Volume 239 — Massachusetts Reports

<p>Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board dismissing a claim on the ground that the employers were not subscribers within the provisions of the act.</p> <p>Proceedings before the single member of the board and the full board and in the Superior Court before Wait, J., are described in the opinion. A decree was entered dismissing the claim; and the claimant appealed.</p>

<p>Tort for damage resulting from the discharge of water by the defendant upon land of the plaintiff. Writ dated December 16, 1915.</p> <p>The action was referred to an auditor, the parties agreeing that the auditor’s finding of fact should be final. Material findings by the auditor are described in the opinion. The action was heard upon the auditor’s report as the only evidence by Lawton, J., without a jury. The defendant moved that the report be “rejected or recommitted,” and the plaintiff moved that judgment be entered on the auditor’s report. The judge denied the defendant’s motion and “ allowed the plaintiff’s motion that judgment be entered on the auditor’s report and ordered judgment to be entered accordingly.” Prom those orders “ the defendant claimed an appeal and duly excepted.”</p>

<p>Contract by a firm, doing business as copartners under the name of Brown and Adams, against a public warehouseman for failure to deliver thirteen bags of wool to the plaintiffs. Writ in the Municipal Court of the City of Boston dated September 25, 1919.</p> <p>On removal to the Superior Court, the action was tried before Morton, J. Material evidence is described in the opinion. At the close of the evidence the defendant presented a motion that a verdict be ordered in its favor, and requests for instructions to the jury. In a report of the action to this court, the judge stated: “ Being of the opinion that on the facts heretofore stated, which include all material testimony, there was no question in dispute for the jury and that the plaintiff was entitled to recover, I directed the jury to return a verdict for the plaintiff in the sum agreed on by the parties £$1,683.06] (in the event that my ruling is correct) and, at the request of the defendant I now report the case to the Supreme Judicial Court; if my directing a verdict for the plaintiff was right, judgment to be entered on the verdict; if my so directing a verdict was wrong, a new trial £is to be] granted or such other order entered as law and justice may require.”</p>

<p>Land Court, Exceptions. Prescription. Way, Private. Evidence, Presumptions and burden of proof.</p> <p>A statement in a bill of exceptions allowed in the Land Court, “ the evidence was substantially as follows,” was construed to be a declaration that the bill contained all the material evidence.</p> <p>Upon the hearing of a petition for the registration of the title to an island with a right of way to and from the island over a beach and bar at low tide from and to a public way on the mainland, there was evidence that a petition by a different petitioner for the registering of the title to certain land on the mainland and a part of the beach and bar was granted subject to a right of way appurtenant to the island over the beach and bar along the beach part of that petitioner’s land to the same public way; that the decree in that proceeding did not’decide that the petitioner in this proceeding had a right of way over the land of the respondent herein; and that the way in question in this proceeding had been in use for over thirty years. There was no evidence that such use was not permissive. Held, that a finding was not warranted that the right of way sought by the petitioner had been gained by prescription.</p>

<p>Equity Pleading and Practice, Master: exceptions to report, findings by master. Mortgage, Of real estate. Equity Jurisdiction, Accounting by mortgagee in possession.</p> <p>An exception to a finding by a master in a suit in equity must be overruled when the evidence upon which the finding was made is not reported and the finding is not inconsistent with other findings in the report.</p> <p>Where, in a suit in equity, an issue is, whether the defendant in the transactions described in the bill acted in good or in bad faith, an exception to a finding by a master in substance that, in a matter which led up to the transactions in issue in the suit and was between persons also involved in those transactions, the defendant had acted fraudulently, must be overruled.</p> <p>A master, in a suit in equity for an accounting, brought by a mortgagor against an assignee of the mortgagee, who was in possession for the purpose of foreclosure, found in substance that the beneficial owner of the plaintiff’s title was to reimburse the defendant for cash advanced to a construction corporation which was building apartment houses upon the mortgaged premises and for labor and materials used in the construction of the buildings, and that such reimbursement was without reference to any right of the defendant to be paid for services rendered to the construction company and that the right of the defendant “ to be paid a salary out of the funds coming from the mortgagees or the advances made by him, was not within the contemplation of the parties or within the terms of the agreement as made and understood by the parties and is an afterthought by the defendant.” Such payments therefore were not allowed as credits to the defendant. The evidence was not reported. Held, that the findings were conclusive.</p> <p>In the suit above described it appeared that the defendant entered upon the mortgaged premises within five months after the date of the mortgage; that at the date of the mortgage the taxes for the current year were due, and that these taxes with interest and charges were paid by the defendant after the suit was begun, which was over a year and two months after he took possession. The master found that the defendant mingled the funds of the estate with his own funds, that it was impossible to determine when the defendant had funds out of which he could have paid the taxes, and that the defendant offered no evidence on this point; and he refused credit to the defendant for the interest and charges. Held, that an exception to such refusal must be overruled.</p> <p>An exception, in the suit above described, to a refusal by the master to credit the defendant with commissions on rentals of the premises collected by him properly was overruled, where the master found that the defendant’s management of the property “ was not that of an ordinarily prudent owner under like circumstances, and that the defendant through lack of proper management of the property failed to obtain the fair rental value for the apartments.”</p> <p>In the suit above described, the master found that the defendant’s management of the property “ was not that of an ordinarily prudent owner under like circumstances, and that the defendant through lack of proper management of the property failed to obtain the fair rental value for the apartments. It is impossible to find exactly what amount the apartments would have brought under proper care, and how much would have been lost through vacancies and how much more would have had to be expended for additional repairs if the rentals had been increased to the fair rental value; but I find that on the average for the period .,. [between certain dates] the property netted $250 a month less than it would have produced under proper management.” The master refused to charge the defendant with $250 per month for the period. An exception by the plaintiff thereto was sustained and the charge was made. Held, that the plaintiff’s exception rightly was sustained, and that the plaintiff rightly was awarded the amount which he lost through negligent management by the defendant.</p> <p>The master found in the suit above described that the note, which was secured by the mortgage under which the defendant entered upon the premises, bore interest at twelve per cent; that it was intended to be temporary until the plaintiff in interest could arrange a permanent mortgage; that within a few weeks after it was placed the plaintiff in interest requested the defendant for an accounting and stated that he had arranged for a permanent mortgage with another party; that no accounting by the defendant could be procured; that the plaintiff in interest had no money or property except his equity in the property standing in the plaintiff’s name and that the defendant had knowledge of that fact, and that the failure of the defendant to make an accounting made it impossible for the plaintiff in interest to enter into negotiations for a permanent mortgage because he did not know how much money it would be necessary for him to obtain to pay off his indebtedness to the defendant. The master credited the defendant with interest at the rate of twelve per cent. An exception of the plaintiff thereto was sustained by the judge, who in view of the above findings of the master and his findings upon the good faith of the defendant or his lack of it, ruled that the rate should be six per cent beginning a month and a half after the defendant took possession. Held, that the rulings of the judge were correct.</p> <p>Endings by a judge hearing a suit in equity, where the evidence is taken by a commissioner appointed under Equity Rule 35, will not be set aside unless they are clearly wrong. '</p>

<p>Contract upon a promissory note, with a declaration in set-off, .as described in the opinion. Writ dated December 1,1920.</p> <p>In the Superior Court the action was heard by McLaughlin, J., without a jury, upon an agreed statement of facts. He ruled, and reserved and reported the case as follows: “ I am of opinion that upon the facts the plaintiff committed a breach of its contract with the defendant of May 2, 1919, by its failure to maintain abroad at all times an amount of credits equal to all its outstanding obligations of a similar character . . . that such breach of the plaintiff’s contract gives the defendant the right to rescind the same and therefore there should be judgment for the defendant in the principal action and a judgment for the defendant upon his declaration in set-off against the plaintiff for $642.30 with interest to the date of the filing of the declaration in set-off. But if such breach of contract does not give the defendant the right to rescind, then the plaintiff is entitled to recover from the defendant upon the promissory note declared on in the amount of $700 with interest from February 1, 1920, and the deféndant (plaintiff in set-off) is entitled to recover from the plaintiff the sum of $365, which is the value of 10,000 Italian Lire on February 2, 1920, the date of the filing of the declaration in set-off, increased by two per cent from May 2, 1919, to February 2, 1921, and judgment should be entered for .the respective parties accordingly. Both parties requesting it I hereby reserve the case and the aforesaid finding and decision, and report the case, the agreed facts hereto appended and all questions of law for determination by the Supreme Judicial Court. Such judgment to be entered as justice may require. It is agreed by both parties that any needed amendments of the pleadings may be made or may be considered as made.”</p>

<p>Bill in equity, filed in the Superior Court by Mary A. O’Brien (hereinafter called the plaintiff) and after her death prosecuted by the administrator of her estate, Dennis J. O’Brien, against Freeland E. Hovey, individually and as administrator of the estate of James F. Pennell, Annie E. Pennell, the widow, and Nellie P. Simpson, the daughter and heir at law of Pennell, and Charles River Trust Company (successor to Charles River National Bank), to establish that certain interests in real estate formerly owned by the plaintiff were held by the defendants Hovey, Pennell and Simpson as equitable mortgagees, for an accounting and for a reconveyance upon payment of whatever, if anything, was found due to the defendants as equitable mortgagees.</p> <p>The suit was referred to a master. Material findings of the master are described in the opinion.</p> <p>The defendants filed thirteen exceptions to the report, all but the fifth of which were based on objections to findings of fact by the master. The exceptions were heard by Hammond, J., and the fifth exception of the defendants, based on an objection to a refusal to allow the defendants credit for the value of services rendered by Pennell and Hovey, was sustained and the case was recommitted to the master for a finding as to the value of such services and a restatement of the account. The master allowed $2,800 for such services and, in a restatement of the account, found that there was due to the defendants on November 1, 1920, $14,422.71.</p> <p>The suit then came on to be heard by Sisk, J., for final decree upon the pleadings, the memorandum and order for decree and interlocutory decree made by Hammond, J., and the master’s reports, “ all parties waiving their right to object and except thereto, and thereupon, at the request of all parties in interest,” he reserved and reported the case to this court “ upon the pleadings, the facts found by the master in his report and in his supplemental report, and all questions of law therein, such decree to be entered as law and justice may require,” stating “ If it shall be held that the plaintiff is entitled to a decree for redemption of so much of the real estate conveyed by the mortgage referred to in the bill of complaint as now stands of record in the defendant Hovey, it is agreed that the amount found by the master as due on November 1, 1920, namely, $14,422.71, is correct, the defendants to be charged with rents or profits thereafter received and credited with payments thereafter made, interest to be credited from such date, on such amount and at such rate as the Supreme Judicial Court may determine.”</p> <p>The argument of the plaintiff in this court as to interest was that the proper basis for computing interest up to such time as a final decree should be entered was to compute it at twelve percent, the agreed rate in the Lebowich mortgage, on the balance of principal due on the mortgage. This, by deducting from the amount found by the master to be due to the defendants on November 1, 1920, the sums credited by the master as interest, $10,490.90, and as services, $2,800, the plaintiff contended was $1,131.81; and he argued that, if interest were to be allowed on any sum except principal due, it would mean that the mortgagees would receive .compound interest; and that, there being no agreement that they should have compound interest, it should not be allowed.</p>

<p>Actionable Tort. Negligence, In performance of public work. Public Worlc. Evidence, Opinion: expert, Of custom, Relevancy and materiality.</p> <p>While an action of tort will not lie to recover damages which necessarily are incl' dental to the performance of a public work authorized by the Legislature, such an action may be maintained against a contractor for damages resulting from negligence of himself or his employees in the performance of such work.</p> <p>Where, at the trial of an action of tort against a construction company for damages to a building of the plaintiff caused by negligence of the defendant in the excavating of a tunnel in the performance of a public work authorized by the Legislature, there is evidence that the plaintiff’s building was old and that, while it was in fairly good condition, it had cracks in the wall and some of the wood of which it was constructed was rotten; that, in a necessary relocating of a sewer, the earth was excavated to within about a foot of the front steps of the building; that this caused some of the bricks in the building to fall out of the foundation, the doors to fail to shut, the windows to be out of their frames and the stairs to be lowered and the building to settle from one and three eighths to a little less than one half of an inch; that it was the practice, when excavations were made near the foundations of a building, to hold it in position by temporary supports, and that no supports were used in this instance. Held, that the evidence required a submission of the case to the jury.</p> <p>At the trial of the action above described, expert testimony was admissible upon the question, whether it was “ proper construction ... to leave a building so near a deep excavation ” without proper support, and, also, whether by the use of proper care the building could have been prevented from settling.</p> <p>The action above described related to the construction of Dorchester tunnel, authorized by St. 1911, c. 741, and it was held that the contract between the Boston Transit Commissioners and the defendant for the construction of the portion of the tunnel in question was admissible in evidence for the purpose of showing that the defendant had control of that portion of the work.</p> <p>Evidence as to the common practice of supporting buildings when the earth is removed from a place close to the foundation was admissible in the action above described.</p>

<p>Bank. Trust. Equity Jurisdiction, To enforce “remittance order.” Commissioner of Banks.</p> <p>On a September 21 a trust company, upon receipt from a customer of $500 with thirty cents for postage, undertook and agreed to deliver to a specified person in Roumania a,specified number of Roumanian lei and delivered a "remittance order” to the customer which had printed on its face stipulations that it was “expressly agreed that . . . [the company] acts as agent only for the sender,” that the bank, “its Correspondent or Agent is to forward the money from any European Post Office to the required address,” that the liability of the bank “to the sender is to be no greater than the liability of the European Post Office to us, and all claims in case of loss of money to be adjusted only when the amount is received from the European Post Office or Correspondent,” that "refunds will be made at rate of Exchange prevailing on date of refund,” and that "this receipt must be produced when making inquiries regarding this order.” At that time the trust company had an ample net balance with a bank in Roumania. It was the practice of the company to send by every convenient sailing advices of remittances then awaiting execution. It mailed a letter of advice as to the remittance order above described on September 24. On September 25 the commissioner of banks under St. 1910, c. 399, took possession of the trust company and by cable stopped payment by the bank in Roumania. Held, that</p> <p>(1) The bank did not receive the money as a trust;</p> <p>(2) The agreement of the trust company was merely that it would procure and provide funds in Roumania to meet the order which it had sold and delivered to the plaintiff, when that order should be presented for payment;</p> <p>(3) The agreement between the parties did not contemplate that the money itself should be remitted or that the trust company should not use the money paid to it as its own pending the performance of its agreement with the plaintiff;</p> <p>(4) Upon failure of the bank to perform, the customer became a creditor of the bank to the amount of the exchange value of the specified number of Roumanion lei on that date: a contract Iiabifity not cognizable in equity.</p>

<p>Contract, the declaration originally being for $17,000, the purchase price of two thousand cases of raspberry jam which the plaintiff, a manufacturing corporation, had sold to the defendant, retaining its vendor’s lien by forwarding bill of lading with draft attached, and $2,000, alleged to be the expenses of their storage and shipment, and a count being added by amendment on January 14, 1920, claiming $8,117.07 and interest as a balance alleged to be due to the plaintiff after the resale of the jam for the defendant’s account described in the opinion. Writ dated July 8, 1919.</p> <p>In the Superior Court the action was tried before Bishop, J. Material evidence is described in the opinion. At the close of the evidence, the plaintiff moved that a verdict be ordered for it in the sum of $9,598.50. The motion was denied and the action was submitted to the jury upon instructions described in the opinion. The jury found for the plaintiff in the sum of $4,444.93; and the plaintiff alleged exceptions.</p> <p>i Material portions of the sales act, St. 1908, c. 237, were as follows:</p> <p>“ Section 19. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: . . .</p> <p>“ Rule 4. (1) Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.</p> <p>“ (2) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section twenty. This presumption is applicable, although by the terms of the contract, the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words ‘ collect on delivery ’ or their equivalents.”</p> <p>“ Section 20. (2) Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.”</p> <p>“ Section 52. (1) The seller of goods is deemed to be an unpaid seller within the meaning of this act: —</p> <p>“ (a) When the whole of the price has not been paid or tendered. . . .</p> <p>“ Section 53. (1) Subject to the provisions of this act, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has: —</p> <p>“ (a) A lien on the goods or right to retain them for the price while he is in possession of them. . . .</p> <p>“ (c) A right of resale as limited by this act. . . .”</p> <p>“ Section 60. (1) Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having a right of lien or having stopped the goods in transit may resell the goods. He shall not thereafter be liable to the original buyer upon the contract to sell or upon the sale, or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale.</p> <p>“ (2) Where a resale is made, as authorized by this section, the buyer acquires a good title as against the original buyer.</p> <p>“ (3) It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or of the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the resale was made.</p> <p>“ (4) It is not essential to the validity of a resale that notice of the time and place thereof should be given by the seller to the original buyer.</p> <p>“ (5) The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or private saje.”</p>

<p>Evidence, Testimony at a former trial, Refreshment of recollection. Witness, Refreshing recollection.</p> <p>Where, at a hearing of a suit in equity before a second master, who had been appointed to succeed a master who, after extended hearings at which the evidence had been taken stenographically and transcribed with accuracy, had died before the hearings were closed, a witness who, after examining the typewritten record of his testimony before the first master as to what took place at a certain conference, has testified that he could not testify as to what took place at the conference “ without looking at the book,” and that his testimony given at the hearing before the former master was his best recollection of the matter, the master properly may refuse to permit the witness to be asked or to answer a question, “ with this record before you and reading where it is necessary, will you tell us what took place at that meeting? ” because it appeared that the memory of the witness was not refreshed by reading his prior testimony and that he had no present recollection of the facts which at the former trial he had recollected as the truth.</p>

Tort for personal injuries sustained by the plaintiff when fourteen years of age in a collision of a horse and wagon driven by his father with an electric street car of the defendant,. Writ dated October 11, 1918. In the Superior Court the action was tried before Dubuque, J. Material evidence and an exception saved by the defendant to a portion of the charge to the jury are described in the opinion.

<p>Federal Employers’ Liability Act. Executor and Administrator. Jurisdiction. Evidence, Presumptions and burden of proof. Conflict of Laws. Judgment. Release.</p> <p>Within two months after the death in the State of New York of an employee of a railroad company engaged in interstate commerce, one who was not next of kin of the decedent petitioned the Surrogate’s Court in that State for appointment as administrator and the petition was granted by a decree reciting that the decedent " left no estate except an alleged cause of action against the . . . [railroad company! for injuries resulting in his death,” that “no heirs at law or next of kin of said decedent can be found after a thorough, diligent search,” and that the administrator was the only known creditor and was the undertaker who buried the decedent. All requirements of the New York statutes relative to notice were complied with. The next day after his appointment, the administrator executed and delivered to the railroad company a release of all claims in consideration of 8160. A month later an administrator was appointed in Massachusetts, who brought an action against the railroad company under the federal employers’ liability act for the benefit of the decedent’s mother. The defendant set up the release in bar. Held, that</p> <p>(1) Under §§ 2515, 2517, 2589 of the New York Code of Civil Procedure, the cause of action which arose by reason of the death of the employee was an asset sufficient to give jurisdiction to the Surrogate’s Court in the county in which the accident occurred;</p> <p>(2) In view of the facts above recited and the presumption that the Surrogate’s Court found such facts to exist as authorized it under the laws of New York to appoint an administrator, it could not be said that its decree was invalid for want of jurisdiction;</p> <p>(3) While ordinarily primary administration should be granted in the State of the intestate’s domicil, it cannot be said that the courts of another State, having jurisdiction, must necessarily wait for proceedings to be brought in the domiciliary State, especially where the only assets in either State are a right of action for death under the federal statute;</p> <p>(4) The Surrogate’s Court having had jurisdiction, its decree appointing an administrator, until revoked, could not be attacked collaterally and set aside because of the failure to give notice of the application to persons outside of the State whose right to the letters of administration might be superior to that of the applicant;</p> <p>(5) The New York administrator had a legal right and authority to compromise the claim against the defendant and to release it from liability.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 22, 1916, and afterwards amended, by the New York Central Railroad Company and the Boston and Albany Railroad Company, as lessee and owner of land abutting upon land conveyed by the Boston and Albany Railroad Company to predecessors in title of the defendants at the corner of Exeter Street and Boylston Street in Boston, against the trustees of the Ledyard Realty Trust and the executors of the will of Frederick Ayer, owners, and the Lenox Operating Company, the lessee of that property, seeking to restrain the defendants from alleged violations of the express easement described in the opinion.</p> <p>The suit was referred to a master. Findings and rulings by him are described in the opinion. The plaintiffs filed exceptions, to the report as follows:</p> <p>1. To the following finding in the report relative to the two fire-escapes : “ I find that the building commission of the city of Boston ordered the respondent Frederick Ayer to put these fire escapes-in their present position where they now are, the commission knowing that they would extend across the line of the passageway. Unless two additional fire escapes had been put on or in the building, it would have been placarded and guests would have been notified that it was unsafe to live in it, which would have resulted in the closing of the hotel. Even if the building commission had allowed these new fire escapes to be put on the Exeter and Boylston street fronts of the building, they would have destroyed its-appearance; also if placed on the street sides of the building they would have been nearer the present stairs inside, and the means-of escape in case of fire would not have been as accessible as where-they now are. If two new fire exits were provided inside the-building from the top to the bottom, they would have eliminated many sleeping rooms and would have seriously lessened the renting receipts, nor did it appear that this method of construction would have been approved by the building commission.” The-ground for this exception was that this finding was not material to any issue raised in this suit.</p> <p>2. To the following finding relative to the use made by owners in fee of land subject to passageways of the general character involved in this suit: “ I find from the evidence given under this, offer of proof, if material, that in passageways of a similar physical character pipes, window sills, cornices, shutters, signs, walks and. fire escapes very frequently project over the side lines of the ways and coal holes and hatchways are placed in passageways; structures such as the stairs, open area and fence, hereinbefore described, do not generally exist in passageways; but it was not proved whether abutting owners owned the fee of such ways, or whether the projections were erected with or without the consent of others, having rights in the ways; nor was the language in any deeds or written instruments establishing the ways given, nor did it appear how the ways were created or for how long such projections had. existed.” The ground for this exception was that the evidence from which the master made this finding was incompetent, without proof that the abutting owners owned the fee of such other passageways and that the language in the deeds and written instruments establishing them was of the same legal effect as the reservation in the deed from the Boston and Albany Railroad Company to George Wigglesworth et al., dated April 18, 1899, and without proof that the projections on such other passageways were erected without the consent of others having rights therein.</p> <p>3. To the following finding contained in the report: “ If the attention of the owners of the building had been called at the time it was erected to the fact that the structures referred to would project, the construction could then have been changed with much less trouble and expense than at the present time.” The ground for this exception was that the finding was immaterial to any issue raised in this suit in view of the further findings of the master that no direct evidence was introduced that the defendants’ predecessors in title acted inadvertently or under an innocent mistake of law or fact or relied upon the silence or any statement or conduct of the complainants, their officers, agents, or employees, and that there was no direct evidence of any affirmative statement by the plaintiffs, their officers, agents, or employees, consenting to the projections nor of affirmative conduct on their part allowing such consent except the presence of the plaintiffs’ engineers and other officials or agents and employees on the railroad land in sight of the building at the time it was erected.</p> <p>The exceptions were heard by Carroll, J., by whose order an interlocutory decree was entered, sustaining the second and overruling the first and third exceptions. The single justice then, at the request of the parties, reserved and reported the case for determination by the full court upon the pleadings, the master’s report, the plaintiffs’ exceptions thereto, and the interlocutory decree on the exceptions.</p>

<p>Equity Jurisdiction, To reach and apply assets not attachable at law. United States of fLmeriea.</p> <p>A suit in equity under G. L.'c. 214, § 3, cl. 7, cannot be maintained by a creditor of a railroad corporation against the railroad corporation alone to reach and apply in payment of the debt owed to the plaintiff claims of the defendant against the United States of America under the U. S. St. 1918, c. 25, § 1, or under U. S. St. 1920, c. 91, for which no federal treasury warrant has been issued and which still are largely undetermined, the fact that the United States of America cannot be sued except by its consent not giving the court jurisdiction to adjudicate its rights when it is not a party and cannot be heard, and the claim not being property “ in the hands, possession or control of the debtor independently of any other person."</p>

