Volume 236 — Massachusetts Reports

<p>Petition, filed in the Supreme Judicial Court on December 30, 1919, for the establishment of exceptions alleged to have been saved by the petitioner at the trial in the Superior Court before Chase, J., of an action of contract brought against her by one George I. Holland, the judge having disallowed the exceptions as not conformable to the truth.</p> <p>A commissioner was appointed. Material facts found by him are described in the opinion.</p>

<p>Petition, filed in the Supreme Judicial Court for the county of Suffolk on December 15, 1919, for a writ of mandamus directing the school committee of the town of Hopkinton to reinstate the petitioner as a teacher in the public schools, from which position she alleged that she had been illegally removed.</p> <p>The petition was heard by Carroll, J. Material facts found by him are described in the opinion. He “ruled that thirty days’ notice was given to the petitioner before action was taken by the committee dismissing her.” He found that no “recommendation for the petitioner’s removal was made by the superintendent of schools,” but ruled that no such recommendation was necessary in order to give the school committee power to act, because there was a superintendency union under St. 1914, c. 714, § 7, between the towns of Hopkinton and Ashland; and reported the case to the full court for determination.</p> <p>St. 1914, c. 714, is as follows:</p> <p>“Section 1. The school committee of a city or town, in electing a teacher or superintendent who has served in the public schools of its city or town for the three previous consecutive years, shall employ such teacher or superintendent to serve at the discretion of the school committee, subject to the provisions of section two of this act.</p> <p>“Section 2. The school committee may dismiss any teacher or superintendent from employment by a two thirds vote of the whole committee, and such teacher or superintendent shall not receive any compensation for service rendered after such dismissal: provided, that a teacher or superintendent employed to serve at the discretion of the school committee, as provided in section one of this act, shall not be dismissed unless, at least thirty days prior to the meeting, exclusive of customary vacation periods, at which the committee votes upon the question of his dismissal, he shall have been given notice of the intention of the school committee to vote upon the question of his dismissal, nor unless he shall have been given, upon his request, a statement by the school committee of the reasons for which his dismissal is proposed; nor unless, also, in the case of a teacher, the superintendent of schools shall have given to the school committee his recommendations as to the proposed dismissal.</p> <p>“Section 3. (1) No teacher employed to serve at the discretion of the school committee, as provided in section one of this act, shall suffer a decrease of salary without his consent, except by a general salary revision affecting equally all teachers of the same salary grade in the city or town. (2) A superintendent employed to serve at the discretion of the school committee shall suffer no decrease in salary without his consent, until at least one year after the school committee has voted to reduce his salary.</p> <p>“Section 4. Nothing herein contained shall be construed as</p> <p>limiting the right of a school committee to suspend a teacher or superintendent for immoral conduct or other conduct unbecoming a teacher; and if the teacher or superintendent so suspended is subsequently dismissed because of such conduct, he shall not receive any salary for the period of his suspension.</p> <p>“Section 5. Nothing herein contained shall be construed as limiting the right of a school committee to dismiss a teacher when an actual decrease in the number of pupils in the schools of the city or town renders such action advisable.</p> <p>“Section 6. All acts and parts of acts inconsistent herewith are hereby repealed.</p> <p>"Section 7. This act shall not apply to superintendents of superintendency unions.</p> <p>“Section 8. This act shall not apply to the city of Boston.</p> <p>"Section 9. This act shall take effect on the first day of July in the year nineteen hundred and fourteen.”</p>

<p>Negligence, In use of motor vehicle, Street railway. Evidence, Relevancy and materiality, Competency. Motor Vehicle, Registration. Witness, Contradiction. Practice, Civil, Requests and instructions, Judge’s charge.</p> <p>At the trial of an action against the receiver of a street railway company for causing personal injuries and the death of an employee of the driver of a motor truck who, when the truck became stalled upon a street car track, ran forward and attempted to crank it with his back turned toward an approaching street car and was struck by the car, the defendant offered to show by a police officer that a fellow employee of the plaintiff’s intestate stated to the witness that at the time of the accident they were “swapping wheels and stalled, run on to the track and stalled the engine.” The fellow employee, in testifying for the plaintiff, had stated that he did not remember what he had said to the officer as to how the accident happened. The evidence was excluded. Held, that the evidence rightly was excluded, since it had no tendency to controvert anything previously testified to by the fellow employee.</p> <p>At the trial of the action above described, the employer of the plaintiff’s intestate, who was driving the truck, and the fellow employee testified for the plaintiff, and, among other things, stated that they were sober at the time of the accident; and the defendant offered evidence tending to show that previous to the accident these witnesses had stopped the truck and passed a flask between them which could have been found to contain intoxicating liquor, and also other evidence tending to show that the witnesses were intoxicated when the accident happened. The evidence was excluded. Held, that the evidence should have been admitted, as it affected the credibility of the witnesses and the weight to be given to their testimony.</p> <p>At the trial of the action above described, the defendant offered to show by the motorman of a street car which had been running behind the motor truck that the employer and the fellow employee of the plaintiff’s intestate, who were sitting on the seat of the truck while he sat at the side on a tool box, and who had testified for the plaintiff and had stated that they were sober at the time of the accident, “were boisterous, noisy, that they drove their auto in front of the car and held it back several times, so that because of it the car lost twelve minutes in going from Medford to Woburn; that at times when the auto left the track to let the car go by one of the men, the plaintiff’s intestate — well, that is a matter of inference, but one of the men thumbed his nose at the motorman and Ha! Ha! ’d to him.” The evidence was excluded. Held, that the evidence should have been admitted because it tended to prove that the witnesses for the plaintiff were intoxicated at the time of the accident and thus tended to controvert and to discredit their testimony.</p> <p>At the trial of the action above described, there was evidence tending to show that, within three hours previous to the accident, the plaintiff’s intestate had been drinking intoxicating liquor, and the defendant asked that the jury be instructed that, if the plaintiff’s intestate was intoxicated at the time of the accident and such intoxication contributed to the injury, he could not recover. The judge refused so to instruct the jury, but did leave to them the question whether the intestate’s conduct was the conduct of “an ordinarily prudent man under the circumstances.” The jury found for the plaintiff. The defendant alleged exceptions. Held, that</p> <p>(1) The instruction asked for should have been given;</p> <p>(2) The instruction given was open to the interpretation that the circumstances in which the care of the intestate was to be judged included that of voluntary intoxication and therefore that subject was inadequately dealt with in the charge;</p> <p>(3) This court could not say that this error of the trial judge did not result in harm to the defendant, and therefore the exceptions should be sustained.</p> <p>At the trial of the action above described, the judge in his charge to the jury at times correctly instructed them that the motorman of the street car that ran into the plaintiff’s intestate was bound to exercise the care of a reasonably prudent man under the circumstances, but, at other times, he told them in substance that the motorman was required to exercise the care of a reasonably prudent man “with his skill,” that he was bound to act with the care of “areasonably careful and skilful man; ” that he was to be judged by the standard of care that would be reasonably expected from “a prudent man, skilful man, with his experience just as he stood there on the car.” The defendant excepted. Held, that prejudicial error was committed, and that the exceptions must be sustained.</p> <p>At the trial of the action above described, there was evidence tending to show that the motor truck, although properly registered, was being operated contrary to law with a temporary number plate, used without authority. It did not appear that the intestate knew of the improper use of the number plate. Held, that the act of the plaintiff’s intestate in attempting to crank the truck was not operating it nor participating in its operation, and that the plaintiff therefore was not precluded from recovering by reason of the use of improper number plates.</p>

<p>Contract, Validity, Implied. Carrier, Of live stock.</p> <p>A provision in a contract made by a railroad corporation in the State of Illinois for the shipment of live stock from Chicago in that State to Boston, that the shipper was “at his own sole risk and expense to load and take care of, and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same,” is valid and, in the absence of wanton or reckless misconduct on its part, relieves the corporation from any duty at common law to the shipper and to the consignee to load and to take care of and to feed and water the live stock while in transportation under the contract.</p> <p>A railroad corporation, which habitually had accepted cattle from a certain shipper at Chicago in the State of Illinois for shipment to Boston in this Commonwealth under a contract containing the provision above described, in order to comply with the requirements of 34 U. S. Sts. at Large, 607, previous to July, 1913, at a certain point in the shipment had caused the stock to be fed uniformly at the rate of one hundred pounds of hay per carload. The cattle were of a special type such that this practice was reasonable, adequate to their special needs and involved no element of cruelty, and they reached Boston in good condition and without appreciable loss of weight. In May, 1913, the federal department of agriculture issued a circular, which, without the force of law, represented the “views of the department” to be that a proper feeding would be at a rate which would require three hundred pounds of hay per carload for these shipments, and the railroad corporation in July of that year caused the feeding to be done at that rate, but, it appearing that much of the feeding so furnished was not consumed, it returned to the practice of feeding but one hundred pounds to the carload in the yards, placing the two hundred pounds, which constituted the remainder of the three hundred pounds suggested by the department of agriculture, in the cars as they continued their journey. The shipper demanded of the railroad corporation that it cease placing the two hundred pounds in the cars but the railroad corporation insisted upon continuing and did continue the practice because of the ruling of the department of agriculture. During the rest periods neither the owner nor the shipper of the cattle exercised their right or option of feeding the animals. The consignee refused to pay for the two hundred pounds placed in each of the cars at the point of rest. In an action by the railroad corporation against the consignee for the value of the two hundred pounds of hay per each carload thus placed in the cars, it was held, that</p> <p>(1) The railroad corporation after the demand by the shipper had no authority from him to furnish feed beyond what was reasonably adequate for the special needs of the cattle;</p> <p>(2) The railroad corporation did not have a right, superior to that of the shipper, to dictate what was a reasonable amount of feed to be given to the cattle while in transportation;</p> <p>(3) One hundred pounds of hay per carload at the point of rest having been found to have been reasonable and adequate for the special needs of the cattle and the shipper having demanded that no more be furnished by the railroad corporation on his account, the consignee was not liable for any feed furnished beyond that amount after the shipper’s demand.</p> <p>At the trial of the action above described, there was admitted, subject to objec- ■ tians by the plaintiff, evidence tending to show that the shipper, during the years of the shipments in question in the action, had placed two hundred pounds of hay upon each car at Chicago and had given to the initial carrier there memoranda including instructions to feed one hundred pounds per car at the point of rest; and, it having appeared that, five years after the time of the shipments in question, the plaintiff had changed its method and had begun feeding two hundred pounds of hay per carload at the point of rest and placing no hay in the cars outbound from there, following the promulgation of a further circular by the federal department of agriculture suggesting that the views of that department as to the minimum requirements of the law would be met by furnishing not less than two hundred pounds of hay or its equivalent per carload, the defendants, subject to further objections by the plaintiff, were permitted to introduce further evidence tending to show that, following that change by the plaintiff, the shipper ceased to place any hay in the cars at the point of shipment. Held, that the evidence objected- to by the plaintiff was relevant upon the issues' raised by it, and that it was admitted properly.</p> <p>At the trial in the Municipal Court of the City of Boston of the action above described, the plaintiff objected to the admission of certain evidence and filed a request for a report stating its objections and the rulings of the judge thereon. The judge found for the plaintiff. The plaintiff did not file a draft report. At the request of the defendant the action was reported to the Appellate Division, who dismissed the report, and the defendant appealed. The record in this court contained a statement of the rulings admitting the evidence to which the plaintiff had objected, and the plaintiff in this court urged that, if the rulings of the trial judge ordering judgment for the plaintiff were wrong, and the rulings admitting evidence to which it had objected also were wrong, the action should be remanded to the trial court for a new trial. This court, in reversing the order of the Appellate Division dismissing the report of the rulings ordering judgment for the plaintiff, stated that no question arose as to the form of the report, and held that the evidence objected to by the plaintiff properly was admitted, and that judgment should be entered for the defendant.</p>

<p>Tort for personal injuries, received by the plaintiff when in the act of alighting from an elevator in the store of the defendant, which occupied an entire building on Tremont Street in Boston, the declaration as amended containing only allegations in general terms that on August 30, 1912, the plaintiff, while in the exercise of due care, received serious injury on account of the negligence of the defendant, its agents and servants. Writ dated October 16, 1916.</p> <p>The defendant filed a document, entitled “Motion and Plea,” which is described in the opinion, and also, without waiving that “Motion and Plea,” an answer containing a general denial of the allegations of the writ and declaration and also allegations specifically setting forth in bar the same facts as were alleged in abatement in the “Motion and Plea.”</p> <p>The defendant claimed a jury trial upon the alleged “Motion and Plea,” and there was a separate trial on the issue there joined before Sisk, J., who submitted to the jury a special question, “At the time of the accident alleged in the plaintiff’s amended declaration, was she [the plaintiff] an employee of the defendant?” The jury answered, “She was not;” and the defendant alleged exceptions.</p> <p>The action then was tried upon the general issue before White, J. At the close of the evidence, by order of the judge, a verdict was entered for the defendant; and the plaintiff alleged exceptions.</p> <p>Material evidence set forth in both bills of exceptions is described in the opinion.</p>

<p>Petition, filed in the Land Court on March 20, 1919, for the registration of the title to land on Eastern Point in Gloucester.</p> <p>The respondents were the city of Gloucester and the Attorney General, who claimed certain public rights described in the decision of the judge of the Land Court; George O. Stacy; Herbert E. and Arthur W. Smith; and Joseph O. Procter, William H. Jordan and Joseph O. Procter, Jr., Trustees, all of whom claimed “a right of way across the parcels described in the petition, on the location of the present Eastern Point Boulevard (East).”</p> <p>A sketch plan, compiled from several of the exhibits in evidence at the hearing in the Land Court and from statements in the bill of exceptions, is shown on the next page. The petitioner’s land is marked, thereon, “Petitioner”; land of the respondent Stacy is marked “St.”; land of the respondents Smith is marked “Sm.”; land of the respondents Procter, Jordan and Procter, Jr., Trustees, is marked 'Pro.”; Eastern Point Boulevard (East), as designated on some of the plans referred to in the opinion, is marked “EEEEE,” (a portion of it being shown on one plan as crossing the petitioner’s land at "AA”;) and Eastern Point Boulevard (West) is marked “WWWWW.” As stated in that part of the decision of the judge of the Land Court quoted on page 42, neither course of Eastern Point Boulevard (East) across the petitioner’s land, shown on the sketch plan, is described or shown on the petitioner’s deed from the Trustees of the Eastern Point Company.</p> <p>In the Land Court, the petition was heard by Bams, J. His decision and order for a decree, which were annexed to the bill of exceptions, were in part as follows:</p> <p>“This is a petition for registration of title to a tract of land at Eastern Point, Gloucester, containing a little over twenty acres of upland, together with the rocks at the southeasterly end of Brace’s Cove, known as Brace’s Rocks. The respondents all said land. This constitutes the principal matter in controversy.</p> <p> </p> <p>“Some of the respondents claim public rights of way over the road in question acquired by adverse use, and some private rights of way acquired by express or implied grant. The claim to public rights of way has been made on behalf of the public at the instance of certain citizens of Gloucester and of an improvement association of summer residents at Bass Rocks, a summer colony situated to the north of Eastern Point, by the city solicitor and the Attorney General. There is a further claim on behalf of the public of a right by prescription over Brace’s Rocks. No evidence was presented showing any rights by prescription in or over Brace’s Rocks, and I find that no such rights exist. Much evidence was presented as to the claim of public rights of way, and, while counsel for the city and the Attorney General did not care to argue the matter the claim was expressly not waived by them.</p> <p>“In 1887 the southerly portion of Eastern Point, consisting of about four hundred acres of land bounded easterly and southerly by the ocean, westerly by Gloucester Harbor and northerly by the Patch farm, was conveyed by the estate of Thomas Niles to trustees for an association known as the Eastern Point Association. Thomas Niles had purchased the farm in 1844. The northerly boundary line was marked by a stone wall stretching from the ocean to the harbor, and the only entrance to the Niles farm was through a gate near the harbor side. . . .</p> <p>“When the Eastern Point Associates took over the property they built a gate house at the entrance near the north end of the beach, carrying the road at first through an archway under it, and later beside it. A keeper has been maintained at the lodge by the associates and their successors, and also signs declaring the road a private way and referring visitors to the lodge for permission to enter the premises. The Eastern Point property has been developed as a summer residential property and roads have been built around the point and over it in various directions. A hotel has been situated just within the gate near the beach and many houses have been erected. Until 1910 these roads all led back to the main gate which constituted the only means of ingress and egress to and from the property. In addition to a keeper at the lodge gate an officer was kept at the fork of the roads, a short distance inside the property, who attempted to regulate traffic, to forbid the use of bicycles and automobiles, and to exclude all persons who would not respect the rights of the owners of the estate as a private estate, that being the officer’s understanding of the expression ‘respectable’ people. . . . The whole Point is sightly and picturesque, and a great many people have driven around it. ... In addition to the maintenance of the lodge gate, signs and the attempted supervision by employees, there has been no period of twenty years within which travel over that portion of the road now in question has not been interrupted by gates, bars, fences, walls, or barriers. ... I find that no public rights have, been acquired by prescription in or over the land now of the petitioner. . . .</p> <p>“There are three respondents who claim rights of way by implied grant. . . .</p> <p>"In 1902 a large tract of land near the Eastern Point light house was conveyed to one Rouse, and was accompanied by a detail plan by Aspinwajl and Lincoln showing the property so conveyed with the avenues running through it as called for by the earlier plans. It also showed the Boulevard (East) as extending through the present locus as far as the fresh water pond as indicated on the prior plans. This deed contained an agreement that any road upon, or bordering upon, land thereby conveyed, shown upon said plan, and not now laid out, when laid out shall be so located that its centre lines shall correspond with the centre of the road as shown on said plan. As a matter of fact, however, as above noted, the Eastern Point Boulevard (East), then constructed on the ground to and beyond the present locus, did not correspond with the road shown as Eastern Point Boulevard (East) on said plan, or any of said plans, being nearer the sea. This Rouse deed is the only deed in the entire chain of Eastern Point conveyances which bounds on Eastern Point Boulevard (East) south of Farrington Avenue as shown on the plans running from the junction of the roads across the portion of Boulevard (East) which curves around through the golf links, or of the temporary way which has been actually built and used in place of Farrington Avenue. The owner of the Rouse land later closed that portion of the Boulevard (East) running through his land, together with Suffolk and Grove avenues, thereby diverting travel over the shore road from his immediate shore front to a detour around his land. The owner of the Rouse property has not appeared nor filed any objection in this proceeding.</p> <p>"There have been a number of deeds given referring to the sectional plans, but to no sectional plan that shows the present locus. Most of the deeds of Eastern Point lands have been made with reference to detail plans . . . showing the immediate property then conveyed with the adjoining roads, the lines of such roads being carried beyond the limits of the land immediately conveyed, indicating their continuance on either side of the granted premises. None of them show the Boulevard (East) as located through the land now of the petitioner except the Rouse plan. No deeds, except the Rouse deed, have been given on any ways which are physically connected within the limits of the present locus with the road existing on the ground there over or on any ways which appear by any of the said plans to be connected within the limits of the present locus with that portion of the Boulevard (East) shown on the plans as extending through it. . . .</p> <p>“In 1910 roads were constructed at the northeasterly portion of the Eastern Point property. The road which had been built through locus in 1894 close to the shore was widened and carried on from Fort Hill Avenue at the south through locus and across the strip of beach between the pond and Brace’s Cove to a connection with the temporary way which led from the junction of the roads near the lodge gate south of the golf links. It was at about this point that the Eastern Point Boulevard (East) of the plans circled around through the golf links, but as above stated, it has never been built, partly because it is not physically possible. From this point on to the Patch line a road was built known as Atlantic Avenue, taking the place in a general way of Sherman Avenue as shown on the plans, but not corresponding therewith, or leaving any lots on the ocean side. At the Patch line the wall was removed and this road connected with the Bass Rocks Road. . . .</p> <p>“In February, 1917, the Trustees of the Eastern Point Company conveyed to the petitioner, referring to an Aspinwall and Lincoln detail plan, a tract of land lying southerly from and including Brace’s Rocks, which form the southeast point of Brace’s Cove, bounded westerly by the fresh water lake and southerly by what is shown on the lithograph plan as Lincoln Avenue. Both deed and plan refer to the Boulevard (East) at the southerly and northerly ends of the tract conveyed. The plan does not show it as extending through the premises, nor do either plan or deed refer to Ohio Avenue, but the deed provides for the construction of Lincoln Avenue from the point where it runs out of the Boulevard (East) at the southerly boundary of the premises, and the construction of a road substantially corresponding to the Lake Avenue of the recorded and lithograph plans around the easterly margin of the lake to the Boulevard (East) at the northerly boundary of the premises. These roads have been built, and the petitioner has attempted to close the portion of the shore road which was built through what is now his land in 1894 and 1910. This diverts travel along the shore of the petitioner’s land from the Boulevard (East) at the south, around through Lincoln Avenue and the Lake Shore Road, to the Boulevard (East) at the northerly end of the property where it runs between the fresh water lake and Brace’s Cove.</p> <p>“The respondents say that access to the ocean and to a road around the shore is an essential element in the entire Eastern Point development scheme, but it is to be noted that no actual access to the ocean is provided for, and that the Boulevard, so far as shown on the recorded or lithograph plans, is not except where it borders on a beach, a road along the shore at all, but on the contrary runs throughout its entire course in behind a tier of shore lots. The Boulevard (West) and (East) as shown on said plans is one continuous way, but not as constructed on the ground by reason of the gap through the golf links and as being located further in from the shore. The index plan was referred to in certain deeds between the trustees themselves, conveying the legal title from one set to another, but not in any deed or plan of land sold to purchasers.</p> <p>“It is the contention of the petitioner that in the course of the development of the Eastern Point property and the gradual construction of roads over a period of thirty years, the trustees, by the use of sectional or detail plans only, by abstaining from a reference in any of their deeds to any plan which shows roads beyond the limits of the premises then being conveyed, by the guarded use of the lithograph plan as representing a general situation only, varying materially as to the actual location or existence of the streets thereon shown, and by express provision in some of their deeds excluding any rights in any streets other than as called for by such deeds, have avoided the creation, by either express or implied grant, of any rights of way through their remaining property, or over the premises now belonging to the petitioner. He argues that the plans at most show a road running generally around the Point and near the shore, with building lots between it and the water, and that such a road has been provided.</p> <p>“None of the respondents own any land within a half mile of Brace’s Rocks, and the shore road through locus is neither necessary nor convenient as a means of access from any of their land to any highway. The only deed that bounds on the Boulevard (East), except on that portion beyond the gap at the golf links, after the construction of the shore road through locus is the Rouse deed. The only other deed that can be construed as directly referring to that road is the Taft deed. Rouse, for fairly obvious reasons, makes no objection to this petition. So far as the Taft deed is concerned the evidence tends to show that his land was situated at the extreme end of the inland portion of the Boulevard (East) where its continuance to the eastward is physically broken off at the golf links, leaving him only access from the west, and that the provisions for access through Farrington Avenue or the temporary way to 'the road along the shore land at Brace’s Cove known as Eastern Point Boulevard (East) ’ referred to that portion of the Boulevard (East) which runs along the Cove and connects with the Bass Rocks road, thereby providing access from the east. This portion of the Boulevard (East) remains untouched by the sale to the petitioner.</p> <p>“The respondents show no title under either the Rouse or Taft deeds. They can only avail themselves of them if, and in so far as, they tend to show a general scheme or plan for a shore road through the property now of the petitioner of such character that the petitioner is estopped from denying its existence, and the acquirement of rights therein in the respondents by implication.</p> <p>“There is no controversy in regard to the law. The difference arises in regard to its application to the facts. . . . Without attempting to review the many cases on easements implied from grants bounding on a way or from reference to plans, it seems to me that in the case at bar there have been no rights acquired by the respondents in the petitioner’s land, and I so rule.</p> <p>“The respondents contend that sufficient notice has not been given in this case to all parties who may have an interest. The law requires the issuance of a citation immediately upon the coming in of the examiner’s report. The examiner having raised the question as to what notice should be given in this matter, it was necessary for the court to give some direction in regard to it. The law also carefully provides for other and further notice at any stage of the proceedings to any person who may then appear to have an interest or a claim to an interest. At the time of the issuance of citation it seemed to me, from such abstract of the entire record title as was then presented, that no parties other than those claiming title under deeds which bound on or refer to Eastern Point Boulevard (East) south of the fresh water lake should be cited. Since then a full report of all conveyances made out of the Eastern Point property has been submitted, and the only other deed containing any reference to the Boulevard (East) running through locus that has been discovered is the deed to Taft above mentioned. Service of process should be made on the present owner of the Taft lot, and such service has been ordered. The respondents represent in a general way every variety of property on the Point, both geographically and under the different forms of deeds and plans adopted. If as matter of law they have no rights no one else has any rights and it would be idle to make further service. The motion is denied.</p> <p>“In 1903 the Trustees of the Eastern Point Company executed an instrument by which they authorized, permitted, gave and granted to the city of Gloucester the right to lay and maintain water pipes under certain private ways at Eastern Point, viz., all ways then existing and in use through said lands, and also in or under any and all ways hereafter laid out or constructed by said company through said lands. No water pipes have in fact been laid through the shore road that was constructed through the land now of the petitioner. It is clear that the petitioner’s land is subject, however, to the rights of the city under this instrument in the new Lincoln Avenue and Lake Avenue recently built. When the petitioner obstructed the shore road the city removed the obstructions. This was partly under its claim on behalf of certain citizens that there were public rights of way over it, but the city also still claims rights therein under the instrument of 1903. It seems to me that this instrument created a license which, if, and when, acted upon, would ripen into an easement. So far as the shore road through the petitioner’s land is concerned, however, which was built in 1894 and widened and extended in 1910 but in which no water pipes were laid, I rule that the respondent city has no easement or other rights therein.</p> <p>“The respondents have filed written requests for findings and rulings. The findings requested are covered in the foregoing statement of facts. Except as so covered they are refused. The first, second, twelfth, fourteenth and fifteenth requests for findings are specifically refused. Of the requests for rulings I grant the twelfth, thirteenth, fifteenth, seventeenth and nineteenth, and refuse the rest.</p> <p>“Subject to the rights of the city of Gloucester in Lincoln and Lake avenues under the instrument of March 12, 1903, and to the restrictions and easements in the petitioner’s deed from the trustees of the Eastern Point Company, there must be a decree for the petitioner.”</p> <p>The first, second, twelfth, fourteenth and fifteenth requests of the respondents for findings, refused by the judge, were as follows:</p> <p>“1. Eastern Point is devoted solely to seaside residential property and access to the ocean and the use of the roads along the shore is reasonably essential to the beneficial use of every estate on the Point.</p> <p>“2. The nature of this territory is such that it is reasonably essential to the beneficial enjoyment of each lot within it that the owner should have a right to use the shore road.”</p> <p>“ 12. At the time of the deed to Procter of the land on Atlantic Road the only reasonably adequate road to the Gate Lodge was the shore road, including that part of it which is on the petitioner’s land.”</p> <p>“14. For twenty-five years the Eastern Point Company has held out to prospective purchasers that there was a shore road along Brace’s Cove and by Brace’s Rocks, by recording a large plan showing such road and circulating among real estate dealers a similar plan.</p> <p>“15. The closing of the entire shore road would be a serious damage to most of the landowners on Eastern Point and would prevent the full beneficial use of their premises.”</p> <p>At the request of the respondents, the judge made the following rulings of law:</p> <p>“ 12. A grantee of land bounded on a private way belonging to the grantor and actually existing on the ground or shown on a plan referred to acquires the right to use the way in both directians so far as the grantor owns, provided it is reasonably necessary to the advantageous use of the granted premises that he should have such right.</p> <p>“ 13. For the purposes of the rule stated in each of the last two requests it is immaterial that the name of the way may change after a certain point is reached.”</p> <p>“ 15. A grantee of land bounded on a private way belonging to the grantor and actually existing on the ground and connecting with other private ways belonging to the grantor and also existing on the ground acquires the right to use the connecting roads so far as is reasonably necessary to the advantageous use of the granted premises.”</p> <p>“17. If the situation of the lands conveyed by the Eastern Point Company to the various grantees was such and the purpose of the conveyances was such that access to the ocean front must have been a material consideration in the minds of the grantees, then all of the grantees whose deeds referred to any of the recorded Foss plans acquired a right of way across Eastern Point Bouleyard (East) over the petitioner’s land.”</p> <p>“ 19. Grantees of the Eastern Point Company whose deeds refer to one of the small plans showing the adjacent way extending beyond their lands in either direction and open at both ends were impliedly granted rights of way in both directions and were not limited to the direction leading to the nearest public highway.”</p> <p>The judge refused to make the following rulings of law, asked for by the respondents:</p> <p>“11. A grantee of land bounded on a private way belonging to the grantor and actually existing on the ground or shown on a plan referred to acquires the right to use the way in both directians so far as the grantor owns.”</p> <p>“14. For the purpose of determining the extent of rights of way impliedly granted to the purchasers of lands on Eastern Point, Eastern Point Boulevard (East) and Eastern Point Bouleyard (West) are to be treated as a single road.”</p> <p>“ 16. If it was reasonably necessary to the full beneficial enjoyment of the lands on Eastern Point Boulevard or ways leading into it that the grantees should have the right to use that part of Eastern Point Boulevard (East) which is on the petitioner’s land, there was an implied grant to each grantee of a right of way along the said Eastern Point Boulevard (East).”</p> <p>“18. If the situation of the lands conveyed by the Eastern Point Company to the various grantees was such and the purpose of the conveyances was such that access to the ocean front must have been a material consideration in the minds of the grantees, then all of the grantees whose deeds referred to small plans of Aspinwall and Lincoln recorded therewith acquired a right of way across Eastern Point Boulevard (East) over the petitioner’s land.”</p> <p>“20. It must be taken to have been the intention that such grantees should have a right of way in one direction to the highway leading to Gloucester and in the other direction to and along the road on the ocean front.</p> <p>“21. .The city of Gloucester has an easement entitling it to lay and maintain water pipes in that part of Eastern Point Boulevard (East) which crosses the petitioner’s land.</p> <p>“22. The clause in certain of the deeds of the Eastern Point Company that 'nothing herein contained shall be construed as conveying any rights over the remaining lands of the grantors’ does not refer to rights of way over the company’s roads.”</p> <p>To the refusals to find and rule as requested by them, and to the ruling that, subject to the rights of the city of Gloucester in Lincoln and Lake avenues under the instrument of March 12, 1903, and to the restrictions and easements in the petitioner’s deed from the trustees of the Eastern Point Company, there must be-a decree for the petitioner, the respondents alleged exceptions.</p>

