Volume 240 — Massachusetts Reports

<p>Petition, filed in the Probate Court for the county of Hampden on March 22, 1921, by Harry K. Moseley against George 0. Moseley, Robert C. Parker and the Hampden National Bank, seeking that a fund, held by the respondent Parker, a commissioner appointed to make partition of certain real estate, as a share of the proceeds, belonging to the respondent George O. Moseley, of a sale of the real estate, be applied to the .satisfaction of a judgment obtained by the petitioner in an action in which, before partition, an attachment was made of the interest of the respondent George O. Moseley in the real estate in question.</p> <p>Answers were filed by the respondent George O. Moseley and the Hampden National Bank. The respondent Parker demurred on the ground “ that the petitioner has not stated in his bill such a cause as entitles him to any relief in equity” against him.</p> <p>The demurrer was heard by Long, J., and by his order a decree was entered sustaining the demurrer and dismissing the petition. The petitioner appealed.</p>

<p>Bill in equity to establish a mechanic’s lien, filed in the Superior Court on October 4,1917, against Jacob Burwick, the owner of the real estate described in the bill, and Edward Coderre and Lawrence Lapointe, who were general contractors.</p> <p>In the Superior Court, the suit was heard by Wait, J., upon an agreed statement of facts, material portions of which are described in the opinion. The judge, without making a decision, reported the suit to this court for determination upon a stipulation that if, upon the facts agreed upon, this court should be of opinion that the plaintiffs lien could be maintained against the land of Burwick, the suit was to be sent to a master to determine the amount for which the lien should be established; but if, by reason of the insufficiency of the notice of the contract or the insufficiency of the notice of the extension of the contract, this court should be of opinion that the lien could not be maintained, judgment was to be entered for the defendant Burwick.</p>

<p>Tort, with a declaration in two counts, the first count being under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for the causing of the death of the plaintiff’s intestate, Timothy Kelley, and the second count being for compensation for his conscious suffering. Writ dated November 15, 1917.</p> <p>In the Superior Court, the action was tried before Flynn, J. There was evidence tending to show that thé plaintiff’s intestate, a man sixty-three or sixty-four years of age who was not hard of hearing and who had been employed by the American Steel and Wire Company for about forty years, in the course of his duties was in his employer’s freight yard in Worcester shortly after eleven o’clock at night on August 22, 1917, and was walking near a railroad track when an engine of the defendant, being used in the yard in the circumstances described in the opinion, ran into him from the rear and inflicted the injuries which resulted in his death; that the night was dark; that electric lights were lighted near the place of the accident; that no warning sound of bell or whistle was given as the engine approached the intestate; that the engine was being operated by the fireman, the engineman being absent, in violation of the following rules of the defendant:</p> <p>Rule 1197: “. . . The enginemen must personally control every movement of the engine. The fireman must not be allowed to move it, except with the approval of the superintendent or master mechanic or as provided in Rule 1242.”</p> <p>Rule 1242: “The fireman must take charge of the engine in the absence of the engineman, and not leave it until his return, or allow any unauthorized pérson to be upon it. He must not move it unless in some emergency he is instructed to do so by the conductor or other person in authority. If the engineman becomes disabled, the fireman must stop the engine and report to the conductor.”</p> <p>Rule 1243: “Fireman must not move engines, except as provided in Rule 1242, unless with the approval of the superintendent, master mechanic, or road foreman of engines and under such limitations as they may impose.”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, upon motion of the defendant, the judge ordered a verdict for the defendant upon all the evidence and reported the case to this court with the stipulation that, if his ruling ordering a verdict was right, judgment was to be entered for the defendant on the verdict; if his ruling was wrong, judgment was to be entered for the plaintiff for $1,500 on the first count of the declaration and for $500 on the second count.</p>

<p>Devise and Legacy, Absolute estate. Trust.</p> <p>Where the absolute and unrestricted ownership of property is given by will, a limitation over is void, because such a limitation is inconsistent with the full and complete title already given. -</p> <p>A testatrix by her will gave to her “beloved husband . . . all . . . Cher] property of whatever nature . . . excepting $3,000” given to a cousin, which, if the cousin died before the husband, should be the husband’s. She also gave to each of two other persons $1,000, with the provision, “The above $2,000 to be paid to the” persons designated “ after the death of my beloved husband.” Held, that</p> <p>(1) The natural inference to be drawn from the conflicting clauses was that the testatrix supposed she had the power and intended to give to her husband the full right to the use and consumption of her property, with a gift over to the two persons designated of $1,000 each, payable at the death of the husband should that sum be unconsumed at his death;</p> <p>(2) Since this intent of the testatrix could not be worked out, the two gifts of $1,000 each were invalid.</p>

<p>Adoption. Probate Court, Jurisdiction. Jurisdiction.</p> <p>Under G. L. c. 210, § 1, a probate court has jurisdiction to grant a petition for the adoption of a child resident in this Commonwealth to a person who is not an inhabitant of the Commonwealth.</p> <p>Probate courts now are courts of superior and general jurisdiction, and a decree of adoption cannot be attacked upon a petition for its revocation on the ground merely that in the petition for adoption the petitioner alleged that the child was “of ” a town in the Commonwealth instead of alleging that the child was a resident of such a town, since it must be assumed, in the absence in the record of facts to the contrary, that all essential jurisdictional facts were proved at the hearing when the decree of adoption was granted.</p> <p>Under G. L. c. 210, §§ 2,4, unless the Probate Court otherwise orders, no notice need be given to a maternal uncle of a child, both of whose parents have died, of a petition for the child’s adoption brought by his paternal aunt and her husband with the assent of the child’s paternal grandparents and against the opposition of the child’s maternal grandparents.</p> <p>Upon the evidence reported by the judge of the Probate Court upon an appeal from a decree denying the petition for revocation above described, it was held, that a finding of the judge, that no false or fraudulent statements were made by the petitioners for adoption in procuring the decree, was fully warranted.</p>

<p>Probate Court, Jurisdiction. Equity Jurisdiction, Accounting in partition proceedings. Judgment.</p> <p>The jurisdiction in equity given to the Probate Court by G. L. c. 241, § 25, in partition proceedings is limited, so far as matters of accounting are concerned, to such matters as have reference to the land to be partitioned and which grow out of the relations of the tenants as part owners.</p> <p>The Probate Court has no jurisdiction of a petition by one brother against another seeking an accounting as to an agreement in writing between them, which the petitioner alleged that the respondent had broken, and which related to the support and care of their mother and the use, maintenance and repair during" the lifetime of their mother of certain real estate of which they were tenants in. common, and seeking further that a fund realized by a sale by a commissioner appointed in proceedings for the partition of the real estate be applied in accordance with a decree made upon such accounting.</p> <p>The mere fact, that some of the items in the accounting sought by the petition above described related to taxes upon and rents from the real estate in question and arose by reason of an alleged failure of the respondent to carry out the agreement with the petitioner, did not give to the Probate Court jurisdiction of the petition, it appearing that, in adjusting the account, all the provisions of the contract would be involved and that, the account could not be taken without considering matters, some of which did not concern the land.</p> <p>.At common law, the mere occupation of the common property on the part of one of two tenants in common of certain real estate does not entitle his cotenant to call him to account therefor when it does not appear that there was an agreement that he should pay for such occupation.</p> <p>The Probate Court has no jurisdiction of a petition for relief, by means of an accounting between the petitioner and the respondent as tenants in common of certain real estate sold in partition proceedings, from a judgment obtained against the petitioner by the respondent in an action in the Superior Court relating to “contribution for repairs” of the real estate, in which no process was served upon the petitioner, a non-resident, and to which he had a good defence.</p>

<p>Devise and Legacy. Evidence, Extrinsic affecting writings. Probate Court, Bill for instructions. Equity Pleading and Practice, Report. Words, “Living.”</p> <p>In a will, whose first seven clauses describe legacies given to certain corporations, the next ten clauses legacies to individuals, and whose eighteenth clause directed the executor to convert the rest and residue of the estate into cash “to be divided equally between all of the above named legatees living at the time of my decease,” the word “living” in the eighteenth clause does not in any way limit the gift of the residue to the individual legatees named in clauses eight to seventeen inclusive to the exclusion of the corporations named in the first seven clauses, and the division directed by the eighteenth clause should be among those persons and corporations described in the first seventeen clauses who are in existence at the time of the death of the testator.</p> <p>'The will above described is not ambiguous, and, in a suit in equity for instructions, evidence should not be heard which tends to show that the testator told the attorney who drew the will, upon inquiry by him, that he had not thought what he would do with the residue, and finally said, “I will give it to the persons that are living at my decease;” and that, after he had made his will, he had said to an aunt that he “had left to the church societies a certain amount, and the rest” he "would divide equally among the cousins, with the exception of one.”</p> <p>Before a report to this court of a suit in equity in the Probate Court by an executor of a will for instructions, a decree should be entered that the bill be taken pro confessa as to all defendants upon whom service has been made or who have waived service, and who have not answered.</p>

<p>Actionable Tort. Negligence, Existence of physical injury. Evidence, In rebuttal. Practice, Civil, Conduct of trial.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries alleged to have been received when the plaintiff was a passenger upon an electric street car of the defendant which collided with another car, there was evidence tending to show that at the time of the collision the plain-, tiff was pregnant, and she testified that she was “thrown over” by the collision, that “when the bump occurred it threw me forward against the lady next to me;” that she was “pushed up against the woman” in front of her and that “the woman sitting on the other side bumped” into her; that she felt “pain on the right side of . . . [her] abdomen” at the time and “had pains all over and was very dizzy.” A physician who attended her on the night of the accident testified to finding her in bed “flowing large clots” of blood and suffering great pain; that there was a slight prolapsus of the womb which was “caused solely by the accident;” and that these conditions continued until the premature birth of a child. Evidence introduced by the defendant tended to show that the jar of the collision was slight, did not affect at ah passengers who were seated and did not to any appreciable extent move those standing. Physicians testified for the defendant that the plaintiff’s symptoms were not caused by the accident and that there was no premature birth. Held, that</p> <p>(1) The evidence warranted a finding of substantial physical injury to the plaintiff;</p> <p>(2) It could not be said as a matter of law that the plaintiff’s condition was due solely to fright and was not caused by physical injury from without;</p> <p>(3) There was no error in refusing a request for a ruling that the plaintiff could not recover for any injuries caused by fright unless at the time of the occurrence of the fright there was a substantial battery to her person.</p> <p>At the trial above described, the judge charged the jury in substance that, un-' less there was a physical injury, the plaintiff could not recover for fright, that to constitute physical injury there need not be “a bruise or a break” or any injury showing objectively. He defined an injury as “a wrong . . . the violation of a legal right,” and stated that the plaintiff’s legal right was “to be carried safely so far as her person was concerned,” and that, if they found that the collision was an unlawful bump or collision, a thing the defendant had no right to do, taking into consideration the safety with which it ought to carry ¡ its passengers, they might say that that was a physical injury; that for fright alone the plaintiff could not recover unless that was accompanied with physi-; cal injury, “the deprivation or the violation of a physical right which she had' as a passenger there, that right being the safe carriage, the immunity of her person from any touch, even, that should come wrongfully to her by any wrongful act on the part of the defendant;” that, if they found that the plaintiff “was thrown over against her neighbor one way or the other, or both, and suffered enough of a shock from the bump of the cars that she was caused to drop the packages that she had into her lap, you may find that that in itself was a physical injury, and that is sufficient to lay a basis for the fright, the nervous disturbances which followed.” Held, that the instructions contained no error harmful to the defendant.</p> <p>Where a woman, at the trial of an action of tort brought by her for personal injuries, had been a witness for herself in chief and had been cross-examined in such detail as the defendant had desired, and also was called in rebuttal and had testified as to what had happened when she was examined by physicians employed by the defendant and in recross-examination had stated that she had told one of those physicians how the accident occurred and had said that she was frightened and nervous, it is within the discretion of the judge to exclude a further question put to her in recross-examination as to whether she knew of any other cause for her trouble except the fright and nervousness.</p>

<p>Negligence, Motor vehicle, In use of highway. Agency, Existence of relation, Scope of employment.</p> <p>An exception, saved by the defendant in an action for personal injuries received when the plaintiff was run into by a motor truck of the defendant alleged to have been operated by an employee of the defendant, to a refusal of the trial judge to order a verdict for the defendant at the close of the evidence intro-, duced by the plaintiff, must be overruled where the evidence warranted findings that the plaintiff when struck was upon a public sidewalk and that the truck was being used on business of the defendant, was being driven by the defendant’s employee while in the performance of his work and was being driven negligently.</p>

<p>Bill of Lading. Carrier, Of goods. Notice. Contract, Construction, Validity.</p> <p>A railroad corporation issued to a shipper at Lowell in this Commonwealth a negotiable uniform bill of lading for goods received by it for shipment and delivery to the order of a consignee at Knoxville in the State of Tennessee, a provision of which was “Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property ... or, in case of failure to make delivery, then within six months . . . after a reasonable time for delivery has elapsed; and suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.” The consignor sent the bill of lading with a draft attached to a bank at the plato of destination. The goods arrived at their destination on June 22,1917, and on June 25 were delivered by the carrier without requiring the surrender of the bill of lading, and the draft was not paid. The consignee was not notified and had no knowledge of the delivery until October 30,1918, and did not bring an action against the railroad corporation until June 27,1919. Held, that</p> <p>(1) The requirements of the bill of lading as to notice were not satisfied by letters from the consignor to the railroad corporation on July 23 and on October 6.1917, asking that the shipment be traced; .</p> <p>(2) A letter from the consignor to the railroad corporation on December. 12.1917, rehearsing the facts as to the shipment and the requests that it be traced, and stating, “Our customer will not accept this shipment unless it is delivered' at once and it will be necessary for us to enter claim with the railroad company covering same. Will you kindly make a special effort and have this shipment wired traced at once,” was a notice of claim within the requirements of the bill of lading;</p> <p>(3) The delivery by the carrier without requiring the surrender of the bill of lading was a “failure to make delivery” in accordance with its terms;</p> <p>(4) Even assuming that the provision of the bill of lading as to limitation of the time within which actions should be brought was reasonable and valid, this action, upon the facts above described, was brought seasonably;</p> <p>(5) At the time of misdelivery, the carrier in Tennessee had not assumed the position of warehouseman, and its responsibility as carrier continued;</p> <p>(6) It was unnecessary to decide whether the misdelivery constituted a conversion and relieved the plaintiff from complying with the stipulations of the ■bill of lading as to notice and limitation of time within which action should be brought.</p>

