Volume 234 — Massachusetts Reports

<p>Negligence, Contributory, Street railway.</p> <p>At the trial of an action against a street railway company for personal injuries received by the plaintiff when he was riding on the seat with and at the left side of the driver of a trucking sled which was run into by a street car of the defendant, there was evidence tending to show that previous to the accident the sled and the street car had been going in the same direction, that the tracks of the street railway were in a reserved space in the middle of a highway, that at the time of the accident the sled was crossing the reserved space from that part of the highway at the right hand side of that space to the part on the left hand side, that, previous to the sled starting to cross, the plaintiff had seen the street car, which then was seventy-five or one hundred yards distant, and that he had held out his hand continuously to indicate that the sled was turning to cross the track. The plaintiff also testified that “we had plenty of time.” Held, that a finding was warranted that the plaintiff was in the exercise of due care.</p> <p>At the trial above described there also was evidence that the motorman of the street car did not do anything to avoid the collision except to ring the gong on the car, although he saw the sled being driven toward the track and although a slight checking of speed on his part might have prevented the accident. Held, that a finding was warranted that the motorman was negligent in not retarding the speed of the car to avoid the accident.</p>

<p>Workmen’s Compensation Act, Dependency.</p> <p>An only child of a deceased employee, who, at the time of the employee’s injury, by St. 1911, c. 751, Part II, § 7 (c), is his sole dependent, does not cease to be so when he attains the age of eighteen years and by reason of his own earnings becomes self-supporting.</p> <p>Where, in proceedings under St. 1911, c. 751, Part III, § 4, an agreement is made between an insurer and a guardian of an only child of a deceased employee who, by St. 1911, c. 751, Part II, § 7 (c), is the employees’s sole dependent, providing for the payment to the child of a certain sum for a fixed period, the child’s right to compensation in accordance with the agreement does not cease upon his reaching eighteen years of age and becoming self-supporting.</p>

<p>Indictment, found and returned on August 21, 1918, charging the defendant in a first count with burning the office and lumber sheds of the W. H. Sawyer Lumber Company in Worcester on February 21, 1918, in the night time, and in a second count with burning a pile of lumber of the same company on July 20,1918, in the night time.</p> <p>There was a trial before O’Connell, J. The conversation between the defendant and Sergeant Kelleher, described in the first numbered paragraph of the opinion, occurred on July 26, 1918. The defendant was placed under arrest on that day.</p> <p>The Dr. Peterson, referred to in the fourth numbered paragraph of the opinion, was Dr. Hugo Peterson, city physician, who at the request of Captain of Police Johnson had examined the defendant in the police headquarters on the day following his arrest.</p> <p>The testimony of officers Finneran and Healy and of Captain Dillon, referred to in the sixth numbered paragraph of the opinion, was as follows:</p> <p>“ John F. Finneran, a police officer of the city of Worcester, called in rebuttal, testified that his ‘beat’ covered the Wood property, and against the objection of the defendant and subject to his exception was permitted to testify that on a night when he was in the office of the Wood Lumber Company Sherman fired two shots, and that after firing them had a talk with him. Sherman said that there was a man around in the early evening, dressed in a long coat and soft hat and carrying a rifle; that when he was in the office he heard the man in the runway and took two shots at him; that after firing the shots he said to Finneran that the man was outside of the door in the driveway; that they went out immediately; that Finneran told Sherman that he was satisfied there was no man there; that Sherman said it was a bluff.</p> <p>“James Healy, a police officer of the city of Worcester, called in rebuttal, testified that his ‘beat’ included the Wood property, and against the objection of the defendant and subject to his exception also testified that four days after the July 20, 1918, fire he talked with the defendant about a bomb and also testified that Sherman said that the bomb was about six inches square, bound round with heavy wire, that the figures and letters 2-3-x-h-I were on it; that he threw it in the canal; that on the following day Sherman went down into the canal, when he was present, searched about half an hour and brought up a bottle that looked as though it had contained shoe dressing and a cork about the size of a quarter of a dollar, and that Sherman said that was the only thing that looked like it; that the rest of it had been washed away.</p> <p>“Captain Dillon was called in rebuttal and against the objection of the defendant, and subject to his exception, was permitted to testify that no one said anything to him at Police Station 4 about a bomb at the time the defendant was there, and that he did not tell this defendant at any time that it was better for him to tell the truth or anything like that in substance.”</p> <p>At the close of the evidence, the defendant asked that the following instructions be given to the jury:</p> <p>“3. That insomuch as Sergeant ICelleher has admitted lying to the defendant, his evidence should be carefully scanned and in and of itself is insufficient to sustain a conviction.</p> <p>“4. That if the alleged confession of the defendant was obtained by the sergeant as a result of wilful misrepresentations, it is to be rejected and the verdict should be ‘Not Guilty.’</p> <p>“5. That if the alleged confession or admission of the defendant was obtained by Sergeant ICelleher through fraud, misrepresentatian, or as a result of lies, it is to be disregarded, and if this is the only evidence connecting the defendant with the burning, then the verdict should be 'Not guilty.’ ”</p> <p>''8. That the testimony of Dr. Hugo Peterson, so far as it relates to any statements made by the defendant, is to be rejected and disregarded in arriving at your verdict.</p> <p>“9. That all the evidence as testified to by Captain Dillon and Dr. Hugo Peterson, so far as it relates to conversations held with the defendant, be struck out and the jury instructed to disregard it.</p> <p>'' 10. That all the evidence relating to a bomb, and as to what a man did on a bridge and after the fire be struck out and the jury instructed to disregard it.”</p> <p>The requests were denied. The jury found the defendant guilty; and the defendant excepted.</p>

<p>Bills and Notes, Validity, Indorsee’s rights, Assignment. Partnership. Evidence, Competency. Pleading, Civil, Answer. Assignment.</p> <p>One, who receives a negotiable promissory note by assignment from a person to whom it had been indorsed and delivered by the payee for a valuable consideration before maturity and without any notice of fraud practised by the payee upon the maker, can recover upon the note in an action against the maker although, as between the maker and the payee, the note was voidable by the maker by reason of fraud and it was overdue when the assignment was made.</p> <p>In an action by the assignee of an indorsee of a negotiable promissory note against a partnership as the makers of the note, where it appears that the note was signed in the partnership name by one of the partners and it did not appear that the indorsee, who received the note before maturity in good faith for valuable consideration, had knowledge of any restriction upon the right of the partner who signed the note to bind the partnership by his signature, evidence, tending to show that the partners by agreement between themselves had agreed that the signatures of both partners should be necessary to bind the partnership upon a contract in writing, is inadmissible.</p> <p>A partnership has inherent power to issue in payment of its obligations negotiable promissory notes signed in the partnership name by a single member of the firm, and private restrictions as to the effect of such a signature cannot affect those who, without knowledge of them, received such notes in payment of partnership obligations.</p> <p>In an action upon a promissory note against a partnership as the maker, brought by one to whom an indorsee who was a holder in due .course had assigned the note, an exception by the defendants to the admission of the note in evidence at the trial on the ground that the signatures of the makers and of the payee were not proved, must be overruled where one of the partners testified that he signed the firm name to the note, and where the only allegation as to signatures in the defendants’ answer was, “And the defendants further answering specially denies that he made any note and specially denies the signature on said note.”</p> <p>At the trial of an action by the assignee of an indorsee against the maker of a promissory note in which the defendant had not specifically denied the signature upon the assignment, the defendant objected and excepted to the admission of the assignment in evidence, and, when asked by the judge to state what his objection was, said “That there is nothing to prove the signature of the . . . [payee] ... or no proof that there is any such concern as the firm named to which this purports to be conveyed.” There later were introduced in evidence depositions which showed that the indorsee was a corporation engaged in the jewelry business. Held, that the defendant could not be heard to contend in support of his exception that the signature of the indorsee to the assignment was not proved, as that was not the ground upon which the admission of the assignment'in evidence was objected to.</p>

<p>Contract, with a declaration as amended in two counts, the first count being upon a breach by the defendant of an agreement in writing to lease to the plaintiff the premises numbered 55 Sudbury Street in Boston, and the second count being based upon allegations that “in consideration of the plaintiff’s agreement to accept a lease of said premises and other valuable considerations, the defendant agreed and promised to give to the plaintiff a lease of the said premises; that a memorandum or note of such contract is in writing and signed by the defendant or by his agent thereunto by him lawfully authorized,” and that the defendant refused to perform his contract. Writ dated November 3, 1917.</p> <p>The answer, besides a general denial, alleged in substance that the subject matter of this action was rendered res judicata by the decision in the bill in equity between the same parties reported in 226 Mass. 342, and also set up the statute of frauds.</p> <p>The case was tried before Hall, J. The plaintiff’s counsel, in his opening statement to the jury, stated among other things in substance that on about August 1, 1915, “there was an absolute agreement” between the plaintiff and the defendant that the premises numbered 55 Sudbury Street in Boston should be leased to the plaintiff by the defendant upon certain terms and conditions; that on August 3 the agent of the defendant wrote a letter which stated that he enclosed “herewith two leases” of the premises in question, and adding, “Will you kindly have these executed and return one copy to me?”; that leases, containing the terms and conditions agreed upon and duly executed by the defendant, were enclosed in that letter; that afterwards the defendant’s agent was told by the defendant that when he had leased adjoining premises to another person in the same kind of business he had promised that he would not lease any more of his property to a person in that line of business; that then the defendant "wanted to get out” of the lease to the plaintiff; that the defendant’s agent then knew that, if the leases were sent to New York, they would have to be sent on to Canton, Ohio, for execution; that the letter sent to the plaintiff on August 3 was sent to New York; that on August 6, a Friday, the defendant’s agent wrote again to the plaintiff in New York, stating that the defendant had sent to the plaintiff on “last Tuesday, the twenty-seventh of July,” the leases in question, and that, unless they were returned by Monday morning, August 9, by the first mail, negotiations would be considered by the defendant cancelled; that Saturday was a half holiday in New York, and that the leases had to go to Canton, Ohio, for execution by the plaintiff; that on August 7, before receiving the defendant’s letter of August 6, the plaintiff had acknowledged receipt of the leases and had stated that they had been sent to Canton, Ohio, for execution; that on Monday, August 9, the defendant’s agent wrote to the plaintiff, stating that, the lease not then having been received, all negotiations were terminated.</p> <p>At the close of the opening statement by the plaintiff’s counsel, the defendant moved that a verdict be ordered for him on the opening statement, the pleadings, and the report of the judge of the Superior Court in the suit between the same parties, decision in which was reported in 226 Mass. 342. Material facts contained in that report are described in the opinion, infra. The motion was granted, and, at the request of both parties, the case was reported to this court for determination, it being agreed that, if the verdict for the defendant was ordered rightly, judgment should be entered upon such verdict, and if such verdict should not have been ordered, “verdict to be for the plaintiff and the case remanded to the Superior Court for hearing upon the question of damages only.”</p> <p>The case was submitted on briefs.</p>

Contract upon a policy of fire insurance. Writ dated October 9, 1917. In the Superior Court the action was tried before Aiken, C. J. The material evidence is described in the opinion. At the close of the evidence, the Chief Justice on motion of the defendant ordered a verdict for the defendant; and the plaintiff alleged exceptions.

<p>Petition, filed in the Land Court on February 16,1918, for the registration of the title to a parcel of land in the towns of Rowe and Heath.</p> <p>The petitioner claimed title through a sale on an execution issuing in an action wherein was made on January 23, 1913, an attachment of a life estate of one Helen E. Duquette in the land, through a sale on an execution issuing in an action, wherein on April 25, 1913, had been attached "all the right, title and interest in the premises which” Helen E. Duquette “had therein,” the premises being specifically described' and the record title being alleged to be in David Duquette, and through a judgment in a writ of entry to establish the title so acquired.</p> <p>The respondent claimed title under a foreclosure of a mortgage of the premises recorded on May 21, 1913.</p> <p>The petition was heard in the Land Court by Corbett, J. In his decision, which was made a part of the bill of exceptions, he found, as to the attachment of the premises in the second action above referred to, as follows: “On April 25, 1913, in an action brought by George A. Sprague v. said Helen E. Duquette a special attachment of the premises was made. The premises were described by metes and bounds in the officer’s return, dated April 25, 1913, which return set forth that the attachment was of all the right, title and interest in the premises which the defendant had therein. . . . The return further stated that the record title stands in the name of David Duquette.” The execution in that action was dated August 9, 1913, and the officer was directed to “make return of this writ, with your doings therein, . . . within sixty days from the date hereof. ” The defendant was described therein as “ of Ludlow, in the County of Hampden. ”</p> <p>The return of the officer was as follows:</p> <p>“Franklin, ss. March 27, 1914.</p> <p>“By virtue of this execution on the 15th day of August, 1913, I took all the right in equity which the within named Helen E. Duquette had on the 25th day of April, 1913, the day when the same was attached mesne process of redeeming the following described real estate to wit:— . . . ([here followed a description of the land by metes and bounds]</p> <p>“The record title of said premises stands in the name of David Duquette.</p> <p>“And on the same 15th day of August 1913, being 30 days before the time appointed for the sale hereafter mentioned, I gave notice in writing of the time and place of sale to the said Helen E. Duquette by leaving the same at her last and usual place of abode [[in Rowe in the county of Franklin in the dwelling house on the premises hereinbefore described; which said dwelling house was known by me to be the last and usual place of abode of said defendant]* and caused notifications thereof to be posted up at the following public places to with [sic]; At the post office in Rowe aforesaid and at the ‘Dell’ Post Office in Heath and at the Post Office in Charlemont, two adjoining town afterwards caused an advertisement of the time and place of sale to be published three weeks successively before the said sale in the Shelburne Falls Messenger, a newspaper published in Shelburne in said county to wit: On the 20th and 27th days of August and on the 3rd day of September 1913, and on the 17th day of September at 2 o’clock P. M. at the Charlemont Hotel the time and place appointed for said sale aforesaid I sold the said right in equity by public auction to George A. Sprague for the sum of Nine Hundred dollars which was the highest bid made there for and I have make [sic], executed, acknowledged and delivered to the said George A. Sprague a good and sufficient deed to the said right in equity. The proceeds of said sale, namely, the sum of Nine Hundred dollars I have deducted the sum of $55.42 for my fees and charges, and have applies [sic] the balance $834,58 and no more, in part satisfaction of this execution.</p> <p>Walter W. Clark,</p> <p>Deputy Sheriff.”</p> <p>Other material facts are stated in the opinion. At the close of the evidence, the respondent made the following requests:</p> <p>“1. That the evidence offered by the petitioner does not establish a chain of title which would entitle him to have the land registered.</p> <p>“2. That the evidence shows that the only title the petitioner has to the land is a life interest, and, the fee being in the name of another person who is not a party to the petition, said petitioner is not entitled to a decree of registration.</p> <p>“3. That, prior to April 25th, when the predecessor in title to the petitioner caused the right of title, and interest of Helen E. Duquette to be attached, the right, title and interest having been conveyed on a sale under execution prior to said attachment, then the only claim acquired under said attachment was a bare, naked right of redemption. The mortgage was a good and valid mortgage at that time, but the conditions of the mortgage had been broken and the rights under said mortgage took precedence to the rights of any sale under said attachment. A breach of said conditions of the mortgage continued, and the mortgagee upon foreclosure took absolute title in fee to the premises.</p> <p>“4. That an attachment of the right of redemption of a creditor is not an attachment of real estate, but an attachment of a chose in action, and the rights acquired under said attachment do not supersede an existing mortgage then on the premises.</p> <p>“5. That when an entry is made by the mortgagee for breach of conditions of a mortgage and the certificate of peaceable entry is recorded there is an implied intention on the part of the mortgagee to keep possession of the premises thus lawfully acquired for the term of three years and that personal occupation of said mortgaged estate by the mortgagee during the three years following said entry is not necessary.</p> <p>“6. That, whatever possession of the premises was held by others, the mortgagor was sustained with the mortgagee’s possession during the period of foreclosure. A creditor who becomes a purchaser of the equity has no right to contest the validity, of the mortgage on the grounds that the mortgage was a fraudulent transaction without consideration.</p> <p>“7. That the petitioner being a successor in title to the mortgagor, can not hold adversely to the rights of the mortgagee and he acquires only the same right that the mortgagor had. ”</p> <p>The requests were refused. A decree was entered registering the title as the petitioner’s; and the respondent alleged exceptions.</p>

<p>School and School Committee. Municipal Corporations, Control of school grounds.</p> <p>While, from the provisions of R. L. c. 42, § 49, that the school committee of a town, “unless the town otherwise directs, shall have general charge and superintendence of the school houses,” the committee is given by implication a right, "unless the town otherwise directs,” to occupy and care for the land upon which the school houses stand arid that adjacent thereto so far as is reasonably necessary for the safe and convenient use of the school, buildings and the health and comfort of the pupils, they have no right to prevent the town from carrying out a vote at a town meeting to move a band stand, the property of the town, from one school ground to another, where it does not appear that such removal injuriously affects the usefulness of the grounds from which it is to be taken or makes the unoccupied portion of the grounds to which it is to be moved inadequate for school purposes or that the use of such grounds for school purposes is seriously damaged.</p>

<p>Equity Pleading and Practice, Decree, Appeal.</p> <p>In a suit in equity, wherein the plaintiff by a statement in writing challenged the authority of an attorney at law to appear for one of the defendants, a final decree was entered, reciting that when the case came on to be heard on its merits the plaintiff failed to offer any evidence in support of the allegations of the bill and failed to appear to prosecute the suit, and ordering that the bill be dismissed with costs to the defendants severally. Held, that the decree must be taken as a disposition adversely to the plaintiff of the question as to the authority of counsel for one of the defendants.</p> <p>A paper, entitled “Exception,” filed in a suit in equity in the Superior Court after ' the entry of a final decree and never presented to a judge of that court, raises no question of law in this court upon an appeal from the final decree.</p> <p>Upon the appeal above described, no evidence was reported, and it was held that there was not apparent upon the record any abuse of discretion in calling the case for trial, and no error of law.</p>

<p>Tort for personal injuries caused by the plaintiff being struck by a falling "clothes shed” on the roof of a tenement house in Boston in which the plaintiff was a tenant of the defendant. Writ dated December 9, 1912. I</p> <p>In the Superior Court the case was tried before Dana, J. There I was a verdict for the plaintiff in the sum of $2,500. The defendant I moved for a new trial on the grounds, that the verdict was against I the law, that the verdict was against the weight of the evidence, I that the verdict was against the law and the weight of the evi- I dence, that the damages were excessive, and because “there was I no evidence to show knowledge or legal responsibility for knowl- I edge of the condition of the roof, without which the jury could I not find against the defendant.” The motion was denied, and I the defendant alleged an exception solely to the ruling denying I the motion for a new trial. I</p> <p>The case was submitted on briefs. . I</p>

<p>Husband and Wife, Separate maintenance. Domicil. Probate Court,- Jurisdictian, Appeal. Equity Pleading and Practice, Appeal.</p> <p>Misconduct of a husband, not amounting to such cruel and abusive treatment as, under R. L. c. 152, § 1, is required to entitle a wife to maintain a libel for divorce, might justify her in living apart from him and enable her to maintain a petition for separate maintenance under R. L. c. 153, § 33.</p> <p>Acts of a husband not amounting to physical violence, committed for the purpose of causing his wife to separate from him and inspired by the motive of alienating her affections and severing the marriage tie in order that he might live with another woman and from which pain and sorrow to the wife would be expected to ensue, may be found to justify a wife in living separate and apart from her husband and to entitle her to separate maintenance under R. L. c. 153, § 33.</p> <p>Upon a petition under R. L. c. 153, § 33, by a wife, who was living apart from her husband, for separate maintenance, it appeared that the petitioner and the respondent were married in 1894; that in 1912 the respondent, after visiting a woman to whom he formerly had been engaged to be married, stated to his wife that that woman was “his ideal,” and “that he wished to try the experiment of living with her; ” that the petitioner was unnerved by such talk and that thereafter her health was not good; that shortly thereafter she found in the respondent’s desk copies of letters he had written to the other woman, which, while they contained nothing showing criminal conduct or ■infidelity on the part of the respondent, were of a character to cause the petitioner further nervousness and impairment of health; that in 1916, during an absence of the respondent from the petitioner, she found in his desk, placed there by him with the purpose that she should see them and that her affections should be alienated thereby, two pictures made by him, one a water color and one a pencil sketch, representing the nude figure of the woman to whom he formerly had been engaged, so drawn as to leave nothing to the imagination. The foregoing conduct and acts of neglect by the respondent indicated an intention on his part to influence her to separate from him. No physical violence was inflicted upon the petitioner. Thereafter the respondent changed his residence to another State, whither the petitioner refused to accompany him. Held, that findings were warranted that the petitioner was living apart from the respondent for justifiable cause and that the petition might be maintained.</p> <p>In the case above described, it was said that it was not necessary to decide whether the facts would justify the granting of a divorce on the ground of cruel and abusive treatment.</p> <p>If, while a husband and his wife were domiciled in this Commonwealth, the husband is guilty of conduct toward the wife of such a character as warrants her in living apart from him and he thereafter removes his domicil to another State whither for justifiable cause she refuses to follow him, her domicil remains in this Commonwealth and she may maintain here a petition for separate maintenance under R. L. c. 153, § 33.</p> <p>The respondent in a petition for separate maintenance under R. L. c. 153, § 33, appealed to the Superior Court from a decree in favor of the petitioner. In the Superior Court the case by agreement was heard by a referee. Upon a motion that the report of the referee be confirmed, a decree was entered in the Superior Court “that the respondent’s appeal from the decree of the Probate Court be dismissed, that said decree be and the same is hereby affirmed, and that the case be remanded to the Probate Court for further proceedings.” Upon an appeal by the respondent from such decree, it being determined in substance that rulings of the referee that the petitioner was entitled to maintain her petition were justified, it was held, that the decree of the Superior Court should be modified so that by it the referee’s report should be confirmed, the decree of the Probate Court affirmed, and the case remanded to the Probate Court for further proceedings.</p>

<p>Petition, filed in the Supreme Judicial Court on October 16, 1919, by three taxable inhabitants, who also were the selectmen, of the town of Milton, for a writ of mandamus commanding the Treasurer and Receiver General “ (1) to desist and refrain from distributing any moneys in accordance with the provisions of St. 1919, c. 314; (2) to desist and refrain from distributing any moneys in accordance with the provisions of St. 1918, c. 219; and (3) that the Treasurer and Receiver General be commanded (unless and until the General Court shall otherwise lawfully provide) to make distribution of the net distributable proceeds of the taxes coming into his hands under the provisions of St. 1916, c. 269, to and among the several cities and towns of the Commonwealth in the proportions in which the said taxes were paid and contributed by the inhabitants of said several municipalities, respectively;” also a</p> <p>Petition, filed in the Supreme Judicial Court on October 16, 1919, by a taxable inhabitant of the town of Brookline, for a writ of mandamus commanding the Treasurer and Receiver General “not to distribute or pay over any portion of the tax for the year 1919 raised under the provisions of St. 1916, c. 269, from the petitioner or from any other inhabitant of the town of Brookline to any other city or town until the further order of the court.”</p> <p>The respondent filed a demurrer in each case. The cases came on to be heard before Pierce, J., upon the petitions and demurrers, and, being of the opinion that the questions raised by the demurrer in each case so affected the merits of the controversy that, before further proceedings, the matters ought to be determined by this court, the single justice reported each case for determination by this court, the case to stand for hearing upon the merits if the demurrer was overruled and, if the demurrer was sustained, the petition to be dismissed unless the petitioner should desire to amend it, if it could be amended so as to be maintained.</p> <p>Article 44 of the Amendments to the Constitution reads as follows:</p> <p>“Full power and authority are hereby given and granted to the General Court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the Commonwealth upon incomes derived from the same class of property. The General Court may tax income not derived from property at a lower rate than income derived from property, and may grant reasonable exemptions and abatements. Any class of property the income from which is taxed under the provisions of this article may be exempted from the imposition and levying of proportional and reasonable assessments, rates and taxes, as at present authorized by the Constitution. This article shall not be construed to limit the power of the General Court to impose and levy reasonable duties and excises.”</p> <p>St. 1918, c. 219, is as follows:</p> <p>"On or before the fifteenth day of November in the year nineteen hundred and nineteen the Treasurer and Receiver General shall pay to each city or town, and to each fire, water, improvement, light and watch district having the power of taxation, an amount equal to the difference between the average amount of the tax levied upon personal property in such city, town or district in the years nineteen hundred and fifteen and nineteen -hundred and sixteen and the average amount, computed by the Tax Commissioner, of the tax upon the personal property actually assessed in such city, town or district for the years nineteen hundred and seventeen and nineteen hundred and eighteen. If the amount of taxes collected from incomes shall exceed the sum necessary to make the said payments, the balance shall be distributed among the several cities and towns in proportion to the amount of the State tax imposed upon each of them in the year nineteen hundred and nineteen: provided, that of the aforesaid excess the Commonwealth shall retain a sum sufficient to reimburse it for the expenses incurred under chapter two hundred and sixty-nine of the General Acts of nineteen hundred and sixteen and amendments thereof during the year nineteen hundred and nineteen, and abated taxes repaid thereunder during that year. In years subsequent to nineteen hundred and nineteen, the taxes collected under the provisions of said chapter two hundred and sixty-nine and amendments thereof shall be distributed as the General Court may determine.”</p> <p>St. 1919, c. 314, is as follows:</p> <p>“Section 1. The taxes collected by the Commonwealth upon incomes under the provisions of chapter two hundred and sixty-nine of the General Acts of nineteen hundred and sixteen, and acts in amendment thereof, shall, on or before the fifteenth day of November in each year, be distributed among and paid to the several cities, towns and districts by the Treasurer and Receiver General in the manner following, namely, — to each city, town "and district such proportion of an amount equal to the difference between the average amount of the tax levied upon personal property in such city, town or district in the years nineteen hundred and fifteen and nineteen hundred and sixteen, and the average amount, computed by the Tax Commissioner, that would be produced by a tax upon the personal property actually assessed in each city, town or district for the years nineteen hundred and seventeen and nineteen hundred and eighteen at an average of the same rates of taxation as prevailed therein in the years nineteen hundred and fifteen and nineteen hundred and sixteen, as is ninety per cent thereof for the year nineteen hundred and nineteen, as is eighty per cent thereof for the year nineteen hundred and twenty, as is seventy per cent thereof for the year nineteen hundred and twenty-one, as is sixty per cent thereof for the year nineteen hundred and twenty-two, as is fifty per cent thereof for the year nineteen hundred and twenty-three, as is forty per cent thereof for the year nineteen hundred and twenty-four, as is thirty per cent thereof for the year nineteen hundred and twenty-five, as is twenty per cent thereof for the year nineteen hundred and twenty-six, as is ten per cent thereof for the year nineteen hundred and twenty-seven; and in the year nineteen hundred and twenty-eight and thereafter all the taxes so collected -shall be distributed and paid to the several cities and towns in proportion to the amount of the State tax imposed upon each of them in each year.</p> <p>“Section 2. The amount so collected in any year in excess of the sum necessary to make the said payments shall be distributed in proportion to the amount of the State tax imposed upon each city and town in that year: provided, that of the amount so collected the Commonwealth shall first retain a sum sufficient to reimburse it for the expenses incurred in the collection and distribution of said tax and for abated taxes repaid under said act during each year.</p> <p>“Section 3. Chapter two hundred and nineteen of the General Acts of nineteen hundred and eighteen is hereby repealed.</p> <p>“Section 4. This act shall be subject to the provisions of any law enacted by the General Court during the year nineteen hundred and nineteen disposing of the proceeds of taxes collected by the Commonwealth upon incomes under the provisions of said chapter two hundred and sixty-nine.</p> <p>“Section 5. In respect to their constitutional validity, all the provisions of this act are hereby declared to be inseparable. ”</p>

<p>Way, Defect. Bridge. Evidence, Matter of conjecture.</p> <p>At the trial of an action under R. L. c. 51, § 18, against a city for damages to a horse of the plaintiff alleged to have been caused by a defect in a bridge, the evidence most favorable to the plaintiff tended to show that the horse, after having taken one step over a plank newly laid in the floor of the bridge, was found to have a spike in his hoof, that the horse did not put his foot down again until the spike was removed, that the spike was similar to spikes used in securing planks to bridge surfaces, and that it bore no hammer or sledge marks. A verdict was ordered for the defendant. Held, that it was a matter of conjecture how or by whose act the spike came upon the bridge surface, and that the verdict properly was ordered.</p>

<p>Indictment, found and returned on March 18, 1918, against Antonio Teregno and Maria Cammerota for the murder at West-field on January 30, 1918, of Raffaele Cammerota. The indictment was in three counts. In the first count it was charged that the murder was accomplished “by shooting . . . with a revolver loaded with leaden bullets;” in the second count, by stabbing with a knife, and in the third count by shooting and stabbing.</p> <p>The indictment was tried in the Superior Court before N. P.</p> <p>Brown, J. Under the circumstances described in the opinion, separate confessions of the defendants were admitted in evidence. Teregno admitted in his alleged confession that for some time and clandestinely he had been having illicit relations with the other defendant, wife of the deceased, in their home, and had planned to kill him; that he had shot the deceased with a revolver, but that the stabbing had been done by the other defendant, the decedent’s wife.</p> <p>When the confession of the defendant Maria Cammerota was admitted in evidence and read to the jury, the jury were “expressly told that the statements therein contained were only evidence against Maria.”</p> <p>A preliminary examination of a witness for the Commonwealth, Civitella Cammerota, disclosed that she was seven years • old, was a daughter of the decedent and of the defendant Cammerota and lived with them and knew the defendant Teregno. When asked by the judge when she was seven years old, she stated that she did not know. She testified that she went to school near her home but that she did not know what grade she was in; that she went to Sunday school near her home, that she did not know the name of the church, that the name of her teacher was Miss Zanetti, that she knew, when she held up her right hand, that it was an oath, and that “little girls who don’t tell the truth . . . die and they go to hell, ” and that, if she did not tell the truth in testifying that day, she would "go to hell.”</p> <p>In the direct examination of the defendant Teregno, he stated that he had had improper relations with the other defendant at her home, but that such relations were at her urgent solicitations. He also testified that his confession was improperly secured from him. He admitted in his direct testimony that he had shot the decedent, but stated that it was done when he was attacked with an axe, and contended at the trial that the death was caused by a blow of an axe and not by the shooting.</p> <p>Other material evidence, instructions and rulings by the judge and exceptions of the defendant are described in the opinion.</p> <p>The jury found the defendant Cammerota guilty of manslaughter and the defendant Teregno guilty of murder in the first degree. The defendant Teregno alleged exceptions.</p>

<p>Worhmen’s Compensation Act, To whom act applies, Independent contractor.</p> <p>One who makes a contract to draw logs for a certain amount per cord, furnishing and caring for his own team and assuming no obligation to draw the logs at any particular time but doing it at his convenience in connection with other business, is an independent contractor and not an employee under the provisions of the workmen’s compensation act and, if injured while engaged in the performance of the contract, is not entitled to the benefit of the provisions of the act.</p>