<p>Contract by the assignee of one David H. Cohen, the lessee named in a lease by the defendant of the premises numbered 997 on Washington Street in Boston, the declaration alleging “that the defendant failed to perform the terms, conditions and covenants on his part to be performed and failed to provide heat for the said premises, which under the terms of the said lease he was bound to provide, in consequence of which the said Cohen was unable to habítate and carry on his said business during the fall of 1917 and the winter months at the end of 1917 and the early winter months of 1918.” Writ dated April 20,1918.</p> <p>In the Superior Court the action was tried before Morton, J. The record states: "The pleadings were read to the jury, and the lease offered in evidence, whereupon the defendant requested that a verdict be ordered for the defendant.” The judge granted the motion and ordered a verdict for the defendant “upon the ground that the defendant by the terms of the written lease had exempted himself from liability for failure to heat,” and reported the action to this court “upon the pleadings and upon the written lease, with the agreement of counsel that” this court should "make such disposition of the case as the law and facts warrant.”</p>

<p>Contract, with a declaration as amended in two counts, the first count being for $746 upon an account annexed with fifteen items of “commission ... on machines,” and “overcharge on . . . machines,” and the second count being for damages resulting from a failure of the defendant to deliver to the plaintiff thirteen of twenty “improved soda filling and capping machines with a crank gear attachment,” which, the plaintiff alleged, it had bought of the defendant. Writ dated May 6, 1918.</p> <p>In the Superior Court the action was heard by Sisk, J., without a jury. Before any evidence was introduced, the defendant in writing moved that the plaintiff be required to elect between the counts. The motion was denied. Upon all the evidence, the judge found that the plaintiff was not a salesman for the defendant. Other material facts found by him and exceptions saved by the defendant are described in the opinion. There was a find-for the plaintiff in the sum of $752.77; and the defendant alleged exceptions.</p>

<p>Equity Jurisdiction, Mistake. Deed, Revenue stamp.</p> <p>The owner of certain real estate in Harwich, who lived in the State of New Jersey, wrote to her sister in Harwich to tell a neighbor that she would sell the real estate for $6,000. The sister offered the property for that price and later understood that the offer was accepted. No agreement nor memorandum in writing preceding conveyance was made. A deed was executed by the owner conveying the real estate to the neighbor and reciting the consideration as “ one dollar and other valuable considerations.” The owner’s sister, the neighbor and the neighbor’s attorney met at the proper registry of deeds, the owner’s sister attending without an attorney on the advice of the neighbor’s husband; and the sister presented the deed. It then bore no revenue stamps such as were required by U. S. St. 1917, c. 63. The neighbor’s attorney informed the owner’s sister that stamps were required and affixed $3 in stamps, which would have been required by a consideration price of $3,000. He did not tell the owner’s sister, nor did she know, that $1 in stamps was required for each $1,000 of consideration. The stamps were paid for and were cancelled by the owner’s sister in her behalf. The deed then was delivered, the consideration to be paid later. The neighbor came to believe, through some lapse of memory or misunderstanding for which the owner’s sister was not responsible, that the price was $3,000, refused to pay $6,000, and refused to reconvey the property. In a suit in equity by the owner for a cancellation of her deed and a reconveyance of the property, the facts as above recited were found by the judge and a decree was ordered for the plaintiff. Upon exceptions by the defendant, it was held, that</p> <p>(1) There was no meeting of minds and no completed contract and that the plaintiff was entitled to relief;</p> <p>(2) There was no negligence of the plaintiff or of her sister to justify the defendant in supposing that the plaintiff assented to a sale for a consideration of $3,000;</p> <p>(3) Owing to the fact that neither the plaintiff nor her sister was responsible for the error of the defendant, the questions, whether the sister exceeded her authority in delivering the deed without payment of the consideration price, and whether and how far the plaintiff was bound by her act in so doing, were immaterial;</p> <p>(4) The paying for and cancelling of revenue stamps denoting a consideratian price of $3,000 under the circumstances did not preclude the plaintiff from relief.</p>

<p>Trust, Construction. Devise and Legacy, “Heirs at law,” Time of vesting. Words, “Heirs at law.”</p> <p>A testator, who had three children, a daughter twenty-five, a son twenty-three and a daughter fifteen years of age respectively, made a will placing the residue of his estate in trust, a certain annuity to be paid from the income to his widow and the balance of the income to be paid to his children or their children during the life of the widow. The will then contained three paragraphs, each referring to one of the testator’s three children and providing that, after the death of the widow, one third of the income was to be paid to that child during his life and, after such child’s death “leaving children or grandchildren,” one third of the principal was to be conveyed and distributed "to and among the children and grandchildren . . . and in case no such children or grandchildren” survived such child of the testator, that child’s share of the income was to be paid for life to the other two children of the testator “ during the term of their respective natural lives and the life of the survivor of them in case either dies leaving no children or grandchildren; and in case either [of such'other two children of the testator] ... or both . . . have died leaving children or grandchildren” the trustees were directed “to pay over, convey and distribute among their respective children and grandchildren as they claim by right of representation the share of the principal estate or trust property which would have fallen to the children of” the child to whom the paragraph of the will referred, had that child died leaving children; and in case that child “shall survive both my other children then upon his decease leaving no children or grandchildren I direct my trustees to pay over, convey and distribute all said trust estate as it would legally descend to and among my heirs at law the children and grandchildren taking the portion that would have fallen to their respective parents.” Each of the three children survived their mother and then died, leaving no children nor grandchildren surviving, the first to die being the brother, who left a will which, in the events which happened, gave his property to his younger sister, the older sister next dying intestate and the last to die being the younger sister, who left a will. Held, that</p> <p>(1) Under the provisions of the trust, the interest in the trust property in remainder after the life interests vested at the death of the testator;</p> <p>(2) In the events which happened, that interest vested in those who were the testator’s “heirs at law” at the time of his death, descended to the survivor of his children and was subject to the provisions of that child’s will.</p>

<p>Negligence, In maintenance of place of amusement, Assumption of risk. Minor.</p> <p>A corporation, maintaining at a beach resort an amusement device, which in part consists of a slide down which one using it is propelled to a moving belt whence he jumps to the floor, in the absence of any negligence in its construction, condition or operation, is not liable for personal injuries received by one who, having used the device five or six times before so that he is familiar with the manner of its use and the sensation caused thereby, enters it when a large crowd is present and, because of the crowd, is injured when he jumps from the moving belt.</p> <p>The decision above described was reached without considering any defence involved in the fact that the injured person was a minor and had entered the device upon a ticket having on its reverse side this language: “No charge is made for the use of Amusement Devices in the Pit or Gymnasium, but persons using same agree to assume all risk of personal injury and loss or damage to property.”</p>

<p>Bill in equity, filed in the Probate Court for the county of Middlesex by the executrix of the will of Francis S. Hesseltine, late of Newton, for instructions relating to the disposition of two thirds of the income from a certain parcel of real estate owned by the testator at the time of his death and disposed of by his will.</p> <p>The suit was heard upon an agreed statement of facts by L. E. Chamberlain, J., who filed a decree instructing the plaintiff that payment be made to the testator’s son, Norman F. Hesseltine; and the testator’s daughters appealed.</p>

<p>Landlord and Tenant, Construction of lease. Contract, Construction. Agency, Effect of agent’s knowledge not communicated to principal. Evidence, Extrinsic affecting writings, Judicial notice. Equity Pleading and Practice, Decree, Costs. Director General of Railroads.</p> <p>A judge, who heard a suit in equity by a railroad corporation against a mortgagee in possession of certain real estate which the mortgagor had let to the plaintiff by a lease in writing whose provisions the mortgagee had agreed to be bound by, among others a provision relating to heat to be furnished by the lessor which was ambiguous as to whether the premises should be heated nights and on holidays and Sundays, found, upon evidence warranting the findings, that, while the character of the plaintiff’s business required that the premises should be heated on all days and nights, the lessor was not informed of that fact; that the lease was drawn by agents of the plaintiff; that to supply heat nights and on holidays and Sundays would require a large expenditure by the defendant; that the building was of a class usually not heated nights or on holidays or Sundays; that certain conduct of the lessor and of the defendant in keeping the premises comfortably heated nights and holidays and Sundays had no reference to an interpretation of the requirements of the lease in that respect, but that, when the defendant understood that the plaintiff claimed a right to such heat, he denied the right, while asserting his willingness to act so as not to embarrass the federal government, then operating the plaintiff. By order of the judge a final decree was entered dismissing the bill. Upon an appeal by the plaintiff, it was held, that no error appeared in the findings or rulings of the judge.</p> <p>At the hearing above described, a broker, who had acted for the lessor in procuring the lease, testified that an authorized representative of the plaintiff had spoken to him “of there being employees there at night,” and that he knew “that the night force was to some extent to occupy the premises;” and the attorney who acted for the plaintiff in making the lease testified that he informed the broker that it would be necessary for the plaintiff to have a night force. Held, that the above evidence did not as a matter of law require a finding by the judge that the broker of the lessor knew that the premises were to be used by the plaintiff days and nights without interruption.</p> <p>At the hearing above described, it appeared that the defendant, after hearing of the claim of the plaintiff that it was entitled under the lease to heat days and nights without interruption, continued thus to furnish heat, and the plaintiff contended that this was a construction of the ambiguous provision of the lease by conduct which bound the defendant. The defendant offered, and, subject to an exception by the plaintiff, the judge admitted evidence of conversations between the defendant and his agent, which tended to explain such conduct of the defendant and to show that it was not a construction of the contract favorable to the plaintiff. Held, that the evidence properly was admitted.</p> <p>Where a suit in equity, brought by a railroad corporation and by the Director General of Railroads in 1918, was dismissed by a final decree on January 26, 1920, “with costs to the defendants,” this court took judicial notice of the fact that at the time of the entry of the decree the Director General of Railroads no longer was operating the railroad, and ordered that the decree be so modified as to provide that he be not required to pay costs.</p>

<p> Adverse Possession. Province Lands. Commonwealth. </p> <p>No title to any of the province lands lying below high water mark could be acquired by adverse possession previous to the enactment of St. 1893, c. 470; and, by reason of the repeal of that statute by R. L. c. 227, in 1902, its provisions did not permit the acquiring of such a title by adverse possession for twenty years preceding its repeal.</p> <p>St. 1893, c. 470, gave no right based on adverse possession of province land preceding its enactment.</p>

<p>Pleading, Civil, Answer. Practice, Civil, Affidavit of no defence and counter affidavit. Bills and Notes. Evidence, Presumptions and burden of proof.</p> <p>An affidavit of defence, filed in an action of contract by a defendant under St. 1911, c. 305, after the plaintiff has filed an affidavit of no defence, is no part of the pleadings in the action.</p> <p>A partial faitee of the consideration for a promissory note, in order to be relied on by the maker under R. L. c. 73, § 45, in defence to an action upon the note by the payee, must be alleged specifically in the answer.</p> <p>Where, in an action upon a promissory note by the payee against the maker, the answer contains no specific allegation of a partial failure of consideration, the judge properly may refuse to instruct the jury that, “If from the evidence you find that the notes were given in accordance with an agreement for lumber to be delivered in the future, then the burden of proof is upon the plaintiff to show that it actually did send and deliver the lumber of the kind, quality and quantity called for by said agreement,” such defence not being open on the pleadings and the burden of establishing such a defence, if properly pleaded, being upon the defendant.</p>

<p>Contract on a recognizance in the sum of $300 entered into by the defendant George W. Green as principal and the defendant John J. McCarthy as surety under R. L. c. 168, § 30. Writ in the Municipal Court of the City of Boston dated November 2, 1918.</p> <p>Upon removal to the Superior Court the action was tried before Morton, J. The plaintiff introduced evidence of a judgment in tort in his favor against the defendant Green, and the issuance of an execution thereon for $151.24, damages, and $42.42, costs of suit. Subject to exceptions by the defendants, he was allowed to introduce in evidence the execution which issued on the judgment, the officer’s return, showing that the defendant Green was arrested and taken before a master in chancery, where he recognized with surety for his appearance within thirty days before some court having jurisdiction to examine him as a poor debtor, and the certificate of the master in chancery. The plaintiff then rested.</p> <p>The defendants offered evidence showing that after the date of the judgment and before the arrest of the judgment debtor the plaintiff had assigned the judgment to one Milton by an instrument in writing and under seal reciting that, for a consideration of $2, the plaintiff did “sell, assign, and transfer to said Henry S. Milton the judgment against George W. Green entered in the Superior Court for the County of Suffolk on August 29,1918, all and whatever sum or sums of money now due and coming due to me from George W. Green on the judgment aforesaid of said Boston to have and to hold the same to the said Henry S. Milton with power to collect the same in my name and as my attorney, hereunto duly authorized to his own use. It is expressly understood, however, that I the said Brazill are forever to be kept and saved harmless by the said Milton from all cost or charge hereafter in any way or manner, for and from the expense of the collection of the sum and sums hereby sold and assigned.” The evidence was excluded.</p> <p>At the close of the evidence, the defendants moved that a verdiet be ordered in their favor. The motion was denied. They then asked for the following rulings:</p> <p>“1. That unless the plaintiff, Peter E. Brazill, was the owner of the judgment and execution at the time of the giving of the recognizance, he cannot recover in this action.</p> <p>“2. That when a judgment has been sold and assigned and an-arrest made on an execution issued on said judgment after said sale and assignment, the recognizance given to release the debtor must run to the assignee, or if to the assignor, it must be expressed for the use and benefit of the assignee.</p> <p>“3. That no person foreign to a record can recover thereunder.</p> <p>“4. That any suit on a record no evidence can be offered to alter, change or amend the record.</p> <p>“5. That on all the evidence the defendants are entitled to a-verdict.”</p> <p>The rulings were refused. The judge ordered a verdict for the plaintiff in the penal sum of the recognizance; and the defendants alleged exceptions.</p>

<p>Contract, Of indemnity, Performance and breach. Negligence, Of contractor in elimination of grade crossing. Pleading, Civil, Demurrer. Practice, Civil, Case stated, Report.</p> <p>A railroad corporation, ordered by a decree under St. 1906, c. 463, Part I, §§ 29 et seq., to abolish a crossing at grade with a highway, made an agreement in " writing with a contractor to perform the work, the contractor agreeing to indemnify and save the railroad corporation harmless from all claims on account of injury caused by its acts or omissions to persons or property of others. One, who in the night time fell over a stake placed by the contractor, brought actions against the railroad corporation and the contractor, and the railroad corporation gave the contractor notice and an opportunity to defend the action against it. At the trial of the actions the plaintiff contended that the defendants were liable because the stake was left protruding and because it was left unprotected and unlighted. The jury found only that there was negligence in leaving the stake unprotected and unlighted, and found for the plaintiff in both actions. Held, that</p> <p>(1) The contractor, having been notified and given an opportunity to defend the action against the railroad corporation, was concluded as to all questions determined therein which were incident to a right of the railroad corporation to recover upon the agreement of indemnity;</p> <p>(2) The negligence which the jury found caused the injury was negligence which, as between the railroad corporation and the contractor, was negligence solely of the contractor;</p> <p>(3) The express language of the contract of indemnity did not require that it should be construed as one indemnifying the railroad corporation against the consequences of its own negligence; and the contract was valid;</p> <p>(4) The contractor must respond in damages to the railroad corporation by reason of the contract to indemnify.</p> <p>While, ordinarily, the only question open upon a report of an action at law under St. 1917, c. 345, upon a case stated without any decision being made is, whether the plaintiff can recover in any form of action, the judge in such a report by agreement of the parties may reserve the rights of the defendant upon its appeal, previously taken, from an order overruling a demurrer to the declaration.</p> <p>Where a judge under R. L. c. 173, § 105, reported for determination by this court the correctness of an order overruling a demurrer to the declaration in an action of contract, and also, under St. 1917, c. 345, reported the action upon a case stated, the defendant’s rights under an appeal from the overruling of his demurrer being reserved, and it appeared that the demurrer should have been sustained but that upon the case stated the plaintiff should recover, this court ordered that the plaintiff should have leave to amend, and that, upon the allowance of an amendment stating a cause of action founded upon the case stated, judgment should be entered for the plaintiff.</p>

<p>Contract for the alleged breach of an agreement in writing to employ the plaintiff as a salesman for one year from September 15, 1913, at a salary of $50 a week and all travelling and other reasonable expenses and a further compensation payable at the end of the term of two hundred and fifty shares of the capital stock of the defendant of the par value of $10 a share. Writ in the Superior Court dated June 8, 1914.</p> <p>The defendant filed a plea puis darrein continuance, setting up that, by reason of the judgment for the plaintiff in the action in the Municipal Court of the City of Boston, described in the opinion, and acceptance and acknowledgment by the plaintiff of satisfaction of an execution issued therein, the plaintiff was estopped from proceeding further with this action. The plea was heard upon evidence by Wait, J., and was overruled; and the defendant appealed.</p> <p>The defendant then filed an amended answer alleging that the proceedings in the Municipal Court and the judgment therein were res judicata of the subject matter of this action.</p> <p>The case first thereafter was tried before Bell, J., who ordered a verdict for the defendant after the jury, in answer to special questions, had found that the plaintiff had failed in his duty toward the defendant in a material respect which was not waived, that the defendant did not discharge the plaintiff on April 11, 1914, and that the question, whether the plaintiff was wrongfully discharged, was not tried in the Municipal Court of the City of Boston. The judge refused to rule, in effect, that a wrongful breach of the contract by the defendant was established by the judgment in the Municipal Court, and ordered a verdict for the defendant. Exceptions by the plaintiff were sustained in an opinion reported in 231 Mass. 430.</p> <p>The case again was tried before Quinn, J. Material facts and contentions of the defendant are described in the opinion. The jury found for the plaintiff in the sum of $4,365.40; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Election at trial, Exceptions. Election. Malicious Interference. Actionable Tort.</p> <p>Where the trial of an action, founded upon contentions by the plaintiff that the defendant wrongfully occupied premises owned by the plaintiff knowing that by so doing he was preventing the plaintiff from making a lease of them, proceeded, by reason of statements by the plaintiff’s counsel and statements by the trial judge assented to or treated with silence and without objection by the plaintiff’s counsel, as upon a claim for damages resulting from a malicious interference with the contract of letting about to be executed, and a verdict was ordered for the defendant, it is not open to the plaintiff, upon an exception to the ordering of the verdict, to contend in this court that he was entitled to go to the jury on a claim for trespass.</p> <p>The owner of a building cannot maintain against a lessee of a portion thereof, who, under a claim of right but wrongfully, is occupying a part of the basement under the premises leased to him, an action for malicious interference, through persistence in wrongful occupancy of the space in the basement, with the making by the owner of a contract of letting of another portion of the building to a third person who required the space for his use, where it appears that the only information that came to the defendant concerning the negotiations of the plaintiff with the third party was of a proposed contract which could not be completed unless the defendant agreed to the relinquishment of certain rights, admittedly his, through certain changes in his lease.</p> <p>An exception to the exclusion of a question put to a witness will not be sustained where it does not appear what answer to the question was expected.</p>

<p>Bill in equity, filed in the Superior Court on April 22, 1919, against Augustus D. McLennan (hereinafter called the defendant) and the city of Boston, to reach and apply in payment of a debt owed to the plaintiff by the defendant $200 alleged to be due to the defendant from the city of Boston “as salary for the office of first assistant assessor.”</p> <p>The defendant demurred to the bill on the following grounds: “1. That the defendant is an assistant assessor of the city of Boston and is therefore a public officer; that the money or amount alleged due or to become due and payable to the said assessor, if any, from the city of Boston is due or to become due to him for services rendered as such assistant assessor; that the city of Boston cannot be legally held as trustee in said action.</p> <p>“2. That such action is in contravention of the statutes and laws of this Commonwealth, and the plaintiff cannot maintain this action either in law or in equity.”</p> <p>The demurrer was sustained and a final decree was entered by order of Wait, J. The plaintiff appealed.</p>