<p>Judgment, Petition to vacate.</p> <p>A petition under G. L. c. 250, §§ 14-20, to vacate a judgment ordinarily is addressed to the discretion of the court and a refusal to grant it raises no question of law.</p> <p>At the trial of an action against an indorser of a promissory note, there was a verdict for the plaintiff. The defendant moved for a new trial on the ground that there was no evidence of notice to the defendant of non-payment of the note or of a waiver of such notice and stated to the court in substance that, if the motion was denied, exceptions would be taken. The motion was denied and no notice of such action was sent to the defendant. Judgment was entered for the plaintiff. The defendant thereupon filed a petition to vacate the judgment. Held, that</p> <p>(1) The petition disclosed ground which, as a matter of law, would not warrant a vacation of the judgment;</p> <p>(2) The question raised at the motion for a new trial should have been raised at the trial, when it would have been appropriate for the defendant to save an exception to an adverse rnliug;</p> <p>(3) While the motion for a new trial might have been granted, the petitioner could not require it as a matter of right;</p> <p>(4) There having been no abuse of judicial discretion in denying the motion for a new trial, there was no ruling of law to which the petitioner could have saved a valid exception if he had received notice of the action of the court, and he therefore was not prejudiced by not receiving such a notice.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 25,1919, and afterwards amended, by Herbert W. Eustace, David B. Ogden and Lamont Rowlands, alleged therein to be trustees under a deed of Mary Baker G. Eddy dated January 25, 1898, constituting a trust to be carried on under the unincorporated name, “The Christian Science Publishing Society,” against Adam H. Dickey, James A. Neal, Edward A. Merritt and William R. Rathvon, alleged to be trustees under a deed of trust by Mary Baker G. Eddy dated September 1, 1892, and an amendatory deed of March 19, 1903, and also to be directors of The First Church of Christ, Scientist, in Boston, Massachusetts, and also against John V. Dittemore and Annie M. Knott, each of whom, the plaintiffs alleged, claimed “to hold the position and office of Trustee and Director in association with the other defendants.” The substance of the prayers of the bill was that a resolution adopted by the defendant directors on March 18,1919, purporting to remove the plaintiff Rowlands as trustee of The Christian Science Publishing Society and to declare the trusteeship vacant, be adjudged nugatory and of no legal effect, and that the defendants be restrained from committing acts in conformity with such resolution.</p> <p>The defendant Dittemore filed a separate answer, in which he alleged in substance that the removal of all of the plaintiff trustees was warranted by their conduct; that, if the defendant directors technically did not have power so to do, the court should do so; and he left it to the court to decide whether the dismissal of the plaintiff Rowlands, as done by resolution of the other defendants, was effectual. He further alleged that the other directors illegally and without warrant had removed him, Dittemore, from office as a director and had elected the defendant Knott in his stead. The other defendants joined in an answer, denying such allegations of the bill as asserted that their action in removing the plaintiff Rowlands as a trustee was without power or warrant and alleging the contrary.</p> <p>By the deed of January 25, 1898, which is the basis of the bill, Mary Baker G. Eddy conveyed to the plaintiffs’ predecessors, “in consideration of one dollar . . . and in consideration of their agreement to faithfully observe and perform all the conditions hereinafter specified to be by them observed and performed, and for the purpose of more effectually promoting and extending the religion of Christian Science as taught by me, do hereby sell and convey to them, the said Bates, Neal and McKenzie, and their successors in the trust hereinafter established all and singular the personal property, goods, and chattels which were sold and conveyed to me by the Christian Science Publishing Society by its bill of sale dated January 21st, 1898, said property being located in the premises numbered 95 and 97 Falmouth Street in said Boston, including the publication called ‘The Christian Science Journal/ (not including the copyrights thereof), the linotype, all pamphlets, tracts, and other literature conveyed to me by said bill of sale, the Hymnal, the subscription lists of ‘The Christian Science Journal’ and of ‘The Christian Science Quarterly/ all stationary fixtures, stock on hand manufactured or otherwise, machinery, tools, mailing lists, book accounts, notes, drafts, checks and bills, whether in process of collection or not, five United States bonds of one thousand dollars each, all cash and bank accounts and all personal property of whatsoever kind or nature which belonged to said Society and which were conveyed to me as aforesaid, excepting only such of said property as may have been used and disposed of since the date of said sale to me, ¡[the succeeding nine words were underlined in the original deed] upon the following perpetual and irrevocable trust and confidence, namely</p> <p>“1. Said trustees shall hold and manage said property and property rights exclusively for the purpose of carrying on the business, which has been heretofore conducted by the said Christian Science Publishing Society, in promoting the interests of Christian Science; and the principal place of business shall be in said Boston.</p> <p>‘‘2. The business shall be done by said trustees under the unincorporated name of ‘The Christian Science Publishing Society.’</p> <p>“3. Said trustees shall energetically and judiciously manage the business of the Publishing Society on a strictly Christian basis, and upon their own responsibility, and without consulting me about details, subject only to my supervision, if I shall at any time elect to advise or direct them.</p> <p>“4. Said trustees shall keep accurate books of account of all the business done by them, and shall deposit in a responsible and reliable Bank or Trust Company all bonds, mortgages, deeds, and other documents or writings obligatory of every kind and nature for safe keeping; also all surplus funds over and above the sum necessary to defray the running expenses of the business, until the same shall be paid over to the Church Treasurer, as herein provided. No papers or monies shall be taken from said Bank or Trust Company excepting by and in the presence of a majority of said Trustees. Once in every six months the trustees shall account for and pay over to the treasurer of ‘The First Church of Christ, Scientist, in Boston, Mass., ’ the entire net profits of said business. The ‘net profits’ shall be understood to mean the balance remaining at the end of each six months after paying the usual and legitimate expenses incurred in conducting the business. No authority is intended to be conferred upon the trustees to expend the money of the trust for property not necessary for the immediate successful prosecution of the business, or to invest the same for purpose of speculation, orto incur liabilities beyond their ability to liquidate promptly from the current income of the business. Said treasurer shall hold the money so paid over to him subject to the order of ‘The First Members’ of said Church, who are authorized to order its disposition only in accordance with the rules and by-laws contained in the Manual of said Church.</p> <p>“5. The business manager shall present to the Trustees, at the end of each month, a full and correct statement of the receipts and expenditures of the month.</p> <p>“6. Said Trustees shall employ all the help necessary to the proper conduct of said business, and shall discharge the same in their discretion or according to the needs of the business, excepting that the business manager may call in at times of necessity such temporary help as will facilitate the business.</p> <p>“7. The Trustees shall employ such number of persons as they may deem necessary to prepare Bible Lessons or Lesson Sermons to be read in the Christian Science churches, the same to be published Quarterly as has heretofore been done by and in the name of the Christian Science Quarterly; and they may, in their discretion, change the name or style of such Quarterly publication as occasion may demand. They shall also fix the compensation of the persons so selected.</p> <p>“8. Said Trustees shall have direction and supervision of the publication of said Quarterly, and also of all pamphlets, tracts, and other literature pertaining to said business, using their best judgment as to the means of preparing and issuing the same, so as to promote the best interests of the Cause, reserving the right to make such changes as I may think important.</p> <p>“9. Said trustees and their successors in trust shall not be eligible to said trusteeship or to continue in the same, unless they are loyal, faithful, and consistent believers and advocates of the principles of Christian Science as taught by me in my book, ‘Science and Health with Key to the Scriptures.’</p> <p>“10. Whenever a vacancy shall occur in said trusteeship for any cause, I reserve the right to fill the same by appointment, if I shall so desire, so long as I may live; but if I do not elect to exercise this right, the remaining trustees shall fill said vacancy. The First Members together with the directors of said Church shall have the power to declare vacancies in said trusteeship for such reasons as to them may seem expedient.</p> <p>“11. I also reserve the right to withdraw from said trust, if I shall so desire, the publication of the Christian Science Journal, but if I do not exercise this reserved option, then said Journal shall remain a part of the trust property forever.</p> <p>“12. Upon my decease, in consideration aforesaid, I sell and convey to said trustees my copyright of ‘The Christian Science-Journal,’ to be held by them as the other property of said trust.</p> <p>“13. Said trustees shall each receive annually one thousand dollars for their services in that capacity, payable semiannually in payments of five hundred dollars, or such salary as the said Church may determine from time to time.</p> <p>“14. The delivery of this instrument to, and its acceptance by, said trustees shall be regarded as the full establishment of the trust and as the agreement by the trustees to honestly and faithfully do and perform all things to be done and performed by them within the terms, objects and purposes of this instrument.”</p> <p>The suit was referred to a master “to hear the parties and their evidence, to find the facts, and report the same to the court.”</p> <p>It appeared from the master’s report that on April 29, 1919, John V. Dittemore brought a bill in equity against the other five defendants in this suit, which was ordered by the court to-be referred to the same master and to be heard with this suit.. As to that suit, the master reported: “Much of the evidence at the hearings was offered in both cases. This is dealt with in the present report, in its relation to the issues raised by the pleadings in [this suit of Eustace v. Dickey]. It is understood that further evidence remains to be heard in the case [Dittemore Dickey] should the parties so desire, upon such of the issues raised therein as may remain open after the determination of those raised in the present case.”</p> <p>The master’s conclusions were, in substance, “that Rowlands’ removal was not lawfully effected by the. . . resolution adopted on March 17, 1919; and that he is still a trustee under Mrs. Eddy’s deed of January 25, 1898, notwithstanding said resolution.” “Against the objection of all the defendants except Dittemore, and subject to their exception,” he also “ruled that the issue whether or not Dittemore was a director when the bill was filed was an issue of fact upon which the master was” to pass in the present case; and on this subject he found, as a conclusion from other facts reported by him, “that not only was the vote purporting to dismiss Dittemore ineffectual for the purpose of removing him from his trusteeship under Mrs. Eddy’s deed of September 1, 1892; but that it was also ineffectual for the purpose of dismissing him as a member of the board of five directors, authorized since 1903, by the by-laws and the acquiescence therein of the church membership, to perform functions other than those belonging to the trustees under said deed. It follows that no vacancy was created by said vote, and that Mrs. ICnott did not lawfully become either a trustee under said deed or a member of said board of directors in Dittemore’s place.”</p> <p>Other material facts found by the master and contentions raised by the defendants by exceptions to the report are described in the opinion.</p> <p>The master gave notice to counsel of the preparation of his draft report on December 20, 1919. The defendants other than Dittemore moved before the master and on February 14, 1920, before Crosby, J., that the master hear all the evidence relating to the issue as to Dittemore’s holding of office before filing his report. The motion was denied on March 1, 1920; and the defendants other than Dittemore appealed therefrom.</p> <p>On March 1, 1920, Emelie B. Hulin of the city and State of New York “in behalf of herself and all other members of the First Church of Christ, Scientist, of Boston, known as The Mother Church, in good standing, and all members of Christian Science churches and associations and all other Christian Scientists,” moved “to intervene,” seeking an adjudication as to whether the directors had power to remove the plaintiff trustees, and, if they had no such power, that the court should remove the trustees. The motion was heard by De Courcy, J., and was denied; and the petitioners alleged exceptions. These exceptions afterwards were waived at the argument before this court.</p> <p>On March 6, 1920, the master’s report was filed. On March 25, 1920, Daisy Lovering Krauthoff and Edwin A. Krauthoff presented to the clerk of the Supreme Judicial Court for the county of Suffolk for filing a document in which they alleged that they were “members in good standing of the First Church of Christ, Scientist, in Boston, Massachusetts, and” were acting “on behalf of themselves and all other members of said church who may desire to join in this effort to uphold the manual thereof,” and that the master had been requested to make the following finding: “86a. The religion of Christian Science as taught by Mary Baker Eddy in her text book, Science and Health with Key to the Scriptures, includes within its principles, a faithful, loyal and consistent adherence and obedience to the Church Manual of The First Church of Christ, Scientist, in Boston, Massachusetts, both according to the letter and the spirit thereof;” that the master had decided the finding to be immaterial and had refused to make it, and that, while the defendant directors had filed an objection to such action of the master, they had not filed an exception thereto; and the petitioners moved that .the report be recommitted to the master “with directions to consider such request as one material to be determined, and, if he fails to find as stated herein, that the master report to the court the testimony and evidence bearing on such issue.” On the same day the same parties, in the same capacities, presented for filing certain exceptions to the master’s report based on objections previously filed by the defendant directors. On April 6, 1920, the same parties, acting in the same capacities, alleging that they had not been advised of the failure of the defendants to file the exceptions above described until March 25, 1920, and “were not advised of their refusal to do so until April 1,1920,” presented a petition for leave to file the motion to recommit and the exceptions above described, referred to a bill in equity brought by them on March 31, 1920, against the Attorney General and others (see post, 88), and also moved that the report of the master be recommitted and that “ the further consideration of the exceptions on file herein be postponed until”' their suit against the Attorney General and others “is ready for final decree.” This petition was heard by Pierce, J.,'and by his order on April 9, 1920, an interlocutory decree was entered, denying it, from which the petitioners appealed on April 27.</p> <p>On August 16, 1920, by Pierce, J., this suit was “reserved and reported for determination by the full court on the pleadings, the master’s report, and the defendants’ exceptions thereto; and at the further request of all parties” he “caused to be printed* and sent up with this reservation the appeal from the order denying the motion of the defendants other than Dittemore to direct the master to hear further evidence before filing any report, it being the only other outstanding interlocutory matter.”</p> <p>On October 20, 1920, Daisy Lovering Krauthoff and Edwin A. Krauthoff, acting in the same capacities as previously, filed in the Supreme Judicial Court for the county of Suffolk a petition for leave “ to become parties to this suit with leave to take such steps therein as the court may allow, and especially” for “leave upon being made such parties to refile the several motions and exceptions hereinbefore filed by” them “with the clerk of this court in this cause.” The petition was heard by Pierce, J., and by his order an interlocutory decree was entered denying it.. The petitioners appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 31, 1920, and afterwards amended, by Daisy Lovering Krauthoff and Edwin A. Krauthoff, alleging themselves to be "members in good standing of The First Church of Christ, Scientist, in Boston, Massachusetts, and as such” bringing “this suit on behalf of themselves and of all other members of the church who may elect to become parties hereto and join in this effort to preserve and uphold the church manual, the form .of government of The Mother Church as established by Mary Baker Eddy, and the activities thereof founded by her.” The material allegations of the bill are described in the opinion.</p> <p>On June 1, 1920, the Attorney General filed a plea, alleging that he did so "without in any manner waiving his demurrer filed in the above entitled cause,” that The First Church of Christ, Scientist, is a public charitable trust, and that the deed of January 25,1898, (see ante, 60-63,) created a public charitable trust subsidiary thereto and as one of the activities thereof; that on May 26, 1920, he had filed an information in the nature of a bill in equity in which he asserted "all the rights of the adherents of said church and of the public generally as beneficiaries of said charitable trusts,” and that this bill of complaint disclosed no interest of the plaintiffs in the charitable trusts referred to, “except as adherents of said' Church and as members of the public, as to which the plaintiffs, are fully represented by the Attorney General” as plaintiff in his* information. Issue was joined on this plea on June 5, 1920.</p> <p>On June 19, John V. Dittemore, on June 23, the Attorney General, on June 24, the trustees of the Christian Science Publishing Society, and on June 29, 1920, one Julia S. Bartlett, severally filed demurrers. On July 13, Z. Lewis Dalby was joined as a. party plaintiff.</p> <p>The suit came on to be heard before Braley, J., “upon the bill as finally amended, the several demurrers thereto, and the plea of the defendant the Attorney General.” He found the allegatian of fact “that on May 26, 1920, the Attorney General filed’ in this court an information in the nature of a bill in equity,”" to be true; and, with the assent of parties, reserved the suit upon the bill and the several demurrers and the plea for determination by the full court.</p>

Information, filed by the Attorney General in the Supreme Judicial Court for the county of Suffolk on May 26, 1920. The material allegations of the information are described in the opinion. John V. Dittemore and the trustees of The Christian Science Publishing Society, defendants, severally demurred.

<p>Evidence, Presumptions and burden of proof; Of value; Opinion: expert; Competency.</p> <p>In an action to recover from the defendant, a common carrier, the value of a keg of acid violet dye alleged to have been delivered in April, 1917, to the defendant and lost by it in May, 1917, the plaintiff, who was the owner of the dye, testiffed that during 1917 he was a dealer in dye stuffs at the place of shipment; that he personally packed the dye in question; that he had dealt considerably in the particular kind of dye stuff that was shipped; that he was familiar with the value of dye stuffs at that time and that although he had made no examinatian of the contents of the keg before shipment, he had taken a sample of the contents of the keg in question, had examined it and had had it tested. Subject to an exception by the defendant the plaintiff was allowed to testify as to the market value of the lost dye. Held, that</p> <p>(1) Where the value of property real or personal is in controversy the owner thereof may be presumed to have such familiarity with it as to be qualified to express an opinion as to its value;</p> <p>(2) The evidence, apart from the fact that it was the testimony of the owner, warranted a finding that the plaintiff was competent to give his opinion as evidence upon the subject of the market value of the lost dye.</p>

<p>Contract upon a negotiable promissory note for $800 made by the defendant on December 15, 1917, payable to the order of the plaintiff. Writ dated May 27, 1918.</p> <p>The action was tried in the Superior Court before Cox, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The jury found for the plaintiff in the sum of $901.07; and the defendant alleged exceptions.</p>

<p>Contract for $2,967.85, alleged to have become due to the plaintiff for salary and expenses while employed by the defendant in "investigating certain mining properties in South America.” Writ dated May 8, 1917.</p> <p>In the Superior Court the action was tried before Quinn, J. Material evidence and exceptions saved by the defendant are described in the opinion. The letters dated April 3 and April 5, 1917, referred to in the opinion as marked respectively Exhibit 82 and Exhibit 83, were as follows:</p> <p>"Exhibit 82.”</p> <p>“A. J. Eveland.</p> <p>“April 3, 1917.</p> <p>"Mr. Thomas W. Lawson,</p> <p>Boston, Mass.</p> <p>“Dear Sir:</p> <p>“It is now six weeks since I returned to Boston to place before you the results of my work of the last year, carried on for you in South America, and to ascertain, and straighten out if possible,, the cause of the difficulties in connection with it.</p> <p>“It is three weeks since I had the first and only conference with you in regard to this matter, in which you stated to me that from the information I was able to furnish you, you intended to carry on the work, that I was to consider myself still in your employ,, and that we would resume the discussion, taking up the best manner in which to proceed, on the following day.</p> <p>“Since that time, I have not heard from you, nor have I been able to communicate with you in any way, either thru your secretory or your office. I have sent you under dates of Feb. 27th, and of Mar. 21st, statements of the balance due me for the work to date, but further than the partial payment of $1500 on Mar.. 16th, my request for payment of this balance has been ignored.</p> <p>“I find myself unable to continue on this basis. I went thru. some unpleasant months in South America, owing to the fact that funds were not furnished me when needed, and according to the agreement you made with me before leaving, and in addition, the whole success of the work was blocked by delay and inattention on the part of your office or yourself. If you are still inclined to' continue with the business of acquiring mining property in South America, thru my services, it surely is not asking you too much to-inform me of that fact, and to send me a check for $2967.85, the balance due me for my work last year. I can wait your convenience for the arrangement to proceed, provided accounts are squared up to date, and I am under a more definite status than seems to exist at present.</p> <p>“Otherwise, if you have lost interest in the matter, I request a notification to that effect, and will consider that my services have terminated at the end of March, this year, expecting a prompt remittance of the $2967.85, so that I may take my ideas to whatever other market may be available.</p> <p>“Very truly yours,”</p> <p>. “Exhibit 83”</p> <p>A. J. Eveland</p> <p>Engineer’s Club</p> <p>“April 5,1917.</p> <p>“Mr. Thomas W. Lawson,</p> <p>Boston, Mass.</p> <p>“Dear Sir:</p> <p>“I have just received from your office the request from you that I furnish to you ‘a complete report on what I did in Chile, the mines visited, and so on,’ this being apparently in answer to my letter to you of April 3. I have replied to your secretary that all that material has been already furnished you, in the shape of frequent letters and cables sent at irregular intervals, but covering fully these matters, which should be in your files. It so happens that since the beginning of the work, I have never received any answer to any of these letters, even to those directly requiring an answer to determine whether or not to continue proposed business in acquiring mines, but I have faithfully reported to you, retaining copies of all papers, on completion of each phase of the work, and outlining my plans for the immediate future.</p> <p>“This program I carried out until I found it impossible to get funds from you, to either continue the work, or to pay my salary, when I returned to Boston to take the whole matter up with you in person.</p> <p>“To make such a report, your files contain all the data; I have prepared for you, however, in anticipation of the continued discussion we were to have had, a summary of conditions in Chile and my ideas on the possibilities in that mining field, all the data gathered in my work for you. A copy of this is attached; it represents the net result of what I was able to do under the conditions forced upon me.</p> <p>Very truly yours,</p> <p>A. J. Eveland.”</p> <p>Exhibit 82 was identified by the plaintiff as “a carbon copy of a letter which I mailed on April 3 to Thomas W. Lawson.” Exhibit 83 was produced by the defendant on notice.</p> <p>The jury found for the plaintiff in the sum of $3,621.77; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries received when the plaintiff, while a traveller upon Beacon Street in Brookline near the intersection of Fairbanks Street on October 17, 1919, was struck by a motor vehicle alleged to have been owned and operated by the defendant. Writ dated December 15, 1919.</p> <p>In the Superior Court, the action was tried before White, J. Material evidence is described in the opinion. At the close of the evidence of the plaintiff, the defendant rested and asked for the following rulings:</p> <p>“1. On all the.evidence the defendant was not negligent.</p> <p>“2. The defendant has sustained the burden of proof as to the affirmative defence of contributory negligence.”</p> <p>“4. The mere proof of injury to a pedestrian raised no question of negligence on the part of the driver of the motor vehicle.”</p> <p>“19. That there is no evidence that the automobile which struck the plaintiff in this action was driven by the defendant.</p> <p>“20. That there is no evidence that the automobile which struck the plaintiff in this action was driven by the defendant, his servants or agents.</p> <p>“21. That there is no evidence that the automobile which struck the plaintiff in this action was owned or operated by the defendant.”</p> <p>In his argument upon the foregoing requests for rulings the defendant’s counsel called the attention of the trial judge “to the fact that there was absolutely no evidence in the case that the defendant owned the automobile which was involved in the accident, or that the defendant operated it or that it was operated by any servant or agent of the defendant’s, or that the defendant had anything to do with it or ever saw it before, or was concerned in the accident in any way whatever,” and "that there was no evidence as to what kind of an automobile it was or what its number was or in whose name it was registered, or that the defendant himself or any servant or agent of his was even in the automobile at the time of the accident or was controlling it or was even in the vicinity.” The same contentions were put forward at the close of the charge to the jury.</p> <p>The rulings were refused. The jury found for the plaintiff in the sum of $19,790.92; and the defendant alleged exceptions.</p>

Contract, with a declaration as amended upon an account annexed for $481 for “Services rendered in procuring tenant for building 339 Massachusetts Avenue, Boston.” Writ in the Municipal Court of the City of Boston dated December 11, 1917. Material evidence at the trial in the Municipal Court is described in the opinion. At the close of the evidence, the defendant asked for the following rulings: “3.