<p>Carrier, Of goods, In interstate commerce. Interstate Commerce Act. Contract, Validity.</p> <p>If goods are shipped from the State of Washington to the State of Pennsylvania under a bill of lading containing the provision, “ The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, 'including the freight charges, if paid,” and through negligence of a connecting carrier while in the course of the shipment the goods are destroyed in the State of Connecticut and the value of the property at the place and time of shipment is greater than that at the place and time of destination, the shipper is entitled under § 20 of the interstate commerce act (34 U. S. Sts. at Large, 595), as amended by 38 U. S. Sts. at Large, 1197; 39 U. S. Sts. at Large, 442, to recover only the value of the property at the time and place when and where they should have been delivered.</p>

<p>Bill in equity, filed in the Superior Court on June 3, 1920, to enjoin the defendant from erecting a hospital for the reception of persons having tuberculosis in that part of Fall River called the Highlands.</p> <p>In the Superior Court the suit was referred to a master. The testimony of Richard P. Borden, Esquire, referred to in the opinion, was reported in full in the record. He testified, among other things, in substance that, from 1906 on, about one half of his time had been devoted to studies of matters connected with hospitals, public health matters, not from the medical point of view, but from the preventive, institutional and sanitary point of view, and that since 1911 he had given especial attention and study to the care ip hospitals of persons suffering from tuberculosis, naming civic and public bodies with and for whom he had acted in such matters. He then was allowed to be asked, “ Now what in your opinion will the location of the tuberculosis hospital upon that site, what will be the effect of that upon the health of the neighborhood? ” and answered, “None, except as a possibility from the educative value which has been ascribed to it by various experts, of which I am not at all certain.”</p> <p>Mr. Borden further described in detail investigations which he had made in several cities and towns widely separated with relation to the effect of the location of a hospital upon real estate in the neighborhood, and was then permitted to be asked and to answer the following questions:</p> <p>Q. “ Have you formed an opinion as the result of your investigations in regard to the effect of the location of a hospital upon the value of real estate in the neighborhood? ” A. “Yes, sir.”— Q. “And what is your opinion as to the effect upon the values of real estate? ” A. “ There is no appreciable effect after the hospital has been in existence for a certain time. There always is a diminution in the value of real estate before a hospital has been in a place for a certain time.” — Q. “ And after that?” A. “ That disappears.”</p> <p>Material facts found by the master without a report of the evidence, and exceptions by the plaintiffs are described in the opinion. The suit was heard upon the exceptions and on the question of final decree by Thayer, J., by whose order there were entered an interlocutory decree overruling the exceptions and confirming the report and a final decree dismissing the bill with costs. The plaintiffs appealed.</p>

<p>Fall River. Municipal Corporations, Public hospital.</p> <p>A petition under R. L. c. 25, § 100, to prohibit the use of money borrowed by the city of Pall River under Spec. St. 1916, c. 119, and St. 1920, c. 227, for the purpose of building a tuberculosis hospital on the “Poor Farm,” so called, which already was owned by the city and was not purchased by the use of the money acquired under those statutes, cannot be maintained since, by St. 1921, c. 98, the city was authorized to borrow $300,000 “ in addition to any sums heretofore authorized on account of said hospitals ” for “ the purpose of constructing, uniting, and consolidating its municipal hospitals now existing or hereafter to be built, including its contagious, general and tuberculosis hospitals, ... on any land now belonging to the city of Fall River and authorized to be used for hospital purposes or any additional land which may be acquired by it. . . . ”</p>

<p>Petition, filed in the Probate Court for the comity of Bristol on March 28, 1919, and afterwards amended, for the revocation of a decree of that court entered on August 2, 1907, allowing the will of Frederick W. Renwick, late of New Bedford.</p> <p>The respondent, the executor appointed by the decree sought to be revoked, pleaded in bar that the decision in Renwick v. Macomber, 233 Mass. 530, was res judicata, and precluded the petitioner from maintaining this .petition.</p> <p>The petition was heard in the Probate Court by Alger, J., and was denied. On appeal to the Supreme Judicial Court the petition was referred to a master. The findings of the master as summarized by him were as follows:</p> <p>“ 1. Frederick W. Renwick was not of sound and disposing mind and memory when on June 29, 1906, he executed the instrument subsequently allowed as his last will.</p> <p>“ 2. The execution of the instrument allowed as the last will of Frederick W. Renwick was procured by undue influence exercised upon him on the part of the respondent William B. Macomber.</p> <p>“ 3. The respondent William B. Macomber knowingly permitted false testimony as to the soundness of mind of Frederick W. Renwick at the time of the execution of the instrument offered for probate as his last will to be submitted to the Probate Court for the county of Bristol in order to obtain the allowance of that instrument.</p> <p>“ 4. Frederick W. Renwick never acquired a domicil in New Bedford in. the county of Bristol or elsewhere in Massachusetts. At the time of his death his domicil was in the city of New York.</p> <p>“ 5. The respondent William B. Macomber signed and made oath to the petition for the probate of the will of Frederick W. Renwick and permitted the same to be offered for probate in the county of Bristol believing that Renwick last dwelt in New Bedford.</p> <p>“ 6. Solely as a conclusion from the facts stated in this report I find that the respondent William B. Macomber fraudulently concealed from the petitioner the fact that her husband left an estate and that an instrument was being offered for probate by him in the Probate Court for the County of Bristol which purported to be his last will.</p> <p>“7. The petitioner did not know that her husband left any estate and had no notice or knowledge of the existence of any instrument purporting to be his last will or of. any proceedings-for its allowance or of any subsequent proceedings affecting his estate until shortly before the filing of the present petition. Her ignorance in these respects was the sole reason for her failure to assert her rights in his estate earlier. She has been in no respects, guilty of loches.”</p> <p>The case was reserved by order of Crosby, J., for determination by the full court.</p>

<p> Intoxicating Liquors. Jamaica Ginger. </p> <p>At the trial in the Superior Court of a complaint for unlawfully exposing and keeping for sale intoxicating liquor without authority, where the alleged intoxicating liquor was Jamaica ginger having an alcoholic content of more than ninety-one per cent and it was admitted that the defendant kept it with intent to sell it, the question, whether the preparation was a beverage, was for the jury and evidence tending to show that the preparation was used extensively for beverage purposes and was intoxicating was admissible and warranted a conviction although the preparation was called a medicine and was used by many for medicinal purposes.</p> <p>If, upon a complaint for violation of R. L. c. 100, §§ 1, 2, it appears that the defendant kept for sale intoxicating beverages or any preparation which, although commonly used as a household remedy, was intoxicating and was used to such an extent for drinking that a jury could say it was a beverage, the defendant’s intent in making the sale is immaterial.</p> <p>St. 1910, c. 172, is no defence to the complaint above described if the evidence warrants a finding, and the jury find, that Jamaica ginger is an intoxicating beverage.</p> <p>St. 1910, c. 172, did not authorize in any way the sale of intoxicating beverages.</p>

<p> Survival of Action. Death. Fraud. </p> <p>In the declaration in an action against six defendants, the plaintiff alleged that the defendants conspired to defraud him by obtaining from him “ an outright assignment of his rights and title ” to certain letters patent, “said assignment being represented to the plaintiff by” two of the defendants “as an assignment in trust for the benefit of the said plaintiff;” that the instrument was obtained by threat of arrest; that “ said outright assignment was recorded by the ” same two defendants “in the United States Patent Office, although the transaction had never been completed or the declaration of trust executed; ” and, in substance, that the plaintiff was induced to execute the absolute assignment, when he intended merely to make a transfer in trust, through deceit, duress and fraud practised by the defendants. The plaintiff in his declaration sought damages because he was deprived of the use and profit of the letters patent. The plaintiff died after the action was brought. Held, that the action was not “ for goods taken and carried away or converted, or for damage to real or personal property " within the meaning of G. L. c. 228, § 1, and did not survive the death of the plaintiff.</p>

Contract, with a declaration in two counts described in the opinion. Writ dated December 1, 1919.

<p>Tort, with a declaration as amended in two counts, which are described in the opinion. Writ dated February 20, 1920.</p> <p>The defendant demurred. In the Superior Court, the demurrer was heard by Wait, J., and was sustained, and on motion of the defendant judgment was entered in its favor. The plaintiff appealed.</p>

Petition, filed in the Supreme Judicial Court on May 10, 1916, for a writ of certiorari directing the county commissioners of the county of Middlesex to certify the records of that board relating to a petition by the selectmen of the town of Reading, filed on April 13, 1915, under St. 1906, c. 463, Part II, § 115, for the repair of a bridge maintained by this petitioner over Lowell Street in Reading and “all their orders and proceedings in the premises, with such an…

<p>Bill in equity, filed in the Supreme Judicial Court on December 2,1920, by the trustee in bankruptcy of Benjamin P. Cheney against the trustees under the will of the father of the bankrupt, also named Benjamin P. Cheney; all beneficiaries and persons interested in the trust under the will as established by compromise; Henry F. Woodard and Bates Warren, trustees, Frederic E. Snow and Henry B. Day, trustees, and Herbert P. Queal, the holders respectively of three assignments by the bankrupt made more than four months preceding his bankruptcy; and three creditors who by legal process had attachments upon the interest of the bankrupt under the will as compromised which were more than four months old at the time of the adjudication.</p> <p>The ninth paragraph of the will as amended by the agreement of compromise established by decree of the court was as follows: “ Ninth. To divide the net income of the residue of the estate remaining after carrying out all the provisions of said will as hereinbefore modified by this agreement equally among the children of the said testator, such division and payment to said children to be made semi annually during the lives of each. And in the event that any child shall die at a time intermediate between said payments, said trustees shall pay to the legal representatives of such child a proportionate part of said income; provided, however, that upon the death of any child of the testator the trustees shall pay and deliver a share of the principal of said residue held by them and not needed for carrying out any provisions of this trust remaining unfulfilled, not including in such unfulfilled provisions the division among the children of the net income of the residue, which share shall be proportioned to the number of said children, including in the enumeration for the purpose of establishing such proportion such child so dying (but not including any child previously deceased whose share of principal has been previously paid over), to the executor or executors of such deceased child to be disposed of as provided in his or her will, or, if such child shall die intestate, to his or her legal representatives to pass or be distributed under the Statutes of descent and distribution then in force in this Commonwealth. . . .”</p> <p>In the assignment to Woodard and Warren, trustees, was the following: “ The said Benjamin Pierce Cheney hereby covenants and agrees if he has not already done so, to execute a will, good and sufficient in law, by the terms of which all of his interest in the estate of his late father shall be devised and bequeathed first to the protection of all his creditors, including those enumerated in schedule . . . [attached to the assignment] or any part of said indebtednesses which may remain unpaid at the time of the decease of Benjamin Pierce Cheney.”</p> <p>Other material allegations of the bill are described in the opinion. The prayers of the bill were:</p> <p>“ 1. That the interest of said bankrupt in both the principal and income of said trust estate may be ascertained and determined.</p> <p>“ 2. That the interest of the plaintiff as trustee in bankruptcy of said Benjamin P. Cheney in both the principal and income of said trust estate may be ascertained and determined.</p> <p>“ 3. That the rights of said assignees . . . and the rights of said attaching creditors, . . . may be ascertained and determined.</p> <p>“ 4. That . . . the trustees of the trusts created by said will and agreement of compromise, account to the plaintiff in regard to the said trust fund, and the income thereof.</p> <p>“ 5. That the plaintiff be substituted for said bankrupt, Benjamin P. Cheney, in said agreement of compromise subject to the rights of said assignees and attaching creditors.</p> <p>“ 6. That said bankrupt, Benjamin P. Cheney, be directed to execute a proper deed of conveyance of his interests in said trust fund and the income thereof to the plaintiff.</p> <p>“ 7. That . . . the trustees of the trusts created under the said will and agreement of compromise as aforesaid, be ordered to account with the plaintiff as said trustee in bankruptcy for such part of the principal and of the income of said trust fund so held or to be received and held by them for the benefit of said Benjamin Cheney as may be necessary, subject to the rights of said assignees and attaching creditors, until the said plaintiff as trustee in bankruptcy as aforesaid shall have received a sum of money which, together with any other assets of said bankrupt estate, shall be sufficient to pay all claims which maybe proved against said bankrupt estate, with interest thereon at six per centum, together with the costs and expenses of said bankruptcy proceedings which may be. allowed by the United States District Court within and for the District of Massachusetts and the costs of this suit.</p> <p>“8. That, after an accounting has been had as hereinbefore requested, said . . . trustees of the trusts created under said will and agreement of compromise as aforesaid be directed, after paying the claims of such of said assignees and attaching creditors as may be determined to be valid, to pay over to the plaintiff as said trustee in bankruptcy such proportion of the principal of said trust fund so held or to be received and held by them for the benefit of said Benjamin P. Cheney as shall be sufficient, together with any other assets of said bankrupt estate, to pay all claims which may be proved against said bankrupt estate, with interest thereon at six per centum, together with the cost of said bankruptcy proceedings which may be allowed by the United States District Cotut within and for the District of Massachusetts, and the costs of this suit.</p> <p>“ 9. Or, in the alternative, that the interest of said bankrupt in the principal and income of said trust fund be sold, and after the payment of all prior liens such proportion of the proceeds thereof be paid to the plaintiff as said trustee in bankruptcy as, together with any other assets of said bankrupt estate, shall be sufficient to pay all claims which may be proved against said bankrupt estate, with interest thereon at six per centum, together with the costs and expenses of said bankruptcy proceedings which may be allowed by the United States District Court within and for the District of Massachusetts and the costs of this suit.</p> <p>Benjamin P. Cheney demurred to the bill, and assigned as grounds of demurrer the following:</p> <p>“ 1. That the plaintiff in his bill does not set forth any equitable grounds upon which to maintain his suit, substantially in accordance with the provisions of It. L. c. 159, § 3.</p> <p>“2. That the plaintiff’s bill does not allege that the trusts created under the will of Benjamin P. Cheney, late of Dover, deceased, and the compromise agreement relating thereto, approved by a decree of this Honorable Court, are not valid and existing trusts; further, it contains no allegations that the purposes of said trusts have yet been fulfilled; neither does it appear that the other parties in interest in the trusts have assented to the termination of said trusts.</p> <p>“ 3. The plaintiff alleges in his bill that all the property of the defendant Cheney passes to him as trustee in bankruptcy under the provision of the United States statutes relating to estates in bankruptcy; if so, it follows, as a matter of law, that he has full authority to sell any or" all of said property, under the supervision of the bankruptcy court.</p> <p>“ 4. That the plaintiff is seeking the instructions of this court as to the performance of his official duties, acting under an appointment by a court of superior and general jurisdiction, relative to the administration of an estate of a bankrupt, under the laws of the United States, a subject-matter over which this court has no jurisdiction.</p> <p>“ 5. It having been expressly adjudicated by final decree in this court, now in full force and effect, in the suit of Woodard v. Snow, 233 Mass. 267, that the income of a child of the testator under the will of Benjamin P. Cheney, late of Dover, deceased, and the compromise agreement thereunder, was a vested interest and subject to assignment, a bill to reach and apply the same cannot be maintained, under the provisions of R. L. c. 159, § 3, and acts in addition and amendment thereto.</p> <p>“6. The rights of Woodard and Warren, trustees, having been adjudicated by a decree now in full force and effect, said Woodard and Warren are improperly joined as parties defendant in this suit.</p> <p>“ 7. The allegations of the plaintiff’s bill as to the defendants State Street Trust Company, J. R. Whipple Company, and Thomas G. Washburn, [attaching creditors] respectively, do not allege that the defendant Cheney is indebted to either of them, or that any suits are now pending as against any other party named in this suit; neither do they allege in what court, if any, said suits are pending, or whether they have been terminated by final decree, or what interest of the defendant Benjamin P. Cheney said State Street Trust Company, J. R. Whipple Company, and Thomas G. Washburn, respectively, seek to reach and apply. The allegations as to all said defendants are too vague and indefinite to warrant their being made parties respondent in this suit.</p> <p>“ 8. That with the exception of the assignment of income to Woodard and Warren, trustees, which the plaintiff alleges in his bill was a legal and valid assignment, it does not appear from the allegations in the plaintiff’s bill that the alleged assignment made by the defendant Cheney, of his right to receive income, made to Richard Olney and others, trustees under said will, was a legal or valid assignment, or that said assignment is now in force; neither is it alleged in the plaintiff’s bill that the further assignment of such income, made to one Herbert P. Queal, was a legal or valid assignment, or that said assignment is now in force.</p> <p>“ 9. That this court cannot grant the relief prayed for,' as it has no jurisdiction to direct a sale of property vested in a trustee in bankruptcy, the control of all matters in the administration of a bankrupt’s estate being exclusively vested in the courts of the United States of America.</p> <p>“ 10. The trustee in bankruptcy of the estate of Benjamin P. Cheney has no greater or further rights in the principal of the trust fund, under the will of Benjamin P. Cheney, late of Dover, deceased, than the bankrupt. The bankrupt could not call for a termination of the trust.</p> <p>“ 11. The trustee in bankruptcy cannot exercise the power of appointment — that being a personal privilege, and not a property right. If the power of appointment is not exercised, then the principal of the trust fund vests in such person or persons as may be the heirs at law of Benjamin P. Cheney, as of the date of his death, and those persons cannot be determined in his lifetime.</p> <p>“ 12. The plaintiff, as an alleged party in interest, seeks an accounting from trustees acting under a will duly probated in the Probate Court for the county of Norfolk in this Commonwealth, and, the Probate Court being now a court , of superior and general jurisdiction, a bill for an accounting under a trust created by will, as far as the termination of said trust, can be had only in the court in which said will was probated, this court having no original probate jurisdiction.”</p> <p>The demurrer was heard by Carroll, J., who overruled it and, being of opinion that the decision so affected the merits of the controversy that the matter decided ought, before further proceedings, to be determined by the full court, at the request of the plaintiff and of the defendant Benjamin P. Cheney reported to the full court the questions raised by the demurrer.</p>

<p>Actionable Tort. Sale, Caveat emptor. Negligence, In mixing of feed for farm animals. Deceit. Practice, Civil, Law of the case, Requests, rulings and instructions.</p> <p>A manufacturer of a prepared feed for farm animals which in its ordinary state is not harmful to poultry, is not liable in an action of tort for negligence brought against him by a purchaser of some of the feed from a dealer, to whom the defendant had sold it and who was not an agent of the defendant, in which action the plaintiff claimed damages for a loss of poultry resulting from the feed so purchased having been negligently mixed by the defendant so that salt, commonly used as a desirable ingredient in commercial poultry feeds, was present in too large a quantity.</p> <p>Statement by De Courcy, J., of the rule, caveat emptor, and the exceptions thereto.</p> <p>Rulings adopted by a trial judge at the request of a party and given by him to the jury as instructions become the law of the case, irrespective of whether they are too favorable to the party requesting them; and if, according to the law as thus stated to the jury, there is no warrant for a finding for the adverse party, it is error to submit the case to the jury.</p> <p>At the trial of an action by a poultry farmer against a manufacturer of feed for farm animals for a loss of poultry alleged to have been caused by negligence of the defendant in the mixing of a commercial feed which the defendant had sold to a dealer, not his agent, from whom the plaintiff had purchased it, the trial judge at the defendant’s request ruled and instructed the jury that there was no evidence that the device or the methods of manufacture used by the defendant in the preparation of the feed were not reasonably adapted to its safe and proper and careful preparation; that a manufacturer of an article of food for poultry which is not inherently dangerous to poultry is not liable, in an action of tort for negligence, for damages due to negligence in manufacture, nor is he bound at his peril to know that particular lots of his product are not dangerous to animals and poultry if fed to them; and that, if the jury found that there were lumps of salt in the feed used by the plaintiff, that fact was not of itself evidence of negligence of the defendant in the mixing or sale of the feed. Subject to an exception by the defendant, the action was submitted to the jury who found for the plaintiff. Held, that, upon the instructions given, which had become the law of the case, a finding for the plaintiff was not warranted, and that the defendant’s exceptions must be sustained.</p> <p>At the trial of an action of tort for deceit, brought by a poultry farmer against a manufacturer of feed for farm animals for a loss of poultry alleged to have been caused by giving to them for food an improperly mixed feed which the defendant had sold to a dealer, not his agent, from whom the plaintiff had purchased it relying on representations by the defendant that it was “ always uniform in quality,” was “absolutely safe to feed,” and the “ideal feed for all farm animals,” there was neither allegation nor proof that the defendant sold the particular lot of feed in question to the dealer, knowing it to be unfit for poultry. The judge at the defendant’s request instructed the jury in substance that statements upon which an action of deceit may be founded must be statements of fact, not of opinion; that, upon all the evidence, the only statements of the defendant in regard to the feed on which the plaintiff relied were “ sellers’ talk; ” that honest statements of opinion will not found an action for deceit even though the opinion is not a correct one; and that there was no evidence that the defendant did not believe the statements made by it as to feed to be true. The defendant also asked for an instruction that, upon all the evidence, there was no evidence of any misrepresentation of fact by the defendant in any statement on which the plaintiff relied. The judge gave the last instruction, adding, subject to an exception by the defendant, “ but I refer you to exhibits three and four in reference to that.” The exhibits referred to were a circular letter of the defendant giving a summary of a test made by the Massachusetts experiment station as to the digestibility of the feed, and an advertising booklet of the defendant which contained the representation above quoted. Held, that the reference to the exhibits nullified the ruling to which it was added and in the circumstances was prejudicial error.</p>

<p>Soldiers’ and Sailors’ Civil Relief Act. Mortgage, Of real estate: foreclosure. Pledge.</p> <p>Default having been made in the provisions of a second mortgage upon real estate before the approval of the soldiers’ and sailors’ civil relief act, 40 U. S. Sts. at Large, 440, 449, a new second mortgage was negotiated with another person as mortgagee, which, although dated before, was not delivered until after that statute went into effect, and as part of the transaction the old second mortgage was not discharged but was assigned to the new second mortgagee, the new second mortgage reciting that the old mortgage so assigned was to be held by the new second mortgagee as “ additional security for the amount secured hereby.” Upon a breach occurring of the new second mortgage, the holder made an entry to foreclose it and at the same time gave notice by publication of a sale under the power of sale in the original second mortgage, a sale was held and the property was sold. In a suit to have the sale declared void as in violation of the soldiers’ and sailors’ civil relief act, it was held, that, by § 302 (1) of the statute, its provisions did not apply to the foreclosure sale, that sale being to enforce the debt represented by the new second mortgage note, which did not originate until after the act went into effect.</p>

<p>Agency, Fidelity of agent. Invention. Patent.</p> <p>While an invention made by an employee in the general course of his employment and at his employer’s expense, irrespective of its value or the importance of its control to the success of the employer’s business, is the property of the employee unless by the terms of his employment or otherwise he has agreed to transfer to his employer its ownership as distinguished from its use, where an employee, while wholly engaged for Ms employer as Ms sole employment in experimental work to develop a method of manufacturmg magneto condensers, made mventions involving important changes and improvements wMch, combined with others of minor importance, constituted a change, improvement or invention in the general process of the manufacturmg of magneto condensers, the nature of the employment impressed on the employee such a relationsMp of trust and confidence as estopped Mm from claiming as his own property that wMch he had brought into bemg solely for the benefit and at the express procurement of his employer; and tMs result is not affected by the fact that there was no express understanding between the employer and the employee as to further inventions.</p> <p>A manufacturer may maintain a smt m equity against former employees and corporations wMch they had formed and m wMch they are the sole stockholders, to enjoin the use or disclosure, in the manufacture and sale of articles in competition with the plaintiff, of inventions, made by the mdividuals wMle in the employ of the plamtiff and engaged as their sole employment m experimental work to develop a method of manufacturing a certain article, and of secret processes and confidential information wMch had been obtamed by the individual defendants while m the plaintiff’s employ.</p> <p>An employee, in leaving his employment, has a right to use Ms general knowledge, experience, memory and skill; but he has no right to use or to disclose any secret processes or information wMeh his employer was entitled to keep for his own use and as to which, as against the employee, the employer has exclusive property rights.</p>