<p>Two actions of contract, upon the agreements in writing described in the opinion, for compensation for services alleged to have been performed by one Charles E. Adams (the assignor of the plaintiff in the first action) and by the plaintiff in the second action relating to the procuring by the defendant of compensation for certain lands and flats taken by the Commonwealth by eminent domain. Writs dated September 22, 1916.</p> <p>In the Superior Court the actions were tried together before White, J. It appeared that the defendant’s directors on October 4 and November 1, 1894, and on February 6, 1896, previous to the authorization and making of the first contract described in the opinion, voted that John C. Watson and Charles E. Adams, be “authorized to take any and all such measures as they may deem advisable for the purpose of effecting a sale or other disposition of any part or parts of the” land and flats in question, their compensation being fixed in the vote of October 4,1894, at ten per cent and in the vote of February 6,1896, at fifteen per cent commission, and to be in addition to any salary paid them as president and treasurer. The vote of November 1, 1894, specifically provided that the “vote dated October 4, 1894, relating to compensation . . . in case a sale . . . shall be effected was intended to include and apply to any disposal thereof by the taking of said flats by any public authority by exercising the right of eminent domain.”</p> <p>Thereafter, largely through the efforts of Watson and Adams in bringing the question before public men and public organizations, hearings were had in the Legislature and St. 1895, c. 291, was enacted, providing for the appointment of a board of dock and terminal facilities. This board reported in January, 1897.</p> <p>Other 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 defendant then asked, among others, for the following rulings:</p> <p>“6. The alleged contract of May 21, 1897, a copy of which is annexed to the declaration . . . was invalid because it was contrary to public policy.</p> <p>“7. The alleged agreement of modification of the contract of May 21, 1897, a copy of which is annexed to the declaration . . . was invalid because it was contrary to public policy.</p> <p>“8. The evidence will not warrant a finding by the jury that the alleged agreement of January 23, 1900, a copy of which is annexed to the declaration . . . was made in good faith and with such regard for the interests of the defendant company on the part of its directors and officers as to make it a binding contract of the company.”</p> <p>“20. If the plaintiffs, or either of them, sought through personal solicitation or request, by letter or otherwise, to persuade any member of the State Legislature to support legislation which would authorize the harbor and land commissioners to purchase or take by eminent domain any of the defendant’s flats, the plaintiffs cannot recover in this action.</p> <p>“21. If the plaintiffs, or either of them, sought through personal solicitation or request, by letter or otherwise, to persuade the board of harbor and land commissioners or any member of said board to act in favor of a taking of the defendant’s flats by eminent domain, then the plaintiffs cannot recover in this action.”</p> <p>The rulings were refused. The jury found for the plaintiff in each action in the sum of $14,398.46; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries suffered on May 10, 1917, by a boy then three years and nine months of age, when he was run into at the easterly end of the Plainfield Street bridge in Springfield by a motor car driven by the defendant. Writ dated August 10, 1917.</p> <p>In the Superior Court the action was tried before Callahan, J. Material evidence is described in the opinion. The defendant requested the following rulings of law:</p> <p>“1. Upon all the evidence the plaintiff cannot recover.</p> <p>“2. In order to recover against the defendant, the plaintiff must maintain the burden of proof of the proposition that he was in the exercise of due care.</p> <p>“3. There is no presumption that the person in charge of the plaintiff at the time of the accident was in the exercise of due care.</p> <p>“4. St. 1914, c. 553, raises no presumption that the plaintiff was in the exercise of due care at the time of the accident.</p> <p>“5. If the plaintiff, unmindful of his safety, ran from the sidewalk to the Plainfield Street bridge directly in the path of the defendant’s automobile and was injured, he was negligent and cannot recover.</p> <p>"6. Unless the plaintiff was of sufficient age, capacity and intelligence to be properly permitted by his parents to cross such a street as Plainfield Street alone, he cannot recover.</p> <p>“7. If the plaintiff was of sufficient age, capacity and intelligence to be properly permitted to cross such a street as Plainfield Street alone, he was bound to take some active precaution for his safety in so crossing.</p> <p>“8. If the plaintiff took no active precautions for his safety in crossing Plainfield Street, he cannot recover.</p> <p>“9. There is no evidence that the plaintiff took any precautions for his own safety in crossing Plainfield Street.”</p> <p>The judge refused the first, second, fourth and ninth rulings requested, gave the third and sixth rulings as requested, and as to the fifth, seventh and eighth rulings, charged the jury in substance as follows:</p> <p>“Now, what is the rule of law as to his [the plaintiff’s] care in that situation? It is, what I stated some time ago, this: He must be in the exercise of that degree of care which a child of his age, his experience, his intelligence, and his alertness would exercise if he found himself in the same situation, confronted by a similar peril.</p> <p>“And on that issue you are first to determine all the facts of the accident itself. How did it happen? How did the boy leave the sidewalk in order to cross the street? Where was he going? Was he on his way to his own home on Birnie Avenue? If he was, he had a right to cross the street for the purpose of going to his home on Plainfield Street. How did he enter the street itself as distinguished from the sidewalk? Did he run or did he jog along? I have forgotten what the testimony was on that point. What do you say about it? And if he did, was that in and of itself a negligent act on the part of a child of his age, experience and intelligence? You are to say.</p> <p>“ Ordinarily for an adult to run out upon a highway without looking one way or the other to see whether vehicles were coming would be negligence, which would preclude him from recovering. That is not necessarily so, as a matter of law, in the case of a child of this age, experience and intelligence. It is a question of fact for you to determine.</p> <p>“Now, what would you say was the duty of that child, measuring his duty from his age and experience and his intelligence, as he undertook to cross that street? In running out in that way, if he ran as claimed by the defendant, was it the negligent act of such a child, or was it in the circumstances a careful act? Was the boy, in that particular situation, in that particular place, doing that which a child of his years would think to be a prudent thing, to run quickly across the street to go to his home? . . .</p> <p>“Now, if the boy, merely because he wished to get home quickly, was wholly unmindful of his safety, then he failed to use such intelligence and prudence as in his few years he had acquired, and he cannot recover. In other words, in order to recover, while the law does not hold him up to the obligation of proving that he exercised the degree of care that an adult would exercise, it does hold him up to prove that he exercised such care as his own age, experience and intelligence committed him to. If he did not actually use such intelligence and experience and alertness as he had already acquired, and was unmindful of his safety, he may not recover.”</p> <p>The jury found for the plaintiff in the sum of $500, and the judge reported the case to this court with the statement: “If my rulings were right, judgment is to be entered on the verdict; otherwise, judgment is to be entered for the defendant.”</p>

<p>Equity Jurisdiction, Specific performance, Res judicata. Equity Pleading and Practice, Plea, Demurrer. Contract, Construction, Validity, Performance and breach. Res Judicata. Perpetuities, Rule against. Restraint on Alienation. Damages, For breach of contract. Landlord and Tenant, Option for purchase or renewal contained in lease. Words, “ Controversies,” “Prosecutions.”</p> <p>The bar of a suit by a judgment of a court of competent jurisdiction in another suit for the same cause of action between the same parties or those in privity with them extends not only to those matters which were pleaded or litigated in the earlier suit but also to those which might have been pleaded or litigated; but, if the later suit is upon a different cause of action, the bar raised by the judgment in the earlier suit is limited to those matters which actually were litigated and determined.</p> <p>A New York corporation made with two individuals in 1892 a contract in writing purporting to settle controversies between the parties as to certain quarries and land in Vermont and to adjust and fix boundaries. The individuals after-wards assigned their interest in the contract to a third party, against whom in 1912 the corporation brought a suit in equity in a chancery court of Vermont to restrain him from trespassing and from quarrying upon certain property which the corporation claimed as its own and for an accounting. The property in controversy in that suit was set off to the defendant’s predecessors in the contract of 1892, but nowhere in the pleadings in that suit was any mention made or issue raised as to that contract. After a final decree for the plaintiff, the defendant by a supplemental bill in the nature of a bill of review sought to reverse the decree by setting up for the first time the contract of 1892, which he alleged was newly discovered evidence, but afterwards he voluntarily testified that the contract was not newly discovered evidence and the chancellor so found and, upon motion by his attorney, the supplemental bill of review was dismissed and a final decree was entered for the corporation. Subsequently the defendant in the Vermont suit assigned his interest in the contract of 1892 to a corporation which, joining that defendant and his predecessors in title as plaintiffs, brought a suit in equity in Massachusetts against a corporation which was a successor in title to the corporate plaintiff in the Vermont suit, seeking specific performance of the contract of 1892 or damages. Held, that</p> <p>(1) While the parties in the Massachusetts suit were not the same as those in the Vermont suit, they were their privies so far as concerned the contract of 1892;</p> <p>(2) The causes of action upon which the two suits rested were different; (3) The judgment in the Vermont suit was conclusive only upon issues therein actually tried and determined.</p> <p>In the action in Vermont above described, the predecessor of the defendant in the Massachusetts suit sought to enjoin the predecessor of the corporate plaintiff in the Massachusetts suit from continuing trespass upon certain land. Findings by the Vermont chancellor, who heard the case, were directly contrary to recitals in the contract of 1892 relating to knowledge by the plaintiff in that suit of an option of purchase of an interest in the land in dispute given to the defendant’s predecessor in title, purchase by the plaintiff of an interest in that land in defiance of that option, and removal by the defendant’s agents of bounds marking the line between the property of the parties. The chancellor also found that the plaintiff in that suit was "a purchaser in good faith for value of the land which it claims to own . . . without notice of right or a claim of defendants,” who were plaintiffs in the Massachusetts suit, “or any of their predecessors to any part thereof.” Further findings of the chancellor, and the decree based thereon, defined the boundaries between the land of the parties and were of such a character as to make impossible of performance a part, but not all, of the undertakings of the plaintiff in that suit as set out in the contract of 1892. The findings were made before the defendant, by the supplemental bill in the nature of a bill of review had, for the first time, brought the contract of 1892 into the case. There was no issue raised by the pleadings upon which a finding as to the good faith of the plaintiff in that suit in its acquisition of title was made necessary. In the Massachusetts suit, the defendant set up the proceedings and the decree in the Vermont suit in a plea in bar, which contained no recital as to the law of Vermont. Held, that</p> <p>(1) The findings of the chancellor in the Vermont suit as to good faith on the part of the plaintiff there (predecessor of the defendant in the Massachusetts suit) not being pertinent to any issue raised by the pleadings, were not res judicata as to any issue raised in the Massachusetts suit;</p> <p>(2) The differences in locations of boundaries, as described in the alleged contract of 1892 and in the findings by the chancellor in the Vermont suit and the decree based thereon, were not such-as of themselves on their face to justify a ruling on the plea as a matter of law that the contract was unenforceable;</p> <p>(3) While the alleged contract of 1892, if it had been presented in the Vermont suit and there found genuine, would have been decisive in favor of the contentions of the defendant there (the predecessor of the plaintiff in the Massachusetts suit) his failure to offer it in evidence at that trial, when it was not in issue on the pleadings, did not as a matter of law prevent his assignee from relying on it in the Massachusetts suit in so far as its obligations were not at variance nor inconsistent with adjudications in the Vermont suit upon issues there actually raised and determined;</p> <p>(4) The plea must be adjudged bad as a matter of law.</p> <p>Whether, under modern equity pleading and practice, the earlier rule prevails that the filing of a general plea is a waiver of a general demurrer, was not determined in a suit where a plea was filed "by consent” and “without waiving . . . demurrer,” and where the trial judge, stating that he was of opinion that an interlocutory decree should be entered adjudging the plea insufficient and overruling the demurrer, reported the case to this court for determination.</p> <p>A contract susceptible of two meanings, one lawful and the other not, will be supported rather than defeated, the presumption being, in the absence of something to show the contrary, that the parties intended to act in accordance with the law.</p> <p>Recitals in a contract, that it was made with a view to stopping certain “controversies’! between the parties as to certain land and certain "prosecutions” which had been “threatened” because of illegal attempts to remove bounds, and a certain conspiracy to deprive one of the parties to the contract of a right to exercise an option to purchase certain land, do not as a matter of law render the contract illegal, because they do not necessarily mean that the parties by their contract sought to stifle criminal prosecutions.</p> <p>A contract in writing and under seal, entered into between owners of adjoining land, both parties binding their heirs, executors, administrators and assigns, and containing recitals that it was made because of controversies as to boundary lines, a threatened prosecution of one party for attempted removal of fixed bounds, and a conspiracy by the same party to procure an interest in adjoining land in defiance of an option of purchase held by the other party, besides providing for the establishment of boundary lines and the execution of correcting deeds, provided that one of the parties would convey to the other party or his assigns at his or their option at any time within twenty-five years a nine tenths interest in a certain described parcel of real estate for a stipulated price and would “not enter into any deal” for the acquisition of a certain other adjoining lot or of an outstanding fractional interest in the lot first mentioned, but that if, owing to previous arrangements, he or they should acquire such lot or interest, it should be held for a like period of twenty-five years and conveyed upon demand to the second party and his associates and assigns upon payment of the amount paid therefor with interest and taxes. Held, that</p> <p>(1) The contract was not a mere option to purchase;</p> <p>(2) The contract created an equitable interest in land;</p> <p>(3) The contract was void as being in violation of the rule against perpetuities and the rule against restraints on alienation.</p> <p>If a suit in equity cannot be maintained to enforce specific performance of a contract creating an equitable interest in land because the contract is in violation of the rule against perpetuities and of the rule against restraints on alienation, neither can such a suit be retained for an assessment of damages resulting from a breach of the contract.</p> <p>The questions presented and determined in the suit above described have nothing to do with options for purchase or renewal contained in leases.</p>

<p>Wagering Contracts. Husband and Wife. Agency, What constitutes. Practice, Civil, Auditor’s report. Evidence, Presumptions and burden of proof.</p> <p>In an action by a husband and wife jointly against a stockbroker for money paid in transactions alleged to have been of the character described in R. L. c. 99, § 4, it appeared that the wife "never had a clear conception of the nature of these transactions, although in a general way she knew about them and authorized her husband’s acts,” and that, while she "never had an affirmative intent that there should not be actual purchases and sales . . . she intended to leave the . . . business to her husband.” The husband had the affirmative intention, required for recovery under the statute, that there should be no actual purchase or sale of securities in the transactions. Held, that these facts were a sufficient basis for a finding that the husband acted as the agent for his wife and that his intention bound the defendant so far as her interests were affected.</p> <p>Where an action is heard upon an auditor’s report, and upon other evidence which does not contradict nor affect the findings of the auditor, the report is •prima fade evidence and requires a judgment in accordance with its findings of fact unless, upon all the facts found, both primary and subsidiary, the report is reasonably susceptible of more than one inference.</p> <p>In an action against a stockbroker for money alleged to have been paid in transactions of the character described in R. L. c. 99, § 4, which was heard by a judge without a jury upon an auditor’s report and other evidence, findings of the auditor that the plaintiff’s orders in the transactions in question were for purchases or sales of less than one hundred shares of a particular stock at a given time, called in the trade transactions in “odd lots,” and that, subsequent to each order by the plaintiff for a purchase or sale which the defendant reported to the plaintiff had been executed by him, a certificate for the corresponding number of shares in that stock was delivered by or to the defendant to or from some other stockbroker and a check received for the price of the stock, establish the defence, stated in the statute, that actual pinchases and sales were made upon the order of the plaintiff; and such findings are not affected by further findings of the auditor, that the defendant during the period covered by the plaintiff’s transactions was at various intervals and in substantial amounts “short” of the stocks which he purported to be carrying for the plaintiff in the sense that on balancing up his books for the day a balance of such stocks sufficient to meet the demands of all customers then on his books was obtained only by including in the account, kept by the defendant to show his resources in such stocks, stocks owed the defendant by other brokers and stocks owed the defendant by other customers for whom the defendant had executed “short” sales.</p>

<p>Snow and Ice. Notice. Evidence, Presumptions and burden of proof, Return by constable. Constable.</p> <p>A return by a constable, upon a notice, directed under Sts. 1908, c. 305; 1913, c. 324, to the owner of certain real estate, of personal injuries caused by ice upon an adjoining sidewalk formed from water discharged by a defective spout attached to a dwelling house on the premises, that he served the notice upon a certain person, "the occupant of Suite 2 of the dwelling house,” is prima facie evidence of the facts therein stated.</p> <p>Where, at the trial of an action for causing personal injuries and death through the negligent maintenance upon a house of a defective water-spout which caused ice to accumulate upon an adjoining sidewalk, the evidence upon the question, whether a constable made service of the notice required by Sts. 1908, c. 305; 1913, c. 324, and whether such service was upon one who then was an occupant of the premises, is conflicting, the question is one of fact and is for the jury, and is not one upon which the judge could make a final determination.</p>

<p>Landlord and Tenant, Landlord’s obligation to repair.</p> <p>The obligation of the landlord of a two-family tenement house to a tenant and his invited guests relating to repair of a piazza used in common by the tenants, where no express agreement on the subject has been made, is that he shall exercise due care to keep the piazza in such condition as, to a person of ordinary observation, it would appear to be in at the time of letting.</p> <p>Where, at the trial of an action by a guest of a tenant in a two-family tenement house against the landlord for personal injuries received when a board of a piazza, used in common by the tenants, broke as the plaintiff stepped upon it, there is no evidence to show what was the condition, apparent or real, of the piazza floor at the time of the letting, or at any time before the accident to the plaintiff, it is proper to order a verdict for the defendant.</p> <p>At the trial of the action above described, it appeared that the accident to the plaintiff happened seven months after the tenant began his tenancy. The defective board, which was introduced in evidence, was twenty-two inches long and three and a half inches wide and, on the under surface at the end toward the street where it rested upon a crosspiece, was somewhat decayed, the remaining portions of it being in sound condition. It did not appear that any other part of the piazza flooring was defective, and there was no evidence, expert or otherwise, as to what caused the local decay in the board or how long it had existed. Held, that there was no evidence warranting a finding that the defective board was not in the same condition as to safety as it appeared to be in at the time of the letting, or a finding that, by exercising ordinary diligence, the defendant could have discovered or remedied the defect before the accident.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>At a trial of an action against a street railway company for personal injuries, received in 1917 when a horse drawn wagon which the plaintiff was driving was run into by an electric street car operated by the defendant, there was evidence tending to show that, previous to the accident, the street car was running down hill at a speed of twenty miles an hour northerly on the more easterly of two tracks upon a street in a city, that the plaintiff was driving his horse at an ordinary trot westerly toward the track on an intersecting street with a steep descending grade, that when his horse was on the track he “looked out” and “saw the car forty paces away from . . . [him] forty feet,” that he thought that he could “push . . . [his] way across by the time,” that owing to the steep grade of the street, he could not back the team, and that the street car struck the front wheels of the wagon. There also was evidence that, in violation of rules of the defendant, no bell was sounded nor other warning given of the approach of the street car. Held, that</p> <p>(1) In the absence of other evidence as to the surrounding circumstances, it could not be said as a matter of law that negligence of the plaintiff contributed to cause his injury;</p> <p>(2) Findings were warranted that the street car was negligently operated at an excessive speed and without warning signals;</p> <p>(3) No reason appeared for not applying the general rule that, at the trial of an action for personal injuries or property damage due to a collision between an electric street car and a team at intersecting streets, the questions of due care on the part of the plaintiff and of negligence on the part of the motorman are for the jury.</p>

<p>Petition, filed in the Land Court on December 3, 1919, under R. L. c. 128, § 107, for the amendment of a certificate of the title to land on Boylston Place in Boston, which stated that “So much of the above described land as is included within the limits of what is shown as Boylston Place on said plan, is subject to the rights of way and drainage set forth in an indenture between John James Dixwell et ais., dated September 30, 1853, duly recorded in Book 654, Page 90, in favor of said Apsey land, which is the land shown as such on a plan filed in the Land Registration Office in Case No. 5991.” The “Apsey land,” the petitioners alleged, was that formerly owned by the Brackett to whom rights of way were given by the indenture described in the opinion. After the decree, upon which the petitioners’ certificate of title was founded, was entered, the “Apsey land” was conveyed by mesne conveyances to the respondent. The amendment prayed for was the striking out, from that portion of the words above quoted, of the words, “way and” before the word “drainage,” and of the words, “in favor of said Apsey land, which is the land shown as such on a plan filed in the Land Registration Office in Case No. 5991.”</p> <p>The title to the “Apsey land” originally was registered by a decree following the decision reported in Apsey v. Nash, 229 Mass. 77, wherein the indenture, which is the basis of this decision, also was considered; and the petitioners herein alleged that that decree and the respondent’s “certificate founded thereon, do not register or mention the easement above described as appurtenant thereto, and no amendment of said certificate is necessary.”</p> <p>In the Land Court the petition was heard by Davis, J. Material facts found by him are described in the opinion.</p> <p>At the close of the evidence, the respondent asked for the following rulings:</p> <p>“1. That the indenture between John James Dixwell et al. and Jeffrey R. Brackett, dated September 30, 1853, created an easement for the benefit of said Brackett’s land.</p> <p>“2. That the easement created by said indenture was appurtenant to said land of Brackett and as an appurtenant right passed with the conveyance of said Brackett’s land.</p> <p>“3. That the destruction of the buildings on the premises referred to in said indenture did not terminate said easement.</p> <p>“4. That the language of said indenture is not such as to limit the duration of said easement and was not an easement established for the personal benefit of said Brackett.</p> <p>“5. That so much of the respondent’s land as is described or referred to in said indenture has the benefit of said easement and that said easement has not ceased to exist and is still a right appurtenant to said respondent’s land.”</p> <p>The rulings were refused, and a decree was ordered amending the certificate as prayed for; and the respondent alleged exceptions.</p>

<p>Devise and Legacy, Estate in fee or for life. Trust, What constitutes.</p> <p>A will in the handwriting of the testator read as follows: “I . . . being of sound mind and know what I want, do hereby bequeath to my dear wife all of my property real and personal ... to have and to hold, spend whatever pleases her. After her death whatever may be left, leave to my only sister’s child . . . five hundred dollars. The rest to be equally divided between our dear children or their heirs. ... If in the judgment of my dear wife she deems it best, furnish money to put our grandson . . . through Dartmouth College.” Held, that</p> <p>(1) The testator’s widow received an absolute estate in the real and the personal property;</p> <p>(2) The provisions as to persons other than the widow were to be interpreted as expressive of a desire and request which did not affect the absolute estate given to the widow;</p> <p>(3) The persons other than the widow had no right under the will enforceable either at law or in equity.</p>

<p>Contract or tort, (hereinafter called “The Ore Action”) begun by trustee process, by a corporation incorporated under the laws of the State of Maine and having a usual place of business in Boston against a corporation also organized under the laws of the State of Maine and having a usual place of business in Boston, the subject matter of the action being a controversy as to the ownership of certain ore extracted by the defendant from mines in the State of Arizona. Writ dated September 23, 1919. Also an action of</p> <p>Contract, (hereinafter called “The Water Action”) by the same plaintiff against the same defendant under a statutory provision of the State of Arizona, quoted below, for a proportion of the expense of pumping water from the defendant’s mines in Arizona, which were adjacent to the plaintiff’s. Writ dated September 23, 1919.</p> <p>The defendant filed an answer in abatement and a demurrer in each action. The pleadings are described in the opinion.</p> <p>The actions were heard together by Hammond, J., upon the defendant’s demurrers and answers in abatement without the introduction of any evidence, and upon the understanding of the judge and the parties that for the purpose of this hearing the facts alleged in the answers in abatement were assumed to be proved.</p> <p>The judge sustained the demurrers, adjudged the answers in abatement good and ordered that the actions be dismissed for want of jurisdiction; and the plaintiff alleged exceptions.</p> <p>Rev. Sts. of Arizona of 1913, §§ 4047, 4048 and 4051, were alleged in the declaration and in the answer in abatement in “The Water Action” to be as follows:</p> <p>“Section 4047. Whenever adjacent or contiguous mines, occupied and worked upon the same or upon separate lodes have a common ingress of water or by reason of subterranean communication of water have a common drainage, it shall be the duty of the owners, lessees or occupants of said mines so related to provide for their proportionate share of such drainage, or to prevent the water in such mine from flowing in or upon neighboring mines, thereby imposing upon them an unjust burden.</p> <p>■ “Section 4048. If any owners, lessees or occupants of any such mine shall fail or neglect to provide for the drainage thereof, and by reason of such failure or neglect, the owners, lessees or occupants of any adjacent or contiguous mine are compelled to pump or drain or otherwise provide for the water flowing in from such first mentioned mine, then, and in such event the owner, lessees or occupants of the mine so in default, shall pay, respectively, to those performing the work of drainage their proportion of the actual and necessary cost and expense of pumping, draining or otherwise providing for said water, and if they fail or refuse to make such payment, the same may be recovered by an action in any court of competent jurisdiction.”</p> <p>“Section 4051. When an action is commenced, as provided herein, to recover the costs and expenses for draining a lode or mine, it shall be lawful for the plaintiff to apply to the court for an order to inspect and examine the lodes or mines claimed to have been drained by the plaintiff, and upon affidavit that such inspection or examination is necessary for a proper preparation of the case for trial, the court shall grant an order for the underground inspection and examination of the lode or mine described in the petition. Such order shall designate the number of persons, not exceeding three, besides the plaintiff or his representative, who may examine and inspect such lode and mines, and take measurements for the purpose of showing the amount of water taken from the lode or mine or the number of fathoms of ground mined and worked out of the lode or mines claimed to have been drained, the cost of such examination and inspection to be borne by the party applying therefor. The court shall have power to cause the removal of any rock, debris, or any other obstacle in any lode or vein when such removal is shown to be necessary to a just determination of the question involved: provided, that no such order for inspection and examination shall be made except upon notice of at least three days, nor unless it appears that the plaintiff has been refused the privilege of making the examination by the defendant, his or their agent.”</p>

<p>Equity Jurisdiction, To enjoin ejectment of tenant by landlord, “He who seeks equity must do equity.” Landlord and Tenant, Ejectment for breach of covenant. Equity Pleading and Practice, Decree.</p> <p>The lessee of the second floor apartment of a two-family dwelling house on a street in a residential section of a city, upon which all the other houses were single-family dwellings costing from $10,000 to $20,000, cannot maintain a suit in equity to restrain the lessor, who occupied the first floor of the house, from ejecting him for breach of a covenant in the lease not to “make or suffer any unlawful, improper, noisy or otherwise offensive use” of the premises, where it appears that, upon the back piazza of the plaintiff’s apartment, provision had been made for the placing of a clothes reel, that the plaintiff would not purchase a reel and that, against the expressed wish of the defendant, the plaintiff’s wife persistently for months hung clothes for drying upon lines stretched upon a piazza over the front entrance to the house in full view of the neighborhood, which use of the premises a judge who heard the suit found to be a breach of the covenant which was wilful, irritating and in part at least was with intent to displease the defendant.</p> <p>The judge who heard the suit above described being of opinion that the consequences of a forfeiture would be a “very severe penalty for the fault; for the lease is valuable, especially at this moment,” ordered a decree restraining the defendant upon payment by the plaintiff of overdue rent and taxable costs from proceeding to eject the plaintiff for breach of covenant so long as the plaintiff refrained from using the piazza for drying or hanging out articles thereon. The defendant insisted upon her right of forfeiture. Held, that the defendant was entitled to have the suit dismissed with costs since equity will not afford its shield against the natural consequences of contumaciously wrongful conduct.</p>

<p>Petitions, filed in the Superior Court respectively on November 23 and on November 28,1919, under St. 1916, c. 269, § 20, appealing from the refusal of the Tax Commissioner to abate income taxes alleged by the petitioners to have been assessed upon salaries received by them from the United States as officers and employees of the federal government in violation of § 5 (b) of the statute.</p> <p>In the Superior Court the petitions were heard together by Hammond, J., upon an agreed statement of facts. Material facts are described in the opinion. The judge reported the cases for ' determination by this court upon the pleadings and the agreed facts.</p>