<p>Practice, Civil, New trial. New Trial.</p> <p>A motion for a new trial is addressed to the sound judicial discretion of the trial court, and it is only in exceedingly rare instances that conditions arise where it can be said that there has been an abuse of that discretion. Per Rugg, C. J.</p> <p>A question of law, which might have been raised and saved by an exception by the plaintiff at the trial of an action upon the merits, cannot as a matter of right be relied upon as a basis for a motion for a new trial after a verdict for the defendant.</p> <p>At the trial of an action by a woman for personal injuries, the defendant introduced evidence tending to show that the plaintiff had received other personal injuries previous to the alleged injury for which she was seeking recovery in the action being tried. In rebuttal, the plaintiff offered evidence tending to disprove such evidence of the defendant. The trial judge made a ruling limiting the number of witnesses that might be offered for that purpose. No exception was taken by the plaintiff to that ruling. There was a verdict for the defendant. The plaintiff moved for a new trial, seeking rulings that, owing to the facts above recited, there had been an unfair trial, and that the exercise by the court of its sound discretion required that the verdicts for the defendant should be set aside and a new trial granted. The rulings were refused and the motion was denied. Held, that</p> <p>(1) There was nothing in the record indicating an unfair trial;</p> <p>(2) There was nothing in the record indicating an abuse of judicial discretion in denying the motion for a new trial.</p>

<p>Tort, by the administrator of the estate of Thomas J. Brosnan ior the causing of conscious suffering and the death of the plaintiff’s intestate which resulted from his breaking through thin ice formed over an area of the Merrimack River above the Pawtucket dam at Lowell where, about four days previously, the ■defendant had cut ice for commercial purposes. Writ dated June 27, 1917.</p> <p>In the Superior Court, the action was heard by Keating, J., ' without a jury. Material evidence is described in the opinion. At the close of the evidence at the request of the defendant, the judge ruled as a matter of law that the plaintiff was not entitled to recover, found for the defendant and reported the action for ■determination by this court, the parties having agreed that, if the ruling was right, judgment was to be entered for the defendant; otherwise, that there' was to be a new trial.</p>

<p>Petition, filed on June 4, 1921, for a writ of mandamus commanding the respondents, selectmen of the town of Winchendon, to reverse and cancel their order of May 14,1921, removing the petitioner from an office to which he was appointed on March 19, 1921, "whether the appointment above referred to is construed as an appointment of an acting superintendent of streets or a .superintendent of streets under the statute.”</p> <p>The respondents filed an answer. Facts were agreed upon and are •described in the opinion. The case came on to be heard by Crosby, J., and by him was reserved for determination by the full court.</p>

<p>Tort for personal injuries alleged to have been received on July 20, 1918, when a motor vehicle which the plaintiff was driving was run into by an electric street railway car of the defendant» Writ dated August 12, 1919.</p> <p>In the Superior Court the action was tried before O’Connell, J.. Material evidence is described in the opinion. At the close of the-evidence the defendant moved that a verdict be ordered in its favor. The motion was denied. The jury found for the plaintiff in the sum of $215; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Probate Court for the county of Essex on April 21, 1920, by the trustee under the will of Angie N. Tilton, late of Haverhill, for instructions.</p> <p>The will of Angie N. Tilton contained two paragraphs, other than provisions as to the payment of debts and funeral expenses and the nomination of the husband of the testatrix as executor, the first giving to the husband of the testatrix one half of her "entire estate, both real and personal,” and the second placing the other half in trust “for the following uses and purpose, viz: to use the income thereof and whatever part of the principal may be necessary for the comfortable support and maintenance of my son Andrew J. Tilton in the manner in which he is accustomed to live.”</p> <p>The bill was heard by Dow, J., by whose order a decree was entered directing that, "Andrew J. Tilton having died, testate, the trust created under said second clause of the will has terminated, and upon the settlement of his account, the petitioner should pay the balance of the trust property in his hands to the executor of the will of said Andrew J. Tilton.” The husband of the testatrix appealed.</p>

<p>Contract, by the lessee against the lessor named in a lease of real estate in Whitman, for alleged breach by the lessor of a covenant as to reletting. Writ dated August 8, 1918.</p> <p>In the Superior Court the action was tried before Callahan, J. Material evidence and rulings of the judge to which the defendants saved exceptions are described in the opinion. The jury found for the plaintiff in the sum of $500; and the defendants alleged exceptions.</p>

<p>Equity Jurisdiction, To enjoin libel. Department of Massachusetts, The American Legion.</p> <p>A provision in the constitution of the Department of Massachusetts, The American Legion, that the executive committee, “shall have power to suspend or remove from office for good cause any elective officer of the Department Organization or any elective officer within the Department after a fair and impartial hearing on the charges brought against such officer; to expel from membership in The American Legion any member of any Post within its jurisdiction,” does not curtail the common law right of the executive committee to inquire into the conduct of a member and to report to its constituent posts the results of its inquiry including a censure of the member.</p> <p>A vote of the executive committee of the Department of Massachusetts, The American Legion, reporting to its constituent posts a censure of one of the members of the department and requiring that the report be read at each post and spread upon its records, not being in violation of any provision of the constitution or the by-laws of the association, is not a violation of any contract or of any property right of the member so censured; and equity has no jurisdiction of a bill brought by the member, alleging that the report of the committee contained untruthful statements, that the committee were actuated by malicious motives, intended to place a stigma upon the member’s record as a soldier, which had been honorable, that would affect him injuriously before the community nowin existence and would cause any future community to believe that Ms conduct toward the Legion had been dishonorable, and that the vote would bring shame and humiliation to himself and Ms descendants, and praying for an injunction ordering that the vote be rescinded and expunged from the record.</p>

Contract, with a declaration in two counts, the first count being based upon an alleged breach of an agreement of employment of the plaintiff by the defendant, and the second count being upon an account annexed. The counts were stated to be for the same cause of action and claimed damages in the sum of $3,009.30. Writ dated January 3, 1920. The motion to amend the writ and the defendant’s motion to abate the writ and dismiss the action are described in the opinion.

Contract for $25,488.20 and interest, alleged to be a balance due on account of the purchase price of coal sold and delivered to the defendant under the provisions of a contract in writing described in the opinion. Writ dated May 15, 1919. Spring Coal Company was originally the only plaintiff.

<p>Negligence, Causing death, Invited person, Grade crossing of private way with, railroad, Railroad. Railroad. Way, Private.</p> <p>At the trial together of two actions of tort brought by an administrator, one against a railroad corporation and the other against a manufacturer, for the causing of conscious suffering and the death of the plaintiff’s intestate, who, while driving a motor vehicle across railroad tracks on a private way leading from the manufacturer’s premises, whither he had gone to deliver merchandise, was struck by a passing railroad train, there was evidence tending to show that the decedent on at least one previous occasion had been on the crossing; that the manufacturer knew that signals had not been given by trains passing the crossing, that he had asked the railroad company to signal the approach of trains there. and that the request had not been granted; that at the time of the accident the view of the track in the direction from which the train which struck the decedent came was obstructed by cars which were standing on an open track and which had been placed there by the railroad corporation as and when directed by the manufacturer; that no warning signal was given on approaching the crossing by the train which struck the decedent, that the crossing was planked and that there was no defect in the driveway. There was nothing to show who had planked the crossing or that the engineer of the train saw the decedent until he was on the crossing. A verdict was ordered for the defendant in each case. Held, that</p> <p>(1) The decedent was upon the crossing at the implied invitation of the manufacturer;</p> <p>(2) The failure of the manufacturer to warn the decedent of the existence •of the crossing was not a breach of duty;</p> <p>(3) The failure of the manufacturer to warn the decedent that signals were not given by trains passing the crossing, and of his danger at the crossing, was not a breach of duty;</p> <p>(4) There was no evidence of negligence on the part of the manufacturer;</p> <p>(5) There was no evidence that the driveway was a highway, town way or "travelled place within the meaning of R. L. c. Ill, § 188;</p> <p>(6) On all the evidence, the decedent was upon the crossing merely by the license or permission of the railroad corporation;</p> <p>(7) There was no evidence that the railroad corporation or its servants or agents intentionally injured the decedent or wantonly or recklessly exposed him to danger;</p> <p>(8) The verdicts for the defendants properly were ordered.</p>

<p>Negligence, Trespasser, Licensee, Causing death. Wanton and, Reckless Misconduct. Evidence, Relevancy and materiality.</p> <p>A part of Caleb’s Island in the Chicopee River was owned by a manufacturing corporation and for many years before May 18, 1919, had been used for playing base ball and other games, and on one occasion-the corporation gave permission to a number of boys to play ball there, provided no damage was done to the trees. The approach to the island was by a railroad bridge, on which there was no foot bridge and on which were signs, “No Trespassing.” Across the tract ■of land were stretched wires maintained by an electric company for the transmission of electricity to the manufacturing plant. Neither corporation took •any active measures to prevent the use of the land. One who, on May 18,1919, was walking along a path on the island with a fish pole over his shoulder, was killed when the pole came into contact with an uninsulated portion of an electric wire at a point where it sagged to within ten feet of the ground. In separate actions against the two corporations for the causing of the death by negligence, verdicts were ordered for the defendants. On exceptions by the plaintiff it was held, that</p> <p>(1) A finding that the decedent was induced or invited by either defendant upon the land in question was not warranted;</p> <p>(2) Whether the deceased was a licensee or a trespasser upon the land in •question, the only duty owed to him by either defendant was to refrain from •any wilful, wanton or reckless conduct which was likely to injure him;</p> <p>(3) Neither defendant was under a duty to inspect the premises and keep "them safe for the benefit of the deceased;</p> <p>(4) There was no evidence of wilful, reckless or wanton misconduct on the part of either defendant;</p> <p>(5) The verdicts properly were ordered.</p> <p>"Evidence, offered at the trial of the actions above described and tending merely to show that the construction of the wires was defective, was held properly to have been excluded.</p> <p>It was proper, at the trial of the actions above described, to admit evidence tending to show that, upon the railroad bridge which was the only approach to the island, and upon which there was no foot bridge, there were signs with the words “No trespassing.”</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on February 21, 1920, asking for the allowance of the first account-of the administrator of the estate of Daisy Gonzales Stanwood, late of Boston.</p> <p>The petition was heard by Prest, J., and a decree was entered as stated in the opinion, from which the administrator claimed an appeal which he entered in the Supreme Judicial Court for the county of Suffolk. The respondent there moved that the appeal be dismissed. The motion was heard by Jenney, J., who ordered the entry of a final decree dismissing the appeal and, at the request of the administrator, reported the case for determination by the full court.</p>

<p>Equity Jurisdiction, Equitable set-off, Trust company in liquidation by commissioner of banks. Trust Company.</p> <p>Two directors of a Massachusetts corporation gave to a Massachusetts trust company their joint and several personal note for $30,000 solely for the accommodation of the corporation, as the officers of the trust company knew, and at the same time, as collateral security, the trust company was given a note for $50,000 signed by the corporation, the two directors and others of the directors constituting a majority of the board. For the first note, the trust . company placed to the credit of the corporation a drawing account of $10,000, and issued to it four certificates of deposit of $5,000 each. At a time when there was a sum of $597 standing to the credit of the corporation in the drawing account and when two of the certificates of deposit were not yet payable, the commissioner of banks took possession of the property and business of the trust company under St. 19ip, c. 399, as amended (see G. L. c. 167, §§ 22 el seq). The two directors paid to the commissioner $10,000, which was applied to the reduction of the corporation’s note, and, with the consent of the corporation, offered to settle all further claims against them by the payment of a further $10,000 and the return of the unpaid certificates of deposit. The commissioner declined the offer and stated a determination to institute legal proceedings against the two directors upon their note and thereupon they brought a bill in equity, seeking an equitable set-off of the amount of the unpaid certificates of deposit given to the corporation. It was agreed that the corporation “has property sufficient to pay whatever may be found to be due from it on tins debt and that it stands ready to pay whatever amount may be found due.” Held, that</p> <p>(1) The plaintiffs would have no right of set-off in an action at law against them on the $30,000 note;</p> <p>(2) The corporation being able and willing to pay “whatever may be found due from it on this debt,” no injustice can follow a prosecution to judgment of the claim of the trust company against the plaintiffs;</p> <p>(3) The object of the bill was not to save the plaintiffs from financial loss, but was to enable the corporation to collect indirectly its debt in full against the trust company in liquidation;</p> <p>(4) The circumstances did not call for a departure from the general rule that equity, following the law, will not allow a set-off in different rights than is allowed by the statutes of set-off.</p>

<p>Contract, What constitutes. Evidence, Presumptions and burden of proof.</p> <p>If, at the trial of an action for .breach of an alleged contract for the purchase of certain advertising matter, it appears that an order for the materials was given by the defendant on a December 27 and bore upon its face a statement that it was “subject to acceptance by home office at Chicago” in the State of Illinois, and that on the January 6 following the giving of the order the defendant wrote to the plaintiff that he wished to cancel the order; and evidence of the plaintiff tending to show that the order was accepted by the “home office at Chicago” on January 2 is controverted by evidence of the defendant; a request for a ruling that on all the evidence the finding should be for the plaintiff properly may be refused, and a finding for the defendant is warranted.</p>

<p>Tort for personal injuries, with a declaration as amended alleging that the plaintiff “on account of the negligence of the defendant, by its servants, and agents, . . . was injured by a ball that struck her in the back.” Writ dated August 11, 1917.</p> <p>In the Superior Court, the action was tried before Sisk, J. Material evidence and exceptions saved by the plaintiff are described in the opinion. At the close of the evidence, the trial judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for personal injuries, with a declaration as amended in two counts set out in full in the opinion. Writ dated December 27,1919.</p> <p>The defendants demurred to the declaration. The demurrers were heard by Dubuque, J., and were sustained. Judgment was entered for the defendants; and the plaintiff appealed.</p>

<p>Certification to the Superior Court of a decision of the Industrial Accident Board finding and ruling, upon a petition by Ger-trade R Doyle for the approval of her fee of $909 for services rendered by her as masseuse to Newton Golden, who had received injuries on March 29, 1918, while employed by the Worcester Electric Light Company, that the case was “unusual” under Part II, § 5, of the workmen’s compensation act, “the injury of March 29, 1918, having resulted in complete atrophy of the employee’s right hand and arm and necessitating mediqal treatment by the petitioner,” that $606, allowing $2 per treatment, was a reasonable bill for the services, and that a charge of $606 was “approved for payment by the insurer.”</p> <p>In the Superior Court, by order of Lawton, J., a decreé was entered in accordance with the decision of the Industrial Accident Board. The insurer appealed.</p> <p>G. L. c. 152, §§ 8, 13, 30, are as follows:</p> <p>“Section 8. Such member shall make such inquiries and investigations as shall be deemed necessary. The hearing shall be held in the town where the accident occurred or in such other place as the department may designate; and the decision of the member, together with a statement of the evidence, his findings of fact, rulings of law, and other matters pertinent to questions arising before him, shall be held with the department. Unless a claim for review is filed by either party within seven days, the decision shall be enforceable under section eleven.”</p> <p>“Section 13. Fees of attorneys and physicians and charges of hospitals for services under this chapter shall be subject to the approval of the department. If the insurer and any physician or hospital, or the employee and any attorney, fail to agree as to the amount to be paid for such services, either party may notify the department, which may thereupon assign the case for hearing by a member thereof. The member shall report the facts to the department for decision, and the decision shall be enforceable under section eleven.”</p> <p>“Section 30. During the first two weeks after the injury, and, if the employee is not immediately incapacitated thereby from earning full wages, then from the time of such incapacity, and in unusual cases, in the discretion of the department, for a longer period, the insurer shall furnish adequate and reasonable medical and hospital services, and medicines if needed. The employee may select a physician other than the one provided by the insurer; and in case he shall be treated by a physician of his own selection, or where, in case of emergency or for other justifiable cause, a physician other than the one provided by the insurer is called in to treat the injured employee, the reasonable cost of his services shall be paid by the insurer, subject to the approval of the department. Such approval shall be granted only if the department finds that the employee was so treated by such physician or that there was such emergency or justifiable cause, and in all cases that the services were adequate and reasonable and the charges reasonable. In any case where the department is of opinion that the fitting of the employee with an artificial eye or limb, or other mechanical appliance, will promote his restoration to industry, it may order that he be provided with such an artificial eye, limb or appliance, at the expense of the insurer.”</p>

<p>Libel, filed in the Superior Court on August 13, 1920, for ■divorce on the grounds of cruel and abusive treatment and of gross and confirmed habits of intoxication caused by the voluntary •and excessive use of intoxicating liquor.</p> <p>There was no specification as to the grounds charged in the libel. The answer was a general denial and an allegation that, if either of the offences alleged was committed, it had been condoned by the libellant by continuance of cohabitation.</p> <p>In the Superior Court the libel was heard by Wait, J. Material evidence and rulings by the judge are described in the opinion. The judge ordered that the libel be dismissed; and the libellant alleged exceptions.</p>