<p>Trust, Construction of instrument creating trust.</p> <p>The owner of certain real estate conveyed it by deed to trustees “In special confidence and trust to hold said premises during the lives of all my children now living, and during the lives of all my grandchildren now living, and for twenty years after the death of the last survivor of my said children and my grandchildren . . .” to pay income to the grantor during his life, and provided that, after his death “ Said income is to be divided into as many equal shares as there shall be children of mine living at my death, and issue of deceased children of mine, and widows of my sons having no issue by my sons living at my death, the collective issue of each deceased child of mine to represent one child, and take one share;” and that “one of said shares of said income” was to be paid to the grantor’s daughter E “ during her life, and upon her death, to pay her said share of income to her children and the issue of any deceased children of hers, until the termination of this trust, as hereinbefore provided; the issue of one child to take one share. ...” After provisions as to the payment of other shares of the income, the deed continued: “Should any one of the trusts hereinbefore created terminate before the time fixed for the termination of the entire trust, as herein-before provided, by reason of the death of all persons taking thereunder, or otherwise, in that event, the principal of such trust shall be divided and added pm rata to the remaining trust estates, and thereafter be disposed of, both principal and interest, as parts of said trust estates.” It also directed the payment of income to the several beneficiaries, “personally, and in no event to the husbands or the wives of the beneficiaries, nor in anticipation,” forbade the assignment of interests and prohibited the application thereof through legal proceedings in payment of the debts of cestuis que trust. At the time the trust was created, E had two sons and one daughter. After the donor of the trust died, one of E’s sons died without issue leaving a wife to whom by will he gave all his property and who died leaving her father as her sole heir at law and next of kin and he was appointed administrator of her estate. Subsequently E died, leaving two children living, and the father of her deceased son’s widow, individually and as administrator, claimed one third of the income formerly given to her under the provisions of the deed above quoted. Held, that</p> <p>(1) Itwas not necessary to decide whether the right to receive the income payable upon and after the death of E vested either on delivery of the trust deeds or upon the death of the donor;</p> <p>(2) The predominant intent of the trust instrument was to create trusts for the benefit of the descendants of the donor for the period permitted by the-rule against perpetuities; I</p> <p>(3) The language of the clause under which the father of the widow of E’s. j son made his claim indicated that issue alone were to be beneficiaries upon a I contingency like that which had arisen; I</p> <p>(4) No technical rules of law prevented the construction of the instrument. I in accordance with the intention of the donor as shown by the entire instru- I ment; and no principle of positive law was violated; I</p> <p>(5) The income, formerly paid to E, on her death became payable to her two- I surviving children; I</p> <p>(6) The father of the widow of E’s deceased son was entitled to nothing under I the trust deed. I</p>

<p>Bill in equity, filed in the Superior Court on February 16, 1920, seeking, among other relief, to have the contract with the defendant, described below, cancelled and $300, which had been paid by the plaintiff to the defendant under its provisions, returned to him.</p> <p>The contract was as follows:</p> <p>“ Subscription Agreement No. 1179</p> <p>. Guaranty Security Corporation</p> <p>“ Agreement by and between the Guaranty Security Corporation, incorporated under the laws of Massachusetts, having its home office in Boston, Mass., and</p> <p>Mr. John Fitzgerald</p> <p>of Boston, Mass,</p> <p>hereinafter called the ‘ Subscriber.’</p> <p>“ Witnesseth: The said Guaranty Security Corporation agrees to sell to the subscriber and the subscriber agrees to purchase fifty shares of the preferred stock of the said Guaranty Security Corporation of the par value of ten dollars ($10.) each, fully paid and non-assessable, at and for the sum of six hundred dollars ($600.00) payable as follows: One hundred and twenty dollars ($120.00), the receipt whereof is hereby acknowledged and the balance in installments of thirty dollars ($30.) or more on the 31st day of each month and every month thereafter, until the full purchase price has been paid.</p> <p>“When the subscriber has made all of the payments above specified, the Guaranty Security Corporation agrees that it will deliver to said subscriber, or his or her heirs, or assigns, certificate or certificates of said preferred stock, so paid for, together with twenty (20) shares of the common stock.</p> <p>“ If the subscriber shall fail to pay'any of said installments when due, and said default shall continue for at least thirty days, then and in such case the Guaranty Security Corporation may at its option, while such default continues, terminate this agreement and all rights of the subscriber, thereunder, but upon written request by the subscriber, within one week from the date of last failure, the Guaranty Security Corporation will grant reasonable extensions on payments in arrears, but such extensions, taken together, shall not exceed six months during the life of this contract.</p> <p>“No statement nor condition not contained herein shall be binding upon either party hereto and no authority is given any salesman to make any alterations in this agreement.</p> <p>" In witness whereof, the parties hereto have caused the same to be executed in duplicate and have thereto set their hands and seals this 31st day of May, 1919.</p> <p>. Guaranty Security Corporation.</p> <p>John F. Fitzgerald,</p> <p>Subscriber.</p> <p>10 Allen Street,</p> <p>Boston, Mass-</p> <p>Valid only when countersigned by J. Edward Donahue Witness:</p> <p>Charles Pozzo,</p> <p>Salesman.”</p> <p>In the Superior Court the suit was referred to a master. Material findings of the master are described in the opinion. After a confirmation of the master’s report, the suit was heard by Wait, J., by whose order a final decree was entered dismissing the bill with costs to the defendant. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on April 11, 1918, and on motion removed to the Supreme Judicial Court, against Benjamin Piscopo, Albert A. Golden and Edith B. Golden, alleging in substance that the defendant Piscopo had agreed in writing on December 4, 1917, to sell to the plaintiff for $11,000 “the real estate on the southeasterly side of Hanover Street, in . . . Boston, lying northeasterly and southeasterly of the Hotel Venice so called containing about 1860 square feet, the same being more particularly bounded and described in a deed to . . . [Piscopo] from Francesco Sessa, dated July 15, 1904, recorded with Suffolk Deeds, Book 2990, page 209, to which forerence [s¿cj may be had for a more particular description of the bounds and measurements thereof; ” that, upon the title being examined by the plaintiff’s attorney, it was discovered that there were certain obstructions placed thereon by the defendant Albert A. Golden, who owned the Hotel Venice property mentioned in the agreement, and that it was subject to passageway rights for the benefit of that property; that attorneys for the plaintiff and for Piscopo thereupon agreed that the matter of the title should be referred to the Land Court, and successive extensions of the agreement for conveyance were made to and including February 26, 1918, at which time the plaintiff was present, ready and willing to fulfil his part of the agreement; that Piscopo, instead of conveying to the plaintiff, sold and conveyed the premises to the defendant Edith B. Golden who took title for her husband, Albert A. Golden, both of whom had notice of the plaintiff’s rights. The prayers of the bill were in substance that the sale from Piscopo to Edith B. Golden should be decreed to be invalid and in violation of the plaintiff’s rights, that “the defendant Piscopo be ordered specifically to perform his agreement with the plaintiff upon payment by the plaintiff of the consideration provided in said agreement, less an allowance for the decreased value of said real estate by reason of the interests therein claimed by the defendant Albert A. Golden,” and that the plaintiff be awarded damages.</p> <p>The defendants demurred to the bill. The demurrers were heard by Jenney, J., by whose order an interlocutory decree was entered overruling them, from which the defendants appealed. Upon issue being joined, the suit was referred to a master. Material findings of the master are described in the opinion. His findings as to the area were, more specifically, as follows: The deeds from Sessa to Piscopo described the land by metes and bounds and stated that it contained one thousand eight hundred and sixty square feet, “ be all said measurements and contents more or less.” “ Sherry [a surveyor employed by the plaintiff] completed his survey before December 21, and the plan prepared by bim showed the area of the locus to be 2813 square feet, which was the first information that the parties had of that fact, instead of ‘ about 1860 square feet ’ as recited in the agreement between the plaintiff and Piscopo, such recital being based on the statement of area contained in the deed from Sessa to Piscopo previously mentioned.”</p> <p>The suit was heard further by Jenney, J., by whose order there were entered an interlocutory decree confirming the master’s report and a final decree directing the three defendants to deliver to the plaintiff “ a properly stamped quitclaim deed ” of the premises in question, which were specifically described in the decree by metes and bounds, with the additional recital as follows: “Be said measurements and contents more or less, and the said premises being the same premises conveyed to the defendant Benjamin Piscopo by Francesco Sessa, July 15, 1904 by deed duly recorded with Suffolk Deeds, Book 2990, page 209.” The decree further stated: “Said deed shall convey said land free from all taxes, including taxes assessed for the year 1920, and free from any encumbrances made or suffered by the defendants or any of them, provided, however, that the defendant Piscopo may except from the operation of the covenants of the deed the title and interest in said land conveyed by him to the defendant Edith B. Golden by deed dated March 20, 1918, and recorded in the registry of deeds for said county of Suffolk, book 4077, page 530; and the defendant Albert A. Golden may except from said covenants any title or interest in or to said land or any easement therein, if there be any such title, interest, or easement, which he owned or to which he was entitled prior to said deed to Edith B. Golden.”</p> <p>Costs were awarded to the plaintiff. The defendants appealed from the final decree.</p>

<p>Probate Court, Findings by judge, Appeal.</p> <p>It is error for a judge of the Probate Court, hearing a petition for the allowance of a final account of an executor where a commissioner has been appointed to take the evidence and where all material facts are not agreed to by the parties and are not such matters of record as to be incontrovertible, to make findings upon controverted matters without hearing any evidence and after hearing only "contentions ” of the counsel for the parties, and, upon an appeal from a decree founded upon facts so found, the decree must be reversed and the petition stand for further consideration in the Probate Court.</p>

<p>Practice, Civil, Auditor’s report. Contract, Performance and breach. Stockbroker. Stock Exchange Clearing House.</p> <p>Findings of fact by an auditor, to whom was referred an action at law, do not prevent a judge, hearing the action without a jury upon the auditor’s report and other evidence not affecting the report, from reaching a different conclusion justified or required by other facts found by the auditor.</p> <p>A specific provision in a receipt given by a stockbroker to a customer for money paid as a margin, that it was agreed that “all orders given . . . are to be executed according to the rules of the Consolidated or New York Stock Exchange, and all stocks bought or sold may be received or delivered through the Clearing House, according to the rules of the Exchange, and such a delivery shall be a good delivery,” is not limited nor overthrown by a preceding provision therein that “Whatever orders for the purchase or sale of securities or commodities may be given are given and received with the understanding that the parties in all cases intend to complete their transactions by the actual receipt and delivery of the certificates or articles dealt in;” and, under the agreement thus made, (aside from the obligations created by G. L. c. 137, §§ 4-7) the stockbroker was not obliged to make actual purchases and sales of stocks ordered by the customer to be bought and sold for him nor to carry subject to the customer’s order stocks which the customer ordered him to buy on his account.</p>

<p>Bill in equity, filed in the Superior Court on March 30, 1920, against C. Nathalie Hern, John J. Hern, Clarence H. Dearmond and Albion L. Millan, containing allegations in substance that the defendant John J. Hern purchased “ with money belonging to the plaintiff ” two parcels of land, specifically described in the bill, taking title originally in the name of the defendants Dearmond and C. Nathalie Hern and that Dearmond conveyed his title to C. Nathalie Hern; that “ On or about June 29, 1915, this plaintiff brought a bill in equity against said John J. Hern and others to recover the amount of money alleged in said bill to have been so received by him. A decree upon said bill was entered by the plaintiff on or about. December 28, 1918, but in and by said decree the question of pinchase of said . . . described lots of land was not determined; ” that John J. Hern also expended “ large sums of money belonging to the plaintiff ... for the improvement and benefit of ” another parcel of property specifically described; that the defendants Hern had given to the defendant Millan to secure the payment of $9,000, a pre-existing debt due to him from John J. Hern, a mortgage on all three of the parcels, the mortgagee knowing that two of the parcels “were bought with money belonging to the plaintiff and had been conveyed to said C. Nathalie Hern in fraud of the rights of the plaintiff,” and that the defendant Millan had advertised the property for sale in foreclosure of the mortgage. The prayers of the bill were for a decree that two of the parcels were “the lawful property of the plaintiff,” and that C. Nathalie Hern owed the plaintiff the sum spent upon the other parcel, that the foreclosure of the mortgage be enjoined and for general relief.</p> <p>The defendants’ answer contained an allegation in substance that, by reason of the final decree in the prior suit described in the opinion, the matters in this suit were res judicata.</p> <p>The suit was referred to a master. The master found “that the bill in equity, the answers, reports of the master and the final decree in the case of E. C. Bowman & Sons Co. v. John J. Hern et ais., begun in June, 1915, in no way specifically indicated or showed that the matter of the present suit was included in that litigation.” Other findings of the master are described in the opinion.</p> <p>The suit was heard by Lawton, J., upon the master’s report, to a confirmation of which the parties agreed, and the only question raised before him was “on the defendants’ answer of res judicata.” He found and ruled “that the facts set out in the plaintiff’s bill . . . bearing on the title of C. Nathalie Hern, were set out in the [previous] bill in equity of E. C. Bowman & Son Co. v. Hern et ais. . . . The fact that the two lots of land now in question were not described in the . . . [previous] bill by metes and bounds, and that in said bill there was no prayer specifically asking a reconveyance of «said lots is immaterial. Doubtless no decree ordering a reconveyance could have been given without an amendment to the bill, but such an amendment would have been an amendment as to form only and not to the substance of the bill.” A final decree dismissing the bill with costs payable to the defendant Millan was entered accordingly; and the plaintiff appealed.</p>

<p>Landlord and Tenant, Assignment of lease, Covenant of renewal, Waiver of breach. Partnership. Waiver.</p> <p>If, after one of two partners, who are the lessees in a lease containing a covenant prohibiting the assignment of the lease or the subletting of the premises by the lessee without the consent in writing by the lessor, has become one of several purchasers of the lessor’s interest, has retired from the partnership and has sold his interest as lessee to his former partner, the former partner associates new partners with himself and the new partnership, with the knowledge of the owners, continues to occupy the premises and to pay the rent, the owners cannot successfully contend, in a suit by the former partner to enforce a right of renewal given in the lease to the lessees and their assigns, that the lease has been terminated by a breach of the covenant against assigning and subletting.</p> <p>Acceptance by a landlord of rent under a lease with knowledge on his part of a previous breach of the lease by the tenant constitutes a waiver of rights due to the breach unless the lease provides otherwise.</p>

<p>Carrier, Of goods. Damages. Evidence, Remoteness, Relevancy and materiality.</p> <p>In an action by a shipper against a carrier for failure to deliver projectiles in New York in accordance with the terms of a bill of lading given by the carrier to the shipper, there was evidence that the projectiles had been manufactured by the plaintiff under a contract, including plans and specifications, with a company which had agreed to deliver the projectiles to the British government for $8 each free alongside ship in New York and that under its contract with that company the plaintiff was to receive $4.10 for each projectile. Meld, that</p> <p>(1) The shipper was entitled to recover full compensation for the loss or damages suffered by the carrier’s failure to carry and deliver the projectiles safely;</p> <p>(2) The plaintiff’s loss was to be determined by the value of the projectiles at the time and place of delivery and not at the time and place of shipment;</p> <p>(3) The plaintiff’s loss was the actual value of the shells, which should be determined by the cost of replacing them;</p> <p>(4) The sum which the British government was to pay the plaintiff’s prime contractor was not decisive of the actual value of the projectiles at the time and place of delivery: their value may have been more or less than that contract price;</p> <p>(5) If, at the time of the breach of its contract by the defendant, shells of similar material could be manufactured at a certain price, that price, together with such expenses as might be reasonably incurred in procuring a new contract, would fairly and correctly measure the extent of the plaintiff’s loss.</p> <p>A ruling made by the judge at the trial of the above described action, that the price the British government paid other manufacturers for similar projectiles under contracts made five months or more later than the date of the contract between the British government and the plaintiff’s prime contractor, was not competent evidence to affect or control the plaintiff’s measure of damages, was erroneous, it not appearing that the dates of those contracts or the deliveries thereunder were so remote in time as to afford no ground for comparison.</p> <p>Refusals, by the judge at the trial of the action above described, to rule that the plaintiff could not recover the profit it would have made if the goods had not been lost, and that the price to be paid the plaintiff’s prime contractor by the British government was not the true measure of the value of the shells at destination as it included the profit arising to the plaintiff and that company, were erroneous.</p> <p>In the same action it was held that the profits of the contract were not material for the purpose of showing the actual value of the projectiles and were not to be considered in estimating the plaintiff’s damages against the carrier.</p> <p>The contract price to be paid to the plaintiff’s prime contractor by the British government for the projectiles was admissible in evidence in the action against the carrier above described as bearing on the question of the value of the goods lost, and as tending to show the cost of replacement, but such evidence was not conclusive.</p>

<p>Contract, Performance and breach. Equity Jurisdiction, To enforce bond of contractor upon public work. Bankruptcy, Composition. Surety. Waiver. Interest.</p> <p>On a November 30, the committee on city property of New Bedford, whose chairman, with the mayor of the city, on behalf of the city had executed a contract with a corporation for the construction of a school building, voted to accept the building “ with the exception enumerated in the Superintendent of Buildings’ report,” which showed that certain work of the value of $715 remained to be done. Later, and before January 13, the city occupied the building and by January 13 the work had been fully completed, with the consent of the city and of the surety on a bond given to the city by the main contractor under St. 1909, c. 514, § 23, by a receiver of the property of the main contractor who had been appointed in bankruptcy proceedings. A master, to whom was referred a suit in equity by a subcontractor for satisfaction of his claim under the main contractor’s bond, found that the work under the contract was completed on January 13, and allowed claims filed by intervening petitioners within sixty days thereafter and more than sixty days after November 30. Held, that the finding of the master was warranted, the acceptance of the work on November 30 having been with reservations.</p> <p>A sworn statement of labor performed and furnished and materials used by a subcontractor in the construction of a school building under a contract between a city and a main contractor, which had been executed on the city’s behalf by its mayor and the chairman of its committee on city property, was filed with the proper officers of the city in season to entitle the subcontractor to the benefits of a bond given under St. 1909, c. 514, § 23, if it was received by mail by the mayor two days after the work was completed and was before the committee on city property and its chairman and was read to them by their clerk fifty-three days later.</p> <p>Where, before the completion of the work of the construction of a public building for a city, an involuntary petition in bankruptcy was filed against the main contractor who had given to the city a bond with a surety under St. 1909, e. 514, § 23, and a subcontractor, without it appearing that the city had funds available for application to the payment of his claim and before an adjudication of bankruptcy, filed his claim in the proceedings as an unsecured creditor and later received part payment of the claim in accordance with a composition ordered by the bankruptcy court after it had been assented to by a majority in number and amount of the creditors, the subcontractor was not thereby precluded from maintaining against the surety on the main contractor’s bond and the city a suit in equity to compel payment of his claim by the surety and also by the city from funds which, upon the subsequent completion of the contract by a receiver of the property of the bankrupt, became available in the hands of the city and which it was holding under the provisions of the statute pending the settlement of the subcontractor’s claim.</p> <p>In the suit above described, interest was held properly to have been allowed on claims of subcontractors from the dates when the amounts of their respective claims became due; and in instances where it did not appear when the claims of intervening petitioners became due, it was held that interest should be allowed respectively from the dates of the filing of such intervening petitions and not from the date of the filing of the main bill.</p>

<p>Two actions of tort, the first by a minor by her father as her next friend for injuries received while at a stopping place for street ' cars of the defendant at the corner of Blue Hill Avenue and Charlotte Street in Boston, and the second by the father of the plaintiff in the first action for consequential damages. Writs dated respectively October 18, 1917, and May 12, 1919.</p> <p>In the Superior Court the actions were tried together before Quinn, J. The material evidence is described in the opinion. At the close of the evidence the judge upon motion by the defendant ordered verdicts for the defendant. The plaintiffs alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Contract, "What constitutes, In writing, Construction. Evidence, Extrinsic affecting writings, Competency. Frauds, Statute of. Equity Jurisdiction, Specifier performance of contract.</p> <p>An instrument in writing signed by four persons read as follows: “Received of Sadie Pearlstein Eifty ($50.00) dollars as deposit on premises No. 40 and 42 on Dehon St., Revere, Mass. Purchase price to be $12,500. Papers to be passed on or before May 27, 1919.</p> <p>Olga Pearlstein [Signed] Sadie Pearlstein</p> <p>Jacob Novitch Rose Novitch.”</p> <p>The two Pearlsteins brought a bill in equity against the two No vitches for specific performance. Held, that</p> <p>(1) Parol evidence was admissible to show that the plaintiffs were the purchasers and the defendants were the vendors and that none of them signed as a witness;</p> <p>(2) As a matter of law the instrument was a complete contract between the plaintiffs and the defendants and superseded all verbal negotiations which preceded it;</p> <p>(3) The agreement was sufficient to satisfy the statute of frauds;</p> <p>(4) The recital in the contract that the purchase price was to be $12,500 was to be construed as an agreement to pay that amount in cash;</p> <p>(5) Evidence, offered by the plaintiffs, tending to show an oral agreement, preceding the contract above described, that payment of the $12,500 was to be made partly in cash and partly by the assumption of an existing mortgage on the property and by a note secured by a mortgage upon the premises, was inadmissible because it tended to vary the contract in writing;</p> <p>(6) Such evidence was not made admissible by G. L. c. 259, § 2.</p> <p>In the suit above described, it not appearing that the plaintiffs had tendered to the defendants $12,500 in cash, a decree entered in the Superior Court for a conveyance and for payment according to the terms of the oral agreement was reversed upon an appeal by the defendants, and the bill was dismissed.</p>

<p>Negligence, Of proprietor of retail store in keeping cat, Plaintiff’s due care. Animal. Cat. Proximate Cause.</p> <p>A woman while in a store as a customer was bitten and scratched by a cat owned by the store-keeper. In an action brought by her against the store-keeper it appeared from the plaintiff’s uncontradicted testimony that a dog owned by the woman and taken by her into the store had a fight with the cat, that they became separated and, when the dog was several feet behind her, the woman reached under a meat block in front of her, took hold of the cat by the front paw and was bitten and scratched. Held, that as a matter of law her conduct was negligent, and that St. 1914, c. 553, did not require the submission to the jury of the question of her due care.</p> <p>A person "bitten by a cat cannot recover in an action against the owner of the cat in the absence of evidence warranting a finding that the cat was vicious to the knowledge of the owner and that the injury followed as the natural and probable consequence of the owner’s wrong in keeping such an animal.</p> <p>Evidence in the action above described, that on one occasion in the presence of an employee of the defendant the cat had shown its teeth and pulled the fibre from the stocking of a child in the defendant’s store, is.insufficient to warrant a finding of knowledge on the part of the defendant of characteristics in the cat likely to develop into an unprovoked attack of a violent nature.</p>