<p>Contract, What constitutes, Implied, Ratification. Infant. Parent and Child. Dentist. Evidence, Admissions and confessions. Witness, Failure to testify. Practice, Civil, Ordering-verdict.</p> <p>At the trial of an action against a father upon an account annexed for services as a dentist rendered to the defendant’s minor son, there was evidence that the services were performed and that they were necessary for the health of the son. There was no evidence that the father knew that the work was necessary or that he knew that it was being done. At the time when the work was done, the plaintiff did not know the father’s name and the services were not rendered on his credit. Held, that there was no evidence warranting the submission to the jury of a question, whether the work was authorized by the father.</p> <p>At the trial of the action above described, it further appeared that the work was charged to the son personally on the plaintiff’s books, and that, after it was completed, a bill was sent to the son; that afterwards, the plaintiff having ascertained the father’s name, bills were sent to the father, some of which were made out to the son. On one of the bills made out to the son and sent to the father, the plaintiff wrote, “Will you kindly let me have the above amount this month?” The father returned this bill with the statement, signed by him, “You won’t get any money on this bill for quite some time yet.” Thereafter a bill, made out to the father, was sent to the son. There was no evidence that this bill was called to the father’s attention before the action was brought. He did not reply to it. Held, that there was no evidence warranting a submission to the jury of the question, “Was the work done by the plaintiff . . . ratified .by the defendant? ”</p> <p>The sending to a father of a bill for dentist’s services rendered to and charged to his minor son is not notice that a claim had been or was then made against the father for the services; and therefore, a reply by the father to such a bill, stating that the dentist would not get any money on the bill “for quite some time yet, ” was not evidence either of an admission by the father of liability or of ratification by him of the work being done upon his credit.</p> <p>A failure of a father to make any reply to a letter sent to his minor son and containing a bill, charged to the father, for dental services rendered to the son, is not evidence, in an action against the father, of an admission of liability or of ratification by the father, where it does not appear that the father knew that the services were being rendered or that he received the bill before the bringing of the action.</p> <p>A failure of a defendant, although present in court, to testify or to offer evidence in his own behalf is not evidence tending to support the allegations of the plaintiff’s declaration unless and until the plaintiff has produced evidence warranting a submission of the action to a jury.</p> <p>In the action above described there was no evidence that the father knew or ought to have known, at the time when the plaintiff performed his services, that the son’s teeth needed attention or that the father neglected to provide for the care of the son’s teeth, and it was held that it was error to submit to the jury the question, "Did the defendant neglect to furnish his son the dental services that he needed?”</p> <p>In an action on an account annexed for dental services, where the defendant rests at the close of the plaintiff’s evidence and the jury answer favorably to the plaintiff certain special questions bearing upon the defendant’s liability but not upon the amount of damages, it is error to order the jury to find for the plaintiff for the full amount of his claim.</p>

<p>Tort for personal injuries alleged to have been received by reason of the plaintiff being thrown to the ground by the starting, as he was attempting to board it, of an electric street car of the defendant. Writ dated September 10, 1917.</p> <p>In the Superior Court the action was tried before Keating, J. The testimony of the defendant’s conductor in cross-examination, referred to in the opinion, was as follows:</p> <p>“Q. What did you think Mr. Kendall came across the street front of your car for? A. As a rule when they are waiting there for a car they walk from where they are standing down to the terminal to get on, on account of having to lay off there they get any seat in the car — obtain their seats. — Q. You mean that is what you thought he was going to do when he came across. I asked you if you thought Mr. Kendall crossed the street there to take your car? A. That is what I thought he was going to do. —Q. You thought he was going to walk down to this terminus and take the car? A. Yes.”</p> <p>It appeared that the street car was an open car with reversible seats running across it. Other material evidence is described in the opinion.</p> <p>At the close of the evidence the defendant moved that a verdict be ordered in its favor. The motion was denied. After the judge had given the instruction quoted in the third paragraph of the opinion, the defendant’s counsel said, “Quite right.” The judge then, continuing his charge, stated the contention of the defendant upon its evidence to be as described in the opinion, and said: “If you find that the accident occurred in the manner and in the place in which the defendant contends it occurred, then the plaintiff cannot recover.”</p> <p>The jury found for the plaintiff in the sum of $900; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice, Requests and rulings, Exceptions, Decree. Evidence, Relevancy and materiality, Competency, Res inter alios.</p> <p>A request for an instruction to be given to a jury trying an issue submitted to them in a suit in equity, which assumes as true a fact put in issue by the answer and not conceded to be true, may be refused.</p> <p>At the trial, in a suit by a brother against' his sister, of an issue, whether a deed from their mother to the sister was procured to be executed through the fraud or undue influence of the sister, it is proper to exclude as evidence a letter, written two years and five months before the date of the deed in question by the husband of the defendant to the chief of police of the city where all the parties lived and containing statements discrediting the plaintiff with the police, if it does not appear that either the defendant or the mother had knowledge of the contents of the letter before the deed was executed or that the plaintiff thereby was discredited with the police.</p> <p>At the trial above described, it also was proper to exclude evidence, which was offered to show ill will of the defendant toward the plaintiff and which was to the effect that, after the funeral of the mother, a daughter of the defendant stated to the plaintiff in the defendant’s presence that there was no will and that everything in the house, meaning household goods, belonged to her (the daughter), and that the defendant remained silent “while this statement was heard,” such statement being incompetent as res inter alios and irrelevant and immaterial.</p> <p>Where, after the allowance and before the determination of exceptions taken at the trial of an issue framed in a suit in equity, a final decree is entered from which the party aggrieved appeals, the decree has no greater force than an order for a decree, and, upon the overruling of the exceptions in this court, a rescript will issue dismissing the appeal and directing the entry of a decree in conformity with the terms of such order.</p>

Tout by the administratrix of the estate of Michael Buoniconti for causing the conscious suffering and death of the intestate, a boy less than fourteen years of age, alleged to have resulted from his being run into in the night time by a motor vehicle driven by the defendant. Writ dated January 24, 1916. In the Superior Court the action was tried before O’Connell, J. Material evidence and exceptions of the defendant are described in the opinion.

<p>Evidence, Of conviction, To affect credibility. Witness, Impeachment.</p> <p>Under St. 1914, c. 406, amending St. 1913, c. 81, and R. L. c. 175, § 21-, the conviction of a witness of a misdemeanor cannot be shown to affect his credibility as a witness more than five years after the conviction unless within that five years the witness again was convicted of a crime, although a subsequent conviction may have occurred more than five years after the earlier conviction and within five years before the time of his testimony which it is sought to impeach.</p>

<p>Malicious Prosecution. Evidence, Of malice, Presumptions and burden of proof. Practice, Civil, Conduct of trial: requests and rulings.</p> <p>At the trial of an action for malicious prosecution, it appeared that the defendant had prosecuted his own brother for breaking and entering and larceny of certain goods and that, after the brother had pleaded guilty and had been convicted, the defendant had instituted against the plaintiff a complaint for receiving the stolen goods. The defendant was asked what reason he had for thinking that the plaintiff knew that the goods had been stolen, and answered, “Why, the way Mrs. N had told me, and that I wanted to get my goods back, and she had told me how this automobile came just about dusk and how they were carried, out of the window, and when I heard . . . those fellows were there, why, it looked kind of funny.” Held, that it was not necessary to find from the foregoing answer as a matter of law that the defendant’s sole motive in instituting proceedings against the plaintiff was to get his property back.</p> <p>It therefore was proper, in the action above described, to refuse to rule as matter of law that, “ if the defendant instituted or was a party to instituting the criminal proceedings against the plaintiff for the purpose of using such criminal proceedings as a means of securing a return of the property, it is conclusive evidence of malice.”</p> <p>A request for a ruling that on all the evidence a verdict should be ordered for the plaintiff must be refused in an action of tort for malicious prosecution where the existence of malice is in issue.</p>

Tort for personal injuries resulting from the plaintiff being thrown to the ground by reason of a collision between a wagon in which he was riding and an electric street car of the defendant. Writ dated January 9, 1914. In the Superior Court the action was tried before Callahan, J. The declaration, material evidence and exceptions of the plaintiff are described in the opinion. The jury found for the defendant; and the plaintiff alleged exceptions.

<p>Tort by the administratrix of the estate of Joseph Mercier, with a declaration, as amended, in eight counts, the seventh and eighth counts, the only ones relied on at the trial, being for causing the death of the plaintiff’s intestate on May 20, 1916. Writ dated June 14, 1916.</p> <p>The case previously was before this court, when exceptions by the plaintiff to the ordering of a verdict for the defendant were sustained in a decision reported in 230 Mass. 397.</p> <p>The case was tried again in the Superior Court before J. F. Brown, J. The material evidence at this trial is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The defendant also requested that certain specific questions be- submitted to the jury. This request was denied. The following rulings also were asked for by the defendant and were denied:</p> <p>“9. The plaintiff is -not entitled to recover under count seven of her declaration.”</p> <p>“ 13. The plaintiff is' not entitled to recover under the eighth count of her declaration.”</p> <p>“29. There is no evidence that the ordinary headlight as distinguished from the searchlight, and that the lantern on the front end of the car which struck the plaintiff’s intestate were not lighted at the time of the accident.”</p> <p>The jury found for the plaintiff in the sum of $5,857.50; and the defendant alleged exceptions.</p>

<p>Damages, In tort. Trespass. Burial Ground.</p> <p>The rule, often applied in actions of tort for trepass •'upon real estate, that the measure of damages is the difference between the fair market value of the property before the trespass and its fair market value immediately afterwards, is not applicable in an action of tort for trespass upon a family burial ground.</p> <p>Where, in an action of tort for trespass upon a burial ground by the building of a road therein, it appears that the building of the road was a wrongful act from which the plaintiff had a right to be relieved and that the most economical way of repairing the injury was by restoring the premises to their former condition, the cost of such restoration may be found to be the accurate measure of damages.</p> <p>A finding of an auditor, to whom the action above described was referred, which the parties agreed should be final, that no physical injury was done to the land by the driveway, and that the building of the road damaged the plaintiff to the amount of SlOO/did not require a ruling that the plaintiff was entitled to nominal damages only.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board upon an agreed statement of facts, described in the opinion, awarding compensation at the rate of $10.66 per week.</p> <p>In the Superior Court a decree was ordered by Hammond, J., in accordance with the decision of the Industrial Accident Board. The insurer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Railroad, Contributory, Imputed, In use of motor vehicle. Agency, Existence of relation. Motor Vehicle, License to operate. Evidence, Violation of statute as evidence of negligence, Opinion: expert. Witness, Cross-examination.</p> <p>At the trial of an action against a receiver operating a railroad for personal injuries received at six o’clock on a Sunday morning, when a motor vehicle, hired by the plaintiff, was turned from the highway to avoid collision with a railroad train at a grade crossing and ran into a post, there was evidence tending to show that the view of the railroad track from the motor vehicle in the direction from which the train approached was limited by a tree covered hill to one hundred and eighty feet when the motor vehicle was one hundred feet from the crossing, that many motor vehicles used the crossing daily, that there were no gates at -the crossing and no flagman until an hour after the accident, that the railroad train approached the crossing at a speed of thirty miles or more an hour and that the engine bell was not rung nor the whistle sounded. Held, that a finding was warranted that negligence of the defendant contributed to cause the injury to the plaintiff.</p> <p>At the trial of the action described above, it appeared that the injuries to the plaintiff were caused after St. 1914, c. 553, went into effect, that the plaintiff was sitting on the front seat of the motor vehicle as it approached the crossing, that the motor vehicle came almost to a stop between seventy-five and one hundred feet from the crossing, when the plaintiff looked both ways to see if a train was approaching and neither saw nor heard anything to indicate the approach of a train, that, when about fifty feet from the crossing, he again looked and saw the train approaching and shouted to the chauffeur. Held, that the issue, whether the plaintiff personally was in the exercise of due care, was for the jury.</p> <p>It appeared at the trial above described that negligence of the driver of the car contributed to cause the accident and that he had been engaged with his motor vehicle by the plaintiff and others to drive them from Pittsfield to Camp Devens and back for a fixed price, and it was held, that there was no relation of principal and agent between the driver and the plaintiff and that the driver’s negligence did not preclude recovery by the plaintiff by reason of the law of principal and agent.</p> <p>At the trial above described there was evidence tending to show that the plaintiff entrusted himself to the care of the operator of the motor vehicle so far as the operation of the vehicle was concerned, but that he did not rely upon him to watch out for the approach of railroad trains at grade crossings, and it was held, that it could not be said as a matter of law that the negligence of the operator must be imputed to the plaintiff.</p> <p>At the trial of the action above described, it further appeared that the chauffeur was operating the motor vehicle without an operator’s license, and it was held, that, while, under St. 1915, c. 16, § 5, riding with the chauffeur under such circumstances was some evidence of negligence on the part of the plaintiff, it could not be ruled as a matter of law that it was negligence which contributed directly to cause the plaintiff’s injuries so as to preclude him from recovering.</p> <p>At the trial described above, in view of the rule stated in St. 1917, c. 246, § 3, to govern the driving of motor vehicles when approaching grade crossings, it was proper to exclude a question asked by the plaintiff of a skilled chauffeur, “As a chauffeur, when you approach a grade crossing where your view is obscured, what do you usually do? What is the proper practice with reference to stopping the car and making observations and then starting ahead?” the plaintiff offering to prove “that the proper practice is to slow down, take a view of the track, look and listen, make as certain as possible under the conditions that a train is not about to approach the crossing, and then start up at full speed in order that, if the engine stalls or there is any trouble with the car on the crossing itself, it may go across under its own momentum.”</p> <p>It was proper, at the trial above described, to permit the defendant, in cross-examination of one of the other occupants of the motor vehicle, to ask, “ Can you give any explanation to the jury why, if that train was in plain view after it got one hundred and eighty feet from the crossing, you didn’t see it until it was within twenty or twenty-five feet of the crossing ? ”</p> <p>The fact that the chauffeur was driving without an operator’s license was admissible in evidence at the trial above described.</p>

<p>Deceit. Fraud. Contract, Implied, Rescission. Practice, Civil, Amendment, Exceptions. Election. Sale.</p> <p>At the trial of an action of contract to recover an amount paid by the plaintiff to the defendant in the purchase of shares of stock of a certain corporation after the purchase had been repudiated by the plaintiff on the ground that it was procured by deceit and fraud of the defendant, there was evidence tending to that the plaintiff, at the time of the transaction in question, was a shareholder in and that the defendant was the treasurer and general manager of the corporation, that the corporation had issued new stock, giving the shareholders a right of pinchase at par, the right to expire on a certain day; that, after the date of expiration of the right, the plaintiff inquired of the defendant by letter whether all of the new issue of stock had been subscribed for and that the defendant replied by letter that it had expired but that some shares could be procured at an advance above par; that the new issue was not all subscribed for; that, relying on the defendant’s representation, the plaintiff purchased shares from the defendant at- the advanced price and that the defendant knew the falsity of his representation and made it to induce the plaintiff to purchase. Held, that a question of fact was presented for the determination of the jury.</p> <p>It appeared that the misrepresentation by the defendant, above described, was made in September, 1910, and that no attempt was made by the plaintiff to disaffirm the purchase until January, 1915. The plaintiff testified that he first discovered the falsity of the representation by the defendant in January, 1915. There was evidence warranting a finding that the plaintiff knew of the poor financial condition of the corporation before January, 1914. Held, that the question, whether the plaintiff acted without unreasonable delay, was for the</p> <p>A judge of the Superior Court presiding at the trial of an action of tort for damages arising from deceit practiced upon the plaintiff by the defendant and resulting in a purchase by the plaintiff of shares of stock in a corporation, has power in the midst of a trial of the action to allow the plaintiff to amend his writ and declaration to include a count in contract for the recovery, after a repudiation of the sale for fraud and deceit, of the amount paid by the plaintiff as the purchase price for the shares.</p> <p>The bringing of the action, above described, solely in tort seeking damages resulting from the deceit inducing the sale was not an election to treat the contract as valid which precluded the plaintiff afterwards from recovering on the count in contract, added by amendment as described above, for repayment of the purchase price upon rescission of the sale as invalid by reason of fraud.</p> <p>The declaration in an action of tort or contract contained two counts in tort for damages resulting from dfeceit inducing the plaintiff to purchase shares of stock in a certain corporation and one count in contract repudiating the purchase for fraud and claiming a repayment of the purchase price, and alleged that “all of said counts are for one and the same cause of action.” The jury returned a verdict for the defendant on each count in tort and for the plaintiff on the count in contract. After the verdicts, the judge, subject to an exception by the defendant,, permitted the plaintiff to amend the declaration by striking out the phrase, “all of said counts are for one and the same cause of action.” Held, that, even if there was error in allowing the amendment, which was not determined, the defendant was not aggrieved thereby.</p> <p>At the trial of the action above described, it was proper to refuse to grant a request of the defendant for a ruling that, if the representations made by the defendant and set forth in the count in contract “were made in good faith and were believed by him to be true,” the plaintiff was not entitled to recover on that count.</p> <p>An action of contract, which was brought after a repudiation by the plaintiff, for misrepresentations and fraud, of a purchase by him of shares of stock in a corporation, and in which he seeks to recover the amount of the purchase price, offering to return to the defendant the shares, cannot be maintained if it' appears that the plaintiff has not returned nor offered to return dividends which he received upon such shares, amounting to $162.50.</p>

<p>Two petitions, filed in the Superior Court on August 3, 1915, for revision by a jury under St. 1867, c. 106, § 4, of assessments made by the mayor and the board of aldermen of Worcester for sewers laid under the provisions of that statute in Armandale Street and in Apricot Street, respectively, the assessment upon the petitioner for the sewer in Armandale Street being $462.72, and assessments for the Apricot Street sewer amounting to $379.94.</p> <p>. In the Superior Court the petitions were referred to an auditor under an.agreement that his findings of fact should be final.</p> <p>As to the Armandale Street assessment* the auditor made the following, among other findings:</p> <p>“I find that there was included in the cost a proportionate part of the salary of the superintendent of sewers, clerical services, and other ordinary and usual overhead expenses of the sewer department.</p> <p>“I-find that in laying this sewer, the sewer department of the city of Worcester hired from the water department of the city of Worcester an excavating machine, for which said use the sewer department has allowed the water department a fair and reasonable compensation, which amount was charged as a part of the expense of said sewer in Armandale Street, but no more was charged therefor than a fair price for the use of said excavating machine for doing the work in Armandale Street.</p> <p>“I find that the apportionment of the assessment on Armandale Street was equitable, proportional, and legal, unless the facts stated herein shall invalidate the same.</p> <p>“I find that the benefit to the petitioner’s land, as described in said petition, by the construction of said sewer, equals or exceeds the amount of said assessment, and that said premises can be connected with said sewer.” ,</p> <p>As to the Apricot Street assessments, the auditor made the same findings as those stated in the first two of the paragraphs above quoted from his findings as to the Armandale Street assessment, and also the following, among other findings:</p> <p>"I find that a sewer was laid in said Apricot Street abutting on the premises described in said petition, in pursuance to an order duly and lawfully passed and adopted by the city of Worcester.</p> <p>“I find that the sewage system of the city is now based upon a plan of placing in each street where a sewer is authorized to be laid, two conduits, one for the house disposal sewage and the other for the drainage of Underground and surface water, unless such underground and surface drainage can be disposed of by natural drainage, such plan having been adopted by the city at a time prior to the construction of áaid sewer, and I find that these two conduits constitute, together, one system of drainage and sewage disposal.</p> <p>“I find that the cost of both these conduits was included by the city of Worcester in the cost of laying the sewer, as ordered, in said Apricot Street. ...</p> <p>“I find that the apportionment of the said assessments on Apricot Street were equitable, proportional, and legal, unless the facts herein stated shall invalidate the same.</p> <p>“I find that the city of Worcester is required by law to purify its sewage before turning the same into the Blackstone River, and that said dual system of sewers was adopted as a measure reasonably necessary to so purify the sewage.'</p> <p>“I find, however, that the conduit for the underground and surface water, so far as it abuts upon the land of the petitioner described in said petition, is of no value to the petitioner and does not increase the value of his estate, for the reason that the land described in said petition slopes toward a brook within a short distance of said Apricot Street, and that the most reasonable way of securing surface and underground drainage necessary from said premises is to said brook.</p> <p>“I find that the benefit to the petitioner’s land, as described in said petition, by the construction of said sewer, equals or exceeds the amounts of said assessments, and that said premises can be connected with said sewer.”</p> <p>The cases were heard upon the auditor’s reports by O’Connell, J., without a jury. The petitioner asked for the following rulings in both cases the rulings being numbered two and three in the case relating to the Apricot Street sewer and being unnumbered in the case relating to the Armandale Street sewer.</p> <p>“That no portion of the general expenses of the city of Worcester for its water, sewer or engineering departments, whether for the salary of the superintendent of sewers, administration expenses, shop maintenance or otherwise, can be included in the cost of laying and constructing sewer for which the petitioner can be assessed on account of the expenditure of the city for sewers and drains under the provisions of law.</p> <p>“That as items of alleged expense of laying and constructing sewer were improperly included and the actual, proper and legal expense of said sewer cannot be stated, the whole assessment must fall.”</p> <p>As to the Apricot Street assessments, the petitioner also asked for the following rulings: '</p> <p>“1. That the cost of laying and constructing sewer for drainage of surface water cannot be included in the cost of sewer through Apricot Street for which this petitioner can be assessed, on account of the expenditure of the city for drains and sewers under the provisions of existing law.”</p> <p>“4. That the assessments] on Apricot Street is Care] invalid as containing charges for construction of a surface sewer which the auditor has found was not needed to drain the petitioner’s land of underground or surface water.”</p> <p>The judge found that the assessments as made should stand; and the petitioner alleged exceptions.</p> <p>Material portions of St. 1867, c. 106, are as follows:</p> <p>“Section 1. The city council of the city of Worcester may lay, make and maintain in said city all such drains and common sewers as they shall adjudge to be for the public health or convenience, and may repair the same, from time to time, whenever necessary; and the said city and the citizens thereof, shall have the same rights, and be subject to the same liabilities, as if the same had been laid, made or maintained under the provisions of chapter forty-eight of the General Statutes, except as hereinafter provided.”</p> <p>“ Section 4. Every person owning real estate upon any street in which any drain or sewer may be laid under or by virtue of this act, and upon the line thereof, or whose real estate may be benefited thereby, shall pay to said city such sum as the mayor and aldermen shall assess upon him as his proportionate share of the expenditure of the city for drains and sewers; and the sum so assessed upon him shall constitute a lien upon said real estate for two years after it is assessed; and if not paid within ninety days after notice of said assessment served upon the owner of said land, or his' agent, may be levied by a sale of said real estate to be conducted in the same manner as a sale of real estate for the nonpayment of taxes. And any person aggrieved by the doings of the mayor and aldermen under this section, may at any time within three months from receiving notice of any assessment, apply for a jury in the manner provided in the sixth section of the forty-eighth chapter of the General Statutes.”</p> <p>The cases were submitted on briefs.</p>

<p>Workmen’s Compensation Act, To whom act applies, Procedure. Agency, What constitutes. Partnership.</p> <p>Where a single member of the Industrial Accident Board finds, upon evidence warranting the finding, that a claimant at the time when he received his injuries was hired by a foreman of the employer as a woodchopper and paid by the foreman, with money furnished by the employer, $2 a cord for wood chopped, and that he was not an independent contractor, and such finding is affirmed and adopted by the Industrial Accident Board, it must stand on an appeal to this court from a decree of the Superior Court in accordance with the decision of the Industrial Accident Board.</p> <p>At the hearing of a claim for compensation before a single member of the Industrial Accident Board, it appeared in evidence that the claimant at the time of his injury was employed by a partnership, apparently conducting business under the name of one of the partners. There was no finding as to the form of the insurance policy and it was not produced in evidence. The single member found that the partner in whose name the business was conducted “had a partnersbip interest in the work which was being conducted at the time of the injury and that the policy of insurance was effective at the time of said injury." The record of the hearing before the full board stated the questions there raised, which did not include any question as to whether the policy of insurance was applicable. The board affirmed and adopted the findings and rulings of the single member and a decree was entered in the Superior Court in accordance therewith. On an appeal from such decree, the insurer contended that there could be no recovery because the claimant was employed by the partnership and the subscriber was one member of the partnership only. TIeld, that such a contention was not open to the insurer upon the record.</p>

<p>Trust, Construction. Tax, Upon trust property.</p> <p>Where, by the provisions of a will, a fund is placed in trust for the obvious dominant purpose of paying, first, certain fixed sums called “annuities” at stated intervals to the testator’s immediate family and other beneficiaries, and, after such payment is assured, other sums to various charitable institutions, the fund is not one held mainly for the future benefit of residuary legatees subject to certain annuities, and therefore is not taxable under St. 1909, c. 490, Part I, § 23, cl. 6, and is taxable under cl. 5 of that section as property held in trust, the income of which is payable to another person.</p>

<p>Contract for damages resulting from a breach by the defendant of an agreement to deliver eight hundred bags of rice to the plaintiff. Writ dated May 5,1917.</p> <p>In the Superior Court the action was tried before Fessenden, J. The material evidence is described in the opinion.</p> <p>At the close of the plaintiff’s evidence, the defendant, without resting, asked for a ruling "that there was no evidence of the arrival of a car in Boston.” The judge, subject to an exception by the defendant, refused so to rule until the evidence was all in.</p> <p>At the close of all the evidence, the defendant orally requested the judge to take the case from the jury for the reason that no car had arrived on May 5, 1917, the date of the plaintiff’s writ.</p> <p>The defendant requested the following rulings:</p> <p>“1. This was a sale of rice ‘on arrival of car’ in Boston at some future date. .</p> <p>“2. The agreement for the delivery of the rice was conditional and subject to its arrival in Boston at some future time.</p> <p>“3. The obligation of the defendant to deliver the rice was contingent on arrival of car containing it in Boston at some future time.”</p> <p>“6. There is a fatal variance between the declaration and the evidence.</p> <p>“7. At the date of his writ no cause of action had accrued to the plaintiff.</p> <p>“8. Upon the whole evidence the plaintiff cannot recover.”</p> <p>The judge refused to rule as requested and refused to rule as a matter of law that the memorandum, quoted in the opinion, expressed the contract, and submitted to the jury the question as to whether or not an oral contract was made as contended by the plaintiff. “Full and particular instructions were given to the jury as to what was necessary for the making of a contract, as to the necessity of the meeting of the minds of the parties in all the essential elements of a contract and as to any modifications thereof, to which no exceptions were taken.”</p> <p>There was a verdict for the plaintiff in the sum of $3,188.42; and the defendant alleged exceptions.</p>

<p>Broker, Commission.</p> <p>At the trial of an action by a broker against a bank for a commission for procuring a customer for the purchase of certain real estate which the bank had been compelled to take upon foreclosure of a mortgage that had been placed at the request of the plaintiff, there was evidence warranting findings that the plaintiff personally had nothing to do toward effecting the sale; that another agent, whom he procured to assist him, never saw the purchaser, N, but did see a third broker who previously had been employed by N in many transactions and who refused to deal with property that the plaintiff had to do with and did not even call the property in question to the attention of N; that the third broker later entered into negotiations with a fourth broker looking toward a sale of the property in connection with a loan by the defendant to N upon another piece of property, but that these negotiations fell through; that, later, N wished a loan upon still a third piece of property and with the third broker saw officers of the defendant who later informed the third broker that the defendant would make the loan sought if N would buy the property in question; and that that transaction was carried through. Held, that findings that the plaintiff was not the efficient cause of bringing about the sale, and for the defendant, were warranted.</p>