<p>Workmen's Compensation Act, Dependency. Parent and Child. Illegitimacy. Words, “Dependents,” “Family.”</p> <p>A woman married in Italy, after her husband had been committed to prison there for life, came to the United States and, in good faith believing that there was no impediment to her marrying a second time, went through a marriage ceremony with a man by whom she afterwards had children. Thereafter the putative father, the children and their mother lived together as one family and were supported by him until his death while in the employ of a subscriber under the workmen’s compensation act. Upon claims by the children for compensation under the act, it was held, that, although, being illegitimate, the children would not come within the description of “children” contained in St. 1911, c. 751, Part II, § 7 (c), as amended by Sts. 1914, c. 708, § 3 (c) ; 1919, c. 204, they might be found to be members of the employee’s family wholly dependent upon his earnings for support at the time of his death, and therefore to be dependents under the definition in St. 1911, c. 751, Part V, § 2, and to be entitled to compensation under Part II, § 7 of the act.</p>

<p>Contract, by a teacher in the public schools of Newburyport, for a balance of salary alleged to be due to him and for balances of salary alleged to be due to eleven other teachers who had assigned their claims to him. Writ dated March 1,1919.</p> <p>In the Superior Court the action was heard by O’Connell, J., without a jury, upon an agreed statement of facts from which it appeared that, by reason of absences of the twelve teachers from duty during January, 1919, the auditor and the treasurer upon order of the mayor had deducted from their salaries as approved by the school committee the amounts sought to be recovered in this action.</p> <p>The statement of agreed facts also contained the following: “None of the teachers named in the plaintiff’s declaration had obtained and filed any certificate of qualification, as provided by R. L. c. 42, § 29; but for many years the city of Newburyport has paid its teachers without such certificate having been filed. If under the instructions of the mayor the city solicitor has authority to waive the defence of that statute, the court may treat the same as waived;” and it was stated in the bill of exceptions that, “in connection with the matter of the filing of certificates of qualification mentioned in the statement of agreed facts, the city solicitor stated that if he or the mayor had authority to waive the filing of the certificates they both desired to do so.”</p> <p>The judge found for the plaintiff for the full amounts claimed in the declaration; and the defendant alleged exceptions.</p>

<p>Municipal Corporations, Officers and agents. Notice. Architect. Marlborough. Words, “Approved.”</p> <p>Officers of a city or of a town have only such powers to bind their municipality by - contract as are conferred by the express provision of a statute or by necessary implications therefrom.</p> <p>One having business relations with a city or a town is fixed with notice of the existence and of the scope of the authority of those professing to act as its agents.</p> <p>The mere fact, that a city received benefit from services rendered to it by an architect, does not render the city liable to pay for such services if it appears that they were rendered at the request of, and under an agreement purporting to have been made in its behalf by, persons acting without authority conferred by express provisions of a statute or by necessary implication from such provisions.</p> <p>Section 16 of the charter of the city of Marlborough, St. 1890, c. 320, providing, “The city council shall not authorize the erection of a school house or any addition thereto nor pass any appropriation for such purpose until plans of the same have been approved by vote of the school committee, and until such approval has been certified in writing to the council by the chairman of said committee,” vests in the city council the authority and duty to authorize the erection of school houses subject to the limitation that no final action can be taken until the plans have been approved by the school committee and the city council has been notified thereof in such a manner that it may be made a matter of final record.</p> <p>By the provision of the charter of the city of Marlborough, above quoted, the school committee is given no authority either expressly or by implication to employ an architect to prepare plans and specifications for the erection of a school house.</p>

<p>Bill in equity, filed in the Superior Court on February 13, 1918, by the W. B. Manufacturing Company, a corporation, who had adopted and registered a trademark, "W. B.,” against Joseph and Benjamin Rubenstein, comprising a co-partnership who, the plaintiff alleged, were doing business in the same building with the plaintiff and in competition with it and had adopted the name “R. B. Manufacturing Company” with the purpose of acquiring the benefit and advantage of the plaintiff’s trademark, the prayer of the bill being that the defendants be enjoined from such unlawful use of the name “R. B. Manufacturing Company,” that they be ordered to account and pay over to the plaintiff all profits made by them and each of them from the sale of any and all merchandise by them under the name of “R. B.” or “R. B. Manufacturing Company,” and that they and each of them be ordered to pay to the plaintiff the damages caused to the good will and business of the plaintiff by them.</p> <p>The suit was heard by Fox, J., a commissioner having been appointed under Equity Rule 35 to take the testimony. Material evidence and findings of the trial judge are described in the opinion. By order of the judge an interlocutory decree was entered that the defendants “and each of them, their agents and representatives be and hereby are enjoined from using the name R. B. Manufacturing Company or any abbreviation thereof, or any other name resembling in sound or appearance the name W. B. Manufacturing Company, or likely to be confused therewith in the conduct of their business,” and that the suit be referred to a master “to find and report what profits and damages if any the plaintiff” was “entitled to.”</p> <p>The master found that the net profit derived by the defendants from the sale of men’s and boys’ pants during the period of time in question was $4,411, and on the matter of damages found “that, under an order that the defendants account to the plaintiff for all profit derived from sales of pants during the period in question, the plaintiff will be compensated for all losses proved to have been sustained, and that for damages, as distinguished from an accounting for profits, the plaintiff is entitled to have damages assessed only in the nominal sum of $1.”</p> <p>Other material facts and rulings of the master are described in the opinion. The defendants objected and excepted to the report on the following grounds:</p> <p>“1. That the plaintiff offered evidence of its knowledge of the cost of similar goods which commonly sold in the market at prices similar to those received by the defendants, against the defendants’ objection and exception. There was no evidence that any of the witnesses for the plaintiff had personal knowledge of the character of the goods sold by the defendants, except the evidence of the contractor who manufactured some of them. The master erroneously ruled that the evidence was a proper matter for consideration as a part of the whole of the evidence in determining the cost where the defendants have not so kept their books that the cost might be determined with certainty.”</p> <p>“2. That the master erroneously ruled that losses sustained by the defendants in selling pants at less than cost should not be deducted from profits made in other sales of pants.”</p> <p>“ 3. That the master erroneously refused to permit the defendants to put in evidence showing that many of the customers, to whom they sold men’s and boys’ pants, were customers who had traded with the defendants prior to the alleged competition, who had never been customers of the plaintiff, and who knew the defendants personally; the master erroneously ruling that in the accounting for profits the plaintiff was entitled to all profits which the defendants had made from the sales of men’s and boys’ pants during the period in question and that it was immaterial whether the plaintiff might have sold all of the goods to all of the customers if the defendants had not made the sales.”</p> <p>“4. That after the taking of testimony before the master had closed, the master erroneously refused to permit the defendants to introduce newly discovered evidence of one Philip Rubenstein to prove that certain sales of men’s and boys’ pants on which the master ruled that the plaintiff is entitled to profits, were made by the said Philip Rubenstein as agent for the defendants in 1916, before the period of unfair competition began.”</p> <p>The defendants also moved that the report be recommitted to the master for the talcing of the testimony which was the subject of their fourth objection and exception.</p> <p>The exceptions and the motion to recommit were heard by Hammond, J., by whose order a decree, entitled a “final decree,” was entered overruling the exceptions to the master’s report, denying the motion to recommit, confirming the report, permanently enjoining the defendants as prayed for, and ordering them to pay to the plaintiff the sum of $4,719 and costs of suit. The defendants appealed.</p>

<p>Equity Jurisdiction, Specific performance. Contract, Performance and breach, Termination.</p> <p>Where, before the time fixed for the performance of a contract for the sale and conveyance of land and buildings and without fault of either party to the contract, a substantial part of the real estate is destroyed, the seller, if at the time fixed for performance he has not restored the premises to substantially the condition in which they were when the contract was made, cannot maintain a suit in equity to compel specific performance of the contract, and the purchaser may maintain a suit to have the contract declared terminated and to compel the repayment to him of an amount advanced by him toward the purchase price.</p>

<p>Tort by a longshoreman, employed by one Davis, an independent contractor, for personal injuries sustained on April 20, 1915, while shovelling coal in unloading a schooner lying at the defendant’s wharf and coal yards on the Taunton River in the town of Somerset, which was used by the defendant to bring coal from the State of New Jersey to his wharf. Writ dated July 23, 1915.</p> <p>The action previously was before this court upon exceptions saved by the defendant at a trial in the Superior Court, and by a decision reported in 231 Mass. 313, the exceptions were overruled. Thereafter, on December 18, 1918, judgment was entered for the plaintiff. On December 20, 1918, upon application by the defendant, a writ of error to the Supreme Court of the United States was issued. That court on March 1, 1920, dismissed the writ for want of jurisdiction and the defendant on March 31, 1920, moved in the Superior Court that the judgment for the plaintiff be “set aside.” The motion was denied and the defendant excepted. The mandate of the Supreme Court of the United States, dated April 23, 1920, was filed in the Superior Court on April 26, 1920, and on April 30 the plaintiff moved for affirmation of the judgment in his favor. The motion was allowed and the defendant excepted.</p>

<p>Tort, with a declaration in three counts. Writ dated October 23, 1916.</p> <p>The first count of the declaration was as follows: “And the plaintiff says that she is a person of good fame and credit, yet the defendant by its servants and agents, . . . wickedly contriving and maliciously intending to injure the plaintiff, destroy her character and reputation and expose her to trouble did falsely and maliciously accuse without any just and probable cause, that she had stolen certain merchandise from its store, whereupon it caused her to be arrested and she was arrested by means of said false and malicious accusations and imprisoned in a room in the building . . . £a court house] and without being brought before any court or without any complaint being made upon such accusation, she was permitted after such imprisonment to leave said room. Now the said plaintiff, in fact says that she was entirely clear and innocent of the said charge of larceny and that by means of the false and malicious accusations of the defendant, by its servants and agents she had suffered imprisonment and thereby she hath suffered great ignominy and reproach.”</p> <p>In the second count false imprisonment of the plaintiff was alleged and in the third count slander was alleged.</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 verdicts be ordered in its favor on the first and second counts. The motion was denied, and the jury found for the plaintiff on the first and second counts in the sum of $200. The defendant alleged exceptions, which, the bill of exceptions stated, “concern only the first and second counts.”</p>

<p>Negligence, Elevated railway. Practice, Civil, Judge’s charge.</p> <p>At the trial of an action of tort by a woman against a corporation operating an elevated railway for personal injuries alleged to have been received by the plaintiff when a passenger on a car of the defendant, there was evidence tending to show that, previous to her injury, the plaintiff was standing with her shoulder against a door opening from the middle of the side of the car, that the car was very crowded so that she had no opportunity to hold to a strap and could not move, that, as the train approached a station where she intended to alight and while it still was moving at the rate of ten or twelve miles an hour, the door against which she was leaning was opened by an employee of the defendant and she was pushed by the crowd to the station platform and was thrown to her hands and knees. Held, that the evidence warranted a finding of negligence of an employee of the defendant.</p> <p>The defendant at the trial of the action above described asked the judge to instruct the jury that it was “not negligent for a guard or brakeman to open the door of a car before the train comes to a stop as the train comes into a station.” The judge instructed the jury that “the opening of the door . . . standing by itself alone . . ., even although it was before the car had fully arrived at . . . [the station], is not negligent on the part of the defendant and does not give the right to the plaintiff in and of itself to recover.” Held, that the defendant had no ground for complaint of the manner in which the request was dealt with, and that there was no error in the instruction given.</p> <p>The defendant alleged an exception to certain portions of the judge’s charge at the "trial above described, arguing that the jury were permitted to find the defendant negligent simply because the car became crowded following the plaintiff’s entry; but, upon an examination of the whole charge, it was held, that the jury were instructed that the plaintiff could not recover merely because the door was opened before the car reached the station, nor because of the crowded condition of the car without reference to the other facts in the case; and that, from the whole charge, the jury could .not have understood that they could find the defendant to have been at fault simply because the car became crowded after the plaintiff became a passenger.</p> <p>The defendant, at the trial above described, also alleged an exception on the ground that the jury were instructed to find for the plaintiff if she was injured only by reason of the crowding of the other passengers, but it was held that, although some parts of the charge were open to that objection, taking the charge in its entirety, it appeared that the jury were correctly instructed and that there was no reversible error.</p>

<p>Way, Private. Deed, Construction.</p> <p>At the hearing of a petition for the registration of the title to a parcel of land, it appeared that the respondent owned land adjoining that of the petitioner, and that the petitioner claimed a right of way over the respondent’s land. The parties derived their titles from a common grantor, the entire parcel having been used by him as a pasture. The petitioner’s land was the first to be conveyed by the common grantor, and the deed described it as bounded by H Street, one boundary stated in the deed being northerly by “a proposed new street to be called ‘Range Road,’” and the words of the deed excluded from the conveyance a portion of the land on the comer of H Street and Range Road, referring to a plan “to be recorded herewith,” which showed the land bounded by the proposed street. Further provisions of the deed were: “The grantee is given no rights in the projected street to be called ‘Range Road’ Northwesterly of the Northwesterly lot line extended. The width of Range Road and the time when it is to be built is at the option' of the grantors. There shall be no inference from this deed that when Range Road is constructed or accepted by the Town that this grantee takes title to the centre of the road.” At the time of the conveyance no way was laid out or was in use over the grantor’s land, and the land was below the level of the street. Without having constructed any way, the common grantor conveyed to the respondent a tract of land immediately adjoining the northerly boundary of the land previously conveyed to the petitioner. Held, that the petitioner had no right of way over the land of the respondent.</p>

<p>Workmen’s Compensation Act, Employer. Agency, Existence of relation.</p> <p>A teamster in the general employ of a firm drove his team from his employer’s stable to the “stand” Of another firm, from whom he received only general directions to go to a freight house, get some wool and deliver it where ordered. In the doing of the work he was left entirely to himself. His wages were paid by his general employer and he was subject to that employer’s orders as to the management of the team. In unloading wool at a warehouse of a third firm, apparatus, furnished by that firm but attached by him to the load, broke away and he was injured. In proceedings under the workmen’s compensation act, it was held, that</p> <p>(1) In the absence of evidence showing control of the teamster by the second firm, it was presumed that authority over him remained in the general employer;</p> <p>(2) A finding was warranted that the teamster when injured was in the employ of his general employer;</p> <p>(3) A decree directing that compensation be paid by the insurer of the general employer was warranted.</p>

<p> Devise and Legacy. </p> <p>While, if a will in its entirety produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication and so mould the language of the testator as to carry into effect as far as possible the intention sufficiently declared by the whole will, the intent which calls for the application of such a rule must be one appearing from the provisions of the will and cannot be one founded on a contention based merely upon silence, conjecture or the relationship of the parties.</p> <p>A widower having three sons, the first of whom had married against his wishes and was childless and under a conservatorship, made a will establishing a trust fund, the income of which was to be paid to the conservator of the first son during that son’s life, and at that son’s death, one half of the principal was to be given to the testator’s heirs at law, the income of the other half of the principal to be paid to the first son’s widow so long as she remained single. If, at the death of the first son, he left no widow, but did leave children surviving him, the fund was to be paid to the children; and if, at the death of that son, he left no widow nor children surviving him, the fund was to be given to persons named in a subsequent clause disposing of all the residue of the estate. Sixteen months after the will was made and four years before the testator’s death, a daughter was bom to the son in question. That son died after the testator, leaving a widow and the daughter surviving him. Subsequently' the widow died, leaving the daughter surviving. Upon a bill in equity for instructions, filed by the trustee after the death of that son’s widow, it was held, that</p> <p>(1) There was nothing in the will that made certain what the testator intended should be done with one half of the trust fund upon the death of the widow of the son under conservatorship following the son’s death leaving surviving him both the widow and a child;</p> <p>(2) Such an intent could not be supplied;</p> <p>(3) The one half of the fund in question must be disposed of under the will as residuary estate.</p>

<p>Appeal to the Superior Court from a decree of the Probate Court upon a petition under R. L. c. 153, § 33, ordering “that the petitioner have the care and custody of . . . minor child of” the parties and that the respondent “pay to her toward the support of said minor child” certain sums at stated times and “that said minor child shall not be taken out of said Commonwealth without the consent of her father or of the court; and that the father shall be permitted to. see and be with such child at such times and places as may be agreed upon by the parents or as may be fixed by the court.”</p> <p>Two of the objections filed with the appeal were:</p> <p>“4. That said decree is not founded on the allegations of the petition.</p> <p>“5. That the allegations of the petition disclose that it was brought under R. L. c. 153, § 33, and the decree is not under that section.”</p> <p>In the Superior Court, the respondent moved “that an order be made sustaining the appeal and ordering the dismissal of the petition of the appellee for the reason that the petition was brought under R. L. c. 153, § 33, that the judge of the Probate Court did not find that the appellant either had failed without just cause to provide suitable support for the appellee or had deserted her or that she for justifiable cause was actually living apart from him, so that the said court had no authority to issue any decree upon said petition and said decree is void.”</p> <p>The motion was heard by Hammond, J. The respondent asked for the following rulings:</p> <p>“ 1. Upon a petition brought under R. L. c. 153, § 33, and founded upon the allegations necessary to give the court jurisdiction under that section the Probate Court has no jurisdiction to make a decree under R. L. c. 153, § 37.</p> <p>“2. A petition brought under R. L. c. 153, § 33, gives to the respondent, because of the allegations necessary to support such a petition, no warning that remedy is to be sought under R. L. c. 153, § 37.</p> <p>“3. Upon the record it is apparent that the petition in this suit was brought under R. L. c. 153, § 33.</p> <p>“4. Upon the record it is apparent that the decree entered in this suit was entered under R. L. c. 153, § 37.</p> <p>“5. Upon a petition brought under R. L. c. 153, § 33, and founded upon the allegations necessary to give the court power under that section the Probate Court has no power to make a decree under R. L. c. 153, § 37.</p> <p>“6. A petition brought under R. L. c. 153, § 33, gives to the respondent, because of the allegations necessary to support such a petition, no warning that remedy is to be sought under R. L. c. 153, § 37, and entering a decree under § 37 deprives the respondent of rights without due process of law.”</p> <p>The judge gave the third and fourth rulings requested, refused the others, made an interlocutory order denying the motion, and, being of opinion that the correctness of the order ought to be determined by this court before further proceedings, reported the case for determination of the correctness of the rulings.</p>

<p>Mortgage, Of real estate. Attorney at Law. Notice. Bona Fide Purchaser. Equity Pleading and Practice, Appeal.</p> <p>While a bill in equity, by one member of an alleged partnership against a second member and others, in association with whom it was alleged that the first defendant had wrongfully used partnership property, was pending, no notice of lis pendens having been filed, the plaintiff gave a mortgage of his interest in certain real estate, which was partnership property and was described in the bill in equity as such, to his counsel in the suit to secure the payment of a note for $5,000, given by him to his counsel for services rendered and to be rendered in the suit. Later a final decree was entered directing the plaintiff to convey his interest in the partnership property to the defendant partner upon payment by him of a certain sum, and thereafter by a “supplemental bill” the defendants sought a discharge of the mortgage. Held, that</p> <p>(1) As counsel for the plaintiff, the mortgagee had actual notice of the pend-ency of the proceedings;</p> <p>(2) The mortgage was not valid against the defendants;</p> <p>(3) A decree should be entered directing the discharge of the mortgage.</p> <p>A judge, who heard the “supplemental bill” above described, after the mortgagee had appeared and had filed an answer, reported the case to this court for determination of the correctness of his ruling ordering a decree directing the discharge of the mortgage. It did not appear from the report that the value of the mortgagee’s services as counsel was determined. The mortgagee contended that the decree should provide for the payment to him, instead of to the plaintiff, of a sum which the final decree in the main suit had directed to be paid by the defendants to the plaintiff. Held, that, under the circumstances, such a provision should not be included in the decree.</p> <p>No appeal lies from an interlocutory order for a decree.</p>

<p>Marriage and Divorce. Husband and Wife. Superior Court. Jurisdiction. Domicil. Words, “Lived together.”</p> <p>A husband and wife after their marriage in this Commonwealth resided for three weeks in another State where the husband had his domicil and then came to a city in this Commonwealth where they remained for five weeks, during which the husband “worked in . . . [a] restaurant,” thinking that he might settle in that city if he liked the conditions but never forming a definite intention to remain there. Thereafter they returned to the first State, where they lived until, over seven years later, the wife deserted the husband. Less than five years later, the husband brought a libel for divorce in this Commonwealth. Held, that the court had no jurisdiction of the libel, because the libellant had not lived in this Commonwealth for the five years last preceding the filing of the libel as required by It. L. c. 152, § 5, and the parties never had lived together as husband and wife in this Commonwealth as required by § 4.</p> <p>The provision of R. L. c. 152, § 4, that, with certain exceptions, a decree of divorce cannot be granted, “if the parties never have lived together as husband and wife in this Commonwealth,” means that, with those exceptions, the court has no jurisdiction of a libel for divorce if the parties never have been domiciled in this Commonwealth dining their married life.</p> <p>A man with a domicil in the State of Rhode Island, who comes to a city in Massachusetts, does not lose his domicil in Rhode Island and acquire one in Massachusetts until he has a definite and fixed intention to remain in and to become a resident of this Commonwealth.</p>

<p>Two actions of tort, the declaration, as amended, containing counts, described in the opinion, respectively charging malicious prosecution, abuse of legal process and conspiracy by unlawful means to cause the plaintiffs to leave the defendant town. Writs dated March 3, 1919.</p> <p>In the Superior Court the defendant demurred to the declaration as amended. The demurrers were heard by Hammond, J., and were sustained. Thereafter judgments were entered for the defendant; and the plaintiffs appealed.</p>

<p>Grade Crossing. Railroad. Statute. Damages, Apportionment of expense of rebuilding bridge over railroad. Constitutional Daw, Obligation of contracts, Police power, Public service corporations.</p> <p>St. 1908, c. 542, amending St. 1906, c. 463, Part I, §§ 23, 25, by broadening and extending their provisions so that, where previously they related only to the construction, maintenance and repair of highway bridges over railroad locations, after the amendment they applied to cases where there was need of the “rebuilding of a highway bridge or any structural change or renewal for the purpose of strengthening or improving it,” while it could have no retroactive effect as to vested rights, conferred an authority coextensive with the statute which it amended, which thereafter must be read as if it originally had been in the amended form, and neither the provisions of the amending statute nor those of the statute as amended are restricted to railroad crossings altered after the amendment.</p> <p>Upon proceedings under St. 1906, c. 463, Part I, §§ 23, 25, after their amendment by St. 1908, c. 542, a highway bridge in a town, which had been built over a railroad in accordance with a decree following proceedings under Pub. Sts. c. 112, §§ 131, 132, ordering that the town should bear “all future charges for keeping said bridge and the approaches thereto in repair,” may be ordered to be rebuilt and a part of the expense of such rebuilding may be assessed upon the railroad.</p> <p>The provisions of St. 1908, c. 552, are not inconsistent with those of St. 1906, c. 463, Part I, §§ 23, 25, as amended by St. 1908, c. 542.</p> <p>A railroad corporation is a creature of the Commonwealth engaged in the doing of a public business and is bound by any reasonable statutes for the regulation of this business which the Legislature chooses to enact.</p> <p>St. 1908, c. 542, amending St. 1906, c. 463, Part I, §§ 23, 25, is not obnoxious to the provisions of either the Federal or the State Constitution.</p> <p>A part of the expense of rebuilding a highway bridge over a railroad or of making any structural change or renewal for the purpose of strengthening or improving it upon proceedings under St. 1906, c. 463, Part I, §§ 23, 25, as amended by St. 1908, c. 542, may be assessed upon the railroad corporation although it receives no benefit therefrom.</p> <p>It could not be ruled as a matter of law, at the trial of an application under St. 1906, c. 463, Part I, § 27, for a revision of a report of a special commission relative to the rebuilding of a highway bridge, previously constructed over a railroad in the town of Brookline, that the railroad corporation received no benefit from such rebuilding, because thereby there was furnished at a crossing over the railroad a bridge more substantial and safe than the previous bridge and thus possible delay and damage which might be incident to a defect in the previous bridge were prevented.</p> <p>In the proceedings under St. 1906, c. 463, Part I, §§ 23, 25, as amended by St. 1908, c. 542, above described, which were new proceedings, the intent and understanding of the parties to the proceedings under Pub. Sts. c. 112, §§ 131,132, which resulted in the construction of the original bridge, were held to be immaterial.</p> <p>Where, after a decree of county commissioners that a highway bridge over a railroad in a town should be rebuilt, the town carried the decree into effect "by agreement of all parties . . . and . . . paid the charges and expense of rebuilding” previous to a decree in proceedings instituted by it under' St. 1906, c. 463, Part I, §§ 23, 25, as amended by St. 1908, c. 542, the railroad company, at the trial of an application under § 27 of the amended statute for a jury to revise the report of the special commission appointed under the amended §§ 23, 25, is entitled to a ruling that it need not pay to the town interest upon that part of the amount so expended by the town which afterwards was apportioned to be paid by the railroad company.</p>

<p>Two actions op tort under R. L. c. 51, §§ 17, 18, for damages resulting from conscious suffering and the death of Harold L. Braley, alleged to have been caused by a defect and want of repair in Plum Island bridge. Writs dated May 26,1917.</p> <p>In the Superior Court the actions were tried together before Lawton, J. Material evidence is described in the opinion. At the close of the evidence, by order of the judge, the jury found for the defendant in each action; and the plaintiff alleged exceptions.</p>

<p>Constitutional Law, Taxation, Distribution of income tax, Equal protection of laws, Due process of law. Tax, On income.</p>