<p>Damages, For land taken under statutory authority. Eminent Domain. Bail-road. Easement. Way, Private. Evidence, Remoteness.</p> <p>At the trial of a petition for the assessment of damages resulting from the taking by a railroad corporation by eminent domain of a tract of land in the “rag district ” in Chelsea, it appeared that on one side of the tract there was a private way which separated it from other land of the corporation used as a freight yard, that title of the abutting owners ran to the middle of the way, that owners of other lots upon a plan which included the tract of the petitioner and the land of the corporation had rights of passage over the way, that the petitioner’s title to the middle of a part only of the way was taken, and that, after the taking, the petitioner had remaining only the title to the middle of the rest of the way and of other bounding private ways. The petitioner’s evidence tended to show that the most profitable use for which the land taken was naturally adapted was the erection of a four-story brick building to be used for the storage and sorting of rags; that if such a building could be connected by a spur track or tracks with the respondent’s freight yard on the opposite or northerly side of the way, there would be a substantial net annual saving in the charges that would otherwise have to be paid for trackage and handling; that as matter of construction a spur track or tracks could be laid from the freight yard across the way to the land in question without in themselves causing any obstruction to traffic over the way, and that the way for many years before the taking had been used by pedestrians and vehicles, especially by persons having business at the freight yard. The petitioner admitted that the way was a “travelled way” within the meaning of St. 1906, c. 463, Part II, § 251. Several spur tracks were in existence across the private way in question and other private ways in the large tract subject to the same easements, and the corporation three years before the taking had signified its consent to a spur track to its freight yard being installed for the petitioner but a petition for permission so to do after a hearing had been placed on file by the board of aldermen of Chelsea. After the taking, the corporation closed the way through part of its length. Held, that</p> <p>(1) It was proper, because of remoteness, to exclude evidence, offered by the petitioner on the issue of the probability or improbability that those having rights of passage in the way would oppose the laying of such a spur track by the petitioner, which tended to show that only three holders of such rights had objected to the closing by the corporation of the way in question after the taking and that the land they owned was on another way on the plan, that public notice of the taking had been published in newspapers and that no owners of such rights had made claims for damages within the time allowed by statute, that no consent of any owner of such rights ever had been obtained, that on no previous occasion of the laying of a spur track over the private ways on the plan had there been objection made, that, when the corporation signified to the petitioner three years before the taking its assent to the installation of a spur track, it made no suggestion that the consent of any one else would have to be procured, and that before the taking ; the city’s board of aldermen had given consent under St. 1906, c. 463, Part II, § 251, to the laying of a spur track over another private way on the plan;</p> <p>(2) Since the petitioner and the corporation before the taking owned the entire fee to the way subject to the easement of passage to which owners of other lots on the way were entitled, they had a right to make any use of that way which did not interfere with any reasonable use of the wa,y by those entitled to the easement;</p> <p>(3) The right to such use of the way by the petitioner and the respondent was not dependent upon consent by the owners of the easement;</p> <p>(4) The petitioner was entitled to have the jury instructed that the construction and use by the corporation or by the petitioner of a spur track or tracks across the private way between their lands for the purpose of connecting the freight yard with the petitioner’s land would not as a matter of law be a taking or a use of the easement of passage existing in favor of the owners of other lots on the plan;</p> <p>(5) The purpose of the language of St. 1906, c. 463, Part II, § 251, was merely to declare and to apply to a particular situation the principle or doctrine that the right Of eminent domain can be exercised only for a public and not for a private purpose;</p> <p>(6) An instruction in the judge’s charge, that the petitioner would have had no right to put a spur track across the way in question unless all those entitled to the easement of passage over the way would "consent — he and the railroad company would have no right, acting together, if they both agreed, they would have no right to put it across that street unless those other persons owning the right of way over . . . [it] gave their consent,” was error;</p> <p>(7) The petitioner was entitled to have the jury instructed in substance that the laying of the spur track across the way by the petitioner would not necessarily constitute an unlawful interference with the easement of passage above described, and that the determination of the question, whether it would do so, depended among other things upon the manner in which the tracks were laid;</p> <p>(8) No one of those entitled to the easement of passage above described had the exclusive right to use the way for passage, and no use of the easement of passage by any one of them, including the petitioner, could be deemed as a matter of law an invasion of the easement of passage of any other lot owner unless, considering all the circumstances, it was unreasonable;</p> <p>(9) The petitioner was entitled to have the jury instructed that the laying of a spur track or tracks across the way in question to connect the petitioner’s land with the freight yard would not be an invasion of the rights of the others entitled to the easement of passage above described, provided the tracks were so laid as not to constitute an appreciable or substantial obstruction to the passage of foot passengers and vehicles;</p> <p>(10) The petitioner was entitled to have the jury instructed that, in determining to what extent, if at all, the use by the petitioner and the corporation of a spur track would have constituted an invasion of the easement of passage, the jury might consider whether or not the passage of freight cars, in such numbers</p> <p>and for such periods of time as the evidence showed would have been likely to occur had the petitioner’s land been put to any advantageous use, would have constituted a substantial obstruction or interference with such use of the way as the other persons entitled to the easement of passage had a right to make;</p> <p>(11) The petitioner was not entitled to have the jury instructed in substance that the owners of the easement of passage, if it be invaded, might or might not seek a remedy at law or in equity dependent upon particular circumstances;</p> <p>(12) The petitioner’s land did not adjoin land of the corporation upon which a private side track was constructed within the meaning of St. 1916, c. 137, § 1, or upon which one could be constructed without the consent of the board of aldermen of the city;</p> <p>(13) The provisions of 36 U. S. Sts. at Large, 547, § 7, were not applicable to the facts recited above;</p> <p>(14) Exceptions by the petitioner to refusals to give certain instructions as to the determination of damages were overruled because the judge charged the jury upon the special adaptability of the petitioner's land, not in the form requested, but in a manner which as a whole stated clearly and accurately the measure of value which was to be applied in the determination of the petitioner’s damage;</p> <p>(15) The petitioner was entitled to have the jury instructed in substance that, in assessing the petitioner’s damages, they had a right to consider that by the taking there was left in the petitioner the ownership in fee simple of one half of some of the adjoining private ways subject to easements of passage in owners of -other lots on the plan, which title was of no value excepting in connection with the land which had been taken.</p>

<p>Contract, with a declaration in two counts, described in the opinion. Writ dated January 29,1921.</p> <p>In the Superior Court the action was heard by Sisk, J., upon an agreed statement of facts, and he reported it to this court for determination. The material facts and the agreement accompanying the report are described in the opinion.</p> <p>R. L. c. 73, § 9 (now G. L. c. 107, § 9), is as follows: "When a bill of exchange, drawn or endorsed within this Commonwealth and payable beyond the limits of the United States, is duly protested for non-acceptance or non-payment, the party liable thereon shall, on due notice and demand, pay it at the current rate of exchange on the date of the demand, with interest from the date of the protest and damages at the rate of five per cent upon the principal thereof; and the amount of principal, interest and damages shall be in satisfaction of all charges, expenses and damages.”</p>

<p>Contract or tort by the assignee of one Louis Cutler, for the value of a bale of rags alleged to have been delivered to the defendant for shipment to Cutler and to have been lost of destroyed and not delivered to Cutler. Writ in the Municipal Court of the City of Boston dated May 15,1919.</p> <p>The answer of the defendant was a general denial and an allegation of contributory negligence on the part of the plaintiff.</p> <p>In the Municipal Court the trial judge ruled "as a matter of law that the Acts of Congress, March 21, 1918, the proclamations of the President of December 26, 1917, and of April 16, 1918, and the orders of the Director General of Railroads, numbered 50 and 5Q-A., are the law of this cause,” found for the defendant, and reported the action to the Appellate Division, who dismissed the report. The plaintiff appealed.</p>

<p>Contract oe tort, with a declaration as amended in five counts, the first and second counts being respectively for $3,250 on an account annexed and for money had and received by the defendant to the plaintiff’s use. The third count was in tort for alleged misrepresentations made by the defendant as to the title to a certain bowling alley in Easthampton and the volume of business done therein. The fourth count alleged a contract in writing made by the plaintiff with the defendant for the purchase of the said bowling alley for $3,000, the payment of the purchase price by the plaintiff, a breach of certain warranties as to the title contained in the contract, the rescission of the contract by the plaintiff and the refusal of the defendant to return the purchase price. The fifth count alleged that the plaintiff made a contract in writing with the defendant “ whereby, in consideration that the plaintiff agreed to purchase certain bowling alleys in Easthampton in said county together with other personal property therein described, and to take an assignment of the lease of the basement of the Majestic Theatre building from Samuel and Nathan Goldstein, Incorporated, to said defendant for a term of years, and also to pay the said defendant the sum of $3,000 and to pay for certain coal and insurance, the defendant undertook and agreed to sell and transfer to the plaintiff the' said bowling alleys and other personal property and to give him a bill of sale therefor, and transfer and assign the said lease; and the plaintiff paid said sum of $3,000 and took what purported to be an assignment of said lease and paid out the sum of $100 for coal, and was ready and willing to pay for said insurance; that the defendant did not sell and transfer the said bowling alleys and other personal property to the plaintiff and did not give him a bill of sale therefor, but, though often requested, neglected and refused so to do, and plaintiff seeks to recover said purchase price.” Writ dated April 17, 1920.</p> <p>In the Superior Court the action was tried before Aiken, C. J.. Material facts are described in the opinion. At the close of the evidence and before the arguments a motion then made by the plaintiff to amend his declaration by adding his fifth count was-allowed. At that time the fifth count did not contain the words. “ and the plaintiff seeks to recover said purchase price,” and the motion to amend was allowed without those words. The defendant objected to the allowance of the fifth count on the ground that it did not appear whether the count was for damages, or for the recovery of the purchase price. The plaintiff elected to rely upon the counts in contract in his declaration. The judge refused the following requests for rulings made by the defendant.</p> <p>"1. Upon all the evidence, it does not appear that the plaintiff can place the defendant in the same position which the defendant occupied prior to the sale; hence, the plaintiff cannot recover.</p> <p>“ 2. Upon all the evidence, it does not appear that the defendant can, or ever could secure the assent of Samuel and Nathan E. Goldstein, Inc., to the assignment of the lease to Walz, or secure a waiver from the said Samuel and Nathan E. Goldstein, Inc., of the terms in the assignment already executed between said plaintiff and defendant, and assented to by the said Samuel and Nathan E. Goldstein, Inc.; hence, the plaintiff cannot recover.</p> <p>" 3. Upon all the evidence, it appears that the plaintiff cannot secure the assent of said Samuel and Nathan E. Goldstein, Inc., to an assignment of the said lease to said Walz ; hence, the plaintiff cannot recover.</p> <p>“ 4. Upon all the evidence, it appears that the plaintiff cannot .secure the waiver of the said Samuel and Nathan E. Goldstein, Inc., to the terms in the additional conditions in the assignment from the plaintiff to the defendant, assented to by the said Samuel and Nathan E. Goldstein, Inc.; hence, the plaintiff cannot recover.</p> <p>“5. There is no evidence of any breach of either implied or expressed warranty of title.</p> <p>“ 6. There is no evidence of any valid mortgage on the property at the time of the sale of the property from the defendant to the plaintiff.</p> <p>“7. There is no evidence of a valid mortgage from Julius J. Mutter and William E. Mengel to John L. Lyman on the property at the time of the sale of the property from the defendant to the plaintiff.</p> <p>"8. There is no evidence of a valid mortgage from Julius J. Mutter and William E. Mengel to Anna Mengel and Rudolph Mutter on the property at the time of the sale of the property from the defendant to the plaintiff.</p> <p>“ 9. Upon all the evidence, the plaintiff cannot recover on the ground of a breach of an implied or an expressed warranty of title made by Walz.”</p> <p>“ 12. The plaintiff cannot recover unless he offered to return to the defendant all the personal property and the assignment of the lease properly assented to.</p> <p>“ 13. Upon all the evidence, it appears that the lease as originally entered into between the said Samuel and Nathan E. Gold-stein, Inc., and Henry Walz has been materially changed by the conditions contained in the assignment from Henry Walz to Antoni Marciniak and assented to by the said Samuel and Nathan E. Goldstein, Inc.”</p> <p>The judge ruled that the case could not be submitted to the jury •on the ground of rescission of contract because there was nothing to show that Samuel and Nathan E. Goldstein, Inc., would assent to the waiver of the additional terms contained in the assignment ■of the lease to the plaintiff.</p> <p>The case was submitted to the jury on the first, second, and fifth •counts of the declaration.</p> <p>At the close of the charge, the defendant saved the following, among other, exceptions to the charge:</p> <p>“ 1. The defendant excepted to that part of the charge in which the court charged the jury that the effect of the transfer of the mortgage from Lyman to Walz is to make Walz the mortgagee.</p> <p>“ 2. The defendant also, excepted to the statement that Walz held the property subject to the right of Mengel and Mutter to have the property on paying the amount due on the mortgage with the interest that was due.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $3,000. After verdict the defendant moved for a new trial, arguing, among other causes, that it did not appear from the verdict whether the verdict was for damages or for the recovery of the purchase price. The plaintiff argued that the verdict plainly was for the recovery of the purchase price under the fifth count. The judge overruled the motion for a new trial. The defendant thereupon pressed his earlier objection that it did not appear from the fifth count whether it was for damages or the recovery of the purchase price, and urged that the count should show what was the plaintiff’s claim as to ownership of the property. The plaintiff’s attorney-said he was willing to adopt language removing any uncertainty, and the words “and the plaintiff seeks to recover said purchase price ” were settled upon after colloquy, the defendant’s attorney taking part in the discussion as to the form of words that would meet his objection. The words “ and the plaintiff seeks to recover said purchase price ” were then written into the fifth count of the declaration upon the instruction of the court. There was no exception to the allowance of the amendment by adding the fifth count, or to the later addition of the words “ and the plaintiff seeks to recover said purchase price.” '</p> <p>The defendant alleged exceptions.</p>

<p>Equitable Restrictions, “Appurtenances,” Greenhouse. Words, “Appurtenances.”</p> <p>The owners of a large tract of land in Newton formed a syndicate and placed the title to the land in trustees, who conveyed a certain parcel therefrom and, “for the benefit of the land herein conveyed,” imposed “ on the remaining land of said trustees” within certain streets a restriction, that “No building shall be erected or placed thereon except private dwelling houses adapted for the use of one private family only for each house, and the appurtenances thereto, including a private stable and garage for each of such houses; such dwelling houses shall cost above their foundations not less than $5,000 each.” A subsequent purchaser acquired by separate conveyances two parcels of the land included in the “ remaining land ” of the trustees, the second of which adjoined the first in the rear and the first purchaser’s land at the side and fronted on the same street as did the first purchaser’s lot, so that the second purchaser’s combined lots extended continuously from beside that of the first purchaser’s lot on one street to another street on the opposite boundary of the “remaining land.” The deed by which the second purchaser acquired his first lot contained an equitable restriction which permitted the erection thereon of such a private greenhouse as is commonly used in connection with dwelling houses. The deed conveying to him his second lot contained a clause of restriction “that only a single dwelling house adapted to the use of one private family only, with such out-buildings, including a private stable or garage, as are commonly used in connection with dwelling houses, shall be erected or placed on the lot.” There were greenhouses on other lots in the entire tract of the syndicate. Conveyances were not made by the trustees by any one plan of all the lands, but the trustees intended to retain a power in themselves to change their system of development, and, while restricting the several lots as they were granted, they intended to avoid granting power to the purchasers to prevent the imposing of different restrictions or to compel the imposition of identical restrictions on all lots in the entire tract. The neighborhood was strictly residential with dwelling houses ranging in value from $20,000 to over 850,000. The second purchaser built an expensive dwelling house on the first lot purchased by him and purposed to erect on the second lot, beside the lot of the first purchaser upon which was an expensive residence, a private greenhouse for the accommodation of his residence and according to a plan calling for an ornament to the locality. The first purchaser sought by a suit in equity to enjoin the erection of the greenhouse. Held, that</p> <p>(1) The second purchaser was bound by the restriction in the deed from the trustees to the first purchaser;</p> <p>(2) The second purchaser’s holdings, even if separately purchased, constituted an entire estate which he could occupy and develop to the same extent and in the same way as if the unity of title had existed when he built the dwelling house, or he had acquired the whole tract under one deed which recited all the restrictions;</p> <p>(3) The word “ appurtenances ” as used in the restriction placed upon the " remaining land ” of the grantors by the first purchaser’s deed, should be construed under such conditions to mean that which might become necessarily connected with the full and free use and enjoyment of the dwelling house whether it took the form of a private stable, or a private garage, or a private greenhouse;</p> <p>(4) The private greenhouse proposed was not prohibited by the restriction placed upon the “remaining land” of the grantors by the first purchaser’s deed, being among the buildings which were “ appurtenances ” to a dwelling house;</p> <p>(5) The suit must be dismissed.</p>

<p>Bills and Notes, Indorser. Equity Jurisdiction, Equitable set-off. Set-off.</p> <p>A note made by a corporation was payable to a Massachusetts trust company, was indorsed by one who owned all the shares of the corporation maker, was secured by a mortgage of real estate owned by the corporation and. was held among the assets of the savings department of the trust company as an investment of the deposits therein. After the note became due and after the commissioner of banks had taken possession of the trust company under G. L. c. 167, §§ 22, 36, the indorser by a suit in equity against the commissioner, sought to compel the application of* a deposit made by the indorser in the savings department of the trust company to the satisfaction of the note and mortgage. Held, that</p> <p>(1) The provisions of G. L. c. 168, §§ 1, 35, in substance that any person ' indebted to “ a savings bank and an institution for savings incorporated as such in this Commonwealth ” may set off the amount of his deposit in the bank in a proceeding for the collection of the debt due from him, are not applicable to savings departments of trust companies;</p> <p>(2) The statute of set-off, G. L. c. 232, did not afford the plaintiff relief;</p> <p>(3) The plaintiff’s right of set-off being regulated tby statute, the doctrine of equitable set-off was not applicable;</p> <p>(4) The suit must be dismissed.</p>

<p>Landlord and Tenant, Covenant to pay rent. Contract, In writing. Evidence, Extrinsic affecting writing. Pleading, Civil, Declaration. Practice, Civil, Requests and rulings, Report.</p> <p>In an action of contract where the declaration alleges that the defendant is indebted to the plaintiff for rentals under a written lease and there is no allegation or claim therein for the cost of repairs, there can be no recovery for the cost of repairs although in a report of the case by a judge it is recited that the action is to recover “rental and cost of repairs.”</p> <p>In an action above described a request for a ruling that “the plaintiff cannot recover for the repairs charged for in bis declaration on all the evidence” is inapplicable in view of the pleadings and properly was refused.</p> <p>At the trial of an action to recover rental reserved in a lease in writing for a term of years which contained no reference to the character of business to be conducted upon the leased premises, a request for a ruling, that “If the court finds as a fact that the property leased to the defendant was leased for a specific purpose and that that purpose was lrnown to the plaintiff before the lease was executed, and if the business for which the defendant hired the premises became illegal under the laws of the United States, there can be no recovery by the plaintiff under the lease for any period of time after said business became illegal,” should be denied.</p> <p>There being no provision in the lease, which was the foundation of the action above described, that it should be modified or terminated before its expiration in the event that the sale of intoxicating liquor on the premises for any reason became unlawful, a finding that the parties understood and intended that the defendant should carry on the liquor business on the premises let, even if treated as a finding that the premises were let for that specific purpose and that that purpose was known to the plaintiff before the lease was executed, was immaterial.</p>

<p>Malicious Prosecution; Evidence, Of malice. Practice, Civil, Exceptions.</p> <p>In an action against two defendants for malicious prosecution, where it was alleged in the declaration in substance that the defendants conspired together to force the plaintiff to leave a town and, to effectuate that purpose, caused criminal complaints to be brought against him which subsequently terminated in his favor, there was evidence that one of the defendants, when near to or in front of the plaintiff’s place of business, not infrequently stared in; that he talked with the plaintiff’s customers and others, shook his finger at the plaintiff and made faces at him; that the same defendant ordered the town officer in charge of highways to remove a sign belonging to the plaintiff which projected into the highway; that the plaintiff had heard the same defendant when under the influence of liquor say in a low voice "I will fix that fellow, I will get him out of town;” that the other defendant, who had been a customer of the plaintiff, ceased to patronize him and that both defendants were present when the criminal cases against the plaintiff were on trial. Held, that these facts fell far short of showing any instigation, direction or control of the criminal proceedings against the plaintiff by the defendants or any conspiracy on their part.</p> <p>At the trial of the action above described, it appeared that the defendants, who were selectmen of a town, in their official capacity authorized the employment of the town counsel to assist the town constable in the prosecution of complaints against the plaintiff for selling liquor illegally and for larceny, which resulted in favor of the plaintiff. There was evidence that, when requested to do so, it was the custom in all towns in the county to employ counsel to assist an officer in the prosecution of criminal complaints. There was no evidence tending to show . that the defendants in the employment of counsel acted maliciously or that they assumed control or direction of the prosecution. Held, that it could not have been found that the town counsel in the prosecution of the complaints was the agent of the defendants personally.</p> <p>Where at the trial of an action the evidence was insufficient to warrant a verdict for the plaintiff, exceptions by the plaintiff to the admission of evidence which did not impair nor destroy the probative effect of evidence received without his exception must be overruled.</p> <p>In the action above described it was held, that exceptions by the plaintiff to the exclusion of evidence, which if admitted would not have warranted the submission of the action to the jury because it did not add to the effect of the evidence already admitted so far as it related to the question of liability, must be overruled.</p>

<p>Summary process to recover possession of a suite of rooms in a building in that part of Boston called Roxbury. Writ in the Municipal Court of the Roxbury District of the City of Boston dated December 4, 1919.</p> <p>On appeal to the Superior Court, the action was tried before Sanderson, J. The material facts and instructions given by the judge to the jury are described in the opinion. At the close of the evidence the plaintiff moved that a verdict be ordered in her favor. The motion was denied and the jury returned a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract for $1,000 upon a certificate of fraternal beneficiary insurance issued by the defendant, in which the plaintiff, who was the mother of the assured, was designated as beneficiary. Writ dated August 22, 1919.</p> <p>The defendant filed an answer admitting its liability for $1,000 but alleging that the widow of the assured claimed the amount and, upon motion of both parties, the widow was made a party to the action.</p> <p>In the Superior Court the action was heard by Keating, J., without a jury. The material evidence is described in the opinion. Upon all the evidence the judge found for the plaintiff in the sum of $1,000 and at the request of the widow reported the case for •determination by this court upon the stipulation that if upon the law and the evidence he was warranted in finding for the plaintiff, judgment was to be entered upon the finding; otherwise, judgment was to be entered for the claimant, the widow, in the sum of .$1,000 with interest thereon from the date of the writ and taxable costs against the plaintiff, and the defendant was to have its costs •out of the fund.</p>

<p>Contract, with a declaration in two counts, the first count being to recover $2,300 for goods sold and delivered and the second count being to recover $5,000 for the breach of an alleged contract in writing to accept and pay for certain mixed paper. Writ dated March 24, 1919.</p> <p>In the Superior Court the action was tried before Fessenden, J. The material evidence is described in the opinion. At the close of the evidence the judge presented two issues to the jury which with the answers thereto are stated in the opinion. The judge then ordered a verdict for the plaintiff under the first count of the declaration and a verdict for the defendant under the second count and at the request of the parties reported the case for determination by this court upon the stipulation and agreement of the parties that if he erred in ordering a verdict for the defendant under the second count of the declaration, then final judgment was to be rendered for the plaintiff in the sum of $7,300; if he did not err in so ordering the verdict, then final judgment was to be rendered for the plaintiff in the sum of $2,300.</p> <p>The case was submitted on briefs.</p>

<p>Conservator. Mortgage, Of real estate. Bills and Notes, Validity. Equity Jurisdiction, To set aside instruments executed by person while under conservatorship.</p> <p>In a suit in equity to restrain the foreclosure of a mortgage of real estate and to set aside the mortgage and the note which it secured, it appeared that the mortgage and note were executed and delivered by the plaintiff while his property was in the control of a conservator, appointed by the Probate Court upon a petition by the plaintiff. It also appeared that the defendant in good faith loaned the plaintiff $1,000 which was secured by the mortgage, that the defendant had no knowledge of the conservatorship, that the plaintiff was at all times of sound mind and that there was no record of the conservatorship on file in the registry of deeds. By order of the trial judge a decree was entered restraining the foreclosure of the mortgage and declaring the mortgage and note null and void and ordering that they be discharged and delivered to the plaintiff. Upon appeal it was held, that</p> <p>(1) A person whose property is placed under the control of a conservator cannot sell or mortgage it while the appointment continues;</p> <p>(2) The mortgage and note were voidable, although the mortgagee and payee acted in good faith;</p> <p>(3) It was immaterial that the conservator was appointed on the petition ot the plaintiff;</p> <p>(4) It was immaterial that the plaintiff was of sound mind when the appointment was made and the conveyance delivered;</p> <p>(5) The decree of the Probate Court appointing a conservator established the fact that the plaintiff could not sell or mortgage his estate;</p> <p>(6) It was not necessary that notice of the appointment of the conservator-should be filed in the registry of deeds;</p> <p>(7) The records of the Probate Court were notice to everybody of the appointment of a conservator;</p> <p>(8) The plaintiff having elected to avoid the mortgage and 'note no valid title passed to the defendant and the decree must be affirmed.</p>