<p>Negligence, Employer’s liability, Street railway. Practice, Civil, Charge to jury.</p> <p>At the trial of an action against a street railway company for personal injuries received by a conductor in charge of one of its cars when, by reason of defective braking apparatus, the car ran off the track, across a street pavement, over a curbing and against a building, there was evidence warranting findings that , the accident was caused by a defective condition of the braking apparatus, that the day before the accident the car had been “turned in” twice because of the condition of the braking apparatus, that on the day of the accident the car had been in use since seven o’clock in the morning, that, on two previous trips on that day the braking apparatus had worked properly but that, on the trip on which the accident had occurred, the brakes had not' worked properly; that the accident occurred at about ten o’clock in the morning. The judge in substance charged the jury that, while the defendant' was not an insurer of the plaintiff’s safety, its duty was to exercise ordinary care and prudence in furnishing him with a car safe for use and in keeping it in a safe-condition to work upon, and applied the instructions to the evidence and the issues involved in the case with particular reference to the condition of the . car on both days. The jury found for the plaintiff. Held, that</p> <p>(1) Even if it had been found that the car became “unsuitable and unsafe-while it was on the road” on the day of the accident and before notice of its. condition had come to the defendant, it could not properly have been ruled as a matter of law that the plaintiff could not recover, as it could also have-been found that the condition might have been caused by the negligent act or failure to act of the defendant in the way in which the repairing was done-on the previous day;</p> <p>(2) The instructions given were substantially correct and were not open to-the objection that they did not deal with the law governing the responsibility of the defendant with sufficient fulness; ,</p> <p>(3) A finding was warranted that the defendant had negligently furnished1 the plaintiff with a “ dangerous and improper car upon which to perform his-work” in that the car had defective air and hand brakes and “defective electrical apparatus insufficient to stop said car;”</p> <p>(4) A finding was warranted that the “street car and tbe brakes and machinery connected therewith were . . . negligently allowed ... to be in an unsafe, dangerous and unsuitable condition; ”</p> <p>. (5) Findings were warranted that the defendant had failed to provide the plaintiff with a reasonably safe and suitable car; and that it was negligent in failing to discover or remedy a defect therein;</p> <p>(6) It would not have been proper to have ruled as a matter of law that there was no evidence that the defendant had any notice of a defect in the car, if a defect existed, and that without proof of such notice and a failure to-repair the plaintiff could not recover.</p>

<p>Set-off. Corporation, Stockholder’s liability. Insolvency. Conflict of Laws.</p> <p>The right of a defendant to declare in set-off is remedial and is governed by the law of the place where the action is brought.</p> <p>In an action in this Commonwealth by a receiver, in possession under a decree of a court of competent jurisdiction of the property of an insolvent corporation incorporated under the laws of another State, to enforce against a stockholder his liability for an assessment due for a balance unpaid upon stock held by him, the stockholder has no right to set off a debt due to him from the corporation.</p>

<p>Bill in equity, filed in the Superior Court on July 10, 1919, and afterwards amended, on behalf of Mabel E. Puffer by George L. Wilson, her temporary guardian appointed by the Probate Court for the county of Middlesex, against Arthur G. Hazzard, Mary I. Hazzard, Bertha Hazzard, Annie Roland, William Hazzard, John H. Eacrett, Daniel C. Parsons, Cornelius J. O’Neil and William H. Lewis, alleging in substance that the plaintiff, while of unsound mind and through fraud of the defendants Hazzard, had conveyed to the defendant Arthur G. Hazzard, . who knew of her condition, without consideration, certain money and other personal property, and that certain portions thereof were conveyed by Arthur G. Hazzard to the other defendants severally, who had “full knowledge of the circumstances under which said Arthur G. Hazzard obtained” the property. The prayers of the bill were that the several conveyances be declared void and that the property be returned to the plaintiff.</p> <p>The suit was heard by Keating, J., a commissioner having been appointed under Equity Rule 35, who took and reported the testimony. Material evidence and findings of the judge are described in the opinion. By order of the judge a final decree was entered, dismissing the bill as to Mary I. Hazzard, Bertha Hazzard, Annie Roland and Daniel C. Parsons, adjudging the conveyances by the plaintiff to Arthur G. Hazzard void, and directing the other defendants to return to the plaintiff the property and money received by them severally, with interest, and the defendant Arthur G. Hazzard to return certain of the property and money still in his possession, with interest, and assessing costs againsfi Arthur G. Hazzard. The defendants appealed.</p>

<p>Conversion. Carrier, Of goods. Sale. Practice, Civil, Election of remedy. Election. Bailment. Damages, For breach of contract, Recoupment. Contract, Performance and breach. Evidence, Relevancy and materiality, Opinion: expert.</p> <p>By order of one, who had agreed to purchase certain second hand electrical arc lamps under a contract in writing by the provisions of which he paid a certain amount at once and agreed to pay the balance when the seller, an Illinois corporation, had “loaded the lamps, and before shipment,” the seller was directed to forward the lamps by a specified carrier “for delivery in Boston over” a railroad operating in Massachusetts "sight draft attached to bill of lading,” and, with the approval of the purchaser, the lamps were delivered to the initial carrier in Illinois by the seller, which received from it “a negotiable or order bill of lading in the usual form, approved by the Interstate Commerce Commission,” containing a provision, made applicable to all carriers taking part in the shipment, that “The surrender of this Original Order Bill of Lading shall be required before delivery of the property,” and the seller drew on the purchaser at sight for the amount of the balance of the purchase price and sent the draft with the bill of lading attached to a bank near Boston which notified the purchaser that it had the draft with the bill of lading attached. By reason of a failure of some employee of a carrier along the route of shipment to make a notation, customary in the circumstances, upon the way-bill, that the surrender of the bill of lading should be required before delivery, the employees of the final Massachusetts carrier had no notice of such requirement and the purchaser was able to and did claim and receive the lamps from the carrier after paying freight and demurrage charges and without paying the balance of the purchase price. The Massachusetts carrier thereupon brought against the purchaser an action for conversion of the lamps and, ten months later, after having received from the seller an assignment of its claim against the purchaser in return for a payment of the balance of the ■ purchase price in settlement of a claim the seller had made against it for wrongful delivery of the goods, the Massachusetts carrier brought a second action against the purchaser in contract based upon the assignment. The actions were tried together. The judge refused to require the plaintiff to elect as between the actions and to rule that, if the jury found a verdict for the plaintiff in one action, they should find for the defendant in the other. At the close of the evidence, it was stipulated and agreed, and the judge charged the jury, that, if there were judgments for the plaintiff in both actions, but one of them should be satisfied. Held, that</p> <p>(1) The bringing of the first action was not inconsistent with the right to prosecute an action on the contract originally vested in another person and founded on a distinct and independent right;</p> <p>(2) The plaintiff was not obliged to elect as between the actions;</p> <p>(3) The judge properly refused to instruct the jury that there could be a verdict for the plaintiff in one action only;</p> <p>(4) The first action not being based upon an assignment from the seller, requests in that action for rulings relating to a lack of such an assignment when the action was brought were not applicable and properly were refused;</p> <p>(5) The right in the plaintiff to possession of the goods under the provision of the bill of lading until the bill of lading properly was surrendered still existed although the plaintiff did not know of that provision and although it had received from the defendant payment of all freight and demurrage charges;</p> <p>(6) The plaintiff’s right to immediate possession as bailee or as agent entitled it to maintain the action for conversion against one whose taking was wrongful, although the plaintiff was not the general owner of the goods;</p> <p>(7) A finding being warranted that the defendant knowingly took wrongful possession'of the goods, no demand was necessary before bringing the action for conversion;</p> <p>(8) In the action for conversion, a belief on the part of the defendant, that his receipt of the goods was justified because of the plaintiff’s surrender of its actual possession, was no defence.</p> <p>In the action of contract above described, the defendant in his answer claimed in recoupment damages alleged to have been caused by breaches on the part of 'the seller of provisions of the contract of sale. There was a verdict for the plaintiff. The bill of exceptions did not purport to contain all the material evidence. So far as appeared, there was no evidence admitted bearing upon recoupment which entitled the defendant to go to the jury on that issue. Held, that exceptions by the defendant to refusals by the judge to grant requests for rulings relating to recoupment must be overruled.</p> <p>At the trial of the action of contract above described, evidence, offered by the defendant and tending to show notice by him to the seller, after he had received the goods and before the institution of the action, of claims by a third person, against him for failure to perform a contract of resale of the goods, made subsequently to his contract of purchase, and also evidence of damages which he was required to pay in settlement of the claim of such third person, properly was excluded, and requests of the defendant for rulings based on a contention that he should be allowed damages so sustained in recoupment properly were refused, because it did not appear that such losses sustained by the defendant grew out of the contract between the defendant and the plaintiff’s assignor nor that they were such as must have been in contemplation by the parties when that contract was made.</p> <p>The defendant, in the course of the trial above described, testified that he sold the material in the lamps. He was then asked in his own behalf. “What did you have to do before you sold the material, or what did you do?” The question was excluded subject to an exception by the defendant. No offer of proof, was made, and it did not appear that the subject matter of the question was relevant to any issue in either suit. Held, that no error appeared and the exception must be overruled.</p> <p>At the trial above described, a witness for the plaintiff testified that he had been in the business of selling new and second hand metals for twenty years; that he dealt in second hand arc lamps of the kind sold by the light company to the defendant, that they were well known lamps of standard form, and that he was familiar with their construction and value; and, subject to an exception by the defendant, he testified as to the metal contents of the lamps, that the copper and brass of which they largely consisted were scarce between the date of the contract and the time of the actual receipt of the property by the defendant, and that the price of metals during that time had an upward tendency. He also testified as to the fair market value of the lamps as junk. It appeared from the bill of exceptions, which did not purport to contain all the evidence, that the lamps described by the witness were, or might have been found to be, of the kind sold by the light company to the defendant and that they were of standard form. There was no evidence that the witness knew the date when these particular lamps were made, or that he had ever seen them. In his testimony, he assumed that the component parts of the lamps were as stated by the defendant. Held, that the admission of the opinion of the witness as to the amount of copper and brass contained in the lamps and as to the price thereof was a proper exercise of discretion by the judge; and that there was no error in the admission of the testimony.</p>

<p>Negligence, Motor vehicle, Causing death, In use of highway, Res ipso loquitur. Evidence, Presumptions and burden of proof, Admission, Res gestae, Competency, Absence of witness. Agency, Admission by conduct of agent, Scope of authority.</p> <p>At the trial of an action of tort against the owner of a motor truck for causing conscious suffering and the death of a child who was run into by the truck when it was being operated by an employee of the defendant, it appeared that, after the accident, the employee carried the child into a nearby building, placed him in charge of a man there, departed, and thereafter had not been seen by the defendant; that search had been made for him but he could not be found, and that he did not testify. Held, that</p> <p>(1) The conduct of the employee was not competent evidence of an admission against the defendant;</p> <p>(2) The employee’s conduct after the accident was not so connected with the accident as to be part of the res gestae.</p> <p>Section 24 of G. L. c. 90, making it a criminal offence for the driver of an automobile to go away without stopping and malting known his name, residence and the number of his vehicle after knowingly causing injury to a person, relates only to the operator and does not create any liability, criminal or civil, on the part of an owner who is not the operator.</p> <p>At the trial of the action above described, there was evidence tending to show that the street upon which the accident occurred' ran east and west, that at the place of the accident it was almost level and was straight for at least six hundred feet, that it was much travelled and that it bore a large volume of heavy trucking and other traffic; that just previous to the accident the decedent and other children were seen going west on the street about ten or fifteen yards from the defendant’s truck. A witness testified that the truck struck the decedent and stopped, leaving the child about ten feet behind it, but that he could not see what part of the truck struck the child. There was no other evidence of the conduct of the child or of the driver of the truck. Held,, that</p> <p>(1) The doctrine, res ipso loquitur, was not applicable;</p> <p>(2) The conduct of the driver of the truck was wholly conjectural, and the evidence did not warrant a finding for the plaintiff.</p>

<p>Frauds, Statute of. Contract, For sale of land. Agency, What constitutes. Auctioneer.</p> <p>From a report by the trial judge, after a verdict had been entered for the defendant in an action of contract by the owner of land against one J. O. for the amount at which, it was alleged, the land was struck off to the defendant at a public auction, the following facts appeared: The plaintiff had advertised in newspapers certain parcels of land and certain personal property for sale at public auction and had posted notices, the advertisements and notices stating in the English language, among other things, that certain buildings with twenty acres of land “east of highway” would be sold in one transaction and that meadow land would be divided into seven five-acre lots and sold separately, that the auction would occur at ten o’clock in the forenoon upon a certain day, and lunch at noon was advertised. The twenty acre tract with buildings was struck off to the defendant and the auctioneer’s clerk immediately wrote upon one of his loose sheets having no special caption in its order of sale, “J. O.—Real Estate — Home place — 812,300.” At the time of the sale the notice and advertisement were not mentioned and the auctioneer in stating the terms of the sale made no mention of them. The defendant saw the posted notices but could not read English. The defendant testified, “I see the house at the place where the auction was to be. Heard auctioneer sell the property. Auctioneer said he was going to sell home place. Was then to sell land on east side of road. The auctioneer sold some furniture before offering home place.” The record then contains this statement: “Immediately, after the close of the sale on that day, the auctioneer and the clerk went into the house and then, in the absence of the male defendant the auctioneer executed the instrument, of which the following is a copy: ‘ . . . Sold this day at auction home place of . . . [the plaintiff] to . . . [the defendant] he being the highest bidder at the auction. Price, $12,300. Signed by me as agent for seller and buyer.’” [Here followed the auctioneer’s signature]. Held, that</p> <p>(1) There was no evidence tending to connect .the advertisements and notices of the sale with the memorandum made by the auctioneer’s clerk, and that memorandum alone, containing no description of the property sold nor the name of the vendor, was insufficient to bind the defendant;</p> <p>(2) The report of the trial judge must be construed to mean that, after the home place was put up for sale first, the other seven five-acre lots were put up and sold and then, at the end of the entire sale of everything, both real and personal property, the auctioneer went into the house and made his memorandum;</p> <p>(3) The authority of the auctioneer to sign a memorandum in behalf of the purchaser was confined to the actual time of the auction and could not be exercised “after the close of the sale on that day;”</p> <p>(4) The memorandum made by the auctioneer was not binding upon the defendant;</p> <p>(5) The statute of frauds, G. L. c. 259, § 1, cl. 4, was an effectual defence to the action.</p>

<p>Contract, Novation, Validity, Consideration. Practice, Civil, Variance. Frauds, Statute of.</p> <p>A retail lumber corporation delivered certain lumber and building materials of the value of $1,478.63 to a contractor to be used by him in the construction of a garage for certain trustees. In the declaration in an action by the corporation against the trustees for the value of such merchandise it was alleged that one of the trustees agreed with the plaintiff to pay to it the amount of its claim against the contractor “from such funds as might be in his hands due . . . [the contractor] for the building of the garage” and that the plaintiff had agreed to look to the defendants for payment of its claim and not to prosecute its claim against the contractor and that it had discharged the contractor from liability. An officer of the corporation testified that the trustee told him "that he would take care of my account.” The attorney for the plaintiff testified that the trustee said to him “he would take care of the account” and on a later occasion “Do not worry about that, I will take care of it; you will get your money” and still later “not to worry about it, he would take care of the account.” At the close of the evidence the defendants filed a motion that a verdict be ordered for the defendants, which was denied. The judge also refused to rule as requested by the defendants either that “Upon all the evidence there is no evidence of a novation as alleged in the . . . declaration” or that “Upon all the evidence there is a variance between the allegations in the . . . declaration and evidence produced by the plaintiff.” Upon exceptions by the defendants it was held, that</p> <p>(1) While the defendants’ promise set forth in the count relied on was conditional, the promise actually proved was absolute and unconditional;</p> <p>(2) There plainly was a material variance between the allegation and the proof;</p> <p>(3) As the proof did not sustain the allegation, it followed that the defendants’ requests for rulings should have been given;</p> <p>(4) If the jury should find from the evidence, which warranted the finding, that the parties mutually agreed that the defendants should pay the plaintiff what the contractor owed it, and that the plaintiff accepted the defendants as its debtor in the place of the contractor and released the latter, such a contract would be valid;</p> <p>(5) The unconditional promise of the defendants to pay the plaintiff’s debt would be an original and not a collateral one and would not be within the statute of frauds;</p> <p>(6) The release of the contractor by the plaintiff would constitute a sufficient consideration for the defendants’ promise to the plaintiff..</p> <p>In the above described action it was held that the motion made by the defendants that a verdict be ordered for the defendants should have been granted, and a rescript was issued, “Exceptions sustained.”</p>

<p>Petition, filed in the Land Court on October 29, 1920, for the registration of the title to certain land in Salem.</p> <p>The land which is the subject matter of the petition is a part of the parcel sold at the execution sale which was the foundation of the title registered by the decision reported in Solomcos v. MacLachlan, 236 Mass. 402.</p> <p>In the Land Court the petition was heard by Corbett, J. Material facts found by him in a decision which did not purport to recite all of the evidence, are described in the opinion. The decision also stated, “No evidence was introduced showing that the subsequent attaching creditor had actual knowledge of the prior attachment.” The respondent made the following requests for rulings, which were annexed to the judge’s decision:</p> <p>“1. The attachment made in the Wadsworth suit on January 4, 1915, was a valid attachment of the real estate of said respondent MacLachlan (then Jewett) and remained a valid attachment until thirty days after final judgment was entered for plaintiff in said Wadsworth case on November 20, 1919.</p> <p>“2. At the time the attachment of respondent’s land was made in the Quinn case on September 29, 1916, the Wadsworth attachment was a valid outstanding prior attachment.</p> <p>“3. At the time the premises, title to which the petitioner seeks to register, were sold on execution on December 19, 1917, under a judgment recovered in the Quinn case, the Wadsworth attachment referred to in requests 1 and 2 was a valid outstanding prior attachment.</p> <p>"4. The sale on execution to Sheehan under the judgment in the Quinn case was invalid.</p> <p>“5. Sheehan acquired no title under the sheriff’s deed dated December 21, 1917, and recorded with Essex South District Deeds Book 2381, Page 403.</p> <p>“6. The return of the sheriff on the Wadsworth writ showing a real estate attachment and deposit of copy in registry of deeds is conclusive and cannot be contradicted or impeached by showing a variance in the copy actually deposited in the registry of deeds.</p> <p>“7. The certificate from the clerk of the Superior Court in Suffolk County filed in the registry of deeds on January 2, 1919, stating that his dockets showed no entry of an action brought by Wadsworth against Jewptt had no effect on the Wadsworth attachment; and said attachment still remained a valid attachment after the filing of such certificate.”</p> <p>The judge stated in his decision that he refused the requests and found that the execution sale was valid. Relating to the contention of the respondent in the sixth request, the judge stated in his decision that “This is undoubtedly true as to the parties to that action and their privies and possibly — as against all having actual or constructive notice thereof.” A decree was entered for the petitioner; and the respondent appealed.</p>