<p>Tort, under R. L. c. 51, § 18, for personal injuries suffered by the plaintiff on July 13, 1917, in the daytime and alleged to have been caused by a defect in the sidewalk of Green Street in Stone-ham. Writ dated November 1, 1917.</p> <p>In the Superior Court the action was tried before Aiken, C. J. The material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings:</p> <p>"1. That on the evidence and pleadings, the plaintiff is not entitled to recover.</p> <p>“2. That there is no evidence that the plaintiff was in the exercise of due care.</p> <p>“3. That there is no evidence that the defendant town was negligent.</p> <p>“4. That there is no evidence of a condition amounting to a defect or want of repair in the way, for which the defendant town would be liable.”</p> <p>“ 13. The fact that the plaintiff was an inhabitant of the town and had lived near the place of the accident several years, and knew of the defect, tends to show carelessness on his part.</p> <p>“14. That if the plaintiff knew of the existing defect and crossed without giving any thought to it, he cannot recover.” These rulings were refused. On the question of the due care of the plaintiff, the Chief Justice 'charged the jury as follows:</p> <p>“I come now to Junkins’ conduct. He went over this street daily and had, for some months, from the time his cow was put to pasture. He had such knowledge of the condition of the street as you may reasonably conclude a man would gather from going over the street every day with his cow. There is evidence in the case Junkins knew the conditions for some years before, as I infer he pastured his cow or had passed over this sidewalk at- the point where he claims he was hurt. A man does not, by reason of his acquaintance with defective conditions, if there are such in the way, deprive himself of the right to recover. He is under obligation, however, if he is aware there are existing conditions that are dangerous, to be more cautious. The greater his acquaintance with the defective condition, the greater the obligation upon him to conduct himself with the proper degree of care and be in mindfulness of those conditions. A person walking along the street is not obliged to keep his eyes on the ground. He might run into other dangers if he did that. He is not obliged to keep his eyes on the ground every step he takes. The" obligation that is upon him is to behave in walking along the pathway as a reasonable, sensible and prudent person would act, bearing in mind, as I have already said to you, that mindfulness of defective conditions calls upon him to proceed with more care than might be the case if he were a stranger to the locality. If it is your conclusion here was a situation of which Junkins was so well acquainted that his conduct in passing over the street at the time he claims he was hurt was not that of a reasonable, sensible and prudent man, and his failure to observe the care that a reasonable, sensible and prudent man should have observed, led to his stumbling and falling over the wall, then he cannot recover, although the town may have failed to come up to the standard of safety that is imposed by the statute, namely, reasonable safety and reasonable convenience.”</p> <p>No exceptions were taken to the charge other than those taken to the refusal to rule as requested by the defendant. There was a verdict for the plaintiff in the sum of $900; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed in the Supreme Judicial Court on March 13, 1919, for a writ of certiorari addressed to the public service commissioners, directing them to certify to the court all their orders and proceedings relating to a petition, filed on December 7, 1917, under St. 1905, c. 422, § 2, for a determination of the reasonable rent to be paid by the Boston and Maine Railroad and the New York, New Haven, and Hartford Railroad Company for the use of the union passenger station at Worcester, with such an extension of their records as would state all the material facts upon which the commission proceeded and their rulings thereon, to the end that the same might be dealt with as law and justice might require.</p> <p>From the return of the respondents, it appeared that, after a hearing on the petition before them, their chairman on September 16, 1918, wrote to the attorney for the petitioners a letter reading as follows: “I have just completed a draft of a report upon the pending petition of the Boston & Albany Railroad Company for determination of the rental for the use of the Union station in Worcester. I have also prepared a draft of the order to accompany the report, and enclose a copy of the same herewith, the amount determined as the cost of the station for the purposes of this case being left in blank. I have attempted to embody in the order the terms of the agreement between parties so far as applicable. Would you be kind enough to look this over and advise me as soon as possible of any changes or additions to the order which appear to you to be desirable for a full and correct statement of the terms agreed to.”</p> <p>The return further stated that on September 19, 1918, the petitioners’ attorney replied to the above letter with the following ■ letter: “Replying to your favor of the 16th inst., enclosing draft of order relative to the Worcester Station rental, my only suggestion is that the effective date of the valuation of the station building should not be January 1, 1916, but should be January 31, 1918, the date of the termination of the contract between the parties. As I stated at the hearing, I understood that the parties were agreeable to having the percentages revised from January 1, 1916, but that did not apply to ‘ Schedule A,’ so-called, involving the cost of the station.”</p> <p>The return of the respondents then stated that on October 9, 1918, the commission made certain findings of fact and the order objected to was entered. Among the findings of fact was the following: “The parties have agreed that the award so made by the commission shall be effective from January 1, 1916.” The last paragraph of the order read: “4. This award shall be effective as of the first day of January, 1916, and shall continue in force thereafter until terminated in accordance with the provisions of section 2 of chapter 422 of the Acts of 1905.”</p> <p>The petition was heard by Loring, J. Certain rulings, asked for by the petitioners and raising the questions described in the opinion, were refused. The petitioners alleged exceptions.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board awarding compensation to the widow of Arthur N. King, who had died as the result of injuries received while in the employ of the Globe Newspaper Company in Boston:</p> <p>The evidence before the single member of the Industrial Accident Board showed that the employee was employed up to Saturday noons with the Atlantic Printing Company and that, for a period of years, he had worked for the Globe Newspaper Company Saturday nights in assisting to run the web presses upon which were printed the Sunday editions of the newspaper. The findings and ruling of the single board member were as follows:</p> <p>“The principal question raised by the record is as to the average weekly wage upon which the amount of compensation to be paid the dependent is to be based. This employee worked but one night a week; and it is therefore impracticable to compute his average weekly wages by dividing his total earnings for a period of the twelve calendar months immediately preceding the date of the injury by fifty-two. That being so, regard may be had to the average weekly amount earned by a person in the same trade, employed at the same work, by the same employer. I find there were such persons, namely, web pressmen, employed by the Globe Newspaper Company, doing practically the same work as this deceased, and that their average weekly wage was at least $31.52 a week. As two-thirds of this amount is in excess of $10, the insurer should pay the petitioner, as total dependent, the sum of $10 a week for the statutory period.”</p> <p>The full board affirmed the findings and ruling of the single member.</p> <p>In the Superior Court the case was heard by Wait, J., and a decree was entered awarding the claimant “weekly compensation of ten dollars for a period of four hundred weeks.” The insurer appealed.</p> <p>The material portion of St. 1911, c. 751, Part V, '§ 2, is as follows: “The following words and phrases, as used in this act, shall, unless a different meaning is plainly required by the context, have the following meaning: . . . ‘Average weekly wages’ shall mean the earnings of the. injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks’ time during such period then the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted. Where, by reason of the shortness of the time during which the employee has been in the employment of his employer, or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer; or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.”</p>

<p>Tort for the alleged conversion of a soda fountain and its fixtures. Writ in the Second District Court of Bristol dated September 3, 1912.</p> <p>On appeal to the Superior Court, the case was heard by White, J., without a jury.. The material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings:</p> <p>"1. Upon all the evidence the' plaintiffs are not entitled to recover.</p> <p>“2. The rights of the parties are to be determined solely by the contract contained in the lease and the lien notes.</p> <p>“3. At the date of the assignment to the defendant, Jackson had a transferable interest in the goods in suit which passed to the defendant under this instrument.</p> <p>“4. Under the assignment to the defendant he represented the creditors of Albert Jackson.</p> <p>“5. At the date of the attempted transfer from the conditional vendor to the plaintiffs, the goods in suit were in the possession of the defendant as representative of Jackson’s creditors, and such attempted transfer conveyed no title to the plaintiffs as against them sufficient to enable the plaintiffs to maintain this action.</p> <p>“6. The defendant’s offer to pay the lease notes if and when they should be produced was a sufficient tender.</p> <p>“7. This action is an attempt to evade the statute giving the right of redemption in cases of conditional sales and cannot be sanctioned.”</p> <p>The judge refused to rule as requested and found for the plaintiffs in the sum of $90. The defendant alleged exceptions.</p> <p>R. L. c. 198, § 11, referred to in the seventh ruling asked for by the defendant, is as follows: "If a contract for the sale of personal property is made on condition that the title thereto shall not pass until the purchase money has been fully paid and the ' vendor upon default takes from the vendee possession of the property, the vendee may, within fifteen days after such taking, redeem the property so taken by paying to the vendor the full amount then unpaid, with interest and all lawful charges and expenses due to the vendor.”</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Amount of compensation.</p> <p>In a proceeding under the workmen’s compensation act, it appeared that the employee for several years before March, 1917, had been employed as the janitor of a building; that then he left that employment and went to work for a shipbuilding corporation; that his wife was employed in his stead to do a substantial part of the work which he previously had done as janitor and received stated weekly wages therefor; that for a time the employee, at the suggestion of his former employer, while still working for the shipbuilding corporation, occasionally assisted his wife, for which he received no compensation; that in April, 1917, he was engaged by his former employer to wax the floors of the building at regular intervals, for which he received $1 every two weeks, and that, in December, 1917, while so engaged, he received injuries which resulted fatally. Held, that his employment was not as janitor but solely for waxing floors, and that the compensation to be paid to his dependent should be computed on the basis that his average weekly wage was fifty cents.</p>

<p>Practice, Civil, Exceptions, Rules of court.</p> <p>A judge of the Superior Court, upon the presentation to him for allowance of a bill of exceptions, attached to it a certificate, with a redraft of the bill made by him, stating that the original bill should be disallowed unless the excepting party on or before a certain date should file a motion to amend his bill so that it should read as stated in the redraft made by the judge, in which event the bill so amended should be allowed if the judge had power to do so. The excepting party filed a motion to amend as suggested but added to the motion a statement that, by reason of the decision in Cornell-Andrews Smelting Co. v. Boston & Providence Bmlroad, 215 Mass. 381, he desired to “reserve” his “objection to the form taken by the exceptions” wherein, in a certain paragraph, the evidence and colloquies were set out as in the court stenographer’s notes. Held, that the motion with the “reservation” was not unqualified and di4 not conform to the order of the judge as to an amendment of the bill of exceptions.</p> <p>At a time when Rule 54 of the Superior Court (1915) was in force, the time for the allowance of a bill of exceptions had been extended to August 1. Previous to July 26 there was a hearing on the bill and on that day the judge attached to the original bill a certificate including a redraft of the original bill made by him and an order that the original bill should be disallowed unless the excepting party should, on or before August 1, file a motion to amend that bill so that it should read in accordance with the redraft made by the judge, in which event the motion to amend should be granted and the bill as amended be allowed provided the judge had power to do so. On July 31, the excepting party Med such a motion to amend and on August 5 that motion was allowed and the judge indorsed upon the amended bill a statement that it was allowed “provided and in so far as I have the power to do so.” Held, that there was no allowance of a bill of exceptions in any form on August 1, nor any extension of time for allowance; and therefore that the exceptions must be dismissed.</p>

<p>Workmen’s Compensation Act, Dependency. Parent and Child. Statute, Amendment.</p> <p>A minor under the age of eighteen years, who, by reason of the facts that his father received injuries while in the employ of a subscriber under the workmen’s compensation act and afterwards died and that his mother is not living,'would have been entitled to compensation as one presumed under St. 1911, c. 751, Part II, § 7, to be wholly dependent upon the father if he had been living with him at the time of his death, is not so presumed to be wholly dependent if he had been deserted by his father and was living apart from him for justifiable cause.</p> <p>The amendment to the workmen’s compensation act contained in St. 1914, c. 708, § 3, whereby the provision of the original act, that a wife should be conclusively presumed to be wholly dependent upon a deceased employee if she was living with him at the time of his death, was extended to include a wife who should be found by the Industrial Accident Board to have been living apart from the employee for justifiable cause at the time of his death or to have been deserted by him, does not justify reading, by implication or enlargement, into that provision of the original act which enacted that a child under eighteen years of age should be conclusively presumed to be wholly dependent upon the parent with whom he is living at the time of the death of such parent, there being no surviving dependent parent, a provision that such child should be conclusively presumed to be wholly dependent upon such parent if he is living apart from him for justifiable cause or has been deserted by him.</p>

<p>Agency, Scope of employment. Parent and Child. Evidence, Presumptions and burden of proof.</p> <p>Where at the trial of an action for damages resulting from negligence of a son in driving a motor vehicle of his father, the material evidence, if accepted by the jury as true, compelled the conclusion that, when the damage was done, the son was not acting as the agent or servant of the father and there was no affirmative evidence that he was so acting, and a verdict for the defendant was ordered, an exception of the plaintiff to such order should not be sustained merely because the jury might have been warranted in disbelieving a part or the whole of the evidence.</p>

<p>Negligence, In maintenance of department store. Evidence, Presumptions and burden of proof.</p> <p>Evidence, at the trial of an action against the proprietor of a department store for personal injuries caused by tripping on a wire mat when leaving the store, which tended to show that the mat was near the exit, that it was “humpy and badly curled,” was about three feet wide and about four or five feet long and was set in a “groove about an inch wide” with its edge, where the plaintiff tripped, above the groove and “a little higher than where it sets in,” will not warrant a finding of negligence on the part of the defendant or his servants in the absence of evidence tending to show what caused the condition of the mat or how long the condition had existed before the accident or that the defendant or his employees knew or in the exercise of reasonable care should have known of that condition.</p>

<p>Four actions of contract upon promissory notes of the Carolina Coast Products Company, a corporation, payable to the defendant corporation, Harden, Orth and Hastings Company, and indorsed by it. The first action is upon one of such notes amounting to $2,500, the second upon two of them for $2,500 and $1,250, respectively, the third upon two of them for $5,000 and $6,500, respectively, and the fourth upon one of them for $2,500. Writs in the first two actions dated December 17, 1915, in the third action dated December 6, 1915, and in the fourth action dated January 21, 1916.</p> <p>In the Superior Court the actions were referred to and were heard together by an auditor, and, after the filing of the auditor’s report, were tried together before Keating, J.</p> <p>There was evidence tending to show that the Carolina Coast Products Company, the maker of the notes which were the foundation of the actions, was organized in 1913 and was engaged in the business of fishing for menhaden and manufacturing them into fish oil and fertilizers. One Greenamyer and one Chadwick had been active in organizing the Corporation and in November, 1914, together owned a majority of its capital stock and controlled it and were liable as indorsers upon paper of the corporation amounting to $20,282.50. The corporation owed the defendant a large sum of money by reason of its failure to perform a contract to deliver goods for which the defendant had paid in advance.</p> <p>Greenamyer and the president of the Carolina Coast Products Company, one Bussels, approached Orth, the president of the defendant, in New York to interest him in purchasing an interest in the corporation. After some negotiations in which some figures as to the financial standing of the corporation were stated to Orth, Orth and his counsel went to Wilmington, North Carolina, further to investigate the proposition. They were met by Greenamyer, Chadwick and Bussels and there were further negotiations, during which Greenamyer gave Orth a financial statement, purporting to show the corporation’s condition as of November 1,1914. This was written on paper of an orange color and consequently was referred to in the testimony and is referred to in the opinion as the “orange statement.” Examining it later, Orth found that it differed so much from the statement made to him previously, that he decided not to go further with the negotiations, and so stated. One Cooper, the president of the American National Bank of Wilmington, North Carolina, and also of the plaintiff, Bank of Southport, then was called into the negotiations. The American National Bank held obligations of the Carolina Coast Products Company amounting to $25,000, and the Bank of Southport also held some of its paper.</p> <p>Through Cooper’s intervention, a price for which the defendant should purchase the stock of Greenamyer and Chadwick later was agreed upon. As a part of the negotiations, the defendant was to hold Greenamyer and Chadwick harmless on their indorsements of the corporation paper, Cooper’s bank, the American National Bank, was to extend for one" year the obligations of the ■corporation which it held, and the corporation was to execute and give to the defendant and the defendant was to indorse the notes which form the basis of this action and which were to be used to take up notes of the corporation outstanding and overdue. On November 14, 1914, the notes in question were made out, signed by Bussels as president of the Carolina Coast Products Company and indorsed by Orth for the defendant and were left with Orth. At that time Cooper signed and retained a receipt reading as follows:</p> <p>“Wilmington, N. C.</p> <p>Nov. 14,1914</p> <p>Messrs. Harden, Orth & Hastings Co., Boston, Mass. Gentlemen: This will acknowledge receipt of six notes of the Carolina Coast Products Co. aggregating $20,250.00 which we are to retain and in lieu therefor we are to return to you notes carrying the endorsement of the Carolina Coast Products Co. aggregating approximately the same amount, all of which are now past due with the exception of a direct obligation of the Carolina of approximately $6,600.00, which $6,600.00 is in Washington, D.C. All of the past due notes mentioned are held for the account of yourselves to be turned over to you or to be handed to your Attorneys, for your account, without any liability on our part. It is understood that we are to make draft on you for the difference on account of the difference in principal of the notes mentioned and also to send you memorandum of the transaction and to also make draft on you for the interest on the $20,250.00 for the twelve months, the time they are to run.</p> <p>Yours very truly,</p> <p>Thos. E. Cooper.</p> <p>P. S. It is distinctly understood that these past due papers mentioned are to be returned to you free from any Attorney fees that may have been incurred.</p> <p>Thos. E. Cooper.”</p> <p>In the meantime, Orth’s attorney had been examining the title of the Carolina Coast Products Company to its real estate and he and Orth were making weekly trips to Wilmington and Southport. On November 17, he discovered a defect in the title, which, however, could be remedied and, in order to prevent the existence of that defect from delaying the transaction, Greenamyer and Chadwick and .Cooper joined in a guaranty of the title. There was evidence, which was controverted, tending to show that, up to the time of the delivery of this guaranty, nothing was said about the new notes, which were still in Orth’s possession, and that he did not contemplate delivering them to Cooper and did not understand that they were to be delivered until the title was perfected. Cooper, however, said that he wanted to have them in his bank as "he had a big indebtedness of the Carolina Coast Products Company and his directors were after him regarding it.” Orth’s attorney advised Orth not to deliver the notes to Cooper. Orth, however, did deliver them and there was evidence that he did so upon the express understanding that Cooper should keep them in his possession until the title should be perfected. At the same time Cooper handed Orth the receipt, quoted above and dated November 14, 1914. Immediately thereafter Orth and his attorney hurried for the train, Orth stating that they would return in the course of a few days to examine further into the title and that he wanted to go over the books.</p> <p>They returned the next week and an examination of the books of the Carolina Coast Products Company was made with the assistance of its secretary and treasurer, one Sumner, who also was a member of its board of directors. The results of this examination, as shown from the testimony of Sumner and certain prepared statements, were admitted in evidence subject to exceptions by the plaintiffs, their objection, as stated in their brief, being “based not on the ground that statements made up by Sumner were offered instead of the original books themselves, but on the ground that the figures as shown by the books, if the books had been offered, would not have been admissible, because there was no evidence in the case tending to show that Cooper ever saw the books or was ever told what the books actually showed or had any knowledge of their contents.”</p> <p>In the course of Sumner’s testimony occurred the following: “Q. Did you ever tell him [T. E. Cooper] anything about your finances specifically? A. I most certainly did. — Q. What did you ever tell him specifically? A. I told him about practically everything that came up and we had a hard job to pay.— Q. You went to him whenever you wanted money? A. We certainly did.”</p> <p>The examination by Orth with Sumner disclosed that the financial condition of the corporation was so much worse than was shown by the “orange statement” that Orth at once on November 24, 1914, attempted to rescind the transaction by tendering back to the various parties what they had given in the transaction. It then appeared, however, that Cooper already had delivered the notes in question in the first three suits. He later delivered the note which was the basis of the last action.</p> <p>It was contended by the plaintiffs that the notes in question were delivered to Cooper absolutely, he binding himself to take up the old notes and send them to the defendant, and that he guaranteed the company is title to its real estate in order to get the notes delivered to him absolutely, thus closing the transaction so far as he was concerned. The defendant on the other hand contended that Orth for the defendant gave the notes to Cooper to hold until Orth’s attorney had completed his examination of the title and until he had either found it good or until the defects had been cured, and that Orth took Cooper’s guarantee not in lieu of a good record title but to protect his company in respect to advances which it would make immediately to the Carolina Coast Products Company to meet its payrolls and to provide steamboats for the fishing season which had just begun.</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the plaintiff asked that certain instructions be given to the jury. Those numbered 9-c, 9-d, 10 and 11 are quoted in the opinion. Others, with the action of the judge therein, were as follows:</p> <p>“3. The letter of November 14, 1914, from Thomas E. Cooper to the defendant, acknowledging receipt of the notes sued upon, is not to be construed as meaning that Thomas E. Cooper would hold the notes in his possession without negotiating them.”</p> <p>This request was denied.</p> <p>“7. If you find that Thomas E. Cooper was a purchaser for value, without notice, of the note or notes sued upon, the plaintiff is entitled to recover.</p> <p>“8. If you find that Thomas E. Cooper was a purchaser for value, without notice, of the note or notes sued upon, any subsequent knowledge or notice that the plaintiff may have had or received is immaterial.”</p> <p>The judge modified both of the instructions numbered 7 and 8 by interpolating after the words, “sued upon,” in each, the words “and that he had a right to put the notes out under the agreement made by the parties,” and gave them as modified.</p> <p>“9. The indorsement by the defendant of the note or notes sued upon was a part of the agreement completed on November 17, 1914, between Carolina Coast Products Company, Thomas E. Cooper, David N. Chadwick, Jr., and Charles E. Greenamyer and Marden, Orth & Hastings Company.</p> <p>“9-a. Part of the consideration for the indorsement of the defendant on the note or notes sued upon was the execution of said notes by the Carolina Coast Products Company, part of such consideration was the agreement of Thomas E. Cooper contained in the letter of November ldth, 1914, part of the consideration • was the transfer to it of fifty-one per cent of the stock of the Carolina Coast Products Company by Chadwick and Greenamyer, and part of the consideration was the guarantee of title by Chadwick, Cooper and Greenamyer.</p> <p>“9-b. The consideration for the defendant’s indorsement of the note or notes 'sued upon was the mutual agreements entered into by Cooper, Greenamyer and the Carolina Coast Products Company, which was consummated on November 17, 1914.”</p> <p>The instructions numbered 9, 9-a and 9-b were refused.</p> <p>The jury found for the defendant; and the plaintiffs alleged exceptions.</p>

Contract for reimbursement for income taxes paid by the plaintiff on rent received under a lease to the defendants, it being alleged in the declaration that, by the provisions of the covenant in the lease described below, the taxes should have been paid by the defendants. Writ dated October 23, 1918. In the Superior Court the case came on to be heard upon an agreed statement of facts before Wait, J. Material facts are stated in the opinion.

<p>Contract or tort for damages resulting from a delay in transportation of horses from Cedar Rapids in the State of Iowa to Northampton in this Commonwealth. Writ dated June 29, 1918.</p> <p>In the Superior Court the action was tried before Wait, J. There was evidence tending to show that the shipment left Cedar Rapids one hour before midnight on January 15, 1918; that the defendant’s agent in Chicago had notice that it was coming, that it arrived in Chicago at 10:10 A. M., January 16, that it left Chicago at 2:30 P. M., January 16, and had a good run as far as Toledo, Ohio, where the car was taken out of the train and put on. a slow train; that it was taken out of the train again at Cleveland, Ohio, where there was a delay of approximately thirty hours; that the shipment then had a poor run to Buffalo, New York, where there was a delay of twenty-three hours; that there was a poor run to Albany, New York, where there was a delay of twenty-three hours, and then that there was a good run to Northampton, Massachusetts. There was evidence that the shipment spent considerable time on side tracks, but no evidence of the actual timo so spent was offered except that it arrived in Cleveland at 2:50 in the morning of January 22, 1918, and was not unloaded until-9:30 in the same morning.</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings among others:</p> <p>“4. In determining what is a reasonable time for the delivery of the shipment of the horses the jury will be guided by all the facts in the case including mode of conveyance, the distance; the season of the year, the character of the weather, the ordinary facilities for transportation due to the war and war conditions, and any other facts bearing upon the shipment.”</p> <p>“ 17. A carrier of live stock which live stock is accompanied by the shipper or an agent, is not bound to exercise the highest degree of care, but the exercise of reasonable care under the circumstances is sufficient.”</p> <p>The rulings were refused. There was a verdict for the plaintiff in the sum of $1,751; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on 'April 4, 1910, and afterwards amended, to restrain the defendant from infringing upon a right of the plaintiff to the use of the trade names, “Kormon Water,” “Cormond Water,” “Eau de Kormon,” “Eau de Cormond,” and names of similar appearance, spelling or pronunciation, and for damages.</p> <p>The suit formerly was before this court when, in a decision reported in 219 Mass. 576, on an appeal from a decree granting the relief prayed for, the decree was affirmed and the suit was remanded to the Superior Court for determination by a master of the plaintiff’s damages. The suit then was referred to a master in the Superior Court. Among findings of the master were the following:</p> <p>“I find that the defendant between the dates of September 27, 1909, and March 26, 1915, bought of one Wolfe, of Pawtucket, in the State of Rhode Island, a product made by said Wolfe, and known as Cormond Water or Kormon Water, being so labeled, and being of substantially the same nature as the product of the plaintiff, and resold the same in Fall River. The amount so purchased of Wolfe and resold during the above period was forty-three and one third gross. The amount received by the defendant upon these sales was $365.78. The defendant paid Wolfe $6 per gross, leaving its profits upon the sales $105.78.”</p> <p>“I am not able to find any conduct upon the part of the plaintiff during any part of the period from March 1, 1909, to March 26, 1915, which justified the defendant in believing that the plaintiff acquiesced in the manufacture and sale by the defendant of bleaching fluids under the name of Cormond Water or names similar thereto, unless it was so justified as a matter of law by the facts I find and report herein. . . .</p> <p>“I am requested by the defendant to make the following findings, and I so find:</p> <p>“That the plaintiff had during the year from January 1, 1909, to January 1, 1910, several competitors who sold their product as Kormon Water, Cormond Water, etc.</p> <p>“That these met the plaintiff at its instance in October, 1909, to fix a living price for their product. They there spoke of themselves as manufacturers and dealers in Kormon Water.</p> <p>“That neither then nor afterwards until about three months before bringing this action did the plaintiff make any objection to the defendant’s manufacture and sale of its product as Cormond Water or the use of the offending label.</p> <p>“That the only litigation concerning this subject matter in which the plaintiff was engaged in October, 1909, was the suit of Dupuis et al. vs. Joseph M. Adam, which concerned the right to the use of the name Kormon Water. It was a suit in equity, begun October 11, 1905. It was referred to a master March 28, 1906, who held hearings as follows: July 18,25, and August 8,1906. A temporary injunction restraining the defendant in that case from the use of the name and label Kormon Water issued December 5, 1905, and'was nevér modified. Said Adam promptly gave up the business, and left Fall River the latter part of 1907. Although the case itself was not finally disposed of until December 6,1909, when an entry of dismissal was made, the case was practically ended at the close of the last hearing by the master. The defendant in the present case knew nothing of this litigation.</p> <p>"That the terms Kormon Water, Cormond Water, Eau de Kormon and Eau de Cormond are the names which have come into general use, especially among French speaking people, to designate bleaching water, and do not necessarily mean the product of the plaintiff alone.” i</p> <p>The master found, as profits received by the defendant, from sales of Cormond Water from March 1, 1909, to September 27, 1909, $34.38; from sales of Cormond Water from September 27, 1909, to March 9, 1910, $166.25; from sales of bleaching fluid under name of Cormond Water March 9,1910, to March 26,1915 (labeled New England Washing and Bleaching Water), $493.05; from sales of Wolfe Water from September 27, 1909, to March 26, 1915, $105.78.</p> <p>The defendant filed objections and exceptions to the report as follows:</p> <p>Although requested the master failed and refused to find and report that the plaintiff’s conduct constituted acquiescence which precludes it from recovering profits from the defendant prior to the date of the plaintiff’s talk with the defendant’s agent.</p> <p>“2. Although requested the master failed and refused to find and report that the defendant was justified in believing that the plaintiff acquiesced in its manufacture and sale of its product.</p> <p>“3. The master finds and reports as the profits of the defendant upon its sales of goods bought of Wolfe to which the plaintiff is entitled its gross profits only, and although requested failed and refused to find that only the net profits are recoverable, or what such net profits were, or to make any finding thereon.”</p> <p>The suit was heard by Sanderson, J., upon the master’s report and the exceptions and an interlocutory decree was entered by his order overruling the exceptions to the report and confirming it. Later, a final decree was entered awarding damages to the plaintiff in the sum of $1,075.88. The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort for deceit alleged to have been practised upon the plaintiff as a stockholder in the reorganization of the Boston-Cerrillos Mines Corporation. Writ dated February 1,1917.</p> <p>In the Superior Court the action was tried before Sanderson, J. It appeared that, in the circular described in the opinion, the officers of the new corporation were named, including the defendant as the treasurer and a director, and that the circular included the following direction: “Kindly fill out and sign the enclosed blank and assignment of common stock, and send with your preferred stock and certificates of interest (both of which must be endorsed in blank) and your remittance to Albert D. Howlett, 50 Congress Street, Room 621, Boston, Mass. Make all checks payable to Albert D. Howlett, Treasurer.”</p> <p>Other 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>

<p>Bill in equity, filed in the Superior Court on January 30,1918, to compel the discharge, by reason of its having been paid, of a mortgage upon certain land of the plaintiff.</p> <p>The pleadings and proceedings are described in the opinion. From a final decree for the plaintiff the defendant appealed.</p> <p>Equity Rule 14 is as follows: “The defendant to a cross bill shall in no case be compelled to answer thereto before the defendant to the original bill has answered such original bill. No cross bill shall be filed without leave of the court.”</p>

<p>Appeal from a decree of the Probate Court dismissing a petition under St. 1909, c. 490, Part IV, § 19, filed in the Probate Court for the county of Worcester on November 7, 1917, for a reappraisal, for the purposes of assessment of a legacy and succession tax, of a part of the real estate of Isabella M. Whitney, late of Shrewsbury.</p> <p>In the petition the petitioner alleged "that he is executor of the will of . . . deceased, and is interested in the estate of said deceased both as said executor and as devisee; that he is aggrieved by the determination of the tax commissioner” relating to the one item described in the opinion.</p> <p>The petition was heard in the Probate Court by F. H. Chamberlain, J., and was dismissed, the decree not mentioning that the petitioner brought the petition as executor but reciting that the petitioner prayed “for a reappraisal of certain real estate devised to him under the will,” and that the Attorney General objected to the granting of the petition unless all the real estate devised to the petitioner was included in the reappraisal.</p> <p>The petitioner, reciting that he was a devisee and not naming himself as executor, appealed.</p> <p>The case was reserved by Rugg, C. J., for determination by the full court.</p>

<p> Joint Tortfeasors. Release. </p> <p>If one, who has suffered personal injury in an accident caused by conduct of two persons, makes something in the nature of a claim against one of them, against whom under the rules of law he possibly might have recovered damages, and, upon receiving a sum of money from that person, executes and delivers to him an instrument under seal in the nature of a release, such release discharges from liability the other person whose conduct contributed to cause the injuries, although the person to whom the release was given in fact was not responsible for the injury.</p> <p>In an action of tort for personal injuries against a street railway company, the plaintiff alleged that, when he was riding on a truck loaded with inflammable material under the defendant’s trolley wire, the wire broke and fell upon the truck causing a fire which resulted in his injury. At the trial evidence of the defendant tended to show that the fire was caused in another way and that, with the load burning, the driver of the truck continued under the trolley wire, causing it to melt and fall. The owner of the truck paid the plaintiff $75 and the plaintiff executed and delivered to him an instrument which recited that such owner did not assume liability for the injury “but that this compromise is made for the purpose of adjusting any supposed or real claim which” the plaintiff had against such owner "for injuries, moneys paid out for care, medicines, etc.” Held, that the release was a bar to the maintenance of the action against the street railway company.</p> <p>At the trial of the action above described, testimony of the plaintiff, a woman, was admitted tending to show that, although she could read, she did not read the instrument which she signed, that the money was paid to her “like a gift to pay me. ... It was said they gave me a gift to pay damage to my clothes,” and that she executed the instrument relying upon such statement. The owner of the truck testified that he told the plaintiff that he wanted to “use her right,” that, “whatever she had lost by the fire” he would “try and repay her,” and that he asked her what the amount would be and she was satisfied with the amount paid by him. Held, without determining the admissibility of the evidence, that it raised no question for the jury because, since it did not tend to show that the agreement between the plaintiff and the owner of the truck was different from that set out in the instrument which the plaintiff executed and delivered, it did not lessen the legal effect of that document as a bar to the action against the street railway company.</p>