<p>Bill in Equity, filed in the Supreme Judicial Court on April 6, 1921, by the executrix of a depositor in the commercial department of the Prudential Trust Company in Boston against the commissioner of banks for the Commonwealth and the Prudential Trust Company, the plaintiff alleging that the commissioner of banks was in possession of the property and business of the trust company and was proceeding to wind up its business, and praying that a demand note made by the plaintiff’s testator payable to the order of the trust company be ordered set off against a deposit made by the testator in the commercial department of the trust company, and that a savings bank book, issued by another bank and given to the defendant trust company as collateral security for the payment of the note, be returned to the plaintiff.</p> <p>The answer filed by the defendant alleged that the note was given for a loan of funds from the savings department of the trust company; that the note and security for the payment thereof were in the possession of the defendant as assets of the savings department and that the defendant had no right to accept in payment or discharge of the note a set-off of the indebtedness of the commercial department of the trust company to the plaintiff’s testator.</p> <p>The suit came on to be heard before Braley, J., upon the pleadings and a “ Case Stated,” material portions of which are described in the opinion. The single justice was of opinion that the set-off claimed should not be allowed, but at the request of the plaintiff reported the suit upon the pleadings and the facts in the “Case Stated” for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Probate Court, Jurisdiction. Equity Jurisdiction.</p> <p>The beneficiaries of a trust under the will of their father, who also were the sole heirs at law and next of kin of their mother, made an agreement among themselves and with the trustee under their father’s will and a third person whereby the trustee placed in the hands of the third person certain funds to which the beneficiaries had become entitled and with which the third person was, first, to pay to the trustee compensation as determined by arbitrators to whom the trustee and the beneficiaries had agreed to refer its determination, second, to pay other debts of the father, third, to pay inheritance and succession and estate taxes, both State and federal, due in the administration of the estate of their mother, and, fourth, to distribute the balance to the heirs. It appearing that the arbitrators failed to agree upon compensation to be paid to the trustee and that there was no reasonable ground for believing that they ever would make an award, the trustee demanded from the third person a return of the funds and, the funds not being returned, filed an account in the Probate Court in which he charged himself with the fund as then standing in the name of the third party under the agreement with him, and the next day filed a petition in equity in the Probate Court to have the agreement under which the third person held the funds declared null and void," which, upon the death of the trustee, the administratrix of his estate, who also was appointed to succeed him as trustee, was admitted to prosecute. Certain of the beneficiaries entered appearances in the Probate Court in opposition to this petition and subsequently, while the petition was pending in the Probate Court,' brought a suit in equity in the Supreme Judicial Court, in which the administratrix of the estate of the trustee and the third person and the other beneficiaries were made defendants, and in which the plaintiffs sought to compel the application by the third person of the funds in his hands for payment of the State and federal succession and estate taxes due in the administration of the estate of the mother of the beneficiaries. Held, that</p> <p>(1) The Probate Court had jurisdiction in equity under R. L. c. 162, § 5 (G. L. 215, § 6), of the petition of the trustee to have the agreement under which the third person held the funds declared null and void;</p> <p>(2) The Probate Court, having also acquired jurisdiction to determine the controversy as to the trustee’s compensation and the settlement of his account, had acquired exclusive jurisdiction of all the matters included in the suit in the Supreme Judicial Court before that suit was brought, and that suit must be dismissed.</p>

<p>Contract for $8,000 upon a promissory note made by the defendants and payable to the plaintiff. Writ dated March 5,1921.</p> <p>In the Superior Court, the action came on to be heard before McLaughlin, J., upon an agreed statement of facts described in the opinion and at the request of the parties and without any decision thereon he reported the case to this court for determination. The case was submitted on briefs.</p>

<p>Two actions of tort for injuries to personal and real property caused by the breaking of a water main alleged to have been caused by negligent construction, operation and care thereof by the defendant. Writs dated January 25, 1915.</p> <p>In the Superior Court, the cases were consolidated and were heard as one by Keating, J., without a jury, upon an auditor’s report and supplementary report, material portions of which are described in the opinion, and upon an agreement of the parties as follows:</p> <p>“ 1. The parties hereto waive trial by jury.</p> <p>“2. The amount of damages found by the auditor is to be final and binding upon the parties.</p> <p>“ 3. The auditor’s report heretofore filed shall be final on facts, and no evidence other than that contained in the auditor’s report is to be introduced, but the court in reaching its conclusion may consider the following facts, as if the same were included in, and made a part of the said report:</p> <p>“ The water main in question was a part of the general system of the defendant city, established and maintained under special I authority of the Legislature (Sts. 1869, c. 351; 1870, c. 322) by said defendant’s water department, for the purpose of supplying water to its inhabitants for a money consideration paid by those using its water. The water therein was used also for fire purposes as occasion required, and to supply the drinking fountains established by the city in its vicinity, from" which the city derived no revenue in either case.”</p> <p>The judge found for the plaintiff Lyons in the sum of $1,729.26 and for the plaintiff Lowell Trust Company in the sum of $2,562.45. The defendant excepted to the finding and the judge at the request of the defendant reported the cases for determination by this court upon the stipulation that, if he was warranted in finding for the plaintiffs, judgments were to be entered for them in the amounts set forth above with interest in each case from the date of the writ; otherwise, judgments were to be entered for the defendant.</p> <p>The cases were submitted on briefs.</p>

<p>Arbitrament under R. L. c. 194. The report of the arbitrator was filed in the Superior Court on March 3, 1921.</p> <p>The agreement of arbitration was dated April 29, 1920, and, exclusive of the signatures of the parties and the acknowledgment before a justice of the peace, was as follows:</p> <p>“ Know all men that Henry M. Williams, Ezra H. Baker and Philip R. Hovey as they are Trustees of the Cummington Realty Associates, and Charles E. Whitten of Lynn, for himself and the interests he represents as shown by the agreement hereinafter referred to, hereby agree to submit the demand and controversy stated in the collateral agreement hereto annexed, dated March 4, 1920, to the determination of [the arbitrator named,] the award of whom, being made and reported within one year from this day to the Superior Court for the County of Suffolk, the judgment thereon shall be final; and if either of the parties neglects to appear before the arbitrator, after due notice given to him of the time and place appointed for hearing the parties, the arbitrator may proceed in his absence.”</p> <p>The “collateral agreement” above referred to was dated March 4, 1920, was between the above described trustees of the Cummington Realty Associates and Charles E. Whitten and in substance read as follows:</p> <p>“ Whereas by indenture of lease dated May 5, 1913, Charles Paine of Boston, Massachusetts, leased to the Whitten-Gilmore Company, a Massachusetts corporation, certain premises at 620 Commonwealth Avenue in said Boston, ... for a period of ten years from October 1, 1913, and</p> <p>“ Whereas on May 23, 1913, said Paine executed an agreement under seal to and with the Chalmers Motor Company, a Michigan corporation, duly confirmed by the directors of said company, . . . and</p> <p>“ Whereas on August 1, 1914, said Whitten-Gilmore Company sublet to the Chalmers Motor Company of Massachusetts, a Massachusetts corporation, the said premises covered by the aforesaid lease for a period of nine years, one month, twenty-nine days being one day less than the said term of ten [years] covered by said original lease, . . . and</p> <p>“ Whereas said Whitten-Gilmore Company was dissolved by the Legislature of Massachusetts on February 21, 1916; and said Chalmers Motor Company of Massachusetts was dissolved by said Legislature March 8,1917, at which time of dissolution of the Whitten-Gilmore Company the stockholders were said Charles E. Whitten and Ernest A. Gilmore late of Newton, Massachusetts, deceased, and</p> <p>“ Whereas the said trustees, being the successors in title of the said Charles Paine and the present owners of the premises mentioned in said Lease believing that all rights under said lease have now ceased and determined, desire to execute a new lease commencing on or about April 1,1920 for a period of ten years thereafter including in said period of necessity the balance of the specified term in said Whitten-Gilmore Company lease and said Whitten claiming to be the beneficial owner of the right, title and interest of the Whitten-Gilmore Company and of the Chalmers Motor Company of Massachusetts, and of the Chalmers Motor Company of Michigan in connection with said premises desires to co-operate in the making of such new lease but claims that said Whitten-Gilmore Co. lease is in force, hence that in such event for the balance of said original lease, to wit, until October 1, 1923, he is entitled to sub-let said premises and to receive a just proportion of the difference between the rental in said Whitten-. Gilmore Company lease and the rental now to be obtained on a new lease, for such period and both parties desire to have their rights adjudicated without recourse to litigation.</p> <p>“ Now, therefore, in consideration of the mutual undertakings herein contained it is agreed:</p> <p>“ First: Said Whitten for himself and the interest he represents consents to the making of such new lease and so far as necessary agrees to join therein upon request by said trustees to the end that' the best possible return may be had from said premises pending the determination of the rights of the parties therein.</p> <p>“ Second: The said trustees agree that the rights of said Whitten and of the interests he represents shall be considered and adjudicated for all purposes as of March 4, 1920, with the same force and effect as if he had commenced such proceedings at law or in equity as were open to him on said date and had by appropriate proceedings preserved such rights as he then had, including those which would have been possessed by or preserved by the appointment of a receiver of the Chalmers Motor Company of Massachusetts under and by virtue of St. 1903, c. 437, as amended, and that there shall inure to said Whitten such rights or benefits as such receiver, if he had been successfully applied for and had been appointed, could have obtained by appropriate proceedings including the extension in point of time of the existence of said Chalmers Motor Company of Massachusetts by appropriate order of Court.</p> <p>“ Third: It is further agreed that if it shall appear.that said Whitten in behalf of himself or of the interests he represents (and it is agreed that included among those interests are the estate of said Ernest A. Gilmore and the joint interest of said Whitten and said Gilmore as partners or otherwise as their rights may appear) is entitled to hold said premises by virtue of the existing state of things on said date and so is entitled at law or in equity to a just proportion of the difference or increase in rental value as above stated, the said trustees undertake to pay such difference or increase in said rental value to said Whitten when and as received. If said Whitten is not so entitled the said trustees may retain such increased rental received by them for their own use as such trustees.</p> <p>“ Fourth: It is further agreed that the rights of said parties upon the facts as herein stated and any other facts competent or material thereto, particularly the facts concerning payment of rent and the occupation of the property up to the present time shall be referred to arbitration under the statutes of Massachusetts in such case made and provided and that an appropriate agreement of reference under said statutes shall be executed by the parties in due course and within sixty days from date.”</p> <p>Material portions of the report of the arbitrator were in substance as follows:</p> <p>On or about May 5, 1913, Charles Paine, then the owner of premises located on Commonwealth Avenue and Cummington Street in Boston, leased them for the term of ten years to the Whitten-Gilmore Company, a Massachusetts corporation. The tenancy was to begin October 1, 1913, and to expire September 30, 1923. The stipulated annual rental was $12,400.</p> <p>On May 23, 1913, Paine and the Chalmers Motor Company, a Michigan corporation, entered into an agreement providing that the Chalmers Motor Company should become the tenant of the premises under the lease above referred to in case the WhittenGilmore Company should for any reason cease before the expiration of the ten years to be the tenant. The original lease did not permit the tenant to assign but did permit the tenant to sublet.</p> <p>On May 5,1913, Charles Paine assigned his interest in the original lease and in the agreement of May 23, 1913, to Henry M. Williams, Ezra H. Baker and Philip R. Hovey, trustees of the Cummington Realty Associates.</p> <p>For some time after the original lease was entered into the Whitten-Gilmore Company either paid the rent from its own funds or collected the rent from the Chalmers Motor Company of Massachusetts and sent its check to Williams, the managing trustee of the Cummington Realty Associates. On July 31, 1914, the Whitten-Gilmore Company notified Williams as follows: “ This letter will advise you that from this date the Chalmers Motor Company becomes the tenant for the remainder of the term of the lease according to memorandum of agreement attached to the lease.” This reference was to the memorandum of May 23, 1913, referred to above.</p> <p>It was the intention at this time of the Whitten-Gilmore Company, of which the defendant Charles E. Whitten was the treasurer, to end its obligation under the lease and substitute the Chalmers Motor Company. On August 5, 1914, Williams, for the trustees, wrote to the Whitten-Gilmore Company declining to accept a cancellation of the lease or an assignment of it to the Chalmers Motor Company,of Massachusetts unless a bond of substantial amount was given to the trustees to secure the payment of the rent, or unless a payment of $2,000 in cash was made for the privilege of making the transfer. The letter contained the following paragraph: “If you do not care to make this arrangement and make a sub-lease to the Chalmers Motor Company of Massachusetts we shall take such measures as are necessary to see that the Whitten-Gilmore Company continues in existence and that its assets are not dissipated until after the lease shall have terminated and its obligation to us at an end.”</p> <p>In August of 1914 Williams at the request of the Chalmers Motor Company prepared a sublease to the Chalmers Motor Company of Massachusetts from the Whitten-Gilmore Company, which was executed and delivered by the parties on or about August 1, 1914, was to run for nine years, one month and twenty-nine days from its date and was to expire September 29, 1923. The rental was $12,400 a year, the same amount provided in the original lease.</p> <p>In the years 1916-1917, Williams, acting for the Associates, learned that there were some changes taking place in the organization of the Chalmers Motor Company (not the Chalmers Motor Company of Massachusetts), and had some correspondence with the officers of that company at Detroit with the intention of finding out whether the tenant then occupying the premises under the sublease was likely to continue as a tenant. “ The Whitten-Gilmore Company had then ceased to do anything with relation to the property but collect the rent from the sub-tenant and send it each month to Williams, sometimes sending the check of the ■Whitten-Gilmore Company, sometimes the check of the subtenant.” The subtenant changed from time to time and the premises were occupied in succession by the Chalmers Motor Company of Massachusetts, Chalmers Motor Company of New England, and the C. E. Fay-Alien Company. The rent was at all times paid promptly.</p> <p>On February 21, 1916, the Whitten-Gilmore Company with its own consent was dissolved by the Legislature, Spec. St. 1916, c. 112. The dissolution was in the usual form, and the provisions of the Massachusetts statute to keep a corporation alive for certain purposes for a term of three years are applicable. The dissolution was not known to any of the trustees of the Associates until about October 28,1919, or after the three years had expired.</p> <p>Whitten and the estate of Ernest A. Gilmore, who had died, then and at all times owned all of the stock of the Whitten-Gilmore Company and own it at the present .time. The fact that the Whitten-Gilmore Company had been dissolved was known to Whitten but he did not communicate the information to any of the trustees but continued at all times to collect the rent of the subtenant, at that time the C. E. Fay-Alien Company, and to remit it promptly to the trustees. Checks payable to the WhittenGilmore Company he indorsed over as treasurer to the Cummington Associates just as he had done before the dissolution. In this respect and in all other respects, unless the corporation’s dissolution is a cancellation of the lease, the Whitten-Gilmore Company complied with its terms.</p> <p>On March 8, 1917, the Chalmers Motor Company of Massachusetts was also dissolved by the Legislature in the usual form. Spec. St. 1917, c. 157. The Michigan company known as the Chalmers Motor Company was also dissolved in Michigan under date of January 3, 1918.</p> <p>“ It was admitted that during the period 1914-1919 the WhittenGilmore Company made several attempts to be relieved of further liability under the lease and that its officers and stockholders would have been glad to be relieved by having the lease cancelled, or by having a sub-tenant accepted as a new lessee. It is also agreed that the trustees of the Associates were aware of this desire on the part of the Whitten-Gilmore Company to cancel the lease and the trustees declined to permit it to be cancelled, and intended at all times to hold the Whitten-Gilmore Company. This intention they expressed to the Company on at least two occasions. In other words, the attitude of the trustees continued to be that expressed in Williams’ letter of August 5,1914, above referred to in this report.”</p> <p>In the spring of 1920 the C. E. Fay-Alien Company, the occupant of the premises, moved. This removal had been previously planned by the latter company and one of its officers had notified Mr. Williams of the intended removal. Before it actually took place, however, Williams, for the trustees, wrote the C.E.Fay-Allen Company under date of December 27,1919, notifying it to quit the premises March 1,1920. This letter contained the statement that, the trustees would look solely to the C. E. Fay-Alien Company for the rent. The company is described in the letter as a“ tenant at will.”</p> <p>The removal of the C. E. Fay-Alien Company left the premises unoccupied. The rent at the rate required by the old lease was paid in the way above described to May 15, 1920. This left an unexpired balance of the term of the original lease of three years, four months and fifteen days with the Whitten-Gilmore Company dissolved and the building physically unoccupied;</p> <p>“ At the time that the C. E. Fay-Alien Company moved from the building the trustees had known for some months that the WhittenGilmore Company had been dissolved. Just when they learned of the dissolution did not appear but it was prior to December 27,1919. At about the time of the removal a new party appeared and offered to take a lease of the premises at an increase in the rental over the $12,400 paid up to that time of $2,775 a year. This figure is the result of a computation made necessary by the fact that the new lease covers other space in addition to that covered by the original lease.</p> <p>“ The parties to this action had now shifted their positions. The trustees claimed that the dissolution of the Whitten-Gilmore Company operated as a cancellation of the lease so that the trustees were entitled to make a new lease and take advantage for themselves of the additional rental. The stockholders of the Whitten-Gilmore Company claimed that it was too late for the trustees to take this position and that they were entitled to sub-let to the new tenant. The stockholders further claimed that by the operation of law the corporation’s interest in the lease as an ass„et of the company had become the property of the stockholders and that they were, therefore, entitled to continue as tenants, sub-let to the new tenant, pay the old rental and keep the annual difference of about $2,775.” They further pointed out that under the agreement of May 23, 1913, between Paine and the Chalmers Motor, Company (of Detroit), if the lease became inoperative, the Chalmers Motor Company (of Detroit) became the tenant for the balance of the term. “ The parties thereupon agreed, without prejudice, to the making by the trustees of a lease to the new tenant at the increased rental and submitted the questions growing out of the facts above found to arbitration.</p> <p>“ It is agreed that the amount of money involved is the additional rental for'the period from May 15,1920, to September 30,1923, the expiration of the original lease, and that it may be taken for the ' purpose of the arbitration as $231.25 per month, or for the period $9,365. By the terms of the agreement for arbitration (see paragraph fourth) the plaintiffs may, however, in the event of a decision against them, discharge their obligations in full by paying ‘such difference or increase in said rental value when and as received.’</p> <p>“ It is admitted that no formal instrument conveying the rights of the Whitten-Gilmore Company under the original lease to its .stockholders or any one else was ever executed or delivered, and there was no evidence that the corporation or its directors ever at .any meeting passed any vote or votes attempting to dispose to anybody of the corporation’s interest in the lease.</p> <p>“ I am unable to find that the conduct of the parties constituted a surrender of the lease. In other words, I find no agreement on the part of the tenant to abandon and on the part of the landlord to resume possession of the demised premises.</p> <p>“ The agreement for arbitration contains, among others, three stipulations that should be noticed: (1) The rights of Whitten .shall be considered and adjudicated as of March 4, 1920, and (2) as if he had commenced such proceedings at law or in equity as were open to bim on that date, and (3) they shall include those rights which would have been possessed by or preserved by the appointment of a receiver of the Chalmers Motor Company of Massachusetts, and such rights and benefits as such receiver if appointed could have obtained. There is nothing in the agreement which specifically preserves such rights as might have been or might now be secured for him by the appointment of a receiver of the tenant corporation the Whitten-Gilmore Company.”</p> <p>The arbitrator made rulings of law, subject to confirmation or reversal by the court, as follows:</p> <p>“ I rule that the expiration of the three years after the dissolution of the corporation terminated the lease and that the trustees were therefore free to make a new one with a new tenant and retain the proceeds.” Contingent upon the foregoing ruling being incorrect, he ruled that, if there were any rights remaining in the tenant, there being no evidence of any unpaid debts, Whitten succeeded to and became the owner of them; and that, except through a receiver of the Whitten-Gilmore Company, Whitten •could not enforce the rights of stockholders in the lease.</p> <p>By order of Wait, J., the “award” of the arbitrator was “accepted” and, at the request of the parties, the case was reported to this court for determination.</p> <p>St. 1903, c. 437, §§ 52, 53, 54 (see now G. L. c. 155, §§ 51, 52, 53), read as follows:</p> <p>“ Section 52. Every corporation whose charter expires by its own limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other purposes is terminated in any other manner, shall nevertheless be continued as a body corporate for three years after the time when it would have been so dissolved, for the purpose of prosecuting and defending suits by or against it and of enabling it gradually to settle and close its affairs, to dispose of and convey its property and to divide its capital stock, but not for the purpose of continuing the business for which it was established.</p> <p>“ Section 53. If the charter of a corporation expires or is annulled, or if the corporation is dissolved, or if a judgment has been recovered against it, and it has neglected, for thirty days after demand made on execution, to pay the amount due, with the officer’s fees, or to exhibit to the officer real or personal property belonging to it and subject to be taken on execution, sufficient to satisfy the same, and the execution has been returned unsatisfied, the Supreme Judicial Court or the Superior Court shall have jurisdiction in equity upon application of a creditor or stockholder to appoint one or more receivers to take charge of its estate and effects and to collect the debts and property due and belonging to it; with power to prosecute and defend suits in its name or otherwise, to appoint agents under them and to do all other acts which might be done by such corporation, if in being, which may be necessary for the final settlement of its unfinished business. The powers of such receivers may be continued as long as the court finds necessary for said purposes.</p> <p>“ Section 54. The receivers shall pay all debts due from the corporation if the funds in their hands are sufficient therefor; and if they are not, they shall distribute them ratably among the creditors, who prove their debts in the manner directed by any decree of the court for that purpose. If there is a balance remaining after the payment of the debts, the receivers shall distribute and pay it to those who are justly entitled thereto as having been stockholders of the corporation, or their legal representatives.”</p> <p>The case was submitted on briefs.</p>

<p>Supreme Judicial Court, Reservation for full court. Mavdam/us. Overseers of the Poor. Gloucester.</p> <p>A petition for a writ of mandamus reserved by a single justice for determination by the full court brings before this court only questions of law.</p> <p>"While a writ of mandamus will issue to compel the performance of a duty entrusted to overseers of the poor and they can be compelled under G. L. c. 118, to exercise their judgment and discretion, they cannot be compelled to exercise their judgment in a particular way or to make a decision favorable to the petitioner in a matter which is entrusted to their discretion.</p> <p>The furnishing of aid at the public expense under G. L. c. 118, to a mother with dependent children is not a mandatory duty committed to the overseers of the poor to be exercised in all cases where the mother is fit to bring up her children and the surroundings of the home are such as to make for good character.</p> <p>Where assistance can be secured from relatives, organizations or individuals, the overseers of the poor properly may refuse to pay for the support of such a mother and children from the public treasury.</p> <p>If a mother with dependent children has relatives and friends who are able and willing to support her and her children in a reasonable degree of comfort, a petition for a writ of mandamus to compel the overseers under G. L. c. 118, to furnish aid at the public expense contrary to their determination must be denied.</p>

<p>Certification, filed in the Superior Court in proceedings under the workmen’s compensation act, of a decision of the Industrial Accident Board, finding and ruling that Dominick Capone, a portion of whose finger was traumatically amputated as the result of an injury received while operating a milling machine, was entitled for partial disability to $8.64 a week to continue under the provisions of the statute. .</p> <p>In the Superior Court, by order of Sisk, J., a decree was entered in accordance with the decision of the Industrial Accident Board. Material facts found by the board are described in the opinion. The insurer appealed.</p>