<p>Practice, Ovdl, Exceptions: petition to establish.</p> <p>The averments in a petition filed in this court to establish exceptions in substance were that at a trial of an action of tort brought by the petitioner wherein a verdict was returned for the defendant on each count in the declaration, the petitioner saved certain exceptions and seasonably presented a bill of exceptions to the trial judge; that the judge refused to allow the bill and struck out some of the exceptions as stated therein and ordered the petitioner to draw a substitute bill of exceptions omitting the objectionable parts; that the petitioner did draw up such substitute bill, which was allowed by the judge; that thereafter the petitioner filed a bill of exceptions to the allowance of the substitute bill of exceptions, inserting therein the exceptions stricken out of his original bill and not allowed; and thereafter such bill of exceptions to the allowance of the substitute bill of exceptions was presented to the judge and allowance refused. Held, that the petition did not conform to G. L. c. 231, § 117.</p> <p>A petition filed in this court for the establishment of exceptions must relate to the exceptions originally filed and disallowed.</p> <p>The filing of a substitute bill of exceptions is in effect a waiver of matters not included therein.</p> <p>A petition filed in this court for the establishment of an alleged exception of the plaintiff in an action in which the jury returned a verdict for the defendant on each count in the declaration cannot be maintained where the only exception set forth in the petition as having been disallowed relates to the exclusion of evidence concerning damages.</p> <p>A motion to amend a petition filed in this court to establish exceptions by adding thereto a copy of a substitute bill of exceptions, which in the Superior Court was allowed and later was dismissed, is unwarranted in law and cannot be allowed nor considered.</p> <p>A petition to establish exceptions is and ought to be denied when it is manifest that, if allowed, the alleged exception necessarily would be overruled, or that it would not be considered because immaterial.</p>

<p>Bill in equity, filed in the Superior Court on August 8, 1919, originally against John W. Cawley, a stockbroker, and Metropolitan Trust Company, and, after the appointment by the District Court of the United States for the District of Massachusetts of receivers of the property of the defendant Cawley in involuntary proceedings against him, and again after the appointment of trustees in bankruptcy, amended respectively to include the receivers and the trustees as defendants. The prayers of the bill were to reach the proceeds in the possession of Metropolitan Trust Company of the sale of certain bonds originally placed by the plaintiff in the hands of Cawley.</p> <p>No defendant in any form of pleading set up as a defence nonjoinder of necessary parties.</p> <p>In the Superior Court, the suit was heard by Hammond, J. Material facts and rulings and an order for a decree made by him are described in the opinion. In accordance with such order, a'final decree dismissing the bill “without prejudice to any remedy which the plaintiff may have by proceedings in the District Court of the United States” was entered by order of' Wait, J. The plaintiff appealed.</p>

<p>Judgment. Practice, Civil, Vacating judgment, Motion to set aside verdict. Bond. Waiver. Estoppel.</p> <p>An action of contract, which was begun by a writ dated May 5,1913, was referred to an auditor who held hearings, some of which were within two years previous to October 2,1916. On that date the action was dismissed under Rule 63 of the Superior Court and an entry was made upon the docket of that court, “dismissed, no action.” Held, that the dismissal of the action on October 2, 1916, was a final judgment in the case.</p> <p>A petition was filed on May 11, 1917, to vacate a judgment entered in an action of contract in the Superior Court on October 2, 1916, dismissing the action under Rule 63 of that court. The ground of the petition was that hearings, had been held before an auditor within two years previous to the date of dismissal. The petition was allowed but no bond was filed as required by R. L. c. 193, § 17, G. L. c. 250, § 17. Held, that the petition was seasonably filed and was sufficient in substance to warrant the favorable action of the court, which was largely discretionary.</p> <p>In an action of contract where, in May, 1917, a petition to vacate a judgment dismissing the action under Rule 63 of the Superior Court entered on October 2, 1916, was allowed but the bond required by R. L. c. 193, § 17, G. L. c. 250, § 17, was not filed-and thereafter a rule to an auditor, to whom the action was-referred in 1914, was discharged,, a motion by the plaintiff for a jury trial was allowed, a trial by jury was had and a verdict was rendered for the plaintiff on March 11, 1921. The defendant three days later filed a motion to set the verdict aside on the ground that the judgment of October 2, 1916, had never been vacated because no bond had been filed. Held, that</p> <p>' (1) If objection to the failure to file the bond, or to the entry of the order of vacation of judgment before the filing of the bond, had been taken seasonably, it would have been necessary to reverse that action of the court and to remand the action to the Superior Court for further proceedings;</p> <p>(2) There is no limit of time set in it. L. c. 193, § 17, G. L. c. 250, § 17,- for the filing of the bond, provided the petition to vacate the judgment is seasonably filed;</p> <p>(3) It would seem to be within the power of the court to approve the bond nunc pro tune as of a time previous to the proceedings taken by the parties without objection after the entry of the order vacating the judgment;</p> <p>(4) The defendant by his conduct in going forward with the trial had waived the right to complain of the failure to file the bond so far as it was possible for him to do;</p> <p>(5) The conduct of the defendant in going forward with the trial by jury without objection had gone far toward estopping him from raising the question of failure to file a bond;</p> <p>(6) If the motion were granted and all intervening proceedings were set aside, the Superior Court still would have jurisdiction of the petition to vacate the judgment of October 2, 1916;</p> <p>(7) The motion to set aside the verdict should be denied.</p> <p>No matter can be raised as of right pif a motion to set aside a verdict if it might have been presented at the trial.</p>

<p>Commonwealth. Commissioner of Banks. Trust Company, In liquidation. Statute, Construction. Equity Pleading and Practice, Parties, Petition to intervene. Supreme Judicial Court, Amicus curiae.</p> <p>The commissioner of banks is an executive and administrative officer with powers and duties defined by statute, and, when he is in possession of the property and business of a trust company under G. L. c. 167, § 22, he acts in all particulars as a public officer and not as a receiver appointed by a court.</p> <p>It is a general principle of statutory construction that, when legislation covers an entire field, previous provisions either of the common law or of statutory law in conflict therewith become no longer operative.</p> <p>The General Court has dealt' comprehensively with the subject of liquidation of banks and has established all the preferences among creditors intended to exist.</p> <p>The Commonwealth as a creditor in the commercial department of a trust company, of whose property and business the commissioner of banks has taken possession under G. L. c. 167, § 22, should not be given a preference over other general creditors of the trust company.</p> <p>In a bill in equity by the Commonwealth against the commissioner of banks, in possession under G. L. c. 167, § 22, of the property and business of a trust company, seeking a decree that a debt, admitted by the commissioner to be due to the Commonwealth in the commercial department of that bank, be preferred before all general debts of the bank except those due the United States, the commissioner is the representative both of the trust company and of all depositors other than the Commonwealth, and neither the trust company nor the depositors are necessary parties.</p> <p>Upon a reservation for determination by this court of three suits of the above description, relating to the affairs of three trust companies, upon the bills, answers of the commissioner and petitions to intervene by creditors in the commercial departments of the banks and by one of the trust companies, it was stated that the question, whether in the exercise of sound judicial discretion the petitions to intervene ought to be allowed, was not presented. The petitioners, however, were treated by this court so far as concerned the main issue as amici curiae and full consideration was given to their arguments and briefs.</p>

<p>Municipal Corporations. Trust Company, In liquidation.</p> <p>A city or town, as a creditor in the commercial department of a trust company of whose property and business the commissioner of banks has taken possession under G. L. c. 167, § 22, should not be given a preference over general creditors of the trust company. Following Commonwealth v. Commissioner of Banks, ante, 244.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 26, 1921, and afterwards amended, by the commissioner of banks, seeking instructions whether, in his administration of the affairs of Cosmopolitan Trust Company, of whose property and business he had taken possession under St. 1910, c. 399, § 2, a return by him of cash in the amount of $607,005 from the commercial department to the savings department in the circumstances described in the opinion “was in accordance with the laws which govern the rights of the respective creditors of the said trust company,” and, if such return “was in accordance with the law,” that the court authorize the “transfer by a decree which shall be entered as of January 7, 1921,” which was the date when the plaintiff made the transfer.</p> <p>The suit was heard by Carroll, J., by whose order on February 4, 1921, a decree was entered as of January 26, 1921, that the plaintiff was “authorized and empowered to pay over and transfer from the general funds of said Cosmopolitan Trust Company to the savings department of the Cosmopolitan Trust Company $607,005 in cash.” Thereafter by consent the single justice allowed the filing nunc fro tune as of February 3, 1921, of a substituted petition and of appearances and answers by the Cosmopolitan Trust Company and by the Old Corner Book Store, Inc., a depositor in the commercial department of the Cosmopolitan Trust Company, appearing and answering in behalf of itself and of other depositors in the commercial department of the Cosmopolitan Trust Company, similarly situated, and reported the case “in so far as I have authority to do so” for determination by the full court of the following questions:</p> <p>“(1) As to the right of the Cosmopolitan Trust Company to appear and be heard upon this petition;</p> <p>“ (2) As to the right of the Old Corner Book Store, Inc., as a depositor in the commercial department to appear and be heard upon this petition on behalf of itself and other depositors in the commercial department of said Cosmopolitan Trust Company similarly situated; and</p> <p>“ (3) As to the correctness of the decree as entered.”</p>

<p>Bill in equity, filed in the Probate Court for the county of Middlesex on September 2, 1919, by trustees under the will of Bryan O’Loughlin, for instructions as to whether they should pay over and distribute personal property held by them in trust to the administrator of the estate of Mary A. O’Loughlin or to the heirs at law and next of kin of the testator.</p> <p>The suit was heard in the Probate Court by L. E. Chamberlain, J., by whose order a decree was entered ruling that “so much of said trust estate as is real estate descended to her [Mary A. O ’Loughlin’s] heirs, and so much of said trust estate as is personal property is now payable to her administrator,” and directing distribution accordingly. The heirs and next of kin of the testator appealed.</p>

<p>Tort for personal injuries, received from the breaking of a stepladder owned by the defendants upon which the plaintiff, while in their employ, was standing to repair an awning. Writ dated February 7, 1919.</p> <p>In the Superior Court the action was tried before Keating, J. The material evidence is described in the opinion.</p> <p>At the close of the evidence the defendants moved that a verdict be ordered in their favor and also sought instructions that, in the circumstances, the plaintiff had assumed the risk of his injury. The judge denied the motion and refused to give the requests. The jury returned a verdict for the plaintiff in the sum of $3,000; and the defendants alleged exceptions.</p>