<p>Tort or contract with a declaration in two counts. In the first count it was alleged that the defendant agreed to store the plaintiff’s motor vehicle and diligently to watch, guard and protect it whenever it was left in the care of the defendant at its garage in Worcester; that employees of the defendant entrusted with that duty failed to perform it, “in consequence whereof the automobile of the plaintiff was taken from the garage of the defendant by a person other than the plaintiff and stolen, so that the plaintiff lost the same.” In the second count negligence on the part of the defendant’s employees was alleged "in consequence whereof a person other than the plaintiff was permitted to take said automobile and its accessories from said garage and steal the same.” Writ dated January 16, 1918.</p> <p>In the Superior Court the action was tried before Keating, J. The material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings:</p> <p>“ 1. There is no evidence that any employee stole the car.</p> <p>“2. There is no evidence that the defendant stole the car.</p> <p>“3. The omission to make a record of the coming in or the going out of the car on Sunday night is not evidence of negligence on the part of the defendant.</p> <p>“4. The law requires that an owner of an automobile driving into a garage or taking a car out shall make a record under § 28 of the act introduced in this case.”</p> <p>“6. There is no evidence of any negligence on the part of the defendant.”</p> <p>The rulings were refused. Material portions of the charge of the judge to the jury were as follows:</p> <p>“It is incumbent upon the plaintiff to prove that he left that car there on the second day of December, and that neither he nor any one having authority from him took that car after that. . . .</p> <p>“ The duty that the defendant owed the plaintiff was such duty as a bailee for hire owes. For this automobile was left in the garage by the plaintiff to be looked after by the defendant, that is to say, to be stored in its garage and the plaintiff was to pay therefor five dollars a month. And the duty that such a bailee owed to the party who leaves his automobile in his custody is to have exercised reasonable care in looking after the automobile, and I mean in looking after it to this extent to protect it against theft or loss.</p> <p>“In determining that question you will consider all the circumstances testified to in this case, the size of the garage, the number of cars kept there in the part of the garage wherein this was kept, and the provision that the defendant made for looking after the cars, the supervision that the defendant provided for and the method adopted by the defendant not only in the daytime but at night in looking after the car. All the circumstances will be taken into account by you in determining this question.</p> <p>“A statute has been introduced in evidence and'read to you, a part of which provided that where a car is entering or leaving a garage the fact that it enters or leaves shall be entered in a book kept by the owner of the garage or his employees, and except in the case of chauffeurs, the entry showing when the cars leave or enter the garage shall be made by the owner of the garage or his employees. And the statute provides the responsibility for keeping that book properly shall rest with the owner of the garage or his employees.</p> <p>“Now the contention of the plaintiff is that the defendant violated that statute, that some one took that car from the garage after December 1,1917, and no entry was made of the taking of the car by the defendant or any employee of the defendant. If you find that to be so that would be a violation of that statute, and as such would be evidence of negligence. It wouldn’t be conclusive, but it would be evidence for you to consider in connection with other circumstances tending to show whether or not the defendant was negligent, and whether or not the defendant used reasonable care in protecting the automobile against theft or loss. And if you find that the defendant or its employee violated that statute, it is for you to say what weight is to be given to that circumstance. You have heard the argument advanced by the counsel for the plaintiff in respect to the significance which should be attached to the failure on the part of the defendant or its employee to make such an entry in the book kept by the garage, but it will be for you to decide in the first place whether the defendant or its employee has violated that statute, and in the second place if the defendant or its employee has violated it what the significance of that violation is, considering the question to be decided in this case. What weight, in other words, such a violation if you find there was such should have in your judgment in determining the question whether or not the defendant exercised reasonable care in protecting the car against theft or loss. The counsel for the defendant has argued that the plaintiff was familiar with the automobile laws and that if he brought that car there on the 2nd of December, he ought to have either entered or caused to be entered the fact in the book, and the counsel for the defendant has argued that his failure to do so ought to lead you to say that he really did not bring the car in on the 2nd of December. And it is a matter for you to take into account when you are trying to satisfy yourself whether the plaintiff did come there on the 2nd of December and got the car and afterwards returned it to the garage.”</p> <p>No exception was saved to the charge and no objection to any part of the charge was expressed to the trial judge.</p> <p>There was a verdict for the plaintiff in the sum of $322; and the defendant alleged exceptions.</p> <p>Material portions of St. 1909, c. 534, § 28, are as follows: “Every person operating or running a motor vehicle into or out of a garage, or into or out of a stable, shop or place of business of a manufacturer or dealer, shall enter or cause to be entered in said book, in the columns under the proper headings, the date and tima of entering and leaving, the register number and letter, if any, of the motor vehicle, and the full name of the operator or chauffeur. In the case of motor vehicles operated or run into or out of a garage by others than chauffeurs, the record shall be kept by the owner, proprietor or person in control of the garage, or by some employee or employees specially designated for this duty, and the said owner, proprietor or person in control of such garage, shall be responsible for the proper keeping of said record.”</p>

<p>Two actions of tort for deceit inducing the plaintiff to purchase certain real estate in Salem. Writs dated November 20, 1913, and January 5, 1914.</p> <p>In the Superior Court the actions were tried together before Hitchcock, J. The real estate in question comprised three three-apartment houses on Forest Avenue and three two-apartment houseson Ocean Terrace in Salem. The purchase price was $31,000. The material evidence is described in the opinion. At the close of the evidence, the defendants asked for and the judge refused thirty-four requests for rulings, raising the questions of law described in the opinion. The jury found in each action for the plaintiff in the sum of $3,000; and the defendants alleged exceptions.</p>

<p> Mechanic’s Lien. Statute. </p> <p>St. 1915, c. 292, relating to mechanics’ liens, is not retroactive, and since it did not take effect until January 1, 1916, any right which a subcontractor, who before that date furnished labor for the construction of a building, has to enforce a mechanic’s lien must be under the provisions of R. L. c. 197.</p> <p>No mechanic’s lien can be enforced under St. 1915, c. 292, § 3, by a subcontractor for labor not furnished by him personally in the construction of a building unless there was a contract in writing between the owner of the premises and the principal contractor and the notice of that contract required by § 2 of the statute was filed in the registry of deeds before the furnishing of the labor.</p> <p>The provisions of St. 1915, c. 292, § 1, giving a right to enforce a mechanic’s lien to one to whom “a debt is due for personal labor performed in the erection, alteration, repair or removal of a building,” is not applicable to a debt owed to an employer for labor performed by his employees and not by him personally.</p> <p>A mechanic’s lien can be enforced only by a strict compliance with the statutory provisions relating thereto.</p> <p>Where it appears that a bill in equity to enforce a mechanic’s lien under St. 1915, c. 292, cannot be maintained because the claim is for labor furnished previous to January 1, 1916, and that no statement of the claim was filed in the registry of deeds as required by R. L. c. 197, § 6, within thirty days after the plaintiff ceased work, and that no petition to enforce the lien was brought within ninety days thereafter as required by § 9 of that statute, the plaintiff must not be permitted to amend his bill in equity into a petition under R. L. c. 197.</p>

<p>Bill in equity, filed in the Superior Court on August 2, 1918, seeking the cancellation of the deed, described in the opinion, from the plaintiff’s wife to the defendant, and that the defendant be “ ordered to convey to the ” plaintiff the property on Pine Street in Attleborough, one of the parcels described therein.</p> <p>In the Superior Court the suit was heard by Cox, J. Material facts found by the judge are described in the opinion. By order of the judge a final decree was entered ordering that the deed from the plaintiff’s wife to the defendant "be discharged and cancelled as of record,” and that the defendant execute afid deliver to the plaintiff “a good and sufficient deed free from all incumbrances made or suffered by the” defendant of the property on Pine Street. The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity for instructions, filed in the Probate Court for the county of Suffolk on December 7, 1918, by the trustee under the will of Peter L. Willcutt, late of Boston, who also was executor of the will of Jane M. Willcutt, widow of Peter L. Willcutt and life beneficiary under his will.</p> <p>The defendants were the New England Anti-Vivisection Society, claiming under the residuary clause in the will of Jane M. Willcutt, and Josephine W. Parker, George B. Willcutt, Harry V. Willcutt, Henry Collier and Priscilla L. McGaw, who claimed that they were entitled as those who would have been the heirs at law of Peter L. Willcutt if he had died at the time of the death of the life beneficiary under his will.</p> <p>The suit was heard in the Probate Court by Grant, J. The material facts are stated in the opinion. A decree was entered in favor of the personal defendants. The New England Anti-Vivisection Society appealed.</p> <p>The appeal came on to be heard by Poring, J., who reserved it for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Adultery. Evidence, Of adultery.</p> <p>At the trial of an action of tort by one woman against another, charging that the defendant “wrongfully and wickedly debauched and carnally knew” the plaintiff’s husband, there was evidence tending to show that the plaintiff had separated from her husband, a physician; that more than three years thereafter the defendant’s son had called the husband to treat the defendant, who then was suffering from a physical and nervous breakdown; that ten months later the defendant purchased a farm for her son to which she and her son moved, and that the plaintiff’s husband gave up his practice as a physician and with his minor son lived at the farm with the defendant and her son, occupying a room there not connected with the defendant’s apartments. The husband testified that conduct of his wife compelled him to give up his practice, and that he cared for the farm in consideration of his son and himself receiving their board and clothing. Although the defendant and the plaintiff’s husband frequently were seen in etch other’s company, there was no evidence of immodest conduct, of indecent familiarity nor of clandestine meetings or compromising language or situation. Held, that a finding that the defendant committed adultery with the plaintiff’s husband was not warranted.</p>

<p>Contract, with a declaration in two counts, alleged to be for the same cause of action, the claim set forth in the first count being for $101.60, money had and received by the defendant to the plaintiff’s use, and the allegations in the second count being that, through a mistake of fact, the plaintiff had paid to the defendant $101.60, upon receiving notice from it that the maker of a note, which he had indorsed and which had matured on July 2, 1917, had defaulted in payment, and that the payment was made in ignorance of the fact that, after the plaintiff’s indorsement, a prior indorsement by the payee had been erased and for it had been substituted an indorsement by the payee without recourse. Writ in the Municipal Court of the City of Boston dated October 5, 1917.</p> <p>The writ was returnable on October 13, 1917. On October 22, 1917, the defendant filed a petition for interpleader summoning in Harry S. Brown as a party defendant, stating in substance that the note in question was placed with it “for collection by Harry S. Brown,” that, upon default by the maker, it gave notice thereof to the indorsers, of whom the plaintiff was one, “that the plaintiff paid the defendant the amount of the note and protest fees . . . which amount remains in its hands and is undisputed; that it admits its liability therefor to the person entitled thereto and has no interest in the subject matter of the controversy except to perform its contract in the premises; and that the said Harry S. Brown claims said amount of $101.60.”</p> <p>Brown was summoned in and filed an answer claiming the fund, alleging that it was “paid by the plaintiff to the defendant, the United States Trust Company, in payment of the note declared on by the plaintiff’s declaration in that he, the plaintiff [¡claimant] became a holder of said note for a valuable consideration prior to the date of its maturity and in that the said defendant acted as his agent in collecting the amount due on said note from the plaintiff.” By an amendment, Brown denied generally the allegations of the declaration.</p> <p>The record shows the following interrogatories propounded by the plaintiff to the claimant and his answers thereto:</p> <p>“Interrogatory 4. Please state when did you leave the said note with the United States Trust Company for collection? Answer 4. About the last week of June. Interrogatory 5. Please state whether or not you was informed by the said United States Trust Company that it did collect the amount due on said note? Answer 5. Yes. Interrogatory 6. If the answer to the preceding interrogatory is answered by you'in the affirmative, please state when the said United States Trust Company did inform you of its collection of said note. Answer 6. About one week after the note matured. Interrogatory 7. Please state whether or not the said United States Trust Company paid over to you the amount collected by it on said note, and if so, when did the said United States Trust Company pay to you the said amount collected by it on said note? Answer 7. The United States Trust Company owes me the amount of the note. (Further answer.) The United States Trust Company credited me with the amount collected on said note July 5,1917, and that on October 20,1917, I gave the United States Trust Company $101.60 the amount of said note including protest fees to be held by them pending the disposition of this action.”</p> <p>At the hearing in the Municipal Court, the counsel for the plaintiff under oath testified that he spoke to the president of the United States Trust Company in relation to payments made by the United States Trust Company to the claimant, and that he “referred me to the secretary of the said United States Trust Company who was then in charge of its business,” that the secretary told him that the United States Trust Company paid to the claimant in this action on July 5, 1917, the amount of money collected by it on a note left by tfie claimant for collection with it, and that the books of the United States Trust Company showed that there was an entry made that on July 5, 1917, the claimant was credited with the amount of the note collected by the United States Trust Company left by the claimant for collection. He further testified that the secretary of the United States Trust Company informed him that he could not produce the books in court to show the entries of payment made to the claimant because they were too bulky and that therefore he gave to the witness a statement in writing which was offered in evidence. This evidence was excluded.</p> <p>The plaintiff made requests for rulings, which, with the action of the judge thereon, were as follows:</p> <p>“1. That upon all the evidence offered at the hearing on said motion to dismiss the claimant’s claim and upon the evidence apparent on the record of this case, namely the claimant’s answers to the plaintiff’s interrogatories on file in said action, to wit: ‘That the United States Trust Company credited the claimant with the amount collected on the note on July 5, 1917,’ the claimant cannot maintain his claim and the plaintiff’s motion to dismiss the claimant’s claim should be sustained and the claimant’s claim on file on record in this case be dismissed.” The judge refused this ruling.</p> <p>“2. That if the claimant left a note for collection with the defendant United States Trust Company and if the defendant collected said note on July 5,1917, and on the same date credited the claimant with the amount of the proceeds of said collection and the claimant accepted said credit, the claimant cannot legally become a claimant to money deposited with the court by the defendant after the defendant had paid and credited the claimant with the amount and make a valid claim on the said amount deposited in court by the defendant after the defendant had previously credited the said amount to the claimant and the claimant had accepted the said credit from the defendant.” The judge refused 'this ruling.</p> <p>“3. That if the claimant accepted a credit of the defendant, an amount it collected for the claimant and credited the said amount to the claimant on July 5, 1917, and that if several weeks after this action was commenced the claimant on October 20, 1917, gives to the defendant a sum of money equal to the amount he had previously received from the defendant, said amount to be held by the defendant pending the disposition of this action, the above stated transaction does not entitle the claimant to become a party claimant in this action under the provisions of the statutory interpleader as therein provided.” The judge' refused this ruling.</p> <p>“4. That if the claimant leaves a note for collection with the defendant and the defendant collects the said note and on July 5, 1917, pays the claimant the proceeds of said note and gives him credit on the same date of its collection, then if after said date suit is brought against the defendant and that after several weeks after the commencement of said suit, the claimant gives to the defendant the amount it previously received from it to be held by the defendant pending the disposition of said action, said act is an independent act between the defendant and the claimant and does not create such legal obligation that the claimant can become a bona fide claimant.” The judge ruled, “Not so found.”</p> <p>“5. That the giving of money by a claimant to a defendant in an action who is to hold said money pending the disposition of said action does not entitle the said claimant to come to court and make a legal claim in accordance with the provisions of the statute relating to interpleaders.” The judge granted this ruling.</p> <p>“6. That if a person who gives money to a party who became defendant in an action after suit was commenced against the said party for the sole purpose that the said person giving the said money which was deposited in court by the defendant, is not such a claimant as was intended by the statutes relating to inter-pleaders.” The judge ruled, “Not so found.”</p> <p>After the proceedings described in the opinion, an order was entered in the Municipal Court that the claimant’s claim be maintained, and the case was reported to the Appellate Division. The Appellate Division dismissed the report; and the plaintiff appealed.</p> <p>It. L. c. 173, § 37, is as follows: “If, in an action at law, the defendant admits his liability, and the amount thereof is not disputed, but it appears that such amount is claimed by the husband or wife of the plaintiff or by any person other than the plaintiff and that the defendant has no interest in the subject matter of the controversy, the court may, upon the petition of the defendant, stating the names and residences of all known claimants and the amount actually due from the defendant, and after such notice as the court shall order to the plaintiff and to such claimants, order such claimants to be made defendants, and shall thereupon hear and determine the rights of the respective parties in and to said amount. The defendant may hold such amount until final judgment, and shall then pay it over in accordance with the order of the court, or he may pay it into court to await final judgment, and thereupon the action shall be discontinued as to the defendant and his liability for said amount shall cease. The costs of the defendant in such case shall be in the discretion of the court, and may be charged upon the fund.”</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed on July 1, 1913, for the assessment by a jury of damages resulting from the taking of certain real estate for the laying out of a public street.</p> <p>In the Superior Court, a case was stated under the provisions of St. 1913, c. 716, it being agreed expressly that no inference of fact should be drawn. Material facts agreed upon are described in the opinion. The petition was heard by Quinn, J., the parties waiving their right to a trial by jury. The judge found for the respondent; and the petitioner appealed.</p>

Contract upon an account annexed for $295.43 for milk and provisions alleged to have been furnished to the defendants, Charles G. Magee, Walter B. Clark, Rodolphe L. and Max Agassiz, alleged to have been conducting the Passaconaway Inn in Maine as copartners. Writ dated December 8, 1916. Magee and Clark were defaulted. In the Superior Court the action was tried against the defendants Agassiz before Sisk, J. Material evidence is described in the opinion.

<p>Contract against a firm of stockbrokers upon an account annexed.. Writ dated March 16, 1918.</p> <p>The account annexed to the declaration was as follows:</p> <p>“Fitzgerald, Hubbard & Co.</p> <p>to Louis Zembler, Dr. 1916 Item 1. Feb. 23 To Cash paid $2000.00 “ 2. .July 11 “ 15 Am. Zinc, pref. delivered 918.55 “ 3. Oct. 20 “ Cash paid 472.01 1917 * “ 4 Feb. 3 u tc ce 250.00 “ 5 Total .................... .$3640.56”</p> <p>In the Superior Court the action was referred to an auditor. Portions of the auditor’s report were as follows:</p> <p>“The form of the declaration is to recover $3,640.56 according to an account thereto annexed, but the action is based upon the provisions of R. L. c. 99, to recover money paid to or the value of securities deposited with the defendants under contracts for the pinchase or sale of stocks upon margin, the plaintiff contending that at the time he made the contracts he intended that the same should not be completed by the receipt or delivery of any of the certificates of stock and that the defendants had reasonable cause to believe that such intention existed. For answer the defendants set up a general denial and plea of payment and the further answer that they made an actual purchase or sale of each and every share of stock which they were directed by the plaintiff to purchase or sell. ...</p> <p>“Except as to the stocks delivered to Milliken and Company ... at no time did the defendants ever tender to him [the plaintiff] or request him to receive any of the shares for which he had given orders to buy, nor did he at any time tender to the defendants the full purchase price of the stock which he had ordered to be bought, but as between the plaintiff and the defendants, all transactions, except the stocks delivered to Milliken and Company were completed by a settlement of differences between the purchase prices and the selling prices, which prices were charged against or credited to the account of the plaintiff, commissions on purchases being added and taxes and commissions on sales being deducted and only the net amount of the purchases and sales being stated in the account. At no time was anything said by either party in relation to whether it was the intention of the plaintiff to complete any of the transactions by an actual receipt or delivery of any of the certificates of stock bought or sold. . . .</p> <p>“Each time when the plaintiff gave an order to sell, except in the two instances above referred to, he had in mind that the defendants were carrying for his account, on margin, stock corresponding to the amounts he was ordering sold, and when giving the orders to sell in those two instances he did not inform the employees of the defendants that he was selling ‘short.’ . . .</p> <p>“The plaintiff intended that each time when he gave an order to buy, the defendants would carry out his order and buy the stocks ordered to be bought in accordance with the rules of the stock exchanges, and that when he gave orders to sell (except in the two instances before referred to [the ‘Butte & Superior’ and ‘Pittsburg Coal’ transactions described in the opinion]) - he understood that the defendants were carrying for his account, on margin, the stocks which he ordered to be sold, and in all instances in which he gave orders to sell, he intended that the defendants should sell the stocks which he ordered them to sell.</p> <p>“The manner in which the transactions between the plaintiff and the defendants were carried on is indicatory of the intention of the plaintiff. At the time he opened his account he stated that he desired to buy and sell on margin and made a deposit of money for that purpose. His orders to buy were in the majority of instances followed within a few days by corresponding orders to sell, and in the two instances of ‘short’ sales there were on the following days orders to buy. He never demanded that any of the stock be delivered to him, and all of his transactions except those wherein the stocks were delivered to Milliken and Company were settled upon the differences resulting from the charging or crediting of purchasing and selling prices, commissions, taxes, etc., as hereinbefore recited. I find that at the times when he gave the orders to buy, the plaintiff intended that he should not receive from the defendants any of the stocks which he ordered to be bought, but intended that the defendants should buy and carry them for his account, on margin, until such time as he might order them to be sold, and that in giving his orders to sell (except in the two instances of ‘short’ sales before referred to) he intended that the defendants should sell stocks which they were carrying for his account, on margin, without his having paid the full purchase price therefor or having received the certificates, and to settle with the defendants by receiving or paying the difference between the purchase and selling prices of the stocks ordered to be bought or sold and paying taxes, commissions and interest, and that, as between himself and the defendants, there should be no actual purchase or sale of any of the stocks for which he gave the orders for purchase or sale.</p> <p>“I further find, from the manner in which the transactions were conducted, that the defendants had reason to believe that the plaintiff did not intend to receive from them any of the stocks which he ordered to be purchased or to deliver to them any of the stocks which he ordered to be sold, and that as between the plaintiff and the defendants there should be no actual purchases or sales.</p> <p>“Upon the issue whether the defendants have made actual purchases or sales of the stocks as set up in their answer, it appeared, as hereinbefore set forth, that in some of the transactions, the defendants received certificates from the sellers for the same number of shares as were purchased for the account of the plaintiff, but, in other transactions, the deliveries were made through settlements and in such a manner that it could not be determined whether the certificates received were for the account of the plaintiff or for other customers for whom they had made purchases on the same day. . . .</p> <p>. “Upon the specific facts hereinbefore set forth, I ruled that in the instances in which the defendants received from the sellers, certificates for the exact number of shares which were ordered to be bought, and in the instances in which they received certificates for a larger number of shares than were ordered to be bought, from the exchange of which they subsequently received smaller certificates for the number bought, the affirmative defence was sustained, but that in respect to the transactions in which the deliveries were made through the clearing house and in the purchases which were made through the New York brokers, the affirmative defence was not sustained. I further ruled that in the instances of sales in which the defendants delivered to the purchasers, certificates for the number of shares which the plaintiff ordered to be sold, and that in all of the sales made by the New York brokers, the affirmative defence was sustained, but that in respect to the sales in which deliveries were made to persons other than those to whom the sales were made and the sales in which the deliveries were made through the clearing house, the affirmative defence was not sustained.</p> <p>“I further ruled that in order to sustain the affirmative defence set up in their answer, the defendants must show that they had made actual purchases of each and all of the securities which the plaintiff directed them to make and actual sales of each and all of the securities which he directed them to sell, and that upon the specific findings of fact herein recited and the rulings of law herein-before made, they had failed to sustain the burden of proof necessary to a finding that they had established that affirmative defence. . . .</p> <p>“Upon the foregoing specific findings of fact, I ruled, as a matter of law, that the transactions between the plaintiff and the defendants, were wagering contracts as defined in the cases of Fiske v. Doucette, 206 Mass. 275, and Houghton v. Keveney, 230 Mass. 49, and that the plaintiff is entitled to recover under the provisions of statute. If, however, such ruling is incorrect, the plaintiff is not entitled to recover. ...”</p> <p>Other material facts found by the auditor are described in the opinion.</p> <p>After the filing of the auditor’s report, the plaintiff moved under Rule 31 of the Superior Court (1915) for entry of judgment according to the report. The motion was heard by Jenney, J., who ordered judgment for the defendants and reported the case for determination by this court, judgment to be entered for the defendants if his ruling was right; otherwise, such judgment to be entered as the court should determine.</p> <p>R. L. c. 99, §§ 4, 6, are as follows:</p> <p>“Section 4. Whoever upon credit or upon margin contracts to buy or sell, or employs another to buy or sell for his account, any securities or commodities, intending at the time that there shall be no actual purchase or sale, may sue for and recover in an action of contract from the other party to the contract, or from the person so employed, any payment made, or the value of anything delivered, on account thereof, if such other party to the contract or person so employed had reasonable cause to believe that said intention existed; but no person shall have a right of action under the provisions of this section if, for his account, such other party to the contract or the person so employed makes, in accordance with the terms of the contract or employment, personally or by agent, an actual purchase or sale of said securities or commodities, or a valid contract therefor.”</p> <p>“Section 6. In a proceeding under the provisions of the two preceding sections, the fact that the seller or the person employing another to sell for his account did not own the securities or commodities at the time of the contract of sale or at the time of the giving of the order to sell, and the fact that settlements were made without the completion of the purchase or sale of the securities and commodities bought or sold or ordered to be bought or sold, shall each be prima facie evidence that within the meaning of section four there was no intention that there should be no actual purchase or sale, and that there was reasonable cause to believe that said intention existed; and the parties liable to an action under the provisions of said section shall be jointly and severally liable.”</p>

Contract upon ten promissory notes described in the opinion. Writ in the Municipal Court of the City of Boston dated September 11, 1918. Upon removal to the Superior Court, the action was tried before Keating, J. The material evidence and a request of the defendant for a ruling are described in the opinion. There was a verdict for the plaintiff -in the sum of $513.75; and the defendant alleged exceptions. The case was submitted on briefs.

<p>Libel for divorce on the ground of desertion, filed on April 30, 1918.</p> <p>In the Superior Court the libel was heard by Chase, J. The material facts are described in the opinion. By order of the judge, the libel was dismissed; and the libellant alleged exceptions.</p>

Four actions of tort, the first two being by a woman to recover for personal injuries alleged to have resulted from a collision of a street car, upon which she was a passenger, with a motor truck, and the second two being by her husband for consequential damages. Writs in the first and third actions dated July 20,1917,. and in the second and fourth actions dated January 19,1918.

<p>Deed, Construction. Evidence, Presumptions and burden of proof. Water Rights. Damages, For property taken or damaged under statutory authority. Words, “Reservation,” “Exceptions.”</p> <p>Whether the word “reservation” or the word “exception” in a deed shall be construed to mean a reservation or an exception depends upon the nature and ■effect of the provision in which the word is used.</p> <p>At the hearing of a petition against a city for the assessment of damages resulting from a taking of water in a stream, the respondent contended that the water rights already had been given to a mill owner. The petitioner contended that the grant to the mill owner was of a revocable license only. Held, that the burden was on the petitioner of proving a clear title to the property, for the taking of which he was seeking damages, by a preponderance of the evidence only, and that he was not required to prove his title beyond a reasonable doubt.</p> <p>The petition above described was referred to referees under an agreement of the parties that their findings of fact should be final. The referees found in substance that the petitioner’s predecessor in title owned land on one side and to the thread of the stream only, that the owners of the land on the opposite side of the stream by a formal instrument had granted to the owner of a mill the right to erect a dam and flow their land, and that afterwards the dam was erected; that there was in evidence no such formal instrument of grant by the predecessors in title of the petitioner; that, in a succession of deeds of predecessors in title of the petitioner, the grantors “reserved” to the mill owner, either by identical language or by reference, “the right to the land where his dam stands and the right to flow a part of the described land with water perpetually by means of said dam;” that the deed to the petitioner was “subject to such, rights and reservations as are mentioned and described in any of the aforesaid deeds, so far as they may apply to the property herein conveyed.” Held, that the petitioner had not sustained the burden of proving a clear title by a fair preponderance of the evidence.</p>

<p>Trust, Construction, Charitable. Charity.</p> <p>By the provisions of the will of a woman who died in Wareham, a fund was placed in trust to use the capital of the fund to buy land in Wareham and to build thereon, at such time as the trustee should deem expedient, an Old Ladies’ Home, which was described in the will with particularity, “and to maintain said Home and support therein out of the income from the balance of the funds . . . old ladies . . . but it is expressly provided that no person shall be supported in the Old Ladies’ Home ... or otherwise receive any support under the provisions of this article except respectable destitute females of native birth and parentage and of good character, and who can easily read and write,” women bom in Wareham or Middleborough to “be especially favored.” The same article of the will further provided that, “until such home is built,” the trustee should “use the income ... in the support of such necessitous old ladies and in such amounts from time to time as may be approved by my sons Gerard and Horace or the survivor of them.” Held, that the foregoing provision created a charitable trust, and that it was the duty of the trustee to purchase land, erect a building thereon, and establish and maintain a home for aged women when it was possible to do so in accordance with the intention of the testatrix.</p> <p>In a suit in equity by the trustee, under the trust above described, for instructions, it appeared that the capital of the trust fund was not sufficient to buy the necessary land, erect the home and thereafter to provide sufficient income to maintain the home, that there were a large number of necessitous old ladies in Wareham who were physically incapacitated and without adequate means of support, that the testatrix’s son Gerard died before her and that her son Horace had died without issue, neither son having approved the payment of any of the income to any necessitous old lady. Held, that, by reason of the death of the sons without expressing approval, performance of the condition upon which any of the income should be paid out without a home being built had become impossible, and that the trustee should not make any such payment.</p>

<p>Marriage and Divorce, Foreign divorce, Connivance. Husband and Wife. Evidence, Of foreign law. Wrongdoer without Remedy.</p> <p>R. L. c. 152, § 35, relating to the-validity of a divorce decreed in another State or country, violates no provision of the Constitution of the United States.</p> <p>In a suit for divorce, wherein the validity of a divorce decreed by a court of another State upon a libel, brought by a husband while both he and his wife were residents of this Commonwealth, was an issue, the law of that State relating to the subject of divorce was not in evidence, and it was said that there was no presumption that jurisdiction for divorce in the courts of the other State rested upon “simple bodily presence within its borders for a certain number of days.” A decree of divorce by a court of another State, which is made upon a libel brought by the husband when he and his wife both were domiciled in this Commonwealth, is of no force and effect in this Commonwealth as a divorce although the wife appeared in the proceedings, was awarded the custody of a minor child and received and gave a receipt for $3,500 awarded her in the decree for the support of the child.</p> <p>Where a wife, upon the bringing by her husband of a libel for divorce in a court of another State while both he and she were domiciled in this Commonwealth, by agreement with him appeared in that court and there remained as a party to the proceeding, adjusted a financial controversy with him upon the basis that he should obtain his divorce upon her being awarded the custody of their minor child and his paying her a fixed stun of money for the care and support of the child, received such sum of money and gave a receipt in a form required for filing with the papers in that court, and thereafter spent the money thus paid to her in some part, if not wholly, in a business of her own, she cannot maintain in this Commonwealth, upon her husband remarrying, a libel for divorce on the ground of adultery, because she has connived in the commission of the offence of which she complains.</p>

<p>Will, Republication by codicil.</p> <p>Upon the formal execution of an instrument whose text describes it as “this Codicil to my last Will and Testament, made and executed about October 1” of a certain year, an instrument in the form of a will, which, although executed on August 8 of that year, was the “last Will and Testament” so referred to and which, by reason of undue influence and fraud of the only person named as beneficiary therein, was in its inception invalid, is validated and republished, as modified by the codicil, as of the date of the codicil.</p> <p>Upon the presentation of a petition for proof of a will and a codicil, the will naming a sole recipient of the testator’s bounty and the codicil adding one additional beneficiary, contestants of the validity of the instruments presented two issues, the first issue being, whether the will was procured to be executed through undue influence and fraud on the part of the beneficiary named therein, and the second issue being, whether the codicil was procured to be executed through like influence of the beneficiary added by its provisions. A jury answered the first issue affirmatively and the second negatively. Held, that the petitioner was not precluded, by reason of the issues framed on the motion of the contestants, from contending that the will, although in its inception invalid, was affirmed and republished by the codicil.</p>