<p>Complaint, received and sworn to in the Municipal Court of the City of Boston on February 13, 1920, charging the defendant with unlawfully selling intoxicating liquor on February 12, 1920, “not having then and there any license, authority or appointment, according to law, to make such sale.”</p> <p>On appeal to the Superior Court, the defendant filed a motion to quash the complaint, a motion to dismiss the complaint for want of jurisdiction, and a plea in bar. The questions raised by the motions and the plea related to the jurisdiction of the courts of the Commonwealth in cases involving the sale of intoxicating liquor since the passage of the Eighteenth Amendment to the Constitution of the United States and of 41 U. S. Sts. at Large, 305, the national prohibition act, commonly called the Volstead .act, more specifically of Title II of that act. The motion to quash was made both upon this ground and on the ground that no offence was set forth in the complaint because the laws of the Commonwealth in respect to the sale of intoxicating liquor are no longer in effect since the passage of the constitutional amendment and of the Volstead act.</p> <p>The motions and the plea were heard by Dubuque, J., and were overruled.</p> <p>The defendant then was tried before the same judge. Material -evidence at the trial is described in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. On all the evidence the jury must return a verdict of not guilty.</p> <p>“2. No offence against the laws of the Commonwealth is disclosed by the evidence as having been committed by the defendant on the date alleged in the complaint and the jury must return a verdict of not guilty.</p> <p>"3. On the date alleged in the complaint there was in effect no law of the Commonwealth'making the sale of intoxicating liquor unlawful.</p> <p>“4. The Eighteenth Amendment to the Constitution of the United States, which was in effect on the date alleged in the complaint, supersedes the laws of the Commonwealth relating to the sale of intoxicating liquor enacted prior to the said Eighteenth Amendment, and no law of the Commonwealth was in effect on the date of the complaint unless enacted subsequent to and for the purpose of carrying into effect the said Eighteenth Amendment.</p> <p>“5. On the date alleged in the complaint there was no law of the Commonwealth carrying into effect the provisions of the Eighteenth Amendment to the Constitution of the United States.</p> <p>“6. On the date, alleged in the complaint the only law in effect in this Commonwealth relating to the sale of intoxicating liquors was .chapter 83 [85] of the Acts of the Sixty-sixth Congress of the United States, first session (Volstead act).</p> <p>“7. Chapter 83 [85] of the Acts of the Sixty-sixth Congress of the United States, first session (Volstead act), which was in effect -on the date of the complaint, superseded all laws of this Commonwealth relating to the sale of intoxicating liquors which were in existence on the date of the complaint.</p> <p>“8. Neither this court nor any court of the Commonwealth has jurisdiction of any offence committed against chapter 83 [85] of the Acts of the Sixty-sixth Congress of the United States, first session.</p> <p>“9. According to the decision of the Supreme Court of the United States, in the case of Rhode Island v. Palmer, Attorney-General, [253 U. S. 350] rendered on the seventh day of June, 1920, in the absence of appropriate legislation by State legislators to put into effect the Eighteenth Amendment to the Constitution of the United States, the only law relating to the sale of intoxicating liquors is chapter 83 [85] of the Acts of the Sixty-sixth Congress of the United States, first session, and said chapter 83 [85] is the paramount law in all the states.</p> <p>“10. According to the decision of the United States Supreme Court in the case of Rhode Island «. 'Palmer, Attorney-General, rendered June 7, 1920, the Legislature of this Commonwealth not having enacted on or previous to the date alleged in the complaint any legislation appropriate to the enforcement of the Eighteenth Amendment to the Constitution of the United States, the only law in the Commonwealth on that date was chapter 83 [85] of the Acts of the Sixty-sixth Congress of the United States, first session, and this court has no jurisdiction of any offence against that law.</p> <p>“11. The Congress of the United States under the Eighteenth Amendment to the Constitution of the United States had power to make laws relating to the sale of intoxicating liquor and on the date of the complaint had made such a law, to wit, chapter 83 [85] of the Acts of the Sixty-sixth Congress of the United States, first session, which was the supreme law of the land, and the laws of the Commonwealth relating to the sale of intoxicating liquor enacted prior to that date are inconsistent and at variance with said chapter 83 [85] and, therefore, the laws of the Commonwealth relating to that subject are void and of no effect.”</p> <p>The judge refused so to rule. The defendant was found guilty.</p> <p>After the verdict and before the entry of judgment, the defendant filed a motion in arrest of judgment, raising the same questions that were raised by the motions and plea filed before trial and by the requests for rulings herein set forth. This motion also was overruled.</p> <p>The judge thereupon reported the case for determination by this court.</p> <p>The case was argued at the bar in July, 1920, before Rugg, C. J., Braley, De Courcy, Crosby, & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>. Bill in equity, filed in the Supreme Judicial Court on September 12, 1919, seeking to enjoin certain named individuals and the "officers and members of a certain voluntary unincorporated association known as the Hotel and Restaurant Employees’ International Alliance Union, Local No. 34,” from interfering with the business of the plaintiff.</p> <p>The suit was heard by Pierce, J., by whose order a final decree was entered on October 10, 1919, perpetually enjoining “the defendants, their agents and servants, . . . from interfering with the plaintiff’s business by picketing in such a manner as to annoy, harass, and intimidate the plaintiff’s customers or intending customers, or his [its] present employees or those desirous of entering his [its] employment, or by inducing by any means whatever any employee now or hereafter under written contract of employment to violate said contract.” On October 14 the plaintiff appealed from the final decree.</p> <p>The plaintiff also requested a report of the material facts in the case. The single justice filed such a report on October 25. Material facts found by him are described in the opinion. On October 27, the plaintiff filed a request for the following rulings of law:</p> <p>“ 1. Upon the facts proved in this case the plaintiff is entitled to an injunction restraining the carrying on of the strike against the plaintiff by any means whatever.</p> <p>“2. Upon all the evidence in the case the strike now being maintained by the defendants is an illegal one.</p> <p>“3. The legality of the strike must be determined by the character of the demands presented to the plaintiff by the defendants.</p> <p>“4. A strike for a purpose undisclosed to the employer is an illegal strike.</p> <p>"5. The demands in this case were formulated by a vote of the union and there is no evidence that any officer had authority to alter those demands.</p> <p>“6. If the demands were as stated in Exhibit 3 [not otherwise described or shown in the record], the refusal to grant them being the paramount purpose of going out on strike or one of the purposes for which the strike is maintained, it is immaterial what the immediate impelling motive which caused the men to leave their employment on September 5,1919, was.</p> <p>“7. Any picketing which is annoying, harassing, or intimidating to the plaintiff’s customers or his present employees is illegal.</p> <p>"8. All organized picketing or parading in front of the plaintiff’s premises as well as any outcries by pickets or paraders is a nuisance and illegal.</p> <p>“9. Any system of organized picketing in front of or near to the plaintiff’s premises which interferes with the plaintiff’s customers, employees, or business is illegal.</p> <p>“ 10. A combination to persuade customers not to patronize the plaintiff is in the nature of a boycott and is illegal.</p> <p>“11. Any combination to picket the plaintiff’s restaurants which has the effect of intimidating, annoying, or harassing the plaintiff’s employees under contract of employment with the plaintiff is illegal.</p> <p>“ 12. Any inducing of employees under contract of employment to violate their contracts is illegal.”</p> <p>Upon the paper containing the foregoing requests, the single justice made the following indorsement: “The within requests for rulings were held for consideration when the final decree was filed and thereafter could not be given or refused.”</p> <p>On November 14,1919, the plaintiff filed the petition for attachment for contempt, which is described in the opinion. The defendants filed a motion for a trial by jury under St. 1911, c. 339. The motion was heard by Carroll, J., who reported it to the full court for consideration of these two questions:</p> <p>“1. Is St. 1911, c. 339, constitutional?</p> <p>“2. If St. 1911, c. 339, is held to be constitutional, can a petition for contempt be heard by a single justice as to those allegations contained therein which do not charge crimes; or, if any of the allegations in the petition charge the commission of crimes, is the defendant entitled to a trial by jury under said statute as to all the allegations in the petition, even though some of them do not allege crimes?”</p>

<p>Contract, Implied. Interest. Municipal Corporations.</p> <p>An action of contract for money had and received cannot be maintained against a municipal corporation for three per cent of an amount of money which, after it had become due to the plaintiff as the general contractor for the building of a school house, the defendant during the pendency of litigation begun by subcontractors under St. 1909, c. 514, § 23, had held on deposit in a bank account containing its general funds, receiving three per cent interest on the entire fund, where it appears that the contract between the parties provided that, if at any time there should be evidence of any hen or other claim for which, if established, the defendant “or the said premises might be liable, directly or indirectly, and which is chargeable” to the plaintiff, the defendant had the right to retain out of any payments then due or thereafter to become due to the plaintiff a sum sufficient “to completely indemnify it against any such claim,” and that the contract contained no provision for the payment of interest received by the defendant upon the amount of the payments so deferred.</p>

<p>Petition, filed on August 9, 1919, for the establishment of exceptions alleged to have been saved by the petitioner at the trial before Jenney, J., of an action of Charles Shuhnan against the petitioner, in which the jury found for the plaintiff, the defendant’s bill of exceptions having been disallowed after hearing by the trial judge under the circumstances described in the opinion.</p> <p>The defendant’s proposed bill of exceptions was as follows:</p> <p>"This was an action of contract brought by the plaintiff to recover the wages due to him under the terms of an oral agreement entered into sometime in May, 1917, by and between the plaintiff and the defendant, whereby the plaintiff agreed to work for the defendant for a period of two years from said time and the defendant agreed to employ the plaintiff for such period. The plaintiff claimed that the defendant agreed to pay the expenses of moving him and his family to Greenfield, $35 a week, and one and one-half time for over-time. If it should develop that the plaintiff could take entire charge of the defendant’s tailoring establishment, then $40 per week should be paid to him. The defendant contended that he had agreed to pay and had paid the plaintiff $18 per week. The plaintiff remained in the defendant’s employ (under the terms of said agreement) until February, 1918, when he left because, as he said, the defendant refused to pay him the balance of the money his due.</p> <p>“The pleadings are incorporated herein by reference, and made a part of this bill of exceptions.</p> <p>"At the close of this evidence the defendant made a written motion that on all the evidence the plaintiff could not recover. The court denied the motion and the defendant duly excepted.</p> <p>“The above is the only evidence material to the questions raised by this bill of exceptions.</p> <p>“The jury returned a verdict for the plaintiff.</p> <p>"Wherefore the defendant, being aggrieved by the refusal of the court to grant his motion for a directed verdict, now prays that his exception be allowed.”</p> <p>The commissioner to whom the petition was referred found that the trial of the action “was of some length, occupying a portion of two days.” Other facts found by the commissioner are described in the opinion.</p>

<p>Probate Court, Appeal, Motion to dismiss appeal for failure to prosecute. Jurisdiction. Supreme Judicial Court.</p> <p>An appeal from an order, decree or denial of a Probate Court or of a judge of that court under St. 1919, c. 274, §§ 1, 2, is not pending before the full court of the Supreme Judicial Court until the papers specified in R. L. c. 157, § 21, shall have been prepared and filed in that court and the entry fee required by R. L. c. 204, § 6, has been paid.</p> <p>A motion for dismissal of an appeal from a decree of the Probate Court under St. 1919, c. 274, § 1, for want of prosecution in failing to prepare and file with the full court of the Supreme Judicial Court'the papers required by § 2 of that statute and by R. L. c. 157, § 21, cannot be made before the full court of the Supreme Judicial Court, but should be made in the Probate Court.</p>

<p>Practice, Civil, Exceptions. Notice. Rules of Court. Constitutional Law, Due process of law.</p> <p>If a party to an action, who has saved exceptions to rulings at the trial of the action and has filed a bill setting forth his exceptions, fails to give to the adverse party the notice in writing of the filing of the bill required by Rules 52 and 28 of the Superior Court (1915), a motion to dismiss the exceptions on that ground is correct procedure.</p> <p>Rules 52 and 28 of the Superior Court (1915), requiring a notice in writing of the filing of a bill of exceptions to be given to the adverse party, is well within the power of that court and a dismissal of exceptions for want of compliance therewith violates no constitutional right of the excepting party.</p> <p>Findings by a judge, who heard upon affidavits a motion to dismiss a bill of exceptions because the notice in writing of its being filed required by Rules 52 and 28 of the Superior Court (1915) was not given, will not be reversed by this court if warranted by one view, of conflicting evidence.</p> <p>The delivery by the party filing a bill of exceptions merely of a copy of the bill to the adverse party is not a compliance with Rules 52 and 28 of the Superior Court (1915) as to the giving of a notice in writing of the filing of the bill.</p> <p>A delay of two months and sixteen days after the filing, twenty days after the trial of an action, of a bill of exceptions, in filing a motion to dismiss the exceptions for failure to give the notice in writing required by Rules 52 and 28 of the Superior Court (1915) does not constitute as a matter of law a waiver of rights under those rules.</p>

<p>Contract for a balance of $1,198.03, alleged to be due upon a note, secured by a mortgage of real estate, after foreclosure of the mortgage. Writ dated March 15, 1919.</p> <p>In the Superior Court the action was tried before N. P. Brown, J. It appeared that a certificate of the entry on July 2, 1915, to foreclose the mortgage was recorded on August 3, 1915. Other material facts and rulings by the judge are described in the opinion. By order of the judge the jury found for the defendants; and the plaintiff alleged exceptions.</p>

<p>Petition, filed on July 21, 1920, for a writ of mandamus commanding Fred J. Burrell, then the Treasurer and Receiver General of the Commonwealth, "not to distribute or pay over in accordance with the provisions of” St. 1919, c. 363, “any portion of the tax for the year 1920 raised from the petitioner under the provisions of” St. 1916, c. 269, or of St. 1919, c. 324.</p> <p>The respondent demurred on August 24, 1920, and on August 25, 1920, the case came on to be heard before Braley, J., upon the petition and the demurrer and by him was reserved for determination by the full court. When the case was called for hearing before the full court, the respondent filed the plea in abatement described in the opinion and the petitioner filed the motion to amend, also there described.</p>

<p>Workmen's Compensation Aat, Injuries to which act applies. Agency, Scope of employment.</p> <p>H an employee in the dyeing room of a textile factory, whose duty was the operation of two machines known as “jigs,” after he had complained several times on different occasions to his foreman of a defective condition of ventilators in the roof which caused water to drip upon the cloth in the machines and had received assurance that the defective condition would be remedied, with a view to promoting his employer’s interest but without the knowledge or permission of his foreman goes upon the roof of the room to remedy the defect and is injured by a fall while so doing, the injuries so received must be held not to have arisen out of or in the course of his employment.</p>

<p>Conversion. Evidence, Of ownership, Relevancy and materiality, Of value. Damages, In tort. Warehouseman. Officer.</p> <p>At the trial of an action of tort against a deputy sheriff for the conversion of onions which he had attached upon a writ in an action against a third party, evidence is not admissible of statements made by that third party, not in the presence of the plaintiff, tending to show that he owned the onions.</p> <p>At the trial of the action above described, testimony of the defendant, called by the plaintiff, that, as deputy sheriff, he had sold the onions six days after the attachment, was admissible; testimony by him that, shortly before the sale, a demand was made upon him for the onions by the plaintiff’s attorney, although admissible in the discretion of the trial judge, was immaterial, as proof ,of a demand after the attachment was not essential to the maintenance of the action; and evidence of the price at which the onions were sold at the sale six days after the attachment was competent as bearing upon the market value of the onions at the time of their attachment.</p> <p>At the trial of an action of tort for conversion against a deputy sheriff, who had attached, in an action against a third person, onions of which the plaintiff claimed ownership and which, when attached, were stored in a warehouse, testimony by the warehouseman is admissible, independently of entries in his books, if he kept any, that the plaintiff had made the arrangements with him for the storage of the onions.</p> <p>The measure of damages to be awarded to the plaintiff in an action against a deputy sheriff for an unlawful attachment of onions of the plaintiff upon a writ in an action against a third person is the value of the onions at the time of the attachment, although six days after the attachment and after the plaintiff had demanded the onions of him the defendant sold the onions as perishable property for a price greater than their value at the time of the attachment.</p>

<p>Tort, with a declaration containing a third count based upon an unlawful interference with the plaintiff’s business as the proprietor of a barber shop. Writ dated November 16, 1915.</p> <p>In the Superior Court the action was tried before Irwin, J. The material evidence on the question of liability is described in the opinion. It was stated in the report by the trial judge that the plaintiff testified in direct examination, on the question of damages, “That because of the distribution of the cards customers were kept away. That distribution of the cards hurt his business. That people remained or stayed away that used to patronize him because of these cards. That the damage he sustained thereby was about $800 or $900. . . . There was no testimony indicating the weekly earnings of the plaintiff in his business after the trouble began, nor showing how the plaintiff sustained the damage of $800 or $900, and there was no evidence from which an estimate of the damage alleged to have been sustained could be made. There was no evidence of the names or identity of any customers who refrained from patronizing the plaintiff’s shop as a result of the distribution of the cards, nor any evidence, other than that of the plaintiff which herebefore appears, that any customers refrained from patronizing the plaintiff as a result of the distribution of cards by the defendant or by any other person, or that if he lost any customers they refrained from patronizing him because the defendant made such distribution, or some other person.”</p> <p>The jury found for the plaintiff on the third count of the declaration in the sum of $220, and the judge thereupon ordered a verdict for the defendant and reported the case for determination by this court, with the stipulation that, if the evidence warranted the finding for the plaintiff, it was to stand; otherwise, judgment was to be entered on the verdict ordered for the defendant.</p>

<p>Libel for divorce, filed on April 29, 1919, alleging desertion and adultery.</p> <p>The libel was heard by N. P. Brown, J. Material facts found by him are described in the opinion.</p> <p>The libellant asked for a ruling as a matter of law, that the agreement signed by the libellant with James W. Moore as trustee, and described in the opinion, “was not a bar to the court awarding alimony to the libellant.” The ruling was refused. The Iibellee asked for a ruling that “there should be no alimony or support for the child awarded as the release is a bar to any claim by the wife or on behalf of the child,” and the judge so ruled. To these rulings the libellant saved exceptions.</p> <p>Although the exceptions were pending, a decree nisi was entered, granting the divorce on the ground of desertion and including no order as to alimony or allowance for support of the minor child of the parties; and the libellant alleged exceptions.</p>

<p>Contract, What constitutes, Novation. Frauds, Statute of.</p> <p>In an action of contract, it appeared that the owner of certain property employed the plaintiff to find a purchaser of the property for him, that, after extended negotiations with the defendant, an offer by the owner to sell the property for a certain price was transmitted to the defendant by the plaintiff and was accepted, that the plaintiff was to be paid one third of the purchase price, that the owner’s offer was accepted by the defendant at a meeting of the three and at that time the plaintiff agreed to release the owner from his claim for services and commission in consideration of the defendant’s promise to pay it, and that the defendant so agreed with the plaintiff, who released the owner, the owner stating that the arrangement was satisfactory to him. The sale never was consummated. Held, that</p> <p>(1) The promise by the defendant was for a consideration;</p> <p>(2) By the agreement of the three parties, a novation was effected by which the owner was discharged from liability to the plaintiff and the defendant by his promise was substituted as the plaintiff’s debtor;</p> <p>(3) The contract was not subject to the provisions of the statute of frauds;</p> <p>(4) The plaintiff was entitled to recover.</p>

<p>Negligence, Street railway, In use of highway, Contributory. Proximate Cause. Practice, Civil, Judge’s charge, Exceptions.</p> <p>At the trial of an action of tort against a street railway company for personal injuries received in a collision of a motor car, which the plaintiff was driving, with an electric street car of the defendant at the intersection of streets in a thickly settled district of a city, there was evidence tending to show that the street car with a dim headlight was approaching the intersection of the streets at about nine o’clock at night in December, that it was running at the rate of from forty to fifty miles an hour and that no signal or warning of its approach was given; that the plaintiff approached the intersection of the streets from the motorman's right and, shortly before reaching it, stopped where he supposed a person riding with him lived, that, before proceeding, he sounded his horn and looked up and down the intersecting street and listened and neither saw nor heard any street car or other vehicle approaching, and that when he reached the street ear track he was travelling at the rate of six miles an hour; that after the collision the street car jumped the track, ran against a hydrant and turned completely around, while the motor car was driven one hundred and-sixty-five feet by the force of the collision. The jury viewed the scene of the accident. Held, that</p> <p>(1) There was evidence of negligence of the defendant’s motorman;</p> <p>(2) It could not be said as a matter of law that the plaintiff was negligent.</p>

<p>Libel for an annulment of marriage, filed on August 24, 1918.</p> <p>A guardian ad litem of the Iibellee, a minor, was appointed.</p> <p>In the Superior Court the libel was heard by Hammond, J. The material evidence is described in the opinion. At the close of the evidence and arguments the judge was requested by the libellant upon the evidence to rule that the marriage be annulled on the ground that he was falsely imprisoned at the moment of marriage. The judge refused so to rule and stated: “All the time he (Day) was in the custody of the officer he was legally in his custody and the marriage cannot be held to have been a marriage forced upon him by reason of an illegal arrest. He was entitled to a trial or hearing as a matter of right and, if he had asked it, it would have been granted him. Evidently there was a continuance to enable him to take, if he so desired, the remedy which the statute affords of marrying the other party. At first there was a plea of ‘not guilty’ and later a retraction and the plea of ‘nolo’ and a dismissal of the complaint when it was found that the parties were married. The libel is dismissed.” The libellant alleged exceptions.</p>

Petition, filed on June 19, 1916, for a jury to assess damages alleged to have resulted to the petitioner from access to his place of business being cut off temporarily during the laying of a trunk sewer on River Street in Fitchburg.

<p>Negligence, Employer’s liability: federal employers’ liability act, Violation of rule. Evidence, Violation of rule as evidence of negligence, Of rule, Of custom. Custom.</p> <p>At the trial of an action for personal injuries, brought under the federal employers’ liability act against a railroad corporation by a flagman in its employ in interstate commerce, there was evidence tending to show that, after the train upon which he was at work stopped in order that cars might be switched to a side track, the plaintiff in accordance with his duties started to walk back from the rear of the train between the rails to insure full protection to his train from a train following, that after he had gone a distance of five car lengths, his train without warning backed down upon him, that it was the duty of the engineer, before proceeding to back the train, to give a whistle signal. There was evidence that the signal was given. The plaintiff testified that he did not hear it, although he admitted that he paid no attention to the train after leaving it. Held, that</p> <p>(1) The jury could have found that, had the whistle sounded, the plaintiff would have heard it;</p> <p>(2) The jury could have found that the signal was not given, and that the failure to give it contributed to the plaintiff’s injury;</p> <p>(3) The question of the defendant’s negligence was for the jury.</p> <p>At the trial above described, there was evidence tending to show that, owing to the length of time that elapsed between the stopping of the train and its being backed, the engineer might well have inferred that the plaintiff had proceeded far enough back in the performance of his duties to make the giving of the signal unnecessary; but it was held that the questions, whether the failure to give the signal in accordance with the defendant’s rule caused the plaintiff’s injury, and whether the plaintiff assumed the risk of his injury in all the circumstances, were for the jury.</p> <p>At the trial of the action above described, it was error to permit the plaintiff to testify that one of the defendant’s examiners had told him that a train was not to move backward until a signal was given by the flagman who was protecting it in the rear, and that when he was injured the engineer had backed the train without receiving such a signal, it appearing that there was no such written or printed rule of the defendant and it not appearing that the examiner had authority from the defendant, express or implied, to make such a rule, to give such instructions, or to decide that the printed rules of the defendant should be so construed.</p> <p>In the circumstances above described it was error to refuse to instruct the jury at the request of the defendant that “ the action of the conductor or engineer in causing the train to back without getting a signal from the plaintiff as rear end flagman so to do was not negligence.”</p> <p>At the trial above described, the plaintiff testified that there was a practice that no train protected by a flagman should be backed until a signal came from the flagman. The record showed no evidence tending to prove that this method of . transacting its business was known to the defendant or to its officers, nor any evidence from which it could be inferred that it was assented to by them. The judge refused a request of the defendant, that the jury be instructed that upon all the evidence they could not find that "there was a practice or custom that freight trains engaged in switching movements should not back without getting from the rear end flagman the signal so to do.” Held, that</p> <p>(1) The defendant was not bound to observe a practice as to the moving of its trains adopted by its employees without its knowledge or acquiescence;</p> <p>(2) The instruction asked for should have been given.</p>

<p>Contract, Consideration, Validity, What constitutes. Apprentice. Damages, Liquidated.</p> <p>By a contract in writing between, a father, his minor son and the son’s employer, a corporation, the son became an apprentice to the employer for three years to learn the trade of a machinist, the employer agreed to furnish the son with suitable work and supervision and faithfully to instruct him at its shop, and the father, in consideration of the employment of his son, released all claims to the son’s wages and stipulated that they should be paid directly to the son and agreed that, if the son should violate any terms of the contract, he, the father, was to pay to the employer the sum of $100 “as ascertained and liquidated damages for such breach of contract.” In an action by the employer against the father for breach of the contract, it was held, that</p> <p>(1) There was a consideration for the contract as between the employer and the father;</p> <p>(2) Although the contract was not a statutory indenture of apprenticeship nor made in accordance with the provisions of R. L. c. 155, it was valid and enforceable at common law by the employer against the father;</p> <p>(3) Not being a statutory agreement of apprenticeship, the employer was not compelled by R. L. c. 155, § 11, to seek redress in the Probate Court, but might proceed at common law;</p> <p>(4) The provision as to liquidated damages was valid.</p> <p>A contract in writing, purporting to be between a corporation and an individual, may be enforced by the corporation against the individual if he signed it and it was assented to and accepted by the corporation, even if the corporation’s name never was signed to it.</p>

<p>Deceit. Railroad, Location, Grade crossing proceedings. Practice, Civil, Finding by judge, Exceptions. Estoppel. Evidence, Competency, Opinion: expert. Agency, Scope of authority.</p> <p>A location of a railroad made in 1867 included the northerly portion of a certain lot of land. By a decision and decree of a commission for the abolition of a grade crossing, which was confirmed by the Superior Court, the base line of the location of the railroad was moved northerly a distance greater than that between the southerly line of the original location and the northerly line of the lot. The decision also contained, in a description of a portion of the lot which was taken for slopes, references to the southerly line of the original location of the railroad as coinciding with the northerly line of the lot. There were no express words in the decision, plan or decree of the commission discontinuing the original location of the railroad and no statement of the width of any new location. After the confirmation of the decree, the owner of the lot, representing it to be free from any incumbrance, conveyed it to one, who afterwards, contending that the land still was subject to the easement of the original location, brought against the grantor an action of deceit for damages resulting from the alleged false representation. Held, that it could not be implied or inferred from the provisions of the decision, plan and decree of the commission that the original location of the railroad was discontinued.</p> <p>The action above described was heard by a judge without a jury, who found that the railroad had not abandoned the original location on the land in question. Upon an exception by the defendant, the record did not set forth all the evidence. Held, that no error of law appeared in the finding.</p> <p>The mere production, by the railroad corporation at the hearing before the commission above described, of a plan which did not show the easement of the original location, could not be ruled as matter of law, at the trial of the action of tort above described, to create an estoppel of the railroad corporation from claiming the existence of such easement, where it did not appear that the owner of the land at the time of the hearings before the commission, the defendant in the action of tort, was induced by such conduct of the railroad corporation to do what otherwise he would not have done or to refrain from doing what he otherwise would have done, or that that corporation knew or had reasonable cause to believe that such owner would so act or refrain from acting to his harm.</p> <p>An exception to the exclusion of a question asked of an expert witness at a trial will not be sustained where it appears that the information sought by the question was given in answer to a later question asked by the judge.</p> <p>It is not reversible error to exclude at a trial a question of an expert as to his interpretation of a boundary shown on a plan in evidence.</p> <p>Where, at the trial of an action for deceit, it appears that false representations, which were relied on by the plaintiff as the foundation of the action, were not made by the defendant but were made by his agent acting within the scope of his authority, it is not error to refuse a request for a ruling, “The plaintiff cannot recover, unless material statements made by the defendant were untrue, and known by the defendant to be untrue, unless such statements were made as of her own knowledge;” as the defendant would be bound by the agent’s fraud if the agent made the representations knowing them to be false, or if he made them as of his own knowledge, although the defendant did not specifically authorize them and had no knowledge that they were made.</p>