<p>Information, filed by the Attorney General on October 27, 1921, under G. L. c. 211, § 4, and supported by affidavits of the Attorney General, of Henry N. Sheldon, Esquire, and of Albert Hurwitz, Assistant Attorney General, containing allegations which, as amplified by specifications afterwards filed, were in substance as follows:</p> <p>Joseph C. Pelletier, the respondent, on November 2, 1909, was elected a District Attorney for the Suffolk District and qualified as such on November 13, 1909, to serve out the unexpired term of John B. Moran, deceased. He was elected again to that office on November 8,1910, and qualified on January 2,1911, and thereafter continued in that office and on the date of the filing of the information was holding the office by election thereto and qualification therein for successive terms, having been last elected on November 4,1919, and having last qualified therein on January 8, 1920. From that office the informant alleged that the respondent should be removed and in support of that allegation he set forth acts and doings of the respondent since November 13, 1909, which were relied on by the informant as showing the respondent to have been guilty of malfeasance, misfeasance, and nonfeasance in his office, as having conducted himself in his office in an unlawful and reprehensible manner and to be an unfit person to hold that office, so that the public good required his removal; and the specifications of such unfitness, malfeasance, misfeasance and nonfeasance, which were relied upon at the hearing on the merits, were as follows:</p> <p>1. In or about September, 1916, the respondent conspired with one Daniel H. Coakley, a member of the bar of this Commonwealth, and other persons, to extort from the Emerson Motors Company, or from divers persons engaged in promoting that company, or from both such persons and the company, a large sum of money by threats of criminal prosecution.</p> <p>2. In or about September, 1916, the respondent did permit and promote the making of threats of criminal prosecution against the Emerson Motors Company and against divers persons engaged in promoting that company, and such persons in fear of the criminal prosecutions so threatened did pay out or procure to be paid out large and divers sums of money, to wit: $20,500, to Daniel H. Coakley in order to procure the discontinuance and abandonment of the criminal prosecutions; and the respondent did thereupon discontinue and abandon the criminal prosecutions, whereby he did wilfully and unlawfully abuse the authority of his office and knowingly did permit the same to be made the instrument of fraud and extortion.</p> <p>3. In or about September, 1916, the respondent conspired with Daniel H. Coakley and other persons to extort from the Emerson Motors Company or from divers persons engaged in promoting that company, or from both together, a large sum of money by threats of criminal prosecution, and the respondent, pursuant to such conspiracy, did permit and promote the making of threats of criminal prosecution against those persons, and they, in fear of the criminal prosecutions so threatened did pay out, or procure to be paid out, large and divers sums of money, to wit: $20,500, to Daniel H. Coakley in order to procure the discontinuance or abandonment of the criminal prosecutions, which prosecutions the respondent did thereupon discontinue pursuant to the conspiracy, whereby the respondent did wilfully and unlawfully abuse the authority of his office and did permit it to be made the instrument of fraud and extortion.</p> <p>4. In or about September, 1916, the respondent corruptly aided and abetted Daniel H. Coakley and other persons to obtain from the Emerson Motors Company or from divers persons engaged in promoting it, or from both together, a large sum of money, to wit: $20,500, by means of threats of criminal prosecution which he, the respondent, did knowingly permit and promote to be made with intent.to aid Daniel H. Coakley and other persons so to obtain money; whereby the respondent did wilfully and unlawfully abuse the authority of said office and did permit it to be made the instrument of fraud and extortion.</p> <p>5. In or about September, 1916, the respondent was guilty of malfeasance, misfeasance and nonfeasance in his office in that he did either permit and promote the making of groundless threats of criminal prosecution against divers persons engaged in promoting the Emerson Motors Company, or else, having at hand or available by reasonable effort sufficient evidence for the proper prosecution of criminal charges against such persons, did from improper motives fail to prosecute those charges, whereby he did either wilfully abuse the authority of his office" or did wilfully fail to discharge the duties thereof.</p> <p>6. In or about November, 1916, the respondent conspired with Daniel H. Coakley and other persons to extort from one Warren C. Daniel, a dealer in securities, a large sum of money by threats of criminal prosecution for offences against the laws of this Commonwealth.</p> <p>7. In or about December, 1916, the respondent did permit and promote the making of threats of criminal prosecution against Warren C. Daniel and divers other persons, in order to frighten Daniel into paying a large sum of money, to wit: $10,000, to Coakley, whereby the respondent did wilfully and unlawfully abuse the authority of his office and did permit it to be made the instrument of fraud and extortion.</p> <p>8. In or about November, 1916, the respondent conspired with Daniel H. Coakley and other persons to extort from Warren C. Daniel a large sum of money by threats of criminal prosecution against Daniel and other persons, and pursuant to such conspiracy did permit and promote, the making of threats of criminal prosecution against Daniel and divers other persons in order to frighten Daniel into paying a large sum of money, to wit: $10,000, to Coakley, whereby the respondent did wilfully and unlawfully abuse the authority of his office and permit it to be made the instrument of fraud and extortion.</p> <p>9. In or about November, 1916, the respondent corruptly aided and abetted Daniel H. Coakley and divers other persons in an attempt to obtain from Warren C. Daniel and divers other persons a large sum of money, to wit: $10,000, by means of threats of criminal prosecution, which the respondent did knowingly permit and promote to be made with intent to aid Coakley and other persons in the attempt so to obtain the money whereby he, the respondent, did wilfully and unlawfully abuse the authority of his said office and did permit it to be made the instrument of fraud and extortion.</p> <p>10. In or about November, 1916, the respondent was guilty of malfeasance, misfeasance and nonfeasance in his office in that he did either permit and promote the making of groundless threats of criminal prosecution against Warren C. Daniel, or else, having at hand or available by reasonable effort evidence sufficient for the proper prosecution of the charges against Daniel, did from improper motives fail to prosecute such charges, whereby he did either wilfully abuse the authority of his office or did wilfully fail to discharge the duties thereof.</p> <p>11. In or about March, 1918, the respondent did conspire with Daniel H. Coakley .to cause one Dorothy Cote, by threats of criminal prosecution, to abandon a suit for the conversion of an automobile.</p> <p>12. In or about March, 1918, the respondent did permit and promote the making of threats to institute criminal prosecution against Dorothy Coté unless she would abandon her action for the conversion of an automobile, and she, in fear of the criminal prosecution so threatened, did thereupon abandon her action for the conversion of an automobile, and did release the same to one Lawrence, a client of Daniel H. Coakley, whereupon Coakley notified the respondent that he, Coakley, desired the respondent to stop the threatened prosecution against Dorothy Coté, and thereupon the respondent did from improper motives abandon and stop the threatened prosecution, whereby he did abuse the authority of his office and did knowingly permit the same to be. made the instrument of fraud and extortion.</p> <p>13. In or about March, 1918, the respondent conspired with Daniel H. Coakley to cause Dorothy Coté, by threats of criminal prosecution to abandon a suit for the conversion of an automobile. Pursuant to such conspiracy the respondent did permit and promote the making of threats of criminal prosecution against Dorothy Coté, and she, in fear of the criminal prosecution so threatened, did abandon the suit for the conversion of an automobile, and did release the same to one Lawrence, a client of Coakley, whereupon the respondent did from improper motives and at the request of Coakley abandon the threatened prosecution of Dorothy Coté, whereby the respondent did abuse the authority of his said office, and did knowingly permit the same to be made the instrument of fraud and extortion.</p> <p>14. In or about March, 1918, the respondent corruptly aided and abetted Daniel H. Coakley and other persons to frighten Dorothy Coté into abandoning a certain suit for the conversion of an automobile by threats of criminal prosecution which the respondent did knowingly permit and promote to be made with intent to aid Coakley, whereby the respondent did unlawfully and wilfully abuse the authority of his office and permit it to be made the instrument of extortion and fraud.</p> <p>15. In or about March, 1918, the respondent was guilty of malfeasance, misfeasance and nonfeasance in his office in that he did permit and promote the making of groundless threats of criminal prosecution against Dorothy Coté, or else, having at hand or available by reasonable effort evidence sufficient for the proper prosecution of the charges against her, did from improper motives fail to prosecute such charges, whereby he did either wilfully abuse the authority of his office or did wilfully fail to discharge the duties thereof.*</p> <p>21. In or about October, 1915, the respondent conspired with Daniel H. Coakley and William J. Corcoran, at that time District Attorney for the Northern District, and other persons, to extort from one Curtis Wilson Emery and Elizabeth Emery, wife of Curtis Wilson Emery, and Jennie S. Chase, mother of Elizabeth Emery, and other persons, a large sum of money by threats of criminal prosecution.</p> <p>22. In or about October, 1915, the respondent did permit and promote the making of threats of criminal prosecution with intent to aid Daniel H. Coakley in an attempt to extort a large sum of money from Curtis Wilson Emery, from Elizabeth Emery, wife of Curtis Wilson Emery, and Jennie 8. Chase, mother of Elizabeth Emery, whereby the respondent did wilfully and unlawfully abuse the authority of his office and did permit it to be made the instrument of fraud and extortion.</p> <p>23. In or about October, 1915, the respondent conspired with Daniel H. Coakley, William J. Corcoran, at that time District Attorney for the Northern District, and other persons to extort from Curtis Wilson Emery, Elizabeth Emery, wife of Curtis Wilson Emery, Jennie S. Chase, mother of Elizabeth Emery, and other persons, by means of threats of criminal prosecution. Pursuant to such conspiracy the respondent did permit and promote the making of threats of criminal prosecution in order to frighten the Emerys and Mrs. Chase into paying a large sum of money to procure the discontinuance of the threatened prosecution, whereby the respondent did wilfully and unlawfully abuse the authority of his office, and did permit it to be made the instrument of fraud and extortion.</p> <p>24. In or about October, 1915, the respondent did corruptly aid and abet Daniel H. Coakley, William J. Corcoran, at that time District Attorney for the Northern District, and other persons, in an attempt to obtain a large sum of money from Curtis Wilson Emery, Elizabeth Emery and Jennie S. Chase by threats of criminal prosecution, which the respondent did knowingly permit and promote to be made with intent to aid Daniel H. Coakley, William J. Corcoran, and other persons in the attempt so to obtain the money as aforesaid, whereby the respondent did wilfully and unlawfully abuse the authority of his office and did permit it to be made the instrument of fraud and extortion.</p> <p>25. In or about October, 1915, the respondent was guilty of malfeasance, misfeasance and nonfeasance in his office in that he either did permit and promote the making of groundless threats of criminal prosecution, and further did institute certain groundless criminal proceedings with intent to aid Daniel H. Coakley, William J. Corcoran, and other persons in an attempt to obtain a large sum of money from Curtis Wilson Emery, Elizabeth Emery, and Jennie S. Chase, or else, having at hand or available by reasonable effort evidence sufficient for the proper prosecution of criminal proceedings, did from improper motives fail to prosecute such proceedings, whereby he did either wilfully abuse the authority of his office or did wilfully fail to discharge the duties thereof.</p> <p>26. The respondent did from improper motives wilfully fail to prosecute one Merrill W. Shute, who had embezzled the sum of about $15,000 from an aged woman, Emma F. Brackett, of Bangor, Maine. Shute had confessed to the crime in the presence of reliable witnesses. The respondent had caused him to be indicted for embezzlement and afterwards from improper motives entered a nolle prosequi as to the indictment.</p> <p>27. The respondent knowingly made false statements to one H. H. Patten and one William H. Powell, counsel for Emma F. Brackett, concerning the matter described in the preceding paragraph and caused certain entries on the criminal docket relating thereto to be altered.</p> <p>28. The respondent did from time to time knowingly permit divers persons to use the authority of his office for the purpose of coercing divers other persons to release or settle civil claims or to give up money or property or both, whereby the respondent did knowingly abuse the authority of his office and did knowingly permit the same to be abused. In further specification as to the offences charged in this paragraph, the informant named the following cases, and afterwards offered evidence relating thereto: Emerson Motors Company case, more fully described in paragraphs 1 to 5, inclusive; Warren C. Daniel case, more fully described in paragraphs 6 to 10, inclusive; Dorothy Cote case, more fully described in paragraphs 11 to 15, inclusive; cases of Curtis Wilson Emery, Elizabeth Emery, and Jennie S. Chase, more fully described in paragraphs 21 to 25, inclusive; Frank Peters; Myer Berman; Walter A. Buckley; Benjamin Piscopo; Edward C. Tripp, on or about July, 1915; Charlotte Broad, on or about October, 1916.</p> <p>29. In divers cases the respondent knowingly aided and abetted divers persons in extorting or attempting to extort money or property from divers other persons by threats of criminal prosecution. In further specification as to the offences charged in this paragraph the informant named the following cases as to which he afterwards offered evidence: Emerson Motors Company case, more fully described in paragraphs 1 to 5, inclusive; Warren C. Daniel case, more fully described in paragraphs 6 to 10, inclusive; Dorothy Coté case, more fully described in paragraphs 11 to 15, inclusive; cases of Curtis Wilson Emery, Elizabeth Emery and Jennie S. Chase, more fully described in paragraphs 21 to 25, inclusive; Frank Peters, indicted for assault with intent to rape, date of alleged commission of offence on or about June, 1916; Myer Berman, on or about November, 1916; Walter A. Buckley, on or about January and February, 1917; Benjamin Piscopo, 1917 or 1918; Edward C. Tripp, on or about July, 1915; Charlotte Broad, on or about October, 1916.</p> <p>30. In divers cases the respondent, having sufficient evidence in his possession or available by reasonable effort, from improper motives failed to prosecute or cause to be prosecuted by his assistants persons who had committed crime within his jurisdiction. In further specification of the offences charged in this paragraph the informant named the following cases, as to which he afterwards offered evidence: Israel Mancovitz, with several aliases, charged with burglary, breaking and entering, receiving stolen goods, possession of burglar’s tools, and larceny, fourteen offences, alleged to have been committed on or about December, 1919, to March, 1920; Alfred Soracco, charged with maintaining a liquor nuisance, on or about February, 1921; Merrill W. Shute, charged with larceny, the crime being more fully described in paragraph 26; Israel M. Szathmary and Alice M. Gederman, charged with adultery, alleged to have been committed on or about February, 1920; John Prendergast, charged with accosting, on or about April 17, 1916; George T. Perry et al., crime of larceny, on or about December, 1918.</p> <p>31. The respondent in violation of his oath of office from improper motives entered a nolle prosequi, or permitted assistant district attorneys to do so, as to cases which should have been prosecuted. In further specification of the offences charged in this paragraph, the informant set forth the following instances: Isaac Gordon, charged with keeping a house of ill fame on or about September and October, 1919; Thomas Nee, with several aliases, charged with an attempt to break and enter in the nighttime on or about December 31,1920; Mary Fuller, alias “Brownie” Kennedy, alias Lillian Dale, charged with keeping a house of ill fame, and of fornication on or about November, 1916; Arthur L. Stone, charged with adultery on or about March 6, 1920.</p> <p>32. The respondent with witnesses at hand or available so that by reasonable effort he could have obtained information required for the proper prosecution of cases, wilfully closed his eyes to his duty and withheld proper evidence and neglected to introduce proper evidence, or knowingly permitted assistant district attorneys so to do, thereby wilfully failing to discharge the duties of his said office. In further specification as to the offences charged in this paragraph, the informant named the following cases, as to which he introduced evidence: Israel Mancovitz, with many aliases, fourteen cases, including charges of burglary, breaking and entering, receiving stolen goods, possession of burglar’s tools, larceny, committed on or about December, 1919, to March, 1920; Alfred Soracco, charged with maintaining a liquor nuisance on or about February, 1921; Merrill W. Shute, charged with the crime of larceny, as more fully described in paragraph 26; Israel M. Szathmary and Alice M. Gederman, charged with adultery on or about February, 1920.</p> <p>33. The respondent from improper motives himself or by his assistants procured indictments which ought not to have been procured. In further specification as to the offences charged in this paragraph, the informant named the following cases, as to which he introduced evidence: Ralph H. Robb, Curtis W. Emery and Andrew Le Clair, charged with conspiracy to accuse of crime on or about January, 1916; Frank Peters, charged with assault with intent to rape on or about June, 1916.</p> <p>34. The respondent knowingly permitted his assistants to abuse the authority of his office, and nevertheless retained them in office with knowledge of their misconduct. In further specification of instances of dereliction from duty in the particulars described in this paragraph, the informant named the following cases, as to which he introduced evidence: Israel Mancovitz, with many aliases, charged with fourteen offences of burglary, breaking and entering, receiving stolen goods, possession of burglar’s tools, and larceny on or about December, 1919, to March, 1920; Thomas Nee, with many aliases, charged with an attempt to break and enter in the night time on or about December 31, 1920; Alfred Soracco, charged with maintaining a liquor nuisance on or about February, 1921.</p> <p>35. The respondent knowingly permitted his assistants to fail to discharge the duties of his office and nevertheless retained them in office with knowledge of their neglect of duty. In further specification of instances of derelictions from duty of the nature described in this paragraph, the informant named the following cases, as to which he introduced evidence: Israel Mancovitz, with many aliases, charged with fourteen offences of burglary, breaking and entering, receiving stolen goods, possession of burglar’s tools, and larceny on or about December, 1919, to March, 1920; Thomas Nee, with many aliases, charged with an attempt to break and enter in the night time on or about December 31, 1920; Alfred Soracco, charged with maintaining a liquor nuisance on or about February, 1921.</p> <p>On November 17, 1921, the respondent moved that hearings in the cause be postponed to January 22, 1922, and the Attorney General moved for a speedy completion of the pleadings and a hearing. The motions were heard by Rugg, C. J., Braley, Crosby, Carroll, & Jenney, JJ., and on the next day it was ordered that the respondent file on or before November 23, 1921, whatever motion for specifications as to matters charged in the information, or other special pleading to the information he might desire to file; and that the Attorney General file on or before November 26, 1921, such further specifications or other pleading in view of motion for specifications or other special pleading so to be filed by the respondent.</p> <p>On November 18, 1921, by reason of a statement made to the court by the Attorney General on the preceding day and the attendant circumstances, the court made the following order:</p> <p>“Whereas the Attorney General called to the attention of the court on November 17, that the respondent made a statement in a public speech to the effect, in substance, Tf anybody tells you Pelletier’s going to withdraw, tell him he’s wrong. If he persists, tell him he’s a liar. If he is n’t convinced, back it up with your fists and I ’ll nol pros the case,’ the Attorney General saying that the fact of the making such statement by the respondent was supported by affidavit; and whereas the respondent made no reply on November 17 to the statement thus made in his presence to the court by the Attorney General; and whereas the respondent in open court on the present date, being given liberty to make any statement which he desired concerning that particular matter, said he did not desire then to make any reply or statement concerning the same; it is ordered that the Attorney General, having orally called this matter to the attention of the court, bring it as matter of record before the court either by amendment to the present information, by a new information or in such other appropriate manner as he may determine.”</p> <p>In accordance with the foregoing order, the Attorney General on November 21, 1921, filed an</p> <p>Additional Information, verified by his own oath, specifying as additional acts of the respondent rendering him unfit for his office, the following:</p> <p>“1. That at a public meeting held in Boston on the evening of November 15, 1921, said Pelletier publicly addressed divers persons gathered at said meeting, and while he was addressing said persons as aforesaid said, ‘There is a dirty low down propaganda going throughout the city I am going to resign. Tell the man who tells you that he is wrong. If he persists tell bim he is a liar. Back it up and I will nol pros case.’ And that at the conclusion of said address said Pelletier further made the following statement, ‘I am not making any cheap political speech. I am giving you facts. ’</p> <p>“2. That at another public meeting, held on November 9, 1921, in the Municipal Building, South Boston, said Pelletier publicly addressed divers persons gathered at said meeting, and while he was addressing said persons as aforesaid said, in substance, ‘If any one tells you I am going to withdraw from this contest call him a liar, back it up and IT nol pros your case/ ”</p> <p>On November 23, 1921, the respondent filed an answer to the additional information admitting that he was District Attorney for the Suffolk District and that he held that office by election thereto and qualification therein, and denied that he had been guilty of malfeasance, misfeasance, and nonfeasance in his office, that he had conducted himself in his office in an unlawful and reprehensible manner, and that he was an unfit person to hold that office; and denied “each and every allegation and particular set forth in each and every paragraph of the specifications annexed to the said additional information.”</p> <p>On December 12, 1921, the respondent filed an answer to the first information in substance as follows:</p> <p>“1. Now comes Joseph C. Pelletier, appearing specially and without waiving any rights asserted in any other pleading in this case or in any other case and without acknowledging the jurisdiction of the . . . court or any of the justices thereof to hear the matters contained in the information filed herein and for answer says:</p> <p>“2. That neither the Supreme Judicial Court nor. a majority of the justices thereof nor any of them has any jurisdiction to hear and determine the question of his fitness to hold the office of District Attorney for the Suffolk District of said Commonwealth or to decide the question as to whether the public good requires his removal from said office because the law under which the information is brought and under which the power of the court to determine the question of the removal of said Pelletier from the said office is invoked is unconstitutional and void as against the ninth article of the Bill of Rights of the Inhabitants of the Commonwealth in that it tends to interfere with the freedom of elections find the right of the inhabitants of the Commonwealth to elect officers and to be elected for public employments and as against the eighth article of the second section and the sixth article of the third section of the first chapter of the Frame of Government of the People of the Commonwealth in that said statute purports to provide a method for the removal of officers of the Commonwealth different from that provided by the Frame of Government in the before-named sections, to wit: impeachment by the House of Representatives and hearing and determination by the Senate.</p> <p>“3. The said statute is unconstitutional and void as against the thirtieth article of the Bill of Rights in that it purports to give the judicial department the right to exercise legislative powers which are specifically reserved to the legislature by the Constitution.</p> <p>“4. The said statute is unconstitutional and void as against the twelfth article of the Bill of Rights in that it purports to give the justices of the Supreme Judicial Court or a majority of them the power to deprive persons of their property, immunities, privileges, and estate otherwise than by the judgment of their peers or the law of the land.</p> <p>“5. The said statute is unconstitutional and void as against the fourteenth article of the Articles in Amendment of the Constitution of the United States of America in that it purports to give the justices of the Supreme Judicial Court or a majority of them the power to deprive persons of their property without due process of law and denies to persons within the jurisdiction of the Commonwealth the equal protection of the laws.</p> <p>“6. And further answering the said Joseph C. Pelletier admits that he is District Attorney for the Suffolk District and that he holds said office by election thereto and qualification therein, and denies that he has been guilty of malfeasance, misfeasance, or nonfeasance in his said office and denies that he has conducted himself in said office in an unlawful and reprehensible manner and denies that he is an unfit person to hold said office and denies that the public good requires his removal, and on the contrary says that he has conducted himself in said office in a proper and creditable maimer and that his conduct in said office has been ratified by the people of the said Suffolk District in four successive elections subsequent to the election of 1909, and that prior to the last election of said Pelletier to said office, all or substantially all the charges in said information were offered to the electorate and declared to be true by a candidate for said office opposing said Pelletier, who thereupon joined issue and stood upon his record in said office, and notwithstanding said publication and upon the joinder of issue thereon the said Pelletier was elected and his conduct ratified by the largest majority ever accorded a candidate for the said office, and that the judgment of the qualified electors of the said Suffolk District so expressed in five legal elections is final and conclusive on the question of the said Pelletier’s fitness to hold said office and the requirements of the public good respecting his holding of said office.</p> <p>“7. And further answering the said Pelletier denies each and every allegation and particular set forth in each and every paragraph of the specifications annexed to the information in this case and the specifications filed by the informant on November 28, 1921, and says that in each of the several cases set forth in the specifications of the information and of the further specifications the said Pelletier acted in accordance with his best judgment upon the evidence then presented to him and in the exercise of his sound discretion and under the power which attaches by law to his said office of District Attorney to which said office and to the powers appertaining thereto he was duly entitled by virtue of an election as aforesaid on each of the occasions mentioned in the information and the specifications filed herein and that on each of the said occasions and in each of the said cases he acted in the performance of his legal duty as District Attorney for the Suffolk District.</p> <p>“8. And further answering as to those allegations in the information and the specifications which relate to the conduct of his assistants, the said Pelletier denies that in any of the cases mentioned in the information and specifications or in any other cases his assistants were guilty of any misconduct, abuse of the authority of his office, or failure in the discharge of the duties of the said office, and says that in each of the several instances set forth in the information and the specifications the assistant whose conduct is the subject of allegations, acted in accordance with his best judgment upon the evidence then presented to him and in the exercise of his sound discretion and under the power which attaches to his said office as Assistant District Attorney by law and by the authority and confidence given him by the said Pelletier.</p> <p>"9. And further answering as to those allegations in the information and the specifications which relate to the conduct of his assistants, the said Pelletier, while acknowledging his general and legal responsibility for the acts and conduct of his assistants, says that in each of the several instances set forth in the information and the specifications the assistant whose conduct is the subject of allegations acted by virtue of the general authority conferred on him by law and by the said Pelletier and without the personal and immediate direction of the said Pelletier and without the attention of the said Pelletier having been called to the conduct of the assistant in each case and having no immediate or specific knowledge in regard to the act of his assistant in each of these cases the said Pelletier is not guilty of malfeasance, nonfeasance, or misfeasance with regard thereto.”</p> <p>In paragraphs 10-22, inclusive, of the answer, the respondent alleged, specifically as to each specification in the information of improper conduct of the respondent in his office, that “all the conduct of the said Pelletier with reference thereto occurred and took place prior to the ninth day of November, 1919, when the said Pelletier was duly elected to his said office, by virtue of which said election he has ever since retained the said office and now holds it and that therefore the Supreme Judicial Court or the justices thereof or a majority of them have no jurisdiction, right, or authority to hear anything or conduct any proceedings relating to the matters alleged in these paragraphs because of the fact that since the date of the alleged transactions he has been elected to said office and his conduct therein ratified by the people of the Suffolk District.”</p> <p>“23. And as to the cases of Myer Berman, Walter A. Buckley, and Benjamin Piscopo named in paragraphs 1 and 2 of the specifications filed on November 28, 1921, the said Pelletier is unable to answer at this time because the informant has not furnished him with sufficient particulars upon which he can make answer to these cases” and the respondent asked “that the information be dismissed as to these cases” for lack of sufficient specifications.</p> <p>“24. And further answering the said Pelletier questions the qualifications of the said Court or the justices thereof or any of them to sit in judgment upon this case and says that if the said Court or the justices thereof or any of them sit in judgment upon this case and upon the question of his holding the said office his, the said Pelletier’s, rights under the Fourteenth Article of the Articles in Amendment of the Constitution of the United States relative to due process of law will be violated, and upon this he pleads to the jurisdiction of the Court and objects to the hearing of this case by said Court or any of the justices thereof.</p> <p>“ 25. And further answering the said Pelletier says that there is no basis in fact for the allegations set forth in the said information or the specifications thereto, but that the accusations contained therein are the result of and are made in pursuance of a conspiracy by divers persons to injure, defame, and ruin the said Pelletier as will be shown and proven by the said Pelletier hereafter as required.</p> <p>“26. And for the reasons herein set forth the - said Pelletier moves that the information be dismissed.”</p> <p>The informations were assigned for hearing on December 19, 1921. On that day, before Rugg, C. J., Braley, De Courcy, Carroll, & Jenney, JJ., the respondent presented the following document, entitled “Motion to Dismiss and Plea to the Jurisdiction”:</p> <p>“Now comes Joseph C. Pelletier appearing specially for this purpose and moves that the information be dismissed and says that the Supreme Judicial Court or a majority of the justices thereof or any of the justices thereof ought not to take cognizance of the matters in the information and additional information filed therein and that he ought not to be held to answer to the same because neither the Supreme Judicial Court nor a majority of the justices thereof nor any of the justices thereof have jurisdiction to hear and try the matters alleged in the said informan tians and in support of the said motion and plea alleges the following:</p> <p>“1. That he was duly elected District Attorney for the Suffolk District of said Commonwealth on the fourth day of November, 1919, and duly qualified by talcing the oaths required by law on the eighth day of January, 1920.</p> <p>“2. The election of said Pelletier to said office was under and by virtue of the provisions of the nineteenth article of the articles in amendment to the Constitution of Massachusetts, which reads as follows: 'Art. XIX. The legislature shall prescribe, by general law, for the election of sheriffs, registers of probate, [commissioners of insolvency,] and clerks of the courts, by the people of the several counties, and that district-attorneys shall be chosen by the people of the several districts, for such term of office as the legislature shall prescribe.’</p> <p>"3. Nowhere in said information is it alleged that said Pelletier has not been duly elected to said office or that he has not been duly qualified thereto, but on the contrary his due election and qualification are admitted by the informant.</p> <p>“4. Said Pelletier is an officer of the Commonwealth as described in the eighth article of the second section and the sixth article of the third section of the first chapter of the second part of the Constitution of said Commonwealth entitled ‘The Frame of Government; ’ which sections provide for the impeachment of officers of the Commonwealth.</p> <p>“5. It is proposed to pass upon alleged acts and conduct of said Pelletier, occurring prior to his election and qualification for said office, as a cause for his removal from said office, said alleged acts and conduct not being such as to disqualify said Pelletier from being elected to, qualifying as and holding the office of district attorney for said district. The removal of said Pelletier for such alleged acts and conduct is adding to the qualifications required by the Constitution and laws of the Commonwealth for the office of said district attorney and is a review of the action of the electorate in violation of the ninth article of the Bill of Rights of the Constitution which is as follows: ‘IX. All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.’</p> <p>“The only qualification prescribed for a person to be elected to ' the office of district attorney is the qualification prescribed for those entitled to vote for senators and representatives to the General Court.</p> <p>“It is not only a denial of the equal right of all the inhabitants possessing the qualification required by the frame of government to be elected to public employment but is also a denial of the equal right of those having the qualifications to elect to the office of district attorney, from among those having the required qualifications, the person of their choice, for any individual or set of individuals or any court to require additional qualifications for the office of district attorney to those prescribed by law at the time of said Pelletier’s election.</p> <p>“And for the reasons set forth in the foregoing paragraph numbered 5, the said Pelletier moves that the information be dismissed as to such parts thereof as relate to acts or omissions alleged to have taken place prior to the last election of the said Pelletier to the said office of district attorney, which said election took place on the fourth day of November, 1919.</p> <p>“6. The Constitution of this Commonwealth provides for the impeachment of officers of the Commonwealth by the House of Representatives and the hearing and determination of such impeachments by the Senate as a Court and the removal from office by the Senate of officers so impeached, and no other way of removing officers of the Commonwealth from their offices during the term for which they have been elected is provided by the Constitution of the Commonwealth and the provision that impeachments shall be brought by the House of Representatives and heard and determined by the Senate and officers of the Commonwealth removed by the Senate is the law of the land.</p> <p>“7. The said information and all proceedings which have been taken thereupon or may be taken thereupon are and will be unconstitutional and void because the statute under which the information purports to be brought, to wit: section 4 of chapter 211 of the General Laws is unconstitutional and void as is set forth in the following paragraphs.</p> <p>“8. Section 4 of Chapter 211 of the General Laws is unconstitutional and void so far as it relates to the removal of a District Attorney if the justices of the Supreme Judicial Court or a majority of them purport to act as a court, because any action taken under it to that end would be an exercise by the Judicial department of the Legislature or Executive powers, which is forbidden by the thirtieth article of the Bill of Rights of the Inhabitants of the Commonwealth.</p> <p>“9. Section 4 of Chapter 211 of the General Laws is unconstitutional and void so far as it relates to the removal of a District Attorney because it purports to give the justices of the Supreme Judicial Court or a majority of them the power to deprive said Pelletier of his property, immunities, privileges and estate otherwise than by the judgment of his peers or the law of the land, all of which is contrary to the twelfth article of the Bill of Rights of the Inhabitants of the Commonwealth.</p> <p>“10. Section 4 of Chapter 211 of the General Laws is unconstitutional and void so far as it relates to the removal of a District Attorney because- it abridges the privileges and immunities of citizens pf the United States of America and purports to give the justices of the Supreme Judicial Court or a majority of them the power to deprive persons of property without due process of law, and denies to persons within the jurisdiction of the Commonwealth the equal protection of the laws, all of which is forbidden by the first section of the fourteenth article of the Articles in amendment of the Constitution of the United States of America.</p> <p>“11. The due process of law for the removal of said Pelletier for misconduct and mal-administration in his office is impeachment by the House of Representatives and hearing and determination by the Senate, as provided by the Constitution of said Commonwealth; this is a legislative power of which the legislature cannot divest itself, and cannot delegate to the justices of the Supreme Judicial Court or a majority of them either as a court or as individuals, or to any other person or body.</p> <p>“12. As an officer of the Commonwealth said Pelletier is entitled to the equal protection of the laws as to his right to hold his said office, and cannot be deprived of said right by any apparent process of law which is not equally applicable to all other officers of the Commonwealth described in the Constitution of said Commonwealth and can only be removed from said office during the term for which he is elected by the process of law provided by the constitution for such removal of all officers of the Commonwealth and this protection is guaranteed said Pelletier by the fourteenth article of the Articles of Amendment to the Constitution of the United States of America.</p> <p>“13. Section 4, of Chapter 211 of the General Laws is unconstitutional and void so far as it relates to the removal of a District Attorney because it purports to give the justices of the Supreme Judicial Court or a majority of them the power to deprive said Pelletier of his equal right to be elected to public employ as guaranteed by the ninth article of the Bill of Rights of the Inhabitants of the Commonwealth.</p> <p>“14. Section 4 of Chapter 211 of the General Laws is unconstitutional and void so far as it relates to the removal of a District Attorney because it purports to give the justices of the Supreme Judicial Court or a majority of them the power to deprive the ■inhabitants of the Suffolk District of the right to elect officers, which right is guaranteed by the ninth article of the Bill of Rights of the Inhabitants of the Commonwealth.</p> <p>"15. The exercise by the justices of the Supreme Judicial Court or a majority of them of any power purported to be given by the said statute would be the exercise of a power not granted to the said justices or a majority of them by the people in their constitution but on the contrary specifically reserved by the people to the legislature, and the said justices or a majority of them can have no jurisdiction to exercise such a power or to take proceedings tending towards the exercise of such a power.</p> <p>“16. Section 4 of Chapter 211 of the General Laws is unconstitutional and void because it violates Article 2 of Chapter 6 of the Frame of Government of the Constitution of the Commonwealth which in the first paragraph thereof reads as follows: 'No governor, lieutenant-governor, or judge of the supreme judicial court, shall hold any other office or place, under the authority of this commonwealth, except such as by this constitution they are admitted to hold, saving that the judges of the said court may hold the offices of justices of the peace through the state; nor shall they hold any other place or office, or receive any pension or salary from any other state or government or power whatever’; and because the tribunal purported to be set up by the said statute is a special and limited tribunal and the justices of the Supreme Judicial Court cannot constitutionally be appointed thereto.</p> <p>“17. Section 4 of Chapter 211 of the General Laws is unconstitutional and void because it violates the tenth article of the Bill of Rights of the Inhabitants of the Commonwealth which provides that each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property according to the standing laws, and this statute purports to provide for the removal of said Pelletier from his office of district attorney in a manner contrary to the standing laws of the Commonwealth, to wit: the Supreme law of the Constitution which provides that officers of the Commonwealth shall be removed only by impeachment and trial by the General Court.</p> <p>“18. The said Joseph C. Pelletier was duly elected to the office of District Attorney for the Suffolk District on the fourth day of November, 1919, and duly qualified thereto on the eighth day of January, 1920; his term of office under the laws of the Commonwealth of Massachusetts is for three years ending the first Wednesday in January, 1923; he is entitled to hold the said office until that date and to receive a salary of nine thousand dollars for each year of the said term payable out of the treasury of the Commonwealth on the first day of each month therein in proportionate amounts; he has a right of property in the said office and the emoluments thereof, and he has a right to the equal protection of the laws of the said Commonwealth as to his holding of said office and receiving the emoluments thereof, which said rights are guaranteed him by the fourteenth article of the Articles in amendment of the Constitution of the United States of America; on the twenty-sixth day of October, 1921, and on the nineteenth day of November, 1921, J. Weston Allen, Attorney General for the Commonwealth of Massachusetts, filed a proceeding purporting to be an information before the justices of the Supreme Judicial Court of the said Commonwealth alleging that the public good requires the removal of the said Pelletier from his said office, and praying for his removal from the said office, and the justices of the Supreme Judicial Court aforesaid have ordered the defendant to appear and show cause why this prayer of the said information should not be granted and to answer the charges contained therein, and subsequent thereto they have ordered the said Pelletier to appear and defend the said charges against him on the nineteenth day of December, 1921, which date has been assigned by the said justices for the hearing of the evidence in support of the said information; the said Joseph C. Pelletier is an officer of the Commonwealth of Massachusetts under the Constitution and the laws thereof, and under the Constitution and laws of the said Commonwealth he has been duly elected to said office and can be removed prior to the expiration of the term for which he is elected only upon impeachment by the House of Representatives and trial and determination of the said impeachment by the Senate as is provided in chapter 1, section 2, article 8, and section 3, article 6, of the Frame of Government of the said Commonwealth, and the provisions of said articles of the Constitution of Massachusetts are the law of the land relating to the removal of said Pelletier from the said office prior to the expiration of the term for which he was elected; the said justices of the Supreme Judicial Court propose and are about to hear evidence as to the qualifications and fitness of the said Pelletier, and the requirements of the public good as to his holding said office, and the said justices propose, if in their opinion sufficient cause is shown and the.public good requires, to remove the said Pelletier from his said office and deprive him of the emoluments thereof before the expiration of the term for which he has been elected and thereby to terminate in a manner not provided by and contrary to the Constitution of the said Commonwealth the contract which exists between the said Pelletier and the people of the said Commonwealth and of the said Suffolk District relative to his services in the office of the said district attorney and to impair the obligation thereof, and the proceedings which have been and are about to be taken upon the said information are a violation of the rights of the said Pelletier which are guaranteed him by article 1, section 10 of the Constitution of the United States of America and article 14 of the Articles in amendment of the Constitution of the United States of America.”</p> <p>At the same time when the “Motion to Dismiss and Plea to the Jurisdiction” was presented, the respondent asked for a postponement of the hearing. Upon the motion for postponement, the court on the same day orally made the following order: “The time for hearing has been fixed with a view to full and fair opportunity to the respondent, but also in view of the exigency which confronts the court in the performance of its judicial work. That exigency is very great. To that exigency everything except the administration of complete justice must yield. A request is made this morning by counsel for defendant by reason of important public duties resting on him as a senator of the United States, which duties have become more acute in point of time since the last hearing, that the hearing on the merits be postponed until next week, with the express understanding that no further postponements will be asked. He has also suggested that he is willing to argue certain questions of law this morning. We feel obliged to require arguments on questions of jurisdiction of the court, of constitutional questions, and of matters of a preliminary nature, to be made today. Of course the consideration of the questions thus raised will require the careful attention of the court. Unless the decision upon these matters be in favor of the respondent, the court will then suspend further hearings until Tuesday, December 27, at half-past nine in the forenoon, when the hearing of evidence will begin and continue without interruption.” , Preliminary matters described in the order of the court above described accordingly then were heard on December 19, 20, 1921.</p> <p>On December 22, 1921, the following order was made: j</p> <p>“The paper offered on December 19, 1921, by the respondent, entitled ‘Motion to Dismiss and Plea to the Jurisdiction/ may be filed. Similar and kindred matters are set up in the answer heretofore filed by the respondent as bar in law to the information. For convenience the several paragraphs of that answer are treated as numbered from 1 to 26, both inclusive, in accordance with the paragraphing shown in the printed record.</p> <p>“After hearing and consideration, the ‘Motion to Dismiss and Plea to the Jurisdiction’ are denied and overruled, and the paragraphs numbered two to five, both inclusive, ten to twenty-two, both inclusive, and twenty-four, of the answer, and so much of paragraphs numbered six and seven thereof as relate to the effect of the re-election or re-elections of the respondent, are adjudged insufficient in law and are overruled.”</p> <p>On January 3,1922, the following opinion relating to the matters of law involved in the foregoing order was filed:</p>