<p>Tax, Collector. Corporation, Reaching shares for collection of debt. Statute, ■ Repeal. Equity Jurisdiction, To enjoin illegal collection of tax.</p> <p>The provision of St.^ 1909, c. 490, Part II, §§ 21, 24, conferring upon a collector of taxes special power to levy, for the collection of a tax, upon shares of stock in a corporation by a sale of its shares after leaving with designated corporate officers an attested copy of the tax warrant and a certificate of seizure, was repealed by implication by the provisions of St. 1910, c. 171, which in § 13 provides that no attachment nor levy upon shares for which a certificate is outstanding shall be valid until the certificate actually is seized or is surrendered or its transfer by the holder is enjoined.</p> <p>When the Legislature has dealt in a comprehensive way with an entire subject, the general principle is that previous conflicting provisions of law are not continued in force.</p> <p>A collector of taxes is given power by St. 1909, c. 490, Part II, § 33, and R. L. c. 159, § 3, cl. 7, as extended and amended by St. 1910, c. 531, § 2, to proceed in an orderly way to secure a lien upon and a sale of shares of stock in a corporation for the collection of a tax without violating any of the provisions of St. 1910, c. 171.</p> <p>A bill in equity to restrain a collector of taxes froifi proceeding illegally to collect a tax by sale of shares of corporate stock under St. 1909, c. 490, Part II, §§ 21, 24, after those provisions were repealed in effect by St. 1910, c. 171, will be dismissed upon a demurrer on the ground that the plaintiff has an adequate remedy at law, where there are no allegations in the bill which show that the acts of the defendant sought to be restrained would result in injury to the plaintiff for which he would not receive adequate remedy in an action at law.</p> <p>In the suit above described, it was said, that it was not necessary to go so far as to state that no case possibly could arise where equities would exist of such a nature as to warrant injunctive relief against a collector of taxes acting in excess of his powers.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries received on January 2, 1915, and alleged to have resulted from a defect in Pond Street in Cohasset. Writ dated June 3, 1915.</p> <p>In the Superior Court the action was tried before Hammond, J. To satisfy the requirements of R. L. c. 51, § 21, as amended by St. 1912, c. 221, § 1, the plaintiff relied on the following letter addressed and delivered to one of the defendant’s selectmen:</p> <p>“Cohasset, Dec. 5th, 1914*</p> <p>hí- -txr /h o x-l Mr. Wm. 0. Souther: — .</p> <p>I have been advised to sue this Town of Cohasset for an accident which happened to me, last Saturday afternoon on Pond Street sidewalk; here I am and all my business at a rest and myself with my head cut, done up in a bandage and a sprained wrist, and a lovely black eye and my side all bruised. Mr. Souther, before I make any attempt I have concluded to write you in regards to this accident which could very easy have been avoided, but was probably overlooked, but at the same time I think your attention should be called to prevent further accidents.</p> <p>Mr. Souther, I would be pleased to hear from you at once and also wishing you and your family a very happy New Year and many of them to come.</p> <p>Very respectfully,</p> <p>Mary E. W. Maloney, Box 396.”</p> <p>The reply to this letter, referred to in the opinion, was as follows:</p> <p>“Cohasset, Jan. 8, 1914.</p> <p>Mrs. Mary E. W. Maloney,</p> <p>Box 396, Cohasset.,</p> <p>Dear Madam:—Your communication to Mr. W. O. Souther, Jr., advising of injury received by you on Pond Street was brought up before the Board of Selectmen yesterday, and as your communication does not enlighten the Board sufficiently, I beg to ask if you will kindly in writing or in person advise the Board of Selectmen the exact time , and place where you received the injury you write about. In fact, please give the Board full information to enable them to investigate the matter.</p> <p>Yours very truly,</p> <p>Edward L. Stevens, Ass’t Secretary,</p> <p>Board of Selectmen, Cohasset.”</p> <p>At the close of the evidence, the defendant asked for the following rulings:</p> <p>"1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. The statutory notice of the time, place and cause of the plaintiff’s injury was not sufficient, and the verdict must be for the defendant.”</p> <p>The judge refused to rule as requested, and ruled that the letter of the selectmen of January 8 was not a sufficient demand for further notice under R. L. c. 51, § 22, to enable the defendant to avail itself of an omission by the plaintiff to state in her letter dated December 5, 1914, the time, place or cause of the injury.</p> <p>The jury found in answer to a special question that the accident was due to an unsafe condition of the street amounting to a defect caused in part by or consisting in part of snow or ice, and found for the plaintiff in the sum of $2,500. Both parties alleged exceptions.</p> <p>R-. L. c. 51, § 21, as amended by St. 1912, c. 221, § 1, is as follows: “Such notice shall be in writing, signed by the person injured or by some one in his behalf, and may be given, in the case of a county, to one of the county commissioners or the county treasurer; in the case of a city, to the mayor, the city clerk or treasurer; and in the case of a town, to one of the selectmen or to the town clerk or treasurer. If the person injured dies within the time required for giving the notice, his executor or administrator may give such notice within thirty days after his appointment. If by reason of physical or mental incapacity it is impossible for the person injured to give the notice within the time required, he may give it within ten days after such incapacity has been removed, and if he dies within said ten days his executor or administrator may give the notice within thirty days after his appointment. Any form of written communication signed by the person so injured, or by some person in his behalf, or by his executor or administrator, or by some person in behalf of such executor or administrator, which contains the information that the person was so injured, giving the time, place and cause of the injury or damage, shall be considered a sufficient notice.”</p>

<p>Petition, filed in the Land Court on May 14,1918, under R. L. c. 128, § 105, for a speedy hearing as to the validity of a claim registered on May 3, 1918, adverse to a registered title.</p> <p>The adverse claim which the petitioner sought to have declared valid was to a renewal of a lease for fifty years of certain land at Salisbury Beach given by the Commoners of Salisbury to one Enoch Stevens and described in the opinion. To comply with the requirement of the statute that he state, in his affidavit setting forth his alleged right or interest, "how or under whom it was acquired,” the petitioner relied upon the following instruments described in the opinion: The deed of assignment in 1869 from the executors of the will of Enoch Stevens to Nelson Kimball of rights under the Enoch Stevens lease, the assignment by Kimball to Jonathan F. Morrill dated May 18, 1872, and the mortgage by Morrill to George Hills on the same day. He further relied upon a title to the sublease which had been given to Hills before the assignment to Kimball, as stated in the opinion, and which, after Hills’s death, by a conveyance to Mrs. Hills and under her will and the will of her daughter, came to the petitioner, and upon a title gained by foreclosure, after the death of Hills, of the mortgage from Morrill to Hills. The determination of the validity of the petitioner’s title rested primarily upon the construction and legal effect of that mortgage. The entire description of the premises mortgaged wks as follows: “a certain piece or parcel of land situated in said Salisbury, containing one acre and one hundred and twenty-three rods, more or less, with a portion of the building standing thereon and known as the Atlantic House, at Salisbury Beach, and other buildings standing thereon, and is bounded and described as follows,' viz. Easterly by land heretofore leased by the Commoners to Enoch Stevens, deceased, and by the Executors and heirs of said Stevens, assigned to Nelson Kimball, in part, and in part to said Hills, and by said Kimball, to myself, in an assignment of said lease, bearing even date herewith; Southerly by a road; Westerly by land conveyed to me by Nelson Kimball in a deed bearing even date herewith and as hereinafter described; and Northerly by land of Eliphalet Brown; or however otherwise the same may be bounded; also one other piece of land (Salt Marsh) situated in said Salisbury, and adjoining the above described premises, and containing four acres and forty rods, more or less, and bounded as follows, viz. Beginning at the Canal, near the bridge at the causeway; thence Northerly on said canal to the long ditch; thence running Easterly on said long ditch to a stake at the first above described premises, at marsh near the old path; thence Southerly by the first above described premises, and the old path to the road; thence Westerly by. the road to the place began at; the premises being the same which is conveyed to me by Nelson Kimball, in a deed bearing even date and recorded herewith. And also one other piece of land, the same being leased land, situated in said Salisbury, and adjoining on the East, the first above described premises, and being the same which said Nelson Kimball, has assigned the lease off, to me, in an assignment, bearing even date and recorded herewith, together with the larger portion of the Hotel building, known as the Atlantic House, at Salisbury Beach, and other buildings standing thereon, and is bounded Northerly by leased land of said Hills; Easterly by the seashore; Southerly by the road leading to said seashore; and Westerly by the first above described premises.”</p> <p>In the Land Court the petition was heard by Davis, J. Material facts found by him are described in the opinion. The judge of the Land Court ruled in substance that the petitioner had failed to maintain his claim of a valid adverse right or interest in the registered land. The petitioner alleged exceptions.</p> <p>R. L. c. 128, § 105, is as follows: “Whoever claims any right or interest in registered land adverse to the registered owner which arises subsequent to the date of original registration may, if no other provision is made in this chapter for registering the same, make a statement in writing, setting forth fully his alleged right or interest, and how or under whom it was acquired, and a reference to the volume and page of the certificate of title of the registered owner, and a description of the land in which the right or interest is claimed. The statement shall be signed and sworn to, and shall state the adverse claimant’s residence, and designate a place at which all notices may be served upon him. This statement shall be entitled to registration as an adverse claim, and the court, upon the petition of any party in interest, shall grant a speedy hearing upon the question of the validity of such adverse claim, and shall enter such decree thereon as justice and equity may require. If the claim is adjudged to be invalid, the registration shall be cancelled. If the court, after notice and a hearing, finds that a claim thus registered was frivolous or vexatious, it may tax the adverse claimant double costs.”</p>

<p>Tort for personal injuries received on September- 8, 1917, and alleged to have resulted from a collision between a motor vehicle which the plaintiff was driving and a street car negligently operated by the defendant. Writ dated September 17, 1917.</p> <p>In the Superior Court the action was tried before Sanderson, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The jury found for the plaintiff in the sum of $922.92; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

Contract upon a certificate of fraternal beneficiary insurance. Writ dated September 8, 1916. In the Superior Court, upon motion of the defendant corporation, next of kin of the deceased were summoned as defendants. They demurred to the declaration on the ground that it did not appear from the declaration that the plaintiff was a legal beneficiary under the policy. The demurrer was heard by Lawton, J., and was overruled.. The next of kin appealed.

Ten actions of contract upon policies of insurance against fire to recover a loss sustained by the plaintiff by reason of the burning on June 29, 1917, of a wooden frame building on Elkins Street near L Street in the part of Boston called South Boston. Writs dated October 22, 1917. In the Superior Court the cases were heard together by Raymond, J., without a jury, upon an agreed statement of facts.

<p>Tort with a declaration in two counts, the first count being for the alleged alienation by the defendant of the affection of the plaintiff’s wife and the second count being for criminal conversation by the defendant with the plaintiff’s wife. Writ dated October 15, 1914.</p> <p>In the Superior Court the defendant on November 17, 1917, propounded interrogatories in writing to the plaintiff, numbered from 1 to 86. The plaintiff on January 16, 1918, answered the first three of these interrogatories and declined to answer the others “upon advice of counsel under the present state of pleadings, unless ordered to by the court.”</p> <p>On January 31, 1918, the defendant moved for answers to interrogatories numbered 4 to 86 inclusive. The motion was heard by Wait, J., who on February 7, 1918, allowed the motion as to certain of the interrogatories, but declined to order the plaintiff to answer the following interrogatories:</p> <p>“4. When and where did you last live with your wife Myra as husband and wife?</p> <p>“5. Was there any child or were there any children of such marriage?</p> <p>“6. After such marriage, did you go to California, and if so, when, giving the date or dates as nearly as you can of going and returning and of each time if more than once.</p> <p>“7. What did you go to California for?</p> <p>“8. After your marriage and prior to going to California,, what had been your business occupation, or occupations, if any, and where, stating in detail and giving business connections, names of associates, and any official business positions held by you.</p> <p>“9. Were you in 1897 interested in a firm known as Charles T. Cutter "and Company? E yes, who were the partners and what and where was the business, what capital did you contribute to the firm, if any and in what form?</p> <p>“10. What became of this firm and when?</p> <p>"11. Did you at any time work for P. B. Elkins of Brookline? If yes, when and in what kind of business and how long, and at what salary or rate of compensation?”</p> <p>“ 13. In what business, if any, were you then [at the time you last lived with your wife] interested, and if in any business how and to what extent, and what actual money, if any, did you have invested in the same?</p> <p>"14. At the time you went to California what property real and personal did you own and of what total cash value?</p> <p>“ 15. At the time you went to California what income did you have of-your own apart from what your wife may have given you?”</p> <p>“18. What support did your wife have from you during the’ periods of such absences [during the months of September, October, November and December, 1908, and during the same months in 1909], and if any, state the amounts of money or other forms of support which she may have had from you, and how the same was delivered to her, and the amounts and quantities and ¿ate or dates, of delivery to her, as nearly as you can now state them.</p> <p>“ 19. While you were absent from Massachusetts did you send your wife any money, and, if yes, what amounts, in as much detail as you can state it.”</p> <p>“27. Did Dr. Cooper ever treat you professionally? E yes, how often and when and where and what for, stating it in all possible detail.</p> <p>“28. Did you ever have any venereal disease? If yes, when did you first know it?</p> <p>“29. Were you treated professionally for any such disease and, if yes, by whom, and when and where?”</p> <p>“31. If [you have] not [read your declaration as filed in this case] will you do so?</p> <p>“32. Have you now done so?</p> <p>“33. Did you read it before it was filed? Who drew it?</p> <p>“34. Who gave him the information from which to draw it?”</p> <p>“36. Where were you living at the time of such claimed desertion? Give street and numbef of the street and ownership or proprietorship of the building, if you know.”</p> <p>“38. If you say that your wife deserted you, state what support you were furnishing to her at or about the time thereof, and the form of such support and the amount or amounts in money or other forms.”</p> <p>“40. If you have answered the last interrogatory in the affirmative, [such interrogatory inquiring, 'Is it true that at any time when you were able, ready and willing to provide for your wife a suitable support and maintenance you asked her to live with you and she refused? ’] state when it was and what your gross earnings or income were at the time per month or per year, and state the source or sources thereof in such detail as you are now able.</p> <p>“41. Did you communicate with your wife after the time of such claimed desertion in any way, and, if so, when and how, in detail?</p> <p>“42. Did you receive any moneys by check or otherwise from your wife Myra after the date when you say she deserted you, and, if yes, state when and what amounts in as much detail as possible. If you have answered that you did receive any such sums from Mrs. Cutter, state what they were for.”</p> <p>“44. What was your mother’s name in full?</p> <p>“45. Is she still living? If not, when did she die?</p> <p>“46. Do you know of any payments of money by your wife Myra to your mother after your wife, as you claim, deserted you, and if yes, state what such payments were as fully as you are able.</p> <p>“46a. Did your wife Myra advance any moneys to Charles T. Cutter and Company and, if yes, what amounts and when and what for? Were such advances ever repaid, and, if yes, when and how?</p> <p>“47. It is true, is it not, that during the years 1903, 1904, and 1905 you were many times under the influence of liquor; if yes, state where and how often, as nearly as you can now give the places and times.</p> <p>“48. Did you ever go to the bar at the Parker House in Boston, and, if yes, how many times in the years 1903 to 1909 inclusive?</p> <p>“49. Did you ever go to the Hotel Haymarket in Boston, run by one Campbell? Were you ever there in a state of intoxication? When and how often?</p> <p>“50. Do you, or did you at any time, know one Henry Goodwin, now or formerly of Wakefield?</p> <p>“51. Do you, or did yqu at any time, know one Smith, a restaurant man of Wakefield?</p> <p>“52. Did you ever attend any dance or dances at Lynnfield with either or both said Goodwin and Smith and, if yes, how many times and when?</p> <p>“53. Between 1893 and 1906 did you personally have any physical ailment, sickness or disease, and, if so, what ailment, sickness or disease, and, if more than one, state all, in such detail as you are able.</p> <p>"54. Between 1893 and 1906 did you consult any physician regarding your own health or physical condition in any respect other than as already answered in Answer 29?</p> <p>“55. If you answer the last interrogatory in the affirmative, state what doctor or doctors you consulted and when and where, giving the names of the doctors in full and their places of residence or business.</p> <p>“56. If you have answered that you did consult one or more doctors during the period inquired of, state for what cause or trouble you so consulted such medical advisers, and state, according to your best present knowledge and information, what physical ailment, sickness or disease you then had.</p> <p>“57. Did you consult any other doctor or doctors than those already named, during the period inquired of, and if so, when and whom and for what, and in such detail as you are now able to state.</p> <p>“58. Have you now answered all you can regarding your own ailments, complaints, sickness, or disease during the period between the years 1893 and 1906, and if not, will you now answer as fully as. you are able?</p> <p>“ 59. State where you have lived during the period 1904-1909» both years inclusive, giving detail of the places in which you have lived, streets and numbers and the times of the several occupations, if more than one.”</p> <p>“67. If you have answered that you have no such direct personal knowledge Qof the acts of Dr. Cooper as alleged in the second count of your declaration], and, if yes, what knowledge in detail, and when did you first get such knowledge and where ? who, if anybody, has told you of such acts and what were you told and when for the first time?</p> <p>“68. Did you ever communicate in any way, verbally or in writing, with the defendant, after your wife ceased to live with you, and if so, when and how, and if more than once, state the times and places and the manner of communication.</p> <p>“69. What efforts did you make, if any, after your wife left you, to get her to return to you?</p> <p>“70. Did you in 1909 bring a libel for divorce from your wife Myra, in Middlesex County, Massachusetts?</p> <p>“71. Did you in November or December, 1909, obtain a decree of divorce in that suit?</p> <p>“72. Had you from the time of your marriage to said Myra, up to the time of obtaining such decree, always been true and faithful to your marriage vows and obligations?</p> <p>“73. Did you ever know a woman named E. A. Sears? If so, when?</p> <p>“74. Who was she?</p> <p>“75. Did you ever have any letter or letters from her?</p> <p>“76. Where did she live? How, when and where did you make her acquaintance?</p> <p>“77. Did you know any other woman in Marlborough, Massachusetts, and if so, whom, stating name, residence and • occupation.</p> <p>“78. What acquaintance did you have with her?</p> <p>“79. Did you ever meet her in Boston?</p> <p>“80. If yes, where and when, and what for?</p> <p>“81. Did she ever ask you to meet her at any house on Isabelle Street or Isabella Street in Boston?</p> <p>“82. Did you meet her there? If yes, when?</p> <p>“83. Did you have her photograph, and if yes, when and how did you get it?</p> <p>“84. Did you in the year 1906 buy a fur coat from Lamson and Hubbard in Boston, and, if yes, what did you do with it?</p> <p>“85. What kind of a coat was it and what was the price?</p> <p>“86. Have you ever paid for this coat?”</p> <p>To the refusal to order the above interrogatories answered, the defendant excepted.</p> <p>The action afterwards was tried by a jury and, on February 27, 1919, a verdict was returned for the plaintiff in the sum of $15,000. Thereafter the defendant alleged exceptions which related solely to the correctness of the order of the judge refusing to order answers to the interrogatories above set out. Appended to and after the signature of the judge to the allowance of the bill of exceptions was the following memorandum, also signed by the judge:</p> <p>“In allowing this bill I rule that facts arising subsequent or appearing subsequent to the hearing are immaterial and I refused to permit such facts to be stated in this bill. Plaintiff’s counsel excepted.”</p>

<p>Writ of Error. Practice, Civil, Writ of error, Report, Acceptance of service, Ap- ' pearance. Partnership. Attorney at Law. Evidence, Of death. Jurisdiction. Estoppel. Judgment. Res Judicata.</p> <p>The proceedings upon a writ of error are according to the common law except as modified by usage.</p> <p>Upon a report by a single justice of this court of his findings of fact and rulings of law upon a writ of error, there can be no review of questions of fact.</p> <p>Upon a writ of error assigning that a judgment in tort should be reversed because the court never had jurisdiction over two of four defendants named therein, a determinative question was, whether the four defendants were partners at the time of the bringing of the action. The case was heard by an auditor. The evidence was conflicting and would have warranted a finding either way. The auditor found that, previous to the bringing of the original action, the two plaintiffs in error over whom, it was contended, the court did not acquire jurisdiction, had retired from the partnership. The case was heard by a single justice upon the pleadings and the auditor’s report. He adopted the findings of the auditor and reported the case to the full court for determination. Held, that the finding above described was a determination of a question of fact, which, upon the record, could not be reviewed.</p> <p>A court acquires no jurisdiction over a defendant where no process has been served on him and an attorney at law without authority accepts service of process and enters an appearance for him in court.</p> <p>If, in an action at law against several defendants, an attorney at law files an appearance card headed with the name of the plaintiff and of only one defendant, and bearing, above the attorney’s signature, the statement, “In the above action I appear for Defendant,” it cannot be said that this is a general appearance for all of the defendants.</p> <p>The fact that in 1910 four partners filed with the clerk of a municipality the certificate required by St. 1907, c. 539, stating their names as partners, does not estop two of the four from asserting, in a writ of error to set aside a judgment obtained in, an action of tort brought against the four as partners two years after the filing of the certificate, that, before the tort complained of and before the bringing of the action, they had withdrawn from the partnership.</p> <p>A plaintiff in error, the administrator of the estate of a Greek, who was one of four defendants against whom a judgment in an action of tort for personal injuries and causing death had been obtained, contended that the judgment should be set aside because at the time of the verdict and judgment his intestate was dead and no suggestion to that effect had been made upon the record and no administrator of his estate had been summoned to defend. There was evidence tending to show that late in 1912 the intestate left this country for Greece for the purpose of fighting in the war in which his country then was engaged; that in July, 1913, a battle was fought in that war lasting all day, in which many were killed and wounded and which resulted in a retreat of the Greeks leaving their enemy in possession of the battlefield where the dead and wounded of the Greeks were left; that, at about ten o’clock in the forenoon of the day of the battle, the intestate was seen engaged in battle and uninjured; that since that day he had not been seen nor heard from; that funeral services in his memory were held by his relatives in his native town in Greece and his relatives in Greece had written to their friends in this country stating that he was dead; that he left property in this Commonwealth and that administration had been taken out on his estate, the petition therein stating that his death occurred in July, 1913. Held, that such evidence was competent upon the question, whether the intestate was killed in battle, and warranted a finding that he had died in the battle or shortly thereafter.</p> <p>A judgment upon the merits of an earlier suit is not a bar in a later suit between the same parties upon a different cause except as to those issues which actually were tried and determined in the earlier suit.</p> <p>In a suit in equity by one who, as the plaintiff in an action of tort against four, alleged therein to be copartners, had obtained a judgment, to have reformed a bond which had been given in that action to dissolve an attachment, two of the defendants in their pleadings contended that the court never had obtained jurisdiction of them in the action of tort. The judge found merely that the bond as executed was not in the form intended by the defendants’ attorney, who drafted it, and that a case of mutual mistake was established, and by his order a decree was entered for the plaintiff. Later the defendants in the action of tort brought a petition for a writ of error to set aside the judgment in the action of tort on the ground that the court never had jurisdiction over two of the defendants. Held, that the decree in the suit in equity did not make res judicata in the writ of error the question, whether the court in the original action of tort ever had jurisdiction over the two defendants in question.</p>

Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board, entered on December 24, 1918, that the claimant was not entitled to compensation. The case was heard by Chase, J. Material facts are described in the opinion. A decree was entered dismissing the claim; and the claimant appealed.

<p>Bill in equity, filed in the Superior Court on April 11, 1916, wherein the plaintiffs alleged that the defendant Cunningham, in bad faith, while acting as attorney for the plaintiffs, had purchased certain real estate in Malden, a beneficial interest in which was owned by the plaintiffs as tenants by the entirety, and that the title thus acquired had come through mesne conveyances to the defendant Emily L. Tracy. The prayers of the bill were that a reconveyance of the property to the plaintiffs be ordered, and for an accounting.</p> <p>By an order of the District Court of the United States for the District of Massachusetts, made on motion of a creditor of Michael Dunne, Lloyd Makepeace, trustee in bankruptcy of Michael Dunne, moved to be admitted as a party plaintiff. His motion was granted on December 21, 1916.</p> <p>The suit was referred to a master. It appeared that the sale at which the defendant Cunningham purchased the property was in foreclosure of a second mortgage upon the premises and that at that time the premises also were subject to a third and a fourth mortgage. Other material facts found by the master are described in the opinion.</p> <p>The plaintiffs filed no objections nor exceptions to the master’s report. By order of Jenney, J., the report was confirmed and a final decree was entered dismissing the bill. The plaintiffs appealed.</p>

<p>Contract by the collector of taxes of the town of Lakeville against the Bay State Street Railway Company and Wallace B. Donham, receiver of that corporation under a decree of the District Court of the United States for the District of Massachusetts, seeking to recover the balance of a commutation excise tax assessed under St. 1909, c. 490, Part III, §§ 47,48, 50. Writ dated September 30, 1919.</p> <p>The defendants in their answer admitted all the material allegations of fact in the declaration.</p> <p>In the Superior Court, Hitchcock, J., without a decision, reported the case, upon the pleadings and the facts thus agreed to, to this court for determination.</p> <p>St. 1909, c. 490, Part III, §§ 47, 48, 50, are as follows:</p> <p>“Section 47. A street railway or an electric railroad company, including a company whose lines are located partly within and partly without the limits of the Commonwealth, whether chartered or organized under the laws of this Commonwealth or elsewhere, shall annually, on or before the fifteenth day of October, make and file in the office of the board of assessors of every city and town in which any part of the railway or railroad operated by it is situated a return signed and sworn to by its president and treasurer, stating, in the case of a street railway company, the length of track operated by it in public ways and places in such city or town, and also the total length of track operated by it in public ways and places, and in the case of an electric railroad company stating the length of track operated by it longitudinally upon public ways and places in such city or town, and also the total length of track operated by it, determined as provided in section forty, and also the amount of its gross receipts during the year ending on the preceding thirtieth day of September, including therein all amounts received by it from the operation of its railway or railroad, but excluding income derived from the sale of power, rental of tracks or other sources.</p> <p>“Section 48. On or before the first day of November annually, the assessors of every city and town in which a street railway or an electric railroad is operated, including a company whose lines are located partly within and partly without the limits of the Commonwealth, whether chartered or organized under the laws of this Commonwealth or elsewhere, shall assess on each company described in the preceding section operating a railway or railroad therein an excise tax of an amount equal to such proportion of the following percentages of the gross receipts of such company as, in the case of a street railway company, the length of tracks operated by it in public ways and places of such city or town bears to the total length of tracks operated by it in public ways and places, and in the case of an electric railroad company as the length of tracks operated by it longitudinally in public ways and places of such city or town bears to the total length of tracks operated by it.</p> <p>“The percentages shall be based upon the annual gross receipts for each mile of track as follows, and computed upon the aggregate of said annual gross receipts: four thousand dollars or less, one per cent; more than four thousand dollars and less than seven thousand, two per cent; more than seven thousand dollars and less than fourteen thousand, two and one quarter per cent; more than fourteen thousand dollars and less than twenty-one thousand, two and one half per cent; more than twenty-one thousand dollars and less than twenty-eight thousand, two and three quarters per cent; twenty-eight thousand dollars or more, three per cent.</p> <p>“The excise tax provided by this section shall be in addition to the taxes otherwise provided by law.”</p> <p>“Section 50. Prior to the fifteenth day of November in each year the assessors of every city and town shall notify the collector of taxes thereof of the amount of excise tax assessed therein under the provisions of section forty-eight, and the collector shall forthwith notify the treasurer of each street railway and electric railroad company of the amount of excise tax so assessed upon it, which shall become due and payable within thirty days after the receipt of such notice. The provisions of Part II, so far as appropriate, shall apply to the collection of such excise tax.”</p>

<p>Workmen’s Compensation Act, Injuries to which act applies.</p> <p>One, employed by a manufacturer as a foreman in one of two buildings of his employer, in going to another building to answer a telephone call, passed through the basements of both buildings. Upon his return by the same route, he stopped to talk with a fellow employee and, as a result of their conversation and merely through curiosity, he looked into a vat with which his employment had nothing to do, and, in leaning against a galvanized iron table and reaching for a portable electric lamp, he received an electric shock which caused his death. In proceedings under the workmen’s compensation act by his dependent, it was held, that the claim must be dismissed, because the injury did not arise out of or in the course of the employee’s employment.</p>

<p>Contract, with a declaration as amended in two counts, the first count being for $2,195.97, money alleged to have been had and received by the defendants to the use of the plaintiff. In the second count the plaintiff alleged a breach of an agreement by the defendants to pay to him the amount of a mechanic’s lien, which was upon premises numbered 1340 Commonwealth Avenue in Boston, in consideration of the plaintiff allowing a dissolution of an injunction restraining the defendants from proceeding with a sale in foreclosure of a mortgage upon the premises. Writ dated November 18, 1916.</p> <p>In the Superior Court the case was tried before White, J. The material evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendants and reported the case for determination by this court, judgment to be entered for the plaintiff in the sum of $2,400 if, upon so much of the evidence as was competent and material, the case should have been submitted to the jury upon either count of the declaration; and, if the ruling ordering the verdict for the defendants was right, judgment to be entered upon the verdict.</p> <p>The case was submitted on briefs.</p>

<p>Three actions op contract or tort by the trustees of the Bangs Real Estate Trust, owners of a building in Boston numbered 74 to 78 Summer Street, to recover expenses and damages which resulted to the plaintiffs as defendants in a suit in equity by a subtenant of those premises following his eviction, in which, it was alleged, the defendants all participated, after the defendant in the first action had surrendered to the plaintiffs a lease which had been given to the defendant in the third action and of which he was assignee. Writs dated April 6, 1915.</p> <p>In the Superior Court the three actions were heard together by O’Connell, J., without a jury.</p> <p>The essential provisions of the agreement for the surrender of the lease referred to in the opinion were as follows:</p> <p>“Now therefore, in consideration of the payment by said Higgins to said Trustees of the sum of fifteen thousand three hundred ninety-three dollars ($15,393), the receipt whereof is hereby acknowledged, it is agreed;</p> <p>“That said lease, dated May 11th, 1911, between said Trustees- and said Evening Traveler Company, assigned to said Higgins, be and hereby is cancelled and discharged and made null and void for the remainder of said term, and the parties hereto severally and mutually release and quitclaim to the other all rights, claims or damages which they or he may have under the terms of said lease;</p> <p>“That said premises are hereby surrendered and returned, to-take effect as of February 1, 1913, by said Higgins to said Trustees, with all fixtures and personal property thereon;</p> <p>“That said Higgins hereby assigns, transfers and sets over unto said Trustees all his right, title and interest in and to any rents or claims for rent against sub-tenants in said premises accruing from and after said February 1, 1913.</p> <p>“Said Trustees, however, in no way assume any obligation or duties toward said sub-tenants, if any there be.</p> <p>“Said Trustees shall assume the wages of a janitor at sixteen dollars ($16) per week and an elevator boy at eight dollars ($8) per week from and after said February 1, 1913.”</p> <p>The material facts were undisputed and are described in the opinion.</p> <p>The following requests, which were the same in all three cases, were asked for by the plaintiffs and were refused by the judge:</p> <p>“21. That the fair meaning of the cancellation agreement of February 8, 1913, in view of all the circumstances under which it was made, was that the premises should be surrendered free of sub-tenants other than tenants at will or at sufferance.</p> <p>“22. That- a surrender of leased premises for consideration imports a covenant that the lessor shall regain complete possession free of any intervening rights on the part of sub-tenants. ”</p> <p>The judge found for the defendant in each action and the plaintiffs alleged exceptions.</p>

