking an assignment of the bill from him, cannot hold the defendant liable on the same.”</p> <p>The judge refused to make any of these rulings and left the case to the jury with other instructions.</p> <p>The jury returned a general verdict for the plaintiff in the sum of $676.68; and the defendant alleged exceptions. The defendant also filed a motion for a new trial, which was denied by the judge. The judge made an order that the defendant’s exception to his denial of the motion for a new trial might be incorporated into the defendant’s bill of exceptions.</p>

<p> Landlord and Tenant. Covenant. </p> <p>A lease of an apartment contained a provision under which the lessee could terminate the lease by giving a certain notice in writing and also contained the following covenant: “It is hereby agreed by and between the parties hereto, that occupancy (with consent of the Lessor) of the granted premises, after the expiration of this lease, by the Lessee or his representatives, shall (at option of Lessor) constitute a renewal of this lease by the year so long as occupied upon the terms and conditions herein stipulated, unless an agreement to the contrary shall have previously been made in writing between the parties hereto.” The lessee gave the required notice in writing which would terminate the lease on a certain day, and on that day the lessee, instead of vacating the premises, wrote a letter to the lessor in substance proposing to retain the apartment for another month as a tenant at will or at sufferance, agreeing to pay the rent for that month and to surrender the apartment at the end of it. Thereupon the lessor treated the lease as renewed by the continued occupation of the lessee. The lessee moved out of the apartment before the expiration of the additional month, and the lessor continued to demand the payment of rent under the lease and brought an action against the lessee for such rent covering a period that included four months after the moving out of the lessee. Held, that under the agreement contained in the covenant the occupancy by the lessee after the expiration of the term, with the assent of the lessor, constituted a renewal or extension of the lease upon the same terms and conditions at the option of the lessor, which he had exercised.</p>

<p>Will, Competency of witnesses, Soundness of mind, Undue influence. Witness, Attesting. Corporation, Officers and agents. Evidence, Of soundness of mind, Opinion, Declarations of deceased persons, Presumptions and burden of proof. Practice, Civil, Judge’s charge, Exceptions.</p> <p>The will of a woman, in which a trust company was named as executor, was executed at the office of the trust company. More than four years before her death the testatrix and the trust company had executed an indenture of trust, whereby she had transferred to the trust company as trustee certain bank books, cash and securities amounting to about $50,000 and subsequently had transferred to it other property, so that at her death the trust company held substantially $100,000 which it was bound "to transfer, convey and pay over . . . to her executors or administrators.” The attesting witnesses were the senior clerk of the trust department of the trust company, the officer of the trust company in charge of its real estate and mortgages and a lawyer employed in the trust department of the trust company who had taken the acknowledgment of the testatrix to the indenture of trust.. At the trial of issues relating to the proof of the will, the contestant alleged that the .will was not attested and subscribed by competent witnesses. The attesting witnesses were examined on the voir dire and the presiding judge found as a fact that “these witnesses are not disqualified by reason of any interest, and declined to rule that upon all the evidence any one of said three witnesses was not a competent witness to the will and further declined to rule that on all the evidence as a matter of law the will . . . was not attested and subscribed by three competent witnesses.”' Held, that the finding of the judge was warranted and that his ruling was right.</p> <p>In the same case it was said, that the fact that the subscribing witnesses were the servants of the trust company named as executor and acted at the request of the trust company did not make the attestation of the will the act of the trust company itself.</p> <p>Upon the issue of the soundness of mind of an alleged testatrix, the presiding judge excluded as evidence a certified copy of a decree of the Probate Court appointing a guardian for an uncle of the testatrix as “an insane person, and " incapable of taking care of himself.” No evidence was introduced or offered tending to prove that the testatrix was at any time afflicted with any form of insanity or to prove that the malady suffered by the uncle was of such a form and character as to be transmissible and inheritable from a common ancestor. Held, that the exclusion of the evidence was a proper exercise of judicial discretion.</p> <p>In the case in which the point above stated was decided, a physician, who had attended the late husband of the testatrix in his last illness but never had attended the testatrix professionally, was asked, “In your opinion what was her mental development, I mean the maturity of her mind?” The contestant, who put the question, did not ask to have the answer confined to a statement of what had been observed by the witness. The witness was not an expert in mental diseases. The judge excluded the question.' Held, that the exclusion by the judge of the question as calling for opinion was justified.</p> <p>In the same case it was said that, if the counsel for the contestant did not wish to abide by the ruling of the judge excluding the question quoted above, he should have made it plain to the judge that the question called for a statement of the facts observed by the witness and not for the witness’s opinion, and that, not having done this, it was not open to the contestant to contend that the question did not call for an expression of opinion as it purported to do.</p> <p>In the same case the judge, subject to an exception by the contestant, refused to allow a cousin of the testatrix to testify that the witness’s mother, long since dead, had told her between fifty and sixty years ago that a brother of her father, who also was an uncle of the testatrix, shot himself and committed suicide about 1836. Held, that the exception must be overruled, because the evidence might have been excluded on the ground that the judge did not believe that the statement ever was made, or, if he believed that it was made, he might not have been satisfied that the witness’s mother had personal and adequate knowledge of the facts stated.</p> <p>Upon the trial of the issue whether undue influence was exercised upon an alleged testatrix, the presiding judge in his charge erroneously instructed the jury that “the burden is upon the contestants to show that the established facts are inconsistent with any theory but that of the theory of undue influence,” but his instructions as a whole made it plain that the jury were instructed correctly that the burden was not upon the executor to establish the negative of undue influence but was upon the contestants to show affirmatively the existence of undue influence by a fair preponderance of the evidence, and it was held, that there was no error of substance sufficient to sustain an exception.</p>