<p>Negligence, Causing death, Trespasser. Wanton and RecMess. Misconduct. Evidence, Competency, Opinion: expert.</p> <p>If a boy, who, without any knowledge on the part of or invitation from the proprietor, approached a factory by the main driveway leading to it, went around it to the rear, proceeded there by a grassed-over path toward its boiler room to procure empty spools such as a previous occupant of the factory had given to him, and, seeing some electric transformers standing twenty inches above the ground a few feet from the path with wires running therefrom to the factory, went to them and, seizing a wire, is killed by reason of the high voltage of the electricity, there can be no recovery under St. 1907, c. 375, either in an action against the proprietor of the factory or in an action against an electric company which owned, controlled and maintained the transformers and wires, unless it be shown that the boy’s death was caused by wilful, wanton or reckless misconduct on the part of the defendant, the boy being a trespasser when he was killed.</p> <p>At the trial together of the actions above described, there was evidence tending to show that the proprietor of the factory, less than three months previous to the accident, had authorized the electric company to place the transformers and wires on the factory grounds at some convenient place and had permitted them to remain there, where they still were owned and controlled by the electric company, that he had been informed of a break in the insulation of a wire and immediately had notified the electric company, and that the electric company had not remedied the break. There was no evidence warranting a finding that either defendant had any reason to anticipate that the boy would approach the dangerous transformer, much less put his hand upon the wires, and it appeared that he had not taken hold of the wire where the insulation was broken. Reid, that, while in the light of the accident it seems that the apparatus might well have been enclosed or otherwise guarded, the evidence did not warrant a finding that either defendant had been guilty of wilful, wanton or reckless misconduct which had caused the boy’s death.</p> <p>St. 1907, c. 375, amending R. L. c. 171, § 2, so that the liability, thereby constituted, of a person'or corporation for the causing of death by his or its agents or servants is based upon their negligence instead of upon their gross negligence, did not undertake to create a lower standard of duty where a penalty is sought under the statute because the injury results in death than that which exists at common law when the injured person survives.</p> <p>Testimony, at the trial of the actions above described, of a companion of the boy who was killed, “ I told him [immediately before the accident] not to touch it [the wires] and he said he was not afraid,” was held, to have been competent to prove that the plaintiff’s intestate was aware of the danger of his action and was not in the exercise of due care when killed.</p> <p>At the trial of the actions above described, after all the facts with reference to the transformers, wires and voltage had been placed before the jury, an expert called by the plaintiff was asked, whether in his opinion “that whole thing is safe or unsafe,” the plaintiff expecting an opinion as to the danger of leaving the apparatus unenclosed. The testimony was excluded. Held, that the exclusion was proper, the subject matter being one to be determined by the jury and not one upon which the opinion of an expert was competent.</p>

<p>Tort for personal injuries caused by the plaintiff being run into by an electric street car on Chicopee Street in Chicopee. Writ dated August 28, 1916.</p> <p>In the Superior Court the action was tried before Irwin, 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. The jury found for the plaintiff in the sum of $557; and the defendant alleged exceptions.</p>

<p>Two petitions, filed in the Superior Court on February 12, 1914, and August 2, 1915, for the assessment of damages for the taking by the respondent of certain land and water rights under Sts. 1900, c. 365; 1902, c. 351, for the purposes of its water supply.</p> <p>The petitions were heard by Lawton, J., upon an agreed statement of facts. Material facts are described in the opinion. “Exhibit A,” there referred to, embodied the permission given by the predecessor in title of the petitioner to the predecessor in title of the owner of the dam described in the opinion, and read as follows:</p> <p>"Dover, July 18, 1838. To the Eagleville Mfg. Co., Gent: We hereby give you the privilege of bounding and butting a dam on our land in Holden adjoining land of Joseph Hubbard, we reserving the right of damage that may accrue in consequence thereof.</p> <p>Signed John Battelle, Jr. John Shumway.”</p> <p>"Exhibit B” read as follows:</p> <p>“To whom it may concern: This may certify that we, the subscribers, Thomas J. Davis and Charles Chaffin, referees to determine and appraise damages of flowage and taking gravel in the west part of Holden on land of Messrs. Battelle and Shumway and Joseph Hubbard, by means of a certain dam erected by LeBaron Putnam and others, viz: We award to Battelle and Shumway three dollars to be paid annually forever as damages for flowing their land, and five dollars for gravel taken to build the dam; to Joseph Hubbard we award two dollars to be paid annually forever, and five dollars for gravel taken to build the dam; all of said sums we award to be paid by the mill owners below or by said LeBaron Putnam during the continuance of flowing said land.</p> <p>Holden, May 8, 1848. Thomas j Davigj</p> <p>Charles Chaflán.”</p> <p>“Exhibit C” was as follows:</p> <p>“Know all men by these presents that we, Hannah Battelle and Abigail Shumway, both of Dover in the County of Norfolk, being owners and tenants in common of a certain tract of land and a water privilege in Holden in the County of Worcester, which land is in part overflowed by a dam erected upon said privilege with the consent of said Battelle and Shumway by LeBaron Putnam of said Holden do for ourselves and our heirs and assigns let lease and license said Putnam his heirs and assigns to maintain said dam at its present height and to flow said land as much as said dam at its present height will flow the same he the said Putnam his heirs and assigns paying said Battelle & Shumway their heirs and assigns four dollars per year rent therefor commencing on the tenth day of October in the year 1848 and paying the same sum yearly on the tenth day of October each and every year so long as the said Putnam his heirs and assigns shall keep up any part of said dam. And the said Putnam for himself and his heirs and executors, administrators, covenants with said Battelle and Shumway their heirs and assigns that he and his heirs, executors, administrator shall and will pay to said Battelle and Shumway or their executors, administrators or assigns said sum of four dollars every year as aforesaid. And said Putnam for himself, his heirs, executors, administrators, assigns further covenants with said Battelle & Shumway that he will and his heirs and assigns shall at any time when said Battelle & Shumway or their heirs, executors, administrators and (sic) assigns shall pay to him or to his heirs, executors, administrator or assigns the sum of eight hundred dollars he or his heirs, executors, administrators or assigns shall and will relinquish all his right and title and interest in the said dam and give the same up to said Battelle and Shumway or their heirs, executors, administrator or assigns forever and give good sufficient deed to effect the same.</p> <p>In witness whereof we the above named parties herein named set out [our] hand and seal this ninth day of May in the year of our Lord eighteen hundred forty-nine.</p> <p>In presence of LeB. Putnam, (seal) ■</p> <p>Amos W. Shumway. Hannah Battelle, (seal)</p> <p>Abigail Shumway, (seal) ”</p> <p>The judge of the Superior Court found and ruled that the documents, Exhibits A, B and C, and agreed facts in connection therewith might “be considered on the question of damages over and above the hereinafter stipulated sum of $1,750,” and, being of the opinion that such interlocutory finding and ruling ought to be determined by this court before any further proceedings in the trial court, and with the consent of the parties, reported the cases for that purpose upon the agreed statement of facts and a stipulation, in substance, that, if the exhibits above set out should be excluded from consideration in assessing the petitioner’s damages, then those damages in the two petitions should be assessed at $1,750; and, if the exhibits should be taken into consideration, then the damages should be assessed by an assessor to be appointed by the Superior Court.</p>

<p>Land Court, Appeal, Finding by judge. Attachment.</p> <p>Upon an appeal to this court from a decree of the Land Court upon a petition for the registration of the title to land, only questions of law are open; and a finding of fact by the trial judge without a report of evidence will not be reviewed.</p> <p>An attachment of real estate made by virtue of a writ which never was entered in court has no validity although it is not discharged of record.</p>

<p>Tort for personal injuries received when the plaintiff was run into from behind by a motor car driven by the defendant. Writ dated April 9, 1919.</p> <p>In the Superior Court the action was tried before Sisk, J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in his favor on the grounds that on all the evidence the defendant was not negligent and that the plaintiff was not in the exercise of due care. The motion was denied. The jury found for the plaintiff in the sum of $1,000; and the defendant alleged exceptions,</p>

<p>Probate Court, Exceptions. Attorney at Law.</p> <p>An exception to a refusal by a single justice, hearing an appeal from a decree of the Probate Court modifying a final account of an executor by lessening the amount allowed for services and disbursements of counsel, to rule that the amounts charged in the account for such items were not unreasonable, brings ■to this court no question of law.</p>

<p>Workmen’s Compensation Aet, Procedure: appeal to Superior Court, appeal to Supreme Judicial Cotut; Evidence. Evidence, Judicial notice.</p> <p>Under St. 1911, c. 751, Part III, § 11, as amended by Sts. 1912, c. 571, § 14; 1917, c. 297, § 7, while it is a condition precedent to the jurisdiction of the Superior Court to enter a decree upon a decision of the Industrial Accident Board that copies of the order or decision of that board shall have been filed in the Superior Court and that such copies shall be certified, such copies need not be filed within ten days after the decision of the board unless it is desired to appeal from the decree of the Superior Court to be entered thereon.</p> <p>The Superior Court has no jurisdiction to enter a decree in such a proceeding if the copies of the proceedings filed with it are not certified.</p> <p>At a hearing by the Industrial Accident Board of the question, whether injuries received by an employee, who was a claimant in proceedings under the workmen’s compensation act, were caused by the serious and wilful misconduct of the employer so that the claim came under the provisions of St. 1911, c. 751, Part II, § 3, the board can take judicial notice of general safety rules and regulations and machinery standards established by the State board of labor and industries under St. 1913, c. 813, as amended by St. 1916, c. 308.</p> <p>A failure by an employer to install a safety device upon a machine as required by the general safety rules and regulations and machinery standards of the State board of labor and industries, adopted under the authority of St. 1913, c. 813, if it results in injury to an employee, does not as a matter of law constitute “the serious and wilful misconduct” on the employer’s part referred to in St. 1911, c. 751, Part II, § 3.</p> <p>While, ordinarily, the remanding by the Superior Court of a claim under the workmen’s compensation act to the Industrial Accident Board for further hearing is within the discretionary power of the court, a decree so remanding a case may be reviewed and should be reversed if its sole purpose is to direct the board’s attention to matters of fact which the board already has fully considered or to require a reconsideration of rulings of law which were correct.</p> <p>The insurer in proceedings under the workmen’s compensation act has a right to appeal from an interlocutory decree of the Superior Cotut remanding the claim to the Industrial Accident Board for further hearing upon certain evidence specified in the decree, where it appears that the certified copies, required by St. 1911, c. 751, Part III, § 11, as amended by Sts. 1912, c. 571, § 14; 1917, c. 297, § 7, as a basis for a decree of the Superior Court, were filed in the Superior Court more than ten days after notice of the decision of the Industrial Accident Board, and that consequently there could be no appeal from a final decree to be entered in the matter by the Superior Court.</p>

Tort for personal injuries. Writ dated December 29, 1916. In the Superior Court, the action was tried before Hall, J. Material evidence is described in the opinion. At the close of the evidence, by order of the trial judge, the jury found for the defendant; and the plaintiff alleged exceptions.

<p>Petition, filed in the Probate Court on March 19, 1920, by the Boston Safe Deposit and Trust Company at the request of beneficiaries of a trust under the will of Walter G. Chase, late of Boston, seeking the appointment of the petitioner as a co-trustee to act with the trustee who was named in the will as the sole trustee.</p> <p>By the provisions of the will constituting the trust, Arthur H. Russell, Esquire, was named as trustee, and, in the event that he should die before the testator or should be unable or unwilling to serve as such trustee, or should die or become unable or unwilling to serve before the duties incident to the trust were completed, the petitioner was nominated to succeed him.</p> <p>The petition was heard by Grant, J., who “ruled on the evidence, which neither party requested to have taken down by a commissioner, that if the prayer of the petition was within the discretion of the court, . . . [he] . . . would not grant it, but that as a matter of law the court had exhausted its power by the previous appointment of said Russell whose title was derived from the instrument itself.” He “ also ruled that the court under the statutes has no power to make an appointment except where the testator has omitted in his will to appoint a trustee or where the trustee declines, resigns, dies or is removed before the objects of the trusts are accomplished and such instrument makes no adequate provision for supplying the vacancy.”</p> <p>A decree dismissing the petition accordingly was entered, and Fannie S. Chase, mother of the testator and a beneficiary under the trust, appealed.</p>

<p>Tort for personal injuries. Writ dated March 5, 1918.</p> <p>In the Superior Court the action was tried before Raymond, J. Material evidence is described in the opinion. The judge at the close of the evidence ordered a verdict for the defendant and reported the case to this court for determination.</p>

<p> The Boston Firemen’s Relief Fund. Boston. Mandamus. </p> <p>A member of the repair and construction division or of the veterinary service or of the fire alarm branch of the fire department of the city of Boston is, under St. 1909, c. 308, as amended by St. 1911, c. 134, a member of “said department” and entitled to vote for the twelve members of that department, who, with the fire commissioner, constitute The Boston Firemen’s Belief Fund; and if the corporation denies to him that right, a writ of mandamus may be issued upon his petition to compel the corporation to recognize it.</p> <p>It is not a condition precedent to the granting of the petition for a writ of mandamus above described that the petitioner shall have made an express demand upon the corporation for a recognition of his right if it appears that such a demand would have been futile.</p>

<p>Bill in equity, filed in the Superior Court on April 11, 1917, and afterwards amended, by William IC. Porter, one of the three sons of Flora M. Porter, late of North Adams, who were entitled as remaindermen after a life estate in their father, Arthur C. Porter, to real estate in North Adams of which their mother had died seised, against Fannie E. P. Porter, the wife of the plaintiff’s father by a second marriage, and the North Adams Savings Bank, seeking to set aside a sale and conveyance of the real estate to the defendant Fannie E, P. Porter in foreclosure of a power of sale mortgage placed upon the property by the plaintiff’s mother in her lifetime.</p> <p>In the Superior Court, the suit was referred to a master. Material findings of the master are described in the opinion. After the filing of the master’s report the suit was heard by N. P. Brown, J., upon a motion by the defendants for a recommittal of the report to the master and a motion by the plaintiff that the report be confirmed, and, the motion to recommit the report being denied and the report confirmed, it was further heard upon the pleadings and the master’s report. Findings and rulings of the judge and the order for a decree are described in the opinion.' The defendants alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1920, and afterwards was submitted on briefs to all the Justices except the Chief Justice.</p>

<p>Contract, What constitutes, Of insurance. Agency, Liability of agent in contract. Insurance, Fire, Agent’s liability.</p> <p>An automobile dealer cannot maintain an action of contract against an insurance agent for breach of an oral agreement to procure and deliver to the plaintiff a valid policy of insurance against fire upon automobiles from time to time owned by the plaintiff in his business, or to insure such automobiles as the plaintiff might from time to time own and have on hand in connection with his business as an “automobile dealer,” or to procure and deliver to the plaintiff a valid policy of insurance upon automobiles from time to time owned by the plaintiff in his business and, pending the issuance of such a policy, himself “to insure such automobiles,” where, on the plaintiff’s own uncontradicted and uncontrolled statements and admissions, it appears that he knew that the defendant was a general agent and dealt with him as such, and that he did not expect the agent to insure the cars himself but relied on such contract as the agent was to get for him from the insurance company, and it also appears that the agent procured from an insurance company and delivered to the plaintiff and the plaintiff accepted a policy binding the parties according to its terms.</p> <p>Where an agent acts within the scope of his authority for a disclosed principal, he does not bind himself unless it appears that he expressly agreed to become personally responsible.</p> <p>An automobile dealer is bound by the provisions of a policy of insurance against loss by fire of his automobile although he neither read the policy nor an accompanying rider nor knew “a single condition in” it, if he voluntarily accepted it and kept it in his safe until a loss by fire occurred.</p> <p>In a policy of insurance against loss by fire issued to an automobile dealer and providing that it should “attach and cover upon automobiles, bodies, chassis, tops or other equipment while attached to and a part of automobiles owned by the assured and held by him for sale, from time of delivery to the assured, and to continue until said property is delivered to the purchaser or until same otherwise passes out of the possession of the assured . . . this period in no event to exceed twelve months or to extend beyond the termination” of the policy, the words, "automobiles owned by the assured and held by him for sale” are not ambiguous; and, at the trial of an action upon the policy, evidence of negotiations and conversations preceding the issuing of the policy or following its issuance and before a fire within its terms, which tend to modify or vary its terms, is not admissible.</p> <p>The policy above described also contained a provision that “no officer, agent or other representative of this Company shall have power to waive any provision or condition of this Policy unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this Policy exist or be claimed by the insured unless so written or attached;” and it was held, that the effect of a provision of the policy could not be overcome by invoking the aid of the doctrine of waiver and estoppel based on interviews of the assured with agents of the insurance company after he had received and had accepted the policy.</p> <p>The rider attached to and made a part of the policy above described contained a provision that “All risks attaching hereunder are to be reported to this Company as soon as known to the assured but no risk to be binding unless so reported and accepted, and for which a certificate is issued, signed by a duly authorized agent of the Company. This certificate is hereby made a part of this Policy.” A further provision of the rider was that " It is understood and agreed that intentional failure to so report any such risk as soon as known to the assured shall render this entire contract null and void.” At the trial of an action upon the policy for the loss of nineteen automobiles of the plaintiff damaged by fire, it appeared that, as to thirteen of the automobiles, the plaintiff had not reported to the company acquisition of ownership and possession “as soon as known” to him, and that such failure had not arisen from unavoidable mistake or excusable inadvertence on his part. Held, that under the provisions of the policy the plaintiff could not maintain the action.</p>

<p>Mortgage, Of personal property: recording. Sale, Conditional.</p> <p>In an action of replevin the following facts appeared: The owner of a motor truck delivered it under an agreement in writing to one who gave therefor several notes for instalments of the purchase price, payable at stated intervals, it being agreed that the title to the truck should remain in the vendor until all the notes were paid. At a time when all notes then due had been paid by the vendee but some of the notes were not due, the vendor borrowed from the plaintiff an amount equal to what still was due on the notes, gave therefor his note, payable in instalments, and delivered to the plaintiff the notes and the agreement of conditional sale, indorsing upon it over his signature the statement, "For value received I hereby assign to the . . . [plaintiff] . . . the within lease and claim and my interest in the property therein described.” The assignment never was recorded. The vendee, after having paid several of his instalment notes to the plaintiff, died and thereafter the vendor, without the plaintiff’s knowledge, gave a bill of sale of the truck to the defendant and delivered it to him. Default thereafter having been made in payments both of the vendee’s notes and of instalments due on the vendor’s note to the plaintiff, the plaintiff demanded possession of the truck, and, possession being refused, brought the writ of replevin. Held, that</p> <p>(1) Under the conditional bill of sale the general ownership of the truck remained in the vendor, who could sell or mortgage his interest therein;</p> <p>(2) The assignment to the plaintiff by the vendor, being given as security for the payment of a debt, was subject to the provisions of St. 1915, c. 226, and, not having been recorded, was not valid against the defendant;</p> <p>(3) Judgment must be entered for the defendant. .</p>

<p>Negligence, Contributory, In use of highway. Evidence, Hospital record. Practice, Civil, Exceptions.</p> <p>At the trial of an action by a girl against the operator of a motor car for personal injuries received by the plaintiff when eleven years of age and caused by her being run into by the motor car at about noon on a public way twenty-five feet wide, which she was crossing, there was evidence that, before starting to cross the way, the plaintiff had looked in both directions and had waited for motor vehicles to pass and that she had reached the farther side of the way and had one foot upon the curbstone when she was struck by the motor car, which was travelling at the rate of thirty or thirty-five miles an hour. Held, that a finding was warranted that the plaintiff was in the exercise of due care.</p> <p>At the trial above described, the plaintiff introduced in evidence a hospital record of treatment for her injury, except a statement therein reading as follows: “‘Present Illness,’ while patient was running along the road four days ago, she was run over by an automobile producing injuries as per local (left leg).” The defendant then offered the portion of the record omitted by the plaintiff and that portion was excluded. Held, that the exclusion was right, since the admission of the excluded portion of the record would have been in direct violation of St. 1905, c. 330, as amended by St. 1912, c. 442.</p>

<p>Contract for $850.05 upon an account annexed for services rendered and disbursements made in the raising of a lighter of the defendant sunk at a pier in Boston Harbor. Writ in the Municipal Court of the City of Boston dated March 7, 1919.</p> <p>The defendant sought damages in recoupment.</p> <p>On removal to the Superior Court, the action was tried before Fox, J. Material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings among others:</p> <p>“C. On all the evidence, if the jury find that a substantial amount of the bottom planking of the defendant’s lighter was torn off in the course of the plaintiff’s work, and that the bottom of said lighter at the time was in reasonably sound and strong condition, they would be justified in concluding that the plaintiff did not perform his work in a reasonably careful and skillful manner.”</p> <p>“F. On all the evidence, if the jury find that a substantial amount of the bottom planking of the defendant’s lighter was torn off in the course of plaintiff’s work, and that the bottom of said lighter was at the time in a reasonably sound and strong condition, they would not be justified in relieving the plaintiff from responsibility on the ground that the damage was caused by error of judgment.</p> <p>“ G. There is no evidence in this case upon which the jury would be warranted in relieving the plaintiff of responsibility on the ground of an error of judgment falling short of negligence or unskillfulness for damage caused to the defendant’s lighter as result of the plaintiff’s work.</p> <p>"H. If the jury finds that the plaintiff is entitled to recover in respect of a part or the whole of the services rendered, he is only entitled to recover what would be a reasonable and customary charge for similar services at the time and place in question.”</p> <p>"J. To make out a case of specific negligence on the part of the plaintiff it was not necessary for the defendant to put his hand on the specific act of the plaintiff that caused the damage to his lighter. It was enough for the defendant to prove that the damage must have been caused by one or more of several things.</p> <p>“K. If the defendant fails to prove specific negligence on the part of the plaintiff, he has a right to fall back on the doctrine of res ipso loquitur.”</p> <p>The requests were refused.</p> <p>The jury found for the plaintiff in the sum of $850.05; and the defendant alleged exceptions.</p>

<p>Judgment, Foreign. Jurisdiction. Evidence, Presumptions and burden' of proof.</p> <p>There is a presumption in favor of the regularity of the proceedings of any court of general jurisdiction.</p> <p>Where, at the trial of an action upon a judgment of a court of the State of New York of general jurisdiction, the plaintiff introduces in evidence under B. L. c. 175, § 71, a properly attested and duly authenticated record of the judgment, which included a return under oath of a person who made service on the defendant, and there is evidence that the plaintiff’s father-in-law served upon and read to the defendant a paper prepared by the plaintiff’s counsel summoning the defendant into court and there is no evidence that under the law of the State of New York such service was insufficient to give the court jurisdiction, the presumption in favor of the judgment of the New York court is not overcome as a matter of law and the recitals of the record of the judgment as to service upon the defendant were properly considered.</p>

<p>Two complaints, received and sworn to in the District Court of Central Berkshire on July 17, 1919, each complaint charging that the defendant therein on that day “did unlawfully sell intoxicating liquor, to-wit, Jamaica Ginger,” to Frederick Harrington.</p> <p>On appeal to the Superior Court the cases were tried together before N. P. Brown, J., upon a statement of facts agreed upon by the counsel for the defendants and the district attorney. These facts are described in the opinion. The defendants moved that a verdict of "not guilty” be ordered. The motions were denied, and the jury were ordered to return a verdict of guilty in each case. The cases then were reported to the Supreme Judicial Court by the trial judge “upon the request of the district attorney and with the consent of the defendants, for the purpose of determining whether or not there was error of law in denying the defendants’ motions, upon the evidence submitted in the agreed statement of facts, and in directing the jury to return a verdict of guilty upon each complaint, and, upon consideration thereof by the Supreme Judicial Court, for the purpose of making such order as law and justice may require.”</p>

<p>Contract, with a declaration in two counts, each upon an instrument alleged to be “a promissory note, payable to the plaintiff’s intestate or order,” the instruments being described in the opinion. Writ dated March 19, 1919.</p> <p>The defendants demurred. The demurrers were heard by Hammond, J., and were sustained. Judgment was entered for the defendants; and the plaintiff appealed.</p>