<p>Two actions of contract, the first action being by a surety company upon a contract in writing to indemnify it for loss sustained under a bail bond, and the second action being by the indemnitor upon the same contract to recover a sum of money given by him to the surety company as security therefor. Writs, dated respectively February 14 and February 20, 1917.</p> <p>The actions formerly were before this court and the facts are reported in 233 Mass. 74. They were heard a second time in the Superior Court by Hall, J., without a jury. By agreement of both parties the stenographic notes of the evidence of the previous trial were submitted as evidence. Other material evidence and findings and rulings by the judge are described in the opinion.</p> <p>At the close of the evidence Nazzaro duly requested that a finding be made for him as defendant in the action of National Surety Company vs. Nazzaro, and that a finding be made for him as plaintiff in the action of Nazzaro vs. National Surety Company,</p> <p>The judge refused so to find, and in the case of National Surety Company vs. Nazzaro, Nazzaro asked for and the judge refused the following rulings:</p> <p>“ 1. The court should find for the defendant.</p> <p>“ 2. The contract of the defendant was to indemnify the plaintiff as surety upon a bail bond and, as the plaintiff did not become surety upon such bond, it cannot recover.</p> <p>“ 3. The liability of the defendant was limited by the indemnity contract to the bail bond described in the contract, and did [not] extend to a recognizance by a person other than the plaintiff.</p> <p>“ 4. Any authority delegated by the défendant to any person in the matter of details involved in the contract did not authorize such person to substantially change the contract without the knowledge of the defendant.</p> <p>“ 5. The person described as ‘Blume’ had no authority to bind the defendant to indemnify the plaintiff as surety upon an indemnity bond to a person entering into a recognizance unknown to the defendant.</p> <p>“ 6. The plaintiff was bound upon the request of the defendant and the defendant’s offer to indemnify to afford the defend- *</p> <p>ant a reasonable opportunity to produce the surety upon the recognizance.</p> <p>“ 7. The defendant was entitled to have the plaintiff, and not some other person, as surety upon the bond as to which he agreed to indemnify the plaintiff.</p> <p>“ 8. A recognizance is not a bail bond.</p> <p>“ 9. Upon the refusal of the officials in Connecticut to take the bail bond offered by the plaintiff, the obligation of the defendant as to indemnity terminated.</p> <p>“ 10. If the court finds that the defendant agreed to indemnify the plaintiff for loss, but had not been told by the plaintiff and did not know what amounts, if any, paid by the plaintiff were paid upon an obligation other than that in the indemnity contract and such agreement was as to amounts paid upon bail bond of the plaintiff, the defendant is not liable by reason of such agreement.</p> <p>“11. The plaintiff, by reason of the statute of frauds, is not entitled to a verdict.</p> <p>“ 12. The man Blume was not an agent of the defendant.</p> <p>“ 13. The man Blume was not an agent of the defendant with authority to bind the defendant to pay any amount by reason of the recognizance of Crandall.</p> <p>“ 14. Even if the man Blume was the agent of the defendant, the defendant is not liable to the plaintiff.</p> <p>“ 15. If Blume were the agent of the defendant, no contract was made which bound the defendant to indemnify the plaintiff for indemnifying Crandall for loss by reason of the default of McKenna.</p> <p>“ 16. The plaintiff never became bound to pay to the State of Connecticut any amount for the default of McKenna.</p> <p>“ 17. Authority ‘to arrange details in connection with the execution of a bail bond’ did not give Blume authority to substitute the recognizance for the bail bond.</p> <p>“ 18. Crandall was an independent contractor and not an agent for the plaintiff in the matter of recognizance.</p> <p>“ 19. The plaintiff is not entitled to recover any amount as counsel fees.</p> <p>“ 20. If the defendant and the plaintiff’s representative entered into an agreement based upon the belief or understanding by both that a bail bond had been given and no such bond had been given, the defendant is not bound by such agreement.</p> <p>“ 21. There was no consideration for any agreement by the defendant to pay to the plaintiff any amounts paid by it by reason of payment on recognizance.”</p> <p>In Nazzaro vs. National Surety Company, Nazzaro asked for and the judge refused the following rulings:</p> <p>“ 1. On all the evidence the plaintiff is entitled to a verdict.</p> <p>“ 2. The defendant did not become liable as surety in accordance with the contract of the parties, and the plaintiff is entitled to the money, the proceeds of which were deposited as security.</p> <p>“ 3. The defendant did not, within the terms of the indemnity contract, ever become, nor on the evidence could it ever become liable to any loss.</p> <p>“ 4. The defendant was not entitled to hold the $600 deposited with it as security for its obligations on indemnity bond to secure any person who became surety upon a recognizance.</p> <p>“ 5. The recognizance given by one Crandall was not in ac-> cordance with an indemnity contract under which the defendant seeks to hold the plaintiff’s money.</p> <p>“6. The plaintiff never became bound in any way to indemnify the defendant for payments made by it to or on behalf of Crandall.</p> <p>“ 7. The contract of indemnity between, the defendant and Crandall to pay any amounts Crandall might be obliged to pay by reason of his recognizance and the default of McKenna was a contract to pay for the debt or default of another, and no contract of the plaintiff in respect thereto was made which would bind the plaintiff under the statute of frauds.</p> <p>“ 8. The defendant is barred by the statute of frauds from any right to retain the money deposited with it by the plaintiff.”</p> <p>The judge found for the surety company in both actions; and Nazzaro alleged exceptions.</p> <p>The cases were argued at the bar in March, 1921, before Rugg, C. J., Braley, Pierce, & Carroll, JJ., and afterwards were submitted on briefs to all the Justices.</p>

<p>Jurisdiction. Supreme Judicial Court. Mandamus. Constitutional Law, Amendment of the Constitution, Rearrangement of the Constitution and amendments, Opinion of the Justices. Evidence, Competency. Words, “ Rearrangement,” “ Rearranged,” “ Revision.”</p> <p>The question, whether the joint special committee of the General Court of 1920,, appointed under a resolve authorizing and directing the committee to prepare for the printers the revision of the General Laws of the Commonwealth and in connection therewith to provide for the printing in the first volume thereof of the Constitutions of the United States and of the Commonwealth, shall cause to be printed as the Constitution of the Commonwealth the Constitution of 1780 with all the amendments thereto or the “Rearrangement of the Constitution,” adopted and ratified by vote of the people at the State election on November 4, 1919, is justiciable; and, where it appears that the committee by a majority vote has determined to print the Constitution of 1780 with all of the amendments thereto and not the “ Rearrangement,” such question properly is brought before the Supreme Judicial Court by a petition by citizens and taxpayers of the Commonwealth against all of the committee seeking a writ of mandamus directing the respondents to print the “Rearrangement” as the Constitution, and by a petition seeking the same remedy and brought by the minority member of the committee against the majority members.</p> <p>Opinions of the justices of this court, rendered “upon important questions of law, and upon solemn occasions” under c. 3, art. 2 of the Constitution of the Commonwealth upon request of a branch of the Legislature or of the Governor and Council, are advisory in character, are delivered by the justices as individuals and not sitting as a court, and are formed without the aid of counsel or the benefit of argument; and, when subsequently a matter upon which such an opinion has been rendered comes before this court for determination by them as a court, the justices are bound most sedulqusly to guard against any .influence flowing from their previous consideration of the question in their advisory capacity.</p> <p>Whether, in proposing certain amendments to the Constitution to be voted upon by the people in 1917, certain other amendments to be voted upon in 1918, and the “Rearrangement of the Constitution” to be voted upon in 1919, the Constitutional Convention, convened under the authority of St. 1916, c. 98, exceeded the authority conferred upon it by § 6 of that statute, was a question not raised in these proceedings and was not determined, it being assumed for the purposes of this decision that the convention in this respect did not go outside its authority.</p> <p>In determining, upon the petitions for the writ of mandamus above described, whether the Constitution of 1780 and the amendments thereto were superseded by the affirmative vote of the people, at the State election on November 4, 1919, in answer to the question, “ Shall the Rearrangement of the Constitution of the Commonwealth, submitted by the Constitutional Convention, be approved and ratified? ” it is proper for this court to examine the debates, committee reports, proceedings and votes of the Constitutional Convention, not for the purpose of controlling the plain meaning of words written into the “Rearrangement” but for the purpose of understanding the conditions under which it came into existence and how it appears to have been received and understood by the convention. Crosby, J., dissenting to so much of the foregoing decision as permitted the consideration of debates.</p> <p>Testimony of various members of the Constitutional Convention of 1916-1919 as to matters not included in its publications and records, including their recollections and construction of events at meetings of committees and upon the convention floor, are not proper to consider in determining the meaning and effect of what was done by the convention as shown by its publications and records.</p> <p>The words of the “Rearrangement of the Constitution” and of the vote at the State election in 1919 in which the people expressed their will are a manifestation of their desire concerning a constitution, and they are to be construed in the light of the conditions under which the “Rearrangement” was framed, the ends designed to be accomplished, the benefits expected to be conferred, and the evils hoped to be remedied.</p> <p>When the will of the people, exercised under the right given them by art. 7 of the Declaration of Rights to reform, alter or totally change the government when their protection, safety, prosperity and happiness require it, has been ascertained, it must prevail.</p> <p>In considering the question placed upon the ballot by the Constitutional Convention at the State election on November 4, 1919, “ Shall the Rearrangement of the Constitution of the Commonwealth, submitted by the Constitutional Convention, be approved and ratified? ” the natural conclusion for the voters to reach from either a cursory or the most complete examination of the pertinent facts was that, whether they voted “Yes” or “No,” they in any event would continue to be living under precisely the same constitutional provisions and that no change in constitutional provisions would be effected by their vote. De Courcy & Crosby, JJ., dissenting.</p> <p>A written constitution is the fundamental law for the government of a sovereign State, final in its statement of the rights, privileges and obligations of the citizens, ultimate in its grant of the powers, and conclusive in its definition of the limitations, of departments of State and of public offices.</p> <p>A written constitution cannot be made subject in its “meaning or effect” to another instrument.</p> <p>The voters, by their affirmative vote upon the question above described, expressed as their mandate in art. 157 of the “ Rearrangement of the Constitution ” that the " rearrangement shall not be deemed or taken to change the meaning or effect of any part of,the Constitution or its amendments as theretofore existing or operative; ” and that mandate can be given force and effect according to the natural meaning and effect of words as commonly used only by adhering to the Constitution of 1780 and its amendments as the fundamental law. De Courcy & Crosby, JJ., dissenting.</p> <p>By the affirmative vote above described, the “ Rearrangement ” was not made the Constitution of the Commonwealth. De Courcy & Crosby, JJ., dissenting.</p>

<p> Mandamus. Boston. Police. Municipal Corporations. </p> <p>Upon a report by a single justice of this court to the full court of a petition for a writ of mandamus, the respondent’s answer and return and facts found by the single justice, the full court can make no findings of fact and there is presented no question involving the exercise of judicial discretion, but merely the question of law, whether, upon the facts alleged and admitted or found, the petitioner as of right is entitled to the issuance of the writ.</p> <p>By St. 1906, c. 291, § 8, the power and duty of deciding the nature and the extent of land necessary for accommodations for the police of the city of Boston is vested exclusively in the police commissioner: the responsibility is his alone and his decision with regard thereto is not subject to the review, revision or approval of any other officer, board or tribunal.</p> <p>When the police commissioner of the city of Boston has determined the general location and the size of a lot of land necessary to furnish accommodations required for the Boston police, it is his duty to communicate such conclusion to the governing officers of the city, and it thereupon becomes their duty to go forward and complete the work of furnishing the accommodations thus required by acquiring a suitable lot of land and causing to be erected a suitable building, adequate to meet those requirements both as to size and location.</p> <p>The fact that in 1918 the city of Boston purchased a lot of land for the purpose of erecting thereon accommodations for a certain division of the Boston police, which in 1917 had been approved by the police commissioner then in office and upon which the projected building never was erected, does not justify a refusal by the city council to comply with a requirement in 1920 by the police commissioner then in office of some lot of land situated within the boundaries of the police division referred to and of a specified area which was greater than that of the lot previously purchased and then owned by the city, if the commissioner in office in 1920 had determined that a lot of the general location and size so specified by him was necessary for the accommodation of the police.</p> <p>Upon a refusal by the city council of Boston to adopt, upon recommendation of the mayor, an order for an appropriation of money for the purchase of a lot of land in a location and of a size which the police commissioner of the city had stated in a letter to the mayor, transmitted by him to the council, was needed to meet requirements for the accommodation of a division of the Boston police, a writ of mandamus was issued, upon a petition by the commissioner against the city, the mayor and the city council, in effect requiring the respondents to proceed forthwith to consider making provision for the police department in substantial accordance with the specifications set forth in the commissioner’s letter, and that in so doing they should exclude from their deliberations and action every site for a building not containing at least the ground area specified in that letter.</p>

<p>Complaint, filed in the Superior Court on September 17, 1920, under St. 1916, c. 269,, § 20, for the purpose of appealing from the refusal of the Tax Commissioner to abate an income tax assessed upon the complainant under the provisions of St. 1919, c. 324, § 1.</p> <p>While the complaint was pending in the Superior Court, William D. T. Trefry, who had been tax commissioner when the complaint was filed, was succeeded by Henry F. Long, and the complainant thereupon filed a motion to amend his complaint by substituting the new commissioner as respondent.</p> <p>The respondent’s answer admitted the allegations in the complaint, and the case was reported by Wait, J., to this court for determination upon the complaint, the answer and the complainant’s motion to amend.</p>

<p>'Insurance, Against liability. Attorney at Law. Practice, Civil, Findings by trial judge, Appearance. Estoppel. Waiver. Notice. Judgment, Vacation. Verdict.</p> <p>A judge, who heard, without a jury, an action for personal injuries caused by a collision with a motor vehicle of the defendant, among other findings found that attorneys for an insurance company, which had issued to the defendant a policy protecting him against loss resulting from such an action, were not authorized to appear for the defendant in the action after the company had disclaimed liability under the policy, the defendant had been defaulted, damages had been assessed, a general judgment had been entered, execution had been issued and had been returned unsatisfied, and the plaintiff had petitioned for a vacation of the judgment for the purpose of striking out a count in the declaration for consequential damages to the plaintiff’s wife, which the policy did not cover, and of obtaining a judgment solely for damages caused by his own personal injuries so that a bill in equity against the insurance company under St. 1914, c. 464, § 2, might be maintained. The record before this court showed that the finding was'made on evidence outside of the policy. Held, that the judge’s finding was not conclusive.</p> <p>A policy of insurance protecting the insured against loss resulting from injuries to others caused by the operation of a motor vehicle contained provisions that the insurer would defend in the name and on behalf of the insured any suits which at any time might be brought against him on account of such injuries and would save the insured harmless from costs, interest and expenses involved therein. The policy was issued subject to conditions that the insured, immediately upon the occurrence of an accident, would give written notice to the insurer with fullest information obtainable and, if any suit was brought against him on account of the accident, wquld forward to the insurer immediately every summons or other process served upon him; that the insured would not voluntarily assume any liability, settle any claim or incur any expenses except at his own cost, would not interfere in any negotiations for settlement or legal proceedings without the consent of the insurer and, when requested by the insurer, would aid in effecting settlements, securing evidence, the attendance of witnesses and the prosecuting of appeals. A further condition was that, upon payment of loss or expense under the policy, the insurer should be subrogated, to the amount of such payment, to all rights of recovery therefor of the insured against others. Held, that</p> <p>(1) The policy imposed the duty and conferred the authority upon the insurer to defend in the name and on behalf of the insured any and all actions brought against the insured and founded upon causes of action alleged to arise out of the risks covered by the insurance;</p> <p>(2) The exercise of the power and authority thus conferred was not dependent upon further assent or ratification by the insured;</p> <p>(3) Such power and authority continued so long as the contract of insurance endured as a valid agreement.</p> <p>The declaration in an action of tort brought by a man against a corporation con- " tained two counts, one for personal injuries resulting from a collision with a motor vehicle of the defendant and one for consequential damages due to injuries received by the plaintiff’s wife in the same collision. The defendant gave due notice of the claim and action to an insurance company which had issued to him the policy above described protecting him against loss resulting from such an action as that described in the first count. The company disclaimed liability and declined to defend. The defendant was defaulted, damages were assessed, a general judgment for the plaintiff was entered and an execution was issued. The plaintiff thereupon brought against the corporation and the insurance company a bill in equity under St. 1914, c. 464, seeking to satisfy bis judgment from . the obligation created by the policy. A demurrer to the bill was sustained. The plaintiff thereupon returned his execution to court in no part satisfied and filed a petition to vacate the judgment in the action at law on the ground that his rights were prejudiced by the general verdict. No notice of the petition was given to the insurance company. The petition was granted and the judgment was vacated by a judge other than the one before whom the action previously had been tried. Thereafter the attorney for the insurance company filed a “special appearance for the defendant” and a motion to set aside the order allowing the petition to vacate the judgment. The motion was denied. Upon motion of the plaintiff, the “ special appearance [for the defendant ” was stricken out. The plaintiff then waived the second count in his declaration, the action was heard on its merits by a judge without a jury and judgment was entered on the first count for the plaintiff. Held, that</p> <p>(1) The conduct of the insurance company had not been such with respect to the plaintiff as to estop it from exercising its right and power to enter upon the defence of the action he had brought against the defendant at any time it saw fit;</p> <p>(2) There was nothing in the conduct of the insurance, company toward the defendant which prevented the insurance company from undertaking to defend the action at the time it attempted to do so;</p> <p>(3) The earlier disclaimer by the insurance company of liability under the policy was not an estoppel against changing its position in this regard and undertaking the defence of the action;</p> <p>(4) While the circumstance that the case had gone to judgment did not prevent the insurance company from asserting in behalf of the defendant what rights then remained to it, it must take the litigation as it was at the time when such right to defend was asserted;</p> <p>(5) The insurance company, having waited until after the judgment had been vacated before it came in to defend, had no right to attack that action of the court except for causes, if any, which might have been open to it if it had been heard originally upon the petition to vacate the judgment;</p> <p>(6) The plaintiff was under no obligation to notify the insurance company of its petition to vacate the earlier judgment;</p> <p>(7) The fact that the plaintiff had commenced a proceeding under St. 1914, c. 464, § 2, imposed upon him no obligation to notify the insurance company of further proceedings in the action at law against the defendant;</p> <p>(8) The insurance company, by disclaiming liability under the policy and declining to undertake the defence of the action, waived its rights to notice which it would have received through its attorneys if it had availed itself of its privileges under the policy of insurance;</p> <p>(9) The proceedings of the court in reversing the judgment were regular under R. L. c. 193, §§ 14-17;</p> <p>(10) There is no requirement of the law that a petition to vacate a judgment shall be heard by the same judge who presided at the trial of or heard the action at the time the verdict or finding upon which the judgment was founded was made;</p> <p>(11) The power to reverse the judgment for the cause set forth in the petition carried with it the power to set aside the verdict; reversal of judgment for such cause implied a setting aside of the verdict;</p> <p>(12) There was no error in allowing the motion to strike out the “special appearance for the defendant ” filed by the attorney for the insurance company;</p> <p>(13) The mere fact, that the attorney who filed the “ special appearance for the defendant ” was the attorney for the insurance company, gave him no right to appear specially when the terms of the policy of insurance conferred upon him the express right to appear generally;</p> <p>(14) The filing of the several motions on behalf of the defendant by the attorney for the insurance company was or might have been treated as in effect a general appearance;</p> <p>(15) The granting of a petition to vacate a judgment ordinarily rests largely in sound judicial discretion, and there did not appear to have been in the circumstances an abuse of discretion;</p> <p>A refusal of a request, presented to a judge hearing an action without a jury, for a finding of fact upon which the evidence was conflicting, is not subject to revision.</p>

<p>Petition, filed on October 27, 1920, and afterwards amended, for a writ of prohibition restraining the board of registration in medicine from hearing or adjudicating upon a complaint against the petitioner in which it was alleged that he had been guilty of “gross misconduct in the practice of his profession” in entering into an agreement on or about September 24, 1920, to perform an abortion or to attempt to perform an abortion on a certain person, and in which the revocation of his certificate of registration as a practitioner of medicine was sought.</p> <p>The petition was heard by Jenney, J., it being agreed that the facts set forth therein were true. The petitioner contended that he was duly registered as a practitioner in medicine in 1898, when he received the certificate from the board under R. L. c. 76; that the only cause for the revocation of his certificate therein enumerated was the conviction of a felony or any crime in the practice of his profession; that the board was without jurisdiction to try the petitioner because the complaint exhibited against him alleged no such conviction and did not charge any crime known to the law, or any attempt at the commission of such crime; that the board was without jurisdiction to suspend, revoke or cancel the petitioner’s registration except for the crimes specifically set forth as a cause for such revocation in R. L. c. 76; and that the board was without jurisdiction to suspend, revoke or cancel th^ petitioner’s registration by reason of the amendment of St. 1917, c. 218, § 1, by St. 1918, c. 257, § 296, which inserted at the beginnings of said first named statute the words “ except — as otherwise provided by law,” — meaning that the petitioner, having been duly registered before the enactment of St. 1917, c. 218, his registration might only be revoked for the causes specified in R. L. c. 76, § 3.</p> <p>The single justice, in the absence of counsel, ordered that the petition be dismissed; and, in the manner described in the opinion, the petitioner alleged exceptions.</p>

<p>Negligence, Street railway, Contributory, In use of motor vehicle.</p> <p>As a general rule in actions for personal injuries or property damage resulting from collisions occurring at intersecting streets between electric street railway cars and motor vehicles or horse drawn vehicles, the issues of negligence of the motorman of the street car and of negligence or due care of the driver of the other vehicle are for the jury.</p> <p>At the trial of an action of tort against a street railway company for personal injuries received when a motor vehicle, in which the plaintiff was seated beside the driver, was run into by an elevated street railway car at intersecting streets, there was evidence tending to show that, as the motor vehicle approached the intersection of the streets, it was travelling at the rate of not more than ten miles an hour, that the street car was approaching the intersection of the streets from the plaintiff’s right and was travelling as fast as thirty-five miles an hour, that, when the plaintiff was about seventy feet from the point of collision, he looked to his right and could see up the track of the defendant one hundred and fifty feet and that there was no car in sight, that, when the motor vehicle was on the street railway track, the plaintiff called the driver’s attention to the approaching street car, that no gong was sounded on the street car and that the motorman did nothing to stop the car until it was about seven feet from the motor vehicle. Held, that</p> <p>(1) The question, whether the motorman was negligent, was for the jury;</p> <p>(2) Irrespective of G. L. c. 231, § 85, the question of the plaintiff’s due care was for the jury;</p> <p>(3) The question, whether the plaintiff should have looked again to his right when he reached the curb of the intersecting street, was for the jury;</p> <p>(4) While it was the plaintiff’s duty to exercise reasonable care for his safety, he might well trust something to the expectation that the driver of the motor vehicle would act with due regard for his own safety, and might assume that an electric street car would not approach an intersecting street at a rate of speed three or four times that of the motor vehicle;</p> <p>(5) It could not be ruled as a matter of law that the driver of the motor vehicle was negligent and that his negligence was imputable to the plaintiff.</p>

<p>Constitutional Law, Police power. Board of Conciliation and Arbitration, l Labor. Strike.</p> <p>Where a strike involving more than twenty-five employees exists, the public concern in the matter is sufficient to justify an impartial investigation by an unbiased board of public officers within the bounds set forth in G. L. c. 150, §§3,5,8.</p> <p>The provisions of G. L. c. 150, §§ 3, 5, 8, are a constitutional exercise of the police power by the Legislature.</p> <p>It must be presumed, in the absence of evidence to the contrary, that, in holding a public hearing and making a report under G. L. c. 150, §§ 3, 5, 8, relating to a strike while there is pending a suit in equity by the employer against persons responsible for the strike seeking relief by injunction, the board of conciliation and arbitration will not violate constitutional guarantees of personal liberty and individual freedom; and it cannot be said as a matter of law that in conducting the hearing while the suit is pending the board would be interfering with the exercise by the judicial department of the government of its functions of deciding the suit according to the law and the evidence.</p> <p>The statute, G. L. c. 150, §§ 3, 5, 8, is not open to the objection that it attempts to legalize contempt of court.</p>

<p>Trust, Construction of instrument creating trust. Devise and Legacy. Words, “Legal heirs.”</p> <p>The word “heirs” when used in a will, unless the context and the circumstances in which it is employed indicate a different meaning, is construed as meaning those persons who take a person’s real estate by inheritance upon his death.</p> <p>A will of a man who died in 1866, after provisions for gifts to a large number of blood relations of the testator, to strangers of his blood and to children of kindred, provided in a thirty-fourth clause that the residue of his estate should be given to nephews and nieces “in severalty,” one half to be paid to them “in equal proportions whenever at the end of each six months there shall be a sufficient sum to divide $200 or more,” and the other half to be held for them in. trust, they receiving the income, “and at the decease of either of the said nephews and nieces I give and bequeath such ones half portion and interest on the trust fund to his or her legal heirs; and at the decease of all of my nephews and nieces, I give and bequeath the principal of said trust fund to their legal heirs.” One nephew died leaving a widow and brothers and a niece as next of kin. Held, that</p> <p>(1) The provision last quoted created a contingent remainder which became vested in interest at the nephew’s death;</p> <p>(2) The “ legal heirs ” of the nephew as determined by the statutes in effect at the time of the nephew’s death were entitled to his interest in the trust;</p> <p>(3) The will disclosed no testamentary intent that the words "legal heirs” should not be used in their ordinary sense;</p> <p>(4) Those entitled to benefit as the “legal heirs” of the nephew were his widow and his next of kin.</p>

<p>Petition, filed in the Probate Court for the county of Plymouth on August 1, 1919, under R. L. c. 153, § 33, for separate maintenance. »</p> <p>From the decree, described in the opinion, entered in the Probate Court by order of L. E. Chamberlain, J., the petitioner appealed to the Superior Court, where the petitioner filed a motion for counsel fees. The case was heard in the Superior Court by Thayer, J. Proceedings there are described in the opinion. The docket entry of January 3, 1921, referred to in the opinion, read as follows:</p> <p>“ Ordered that the respondent pay to the petitioner the sum of seventeen dollars per week, until the further order of this court, the first payment to be made June 13, 1920. It is further ordered that the respondent pay to the petitioner the sum of $30. forthwith as expenses in prosecuting her petition. This order entered as of June 9, 1920, Jan. 3, 1921.”</p> <p>The respondent appealed “ from the finding and judgment entered on January 3, 1921.”</p> <p>The case was submitted on briefs.</p>