<p>Equity Jurisdiction, Specific performance, To relieve from results of fraud. Contract, Validity, Performance and breach. Equity Pleading and Practice,</p> <p>Master’s report, Appeal. Trust, "What constitutes.</p> <p>An agreement in writing among all the heirs at law and next of kin of one who had died intestate, to the effect that they would carry out as a will the provisions of a document, signed by the intestate without attestation but testamentary in purpose and purporting to dispose of all of the intestate’s estate, is a proper subject of a suit in equity to compel specific performance by one of those who signed it.</p> <p>After the plaintiff in a suit in equity had filed exceptions to a master’s report, the report was recommitted to the master for findings of further facts and a report of certain evidence. No exceptions were filed to the supplemental report. There was a final decree dismissing the bill. The plaintiff appealed. Held, that it was not open to the plaintiff to contend that findings of fact in the supplemental report of the master were not warranted by the evidence.</p> <p>In a suit in equity against one of the next of kin and heirs at law of one who had died intestate, for the specific performance of an agreement in writing by all of the next of kin and heirs at law relating to the distribution of the estate, the defendant contended that his signature to the agreement had been procured by false representations of one of the plaintiffs. The suit was referred to a master. The plaintiffs excepted to the master’s report on the ground that he had failed to report “when the plaintiffs had notice of the repudiation of said agreement by” the defendant. It did not appear that there was any trial upon the question whether the defendant was estopped by loches from relying upon the fraud alleged to have been practised upon him or any testimony as to when he discovered the fraud. Held, that the exception must be overruled.</p> <p>Failure, by the defendant in the suit described above, to testify in his own behalf did not as a matter of law preclude him from relying on any defence legally open to him.</p> <p>The false representation upon which the defendant in the suit above described relied to invalidate the agreement sued on was to the effect that, unless the defendant signed the agreement, one of the next of kin, a woman, could not procure certain money which she had placed in the hands of the intestate. The plaintiffs contended that the representation was as to a matter of law and therefore was not a defence to the suit. Held, that it could not be said as a matter of law that the scope of the representation was so limited, since the right to recover the money from the estate of the intestate might have depended largely on facts in the knowledge of the. plaintiff who made the false representation.</p> <p>In the suit above described, there was evidence before the master to the effect that the intestate deposited $2,000, received as above stated, one half of it in a savings bank in his individual name and the other half in another bank in his name as trustee for the woman from whom he had received it; that, in the bank in which was the account in his individual name, there was another account of practically the same amount under his name as trustee for the same woman; that, in a writing signed by him previous to his death, the intestate had expressed a wish that the woman should have “the two bank books” in the savings bank where there were the two deposits, one in his individual name and one in his name as trustee for her, “as she gave me two thousand dollars.” These facts were known to that plaintiff who stated to the defendant that the woman could not get back her $2,000 unless the defendant signed the agreement in suit. The master found that the representation was false. Held, that there was no necessary inconsistency between the finding and the evidence.</p> <p>If, in a suit by several plaintiffs to enforce specific performance of an agreement in writing made by the defendant and the plaintiffs relating to the distribution of the estate of one who had died intestate and whose heirs and next of kin the plaintiffs and the defendant were, it appears that the execution of the agreement by the defendant was procured by fraud and false representations on the part of one only of the plaintiffs, who in such conduct was not acting as the agent for or in any way in complicity with the other plaintiffs, the suit may be maintained by those of the plaintiffs who were not parties to the fraud to enforce against the defendant whatever rights they have under the agreement.</p> <p>An agreement by all of the next of kin of one who died intestate, to perform the provisions of an informally executed testamentary instruction of the intestate, is not without consideration if it appears that the promises were mutual, that three of the next of kin, in accordance with the wishes of the intestate so expressed, left their own home to take possession of and labor upon the homestead formerly of the intestate and changed their occupations and methods of life, and- ■ that another of the next of kin under the agreement was given $10.</p> <p>Where, in a suit in equity for the enforcement of specific performance of a contract in writing, it appears that it is impossible to afford specific performance of the entire contract, relief may be given by enforcing it in part under appropriate circumstances.</p> <p>In a suit in equity against a man and his wife, who with the plaintiffs constituted all of the heirs at law and next of kin of one who had died intestate, to compel specific performance of an agreement in writing made by all such heirs at law and next of kin to carry out the . provisions of a document, informally executed by the intestate and containing testamentary directions as to his estate, the defendants in their answer alleged that they were induced to sign the agreement by false representations of one of the plaintiffs as to inability on the part of another plaintiff, a woman, to obtain money given to the intestate unless the agreement was signed. Neither of the defendants testified in terms that either of them had relied on the alleged false representation in signing the agreement. The inan did not testify at all. The woman testified merely that she had told the woman who had given money to the intestate that she signed the agreement to save to such woman her money. Held, that a finding that the defendants relied on the misrepresentations was not warranted.</p> <p>The suit above described was heard by a master. No exception to his report raised the question, whether a finding that the defendants relied on the misrepresentations was warranted. A final decree dismissing the bill was entered from which the plaintiffs appealed. Held, that the question, whether there was such reliance by the defendants on the false representations, was open on the appeal and properly might affect the conscience of this court in granting or denying relief.</p> <p>In the suit above described, it appeared that the agreement sought to be enforced gave to three of the plaintiffs the intestate’s farm and buildings, including a house and barn, personal property in the house and a certain savings bank deposit, and to one of the three personal property in the bam, various other savings bank deposits to five others of the plaintiffs and to a church, and $10 to the brother who was a defendant. The relief specifically asked for in the bill was that the defendants, the brother and his wife, be required to release the farm and buildings to the three plaintiffs in accordance with the agreement. The defendants asked for no relief either in their answer or by a cross bill. This court, on an appeal from a final decree dismissing the bill, ordered that the decree be reversed and stated that the relief asked for should be granted to the three plaintiffs, but that, the record not being satisfactory, it did not seem wise to make any other order than that the decree be reversed, thus giving to the parties an opportunity to move for the ascertainment of further facts.</p>

<p>Will, Validity. Fraud. Undue Influence. Evidence, Presumptions and burden of proof.</p> <p>Statement by Rugg, C. J., of the principles of law determining what constitutes fraud or undue influence which will render invalid an instrument duly executed by a person of testamentary capacity as and for his last will.</p> <p>At the trial of an issue, whether a will was procured to be made through the fraud or undue influence of the decedent’s widow, his second wife, the trial judge, subject to an exception' by the executor, refused to order that the issue be answered in the negative. There was evidence warranting a finding that, after his second marriage, the decedent’s powers both of mind and body began to wane, one physician testifying that he was “a little bit dull and a bit childish about some little things and his mind puerile; ... in such condition that he could be easily influenced;” but, upon all the evidence, it' was held, that the exception must be sustained because the evidence fell short of showing an imperious and overruling spirit on the part of the widow which swayed the decedent’s mind into conformity with her desires against his own judgment.</p>

<p>Appeal by the Malden and Melrose Gas Light Company, a judgment creditor of the estate of Frank E. Chandler, from a decree of the Probate Court for the county of Middlesex modifying and allowing as modified an account of Edgar F. Hanscom, appointed under the provisions of K L. c. 147, § 5, to succeed Arthur W. Newell as trustee under a written instrument signed by Chandler and Newell, Newell having died and the instrument making no provision for the supplying of a vacancy in the office of trustee.</p> <p>It appeared that Chandler, under the circumstances described in the opinion, on August 18, 1911, conveyed to Newell all his real estate in the county of Middlesex, with an exception not material, and that on the same day he and Newell made an agreement in writing and under seal, reciting “That whereas the said Chandler has this day conveyed by warranty deed certain real estate to the said Newell, it is hereby agreed that the said real estate is conveyed to the said Newell and held by him as and for collateral security to secure and protect the Fourth National Bank of Boston for any and all money which has been loaned by said bank to the said Chandler; and also to secure any liability of or loss to the said bank by reason of any notes discounted whereon the said bank is or may be liable for or on account of said Chandler or for any persons at the request of said Chandler, or otherwise; and further to protect and secure said bank for any future loan or loans which said bank may make to said Chandler, and for any future liability or loss which the said bank may incur by reason of any notes which may be discounted in the future by the said bank for or by reason of the said Chandler, or for any person at the request of said Chandler, or otherwise, and in general, to protect the said bank against any liability or loss it may incur through or by reason of any transaction, present or future, entered into with said Chandler or other persons at the request of said Chandler.</p> <p>“And it is further agreed that the said Newell shall re-convey said real estate or unsold portion thereof to the said Chandler at such time as the above described liabilities to the said bank shall be discharged; but nothing in this agreement shall be construed to affect the right of the said Newell to sell the said real estate conveyed to him and to apply the proceeds thereof to the payment of said loans or to the discharge or satisfaction of any liability as hereinbefore set forth, at the discretion of the said Newell, he to render the surplus proceeds from the sale of said real estate, if any, to the said Chandler or his heirs, executors or administrators, with full power in the said Newell to sell said real estate as aforesaid, without any liability in the purchaser or purchasers for the application of the purchase money in any event.</p> <p>“The foregoing agreement shall bind the parties hereto, their heirs, executors and administrators.”</p> <p>The items in the account of the trustee which were objected to were the following:</p> <p>“Item 9. April 24,1914 Cash paid George R. Blinn $2,500.00 “ 53. June, Cash paid Adams & Blinn,</p> <p>services and expenses $2,819.97</p> <p>“ 54. Cash paid Edgar F. Hanscom</p> <p>services as trustee $2,000.00”</p> <p>There was a hearing in the Probate Court before L. E. Chamberlain, J. He made, among others, the following rulings:</p> <p>“The real estate was deeded to Newell as security: he held the property not in his own absolute right, but for the benefit of another; he was put in possession charged with a duty embracing the well defined elements of a trust. . . . No provisions for the payment of the trustee’s services were contained in the said instruments. Acting under the appointment of the court and the requirements of his bond, the trustee is entitled under R. L. c. 150, § 14 to his ‘reasonable expenses incurred in the execution of his trust’ and to ‘such compensation for his services as the court in which his accounts are settled may allow.’ . . . Items 9, 53, and 54 will be disallowed and allowed as follows:</p> <p>“Item 9. April 24, Cash paid George R. Blinn _ $2,500.00</p> <p>“ 53. June, Services Adams and Blinn " $2,000.00</p> <p>“ 53 (a). Adams and Blinn expenses and money paid $319.97</p> <p>“ 54. Cash paid Edgar F. Hanscom, trustee $1,200.00”</p> <p>In the Supreme Judicial Court, the case was referred to a master. Material findings of the master are described in the opinion. The master’s conclusion was that item 9 of the account should be allowed as it stood,' $2,500; that item 53 should be divided and allowed as follows: item 53a (services of Adams and Biinn, counsel) $2,500, item 53b, Adams and Blinn, expenses and money paid, $319.27; and that item 54 should be allowed in the sum of $1,200.</p> <p>The Malden and Melrose Gas Light Company filed objections and exceptions to the report, which are described in the opinion. The exceptions were overruled and the report confirmed by Crosby, J., by whose order a final decree was entered modifying the decree of the Probate Court in accordance with the master’s conclusions. The Malden and Melrose Gas Light Company appealed both from the interlocutory and from the final decree.</p>

Bill in equity, filed in the Superior Court on May 6,1918, by the administrators de bonis non with the will annexed of the estate of Thomas Kelly, late of Boston, against one who was a partner of the plaintiffs’ testator at the time of his death, praying that the ■defendant be restrained from using in his business the name of the plaintiffs’ testator, and for an accounting.

<p>Contract for $83.33, alleged to be due as rent under the provisions of a lease in writing. Writ in the Municipal Court of the City of Boston dated November 20, 1918.</p> <p>On removal to the Superior Court, the action was tried before Wait, J. It appeared that one provision of the lease was as follows: “It is understood and agreed by and between the parties to this lease, that if the premises are equipped with heating apparatus that the Lessor shall furnish heat to the Lessee at such times and in such quantities as said Lessor shall see fit, and that the Lessor does not guarantee any specific degree of heat, and that said Lessor is not to be held accountable or liable in any way whatsoever for failure to provide heat, or for the mismanagement or negligence of Lessee or his or her household, to properly regulate the valves in connection with said heating apparatus, or for the destruction or damage to Lessees’s roomers’ or guests’ property in case of leakage of water from said heating apparatus.”</p> <p>After the exclusion of the evidence described in the opinion, the judge ordered a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries received when a motor vehicle owned and operated by the plaintiff was run into by one owned by the defendant and negligently operated by one Elderkin. Writ dated October 3, 1917.</p> <p>In the Superior Court the action was tried before Sanderson, J. There was evidence tending to show that Elderkin was employed by the Vulcan Garage Company, a corporation which operated a garage, owned and let motor trucks and a roadster, but that its garage was not one where private individuals could go and get their cars repaired. Other material evidence is described in the opinion. At the close of the plaintiff’s evidence, the defendant moved that a verdict be ordered in his favor. The motion was denied. There was a verdict for the plaintiff in the sum of $1,380; and the defendant alleged an exception.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Plymouth on July 14,1919, and afterwards amended by three of the four heirs at law and next of kin of Thomas S. Peirce, late of Middleborough, against the Attorney General and the trustees under the will of Thomas S. Peirce, to have the residuary clause of the will declared null and void and the residuary estate conveyed and distributed among the testator’s heirs at law and next of kin.</p> <p>A motion by the town of Middleborough to be admitted as a party defendant was allowed.</p> <p>The defendants severally demurred for want of equity. The demurrers came on to be heard before Pierce, J., who reserved the case upon the amended pleadings for determination by the full court.</p>

<p>Two actions of tort, the first for personal injuries received when the plaintiff was struck from behind by a street car of the defendant when.she was walking northerly from the intersection of Longwood Avenue and Huntington Avenue in Boston on the “reserved space” in Huntington Avenue between the outer rail of the inbound track of the defendant and the curbstone. The second action is by the husband of the plaintiff in the first action for consequential damages. Writs dated April 17, 1917.</p> <p>In the Superior Court the actions were tried together before Sisk, J. The material evidence is described in the opinion. At the close of the evidence, the judge ordered verdicts for the defendant; and the plaintiffs alleged exceptions.</p> <p>St. 1894, c. 324, is as follows:</p> <p>“Section 1. The board or officers authorized to lay out streets, townways or highways in a city or town may, whether any such street or way is laid out under the provisions of law authorizing the assessment of betterments or not, reserve between the side lines thereof special space for the use of persons riding on horseback, special space for the use of street railways, whether operated by animal power, electricity or any other motive power except .steam, special space for drains and sewers, and electric wires used for any purpose, and special space for trees, grass and for planting.</p> <p>“Section 2. This act shall take effect in any city upon its acceptance by the city council thereof, and in any town upon its acceptance by the inhabitants thereof at any annual or special meeting called for the purpose.”</p>

Bill in equity, filed in the Supreme Judicial Court on June 23, 1916, and amended as of August 30, 1916, by James A. Noyes, both as the surviving executor of the will of James Noyes, the father of himself and of the defendant, and individually as a devisee under that will, to enjoin the defendant from the further prosecution of an action at law, which he had brought against the plaintiff and another as the executors of the will of James Noyes on an alleged agreement in…

<p>Devise and Legacy, In performance of contract. Tax, On successions and inheritances, Collection. Executor and Administrator. Probate Court, Petition for leave to sell real estate to pay inheritance tax.</p> <p>Where real estate was given by will in accordance with a contract in writing between the devisee and the testator, the devisee must pay an inheritance tax assessed thereon if neither the contract nor the will contains a provision relieving him from such payment.</p> <p>Payment by the executor of a will of an inheritance tax assessed upon a devise of certain real estate is not a condition precedent to the maintenance by the executor, when the devisee refuses to pay the tax, of a petition under St. 1909, c. 490, Part IV, § 12, for leave to sell the real estate for payment of the tax.</p> <p>A petition by an executor of a will under St. 1909, c. 490, Part IV, § 12, for leave to ' sell certain real estate of the testator for the payment of an inheritance tax assessed thereon, which the devisee refuses to pay, need not meet all the requirements of a petition by an executor or administrator for leave to sell real estate of a deceased person for the payment of his debts.</p> <p>Such a petition under St. 1909, c. 490, Part IV, § 12, is sufficient if it alleges the death of the testator, the devise of the real estate, a description of the real estate by metes and bounds, that the inheritance tax is due thereon, that the devisee had taken possession of the premises and that he refused to pay the tax, and contains a prayer that the executor be authorized to sell the real estate for payment of the tax and interest.</p> <p>While, under § 21 of the statute above described, the Treasurer and Receiver General might be made a party to such a petition, failure to join him as such is not reversible error if he has not sought to be made a party.</p>

Contract for $650, alleged to be due as rent under a lease of premises known as the “Dream Theatre,” in that part of Saugus called Cliftondale. Writ in the Municipal Court of the City of Boston dated March 11, 1918. At the trial in the Municipal Court, it appeared that on March 2, 1916, the owner of the premises, one James S. Duval, conveyed them in mortgage to one Rufina M. Jordan, and later on the same day executed and delivered the lease to the defendants.

<p>Equitable Restriction. Equity Jurisdiction, To enforce equitable restriction, Laches. Wrongdoer without Remedy.</p> <p>A corporation, which was the owner of a tract of land in a town, in conveying lots therefrom, imposed a restriction that no building should be erected within five feet of the side line of the lot, the restriction being imposed as part of a general scheme for the development of a residential neighborhood. Held, that this was not merely a legal restriction for the benefit of the corporation alone, but was inserted for the benefit of purchasers from the company and their grantees and could be enforced by a suit in equity.</p> <p>The right of the owner of a lot, conveyed from the tract by a deed containing the restriction above described, to maintain a suit in equity to enjoin an adjoining owner, who secured his lot by a like deed, from violating the restriction is not affected by a deed from the corporation to the defendant purporting to release its rights, where no other owner of lots in the tract joined therein.</p> <p>A master, to whom the suit above described was referred, found that the re- • striction had been quite generally disregarded and violated on the street upon which the plaintiff’s lot fronted and upon lots in that vicinity, and, further, that the character of the neighborhood had not changed from that of a residential section. Held, that these findings did not preclude the plaintiff from obtaining the relief sought.</p> <p>A mere failure of the plaintiff to object to violations of the restriction by others in the neighborhood does not prevent him from having relief from the violation by the defendant which directly affects the plaintiff’s lot.</p> <p>The plaintiff in the suit above described, previous to the erection by the defendant of a building in violation of the restriction, objected thereto and notified and requested the defendant not to erect it, and took, as soon as possible, action to assert his rights. Held, that the plaintiff was not barred by loches. "</p> <p>At the trial of the suit above described, it appeared that for some years previous to the installation of a system of waterworks in the town, the plaintiff maintained an out-building within five feet of the side line between the lots, that the defendant did not object thereto and also maintained an out-building within the restricted area on his lot, that, previous to the violation by the defendant which was the basis of the plaintiff’s suit, upon the installation of a water system in the town, the out-buildings were removed by both parties. Held, that the plaintiff had not been guilty of such a violation of the restriction as to prevent the maintenance of the suit.</p>

<p>Way, Private. Negligence, Licensee or invited person, Railroad, Causing death. Railroad.</p> <p>A city in 1862 purchased a portion of a farm as part of a proposed location for a railroad, the owner’s deed to the city containing a reservation of “one cattle pass” across the location. This crossing was the only means of access from the farm buildings to a mowing lot and to a shore for seaweed to be used as fertilizer. The railroad company constructed a plank crossing, erected and maintained a gate at the crossing, posted an extract from a statute requiring that persons using the gate should close it after use and a sign stating that the crossing was a private crossing and was dangerous. The land on both sides of the crossing was maintained as a farm until 1906, when a son who was the successor in title of the original grantor sold the land on the shore side to one who developed it as a summer colony. Thereafter the crossing was used by persons in the colony and, while the signs were maintained, the gate was often left open. One of the summer colony in the night time caught his foot in a defect in the crossing and was run over by a passing train and died from the result of his injuries. In an action against the railroad company by the administrator of the estate of the person so run over for his conscious suffering and also for causing his death, it was held, that</p> <p>(1) The reservation in the deed in 1862 could not be extended by implication so as to embrace within the scope and obligation of the defendant’s “invitation” the residents of the summer colony;</p> <p>(2) The evidence did not warrant a finding that the defendant maintained, the crossing for the use of the public; ■</p> <p>(3) The rights of the decedent were those of a licensee, to whom the defendant owed no duty except to refrain from injuring him intentionally or wantonly;</p> <p>(4) There being no evidence of a violation of such duty, a finding for the plaintiff was not warranted, either under a count for causing the conscious suffering of the decedent or under one for causing his death.</p>

<p>Three actions of tort for personal injuries received by the plaintiffs when a “double ripper,” upon which they were coasting on Dickinson Street in Springfield, came into collision with a motor vehicle driven by an employee of the defendant. Writs dated May 22, 1915. #</p> <p>In the Superior Court the actions were tried together before Áiken, C. J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor in each action for one of the following reasons:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. On all the evidence the plaintiff received his alleged injury while engaged in an amusement or exercise interfering with the free, safe and convenient use of a street or highway by a person traveling or passing along the same, in violation of § 37 of c. 37 of the Revised Ordinances of the city of Springfield, and such violation directly and proximately contributed to the occurrence on which the plaintiff’s action is founded.”</p> <p>The defendant also asked that the following instructions be given to the jury in each action:</p> <p>“1. Coasting is an amusement or exercise within the meaning of § 37 of c. 37 of the Revised Ordinances of the city of Springfield.</p> <p>“2. When the use of any street or highway in the city of Springfield for coasting, interferes with the free, safe and convenient use of such street or highway by any person traveling or passing along the same, then coasting is prohibited by § 37 of c. 37 of the Revised Ordinances of the city of Springfield.</p> <p>“3. If the jury find that the plaintiff’s coasting on Dickinson Street interfered with a free, safe and convenient use of such street by a person traveling or passing along the same, then the jury must find that the plaintiff was violating an ordinance of the city of Springfield.</p> <p>“4. If the jury find that the plaintiff was violating an ordinance of the city of Springfield, and such violation contributed directly and proximately to the accident for which he is suing, he cannot recover.”</p> <p>“6. There is no presumption Eugene Giroux was in the exercise of due care.</p> <p>“7. The plaintiff cannot recover unless he proves by a fair preponderance of all the evidence that Eugene Giroux was in the exercise of due care.”</p> <p>The motion was denied and the requests were refused. The jury found for the plaintiff in the first action in the sum of $2,000, for the plaintiff in the second action in the sum of $500, and for the plaintiff in the third action in the sum of $1,000; and the defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Contract, for failure to deliver burlap alleged to have been sold to the plaintiff by the defendant. Writ dated July 29, 1916.</p> <p>In the Superior Court the action was tried before White, J. It appeared that on October 23, 1915, the defendant wrote to the plaintiff as follows: “Replying to your favor of the 22nd, we can offer you 36" 10 oz / 40" Calcutta for prompt shipment from Boston 7c, net 10 days, f. o. b. Boston.</p> <p>“We could enter an order for a definite quantity per month for twelve months at 6.85, net 10 days, f. o. b. Boston. These prices are subject to change of market.</p> <p>“We should not care to enter an order for an indefinite quantity and the delivery would have to be strictly subject to the arrival of our own importations.</p> <p>“We do not anticipate any trouble in getting goods here as we have not had any since the German raider's have been driven from the sea, but you, of course, fully appreciate the difficulty of doing an importing business under the existing conditions and the necessity we are under of taking every possible precaution.</p> <p>“The Calcutta market is firm and the mills seem confident that the government requirements will assure them of satisfactory business. The shipments during the month of September to the East Coast Ports of this country were only 31,000,000 yards, which is about 50 percent of a normal shipment.</p> <p>“We presume you are aware that there is an embargo on exports from Calcutta making it necessary for shippers there to get a license before they can export. The reputable houses are having no difficulty in getting these, and it is not greatly disturbing business. •</p> <p>“According to the government returns, the jute crop of this year is likely to be very short, but as there is a carryover of approximately 1,000,000 bales, this will relieve the shortage for the most part.”</p> <p>On October 25, the plaintiff replied as follows:</p> <p>" “Yours of the 23rd. We attach our order which we trust will be agreeable. You will note that you quoted on 36" 10 oz / 40", while we are buying and have always bought from you, 36" 10 oz. We presume this is a clerical error.”</p> <p>On October 29, the defendant sent to the plaintiff the following, entitled a “Sales Note:” “No. 4202. Boston, Mass., October 29, 1915.</p> <p>Delivery subject to strikes, breakage of machinery,- marine disasters and all other conditions beyond our control.</p> <p>Messrs. Wonalancet Company, Nashua, N. H.</p> <p>We confirm sale from you today of the following goods:</p> <p>Quantity —15 Bales.</p> <p>Description — 36" 10 oz/40" Calcutta burlaps.</p> <p>Position ■—■ Delivery 2 bales per month commencing December 1st.</p> <p>Price — 6.85c per yard.</p> <p>Terms — Net 10 days, f. o. b. Boston.</p> <p>Remarks — Your order No. 712.</p> <p>We thank you for the order.”</p> <p>The “sales note” was enclosed in a letter from the defendant reading as follows: “We enclose herewith sale note in confirmation of your order No. 712 subject to the conditions mentioned in our letter quoting the goods to you. With regard to the weight of the goods, the weight of all burlaps is stated pro rata to 40". You have always received 36" 10 oz/40" goods from us as you can no doubt verify by weighing some of the goods you have in stock. It is quite customary in the burlap trade to drop the /40" for the sake of brevity, but is universally understood that all weights are based on this width.”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings:</p> <p>“1. The sales note is the evidenciary memorandum of the contract required by law to make the contract valid. It is not the contract itself nor the sale itself. It is merely the legal confirmation of a sale theretofore agreed to.”</p> <p>“3. The letter which accompanied the sales note stating that the confirmation is ‘subject to the conditions of our quoting letter’ is also evidence of the nature of the contract.”</p> <p>“4. The letter of October 23, 1915 (the quoting letter) is also evidence of the nature of the contract.</p> <p>“5. If the contract entered into by the parties provided that on account of the difficulties of doing an importing business, the prices of the goods ordered would be ‘subject to change of market’ the defendant is not liable because the plaintiff was compelled to pay a larger price to replace goods which the defendant could not import to deliver at the times specified in the sales note.</p> <p>“6. If the contract provided that the delivery of the goods contracted for was ‘strictly subject to the arrival of importations’ — the plaintiff cannot complain or hold the defendant liable for damages pending arrival of goods like those contracted for.</p> <p>‘‘7. If the contract called for delivery ‘subject to marine disasters,’ the plaintiff cannot complain or hold the defendant liable for damages if its first importation of goods of the description contracted for were destroyed by fire while en route to this country.</p> <p>“8. The contract called for a particular size and weight of burlap. The defendant was not bound and is not liable for failure to deliver any other character of burlap.”</p> <p>“10. If the sale was a contract to sell ‘from importations’ the defendant would not be liable for failure to deliver the burlap from any stock on hand, even if it had similar burlaps on hand and not otherwise contracted for.”</p> <p>“12. The plaintiff made no replacement purchase on a date when the goods ought to have been delivered.</p> <p>“13. The plaintiff has offered no sufficient evidence of its . damage.”</p> <p>“16. The ‘current price’ which is the basis of the plaintiff’s claim for damage is the current price of identical goods and not the current price of dissimilar substitute goods, if there is an available market for the identical goods.”</p> <p>“23. The burden is upon the plaintiff to show affirmatively that the conditions prerequisite to the delivery of the identical goods contracted for were complied with, i. e., (a) that there was no marine loss; (b) that the goods had been imported by the defendant, and (c) that there had been no change in market value.”</p> <p>The rulings were refused. The portion of the charge relating to delivery on December 1, referred to in the quotation from the defendant’s bill of exceptions, below, and in the opinion, was as follows:</p> <p>“The rights of the parties on each individual transaction are to be settled as of thé day when the contract ought to have been shipped. There is no question about this contract, but what it called for two bales on the first of each month, commencing with December until there had been in all fifteen bales delivered, and so each of these shipments is to be settled as of the time when the thing ought to have been done, unless there was some further bargain between them on that point, and if you find there was any, follow it.”</p> <p>Other material portions of the charge to the jury are described in the opinion.</p> <p>The bill of exceptions states, “At the close of the charge the defendant reserved his exceptions, (1) to what was said in the charge about what constitutes the contract; (2) to the statement in the charge that the plaintiff might purchase in advance under the conditions named in the charge; (3) to the statement in the charge that the first bales were due to be delivered on the first day of December; (4) to the portion of the charge ruling that the plaintiff had the right to make his purchases at the time it made them, and (5) to the portion of the charge which allowed the jury to draw inferences from the prices which the plaintiff paid to determine current prices on the dates at which the plaintiff should have made these purchases; also separately to the refusal of the court to give each one of the several requests for rulings which are enumerated above.”</p> <p>The jury found for the plaintiff in the sum of $1,115.07; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Landlord and Tenant, Landlord’s liability in tort to tenant and members of his family. Evidence, Violation of statute as evidence of negligence.</p> <p>St. 1907, c. 550, § 127, which provides that owners of buildings in Boston shall maintain their premises in such repair as not to be dangerous, does not repeal nor modify the rule of the common law relating to tenancies at will, and in case of such a tenancy no liability on the landlord for obvious defects or want of repair of the premises arises unless he contracts to keep the premises in a safe condition and to make suitable repairs during the tenancy.</p> <p>St. 1907, c. 550, § 127, should not be so broadened by construction as materially to limit the rights of landlords and tenants to enter into such lawful contracts as they please.</p> <p>In an action by the wife of a tenant at will for personal injuries, sustained in falling down stairs on the premises let, it appeared by an answer of the jury to a special question submitted to them, that there was no agreement by the defendant to maintain the stairs in a safe condition. . The plaintiff requested the judge to rule in substance that, if the jury believed that the defendant violated the provisions of St. 1907, c. 550, § 127, in failing to maintain the stairs in such repair as not to be dangerous, such failure was negligence on the part of the defendant, and that, if they believed the injury to the plaintiff was caused by such failure, their verdict should be for the plaintiff. The requests were refused. Held, that the requests were refused rightly.</p> <p>In view of the negative answer of the jury to the special question in the action described above, it was said to be unnecessary to decide as to the correctness of certain instructions asked for by the plaintiff, which were based upon the hypothesis that the agreement, referred to in the question submitted to the jury, had been made.</p>