<p>Contract for $60,426.06, upon an account annexed containing items of cash paid and of securities delivered to the defendants and of items called "equity on sale of” certain securities. Writ dated March 22, 1917.</p> <p>The action was referred to an auditor, and, after the filing of the auditor’s report, was heard by Hitchcock, J., without a jury, upon the auditor’s report and a stipulation as to certain evidence before the auditor. The material findings of the auditor and facts agreed upon are described in the opinion.</p> <p>The plaintiff moved that, upon all the evidence, a finding should be entered in his favor; and also requested the following rulings:</p> <p>“1. If the court finds that there were numerous settlements in the account, within the meaning of R. L. c. 99, § 6, from substantially the opening of the account until its close, and constituting a very large proportion of the transactions, then upon all the evidence in this case the plaintiff is entitled to recover as a matter of law.</p> <p>“2. There is no evidence in the case as a matter of law to warrant a finding that the defendants made actual purchases and sales upon any of the plaintiff’s orders where settlements were made.</p> <p>“3. The execution of Orders to buy or sell stocks on the stock exchange, is not of itself sufficient evidence of actual purchases and sales by the defendants.”</p> <p>“6. If the court finds that the plaintiff intended to enter into wagering transactions with the defendants, and that the defendants had reasonable cause to believe that such was his intent, it is not necessary for the plaintiff to prove further that he had a specific intent that the defendants should not make actual purchases and sales.</p> <p>“7. There is no evidence in the case as a matter of law to warrant a finding that the defendants made actual purchases or sales upon any of the plaintiff’s orders to sell stocks in cases where he had no such stocks in his account with the defendants at the time of giving the order to sell and did not at any time deliver certificates of those stocks to the defendants, but afterwards covered the selling order by a corresponding order to buy the same stocks.</p> <p>“8. If the court finds that a large proportion of the plaintiff’s transactions with the defendants were either settlements or orders to sell stocks which the plaintiff did not own at the time of giving the order, so far as was disclosed or known to the defendants, then the plaintiff’s entire account was tainted with illegality.</p> <p>"9. The plaintiff is entitled to recover as damages all payments made and the value of the securities delivered by him to the defendants.</p> <p>“ 10. The defendants cannot reduce the amount of damages by any payments which they made to the plaintiff, if their payments to the plaintiff were not in fact on account of the principal sums paid in by him, but were on account of the unlawful transactions.”</p> <p>As to the sixth ruling requested, the judge stated, “Court does not so find;” he also denied the plaintiff’s motion and requests for the rulings above described and found for the defendants; and the plaintiff alleged exceptions.</p>

<p>Attachment. Equity Pleading and Practice, Amendment. Equity Jurisdiction, To reach and apply equitable assets.</p> <p>A creditor of a corporation named “D Trucking, Inc.,” brought a bill in equity to reach and apply in payment of the debt property in the possession of a third person not attachable at law, and in the bill described the debtor as “D Trucking Co., Inc.,” although he intended to describe “D Trucking, Inc.” After the third party, having been served with a subpoena and order of notice, had entered into a stipulation in writing to hold until further order of the court funds in his hands owing to the debtor, a trustee process was served upon him as trustee in an action at law by another creditor against the same debtor, in which the debtor was correctly described. The conflicting claims of the creditors being brought before the court, the plaintiff in the suit in equity was permitted to amend his bill so that it correctly described the debtor and a final decree was ordered directing that his claim be paid first from the fund. The second creditor appealed. Held, that the amendment properly was allowed, since it resulted in the correction of a mere clerical error or misnomer without creating an actual change of existing parties or introducing a new demand or cause of action.</p>

<p>Contract for $2,772.51, which the plaintiff alleged that the defendant agreed to pay to her in compromise of her claim against the city for land taken by the defendant by right of eminent domain. Writ dated February 16, 1917.</p> <p>In the Superior Court the action was heard by King, J., without a jury, upon an agreed statement of facts. Material facts so agreed upon are described in the opinion. The judge found the facts to be as stated in the agreed statement and reported the action to this court for determination, the parties agreeing that, if the plaintiff was entitled to recover, judgment should be entered in her favor for $2,772.51 and interest from the date of the writ; and that otherwise judgment should be entered for the defendant.</p>

<p>Contract for rent alleged to be due under a lease in writing and under seal. Writ in the Police Court of Chelsea dated December 21, 1917.</p> <p>On appeal to the Superior Court, the action was tried before Fox, J. It appeared that the lease was signed and sealed in behalf of the plaintiff by her sister-in-law, who testified that she had authority in writing to do so, but that she did not know whether such authority was under seal. The authority in writing was not produced. Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the judge denied a motion by the defendant that a verdict be ordered for him. At the request of the plaintiff and subject to exceptions by the defendant, the judge ruled as follows:</p> <p>"1. Where a lease of real estate is executed by an agent of the lessor in the lessor’s name and he affixes thereto a seal where none is required (the lease being one for one year with the option for another year), this does not render the lease invalid although the agent’s authority is not under seal.</p> <p>“2. The authority to execute a lease of real estate for one year, with the option for another year, need not be in writing. Parol authority is sufficient.”</p> <p>The defendant asked for and the judge refused the following rulings:</p> <p>“1. The written lease under seal upon which the plaintiff has brought suit was not signed by the plaintiff or by any one having legal authority so to do.</p> <p>“2. The authority of the agent to sign the principal’s name, in the absence of the principal, to an instrument under seal, must in itself be in writing and under seal.</p> <p>“ 3. A general authority given by paroi by the plaintiff to Rosie Gross to sign any paper or document which said Rosie Gross might see fit to sign in the name of the plaintiff is not sufficient to authorize the execution of the lease under seal upon which suit is brought.”</p> <p>The jury found for the plaintiff in the sum of $272.25; and the defendant alleged exceptions.</p>

<p>Contract, Implied, Performance and breach.</p> <p>One, who in June, 1917, delivered $426 to another in consideration of his agreement to transmit it to a bank in Russia and to procure therewith a bank book for two thousand rubles, which book was to be delivered to the depositor of the . money upon his paying, therefor $56 more, may maintain against the person who thus received the money, upon an unjustifiable failure on his part to perform any part of the agreement, an action of contract for money had and received to recover the $426 so paid with interest, his remedy not being restricted to an action for breach of the agreement nor his damages limited to the value of two thousand rubles at the time when the bank book should have been delivered to the depositor.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Evidence, Presumptions and burden of proof, Matter of conjecture.</p> <p>Upon a claim for compensation under the workmen’s compensation act by the dependent mother of one who met his death while employed as a “bus boy” in a restaurant, it appeared that the dining room and kitchen of the restaurant were on the second floor of a building, that an elevator ran from the basement of the building to and beyond the second floor, that the opening from the elevator well at the second floor was into the kitchen and was by means of doors, one moving up and the other down in opening, that, when the doors were locked or fastened, they could be opened only from within the elevator, that at times the doors failed to catch as they came together, that then they could be opened from outside the elevator and that if, when that was done, the lower door did not open all the way down, where there was a catch to hold it, it would close of itself. There was evidence that the operator of the elevator finished his employment at six o’clock in the evening and left the elevator in the basement and that the doors into the elevator well at the second floor were closed. There was no evidence that the doors were fastened, nor any evidence that they were open. It appeared that, if the elevator was “not stopped right still,” it would “gradually work” up or down, “whichever way the power is.” When last seen, between 6:15 and 6:30 o’clock in the evening, the employee had completed a task in the kitchen of cleaning a water cooler and was standing beside the elevator well. From one to ten minutes later an outcry was heard and his dead body immediately afterwards was found at the bottom of the elevator well. The elevator then was at the top of the shaft and the doors into the well on the second floor were closed. It was no part of the employee’s work to operate the elevator and he had been instructed not to use it and not to go near it. Held, that all the facts and circumstances shown and every reasonable inference therefrom left conjectural what the employee was doing when he fell into the well and what was the exact cause of his death; and that the claimant therefore had not established her claim.</p>

<p>Contract for $216 by the beneficiary under a policy of insurance issued by the defendant upon the life of Nora T. Hayes. Writ dated June 1, 1915.</p> <p>In the Superior Court the action was tried before Callahan, J. Material evidence is described in the opinion. By order of the judge the jury returned a verdict for the defendant, and the judge reported the case to this court for determination.</p>

<p>Contract, Construction. Sale. Option. Equity Jurisdiction, Specific performance.</p> <p>A contract in writing dated on a May 30 recited that the owner of certain land with a house thereon “hereby agrees to sell to” the second party to the contract the land in question; that the price to be paid by the second party was $12,000 “on delivery of deed on or before September 1 . . . without interest;” that the second party “herewith has paid Five hundred dollars ($500) as bargain money, to be forfeited in case he fails to pay the balance of $11,500 on or before September 1;” that it was agreed that the second party might “enter upon-the premises after ten days from the date hereof, to make repairs or additions to said house on the understanding that such repairs or additions shall belong to the estate free of charge, in case” the second party should “fail to complete his payment of $11,500 on or before September 1;” that the second party should “be responsible for all bills and charges incurred in making such repairs or additions, free from any mechanic’s lien;” that the second party agrees “to take over the present insurance on said house on receipt of deed, paying pro rata for the unexpired portion of the policies and also the cost of Mechanics’ Privilege for work contemplated; ” that, “Should said house bp destroyed or damaged by fire, before the final payment of $11,500 has been made, the insurance recoverable shall belong to ” the second party “ as if the purchase had been completed and deed given to him, and the fact of such destruction or damage shall not invalidate or affect the final payment of $11,500 for the land; ” that the second party should pay one half of the local tax assessed for the current year; that an occupant then on the premises should remain until September 1 “or until the final payment of $11,500 has been made, in case she wishes to remain with the work going on,” and that, if she did not so wish, the second party was to provide a resident caretaker or pay the additional premium of insurance rendered necessary by the house being unoccupied. Held, that the contract was not a mere option, but was one of purchase and sale binding both parties.</p> <p>In a suit in equity by the purchaser against the owner for specific performance of the contract above described, it appeared that there was no agreement for extension of the time within which the contract was to be performed and that the plaintiff did not tender performance on the day named. There was evidence that, after the making of the contract, the purchaser had entered upon the premises and at considerable expense had made repairs during June, July, August and September; that the repairs were necessary in order that the purchaser might obtain the money for the final payment by a loan to be secured by a mortgage upon the premises; that the purchaser made an application for the loan, which was refused by one bank, and that an application to a second bank had to be made; that the defendant was absent from the Commonwealth during August and a portion of September; that, in response to a telephone message that the deed of the defendant was ready at a certain bank, the plaintiff went to that bank and was told that a temporary delay would be satisfactory; that the plaintiff reasonably did not expect that he would be held to a strict performance of the contract; that on September 30 the plaintiff tendered performance, which the defendant refused, and that the refusal was not because of the failure of the plaintiff to perform on September 1, but because the defendant was informed that the plaintiff “built shabby houses.” The trial judge found in substance that time was not regarded by the parties as of the essence of the contract and that the plaintiff’s tender was made within a reasonable time, and a decree directing specific performance was entered. On appeal by the defendant, it was held that the findings were warranted and that it would have been inequitable to have refused relief to the plaintiff.</p>

<p>Probate Court, New trial of issues. New Trial. Witness, To a will. Will, Attestation.</p> <p>Where, before proceeding with the trial of issues for a jury framed on an appeal from a decree of the Probate Court allowing a will, the counsel for the executor explained to the trial judge and the appellant’s counsel that one of the attesting witnesses was sick but would be able to attend on the next day, and the appellant went forward with the trial, which continued for three days, without insisting that all of the attesting witnesses be called and without making any request for a ruling on the question of the absence of one of those witnesses or saving any exception to his absence, and the issues were determined against him, the appellant is not entitled as a matter of law to have a new trial granted because of the absence of such witness.</p>

<p>Tort for personal injuries received on February 27, 1919, when the plaintiff, while engaged in repairing a spring switch of the street railway on Pleasant Street near the corner of Fourth Street in the city of Fall River, was run into by a motor truck of the defendant. Writ dated March 5, 1919.</p> <p>In the Superior Court the action was tried before Raymond, 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 defendant then asked for rulings, among which were the following:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover. “2. The plaintiff’s own story of his own conduct just prior to the accident shows he was guilty of contributory negligence and the verdict must be for the defendant.”</p> <p>“5. A person who is working in a place which he knows to be dangerous by reason of the traffic or other causes is bound to exercise his own faculties to insure his own safety and his failure to do so is negligence.</p> <p>“6. A person is not justified in relying wholly upon statutory signals which ought to be given by others but is bound to use his eyes and ears reasonably to ascertain whether or not a vehicle is approaching and failure to do so is negligence.”</p> <p>The rulings numbered one and two were refused.</p> <p>On the subject of the fifth and sixth rulings requested, the judge in his charge instructed the jury in substance as follows: He asked the jury to determine whether the plaintiff acted “as an ordinarily careful man would act in looking out for his own safety. Did he do anything? There is testimony he looked up and down the street and saw the street was clear, and that he did maintain the flag. Now, what else would you have done, what else would an ordinarily careful man have done with this work on hand to carry out? If you say an ordinarily careful man would have done something different from what he did, then his failure in that respect would be negligence on his part. Negligence means failure to do something that an ordinary, reasonably careful man would have done under the circumstances. . . .</p> <p>“He had a right to presume that people would use the street with reasonable regard to the safety of other folks on the street, reasonable regard to his own safety; that a man coming down with an automobile, or milk wagon as that has been mentioned, or wheelbarrow, or anything else would use the streets in a proper way, that is, with reasonable regard to the rights of other persons who were rightly on the street, and he was rightly on the street. He had a right to presume that. . . .</p> <p>“He had a right to presume that travelers like this defendant coming down that street would give the ordinary signals and do the ordinary things that reasonably careful men would do in obedience to the law and in obedience to the dictates of humanity and common sense and prudence.</p> <p>“Now, doing what he was doing, with the right to presume what he had a right to presume with reference to other people acting properly, with the flag elevated, and with all the conditions as they existed then, do you think that he was careless? That is for you.”</p> <p>At the close of the charge, thé fifth and sixth rulings requested having been called again to the judge’s attention, he further charged the jury as follows as to the fifth ruling:</p> <p>“I will not give it in that form, but I think I covered it sufficiently in my charge. I will say that a person who is working in a place which he knows to be dangerous, by reason of the traffic or other causes, is bound to do what a reasonably careful man would do under the circumstances. I would not say that a man working in a place like this would be negligent if he took his eyes off of the road over which this truck came, used his faculties in that way, because it may be necessary in the work he is doing to use his eyes on that work. You may say this was such work that he ought to have bent his energies and his faculties on this work, and you may say that the fact that he kept the flag flying, that you say that he ought to keep the flag up, was as much as the ordinarily careful man would do.</p> <p>“That is the standard, the care of the ordinarily careful man under the circumstances, taking everything into consideration. That very often does involve, of course, the exercise of all his faculties, but sometimes his faculties are called upon by him to do other things, and it is for you to say in this case whether, knowing what he did, he did what the ordinarily careful man would do under like circumstances.”</p> <p>As to the subject matter of the sixth ruling, the judge further charged the jury in substance as follows:</p> <p>"A person is not justified in relying wholly upon statutory signals which ought to be given by others, that is, like the tooting of the horn before the automobile approached the corner. That is a good principle of law . . . but it is for you to say whether this man did trust wholly to the precautionary signals of the truck, or whether he did something of himself to announce his presence, to warn people that somebody was there and must be looked out for. ... I do not go that far in this case [[that is, as far as the sixth ruling asked for]: I leave that to you to say whether what this man actually did—he said, as I understood, that he did not look while he was bent over there, he did not look to see whether an automobile was coming, and he did not listen, because his attention was engrossed in what he was doing. I think that is practically the testimony, but you will recall what the testimony was. I leave the whole question to you to say whether he did what a reasonably careful man would do under the circumstances, and the place, and time, and where he was.”</p> <p>The jury found for the plaintiff in the sum of $9,000; and the defendant alleged exceptions.</p>

<p>Extradition. Department of Public Safety, Division of State Police. Habeas Corpus. Jury and Jurors.</p> <p>A warrant, issued by the Governor of this Commonwealth on a demand by the Governor of the State of Illinois for the extradition of one indicted by the grand jury of that State, and directed to “The Sheriffs, Deputy Sheriffs, Division of State Police Department of Public Safety, and other officers of and in the several cities and counties of this Commonwealth,” cannot lawfully be served by an officer of the division of State police, department of public safety, he not being an officer designated in the warrant and the “division” not being an officer or a class of officers.</p> <p>It is an essential element of a warrant for an arrest in a criminal case that it be directed to some officer or class of officers and not to a department, an organization, or an official or unofficial body.</p> <p>The mere fact that, at the time of the arrest upon a warrant issued by the Governor of this Commonwealth on a demand by the Governor of the State of Illinois for the extradition of one indicted by a grand jury of that State, the person arrested was at large in the custody of bail furnished for his release from custody under a . previous extradition warrant based on an earlier indictment of a grand jury of the State of Illinois, did not invalidate the later arrest.</p> <p>Formal objections to an indictment found and returned by a grand jury of the State of Illinois are not grounds for the issuance of a writ of habeas corpus upon a petition filed in this Commonwealth by the defendant named in that indictment after his arrest under the authority of a warrant of the Governor of this Commonwealth issued upon a demand by the Governor of the State of Illinois for his extradition.</p> <p>The Governor of this Commonwealth, in determining the propriety of issuing a warrant under St. 1920, c. 399, when a demand is made upon him by a Governor of another State under R. L. c. 217, § 11, for the extradition of a fugitive from justice, may consider evidence outside the papers sent with the requisition.</p> <p>A petitioner for the writ of habeas corpus has no right to a trial by jury of facts placed in issue by the pleadings.</p> <p>A warrant issued by the Governor of this Commonwealth under St. 1920, c. 399, upon a demand by a Governor of a sister State made under R. L. c. 217, § 11, for the arrest and rendition of a-fugitive from justice under indictment in that State, is prima facie evidence, at least, that all necessary legal prerequisites have been complied with, and, if the previous proceedings appear to be regular, is conclusive evidence of the right to remove the prisoner to the State from which he fled.</p>

<p>Attorney at Law, Petition for admission or reinstatement. Practice, Civil, Appeal, Expunging of scandalous and impertinent matter from the record. Cleric of Courts. Superior Court.</p> <p>A proceeding by an attorney at law for admission to the bar is a proceeding at law and not in equity.</p> <p>The record upon an appeal from the déniai of a petition for the admission or reinstatement of an attorney at law as a member of the bar should include no part of the evidence introduced at the hearing of the petition.</p> <p>A record, which merely shows a dismissal, after a hearing, of a petition for the admission or reinstatement of an attorney at law as a member of the bar and an appeal therefrom, discloses no error of law.</p> <p>The duty of preparing the copies of papers and the records of cases brought to this court by appeal or upon exceptions, reports or reservations, is placed by R. L. c. 157, § 21; c. 173, § 117, directly, unequivocally and exclusively upon the clerk; and the Superior Court has no jurisdiction or power to order that an appellant be allowed to take the files of a case and to have them printed under his own direction, and to permit printing by multigraph or other duplicating machine.</p> <p>Certain impertinent and scandalous matter, appended to a record filed in this court after the certificate of the clerk of the court,, was ordered expunged.</p>

<p>Labor. Strike. Equity Jurisdiction, To enjoin strike.</p> <p>A strike of workmen which is for the sole object of compelling the employer to re-employ a discharged fellow workman of the strikers is a strike for an unlawful purpose, and it will be enjoined in a suit in equity by the employer against the strikers, even if no illegal means are employed to carry it into effect.</p>

<p>Bill in equity, filed in the Superior Court on May 7, 1907, and afterwards amended, as stated in the opinion, for redemption of certain property on Bowdoin Street in Boston from a second mortgage held by the defendant Lawrence J. Logan, the plaintiff alleging that the property had been sold and conveyed to the defendant John A. Coveney at a sale purporting to be in foreclosure of that mortgage, and that the sale should be declared void. There also were prayers for an accounting, “that the plaintiff may be awarded damages against the defendant Logan for the injuries done her by the defendant,” and for general relief.</p> <p>The suit was heard twice by masters. Findings of the masters are described in the opinion. An interlocutory decree was entered on October 31, 1908, by order of Wait, J., confirming the report of the first master, and directing that the suit again be referred to him to assess the amount due the defendant Logan on the second mortgage.</p> <p>After a hearing by Lawton, J., the report of the second master was confirmed, and a final decree was entered on January 22, 1920, directing the Columbian Life Insurance Company to pay to the defendant Lawrence J. Logan $3,693 with interest, and to pay to the plaintiff the balance of the amount which it had received at the sale in foreclosure of the first mortgage. The plaintiff appealed.</p>

<p>Equity Jurisdiction, To enjoin trespass. Municipal Corporations, Drainage. Drain. Water Rights.</p> <p>A suit in equity cannot be maintained to enjoin a city from draining water by a twelve inch pipe from a public way and through an artificial open ditch across land of a third person and land of the plaintiff to a six inch pipe under a private way which discharged beyond the plaintiff’s land, although the result of such method of draining is to cause water to overflow upon the plaintiff’s land, where the ditch was dug many years after the twelve inch pipe was laid and it does not appear that the city caused it to be dug or the six inch pipe to be laid or ever maintained or recognized either as a means of drainage or otherwise.</p>

<p>Indictment in six counts, found and returned on September 4, 1916. The first count charged that Eddie Kandler, Israel Leventhal, Jacob Leventhal and Jacob Smaller on February 15, 1916, "wilfully and maliciously did burn the dwelling house of Annie Levine.” The second count charged that Abraham L. Matthews, Simon Levine and Samuel Lishner procured those named as defendants in the first count to commit the arson there charged. The third count charged the defendants named in the first count with burning an insured building with intent to injure the insurers, and the fourth count charged the defendants named in the second count with procuring those named in the third count to commit the crime there charged. An entry of nolle prosequi was made as to the fifth and sixth counts before trial; and as to the second and fourth counts such an entry was made as to Abraham L. Matthews. On September 13 and 14, 1916, all the remaining defendants pleaded not guilty. At the time of trial Kandler pleaded guilty and testified for the Commonwealth.</p> <p>On October 16, 1916, the case was placed upon the list of cases assigned for trial for October 23. On October 20, the defendants filed a motion for a continuance and a change of venue, based on allegations in substance that they were prejudiced by articles published in certain daily newspapers relating to the crimes with which they were charged. The motion was overruled.</p> <p>The defendants thereupon filed a motion to quash the indictment on the grounds that the dwelling house alleged to have been burned was not sufficiently described, and that the counts in the indictment were improperly joined.</p> <p>On October 23, the defendants filed a plea in abatement based on allegations that a police officer and others, not members of the grand jury or witnesses, were present in the grand jury room when the case was being heard by the grand jury and witnesses were testifying, and a plea in bar based on the allegation that the defendants were summoned and were required to testify “at the sitting of the Grand Inquest ... of and concerning the matters and things then and there being inquired into, and now contained in this presentment;” and that the prosecution of the indictment deprived them of the privileges and immunities guaranteed by art. 5 of the Amendments to the Constitution of the United States.</p> <p>In presenting the foregoing motion and pleas other than the motion for continuance and change of venue, the defendants asked leave to withdraw their pleas of not guilty for that purpose. The district attorney objecting, the request was refused and the motions were overruled.</p> <p>The case then was tried before Sisk, J. Material evidence is described in the opinion. At the close of all the evidence the defendants asked the judge to instruct the jury as follows:</p> <p>“1. While it is competent for the government to introduce the evidence of accomplices in support of the allegations contained in the indictment, such evidence is to be taken with great caution unless it is corroborated by independent evidence tending to substantiate a material part of the allegation. Mere multiplication of accomplices does not satisfy this requirement of corroboration in a material particular.</p> <p>“2. There is no corroboration by independent proof of material facts in the evidence offered through the witnesses Handler and Matthews.”</p> <p>“'4. If the jury shall find that the witness Kandler contradicts the witness Matthews, this contradiction should be taken into account by the jury in determining the truthfulness of both in their entire testimony and the weight to be given it.</p> <p>“5. In judging of the truthfulness of the witness Kandler and of the weight to be attached to his testimony, the jury should take into account that he is a self-confessed criminal of more than one burning in which human lives might have been taken and wilful murder thus committed.</p> <p>“6. It is not to be presumed that the fire named in this indictment was set by Kandler because he says he did it. Proof of the fire and the person or persons who set it must be proven to the satisfaction of the jury beyond a reasonable doubt.”</p> <p>The requests were refused.</p> <p>Israel and Jacob Leventhal and Smaller were found guilty of the crime charged in the first and third counts, and Levine and Lishner were found guilty of those charged in the second and fourth counts. All such defendants alleged exceptions.</p>

<p>Judgment, Vacation. Practice, Civil, Exceptions, Amendment.</p> <p>On an exception to the dismissal of a petition for the vacation of a judgment for the defendant in an action brought by the petitioner as plaintiff, it appeared that the action had been entered in the Superior Court in 1907; that on the plaintiff’s motion it was ordered on June 6, 1917, that the action be continued “to be disposed of on or before January 7, 1918, or to be on that date dismissed; no further extension to be granted to the plaintiff;” that the record did not show the grounds for the making of the order; that the case in fact was continued until January 18, 1918, when a motion was filed for entry of judgment for the defendant; that on January 26 the action was dismissed as of January 7, 1918, in accordance with the order of June 6, 1917, and that there were no sittings of the Superior Court from December 21, 1917, to January 14, 1918. Held, that</p> <p>(1) The making of the order of June 6, 1917, rested in the sound discretion of the Superior Court and there was nothing to show an unwise exercise of that discretion;</p> <p>(2) The granting or denial of a petition to vacate a judgment is largely discretionary, and the record did not show a failure to exercise sound judgment.</p> <p>Where, upon an exception to the denial of a motion to amend a bill of exceptions, the record shows merely the motion and its denial, the exception must be overruled.</p>