<p>Two petitions to enforce mechanics’ liens, filed in the Police Court of Chelsea on October 20, 1915, against “ Alice H. Davis, James J. Hunnewell, respondents, James J. Hunnewell, debtor.” On appeal to the Superior Court, the petitions Were heard together by Morton, J., without a jury, upon an agreed statement of facts.</p> <p>The land described in the petitions included all of lot J and nearly half of lot I referred to in the opinion, and half of the building being erected on lot I.</p> <p>The contract of the petitioner Bordier with the respondent Hunnewell was in writing, and provided in substance that Bordier should perform and furnish all labor and do all mason work above the foundation in “ a building on Library St., Chelsea ” and should be paid $7.25 per thousand bricks. The petitioner Mastracci’s contract required him to furnish all the labor for the carpenter work for ten houses, five on Library Street and five on Marlboro Street in Chelsea, for which he was to receive $690 on each house, as follows: when the work on the second floor of any particular house was completed $55; the further sum of $55 when the work on the roof was completed; the further sum of $150 when the house was ready for lathing; the further sum of $150 when the standing finish was completed; the further sum of $150 when the work on the doors and stairways was completed; and the further sum of $140 when all work required of Mastracci was completed. Bordier up to July 24 had laid seventy-two thousand bricks and had them inspected on that day. He continued to lay bricks up to July 27 when he was forced to quit work because Davis, the husband of the respondent, Alice H. Davis, refused to give him materials in accordance with the terms of his contract. He worked only on the one building. He employed eight men and himself, paying $5.20 per day each to the bricklayers, and $3 per day each to the tenderers. He valued his own time at $7 per day.</p> <p>Mastracci had five men and himself working from July 1 to July 27, when he was compelled to cease work because Davis failed to furnish further materials. He paid his men $4.80 a day and valued his own time at $10 per day. The work on the first house was completed up to the standing finish. To put on the standing finish would require the work of the entire crew and himself for four days. The frame work on the second house was being put up when Mastracci was forced to stop.</p> <p>Certificates of liens were filed by the petitioners in the registry of deeds of the county of Suffolk on August 24, 1915. The account therein stated by Bordier was for “Labor performed and furnished under contract, total contract price, $545; credit by cash, $125 ” leaving a balance of $420. The account stated by Mastracci was “ Labor performed and furnished under contract, total contract price, $690; credit by cash, $55;” leaving a balance of $635. The petitions contained the same statements of accounts.</p> <p>Other material facts are described in the opinion.</p> <p>In each case, the respondent Davis asked for the following-rulings:</p> <p>“ 1. There is no evidence to warrant the court in finding that, the petitioner made the contract as alleged in the petition with the-consent of the respondent Davis.</p> <p>“ 2. The fact that the respondent Alice H. Davis agreed to sell the land to the respondent Hunnewell, and allowed the respondent. Hunnewell to erect buildings thereon before taking title, does not. warrant the court in finding that the contract as alleged in the petition was made with the consent of the respondent Davis.</p> <p>“ 3. Knowledge on the part of the respondent Davis that work is being done on the premises described in the petition does not. constitute consent within the meaning of the mechanic’s lien law.</p> <p>“ 4. There is no evidence to warrant the court in finding that, the petitioner within thirty days after ceasing to labor, or to furnish labor, filed in the registry of deeds in Suffolk County, a-just and true account of the amount due him, with all just credits-given, together with a description of the property intended to be-covered by petitioner’s lien sufficiently accurate for identification-</p> <p>“ 5. That the description of the property in the petition does not conform with the lot of land upon which the building stands-</p> <p>“ 6. The petitioner having knowledge of the manner in which the respondent Hunnewell staked out the proposed lots upon which the buildings were to be erected, was obliged to file a description' in the registry of deeds substantially covering the lots as laid out. by the respondent Hunnewell, and the description as filed by the-petitioner is not substantially accurate.</p> <p>“ 7. That the account filed in the registry of deeds was not a-just and true account of the amount due the petitioner.</p> <p>“8. That the petitioner did not furnish all the labor as furnished in his account.</p> <p>“9. That the petitioner did not furnish labor upon all the structures bounded within the limits of the land described in the-petition.</p> <p>“ 10. That the burden is upon the petitioner to show that the-account as filed was not intended to mislead.</p> <p>" 11. That the account as filed by the petitioner was misleading..</p> <p>“ 12. That upon all the evidence the petitioner is not entitled to maintain his lien against the respondent Davis.”'</p> <p>The judge made the following findings and rulings:</p> <p>“ I find the following facts: The certificates of lien were filed by each petitioner within the required statutory time. Each certifi- ' cate contained a description of the property sufficiently accurate for identification. The land described in the certificates was conveyed to Mrs. Davis in one deed; and the descriptions therein . corresponded to the description in said deed. There were no fences or visible boundaries separating the property into lots.</p> <p>“ There was no evidence that either plaintiff knew, when the contract was made, of the division of the land into lots by plan. The fact that the lots were designated as separate lots or that the buildings were separate and upon different lots according to the plan is immaterial.</p> <p>“ The knowledge of the petitioner of the staking out of the four corners of the adjoining house and of the digging of the cellars is no more material.</p> <p>“ I find and rule that the descriptions in the petitions conform with the lot of land upon which the buildings stand, and are substantially accurate, and that the property is subject to the lien provided that Mrs. Davis consented to the erection of the buildings. I find that she did so consent.</p> <p>“ I find that both petitioners worked under their contracts until and including July 27 and then stopped work because of failure on Hunnewell’s part to carry ouit the contract, and that there is due to Bordier for said work the amount claimed in the petition.</p> <p>“ I find that Mastracci did work on both houses to the value of $594, and that he did two days’ work with some men on the house ■on lot I. It is impossible, however, to apportion the work as done between the two lots upon which the building was being-erected.</p> <p>“ I find that Mastracci, in stating the account in the petition, . olid not intend to mislead, and that it was not sufficiently misleading to affect his lien.</p> <p>“ I find and rule that both petitioners are entitled to maintain their liens, — Bordier to the extent of $521.20; Mastracci to the extent of $581.03, both including interest to June 26, 1920; and that a sufficient amount of the property to which the lien attaches should be sold in satisfaction thereof.”</p> <p>The respondent Davis alleged exceptions.</p> <p>The case was argued at the bar in March, 1921, before Rugg,</p> <p>C. J., Be Courcy, Pierce, Crosby, & Jenney, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>Information, filed by the Attorney General on May 25, 1921, under G. L. c. 211, § 4, and supported by affidavits of the Attorney General and of Henry F. Hurlburt, Esquire, Special Assistant Attorney General, containing allegations which, as amplified by specifications afterwards filed, were in substance as follows:</p> <p>Nathan A. Tufts on November 7, 1916, was elected a District Attorney for the Northern District of the Commonwealth, qualified as such on January 3,1917, and thereafter continued in that office. He was again elected to that office on November 4, 1919, and on January 7, 1920, qualified and had thereafter been and then was holding that office. From that office the informant* alleged that the public good of the Commonwealth required that the respondent be removed, setting forth acts and doings “ of said District Attorney” since January 3, 1917, and continuously down to the filing of the information, which were alleged to show him to be unfit to hold that office, in that, since January 3,1917, he had been guilty of malfeasance, misfeasance and nonfeasance in his office, and had conducted himself therein in an unlawful and reprehensible manner, and was an unfit person to hold the office, specifications being as follows:</p> <p>1. On May 30, 1920, one Herman L. Barney, then confined and undergoing a sentence for the crime of manslaughter in the State prison at Charlestown in Suffolk County, escaped. Between May 30 and June 5 he remained in concealment in the vicinity of Cambridge and was in conference with one Stephen Bresnahan, a member of the bar. On June 5, he appeared at the house of a former schoolmate in Northampton and from that date until his return to the State prison he'.remained in concealment. Between June 5 and June 13, he was in correspondence with persons in Cambridge, one of them being Mr. Bresnahan. After June 13, Edward P. O’Halloran, who was then a police inspector of Newton, communicated with the respondent concerning the whereabouts of Barney, giving him information thereof. On June 28 and previous thereto, the respondent knew of the whereabouts of Barney and that he was in concealment in or near Northampton, and then knew or could have known that Barney could be apprehended, and also that the police and State officers and officials of the State prison, whence Barney had escaped, and other officers and officials of the Commonwealth, were seeking information as to Barney’s whereabouts and endeavoring to secure his apprehension; yet the respondent, with the information that he had as to the whereabouts of Barney, withheld all information from such public officials, thereby impeding the public officials in their lawful effort and duty to apprehend Barney and giving him an opportunity to flee from the State and escape and avoid apprehension.</p> <p>2. The respondent entered into, and knowingly permitted persons acting in his behalf and by his authority to enter into negotiations, arrangements, and agreements with Barney, who was then at large though secreted within this Commonwealth, by virtue of and as a result of which the respondent intended to derive personal benefits and advantages in the event that he was able to secure the return to prison of Barney; and as a consideration for the voluntary surrender to him of the fugitive Barney pending the consummation of the negotiations, arrangements, and agreements, assurances were given and communicated by the respondent to the fugitive, whereby the fugitive was promised and assured that if he would surrender to the respondent, the respondent would cause favorable action to be taken in behalf of the fugitive which would inure to his benefit and advantage; that the respondent, while conspiring with divers other persons to secure the voluntary return of Barney and pending the acceptance by the fugitive of the promises and proposals of negotiations, arrangements, and agreements so made and communicated to the fugitive, did, in fact, afford opportunity to the fugitive to evade arrest or apprehension and escape from the Commonwealth, unless the fugitive should voluntarily accede to the terms and proposals so communicated to him; whereby, and by virtue of the collusive arrangement between the respondent and persons in conspiracy with him and the fugitive, the respondent collusively and unlawfully aided and abétted and participated in the concealment of the fugitive, and thereby aided and abetted the fugitive in his concealment and in his evasion of apprehension and arrest, whereby and by virtue of such acts of the respondent in conspiracy and in collusion with divers other persons, the respondent did enter into and permit considerations, promises, and assurances of benefit, advantage, and protection to the fugitive to be communicated to the fugitive as consideration for his yielding himself up to the authority of the law, by reason whereof the administration of the law was by the respondent brought into reproach and discredit in the Commonwealth. As a result of such negotiations, it was collusively arranged and agreed that the surrender of Barney should be made to the respondent personally in Northampton at a time to be determined by Barney.</p> <p>3. That while Barney was with the respondent in an automobile in Northampton, in company with O’Halloran, the respondent did not apprehend Barney nor cause him to be apprehended nor call any police officer of the city of Northampton or other person to assist in his arrest, but, on the contrary, permitted Barney to depart from his sight and presence, and from the sight and presence of O’Halloran, and made no effort to apprehend him or cause him to be apprehended or give information as to his whereabouts to any police officer of said Northampton or other official, thereby giving Barney an opportunity to make his escape if he so desired, all being in furtherance of the conspiracy above set forth.</p> <p>4. After the return of Barney, in a statement written by the respondent on June 30, 1920, which he, the respondent, caused to be published in the daily press on July 1,1920, and which purported to explain how he apprehended Barney, who had, in fact, come with him from Northampton to Middlesex County, the respondent made false statements in connection with the apprehension of Barney, knowing the same to be false and intending thereby to conceal the true facts from the public and to deceive the public and the duly constituted officers of the Commonwealth as to the manner in which and the means by which Barney was induced to return, and as to where Barney was previous to and at the time of his voluntary return. This statement, annexed to the information as “A”, was as follows:</p> <p>“ Tuesday morning I received a communication from Barney to the effect that he desired to talk with Inspector Edward O’Halloran of Newton and me with reference to his returning to State Prison, whence he escaped some weeks ago. Arrangements for meeting him were made and Wednesday morning Inspector O’Halloran and I met him just outside of Brattleboro in the State of Vermont.</p> <p>“ He expressed a desire to return with us to State Prison, giving as his reason therefor the fact that he was now very much recovered in health, which at the time of his escape was badly depleted. Accordingly arrangements were made to return to Massachusetts with him. I notified Elmer Shattuck, warden of the State Prison, that he was in Cambridge with me, and in due course he was delivered to the warden at the State Prison.</p> <p>“ I never met Barney personally until yesterday morning, although I have seen him in court in Cambridge. There can be no question as to his having violated the law, but if I ever saw a young man who was truly repentant and who wished to make amends for the past by good conduct in the future, Barney is such a man. His reputation has been bad, but I believe it has been intentionally blackened by a lot of people who designedly made him out to be worse than he is. He has been blamed for many things which he never did. That I know, for there was at least one complaint against him in Middlesex County which later could not be substantiated by proof.</p> <p>No Thought of Handcuffing Him.</p> <p>“ The situation in which he finds himself is an unfortunate one and should be a warning to young men to be careful in their choice of companions. Whatever Barney’s faults may have been, he has always been credited with telling the truth so far as his word is concerned. In other words, his word has been as good as his bond. Accordingly when he signified his desire to return with Inspector O’Halloran and me, there was no thought of doing anything else to insure his continued presence with us. He may have been armed, but I cannot say surely, for I did not search him.</p> <p>“ He left us while he changed his clothes and ate his dinner. He • then came out, got into the machine and rode with us to Boston. Neither Mr. O’Halloran nor I had very much talk with him.</p> <p>“ He expressed deep regret at the death of Mr. Deininger and told us that he hoped some time to make some amends to the latter’s family other than through confinement in prison. He expressed to us also that he had not seen Manster nor heard of him since the night of his escape. He also volunteered the information that his departure from the prison walls took place 15 minutes after Manster and Ward had left the institution.</p> <p>“ He made just one request of us, namely that he be allowed to stop and see his father and mother, who live in Arlington, before he was taken back to State Prison. That request was granted gladly. There can be no doubt of the genuineness of the affection which he has for his father and mother.”</p> <p>5. On July 15, 1920, the commissioner of the department of correction of Massachusetts, in pursuance of his official duty, having read the statement, wrote to the respondent requesting further information, and specifying the same in the following questions: 1. Please state the time when you first heard directly from Barney. 2. From what telephone exchange was the message sent? 3. At what telephone exchange was it received? 4. What was the substance of Barney’s remarks over the telephone? 5. At what time did you start out to bring back Barney, and who accompanied you? 6. In what town and on what street did you first see Barney? 7. What was his appearance and how was he dressed? 8. Will you please send me a copy for our files of any statement which Barney made to you as to where he had been while at liberty?</p> <p>That the department of correction by its commissioner and other officials, pursuant to the requirements of law and in the performance of its duties in the premises, was and had been investigating the manner of the escape of Barney and as to his whereabouts for the purpose of apprehending Barney and also one Manster, a convict who had escaped with Barney and who had not been apprehended. It was the duty of the respondent, in aid of the department and in response to the inquiry of the commissioner, to have answered the letter, and to have given the information requested, because the respondent in his public statement had said that he met Barney outside of Brattleboro in the State of Vermont and on Tuesday, June 29, had talked with Barney over the telephone. The respondent did not reply nor make a report to the department of correction as requested, but allowed the false and misleading statements which he had made to remain uncorrected and thereby permitted the officials and the public to continue to believe that his false statement, published July 1, was true, by reason whereof the respondent did wilfully and intentionally conceal from the department information that the escaped convict had been in hiding within the Commonwealth with the knowledge of the respondent and had been without arrest or apprehension in the company of the respondent within the Commonwealth.</p> <p>6. The respondent knowingly and deliberately violated the provisions of the laws of this Commonwealth in that he did, on June 28, 1920, and again on June 29, 1920, cause a false registration to be made in a hotel register at Greenfield of Edward P. O’Halloran, a person then and there with him, whose name he falsely registered as “ Thomas Fleming of Natick,” in violation of St. 1918, c. 259.</p> <p>7. The respondent on or about May 1, 1917, unlawfully conspired with William J. Corcoran, formerly District Attorney for the Northern District, Daniel H. Coakley, a member of the bar, and divers other persons to the informant unknown to communicate to divers other persons the threat that an indictment or indictments would be procured and presented to a Grand Jury for the County of Middlesex, charging such other persons with the commission of crimes and offences against the laws of the Commonwealth unless they, so to be accused, should make payments of large sums of money to the persons with whom the respondent so had conspired, whereby the respondent in such conspiracy did conspire with such divers persons to extort a large sum of money under the threat and menace of the institution and prosecution of criminal accusations and proceedings, and the respondent, pursuant to the conspiracy, did permit and promote the making of threats of criminal prosecution against such persons, and they, in fear of the criminal accusations and proceedings so to be instituted pursuant to the conspiracy, did under the threat and menace pay out large and divers sums of money to the persons who had so conspired with the respondent and had in conspiracy with the respondent permitted such conspiracy, whereby the respondent wilfully and unlawfully abused the authority of his office and permitted it to be made the instrument of fraud and extortion of the moneys and properties of such persons.</p> <p>8. On or about May 12, 1917, the respondent conspired with the persons named in the preceding paragraph to defraud certain men upon a fictitious charge which he threatened to indict them upon, in order to aid the conspirators in obtaining a large amount of money from such men.</p> <p>9. By threats of prosecution of such men, the respondent aided and abetted the conspirators above named to obtain from the men whom he threatened to indict a large sum of money, to wit, $100,000.</p> <p>10. The respondent entered into agreements with the conspirators above named in order to carry out the scheme of conspiracy by promising that, if they paid money to certain persons, he would not prosecute, thereby compounding a felony.</p> <p>11. In pursuance of the conspiracy, the respondent agreed not to prosecute such men if they-paid money to certain persons, well knowing the charge which he made against them would be an inducement for them to pay a large sum of money in order to avoid the publicity of an indictment.</p> <p>12. In pursuance of the conspiracy, the respondent did not prosecute upon appeal one Stella C. Kennedy, alias Lillian A. Kingston, otherwise known as Brownie Kennedy, who had been found guilty of keeping a house of ill fame in Woburn, at which house the persons who paid the money were alleged to have been, although he well knew all the facts which clearly proved her guilt.</p> <p>13. In further pursuance of the conspiracy, with sufficient evidence in his possession, the respondent subsequently failed to prosecute Kennedy upon another charge of similar character, to wit, the keeping of a house of ill fame at Cambridge on or about November 4, 1918.</p> <p>14. In divers other cases (described in the final decision of the court), with sufficient evidence in his possession, the respondent from improper motives failed to prosecute persons who had committed crime within his jurisdiction.</p> <p>15. The respondent had refused to issue capiases for Helen A. Morse, alias Lillian Dale, charged with keeping a house of ill fame on or about November 4, 1918, in Cambridge, who was defaulted in criminal proceedings, although he was requested so to do and was informed as to the whereabouts of the defendant, who was at the time of such refusal within the jurisdiction of the Commonwealth.</p> <p>16. The respondent made a false affidavit to the court with reference to the case of the Commonwealth against Helen A. Morse, alias Lillian Dale, knowing the statements contained in the affidavit to be false, or recklessly and without belief in the truth thereof, whereby the court was misled and deceived.</p> <p>17. The case of Commonwealth v. Morse, alias Dale, was placed on file by the respondent without the knowledge of the officer prosecuting the complaint and without making inquiry as to the facts of the case from the officer or any of his assistants or others having knowledge thereof.</p> <p>18. The respondent caused secret indictments to be returned by the Grand Jury of Middlesex County against John Marshall Barry and George T. Perry, severally, charging conspiracy on or about July 11, 1918; against William Whitehead, charging him with receiving stolen property on or about May 10, 1919, and against Austin DeGuiglieJmo, charging him with a criminal assault on or about March 1, 1919. The respondent had failed to cause to be issued capiases for the apprehensions, arrest, and arraignment of the defendants therein, although they were within the jurisdiction of the Commonwealth and could and should have been apprehended and arraigned.</p> <p>19. The respondent failed to cause the defendants above described, against whom secret indictments were found by the Grand Jury, to be apprehended and arraigned, or to make any effort to cause their apprehension, although they were within the jurisdiction of the Commonwealth. In 1915 one William DeFoe Bigelow, or William DeForrest Bigelow, was indicted, William J. Corcoran being then District Attorney, and since that time the indictment had been kept secret and hidden and the defendant had not been called into court to plead to the same or recognize, all with the knowledge of the respondent.</p> <p>20. The respondent, in violation of duty, neglected in nineteen specified instances to prosecute suits on recognizances to secure the attendance of the defendants in court when they had become defaulted, and to collect from sureties the amount of their bonds, although the sureties were amply able to pay the amount due to the Commonwealth thereon.</p> <p>21. In violation of his oath of office, the respondent, from improper motives, nolprossed and filed certain cases, described in the final decision of the court, which he should have prosecuted.</p> <p>22. In violation of his oath of office, the respondent, from improper motives, failed and refused to prosecute certain indictments and appealed cases, described in the final decision of the court.</p> <p>23. The respondent, from improper motives, refrained from bringing to the attention of the court, in certain cases, described in the final decision of the court, which were before the court for sentence, the fact that such cases under the law were punishable by imprisonment or by both fine and imprisonment, and by reason of such conduct, the defendants were sentenced by the court to the payment of fines instead of to imprisonment or fine and imprisonment, as the law required.</p> <p>24. The respondent wilfully neglected to prosecute in behalf of the Commonwealth a suit against John It. Fairbairn as sheriff of the county of Middlesex for a large amount of money claimed to be due the county for the defalcation of an officer for whom, as 'sheriff, he was alleged to be responsible, and unreasonably neglected and delayed to bring the case to trial, and unreasonably and wilfully continued the case from time to time, with the apparent intent of eventually causing it to be dismissed by the court in which it is pending, and thereby causing the Commonwealth to lose a large amount of money.</p> <p>25. With witnesses at hand or available so that he could with reasonable effort have obtained the information required for the proper prosecution of certain cases, described in the final decision of the court, the respondent wilfully closed his eyes to his duty and withheld evidence and neglected to introduce proper evidence, thereby failing properly to perform the duties of his office in the prosecution of said cases.</p> <p>26. The respondent entered into a conspiracy with certain persons to secure the commission of crime by one Stearns, in order to enable the wife of Stearns to obtain a divorce on the ground of adultery.</p> <p>27. The respondent failed to prosecute Stearns for the crime committed by him, although he knew that Stearns had committed the crime, and although he knew that the crime was committed within his own county.</p> <p>28. The respondent also failed to prosecute one Chambers, who was accused of adultery, Chambers being his client or the client of his partner or associate, when he knew and had the evidence to prove that Chambers had committed adultery in the county of Middlesex.</p> <p>29. The District Attorney has maintained an office in Boston in the county of Suffolk, where he carried on his profession as a lawyer in association with George Stanley Harvey, who was, during all the period covered by the specifications herein contained, an Assistant District Attorney of the Northern District, and thereafter, under the firm name of “ Tufts, Harvey and Campbell,” the individual names of the firm being Nathan A. Tufts, George Stanley Harvey, and Frank W. Campbell, personally and by the members of his firm has defended criminal cases in this Commonwealth, and has acted for persons charged with crimes against the Commonwealth, whereby he has received emoluments that came from such services.</p> <p>30. In order to avoid pressure brought upon him to bring to trial certain persons then under indictment (as described in the final decision of the court), the respondent paid certain sums of money to the persons insisting that the defendants be tried.</p> <p>31. The respondent, from improper and unlawful motives, delayed the prosecution of an indictment brought against certain defendants (Turner, Hart, Barry, Perry and Collamore, described in paragraph 18, supra, and in the final decision), although the complainant upon whose complaint the indictment was found urged and solicited the respondent to bring the case to trial, and where ■ the respondent had or could obtain evidence which would sustain said defendants’ conviction, and he out of unlawful and improper motives shielded and protected the defendants from being prosecuted.</p> <p>32. The respondent, in September, 1917, procured or caused to be procured an indictment against one Thomas Mozette for the larceny of $11,000 from Justine Gordon of Cambridge; two indictments against said Mozette for larcenies of small amounts were also pending in Suffolk County. The said Mozette had fled from this Commonwealth immediately after the commission of the alleged crimes, and was finally, through the activity of the Boston Police Department and the assistance of Captain Hurley of Cambridge, located, apprehended, and arrested at Akron, Ohio, on February 23,1920. Information of the arrest was brought to the attention of the District Attorney for the County of Middlesex, who thereupon, well knowing the importance of said arrest and of having said Mozette returned to the Commonwealth under the rendition proceedings then pending, forthwith nolprossed or caused to be nolprossed the said indictment, a false statement of the reason for so disposing of the case being filed with the papers, by which action he enabled the said Mozette to secure bail in a small amount, upon procuring which said Mozette immediately fled, and is still a fugitive from justice.</p> <p>The information closed with a prayer " that the said Nathan A. Tufts be removed from his office as a District Attorney.”</p> <p>Paragraphs 15-18 of the informant’s specifications were as follows:</p> <p>“ 15. In May and June, 1920, the respondent did unlawfully conspire with Harry E. Levenson, an attorney at law, and with William J. Corcoran, an attorney at law, formerly District Attorney for the Northern District, and with Herbert Gordon, a captain of the police department of the City of Cambridge in said County of Middlesex, to extort from James S. Athans, George H. Grant, Charles P. Korsak, and the International Service Co., Inc., a large sum of money by threats of criminal prosecution, and the said District Attorney, pursuant to said conspiracy, did permit and promote the making of threats of criminal prosecution, and did himself threaten criminal prosecution against the said Athans, Grant, Korsak, and the International Service Co., Inc., and the said Athans, Grant, and Korsak, in fear of said criminal accusations and proceedings so to be instituted pursuant to said conspiracy, did, under the threat and menace, pay the sum of $7,500-to the said Harry E. Levenson.</p> <p>“ 16. In addition to the specific cases heretofore set forth in this information, an examination of all criminal cases appealed from the inferior courts to the Superior Court of the County, of Middlesex during the years 1919 and 1920 discloses that in thirteen hundred eighty-eight cases (not including non-support, desertion and abandonment of wife and children, and bastardy cases) sentences of imprisonment aggregating one hundred twelve years, two months, four days, and, in addition, one hundred thirty-eight indeterminate sentences, and fines aggregating $28,810, were imposed in the said inferior courts; and that of the said thirteen hundred eighty-eight cases nine hundred two cases were disposed of in the Superior Cotut by the entry of nolle prosequi or were filed or placed on probation by or on the recommendation of the said District Attorney; that in the remaining four hundred eighty-six cases so appealed to the Superior Court the aggregate of the sentences of imprisonment was twenty-seven years, seven months, four days, with twenty-nine indeterminate sentences, and fines aggregating $12,822.50; that of the said nine hundred two cases which were disposed of by the entry of nolle prosequi or by placing on file or probation by or on the recommendation of the said District Attorney, sentences of imprisonment imposed in the inferior courts aggregated sixty-one years, three months, twenty-three days, and, in addition, eighty-seven indeterminate sentences, and the fines imposed aggregated $14,753.50.</p> <p>“ 17. That during the said years 1919 and 1920, two hundred fifty-eight persons were convicted in the inferior courts of the county of Middlesex of crimes and offences pertaining to the use and operation of motor vehicles, for which offences sentences were imposed in the said inferior courts of imprisonment in fifty-two cases and fines in the remaining two hundred eight cases, and, upon appeal to the Superior Court, a sentence of imprisonment ■ was imposed in one case, fines were imposed in sixty-five cases, and the balance of one hundred ninety-two cases were disposed of by the entry of nolle prosequi or were filed or placed on probation by or on the recommendation of the respondent; and of the said one hundred ninety-two cases a large proportion were cases in which the defendants had been convicted of operating motor vehicles while under the influence of intoxicating liquor, or recklessly, or so as to endanger the lives and safety of the public, or of going away without making themselves known after causing injury to persons upon the highway.</p> <p>“ 18. That during the years 1919 and 1920, twenty-eight persons who were convicted in the inferior courts of the county of Middlesex of using automobiles without the authority of their owners appealed from the judgment of the inferior courts to the Superior Court of the county; that in the inferior courts sentences of imprisonment were imposed in twenty-six cases and fines were imposed in the remaining two cases; and that in the Superior Court, upon appeal, sentences of imprisonment were imposed in eight cases, fines were imposed in four cases, and the remaining sixteen cases were disposed of by the entry of nolle prosequi or were filed or placed on probation by or on the recommendation of the respondent.”</p> <p>The respondent filed a motion that the proceeding be dismissed, assigning as reason therefor that the court and the justices thereof had no jurisdiction to grant the prayer of the Attorney General; and also a motion that the scope of the hearing in the proceeding “ be limited, first, to acts and omissions alleged to have been committed or omitted by the respondent since his last election to the office of District Attorney for the Northern District, to wit, November 4, 1919, and, second, to acts and omissions alleged to have been committed or omitted by the said Nathan A. Tufts in or concerning the office of District Attorney for the Northern District and affecting the proper administration of the said office of District Attorney for the Northern District.”</p> <p>The two motions were heard on June 10, 1921, by Rugg, C. J., Crosby, Pierce, Carroll, & Jenney, JJ.</p>