<p>Tort for personal injuries sustained by the plaintiff on December 2,1916, by reason of a collision, on a public way in Boston, of his automobile, operated by himself, with an automobile of the defendant, operated by the defendant’s salesman. Writ dated December 15, 1916.</p> <p>In the Superior Court the action was tried before Quinn, J. The material evidence is described in the opinion. At the close of the evidence the defendant moved that a verdict be ordered in its favor. The motion was denied. There was a verdict for the plaintiff in the sum of $800; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Res Judicata. Practice, Civil, Parties. Judgment. Evidence, Presumptions and burden of proof.</p> <p>A judgment for the defendant in an action against a corporation for personal injuries caused by negligence of one who was its president, treasurer, manager and one of its directors, is not a bar to an action of tort for the same injuries by the same plaintiff against the officer individually.</p> <p>Where, in an action against a corporation for personal injuries alleged to have been caused by the negligent operation of a motor vehicle of the corporation by one who was an officer in control of its business, the jury found for the defendant, the facts, that at the trial of such action the officer testified that at the time of the injuries "he was in the employ of the corporation and was acting within the scope of his employment, and that no evidence was offered to controvert such testimony, do not prevent the plaintiff from maintaining a later action against the officer individually for the same injuries.</p>

<p>Restraint upon Alienation. Trust, Spendthrift, Construction of instrument creating trust.</p> <p>By the terms of a trust under a will, the duty was imposed upon, the trustee to hold the residuary estate, “real, personal and mixed,” to repair it and let it, invest and reinvest the proceeds of any sale, collect and receive the income, pay all necessary expenses relating to it, and pay the net income and so much of the principal as the trustee “may think proper” to the widow. On the death of the widow, the trust was to cease and “ the remainder thereof including all income increase and increment that has not been actually paid over to my wife is to go in equal shares to my two children . . . free and discharged from any trust.” A later provision in the will was, “No part of any trust under this will principal income or increment shall be attachable assignable trusteeable or liable to be taken at law or in equity for or on account of any debt obligartian or contract of any beneficiary hereunder; but the share I have herein provided such beneficiary should have, shall be transferred and delivered to her or him, as the case may be personally and for her and his sole and exclusive use and benefit.” The widow and a son and a daughter survived the testator. During the lifetime of the widow, the son made several assignments of his interest under the will to various creditors and was adjudicated a bankrupt. Held, that</p> <p>(1) The trustee received a legal title in the property given in trust;</p> <p>(2) Each of the children received an equitable interest which was inalienable;</p> <p>(3) Neither the assignees nor the trustee in bankruptcy of the son received any title to his share in the trust fund.</p>

<p>Trust, Construction of instrument creating trust. Devise and Legacy, Residuary clause, Time of vesting. Equity Jurisdiction, Bill for instructions.</p> <p>A testator provided by his will that, at the death of his last surviving child, the residue of his estate, which was to be held in trust until that event should occur, was to be distributed “to and among the children of” two sons and one daughter, “share and share alike, the child or children of any child” of such sons and daughter “to take by right of representation.” These two sons and daughter had in all five children, all living at the death of the testator. The will disclosed two main purposes, the first, to exclude the children of a fourth child, a second daughter of the testator, from sharing in the trust estate, and the second, to keep the estate in the hands of the testator’s lineal descendants, except those of the fourth child. The first daughter, one of the three children referred to above, died after the death of the testator, leaving a daughter, one of the five grandchildren, who, before the death of the testator’s last surviving child, also died, leaving no children, a husband and numerous heirs at law, among whom were children of the fourth child of the testator, who specifically were excluded from sharing in the distribution of the fund, and persons who were not lineal descendants of the testator. Upon a bill in equity by the trustee for instructions after the death of the last surviving child of the testator, it was held, that the interest of the grandchildren, children of the three children specifically named as beneficiaries of the trust, vested at the death of the testator, subject to be divested on the death of any such grandchild without issue; and therefore that the heirs at law of the grandchild who had died without issue did not share in the distribution of the trust fund.</p>

<p>Insurance, Fire. Bills and Notes, Consideration. Contract, Implied. Evidence, Presumptions and burden of proof.</p> <p>A manager of an insurance company gave a draft upon the company to the holder of a policy of insurance against loss by fire in satisfaction of a loss under the policy. The company refused to honor the draft upon presentation on the grounds that there was no consideration for the draft because the insured had no insurable interest at the time of the loss, and because, although the property was subject to a mortgage, he had represented that it was not, which, the company contended, rendered the policy void. At the trial of an action by the insured upon the draft, it was undisputed that the-record title to the property insured was in the mother of the insured, subject to a mortgage to a third person, both at the time when the policy was issued and at the time of the loss. There was evidence tending to show that vacant land was purchased by the mother upon which the house, afterwards insured, was bruit at the joint expense of her and of the plaintiff, and that they then occupied the house; that the plaintiff then acquired his mother’s title and gave a first mortgage to a bank and a second mortgage to his mother; that two years and two months later the mother foreclosed the second mortgage, herself took title to the property, discharged the first mortgage and gave a new mortgage to a third person and that this was done under an agreement between her and the plaintiff, not in' writing, that, upon payment and satisfaction of the debt to her, the mother would “transfer title back to” the plaintiff; that the mortgage to the third person was given about five years before the issuance of the defendant’s policy, but that the mortgagee advanced no money and never received any interest; that, when the policy was issued, the plaintiff had paid the indebtedness tó his mother. The loss occurred about four months after the policy was issued. Reid, that</p> <p>(1) A finding was warranted that, both at the time when the policy was issued and when the loss occurred, the plaintiff had an equitable interest in the property which was insurable; -</p> <p>(2) A finding was warranted that the mortgage held by the third ¿person was not a valid incumbrance, so that the plaintiff’s failure to mention it was not a misrepresentation;</p> <p>(3) It could not be ruled as a matter of law that there was no consideration for the draft which was the basis of the action.</p> <p>At the trial of an action against an insurance company upon a negotiable draft, which was drawn by the manager of the company upon the company in settlement of a loss under a policy and which the company refused to honor upon presentation, the defendant alleged in defence that there was no consideration for the draft because the policy was void. The evidence of the plaintiff was undisputed and, if it was believed; the plaintiff was entitled to a verdict as a matter of law.</p> <p>The defendant asked that the jury be instructed in substance, that, if they found that the policy was void, there was no consideration for the draft and they must find for the defendant. Held, that the defendant was entitled to have the instruction given, as the jury might have disbelieved all the plaintiff’s evidence.</p> <p>At the trial of the action above described, it appeared that the draft had been given by the defendant for the full amount of an award by a referee appointed ■under the provisions of the policy, that, upon receiving the draft, the plaintiff had given a receipt in full of all claims and demands for the loss and had delivered the policy to the company for cancellation. Held, that the taking of the draft and the signing of the receipt and delivery of the policy for cancellation could not be said as a matter of law in themselves to constitute a sufficient consideration for the draft.</p>

<p>Mortgage, Of real estate. Attorney at Law. Equity Jurisdiction, For accounting by mortgagee.</p> <p>In a suit in equity by a woman against one, who was in the business of a money lender in the State of Maine and who also was a member of the bar both of that State and of this Commonwealth but was not engaged in the general practice of law, for an accounting as to receipts and disbursements relating to property mortgaged by the plaintiff at the defendant’s request to the defendant’s wife and others to secure the payment of notes given for loans made by the defendant, one of the mortgages having been foreclosed by sale and the property having been conveyed to the defendant’s wife in his behalf, the plaintiff contended only that the mortgages were held under agreements that there should be no proceedings in foreclosure of them and that they should remain in abeyance until the estate of the father of the plaintiff, from whom she had received the estate mortgaged, should be settled. The suit was referred to a master. The master found, without a report of the evidence, that the agreements relied on by the plaintiff were not made as to the mortgage which was foreclosed, and the facts found by him as to the other mortgages were inconsistent with the existence of such an agreement. Held, that, the plaintiff by the foreclosure having lost her right to redeem, the suit must be dismissed.</p> <p>In the suit above described, it appeared that the aggregate amount of the principal of the notes secured by the mortgages was $2,495, that the mortgage which was foreclosed was to secure the payment of a note of $65 and that it was foreclosed because of default in the payment of the principal of the note. Held, that the right to foreclose the mortgage was not impaired by the smallness of the principal sum then overdue and unpaid.</p> <p>In the suit described above, it also appeared that, after the foreclosure by sale and conveyance to the defendant’s wife, she entered to foreclose an earlier mortgage. Held, that such entry did not open the foreclosure of the later mortgage nor impair the validity of those foreclosure proceedings.</p>

<p>Surety. Contract, Construction. limitations, Statute of. Mortgage, Of real estate. Damages, For breach of contract.</p> <p>The owner of certain real estate which was subject to a mortgage placed a second mortgage thereon and then conveyed it by,a deed containing the provision, “Subject to a first mortgage . . . and to a second mortgage . . . which grantee assumes and agrees to pay, meaning hereby to assume and pay both of said mortgages and to hold the grantor harmless thereon.” Thereafter the first mortgage was foreclosed by a sale, the proceeds of which were insufficient to pay the second mortgage note, and, its holder having recovered and collected the amount of a judgment in an action upon the note against the former owner of the real estate, such former owner brought an action against the grantee upon the agreement of indemnity contained in the deed. Held, that the agreement in the deed entitled the grantor to be indemnified by the grantee, not only in a sum equal to the value of the security represented by the real estate, but also against personal liability upon the mortgage note.</p> <p>While the plaintiff in the action above described might have brought an action against the defendant at any time after the second mortgage note became due, he also had a right to rely upon the defendant’s agreement to indemnify him against personal liability, against which right the statute of limitations did not begin to run until the agreement was broken by the plaintiff being compelled to satisfy the judgment obtained against him by the holder of the second mortgage.</p> <p>The amount to which the plaintiff, in the action upon the agreement contained in the deed above described, was entitled as damages was a sum sufficient fully to indemnify him.</p>

<p>Appeal under St. 1916, c. 269, § 20, from a refusal of the Tax Commissioner to abate an income tax assessed upon the petitioners.</p> <p>In the Superior Court the appeal came on to be heard by J. F. Brown, J., upon the pleadings and a stipulation as to facts. The material facts are described in the opinion. The judge reported the case to this court for determination.</p>

<p>Appeal under"the workmen’s compensation act from a decision of the Industrial Accident Board refusing compensation to Alfred J. Sonia for injuries alleged to have been received when he was in the employ of the Woodside Motor Company.</p> <p>The single board member, by whom the claim was heard, found, with a report of all the evidence, that the claim should be allowed. Upon review, the full board, stating that the sole question before them was, “Whether the claimant was an employee under the act at the time of his injury,” found as a fact that he was not.</p> <p>In the Superior Court the case was heard by Lawton, J., and the decision of the Industrial Accident Board was affirmed. The claimant appealed.</p>

<p>Equity Jurisdiction, To reach and apply corporate shares and property not attachable at law, Adequate remedy at law. Warehouseman. Attachment.</p> <p>A bill in equity under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, to reach and apply, to the payment of a debt owed to the plaintiff by the principal defendant, shares of stock in a defendant corporation, alleged to be the property of the principal defendant, cannot be maintained even though the debt is established, if it appears that the principal defendant did not own shares of stock in the defendant corporation.</p> <p>A bill in equity under St. 1907, c. 582, §§ 26, 27, to reach and apply, in payment of a debt owed by the principal defendant to the plaintiff, merchandise of the principal defendant alleged to be “in the hands, possession or control” of a second defendant, cannot be maintained where it appears that the merchandise was owned by the principal defendant and was stored in warehouses in the name of the second defendant and where it did not appear that negotiable receipts were issued therefor.</p> <p>A bill in equity under St. 1907, c. 582, §§ 26, 27, by a creditor to reach and apply in payment of the debt owed him merchandise of the debtor placed in a warehouse in the name of a second defendant cannot be maintained if non-negotiable warehouse receipts were issued for such merchandise, goods held under such 1 receipts being attachable at law under St. 1907, c. 582, § 43.</p>

<p>Tort for personal injuries. Writ dated June 8,1917.</p> <p>In the Superior Court the action was tried before Hall, J. The material evidence is described in the opinion. There was a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>St. 1905, c. 330, was amended by St. 1912, c. 442, so that it reads as follows:</p> <p>“Section 1. Hospitals supported in whole or in part by contributions from the Commonwealth or from any municipality, incorporated hospitals offering treatment to patients free of charge, and incorporated hospitals conducted as public charities, shall keep records of the treatment of the cases under their care and the medical history of the same.</p> <p>“Section 2. Such records, and similar records kept prior to April twenty-fifth, nineteen hundred and five, shall be in the custody of the person in charge of the hospital, and shall be admissible as evidence in the courts of the Commonwealth so far as such records relate to the treatment and medical history of such cases; but nothing therein contained shall be admissible as evidence which has reference to the question of liability.”</p>

<p>Contract for $250 alleged to be due under the contract in writing described in the opinion. Writ dated January 18, 1915.</p> <p>In the Superior Court, the action was tried before Lawton, J. The evidence relating to the notice sent to the plaintiff by the defendant was as follows: The defendant testified that, when the plaintiff’s solicitor made upon the agreement the indorsement described in the opinion, he handed to the defendant the address of one Eliot, whose full name the defendant did not remember, and told the defendant to notify that person whether the defendant would take the book on that date; that on September 23,1914, the defendant dictated and addressed to “Mr. Eliot, Editor-in-Chief of the Massachusetts Biographical Society at Boston,” and mailed, postage prepaid, a letter. The plaintiff having been duly notified to produce the original of this letter and failing to do so, the defendant offered a copy of it in evidence, and the judge admitted it subject to an exception by the plaintiff. The copy read as follows:</p> <p>"Dr. Samuel S. Eliot,</p> <p>Boston, Mass.</p> <p>Dear Sir: —</p> <p>In compliance with my agreement with Mr. Gould I am writing to you this morning and I wish to state that it will be absolutely impossible for me to go into your Biographical History of Massachusetts. Certain business matters have arisen to prevent my taking on any further obligations. It was the understanding that I should let you know. Mr. Gould received the photos and so forth. Please go to no further, expense in this matter.</p> <p>Very truly yours,</p> <p>Harry C. Howard.”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the plaintiff asked for the following rulings:</p> <p>“1. If the defendant signed the paper ¡¡described in the opinion] and delivered it to the plaintiff’s agent with intent to have it operate as a contract and at the same time the plaintiff by its agent made a promise, express or implied, to do the things the plaintiff was authorized in said paper to do, the defendant became bound to pay the plaintiff $250 without previous performance by the plaintiff of its agreement to publish the sketch and portrait.”</p> <p>"3. If the defendant signed the paper [¡described in the opinion], and delivered it to the plaintiff’s agent to be delivered to the plaintiff without modification, and at the same time the plaintiff by its agent expressly or impliedly promised to do the things the plaintiff was in said paper authorized to do, the defendant became bound to pay the plaintiff $250.</p> <p>“4. If after the defendant and the plaintiff’s agent had discussed the term of a proposed contract in the form [¡described in the opinion] the defendant signed [¡it and its duplicate original and gave the original without the agent’s indorsement] to the plaintiff’s agent for immediate delivery to the plaintiff and retained [¡the other original] after the plaintiff’s agent had -written thereon the words, rOn September 23rd, 1914, Mayor Howard is to have option of time for payment of this contract, Massachusetts Biographical Society, E. F. Gould,’ after having read said words and with the intention to be bound by the same, and the plaintiff by its agent at that time expressly or impliedly promised to do the things the defendant ¡¡plaintiff?] was in the original retained by him authorized to do, the defendant became bound to pay the plaintiff $250 within a reasonable time.</p> <p>“5. If the defendant signed the paper [¡described in the opinion] and delivered it to the plaintiff’s attorney with intent to have it operate as a contract and the plaintiff did the things the plaintiff was authorized in said paper to do, the defendant became bound to pay the plaintiff $250.”</p> <p>The rulings were refused. The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on January 29, 1919, to restrain the defendant from carrying on a business competing with that of the plaintiff.</p> <p>In the Superior Court, the suit was heard by Fox, J., a commissioner having been appointed under Equity Rule 35 to take the testimony. Material evidence and facts found by the judge are described in the opinion.</p> <p>By order of the judge, a final decree was entered ordering, adjudging and decreeing “that the defendant, Philip Adelson, be restrained by the permanent order and injunction of this court from working in any capacity, whether as owner, employee or volunteer assistant, or from being financially interested, in or for any dry goods store in that part of Cambridge south of Broadway and east of Dana Street extended, and from distributing or posting any circulars or posters within that district, which by the use of the nickname ‘Phil,’ or in any other way, tend to identify the business advertised with the business formerly carried on by the defendant under the name of ‘Phil, the Outfitter.’”</p> <p>The defendant appealed. In his brief before this court, upon the subject of the scope of the decree, he argued that, at most, the decree “ought to restrain the defendant from opening or engaging in a competing business. In the absence of evidence showing that the person enjoined has a special or peculiar value to a particular business, it is submitted that the injunction ought not to restrain him from securing employment in a like business.”</p>

Petition, filed in the Supreme Judicial Court on February 5, 1919, for a writ of mandamus directing that the petitioner be restored to employment as a plumber in the water department of the city of Everett. The case was referred to an auditor and was heard upon the auditor’s report by Loring, J. Material findings of the auditor are described in the opinion. The single justice ordered that the writ should issue as prayed for. The respondents alleged exceptions.

<p>Evidence, Of agreements while litigation is pending, Inferences. Contract, Validity, Rescission. Equity Pleading and Practice, Bill, Amendment, Supplemental bill, Report: inferences from facts found by master. Mortgage.</p> <p>In a suit in equity, the plaintiff sought to enjoin the defendant from foreclosing a mortgage, given by the plaintiff to secure the debt of a third person, and for an accounting. A decree was entered dismissing the bill, from which the plaintiff appealed. Pending the determination of the appeal, the plaintiff and the defendant made a new contract containing provisions for new financial arrangements between the parties, and also a fifth provision that, if, as a result of the appeal, “a new trial is had,” neither party should “be allowed to put in evidence on any matters occurring subsequent to the former trial” and a sixth provision that, if the final decree after rescript should affirm the decree appealed from or should modify that decree to the extent that the defendant should have full or partial rights under his mortgage, he should retain such rights as security for the new agreement which had been made between himself and the third party. The rescript directed that the defendant should not foreclose the mortgage until he had applied upon the debt owed him by the third party the proceeds from certain other securities furnished him by the third party. The bill then was amended to include allegations as to the new financial arrangements and claims of further credits by the plaintiff, and the case was referred to a master. Held, that</p> <p>(1) The proceedings following the rescript were governed by the sixth paragraph of the new contract made between the parties;</p> <p>(2) The new agreement made between the plaintiff and the defendant was admissible in evidence before the master;</p> <p>(3) The amount due to the defendant from the plaintiff was to be determined as of the final stating of the account, and was not limited to the condition of the account at the time the suit was instituted.</p> <p>The new agreement between the defendant and the third party, referred to in the agreement made pendente lite between the plaintiff and the defendant as above described, fixed the indebtedness of the third person to the defendant at $10,000. The amount of that indebtedness in fact was $8,000. If the plaintiff was bound by the agreement between himself and the defendant made pendente lite, he was bound by the statement of the amount of the indebtedness. He contended that he was induced to execute the agreement through fraud of the defendant. Held, that such a contention was open to the plaintiff under the prayers of the bill without the institution of a separate suit to set aside the agreement or an amendment in the nature of a supplemental bill.</p> <p>Upon a report and reservation of a suit in equity by a judge of the Superior Court after the confirmation of a master’s report, without a further finding of facts or drawing of inferences by the judge, this court has power to make such supplementary inferences of fact as are justified by the findings of the master.</p> <p>It appeared that, before the plaintiff made the agreement with the defendant i pendente lite, above described, he made efforts to see the books and accounts of the defendant for the purpose of ascertaining the amount then due from the third person to the defendant, but that the defendant represented to him that the indebtedness had been carefully computed and that the account stated in the new agreement with the third party was correct, and that he prevented the plaintiff from making an examination to ascertain whether the statement was correct. There were material errors in the computations. The defendant did not intend to defraud the plaintiff. Held, that, since the representation made by the defendant was of facts as of his own knowledge, was false and was believed and relied on by the plaintiff in making the agreement pendente lite, the plaintiff was not bound by that agreement nor by any provisions of the new agreement between the defendant and the third party.</p> <p>The right of rescission of a contract which arises by reason of its execution having been induced by a misrepresentation of fact is not confined to that part of the contract to which the misrepresentation relates, but upon such rescission the contract is abrogated in its entirety.</p> <p>A mortgagee is not entitled to charge against a mortgagor an amount paid to an attorney at law for services rendered, not in the foreclosure proceedings, but in defence of a suit in equity brought and successfully prosecuted by the mortgagor to enjoin the foreclosure and for an accounting.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action, by a laborer in the employ of a steamship company, not a subscriber under the workmen’s compensation act, for personal injuries alleged to have been caused by a bolt protruding above the flooring of a runway leading to a wharf from a ship from which the plaintiff was assisting to unload wool, there was evidence that, at the place where the bolt protruded, there ordinarily was a strip of wood used by employees running trucks over the runway to brake the trucks, that on the day of the accident the plaintiff had gone up the runway, and that, although the strip of wood was not then there, he had not noticed its absence, that, when he came down with a loaded truck behind him and tried to brake the truck, he was unable to do so because of the absence of the strip of wood and he lost control of the truck, which compelled him to continue downward rapidly, and that the truck struck the protruding bolt and its handle swung around and broke the plaintiff’s leg. Held, that it could not be said as a matter of law that the plaintiff had assumed the risk of the injury; and that a finding that the defendant was negligent was warranted.</p>

<p>Agency, Scope of authority. Evidence, Extrinsic affecting writings. Equity Pleading and Practice, Findings of judge, Exceptions.</p> <p>If, at the hearing of a suit in equity against a bank, a material agreement, bearing the signature of one who signed it as “Asst. Treas.” of the bank, is admitted in evidence subject to an exception based upon a contention that no authority in the assistant treasurer to sign was shown, and the judge who heard the case finds, without a report of the evidence, that “the defendant, by ... its assistant treasurer, then acting as its treasurer and thereunto duly authorized, entered into . . . [the] agreement,” the exception must be overruled.</p> <p>Where several agreements upon separate documents between a bank and various parties and a corporation, relating to loans to be secured by construction mortgages upon several lots of land owned by tire corporation, were delivered on the same day, an exception, at the hearing of a suit where the evidence warranted a finding that all of the documents constituted one transaction, to the admission in evidence of one of the documents on the ground that it varied the others, must be overruled.</p> <p>An exception to a refusal of a request, by the defendant in a suit against a bank to compel the cancellation of construction mortgages upon certain lots of land, for a ruling that the plaintiff should be compelled to repay to the defendant a sum paid by the plaintiff out of money advanced by the defendant for commissions, must be overruled, where the judge who heard the case made a finding, without a report of the evidence, from which it clearly appeared that no money was advanced by the defendant on the mortgages involved in the suit.</p>

<p>Trespass. Practice, Civil, Judge’s charge. Contract, Construction.</p> <p>At the trial of an action of tort for trespass, there was evidence tending to show that the plaintiff had agreed to sell to the defendant land for the building of a factory, that, before the conveyance of the land and pending the-examination of the title, the defendant authorized the moving of a building from the premises, received payment therefor, and authorized the excavation of a cellar and the putting in of a foundation on the land, and that the plaintiff did not consent to nor acquiesce in such operations pending the conveyance. The property never was conveyed to the defendant. Held, that a verdict for the plaintiff was warranted.</p> <p>It is to be assumed that a jury will apply to facts, as they find them upon the evidence before them, the law as laid down in the charge of the presiding judge.</p> <p>A provision in an agreement for the sale and conveyance of real estate that, if the owner “shall be unable to give title . all other obligations of either party hereunto shall cease,” does not apply to the obligation to the owner which arises when the prospective purchaser, without right or the consent of the owner and before a conveyance to him, enters upon the land, removes a building therefrom, excavates for a cellar, constructs a foundation, and then, because of a defect in the title, refuses to go further with the transaction.</p>

<p>Evidence, Competency, Offer of compromise, Self-serving. Practice, Civil, Exceptions.</p> <p>In an action upon an agreement in writing for the sale of scrap iron by the plaintiff to the defendant, there was evidence of a shipment by freight directed to the defendant, and the plaintiff offered in evidence a letter which the defendant had written to the plaintiff, after a telephone conversation, the opening sentence ' in which was, “Referring to conversation ... in reference to car of Iron that is on track in [the city where the defendant was,] ” and which continued with an offer of terms on which the defendant would accept part of the iron. The defendant objected and excepted to the admission of the letter as a whole. Held, that the statement in the letter admitting the arrival of the car and showing the defendant’s knowledge.thereof was admissible, and that, if the defendant had wished to have the use of the letter restricted, he should have so requested.</p> <p>At the same trial, the plaintiff offered, and the judge admitted subject to an exception by the defendant, a letter from the plaintiff to the defendant in reply to that above described, which contained a rejection of the proposal so made, a specific counter proposition that never resulted in an agreement, an assertion that the defendant had broken his contract because of a “drop in price,” a statement that, if thte price had “gone up,” the defendant’s position would have been different, and what was in effect a charge that the defendant had defaulted in payment of one of his checks. The letter was not answered. Held, that the exception should be sustained, as the evidence was self-serving and incompetent, and its admission could not be said not to have affected the substantial rights of the defendant.</p>

<p>Equity Pleading and Practice, Appeal, Jury issues.</p> <p>Upon an appeal from a final decree dismissing a bill in' equity brought against a co-operative bank, a purchaser of property which formerly had been owned by the plaintiff and which had been sold in foreclosure of a mortgage held by the bank, and the individuals who comprised the board of metropolitan park commissioners and who, as such board, after the foreclosure had taken a part of the premises by right of eminent domain and had paid the bank therefor, for redemption from the mortgage, for an accounting and for damages alleged to have been caused by a conspiracy among the defendants and by other alleged irregularities in pursuance thereof, where it appeared, both from specific and from general findings contained in a report, without a report of all the evidence, by a master to whom the suit was referred, that the plaintiff had failed to substantiate any of the material allegations set forth in his bill, the decree was affirmed.</p> <p>It further was held, that the plaintiff in the suit above described had no constitutional right to have issues framed for a jury and that a denial of a motion for a framing of issues was not an abuse of discretion.</p>

<p>Bill in equity, filed in the Superior Court on June 7, 1917, by the owner of two lots of land on the Riverway in Boston against the owners of another lot thereon, seeking to enjoin the defendants from violating restrictions which were in a deed to the city of Boston from the common grantors of the plaintiff and of the defendants.</p> <p>In the Superior Court the suit was referred to a master on August 13, 1918. The restriction sought to be enforced was in a deed of the trustees under the will of Katherine D. Hancock, late of Boston, and of Anna Catherine Page, a legatee under that will, to the city of Boston, dated March 30, 1889, and recorded on April 16, 1889, and was as follows:</p> <p>“And for the consideration aforesaid and the further consideration that said City of Boston shall construct along the boundary line of said Park within said parcels of land a roadway and walk to which the Grantors and their heirs, successors and assigns (owners or occupants of Grantors’ adjoining lands) shall have free access with the right to use the same subject to such reasonable rules and regulations as may from time to time be made by said Board of Park Commissioners or by any other Board or Department having for the time being the control and management of said Park, we do hereby covenant and agree to and with said City of Boston, that we and our heirs, successors and assign will hold our remaining land abutting upon said Park and to a depth of one hundred feet therefrom, subject to the following restrictions which shall be inserted or referred to in any conveyance hereafter made by us of the whole or any part of said restricted land. 1. No building erected or placed upon said premises shall be used for a livery or public stable or for any mechanical, mercantile or manufacturing purposes, nor shall exceed five stories in height above the basement or cellar nor exceed sixty feet in height from the mean grade of the edgestone or sidewalk in front to the ceiling of the extreme upper story, excepting churches or chapels and no roof shall be used for laundry or clothes drying purposes. 2. No wooden house arranged for more than one family nor wooden block consisting of more than two houses, nor wooden house or block standing at a distance less than five feet from the side line of the lot upon which the same is placed and no wooden house costing less than five thousand dollars nor brick or stone house costing less than seven thousand dollars nor apartment house costing less than four thousand dollars per suite of apartments, exclusive in each case of the cost of the land, shall be erected or placed upon said premises. 3. No building shall be erected or placed upon said premises within twenty-five feet from the exterior line of said Park provided that steps, windows, porticos and other usual projections appurtenant to the front wall of a building are to be allowed in this reserved space of twenty-five feet. ' Subject to the following limitations viz; — first, that no projections of any kind (other than door steps and balustrades connected therewith, and also cornices at the roof of the building) shall extend more than five feet from the rear line of the aforesaid space: ■—■ Second, that no projections in the nature of a bay window corner bay, circular front or octagon front with the foundation wall sustaining the same (such foundation wall being a projection of the front wall) will be allowed, excepting oriel windows above the first story on a street corner, unless any horizontal section of such projections would fall within the external lines of trapezoids, the sum of whose bases upon the rear line of the aforesaid space does not exceed seven tenths of the whole front of the building and the base of any one of which trapezoids does not exceed eighteen feet. And whose side lines make an angle of forty-five degrees with the base. And each house in a block shall be considered a separate building within the meaning of this limitation. The restrictions above set forth shall continue in force so long as such roadway and walk shall be maintained by said City of Boston and the Grantors, their heirs, successors and assigns as owners of Grantors’ adjoining lands shall have free access thereto and liberty to use the same for the purposes of a way subject to the rules and regulations aforesaid.”</p> <p>The suit was referred to a master. His report was filed on December 3, 1918. Among other findings therein were the following: “No evidence was offered as to present values of any of the properties in question, and there was no evidence upon which a finding can be based as to the extent of damage which the plaintiff may have suffered. His buildings are now fully occupied by tenants paying larger rentals for the suites than was being received when he purchased. There was no evidence that he had attempted to sell his property or that sales of other property in that vicinity had been made, and I find that whatever damage he has suffered by reason of the erection of the building on lot eight is wholly conjectural.”</p> <p>“So far as it may be proper for me to find as a matter of fact from the language of the whole of the original deed and from the foregoing .facts and from such inferences of fact as may be properly drawn by me from those facts, I find that the imposing of the restrictions by the original grantors was not under any general scheme of improvement of their remaining land, but was for the benefit of the City of Boston to enable it to control the class of buildings which should be constructed upon the land immediately adjacent to the park which they were then constructing, and I respectfully report to the court the question of law whether I am warranted upon the evidence in making such a finding.”</p> <p>Both parties filed objections and exceptions to the report of the master. These were heard by J. F. Brown, J., who filed the following memorandum on February 5, 1919: “I find and rule that the restrictions in question in the deed of Francis V. Balch et al. to the city of Boston, dated March 30, 1889, were not imposed under any general scheme of improvement of the grantors’ remaining land; but were imposed solely for the benefit of the city of Boston, and that this bill cannot be maintained. All of the plaintiff’s and all of the defendants’ exceptions, inconsistent with this finding and ruling, are overruled.” An interlocutory decree was entered in accordance with the memorandum and, later, a final decree was entered dismissing the bill with costs, from which the plaintiff appealed on March 25, 1919.</p> <p>The case was argued at the bar in October, 1919, before Rugg, C. J., Braley, DeCourcy, Crosby, & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>Tort for alleged unlawful interference by the defendant with the business of the plaintiff. Writ dated April 30, 1907.</p> <p>In the Superior Court the action first was tried before Callahan, J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict in its favor be ordered. The motion was denied. The jury found for the plaintiff in the sum of $5,500; and the defendant alleged exceptions.</p> <p>Thereafter, upon a motion of the defendant that the verdict be set aside as excessive, the judge ordered that, unless the plaintiff remitted all of the verdict in excess of $3,000, the verdict should be set aside and a new trial be had, limited to the question of damages. The plaintiff refusing to comply with that condition, the verdict was set aside and the case was tried again) upon the question of damages only, before King, J. Certain rulings asked for by the defendant were refused and there was a verdict for the plaintiff in the sum of $3,000; and the defendant alleged exceptions.</p>

<p>Evidence, Docket entries. Judgment. Assignment. Practice, Civil, Amendment, Parties. Municipal Court of the City of Boston, Appellate Division. Accord and Satisfaction. Contract, Construction.</p> <p>Docket entries, until extended in books of record, are admissible to prove the recovery of a domestic judgment.</p> <p>A domestic judgment cannot be attacked collaterally but is reversible only on a writ of error.</p> <p>In an action upon a judgment by one claiming as assignee of the judgment creditor by a paroi assignment, the question, whether the transfer was made as alleged, is one of fact and a finding of the trial judge, that such a transfer was made, will not be reversed where there was evidence warranting it.</p> <p>R. L. c. 173, § 4, requiring the assignment of a non-negotiable legal chose in action to be in writing in order that the assignee may maintain an action thereon in his own name, does not prevent the assignee under a paroi assignment from bringing an action thereon in the name of the assignor.</p> <p>The Appellate Division of the Municipal Court of the City of Boston, at the hearing of a report by a judge, who had heard an action upon a judgment, brought in the name of the judgment creditor by one to whom the judgment had been assigned by the judgment creditor by a paroi assignment, and who had found for the plaintiff, where the writ contained no statement that the action was brought for the benefit of the assignee, may allow a motion by the plaintiff to amend the writ by stating that the action was so brought.</p> <p>If the owner of a judgment under an oral agreement with the judgment debtor receives merchandise from time to time and applies the value thereof to the reduction of the judgment debt, such executed agreement does not amount to an accord and satisfaction nor preclude recovery, in an action upon the judg- • ment, of the unsatisfied balance of the judgment debt.</p>

<p>Gift. Husband and Wife. Trust, What constitutes.</p> <p>The owner of shares of the capital stock of a corporation, at a time when he was living happily with his wife and children and when he actively was engaged in a partnership business, conveyed the shares through a third person to his wife, no money consideration being paid by any one. The certificate of the shares remained in the husband’s possession. Two years later the wife by indorsement and without consideration transferred a part of the shares to the third party and they were used as collateral security by the husband. Six years later the wife indorsed and delivered the certificate for the shares to three trustees of a voting trust of the stock of the corporation, of whom the husband was one, and the trustees delivered to her and she receipted for a trustee’s certificate stating that she was entitled to the beneficial interest and rights in the shares. After she had received the trustee’s certificate, the wife delivered it to her husband, who placed it in his safe deposit vault box. The next year the wife signed a power of attorney which permitted the husband to use a part of the shares as collateral for a loan made to him, and later he substituted shares of his own for those standing in her name and returned the certificate representing shares in her name to his safe deposit vault box. One dividend on the shares had been paid by a check to the wife’s order which had been deposited in a joint account of the husband and wife. Twelve years after the original transfer of the shares to the wife, she obtained a divorce from her husband. The next year he brought a suit in equity against her to compel a transfer of her interest in the shares to him. The suit was referred to a master, before whom, besides evidence of the foregoing facts, there was evidence of other transactions and transfers of property which were carried on by tire husband in the wife’s name but were for his benefit solely. The husband testified in substance that he placed the shares in his wife’s name so that they would not be subject to the liabilities of a partnership of which he was a member. The wife testified that she understood the transfer was made to her to make provision for her and the children in case of her husband’s death and that she was the owner of the stock. The master found, without a report of the evidence, that there was no intention to •create a trust and that none was created, and that whatever the husband did with the shares he did as his wife’s agent and not as the beneficial owner. The report was confirmed and a final decree was entered dismissing the bill. The plaintiff appealed. Held, that the master’s findings warranted his conclusion, and that the decree must be affirmed.</p>

Contract, afterwards by amendment Contract or Tort, for damages resulting from the breaking while in transit of a plaster of Paris model of a bust, delivered to the defendant in Boston for transportation to Brooklyn in the State of New York. Writ in the Municipal Court of the City of Boston dated August 21, 1918.