<p>Tort for personal injuries. The allegations of the declaration were merely that the plaintiff “was a passenger upon one of the defendant street railway company’s cars on September 21, 1918, when he was thrown off same and run over and both his legs cut off. And the plaintiff says that his injuries were caused by the negligence of the defendant, its officers, agents or servants.”Writ dated June 21, 1919.</p> <p>In the Superior Court the action was tried before N. P. Brown, J., during thirteen court days.</p> <p>The instructions of the judge, referred to in the opinion, relating to rules of the public service commission as to wheel guards and fenders were as follows: “You will also recollect certain rules or regulations purporting to be regulations promulgated by the Public Service Commission upon the subject of jacks, wheel guards, etc., were put in evidence. You understand, of course, in the trial of a case of this kind, it is something like picking apples in the fall, you pick all that look good to you and take them to the house and then look them over again, and those that don’t look good to you you throw away, and those that do, you keep.</p> <p>I am now trying to throw away some of those we collected earlier in the case which now don’t look good as a matter of law. These regulations I instruct you have no application to this case. No -evidence has been introduced connecting them sufficiently with the case so that I feel you are justified in any way in considering them. As you readily see, the presence of a jack on the car, and in some aspects perhaps wheel guards, might be material merely upon the question of damages, although there is a possibility that as to wheel guards the presence or absence of them might have some effect in preventing a possible injury. But there is no evidence in this case of the absence of wheel guards such as would justify the application of any regulations such as have been in-traduced nor of jacks nor of fenders.”</p> <p>The defendant’s “Rule 120,” referred to in the opinion was as follows: “120. Spacing. When several cars are operating on the same running time, cars following should not run up to the leading car when stopped, but should stay back a distance of five poles, checking speed until the head car has started. This will apply to all operation except on turnouts and terminal points. Do not run closer to a preceding car than five hundred (500) feet unless ordered to do so. No excuse will be received for a rear-end collision.”</p> <p>The exceptions to the exclusion of evidence which the defendant asserted tended to contradict one of its own witnesses, referred to in the opinion, were saved under the following circumstances: One Berger, called by the defendant, had testified that in 1918 he had operated a café in Fitchburg where he had sold intoxicating liquors. To several questions as to whether the plaintiff was in his saloon on September 21, 1918, as to whether he had met and had had a conversation with Emerson W. Baker within a week and a half of two weeks preceding the trial, or as to any conversation he had had with him on the subject of the plaintiff, the witness answered that he did not remember. Later in the trial, the defendant called Emerson W. Baker, who testified that he was associated as counsel for the defendant, and offered to show that he had had a conversation with the witness Berger within a week and a half or two weeks of the trial, and that Berger had said to him “in substance, that he had been trying to find the man with whom he sent Bilodeau out of his saloon on the night of his accident and that so far he had been unable to find the man or secure his name.” The evidence was excluded and the defendant saved an exception.</p> <p>The evidence admitted in rebuttal, and referred to in the opinion, was in substance as follows: After the close of the defendant’s evidence the plaintiff called one Reed, who testified that he was the claim agent of the defendant and who, under direct examination by the plaintiff’s counsel, testified in substance that he had not participated in nor heard a certain conversation at a hospital where the plaintiff had been taken following the accident; and, to a question by the plaintiff’s counsel, “Did you say to Joe Bilodeau that day, when you went up there, after the quarantine was lifted, — ‘ Joe, you were drinking that night, weren’t you? ’ and he says to you, ‘No, I wasn’t,’ and you said to him, ‘Well, how is it that all these people down stairs say you were drinking; the priest says you were drinking; how is it that they say that; are they all liars?’ and Joe Bilodeau said ‘I am not saying they are liars but I wasn’t drinking and they must have misjudged me.’ Did that conversation take place; answer Yes or No?” the witness answered “ Absolutely no.” The plaintiff then was recalled and, having been asked whether he had heard his counsel’s questions of Reed “about the time he came to see you after the quarantine was removed” and having answered affirmatively, he was allowed to be further interrogated as follows: Q. "What did Reed say to you?” A. “He says ‘You was drunk that night’ and I said ‘No, sir.’ He said ‘Do you mean to say that your priest and all those people down stairs are liars?’ I said ‘I don’t mean to say they are liars but they must have misjudged me.’ ” — Q. “Were you under the influence of liquor at all that night?” A. “No, sir.”</p> <p>The priest referred to had been called by the plaintiff in his case in chief and had testified that he went to the hospital the night of the plaintiff’s injury and “got there about midnight; saw the plaintiff”; “smelled no liquor on” him, “and saw no signs of intoxicating liquor on him at all; that the plaintiff was unconscious;” that he (the witness) “did not talk with anybody;” that “he never made any statement to anybody at any time regarding” the plaintiff’s condition, and that he never saw Reed before the ■day of the trial, and never talked with him.</p> <p>The cross-examination of the defendant’s medical expert, referred to in the opinion, was as follows: Q. “You forgot to state how many insurance companies you were acting for, in your qualifications?” A. "Yes.” — Q. "How many insurance companies have you been acting for?” A. “As many as there are in the city of Boston.” — Q. “You are acting for an insurance company now?” A. “Not that I know.” — Q. “You are acting for the F. & L.?” A. “I am acting for Mr. Milton ¡¡[defendant’s counsel].” — Q. “Are you acting for the F. & L.?” A. “In one sense, I am.” — Q. “How much are you getting per day?” ¡[The defendant’s counsel interposed: “Do you claim there is any insurance company which has insured the F. & L.?” The plaintiff’s counsel stated: "I would like to know, if the court please, what this gentleman’s interest is here.”] Q. "Are you .an expert and is your sole interest working for the F. & L. Street Railway Company or are you working for Dr. Gay ¡¡who had been called by the defendant] or somebody representing Dr. Gay, some insurance company representing Dr. Gay?” A. “No.” — Q. “Who are you working for?” A. “Mr. Milton.” — Q. “You don’t know whom he represents?” A. “Yes.” — Q. “Does he represent the F. & L. solely in this matter? ” A. “Yes.” — Q. "How much are you getting per day?” A. "As much as I can get. I don’t know how much it will be.”</p> <p>After the introduction of the testimony above described, the defendant moved that the case be taken from the jury and be continued. The motion was denied.</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor, and, that motion being denied, made forty requests for rulings, the first nine of which were to the effect that there was no evidence warranting findings of negligence on the part of the defendant or its servants or agents which would justify a verdict for the plaintiff. Other material requests were the following:</p> <p>“ 19. If the plaintiff’s lack of care contributed in any degree to his fall from Car 44 ¡¡the first car], he cannot recover for any injury sustained in said fall or as a result of the injury which befell bim when the Car 50 ¡¡the second car] ran over his legs, unless there is evidence that the motorman of Car 50 ¡¡the second car] was guilty of wilful and wanton negligence.</p> <p>“20. There is no evidence of wilful or wanton negligence on the part of the motorman of Car 50 ¡¡the second car].”</p> <p>“25. If the plaintiff’s voluntary use of intoxicating liquors so affected the plaintiff while he was upon Car 44 that he acted in a way other than the way an ordinarily prudent man would act and comport himself upon a street railway car under the circumstances in which the plaintiff found himself, and as a result, either wholly or in part, he fell or was thrown from Car 44, he was not in the exercise of due care, and he cannot recover.</p> <p>"26. If the use of intoxicating liquors by the plaintiff contributed in any degree to cause his injury he cannot recover.”</p> <p>“37. Unless the defendant’s negligence was the sole cause of the plaintiff’s injuries, the plaintiff cannot recover.”</p> <p>The requests were refused. The jury found for the plaintiff in the sum of $30,000; and the defendant alleged exceptions.</p>

<p>Evidence, Of telephone conversation, Competency.</p> <p>Where, at the trial of an action for motor vehicle hire, the plaintiff and the defendant both testify that the agreement of hiring was made in a telephone conversation between them, but they differ as to the amount agreed upon as hire, testimony of one who stated that he was present when the plaintiff was telephoning to the defendant and heard the plaintiff state as “all right” a rate, which was the rate which the plaintiff had testified that he had named, is not hearsay evidence and is competent and admissible.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Proximate Cause.</p> <p>Where, upon a claim by the widow of an employee under the workmen’s compensation act, it appears that, while engaged in his employer’s regular work, the employee was thrown violently from the seat of a wagon to the hub of a wheel and then to the curbstone, that, at the time when he received the injuries, he was suffering from pulmonary tuberculosis and that the injury, while not causing that disease, hastened its progress or excited it to a fatal termination, a finding is warranted that the employee’s death was caused by injuries received in the course of and arising out of his employment.</p>

<p>Contract, Construction, Performance and breach. Practice, Civil, Exceptions. Words, “Fair proportion.”</p> <p>Where, under a contract for the sale of “thirty cars” of coal at a certain price per ton “at the mine,” which provides that “the seller will not be responsible for the delivery of the same if prevented by . . . interruption of transportation or navigation, or from any cause or any occurrence beyond his control,” the purchaser, at a time when no shipment by railroad can be made because of an embargo-upon railroad transportation which was not the fault of the seller, gives an order for the shipment of a car, the seller is not required to make a shipment by water and cannot be held liable for damages resulting to the purchaser from his failing to do so.</p> <p>Under the provisions of the contract and in the circumstances above described, the embargo on shipment by railroad excused the defendant from making a shipment while the embargo continued.</p> <p>Where, at the hearing by a judge without a jury of an action of contract for damages resulting from failure of the defendant to make several shipments of coal, the judge was asked to rule generally that his finding should be for the defendant and refused the request and found for the plaintiff as to several breaches of the contract, an exception to the refusal of the request must be overruled if a finding for the plaintiff in any amount was warranted, although it appears that the judge’s finding as to one of the breaches was erroneous.</p> <p>A further provision of the contract above described, which was dated June 6, 1916, was that the purchaser would “take in a fair proportion of this coal prior to Oc- - tober 1.” The.seller knew that the capacity of the purchaser’s bins was limited to four car loads. The purchaser was ready and willing to accept five car loads before October 1. The judge found that a “fair proportion” did not mean fifty per cent of the entire amount to be supplied under the contract, and that the five cars which the purchaser was ready and willing to receive was a “fair proportion”</p> <p>■ of the contract requirements. Held, that no error of law was shown in the finding and ruling.</p> <p>In a bill of exceptions of the defendant in the action above described, it was stated that “all the material evidence is included herein.” A general finding for the defendant would not have been warranted by the evidence reported. Certain subsidiary findings, which were favorable to the defendant, were unsupported by any evidence. There was a finding for the plaintiff. There were no errors of law, excepted to by the defendant, that affected the finding for the plaintiff. Held, that the defendant’s exception must be overruled.</p>

<p>Insurance, Life: assignment of policy, surrender of policy. Evidence, Extrinsic affecting writings. Words, “Anniversary of issue.”</p> <p>A policy of life insurance was dated April 17 of a certain year, was delivered to the insured on April 18 and by its terms provided for the payment of premiums annually on May 1. An assignment in writing of the policy, after by its provisions it had become a “paid-up policy,” gave to the assignee a right to surrender the policy for its surrender value “at any anniversary of issue.” Held, that the meaning of the words “anniversary of issue” was not clear from the documents themselves, and must be interpreted in the light of all the circumstances attending their use.</p> <p>It appeared that the assignment above described was upon a printed blank furnished by the insurance company for general use by its policy holders; that the contract of insurance did not come into being until the payment of the premium and the delivery of the policy; that the date of the payment of the premium was the date as of which the value of a paid-up policy was computed; that the schedule of cash surrender values of the policy, which appeared upon the policy, was computed as of the date of the payment of the premium, and that all mathematical and actuarial calculations as to the policy had to be made as of the date of the payment of the premium. Held, that the words in the assignment, “anniversary of issue,” meant May 1.</p>

<p>Equity Pleading and Practice, Report, Appeal, Decree, Bill, Amendment. Superior Court. Jurisdiction. Equity Jurisdiction, Accounting, To reach and apply assets not attachable at law.</p> <p>Where, after having attempted to report a suit in equity upon the bill and a demurrer without making any ruling as to the demurrer, a judge of the Superior Court files a second report in which he states that he “made an order sustaining” the demurrer and reports that ruling to this court for determination, the second report must be taken to have revoked and superseded the first, although it did not expressly so state.</p> <p>Upon an appeal, without a report of evidence, from an order by a judge of the Superior Court, which denied a motion of the plaintiff in a suit in equity to discharge a report to this court, filed more than one and one half years before by another judge, of a ruling sustaining a demurrer to the original bill and also denied a motion by the plaintiff to amend his bill and allowed motions of the defendant to discharge the report and that judgment be entered for the defendant, the order, so far as it involves a finding of fact, must stand.</p> <p>It seems, that a decision in writing, signed by a judge of the Superior Court, stating that he allowed a motion of the defendant in a suit in equity that a report to this court by another judge of a ruling sustaining a demurrer to the bill be discharged, may be treated as an interlocutory decree.</p> <p>The failure of the plaintiff in a suit in equity for a year and one half to enter in this court a report by a judge of the Superior Court of a ruling sustaining a demurrer to the bill is abundant reason for allowing a motion by the defendant that the report be discharged.</p> <p>Upon an appeal in a suit in equity from a final decree which, besides dismissing the bill, included several matters which already had been the subject of interlocutory orders and decrees, the correctness of the disposition made of such interlocutory matters is open for consideration.</p> <p>A judge of the Superior Court who heard a demurrer to a bill in equity filed a report to this court in which he stated that he sustained the demurrer, but no formal decree to that effect was entered. A motion by the defendant that the report be discharged for failure of the plaintiff to enter it in this court was allowed a year and a half later. Subsequently a motion by the defendant for the entry of a formal decree sustaining the demurrer on the ground that the matter already had been decided by the first judge was allowed by a second judge as of the date of the filing of the report by the first judge. Upon an appeal from such decree, where the record did not include a report of evidence, it was held, that</p> <p>(1) It was not essential that the motion be decided by the same judge who filed the report;</p> <p>(2) Although the report was discharged, it was proper to resort to it for any rightful purpose;</p> <p>(3) The statement in the report by the first judge that he had made an order sustaining the demurrer was a sufficient foundation for the subsequent entry, nunc pro tune, upon the order of the second judge, of an interlocutory decree to that effect;</p> <p>(4) So far as the decree included a recital of facts, it must stand, no evidence being reported;</p> <p>(5) So far as the decree included a ruling of law, it was within the jurisdiction and power of the court and was warranted.</p> <p>Where a judge of the Superior Court files a report in a suit in equity reciting that he had made an order sustaining a demurrer to the bill, but it appears that he had not formally entered such an order, and later, by order of another judge, an interlocutory decree sustaining the demurrer is entered as of the date of the filing of the report by the first judge, a motion of the plaintiff that the report be discharged on the ground that there was no ground for the report because when it was filed the judge had not made an order sustaining the demurrer, properly may be denied.</p> <p>The allegations of a bill in equity by an attorney at law against two other attorneys and a third defendant were that the plaintiff and one defendant entered into a business arrangement, not a partnership agreement, for the practice of law, whereby the plaintiff was to receive a percentage of fees received by that defendant, and there were recited a number of specific matters of litigation which were subject to the arrangement. There also were allegations that, without a definite arrangement as to compensation, the plaintiff rendered valuable services to both the defendants who were attorneys at law in connection with other litigation for the third defendant; and there were paragraphs appropriate to a bill to reach and apply to the payment of sums alleged to be due to the plaintiff property of the defendant attorneys in the hands of their client. Held, that the bill was founded upon distinct and separate causes of action which had no connection with each other, and was multifarious; and that demurrers thereto on that ground should be sustained.</p> <p>The disposition of a motion to amend a bill in equity rests in the sound judicial discretion of the court.</p> <p>The disposition of a motion of the plaintiff, in the suit above described, to strike out the client as a party defendant and to divide the bill, leaving in only allegatians applicable to a joint claim against the two defendants who were attorneys at law, lies in the sound judicial discretion of the court.</p> <p>The proper office of a supplemental bill in equity is to support a ground of suit, existing when the original bill was filed, by facts occurring since the filing of the original bill and coming to the knowledge of the plaintiff subsequent thereto.</p>

<p>Information in the nature of a quo warranta, brought by the Attorney General “in behalf of the Commonwealth and at the relation of Charles W. Mann” and filed in the Supreme Judicial Court for the county of Essex on July 8, 1920, against the “ City of Methuen,” praying for “the advice of this court in the premises and for proper process to be issued to command the said municipal corporation of Methuen to answer by what warrant it claims to have, use and enjoy the corporate powers, privileges and franchises aforesaid, and for such other relief in the premises as justice may require.”</p> <p>The facts were agreed upon and were substantially as follows:</p> <p>Previous to the enactment of Spec. St. 1916, c. 116, Methuen was a town. That statute provided for precinct voting and a limited town meeting in the town and became effectual upon its acceptance by the town at a special election on July 29, 1916. In 1915, Methuen by the State census had more than fifteen thousand inhabitants and at all times since has had more than twelve thousand inhabitants.</p> <p>On January 29,1917, William L. Stedman, Samuel Rushton and David D. Woodbury, who then constituted the board of selectmen of Methuen, filed with the General Court a petition, signed by them under the title “Board of Selectmen” and reading: “The undersigned, citizens of Massachusetts, respectively petition for the incorporation of the town of Methuen as a city under such charter or plan of government as the voters of said town may by their votes prefer.” No town meeting was ever “ duly warned and holden” previous to such application for the purpose of voting thereon and no inhabitants of the town held any meeting in the town, called or warned in accordance with the provisions of St. 1913, c. 835, Part V, § 394, and amendments thereto for the purpose of considering the question of applying for a city charter for the town, and no meeting of the inhabitants of the town was ever called or warned in accordance with the by-laws or a vote of the town to consider questions of making application for a city charter for the town, and no vote was ever passed at any town meeting in the town authorizing any person or persons to apply for a city charter for the town, and the town of Methuen took no action in any manner or form at any town meeting duly warned by an article in the warrant relative to a city charter, “unless and except the following can be construed as a compliance with the provisions of the second amendment to the Constitution:”</p> <p>On March 21, 1914, at a regular town meeting of the qualified inhabitants of the town of Methuen, a vote was passed providing for the appointment of a committee of nine qualified inhabitants of the town to investigate the advisability of changing the then existing form of town government of the town, and that such committee report their recommendations to a future meeting. At this meeting the warrant contained no article warning the inhabitants of any proposed change in the form of the town government or of the proposed appointment of the committee. The committee was appointed and acted in accordance with its instructions and submitted its report at the next annual town meeting held on March 6, 1915, under the article in the town warrant, “To hear reports of committees and to act thereon,” and recommended an application to the Legislature for the limited town meeting form of government, so called. Spec. St. 1916, c. 116, was passed by the Legislature, was approved by the Governor on February 24, 1916, and was accepted by the voters at a special election on July 29, 1916. On March 1, 1917, a hearing was held by the joint Legislative Committee on Cities in the town hall of Methuen, notice of the hearing having been duly advertised in newspapers announcing that the committee would give a hearing to parties interested in a Senate bill providing for a charter for Methuen, the notice being signed by the chairman and the clerk of the committee. That hearing was largely attended by the inhabitants of the town of Methuen, but the number present is unknown. A vote was taken at that hearing at which every person present, except one, voted in favor of changing from town form of government to the city form of government. The hearing was not presided over by the moderator of the town of Methuen, no check list of legal voters was used in connection with the aforesaid votes, no records of the hearing were kept by the town clerk of the town, who did not function at the hearing, and the number of voters present and voting thereon is unknown. Thereafter the committee reported to the Senate a bill which eventually was passed and, having been approved by the Governor, became Spec. St. 1917, c. 289. It was submitted to the legal voters of Methuen at the annual State election of the year 1917, when it was accepted, nine hundred and twelve voting in favor of and four hundred and fifty voting against acceptance, there also being two hundred and ten blank ballots. In December, 1917, an election was held at which a mayor and a board of aldermen were elected and on the first Monday in January, 1918, there was organized and inducted into office a full set of officers called for by the provisions of the charter and from that day until the date of this information the respondent city has conducted its affairs under and in accordance with the provisions of that charter, and no town officers have functioned.</p> <p>The relator, Charles W. Mann, was present and took part in the hearing called by the Legislative committee and there stated “that the town ought to have the right of voting whether it wanted a charter or not.” Since the alleged adoption of the charter he at one time has been nominated as a candidate for the city council, but at that time he did not have knowledge of any defect, constitutional or otherwise, in the alleged city charter, and as soon as he knew of the alleged defects he objected to the validity of the charter by disclosing to the Attorney General the defects set forth in the information.</p> <p>The case was reserved by Braley, J., for determination by this court upon the pleadings and the agreed statement of facts.</p>

<p>Certification, filed in the Superior Court on February 3,1920, under the provisions of the workmen’s compensation act, of a decision of the Industrial Accident Board awarding compensation to Sarah M. Dorman, widow of Charles Dorman, who was found to have died by reason of an injury arising out of and in the course of his employment by the Boston Sand and Gravel Company.</p> <p>The decision of the Industrial Accident Board contained the statement: “No question was raised as to the constitutionality of the amendment of 1917 [40 U. S. Sts. at Large, c. 97, § 2]. This question has been argued and decision is now pending before the Supreme Court of the United States in the case of Knickerbocker Ice Company v. Lillian E. Stewart, ... in error to the Supreme Court of the State of New York.”</p> <p>In the Superior Court, by order of Fox, J., a decree was entered in accordance with the decision of the Industrial Accident Board. The insurer appealed.</p>

<p>Bill in equity, filed in the Superior Court on April 5, 1920, for the reformation of a deed of real estate to correct an error in omitting certain land from the description through an alleged mutual mistake of the parties.</p> <p>Material allegations of the bill are described in the opinion. The defendant demurred to the bill. The demurrer was heard and was overruled and the suit then was heard upon the merits by Flynn, J., who found that a mistake had been made as alleged in the bill, and that the defendant had paid taxes since April 1, 1911, upon the land sought by the plaintiff. By order of the judge a final decree was entered directing the defendant to convey the omitted land to the plaintiff upon her paying the taxes from April 1, 1911, to the date of the deed with interest. The defendant appealed both from the interlocutory decree overruling the demurrer and from the final decree.</p>

<p>Certification to the Superior Court, under the provisions of the workmen’s compensation act, of decisions, hereinafter described, by the Industrial Accident Board relating to a claim by Margaret Devine, widow of John Devine, for compensation owing to his death alleged to have resulted on October 18, 19Í7, from an injury received on May 14, 1917, and to have arisen out of and in the course of his employment by Granite Mills.</p> <p>The claim was assigned by the board to a single member for hearing under the amendment to the act contained in St. 1917, c. 297, §§ 5, 6. “It was agreed that John Devine, the deceased employee, received a personal injury arising out of and in the course of his employment on May 14, 1917; that his average weekly wages were $9, and that he was paid compensation at the rate of $6 per week up to September 16,1917.” The single member of the board found: “The death of the employee, on October 18, 1917, was not due to nor related to a personal injury which arose out of and in the course of his employment by the subscribers. . . . All the evidence leaves it as unlikely and improbable that the employee sustained a personal injury to the elbow on May 14, or that there is any casual [causal] connection between the condition which caused the employee’s death and a personal injury arising out of and in the course of his employment.”</p> <p>After the filing of the decision of the single member with the board in accordance with § 7 of St. 1911, c. 751, Part III, as amended by Sts. 1912, c. 571, § 12; 1917, c. 297, § 4, the widow claimed a review by the board under § 10 as amended by Sts. 1912, c. 571, § 13; 1917, c. 297, § 6, and also filed with the board a “request for a rehearing” based on various grounds and supported also by affidavits as to “new evidence.”</p> <p>The Industrial Accident Board denied the motion for a rehearing, adopted and confirmed the findings of the single member and decided that the claim for compensation be dismissed.</p> <p>In the Superior Court, the widow moved that the case be recommitted to the Industrial Accident Board “for one of the following purposes:</p> <p>“1. To hear the parties and their witnesses and their evidence on the issue in regard to whether the employee’s death was due to a personal injury arising out of and in the course of his employment.</p> <p>“2. To hear the newly discovered witnesses and evidence of the widow on that issue and such witnesses and evidence as the insurer desires to offer on said issue.</p> <p>“ 3. To send the case to be tried by a committee on arbitration according to the law as it was on the date of the accident.</p> <p>“ (If either the first or second is ordered, the widow will waive the objection based on the ground that the trial before a single member of the Industrial Accident Board was illegal.)”</p> <p>The motion was heard by Hammond, J. He found that the record was not clear as to one aspect of the case, in that the Industrial Accident Board, while finding that the death of the employee “was not due to or related to a personal injury which arose out of and in the course of his employment,” had nowhere dealt with a particular contention of the widow that the insurer’s evidence would warrant a finding that the injury to the back of the employee, concededly sustained on May 14, 1917, “lit up ” an old diseased condition of the backbone and caused a general infection which produced septic pericarditis and thus caused his death; and that neither the single member nor the board had made .any specific findings of the subsidiary facts relating to this claim.. The judge accordingly made an order that the case be “recommitted to the Industrial Accident Board for the purpose of permitting the petitioner to move that specific findings be made with reference to her claim that the death of the employee was caused by aggravating or accelerating through the strain to his back due to the accident the consequences of a pre-existing diseased condition. If such motion is allowed and further findings made, the board may consider the case anew, and may if it sees fit permit the introduction of further evidence upon this branch of the case. This order of recommittal is made for the purpose above stated and not for the purpose of requiring the board to hear further evidence except as it may choose to do so.” Upon the recommittal, the board found “that the death of the employee was not. caused by aggravating or accelerating through the strain to his back due to the accident the consequences of a pre-existing, diseased condition.”</p> <p>Accordingly, in the Superior Court by order of Cox, J., a decree was entered dismissing the claim; and the widow appealed.</p>

<p>Negligence, Of one owning or controlling real estate. Proximate Cause.</p> <p>The duty which an owner of land, who maintains upon the land a wall or other structure bordering upon a public way, owes to persons upon the way is to keep such structure in a condition which shall be reasonably safe, having regard to its probable deterioration under exposure to the elements and also to all other attendant conditions which reasonably may be anticipated.</p> <p>In an action, by a child against the owner of land who maintained a wall thereon bordering upon a public alley, for personal injuries resulting from the wall falling upon the plaintiff, a finding for the plaintiff is not warranted where the evidence tended merely to show that, to the knowledge of the defendant, the wall leaned toward the alley and that its fall was caused by a boy climbing upon and jumping from the wall while the plaintiff, a child four years and three months of age, was playing nearby, and there was no evidence tending to show that the defendant reasonably should have anticipated that boys or others would climb upon the wall, or how far the wall was out of plumb or whether its being so was due to its original design or to later action of the elements, or that it was in a defective condition.</p> <p>In the action above described, it was stated that it was unnecessary to determine whether the act of one or more boys climbing on or over the wall was such an efficient intervening cause of the falling of the wall as to make the alleged primary cause too remote.</p>

<p>Petitions, filed in the Superior Court under R. L. c. 201, § 1; Sts. 1905, c. 370, § 1; 1917, c. 344, Part I, § 16, the first for personal injuries and the second for personal injuries and damage to the petitioner’s motor car resulting from a collision in the night time on September 11, 1917, with an iron horse barring a part of the State highway in the town of Spencer.</p> <p>' In the Superior Court the petitions were heard together by McLaughlin, J., without a jury. Material facts found by him are described in the opinion. The judge found for the respondent in both cases and, at the request of all parties, reported the cases to this court for determination.</p>

Bill in equity, filed in the Superior Court on June 4,1919, for a partnership accounting. The suit was referred to a master. Material findings by the master are described in the opinion.