<p> Marriage and Divorce. </p> <p>A libel by a wife for divorce alleged cruel and abusive treatment as the sole ground on which a divorce was sought. There was evidence that the libellee neglected his wife, was out many evenings and admitted to his wife that “he had been going . . . with a girl” and there was testimony tending to show his adultery. There was evidence that the libellee’s conduct caused his wife mental suffering and that she worried and became sick so that her health was impaired substantially by reason of her husband’s conduct, but there was no evidence that he did or said anything for the purpose of injuring her health. Held, that the libel must be dismissed, as a divorce for cruel and abusive treatment could not be granted on the facts disclosed.</p>

<p> Domicil. </p> <p>A domicil is not lost until another is acquired; and, if a man having a domicil in a city in this Commonwealth moves to another city in an attempt to find employment there and looking for a place to establish himself where he can support his family, without any fixed intention of making the city to which he has moved his home unless he shall succeed in obtaining such an occupation there, until he has succeeded in obtaining such an occupation in the city to which he has moved his absence from his domicil in this Commonwealth is temporary and his domicil here has not been abandoned.</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 refusing to award to Annie Walsh as the dependent widow of Coleman Walsh compensation for his death on March 10, 1917, alleged to have been caused by an injury received by him on October 5, 1915, when in the employ of the Columbia Steel Shafting Company, a corporation.</p> <p>The claim was heard by the Industrial Accident Board upon a report made by a member of the board which contained all the material evidence, and the board affirmed and adopted the findings and decision of this member of the board. The decision appealed from was as follows: "The evidence shows and the board find and decide that the employee’s death from tuberculosis, on March 10, 1917, had no causal relation to the personal injury received by him on October 5, 1915; therefore, the claim for compensation is dismissed. The claimant failed to sustain the burden of proving that the condition of tuberculosis was occasioned by or aggravated or accelerated by the injury to his foot; and the weight of the medical evidence leaves it as unlikely and improbable that the injury and the disease had any connection with each other.” The case was heard by Fox, J., who made a decree in accordance with the decision of the Industrial Accident Board, and the alleged dependent widow appealed.</p>

<p>Under the Constitution of the Commonwealth and the second amendment thereof the Legislature has no power to pass a general law enabling such towns as may adopt its provisions to substitute for the town meeting form of government, in which every qualified voter of the town may participate, a form wherein the town meeting shall consist of a certain percentage of the voters elected as town meeting members, so called, by the voters at large.</p>