<p>Petition, filed in the Land Court on August 1, 1918, for the registration of the title to land on Hanover Street and Lathrop Place in Boston.</p> <p>The petition was heard in the Land Court by Davis, J. It appeared that the land formerly was owned in undivided halves by two sisters, Elizabeth P. Young and Mary A. Rugg. Mary A. Rugg made a will in 1870, leaving all of her estate to her husband for life, and “after the death of my said husband my said estate to go to my lawful heirs.” On November 27, 1871, she and her husband legally adopted as their daughter a child who afterwards married one John S. Whitaker, had by him two children, the present respondents, and died in 1896, a widow and intestate. Mrs. Rugg died in 1897 and her husband also has died. Elizabeth P. Young survived her sister and in 1910 died testate, leaving the petitioners as her residuary devisees.</p> <p>The petitioners claimed title under the will of Elizabeth P. Young to her undivided half interest in the land (and this claim was not disputed by the respondents) and to the undivided half interest which was Mary A. Rugg’s on the ground that Elizabeth P. Young came under the designation, “my lawful heirs,” used by Mary A. Rugg in her will. The respondents contended that, under the provisions of Pub. Sts. c. 148, § 7, they, being the children of an adopted child of Mary A. Rugg, were designated by the words, “my lawful heirs,” used in her will and were entitled to the undivided half of the land which was hers at the time of her death. The judge of the Land Court ruled in favor of the respondents and dismissed the petition. The petitioners appealed.</p>

<p>Contract or tort for damages alleged to have resulted to the plaintiff from bad faith and negligence of the defendant in the foreclosure of construction mortgages upon five parcels of land. Writ dated May 10, 1918.</p> <p>In the Superior Court the action was tried before H'itchcoch, J. Material evidence is described in the opinion. At the close of the evidence the plaintiff elected to go to the jury on the counts in tort only. The defendant moved that verdicts be ordered in its favor on those counts. The motion was denied. The jury found for the plaintiff on the several counts in tort in sums which amounted altogether to $4,050; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability, Of one controlling real estate.</p> <p>Where, at the time of the employment of a laundress by a householder for work on certain days of the week, the edge of a platform which was a part of a stairway leading from the kitchen to the laundry was so badly worn as to be defective, which condition was not concealed but was obvious and thereafter was seen by the laundress several times, the householder owes to the laundress no duty to-warn her of the defect and cannot be held liable for damages resulting from a fall caused thereby.</p>

<p>Insurance, Eire. Bankruptcy, Preference.</p> <p>While a trustee in bankruptcy, who has a right to have conveyed to him land and buildings which had been conveyed by the bankrupt to the vice president of a bank within four months before the adjudication of bankruptcy as a fraudulent preference of the bank as a creditor, has an insurable interest in such property, he has no right, if he does not insure and the buildings are destroyed by fire, to the proceeds of policies of insurance against loss by fire which the bank had caused to be placed upon the property at its expense and for its benefit alone.</p> <p>The trustee in bankruptcy gained no rights in the proceeds of the policies above described from the fact that he told the bank’s vice president, the holder of the legal title to the property, that the vice president must keep the property insured and that he should hold him “responsible for any loss or injury to that property or any loss of it; ” that the vice president replied, “You needn’t worry about that, the property is amply insured, . . . it is just as much for the benefit of the bank as it is for your benefit that the property should be kept insured,” and that later in a letter to the bank’s counsel, the trustee stated that, having discussed the matter with the referee in bankruptcy, he could see no reason for making an agreement, suggested by the bank’s counsel, to reimburse the vice president of the bank if he paid the cost of insurance, and that he should “certainly endeavor to hold” the vice president “responsible if he neglects to keep the property insured and a loss results.”</p>

<p>Two bills in equity, filed in the Supreme Judicial Court respectively on May 9 and August 25, 1919, for instructions, the plaintiff in the first bill being the administrator with the will annexed of Jane Hammond Merrill, late of Boston, and the plaintiffs in the second bill being trustees under the will of Sally Hammond, late of Boston, mother of Jane Hammond Merrill, under the provisions of which Jane Hammond Merrill had a power of .appointment, as described in the opinion.</p> <p>The material portions of the will of Jane Hammond Merrill were as follows:</p> <p>“I, Jane Hammond Merrill, of Boston, Suffolk County, in the State of Massachusetts, but at present residing in the City of Washington, District of Columbia, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament,</p> <p>“I further declare and make known that it is my intention and purpose by this my will to dispose of such property and estate only as to which I have the power of appointment, or the right to devise and bequeath by my last will and testament, and particularly in the exercise of the power of testamentary disposition conferred upon me under and by the last will and testament of Sallie S. Hammond, late of Boston, Massachusetts. . . . [Here follow, in successive paragraphs, a provision for the payment of “just debts and funeral expenses;” provisions for the perpetual care of the burial lot of the testatrix by the Proprietors of the Cemetery at Mount Auburn and the conveyance of the lot to that corporation for that purpose; a legacy of $5,000 to the trustees of the University of Pennsylvania for a scholarship; a legacy of $5,000 to the Hospital of the Protestant Episcopal Church in Philadelphia; a legacy of $500 to Elizabeth H. Gorham, the testatrix’s sister, and a legacy of $500 to Edith Greenleaf Page. The rest of the will, excepting the clause appointing the executor and the in testimonium clause, was as follows :3</p> <p>“All the rest and residue of my estate I give and bequeath unto my sister, Ellen Hammond, if she survive me, to be by her disposed of in such manner as I may privately direct her.”</p> <p>The two suits came on to be heard together before Jenney, J., upon the bills and answers and were reserved by him for determination by the full court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on July 16, 1919, for the foreclosure of mortgages.</p> <p>The suit was heard by Jenney, J. Material facts found by him are described in the opinion. He made a report stating his findings of fact and, at the request of the parties, reserved the case for determination by the full court.</p> <p>U. S. St. 1918, c. 20, § 302, approved March 8,1918, is as follows:</p> <p>“ (1) That the provisions of this section shall apply only to obligations originating prior to the date of approval of this act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of the military service and still so owned by him.</p> <p>“(2) In any proceeding commenced in any court during the period of military service to enforce such obligation arising out of nonpayment of any sum thereunder’due or out of any other breach of the terms thereof occurring prior to or during the period of such service, the court may, after hearing, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of his military service —</p> <p>“(a) Stay the proceedings as provided in this act; or</p> <p>“(b) Make such other disposition of the case as may be equitable to conserve the interests of all parties.</p> <p>“ (3) No sale under a power of sale or under a judgment entered upon warranty of attorney to confess judgment contained in any such obligation shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court.”</p>

<p>Bill dst equity, filed in the Superior Court on April 9, 1917, by a judgment creditor of Arthur D. Cornell, to reach and apply in satisfaction of the judgment debt an annuity given to the debtor under the provisions of the will of his father, Daniel H. Cornell.</p> <p>The material provisions of the will of Daniel H. Cornell were as follows:</p> <p>“5. I give to Arthur W. Allen, Chauncey H. Sears and my wife Emma C. Cornell [by codicils changed to Lester B. Cornell and Chauncey H. Sears] all said Fall River and their heirs, my three tenement house and its cartilage situated on Mott Street in said Fall River, in part of which my son Arthur D. Cornell now lives, to hold the same on trust during the life of said Arthur D. Cornell to manage and control said real estate and after paying all proper expenses in connection with such management and control to pay over the net proceeds in their discretion to or for the benefit of my said son Arthur, his interest in said property not to be alienable nor subject to anticipation by him, nor to attachment by his creditors. I direct said trustees to allow him to occupy rent free so much of said house as may be reasonably necessary for the actual use of himself and his family. Upon the death of said Arthur D. Cornell this trust is to terminate and said real estate is to be disposed of as part of the rest and residue of my estate, under the residuary clause of this will.</p> <p>“6. I give to my son, Arthur D. Cornell, the sum of ten dollars per week to be paid to him personally during his life by my residuary legatees, the same not to be alienable nor subject to anticipation by him nor to attachment or seizure by his creditors. If any attachment or seizure of said annuity upon process of law shall be adjudged valid as against said Arthur then said annuity shall be deemed to have ceased to be payable to said Arthur upon the commencement of such legal proceedings and after said commencement to have been payable to the trustees under the residuary clause of this will to be applied by them in their uncontrolled discretion for his benefit; provided, however that my residuary legatees shall be given credit by said trustees for all sums actually paid to said Arthur in good faith after the beginning of said legal proceedings and prior to the final decision thereof.”</p> <p>The suit was heard by Sanderson, J. The facts alleged in the bill were admitted to be true. The judge made a report to this court, reading, in part, as follows:</p> <p>"Since the bringing of the bill the annuity of $10 a week granted to the said Arthur D. Cornell has been withheld until the further order of the court in pursuance of a stipulation made by the parties instead of a preliminary injunction, and is accumulating in the possession of the defendants other than Arthur D. Cornell. The only question is whether Arthur D. Cornell took under the will and codicils of his father any interest which is capable of being reached by his creditors. I ruled that he did not, subject to the exception of the plaintiff, and at the request of the parties I report the case on the stipulation that if the ruling was right the bill is to be dismissed, and if the ruling is^'wrong a decree is to be entered in favor of the plaintiff.”</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Insurance, Agent. Agency, Scope of employment. Proximate Cause.</p> <p>A solicitor and collector in the employ of an insurance company, leaving his house in the late afternoon to make collections for his employer and to solicit some “ordinary insurance” which his superior officer desired him to obtain that day, ran to catch up with a street car and to board it at its next stopping place and fell against the left hand front fender of the car and received injuries which resulted in his death. In a proceeding under the workmen’s compensation act brought by his widow, it was held that the injury and death were the result of a risk of the workman’s employment which might be found not to have been too remote in its causal relation to the injury to permit recovery under the act.</p> <p>An insurance solicitor and collector, to do the work of his employment in a city, which compelled him to make use of the public streets and to ride in street cars to call on prospective purchasers of new insurance and to make collections on his route, continually must stand in danger of receiving an injury from accidents resulting from exposure to whatever risks and hazards are commonly attendant on the use of the public streets and conveyances, which risks to him are greater, because more constant, than those that are incident to the occasional and casual use of such streets and conveyances by persons who use them in the ordinary way.</p>

<p>Bill in equity, filed in the Superior Court on February 23, 1909, and afterwards amended, against Greenlief W. Simpson and Louville V. Niles, to compel the return to the plaintiff of shares of the capital stock of the Fort Worth Stock Yards Company, a certificate representing which the plaintiff lent to Simpson and Simpson pledged to Niles, who received it with notice of Simpson’s limited authority to transfer and delivered it to the corporation, but demanded and received a new certificate in his own name. The bill also sought a delivery to the plaintiff of new shares issued as a stock dividend upon the original stock and an accounting as to other dividends.</p> <p>The suit was referred to a master. Material findings of the master are described in the opinion. The case was heard by Wait, J., upon the master’s report and exceptions thereto of the defendant Niles, and upon the question of the final decree. By order of the judge an interlocutory decree was entered overruling the defendant’s exceptions to the report and confirming the report, and a final decree was entered substantially as follows:</p> <p>“This case came on to be heard ... on the question of the decree to be entered, and ... it appearing that the plaintiff was originally the owner of seventy-seven shares of the stock of the Fort Worth Stock Yards Company out of a certain certificate for one hundred and twelve shares originally pledged by the defendant Simpson to the defendant Niles, and of nineteen and one quarter shares additional issued as a stock dividend upon the said seventy-seven shares, and it appearing that the defendant Simpson wrongfully and without right delivered to the defendant Niles a stock certificate containing the said seventy-seven shares in the month of February, 1908, and that the said defendant Simpson did at that time convert to his own use the said seventy-seven shares and the nineteen and one quarter shares additional thereto hereinbefore set forth, and it further appearing that the said defendant Niles has kept and claimed the said stock as his own, and it further appearing that, as set forth in the master’s report, the said Simpson and the said Niles had entered into a contract in respect thereto under the terms of which there was to be an accounting between them, which accounting has been had in this case, and it appearing that it has been found by the master that upon an accounting the said Niles does owe the defendant Simpson the amount of $123.11, and it is found by the court that the amount of $2,472.93 paid by the defendant Niles to the New England National Bank was not rightfully charged in the said accounting, while a charge for interest upon $25,000 was omitted therefrom, and it further appearing that there was no conversion of the said shares of stock hereinbefore mentioned by the said Niles, it is ordered, adjudged and decreed that the defendant Simpson owes to the plaintiff the fair market value of the said original and dividend stock as found, by the master, to wit, — $80 for each share thereof, together with the dividends received upon the said stock by the said defendant Simpson or the said defendant Niles up to the time of the conversion, which said amount is $8,710.61; and it is further ordered, adjudged and decreed that judgment in the said action shall be entered for the plaintiff as against the said defendant Simpson for said amount, together with $43.44 as costs of suit, and that execution issue therefor as against the defendant Simpson.</p> <p>“And it is further ordered, adjudged and decreed that the said Niles is entitled to hold the said shares of stock to secure what he advanced to the said defendant Simpson and was entitled to under the agreement set forth in the master’s report made with the said Simpson, dated September 28, 1907, and it is further ordered, adjudged and decreed that the plaintiff reach and apply in payment of the sum decreed in this case to be due from the defendant Simpson to the plaintiff, to wit,—$8,710.61, so far as it goes, the balance due from the said defendant Niles to the said defendant Simpson upon their accounting as of January, 1910, which amount is $123.11, together with interest thereon ■ from February 22, 1909, amounting to $296.97, and $43.44, the amount of costs of suit, and that execution issue for the sum of $296.97, in favor of the plaintiff as against the defendant Niles, together with the amount of costs of suit herein specifically set forth.”</p> <p>The plaintiff appealed.</p> <p>» St. 1903, c. 423, § 1, reads as follows: “The delivery of a certificate of stock by the person named as the stockholder in such certificate or by a person entrusted by him with its possession for any purpose to a Iona fide purchaser or pledgee for value, with a written transfer thereof, or with a written power of attorney to sell, assign or transfer the same, signed by the person named as the stockholder in such certificate, shall be a sufficient delivery to transfer title as against all persons; but no such transfer shall affect the right of the corporation to pay any dividend due upon the stock, or to treat the holder of record as the holder in fact until it has been recorded upon the books of the corporation, or until a new certificate has been issued to the person to whom it has been so transferred. Such purchaser, upon delivery of the former certificate to the treasurer of the corporation, shall be entitled to receive a new certificate. Stock shall not be transferred upon the books of the corporation if any instalments thereon remain overdue and unpaid. A pledgee of stock transferred as collateral security shall be entitled to a new certificate if the instrument of transfer substantially describes the debt or duty which is intended to be secured thereby. Such new certificate shall express on its face that it is held as collateral security, and the name of the pledgor shall be stated thereon, who alone shall be liable as a stockholder, and entitled to vote thereon.”</p>

<p>Practice, Civil, Exceptions.</p> <p>A finding by a judge of the Superior Court that no sufficient notice was given of the filing of a bill of exceptions and a dismissal of the exceptions for that reason cannot be reviewed by this court upon a petition under R. L. c. 173, § 110, for the establishment of the exceptions.</p> <p>If a judge of the Superior Court, in reaching a conclusion that sufficient notice was not given of the filing of a bill of exceptions and in dismissing the exceptions, commits any error of law, such error can be brought before this court for correction either by a certificate of the presiding judge stating the material facts or by a bill of exceptions.</p>

<p>Springfield. West Springfield Bridge. Connecticut River Bridge Commission. Equity Pleading and Practice, Appeal, Exceptions. Bridge. Holyoke. Words, “ Specially benefited.”</p> <p>After the filing of a report and of a revised report by the commissioners appointed under St. 1915, c. 252, for the construction and apportionment of the cost of a bridge across the Connecticut River between Springfield and West Springfield, the city of Holyoke moved that the report be recommitted and objected to its: confirmation, and, upon decrees being entered denying the motion and confirming the report, alleged exceptions to and claimed appeals from the decrees.. This court, without deciding whether exceptions or appeals lay under the circumstances, heard and considered all joints argued by the city of Holyoke on their merits.</p> <p>It was held that, at the hearing above described, only questions of law confined to such alleged errors as appeared upon the face of the commissioners’ reports-would be considered.</p> <p>The questions before the commissioners, whether the city of Holyoke would receive any special benefit from the construction of the bridge across the Connecticut River between Springfield and West Springfield, and, if so, to what extent, were held to be questions of fact on the record.</p> <p>The question, what are the proportional parts of the cost of bridges between municipalities constituting great arteries of travel which should be borne by several cities, towns and counties, ordinarily is to be determined upon-broad considerations having reference to all the various circumstances of advantage and convenience to the municipalities respectively and to their population, their commercial and industrial characteristics, and their ability to bear the burden.</p> <p>The geography of the neighborhood being taken into consideration, it was helfi that there was ample ground in law for a finding by the commissioners that the bridge across the Connecticut River between Springfield and West Springfield specially benefited the city of Holyoke.</p> <p>The commissioners above described were not required to state in their reports-with fulness the reasons which actuated them in making their findings as to the existence and the extent of the special benefit which the city of Holyoke would receive from the bridge to be constructed.</p> <p>In hearing the objections to the findings of the commissioners, this court made-rational presumptions in favor of the findings and held that the findings should' not be set aside unless unsupported in law.</p> <p>There was no error of law on the part of the commissioners above described hr receiving evidence and in hearing arguments from individuals, organizations and associations, who were not and could not become in any strict sense parties to the proceeding.</p> <p>The commissioners in the proceeding above described were not required, after a recommittal of their first report, to give a new notice to the city of Holyoke, that city previously having become a party to and having appeared in the proceedings.</p>

<p>Contract upon the promissory note described in the opinion. Writ in the Municipal Court of the City of Boston dated February 23, 1916.</p> <p>• The writ directed attachment of “the goods or estate of Simon Swig of Boston, Mass., Edward L. McManus of Framingham, Mass., Robert Luce of Boston, Mass., and Louis Goldstein of Boston, Mass., as they are trustees of the National Realty Company, and all having their usual place of business in said Boston.” The declaration was as follows: “And the plaintiff says the defendants made a promissory note payable to the order of the plaintiff, a copy whereof is hereto annexed £as in the opinion]. And the plaintiff says that he is the holder and owner of said note and the defendants owe him the amount of said note and interest thereon.”</p> <p>Material evidence introduced, evidence offered by the defendants and excluded, and requests of the defendants for rulings at the trial in the Municipal Court are described in the opinion.</p> <p>The trial judge denied the requests for rulings and found for the plaintiff and at the request of the defendants reported the case to the Appellate Division, who dismissed the report. The defendants appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on October 10, 1919, and afterwards amended, by the executors of the will of Fanny Young, late of Boston, for instructions.</p> <p>Material facts are described in the opinion.</p> <p>The suit came on to be heard by Jenney, J., who reserved it upon the bill as amended and the answers for determination by the full court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 12, 1919, under St. 1903, c. 437, § 30, to compel the defendant, clerk of Nonquitt Spinning Company, a Massachusetts business corporation, to produce for examination, and to permit the plaintiff or his attorney, with as many assistants as may be necessary, to examine all the stock and transfer books of the corporation and to take copies and abstracts therefrom, upon such conditions as the court may prescribe, and that the defendants be ordered to furnish such facilities and such assistance in such examination as the court might deem proper.</p> <p>The suit was heard by Braley, J. Facts found by the single justice are described in the opinion. Having found the facts, the single justice reported the case for determination by the full court.</p>

<p>The following order was passed by the House of Representatives on April 29, 1920, and on April 30, 1920, was transmitted to the Justices of the Supreme Judicial Court.</p> <p>Ordered, That the Justices of the Supreme Judicial Court be requested to inform the House of Representatives whether, in their opinion, the provisions of the Bill to authorize cities and towns to limit buildings according to their use or construction (House, No. 1660), now pending, and copies of which are transmitted herewith, would be legal and constitutional if enacted into law.</p> <p>House Bill No. 1660, referred to above, was as follows:</p> <p>An Act to authorize Cities and- Towns to limit Buildings according to their Use or Construction to Specified Districts.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:</p> <p>Section 1. A city or town may, by ordinance or by-law, restrict buildings to be used for particular industries, trades, manufacturing or commercial purposes to specified parts of the city or town, or may exclude them from specified parts of the city or town, or may provide that such buildings, if situated in certain parts of the city or town, shall be subject to special regulations as to their construction or use. A city or town may also, by ordinance or by-law, provide that certain kinds of dwelling houses and tenement houses shall be restricted to specified parts of the city or town, or shall be excluded from specified parts of the city or town, or that dwelling houses or tenement houses situated in specified parts of the city or town shall conform to certain regulations in respect to their construction or use which do not apply to such buildings in other parts of the city or town. For the above purpose the city or town may be divided into districts or zones, and the construction and use of buildings in each ■district or zone may be regulated as above provided.</p> <p>Section 2. The provisions of this act shall be carried out in such manner as will best promote the health, safety, convenience and welfare of the inhabitants, will lessen the danger from fire, will tend to improve and beautify the city or town, will harmonize with its natural development, and will assist the carrying out of any schemes for municipal improvement put forth by any municipal planning board or board of survey or other like authority. Due regard shall be paid to the characteristics of the different parts of the city or town, and the ordinances or by-laws established hereunder in any city or town shall be the same for zones, districts or streets having substantially the same character.</p> <p>Section 3. No ordinance shall be established hereunder in any city until after a public hearing thereon has been held, notice of which shall be published, at least thirty days before the hearing, in a newspaper published in the city concerned, or in the county if no newspaper is published in the city. The hearing shall be given by the city council or by such officer, board, commission or committee as may be designated or appointed for the ■purpose by the city council. No by-law shall be established hereunder by any town except at an annual or special town meeting the warrant for which contains a notice of the proposed by-laws.</p> <p>Section 4. It shall be the duty of the superintendent of buildings, or the officer or board having supervision of the construction of buildings, or the power of enforcing the municipal building laws, and if in any town there is no such officer or board, then it shall be the duty of the selectmen, to withhold a permit for the construction or alteration of any building if the building as constructed or altered would be in violation of any ordinance or bylaw established hereunder; and it shall be the duty of municipal officers to refuse any permit or license for the use of a building which use would be in violation of any ordinance or by-law established hereunder.</p> <p>Section 5. Any person who is aggrieved by the refusal of a permit under the provisions of the preceding section may appeal to the municipal officer or board to which a right of appeal lies from decisions under the building laws of the city or town, and if there is no such officer or board, then the appeal shall lie to the city council of the city or to the selectmen of the town, or to such officer, board, commission or committee as shall be designated or appointed by the city council of the city or by the selectmen of the town to act as a board of appeals hereunder.</p> <p>Section 6. The Superior Court shall have jurisdiction to enforce the provisions of this act, and may restrain by injunction any violation thereof.</p> <p>Section 7. This act shall not apply to existing' structures nor to the existing use of any building, but it shall apply to any alteration of a building to provide for its use for a purpose, orina manner, substantially different from the use to which it was put before the alteration.</p> <p>Section 8. This act shall not apply to any existing or proposed building used or to be used by a public service corporation: prodded, that upon a petition of the corporation, the department of public utilities shall, after a public hearing, decide that the situation of the building in question is reasonably necessary for the convenience or welfare of the public.</p> <p>Section 9. No ordinance or by-law established hereunder shall be repealed or modified except after reasonable notice of the proposed repeal or modification, and an opportunity to the objectors to be heard thereon. If any owner of real estate which would be affected by the proposed ordinance or by-law objects thereto, it shall not be established except by a unanimous vote of all the members of the city council of the city, or of the voters of the town voting thereon; and in no case shall such an ordinance or by-law be repealed or modified except by a two thirds vote of all the members of the city council, or by a two thirds vote of the voters of a town voting thereon at an annual or special town meeting duly called for the purpose.</p>

<p>The following order was passed by the Senate on May 26,1920, and was transmitted to the Justices of the Supreme Judicial Court on May 27, 1920.</p> <p>Whereas, there is pending in the Senate a bill entitled "An Act to provide for the Equitable Distribution of the cost of a Bridge across the Connecticut River between Springfield and West Springfield,” known as Senate Bill No. 534; and Whereas, grave doubt exists as to the constitutionality of said bill, if enacted into law; therefore be it Ordered, that the Senate require the opinion of the Honorable Justices of the Supreme Judicial Court upon the following important questions of law: —</p> <p>1. Would the enactment of said bill violate the constitutional rights of any person?</p> <p>2. Would such enactment violate any constitutional right of any political subdivision of the Commonwealth affected thereby?</p> <p>3. - Would the said bill, if enacted into law, be constitutional?</p> <p>Senate Bill No. 534, referred to above, read as follows:</p> <p>An Act to provide for an Equitable Distribution of the cost of a Bridge across the Connecticut River between Springfield and West Springfield.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:</p> <p>Section 1. The cost of the bridge provided for by chapter two hundred and fifty-two of the General Acts of the year nineteen hundred and fifteen, and of that part of its approaches designated “viaduct” on the plan of said bridge heretofore accepted by the county commissioners of the county of Hampden under the authority of said chapter two hundred and fifty-two, and of the “expenses” referred to in section four of said chapter two hundred and fifty-two, and of the cost of the depression of the railroad tracks, and of one main approach in Springfield and West Springfield, respectively; and of maintaining and keeping said bridge and said approaches in repair shall be paid by the county of Hampden, the city of Springfield, the towns of West Springfield and of Agawam in the following proportions, to wit: — thirty-one per cent by the county of Hampden, fifty-five per cent by the city of Springfield, thirteen per cent by the town of West Springfield, and one per cent by the town of Agawam.</p> <p>Section 2. The said county commissioners may grant to any street railway company or companies the privilege of running their cars over said bridge, and may also grant privileges to other public utilities, all upon such terms, conditions and restrictions, and for such compensation as in their judgment public interest and convenience may require. The revenue from all such privileges shall be paid to the county treasurer and apportioned and paid by him to the said county and to the city of Springfield and to the towns of West Springfield and Agawam in such proportions as they severally pay toward the cost of maintaining- and keeping said bridge in repair.</p> <p>Section 3. So much of said chapter two hundred and fifty-two as is inconsistent herewith is hereby repealed, and so much of the decision of the commissioners appointed under said act and of the decree of the court confirming the same as are inconsistent herewith are hereby superseded.</p> <p>Section 4. This act shall take effect upon its passage.</p>