<p>Probate Court, Jurisdiction, Guardianship. Minor. Guardian. Constitutional Law. Words, “Inhabitants,” “Residents.”</p> <p>In G. L. c. 201, § 1, conferring jurisdiction upon the Probate Court to appoint guardians of minors “who are inhabitants of or residents in the county or who reside out of the Commonwealth and have estate within the county,” the words . “inhabitants of” and “residents in” are not used synonymously.</p> <p>The Probate Court has jurisdiction under G. L. c. 201, § 1, to appoint a guardian of a minor who resides within this Commonwealth although he is neither domiciled nor has any property here.</p> <p>It is within the power of the General Court to give jurisdiction to the Probate Court to appoint a guardian of a minor who resides within this Commonwealth although he is neither domiciled nor has any property here.</p> <p>A petition by a citizen of this Commonwealth for appointment of the petitioner as guardian, with custody, of a girl under fourteen years of age, recited that the girl was “of Fitchburg” in this Commonwealth, that her father was “of Mt. Vernon, New Hampshire” and that the parents were “unfit to have such custody.” It appeared that, about two years and four months before the filing of the petition, the girl, then nearly three years' of age, in poor physical condition, and with a delicate constitution which had not received appropriate care, was removed to a hospital in New Hampshire. Her father, who was a woodchopper earning §20 a week and with a family consisting of his wife and seven children, did not visit her at the hospital and the mother seldom saw her. A year later, having improved in health, the child was removed to an orphanage in New Hampshire where, through a mistake, she was entered as of unknown parentage. The petitioner saw her there, was informed that her parents were unknown and by permission of the orphanage authorities without the knowledge of the parents in good faith took her to his home in Fitchburg and sought a decree of adoption in New Hampshire. The parentage of the child then was discovered, the father opposed the adoption and a decree was refused. This petition for guardianship then was brought and an attorney appeared therein for the father “for the purpose solely of raising the question of the jurisdiction of the court.” The foregoing facts being found, the judge also found that the child for sixteen months had “been living in Fitchburg,” and a decree granting guardianship with custody was entered. The father appealed. Held, that</p> <p>(1) A finding that the child was a resident of this Commonwealth was warranted;</p> <p>(2) The facts found and the decree entered necessarily implied a finding of such residence;</p> <p>(3) Custody properly was awarded;</p> <p>(4) The petition was sufficient in form;</p> <p>(5) The decision is confined to the question of jurisdiction.</p>

<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 of the widow and children of Ali Hassan, who met his death on April 28, 1919, while he was an employee of Brookfield Company.</p> <p>The case was heard by the board solely on the question of dependency. Material facts found and agreed to are stated in the opinion. In the Superior Court, the case was heard by Lummus, J., by whose order a decree was entered in accordance with the decision of the board; and the claimants appealed.</p>

Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board awarding compensation to Patrick Hurley for injuries received by him on September 9,1919, found by the board to have arisen out of and in the course of his employment by Worcester Gas Light Company. Material facts found by a single member of the board and affirmed by the board are described in the opinion.