<p>Municipal Corporations, By-laws and ordinances. Electricity. Evidence, Competency. Pleading, Civil, Specifications. Practice, Civil, Ordering verdict. Landlord and Tenant. Fire. Waste.</p> <p>St. 1890, c. 404, § 3 (see now G. L. c. 166, §§ 32, 27), does not authorize the enactment by a city of an ordinance prohibiting the owner of a building from connecting a current of electricity with any system of wiring for light or power without a permit in writing from an officer named the inspector of wires and forbidding the inspector to issue such a permit unless “the established rules and regulations of the National Board of Fire Underwriters” shall have been complied with. ' ■ ’</p> <p>Neither St. 1890, c. 404, § 3 (see now G. L. c. 166, §§ 32, 27), nor Pub. Sts. c. 27, § 15 (see R. L. c. 25, §§ 23, 24; G. L. c. 40, §§ 21-33), empowers a city council to adopt by mere reference the rules and regulations of another and foreign body as the basis for determining the suitableness or safety of the insulation, attachments, supports or appliances for wiring designed to carry electric currents.</p> <p>An ordinance which goes beyond the authority conferred by its enabling statute is invalid.</p> <p>Sections 9, 10 and 11 of an ordinance of the city of Lowell, entitled, “An Ordinance establishing an Inspection of Wires Department and governing the same,” approved July 26, 1899, providing in substance that no owner can - connect a current of electricity with any system of wiring for light or power without a written permit from the inspector of wires and in effect forbidding that officer to issue such a permit unless “the established rules and regulations of the National Board of Fire Underwriters” shall have been complied with, are inextricably connected and all are invalid.</p> <p>At the trial of an action of contract or tort by an owner and lessor of premises in Lowell against the lessee for loss by a fire, alleged to have been caused by negligence of the defendant, §§ 9, 10, 11 of the ordinance of Lowell above described and evidence tending to show that the lessee had installed electric wires without a permit from the inspector of wires and that the wiring failed to conform to the requirements of the ordinance, properly were excluded.</p> <p>A specification of negligence filed by the plaintiff in the action above described was as follows: “The omission of the defendant to arrange the fixtures connected with the electric wiring on the premises to comply with the aforesaid ordinance and code, in that the switches in use were not of the oil type and were not enclosed in cabinets and were operated by the defendant, its employees,</p> <p>. agents or servants in a careless, negligent and reckless manner.” It appeared that the lease of the plaintiff to the defendant contained a covenant by the defendant that he would not make nor suffer any waste of the demised premises. The record stated that the plaintiff “offered to prove that the fire in the premises was caused by the negligence of employees of the defendant while working for the defendant and in the course of employment by pulling out a fuse without shutting off the current of electricity; and that such conduct was reckless and hazardous owing to the nature of the work carried on in the building, the combustible material used by the defendant and its presence in quantities in the air, cotton waste;” and that the judge "excluded all the evidence offered and stated that the evidence of negligence is excluded because it is not the kind of negligence specified in the plaintiff’s amended specifications.” Held, that</p> <p>(1) While the specification was not phrased with accuracy and its construction was clumsy, its concluding phrase charged negligence in a particular not dependent upon a mere violation of the “ ordinance and code; ”</p> <p>(2) The concluding phrase of the specification set forth a breach of common law duty;</p> <p>(3) Fire upon the premises caused by negligence of the lessee would be permissive waste and a violation of the covenant of the lease;</p> <p>(4) It was error to exclude the evidence tending to show that the fire was caused by negligence of the defendant.</p>

<p>Bill in equity, filed in the Superior Court on August 25, 1920, against Henrietta L. Brown, for a decree under U. S. St. 1918, c. 20, § 302, cl. 3, authorizing a foreclosure of mortgages of real estate given by the defendant to the plaintiff and dated, respectively, January 1, 1912, and July 17, 1917.</p> <p>In the Superior Court, the suit was heard by Fosdick, J. Material facts found by the judge are described in the opinion. By order of the judge a final decree was entered in accordance with the prayers of the bill. The defendant appealed.</p>

<p>Physicians and Surgeons. License. Bone-setter. Words, “Practitioner of medicine,” “Practice of medicine.”</p> <p>The words, "practitioner of medicine” and “practice of medicine in any of its branches,” as used in R. L. c. 76, § 8 (see now G. L. c. 112, § 6), include the practitioner and the practice of surgery.</p> <p>At the trial of complaints charging that the defendant, not being authorized and registered to practise medicine within the Commonwealth, did practise medicine and held himself out as a practitioner of medicine, there was evidence tending to prove that the defendant had been engaged in business for twenty-five years, had offices in Salem, Worcester and Chicopee and also visited Ware, where he used a room in a local inn as an office; that on a visit to Ware he saw a man whose leg had been broken and who had been treated by a local physi-. clan, removed bandages which had been placed around the leg, examined the leg, set it, in so doing using an external application of the consistency of cream, cotton, splints, cloth bandages and adhesive “tape plaster,” told the man that after a rest of forty days he would be all right, at his request examined his ankle and knee cap and pronounced them out of joint and purported to remedy them, and left the man a bottle of the substance which had been applied to his leg, stating to him that he could let him “have some more” of it on a visit two weeks later; that there was a second visit; that the defendant was paid $35 for his services at the first visit and $5 for those at the second. Held, that the evidence warranted convictions on both complaints.</p>

<p>Tort for personal injuries received when the plaintiff ■ was a passenger upon an electric street car of the defendant which came into collision with a motor truck on the road between Amherst and Northampton. Writ dated February 10, 1920.</p> <p>In the Superior Court, the action was tried before Aiken, C. J." Material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings:</p> <p>“The defendant is not to be chargeable with negligence on the part of the motorman Reardon because of any mere error of judgment if the circumstances of the case are such as to cause speedy decision and action.</p> <p>“In other words if an instant peril arose by reason of some unforeseen obstruction to the defendant’s car by the negligent act of a third person, the street railway company is not chargeable with negligence because of any mere error of judgment on Rear-don’s part, if the circumstances are such as to require and cause speedy decision and action.</p> <p>“In other words if the jury find that the motorman Reardon acted with good judgment in turning off the street car headlight when he saw the headlight of a coming automobile, and without negligence was unable to seasonably perceive the obstruction caused by Puffer’s truck projecting into the line of the street car travel, the defendant is not liable, if no other negligence of the defendant appears.”</p> <p>The rulings were refused. The jury found for the plaintiff in the sum of $1,250; and the defendant alleged exceptions.</p>

<p>Contract, with a declaration as amended upon an account annexed alleging a balance due to the plaintiff of $2,626.50. Writ dated October 4, 1915.</p> <p>In the Superior Court, the action was referred to an auditor, and, upon the filing of his report, was heard by King, J., without a jury. Material findings of the auditor and other evidence at the hearing by the judge are described in the opinion.</p> <p>At the close of the evidence, the plaintiff asked for the following rulings:</p> <p>“1. Upon the evidence in this case the plaintiff is entitled to recover the sum of $1,766.33 and interest thereon from the date of the writ.</p> <p>“2. That the proceedings that were had before Paul Norton [an arbitrator] were not sufficient in law to constitute a bar to the plaintiff’s action.</p> <p>“3. That even if the plaintiff signed an instrument £as to the arbitrator] . . . that would only constitute an admission by him which could be explained and would not estop him from showing how his account with the defendant actually stood.</p> <p>“4. There is no evidence that the plaintiff gave the defendant any general release.</p> <p>“5. The auditor’s report is the only evidence in this case based on the examination of the whole account which states the true condition of the account between the parties.</p> <p>“6. There is not sufficient evidence in this case to control the findings of the auditor, or to show that the findings of the auditor as to the items of the accounts between the parties are wrong.”</p> <p>The second, third and fourth rulings requested were given. The first, fifth and sixth were denied. The judge found for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Street railway. Way, Public.</p> <p>At the trial of an action against a street railway company for personal injuries received by reason of the conduct of a crowd when the plaintiff at three o’clock in the afternoon was attempting to board a car of the defendant at a regular stopping place on a public way near a factory where he was employed, there was evidence tending to show that the car would seat forty-five persons; that for three or four months previous to the accident a crowd of from two hundred to two hundred and fifty men gathered at the same time of day at the same place to board the car; that sometimes the defendant would send one and sometimes two cars; that twenty or thirty times during that period only one car was sent; that upon the arrival of the car all the crowd would run for it “in a bunch;” that there then was pushing and men were knocked down; that on the occasion of the plaintiff’s injury the defendant sent only one car; that all ran for it, some boarding it ahead of the plaintiff; that the plaintiff took hold of a bar and stepped with one foot on the step, when he was so pushed that his wrist gave way and he fell and was injured. Held, that</p> <p>(1) A finding was warranted that the plaintiff was injured by reason of boisterous, violent and disorderly conduct of a crowd that the defendant might have foreseen;</p> <p>(2) The question, whether the plaintiff was in the exercise of due care, was for the jury;</p> <p>(3) The circumstance, that it was on a public way that the plaintiff was boarding the car when he was-injured, was not decisive of his rights;</p> <p>(4) A finding was warranted that, when injured, the plaintiff was a passenger;</p> <p>(5) It was a question for the jury, whether the defendant did what was reasonably required to protect the plaintiff as a passenger from harm or to restrain the crowd.</p>

<p>Contract, the declaration alleging in substance that the plaintiff and the defendant entered into a verbal agreement whereby the “ defendant employed the plaintiff to negotiate the exchange of certain real estate ... in Springfield, owned by the defendant, for $2,000 cash and three certain parcels of real estate situated . . . in said Springfield . . . South Hadley and . . . Longmeadow . . . and in consideration of the agreement on the part of said plaintiff to be performed the defendant agreed to convey to the plaintiff said three parcels of land ... or the value thereof, . . . said defendant to retain the sum of $2,000. And in consideration of the premises, the plaintiff negotiated the said exchange and did thereupon spend a large amount of time and labor in so doing. And the plaintiff says that he has duly performed all the conditions of said agreement on his part to be performed and effected the exchange of said estates; and the defendant did then and there become obligated to convey said three parcels of land or to pay the value thereof; that said three parcels of land are worth $3,000, wherefore the defendant owes the plaintiff said sum.” Writ dated June 16, 1919.</p> <p>The answer included an allegation that the action was barred '.by the statute of frauds.</p> <p>In the Superior Court, the action was tried before Raymond, J. There was evidence in the testimony of the plaintiff that the agreement between the parties was that, if the defendant did not convey to the plaintiff the three parcels described in the decíaration, he, the defendant, would give the plaintiff “ what they were worth.” Other material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on July 7, 1920, to compel the defendant to remove a stone wall alleged by the plaintiff to be maintained by the defendant upon the plaintiff’s land.</p> <p>The suit was referred to a master, who found facts, described in the opinion, and, upon the facts so found and as an inference therefrom, found that the defendant had not adversely held possession of the stone wall over the boundary line for a period of twenty years. To this finding and inference the defendant filed an objection and an exception.</p> <p>The suit was heard by Lawton, J., upon the defendant’s exceptian, and by his order there were entered an interlocutory decree sustaining the exception of the defendant and, save as thereby modified, confirming the master’s report, and a final decree dismissing the bill. The plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Manslaughter. Negligence, Causing death. Practice, Criminal, Charge to jury, Requests, rulings and instructions, New trial, Exceptions, Law of the case. Merger. Motor Vehicle, Reckless driving.</p> <p>At the trial of an indictment charging the defendant with manslaughter “ by so recklessly or negligently operating a motor vehicle that it collided with ” another, causing the death of an occupant of the second vehicle, the defendant contended that the driver of the motor vehicle with which he collided was negligent. The judge charged the jury in substance that negligence of the driver of the second vehicle was not a defence available to the defendant “if the defendant’s recklessness caused the death complained of.” The defendant alleged an exception, and thereupon the judge gave further instructions to the effect that the jury should take into account all the circumstances preceding and attending the collision, including among others the conduct of the driver of the second vehicle; that, if the defendant’s conduct was reckless, independently of the conduct of the driver of the second vehicle, the defendant would be guilty if death was caused by his recklessness; that, if they should find the driver of the second vehicle negligent, but should still find that, quite regardless of his negligence, the defendant was reckless, they should "find him guilty of recklessness;” that, if his conduct “would not have resulted as reckless conduct would have resulted but for the recklessness or negligence” of the driver of the second vehicle, the defendant “would be innocent of recklessness. But . . . he cannot excuse his recklessness, if you find him reckless, by showing the negligence of” the other driver. Held, that the instructions to the jury were sufficient and that the defendant’s exception must be overruled.</p> <p>.At the trial of the indictment above described, it was proper for the judge to refuse to rule that the “Commonwealth must show that the defendant had an intent to commit the crime of manslaughter,” and that such “intent must be an active state of mind amounting to reckless and wanton disregard for the lives of others.”</p> <p>"The indictment for manslaughter, above described, was tried in the Superior Court at the same time with a complaint charging the defendant with a violation of St. 1909, c. 534, § 22; St. 1916, c. 290, in operating a motor vehicle upon a public way so that the lives and safety of the public were endangered. Without objection or exception by either the Commonwealth or the defendant, the judge charged the jury that, if they should find the defendant guilty of manslaughter as alleged in the indictment, it would be their duty to return a verdict of not guilty of the offence charged in the complaint. The jury found the defendant guilty of the offence charged in the indictment and not guilty of that charged in the complaint. The defendant moved for a new trial on the ground that the two verdicts were inconsistent. Held, that</p> <p>(1) The ruling of the judge, unexcepted to, became the law of the case;</p> <p>(2) Upon the record it was clear that, trader the charge to the jury, the verdicts were consistent;</p> <p>(3) Whether there could be a merger of the offences charged in the indictment and in the complaint, above described, was not considered.</p>

<p>Equity Pleading and Practice, Motion to amend, Appeal, Report.</p> <p>The decision, whether a motion amending a suit in equity into an action at law shall be allowed, rests in sound judicial discretion.</p> <p>The mere facts that, after a judge of the Superior Court heard a demurrer to a bill in equity, he filed a report of the question involved which did not contain an order sustaining the demurrer but did contain a recital that, if the demurrer was sustained, the plaintiff might amend, which report was superseded by another containing an order sustaining the demurrer, both reports later being discharged and decrees entered sustaining the demurrer and dismissing the bill, from which the plaintiff appealed; and that, in an opinion of this court affirming the decrees dismissing the bill, it was stated that “ The causes of action against the . . . defendants seem to be appropriate subjects for several actions at law,” do not make it an abuse of judicial discretion to deny a motion, which was filed by the plaintiff substantially five months after the rescript of this court and which sought an amendment of the suit into an action at law.</p>

<p>Contract for damages resulting from the discharge of the plaintiff from employment by the defendant in alleged violation of an agreement in writing, described in the opinion, between the plaintiff and the defendant’s predecessor, the Clinton Wire Cloth Company. Writ dated October 4, 1920.</p> <p>In the Superior Court, the action was heard by Lawton, J., without a jury. Material evidence is described in the opinion. The judge found for the plaintiff in the sum of $3,500 with interest from the date of the writ; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

Tort for damages to a motor car of the plaintiff alleged to have been caused by negligence of the operator of a motor truck of the defendant, causing a collision. Writ dated February 27, 1919. In the Superior Court, the action was tried before N. P. Brown, J. Material evidence is described in the opinion.

<p>Bills and Notes, Demand, Consideration. Practice, Civil, Ordering oí verdict. Trust, What constitutes.</p> <p>At the trial of an action by the administrator of the estate of the payee against the maker of a promissory note reading as follows, “On demand after date I promise to pay to the order of Ann Maria Sprague One thousand Dollars with interest at 8 % per annum. In case of Mrs. Sprague’s decease, the principal to be kept as a fund for the Baptist Society at Westminster, Mass., interest to go to Theodosia Miles Whitman; and in case of her decease, interest to go to said Baptist Society,” the payment of a consideration for the note and its execution and delivery were admitted. It appeared that no demand for payment of the note ever was made before the action was brought and that' no payment on account thereof had been made. A verdict for the plaintiff was ordered. Held, that the verdict properly was ordered.</p> <p>No question having been raised as to the disposition of the proceeds of the note above described in the hands of the plaintiff, it was staled that it could not properly be decided in the action above described whether such proceeds will be a part of the general estate of Mrs. Sprague, or will be impressed with a trust-</p>

<p>Complaint, received and sworn to in the Central District Court of Worcester County on May 24, 1920, under St. 1913, c. 563, § 7, by one Mildred Bartels, charging that the defendant “did neglect and refuse to contribute reasonably to the support and maintenance of his illegitimate child.”</p> <p>On appeal to the Superior Court, the complaint was tried, before Thayer, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict of “not guilty” be ordered. The motion was denied, the defendant was found guilty and “was adjudged to be the father of the child and ordered to pay the sum of $250 before June 3, 1921, and $8 per week to the probation officer.” The defendant alleged exceptions.</p>

<p>Tort for personal injuries and damages to a motorcycle alleged to have been caused by a motor truck being negligently run into the plaintiff from behind as he was pushing the motorcycle along the highway. Writ dated January 19, 1920.</p> <p>In the Superior Court, the action was tried before King, J. Material evidence is described in the opinion.</p> <p>The trial judge ruled that there was “no evidence of gross negligence or wilful misconduct on the part of the defendant,” and refused the following requests of the defendant for rulings: “1. On all the evidence the plaintiff cannot recover.</p> <p>“2. The plaintiff cannot recover because he did not have his motorcycle registered according to law.”</p> <p>“5. On all the evidence the plaintiff cannot recover because at the time of the accident his motorcycle was not registered, that he was a trespasser on the highway, and that the defendant owed him the duty only to refrain from wantonly and wilfully injuring him.”</p> <p>The jury found for the plaintiff in the sum of $275; and the defendant alleged exceptions.</p> <p>The bill of exceptions contained no evidence on the question, whether the operator of the motor truck was a servant of the defendant, nor any statement that such a question of agency was raised at the trial, nor any statement that it purported to include all of the evidence introduced at the trial.</p>

<p>Tort for personal injuries alleged to have resulted from negligent treatment of the plaintiff by the defendant, a physician and surgeon. Writ dated October 8, 1917.</p> <p>In the Superior Court, the action was tried before N. P. Brown, J. Material evidence, requests and instructions asked for by the defendant and instructions given by the trial judge are described in the opinion. The jury found for the plaintiff in the sum of S3,000; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Since the ratification and adoption of art. 64 of the Amendments to the Constitution, the Constitution of the Commonwealth does not require that the officers of the Senate be elected for each annual session, but they may be elected to serve throughout the two-year term of the General Court and until its dissolution.</p> <p>It is competent for the Senate by rule to limit the terms of its officers to one year or to provide that such terms shall be coextensive with the period for which the Senate was elected.</p> <p>The election of officers by the Senate on January 5, 1921, without any rule defining their terms of office, imported that the officers so elected should serve during the pleasure of that Senate; and they will hold office for two years unless that term is shortened by vote of the Senate.</p>

<p>The following order was passed by the Senate on May 25, 1921, and was transmitted to the Justices of the Supreme Judicial Court on May 27, 1921. The annual session of the General Court of 1921 adjourned on May 28.</p> <p>Whereas, There is pending before the General Court a bill printed as House, No. 1612, as amended, entitled "An Act to carry into effect, so far as the Commonwealth of Massachusetts is concerned, the Eighteenth Amendment to the Constitution of the United States,” a copy of which is herewith submitted, and</p> <p>Whereas, Doubt exists as to the constitutionality of the said bill if enacted into law; therefore be it</p> <p>Ordered, That the Senate require the opinions of the Justices of the Supreme Judicial Court on the following important questions of law: —</p> <p>1. Is any provision of the bill unconstitutional as delegating the legislative power of the Commonwealth to the Federal Congress or to any other branch of the Federal government?</p> <p>2. As to matters placed by the Federal Constitution within the concurrent legislative jurisdiction of both the Federal government and the states, may a state legislature adopt or incorporate by reference in its own legislation any test, standard, definition or rule prescribed by Federal law or adopted under its authority?</p> <p>3. If enacted into law, would said bill be in any respect unconstitutional?</p>