<p>Bill in equity, filed in the Superior Court on June 29, 1921, and afterwards amended, by eleven plaintiffs, each of whom owned and lived in a house at or in the immediate vicinity of the corner of North Street and Mason Street in the city of Leominster, and who alleged that they brought the suit “not only for themselves but in behalf of all other residents and real estate owners in the vicinity who are affected by the matters” therein “complained of,” against Pierre Vigeant, who was building a hall of an open type for use as a public dance hall in the vicinity named, and Henry F. Sawtelle, the mayor of Leominster, who, it was alleged, intended without holding a public hearing to issue a permit for the use of the building as a public dance hall, which, it was alleged, in the circumstances would result in a nuisance. The prayers of the bill were that the defendant Sawtelle, “in his capacity as mayor as aforesaid, be restrained and enjoined from granting a license for public dances or for the conduct of a public dance hall in the said building or at the said location, until after a public hearing shall be given by him upon the same,” and that "after a hearing on the merits . . . the erection, maintenance or conduct of a public dance hall or the giving of public dances in said building or at said location, shall be decreed to be a public nuisance and abatable as such.”</p> <p>The defendants severally demurred. The demurrers were heard by Sisk, J., and were sustained, and a final decree was entered dismissing the bill. The plaintiffs appealed.</p> <p>G. L. c. 140, § 181, is as follows: “The mayor or selectmen may, except as provided in section one hundred and five of chapter one hundred and forty-nine, grant, upon such terms and conditions as they deem reasonable, a license for theatrical exhibitions, public shows, public amusements and exhibitions of every description, to be held upon week days only, to which admission is obtained upon payment of money or upon the delivery of any valuable thing, or by a ticket or voucher obtained for money or any valuable thing, or in which, after free admission, amusement is furnished upon a deposit of money in a coin controlled apparatus; and the mayor [or selectmen may revoke or suspend such license at their pleasure, but they shall not grant a license for any such theatrical exhibitions, public shows or public amusements or exhibitions of any description whatever to be held upon Sunday, except as provided in chapter one hundred and thirty-six.”</p>

<p>Practice, Civil, Assessor, Exceptions, Motion to dismiss, Waiver. Guardian, Compromise of claim, Bond, Account. Evidence, Relevancy and materiality. Pleading, Civil, Answer. •</p> <p>In an action of contract against a surety upon the probate bond of a guardian, the parties agreed that judgment might be entered for the plaintiff for the penal sum of the bond and the action was referred to an assessor for assessment of damages. Certain findings and rulings stated in the assessor’s report were-made against the objection of the defendant, but no formal objections or exceptions in writing were filed; a stipulation signed by the attorneys for the parties then was filed, that “the court shall consider and pass upon” certain described rulings of the assessor stated in his report, and that "all other rulings and findings of the assessor are final and conclusive.” Subject to exceptions by the defendant and without specific rulings upon the matters described in the stipulation, a judge of the Superior Court ordered that the report be confirmed, that judgment be entered for the penal sum of the bond and that execution issue in the amount found by the assessor. In dealing with the defendant’s exceptions, this court assumed in favor of the defendant, but without so deciding, that the questions of law which had been argued by him were presented properly, and considered the case upon its merits.</p> <p>The assessor, in the action above described, found that the guardian, without first obtaining the approval of the Probate Court, had received $1,415 in discharge of a note, which was of the face value of $1,615, was secured by a mortgage, was payable $100 and interest every six months, and upon which all instalments of principal and interest due had been paid to the time of the discharge. At that time there were outstanding bills due from the ward and money was needed by the guardian for other purposes. It did not appear that the note was not worth its face value in cash or that it could not have been collected in full. The assessor, without a report of the evidence, found against the defendant. Held, that the act of the guardian was maladministration of the estate, and that no error in the finding of the assessor was shown.</p> <p>A decree of the Probate Court disallowing a credit claimed by a guardian in his final account is conclusive in an action against the surety upon the guardian’s bond after the guardian had refused to satisfy the decree by the payment of the amount therein found to be due from the guardian.</p> <p>At the hearing of the action above described by the assessor, it was proper to exclude evidence to the effect that counsel for the defendant took up the matter of discounting the note with one of the judges of probate, who said he saw no reason why the guardian could not make the discount.</p> <p>In the action above described, the answer was merely a general denial. At the hearing before the assessor, it appeared that the guardian had been removed from his office, and the defendant offered evidence tending to show that in December about eleven months later he, the surety upon the guardian’s bond, offered to- the former ward, who appeared at that time not to have been under guardianship, $125 in full settlement of the surety’s liability on the bond, provided the ward would wait until after the holidays, that this offer was accepted by the ward, and that the $125 later was offered by the surety and was refused by the ward. The evidence was excluded. Held, that the exclusion was proper, both because the agreement of settlement was without consideration and was unenforceable, and because such a defence was not open on the answer.</p> <p>A motion to dismiss an action upon a probate bond because of a lack of an indorser upon the writ required, by R. L. c. 149, § 26, filed nearly two years after the entry of the action and the filing of an answer of general denial, properly is denied, the defendant’s rights under the statute having been waived by his failure seasonably to assert them.</p>

<p>Contract for breach of an agreement to convey real estate to the plaintiff alleged to have been made by the defendants “by their duly authorized agent, Shea Realty Company,” to whom, the plaintiff alleged, he paid $150 and received the memorandum in writing set out below. Writ dated May 26, 1920.</p> <p>The memorandum in writing relied on by the plaintiff was as follows:</p> <p>“Fitchburg, Mass., March 12th, 1920.</p> <p>Received from Guido Zilli, of Fitchburg, $150.00 dollars as part payment and to bind the bargain for the land with all buildings thereon, located on Fairmount, Clarendon and Plymouth streets in Fitchburg and measuring 55 feet on Fairmount St. 200 feet on Clarendon St. and 105% feet on Plymouth Street, Containing 16,053 sq. feet of land assessed value of land and buildings $14,050.00 and being the real estate owned by A. I. Rome and Philip Rome (brothers). Price of property $14,700.00 cash. A good and sufficient Deed to be delivered free of all encumbrances on payment of balance of purchase price Deeds to be passed as soon as possible and time is allowed to have Deeds sent to South America to get signature. It is agreed to have Guido Zilli enter upon and take possession of this property on April 1st, 1920, and collect rents and take control of this property. This property is being sold subject to the taxes assessed April 1st, 1920. It is agreed that there be no Leases on this property and understood that the tenants are tenants at will. Should we be unable to deliver this property as per the above we reserve the right to pay back to Guido Zilli the money paid this day to bind the bargain.</p> <p>[¡Signed] Shea Realty Co.</p> <p>By John J. Shea, Pres.”</p> <p>In the Superior Court the action was tried before Hall, J. Material evidence is described in the opinion. At the close of the evidence, the judge, on motion of the defendants, ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p> <p>G. L. c. 235, § 6, reads as follows: "In an action against two or more defendants upon a contract express or implied, the plaintiff shall be entitled to judgment against such defendants as are defaulted and against those who upon trial are found liable, although it is found that all the defendants' are not jointly liable.”</p>

<p>Contract, Implied.</p> <p>A workman who, at the request and under directions of the owner of a building, changed from time to time, furnishes labor and materials for renovating the building without an express contract being made “between them, may recover the value of such labor and materials although both he and the owner mistakenly thought that a binding express contract to perform the work and furnish the materials at a price had been made between them, there having been no meeting of minds because the owner understood that the price was a definite sum and the workman understood that the agreement was for a certain price per hour for labor and the price of the materials furnished.</p>

Contract for breach of an agreement in writing whereby the defendant agreed to purchase three hundred and ten barrels of flour from the plaintiff. Writ in the Municipal Court of the City of Boston dated December 24, 1920. Upon removal to the Superior Court, the action was tried before Dubuque, J. Material evidence is described in the opinion.

<p> Water and Water Rights. Trespass. Cranberry Bog. </p> <p>While a landowner has a right to erect a dam or dike upon his land and thus to collect surface water flowing thereon and to appropriate it to the cultivation of a cranberry bog upon his land, he has no right to accumulate and retain such surface water to such a height that it flows back upon the land of an adjoining owner; and, if he does so, he is liable to the adjoining owner for damage thus caused.</p>

<p>Equity Pleading and Practice, Master. Evidence, Inference, Absence of witness, Admission.</p> <p>A master, to whom a suit in equity was referred under a rule which required him “to hear the parties and their evidence and report his findings to the court on , or before fa certain date] together with such facts and questions of law as either party may request,” is not required to report the evidence or any part of it.</p> <p>At the hearing by a master of a suit in equity by a man against one who, when the suit was brought, was his wife but who, while the suit was pending, was granted a decree of divorce for his wrong, to compel conveyance to the plaintiff of certain real estate, the legal title to which, he alleged, was placed in the defendant’s , name although it was purchased with his money and she had no interest in it, the plaintiff testified that, in the presence of other persons when the final arrangements for the passing of papers were being made, he said to the defendant that she had no interest in the property and that she assented thereto. The defendant denied that such a statement was made. The plaintiff did not call as witnesses those whom he had testified were present when those conversations were held, and from that fact the master drew an inference unfavorable to him. Held, that there was no error of law in drawing such an inference.</p> <p>Findings of fact by a master to whom was referred a suit in equity under a rule which required him “ to hear the parties and their evidence and report his findings to the court on or before [a certain date] together with such facts and questions of law as either party may request” are not reversible unless shown by the report to be erroneous.</p> <p>Neither a notice, signed by the defendant in the suit above described in the name of the plaintiff while they were living together, placed upon a coal hoist used by a tenant of part of the property in suit and reading, "‘Each tenant is requested to prevent coal teams from being driven on the lawns or walks;” nor a receipt, made out by the defendant and at her request signed by one whom she was paying for work done around the house and stating that the payment was received from the plaintiff, constituted a memorandum in writing under R. L. c. 147, § 1, sufficient to establish that the defendant held the land subject to an express trust for the plaintiff’s benefit.</p> <p>The master who heard the suit above described concluded, from facts found by him, that the plaintiff had title to the two parcels of real estate in question taken in the name of the defendant for his benefit and for her benefit and for the benefit of both of them as a family, with no thought of future separation but with the idea that, in the event of his death, his wife would have the property without the necessity of proving a will or involving his estate in administration proceedings. Held, that a decree dismissing the bill was proper.</p> <p>A denial of a motion by the plaintiff to recommit the report of the master in the suit above described was affirmed" upon appeal, the motion being one addressed to the discretion of the court and there being nothing to indicate that such discretion was not wisely exercised.</p>

<p>Broker, Commission. Contract, What constitutes. Agency. Sate. Evidence, Of state of mind; Opinion: expert; Admission. Practice, Civil, New trial, Exceptions, Variance. Words, “Sale.”</p> <p>At the trial of an action by a real estate broker upon an account annexed claiming a commission “for procuring customer or purchaser for defendant’s woodlot,” there was evidence tending to show that, in an interview between the plaintiff and the defendant relating to the woodlot, the defendant stated to the plaintiff that his price was $7,500 and asked him what he “ had for selling lots; ” that the plaintiff replied, “ Five per cent,” and that the defendant said that, if the plaintiff would “find a customer for the lot he was willing to pay for the sale of it,” that, if the plaintiff “sold the lot,” he was to receive a commission of five per cent; that the plaintiff found a person who was willing to pay the defendant’s price and who paid down $100 which was forwarded by the plaintiff to the defendant with a letter; that later, upon there being a delay on the part of the prospective purchaser, the defendant stated that he was willing to accept a further payment of $500 and the balance of the price one week later, the purchaser to pay interest and a year’s taxes; that the purchaser agreed to this arrangement and was ready, willing and able to carry it out, but that later the defendant sold the property to another person. Held, that</p> <p>(1) The evidence warranted findings that the sale was not consummated because of the defendant’s fault and that the plaintiff was entitled to a commission;</p> <p>(2) The earning of the commission was not contingent upon the plaintiff bringing about a completed sale, but upon his furnishing to the defendant a purchaser ready, willing and able to purchase on the terms named.</p> <p>The words “sale” and “to make a sale,” as used in agreements between real estate brokers and their principals as to commissions to be received by the brokers, ordinarily mean to negotiate a sale and to procure a purchaser.</p> <p>The ordinary contract between a real estate broker and his principal providing for a commission upon a “sale” entitles the broker to the specified compensation whenever through his influence a prospective purchaser is produced, ready, willing and able to purchase on the principal’s terms, although, by reason of fault or unwillingness of the principal, the sale never is consummated.</p> <p>At the trial of the action above described, it appeared that the defendant and the prospective purchaser had intended to make an agreement in writing as to the sale, but that afterwards the defendant repudiated his oral agreement. The defendant contended that the plaintiff was not entitled to a commission until the agreement in writing was made. Held, that this contention of the defendant was untenable.</p> <p>Testimony of the prospective purchaser, at the trial of the action above described, that he was willing to carry out his oral agreement with the defendant, was admissible, his state of mind being a material issue.</p> <p>It was not error, at the trial of the action above described, to admit in evidence testimony of the plaintiff, a real estate broker of experience, bearing on the value of his services as a broker.</p> <p>The letter from the plaintiff to the defendant, enclosing the $100 paid by the prospective purchaser as an initial payment, .was admissible at the trial of the action above described.</p> <p>The exercise of his discretion by a trial judge in the denial of a motion for a new trial cannot be revised upon exceptions if no abuse of discretion appears.</p> <p>The declaration in an action by a real estate broker was upon an account annexed claiming “Commission for procuring customer" or purchaser for defendant’s woodlot, 5% on $8,375 — $418.75.” There was evidence warranting a finding that the defendant was willing to pay the plaintiff a commission of five per cent for procuring a purchaser of the lot at §7,500; that the plaintiff had procured a prospective purchaser who was willing to pay the defendant’s price, $7,500, for the lot; that some delay occurred, and that finally the parties orally agreed that the purchaser should pay, beside the price formerly named, interest and taxes which made the price amount in all to §8,375; that the purchaser was ready, willing and able to carry out the agreement, but that the defendant sold to another person; that a commission of five per cent was a fair compensation for the plaintiff’s services. The jury found for the plaintiff in the sum of $375. Upon exceptions, to the denial of a motion for a new trial, it was held, that</p> <p>(1) The jury were warranted in finding on a quantum meruit that the value of the plaintiff’s services to the defendant was five per cent of $7,500;</p> <p>(2) The verdict was not inconsistent with the evidence;</p> <p>(3) There was no variance between the allegation and the proof.</p> <p>A variance between the allegations of the declaration in an action and the proof at the trial cannot be taken advantage of for the first time on the hearing in this court of exceptions saved by the defendant at the trial.</p>

<p>Trust, Constructive. Trust Gom/gany, Receipt of deposit when insolvent. Equity Jurisdiction.</p> <p>While the receipt, by a trust company, at a time when it was reasonably apparent to its officers that it would presently be unable to meet its obligations as they were likely to mature and would be obliged to suspend its ordinary operation, of a deposit of money made in its commercial department by one who confided in its good reputation and in its representations is the equivalent of a preconceived purpose on the part of the bank not to pay and is a fraudulent act by reason of which the contract of deposit may be rescinded by the depositor and the deposit or its equivalent, if paid, may be recovered as can other trust funds, simple insolvency of the bank does not warrant the rescission of contracts of deposits if at the time they are made there is a genuine and reasonable hope, expectation and intention on the part of the officers of the bank to carry on ■ its business and to recover sound financial standing.</p> <p>A certain trust company had not been complying with the statutory requirements as to reserves, had not kept the assets in its savings department separate and distinct from its general assets, and had been in an uncertain condition financially for some time but had been able to continue its business. Its officers, while knowing the foregoing facts, had not analyzed the situation but, in accepting deposits, had acted under the hope that the corporation in some way or other would pull through its difficulties and did not anticipate its closing. Within a few days after certain deposits were made in the commercial department, the commissioner of banks took possession of the bank’s property and business. Those who made the late deposits sought by bills in equity to recover the deposits on the ground that they were impressed with a trust by reason of insolvency of the bank and the circumstances in which they were received. Held, that</p> <p>(1) In effect the plaintiff sought a preference over the other creditors;</p> <p>(2) No equity was disclosed by reason of which the plaintiff should have such preference.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Proximate Cause.</p> <p>At the hearing of a claim for compensation by an employee of a construction company which, in repairing tracks of a railroad, employed a large number of employees of different nationalities, it appeared that the laborers were transported by the railroad company to the place where the work was to be performed and upon arrival there were accustomed to take their tools from a tool car and go to work; that, on the day when the claimant was injured, upon arrival at the place of work, a discussion arose among the employees as to the possession of certain tools, some desiring to use the same tools day after day; that the discussion resulted in a fight in which the claimant took no part, except that he advised two of the participants not to fight and two other employees struck him on the head, one with a shovel and the other with a sledge hammer. All the tools belonged to the employer. The claimant testified that he did not know of any other quarrels over the tools on any other days, and that the day he was hurt was “the first time he ever saw a fight over the tools and any striking.” The record contained no evidence of a previous quarrel among the men over the tools. Held, that</p> <p>(1) The fact that workmen of different nationalities were engaged upon the work did not make the danger of an assault by his fellow workmen incidental to the claimant’s employment;</p> <p>(2) The fact that the assault resulted from the claimant’s act in endeavoring to dissuade his fellow workmen from fighting, such act being no part of the duties imposed upon him, did not render it a risk incidental to bis employment;</p> <p>(3) There was no causal connection between the conditions under which the claimant’s work was required to be performed and his injury;</p> <p>(4) The claimant was not entitled to compensation under the act.</p>

<p>Homicide. Pleading, Criminal, Indictment.</p> <p>If the evidence, at the trial of an indictment charging that the defendant “did assault and beat” a certain person "with intent to kill and murder him and by such assault and beating did kill and murder” him, tends to show that the defendant shot and killed the person named with deliberately premeditated malice aforethought, a verdict of guilty of murder in the first degree is warranted.</p> <p>An indictment for a murder in the first degree, which was committed with deliberately premeditated malice aforethought, is sufficient if it is in the form described in G. L. c. 277, § 79, although the intent is not described as “deliberately premeditated.”</p>

<p>Food. Contract, Implied. Carrier, Of passengers. Evidence, Presumptions and burden of proof.'</p> <p>At the trial of an action of contract against a steamship company for damages resulting from the eating of unwholesome food alleged to have been sold and served by the defendant to the plaintiff while he was a passenger upon one of its steamships, there was evidence tending to show that the plaintiff boarded the boat in an afternoon, not having had anything to eat since his breakfast that morning; that he ate dinner that night on the boat, at six o’clock; that the next morning he had no breakfast and was seasick; that during the rest of the voyage he was in good health and after the first morning on shipboard was able to “go down and take meals;” that at about five o’clock in the afternoon of the fourth day of the voyage he had lunch or supper; that he thought soup was served, did not recall whether he ate fruit or dessert but remembered eating some cold meat which “didn’t taste very good to” him; that he remained on the boat until about fifteen minutes after seven o’clock that evening when he went ashore and to his home; that he went to a theatre in the evening and to a café with a friend before retiring at twelve o’clock that night; that, although he smoked during the evening, he neither ate nor drank anything after leaving the boat and that at about four o’clock in the morning he was taken violently ill. He was attended by a physician who died before the trial. Another physician, testifying as an expert, stated that the described circumstances of the plaintiff’s illness presented “a classical picture of food poisoning; that the term ptomaine poisoning was not now used; that the incubation period for food poisoning was from eight to twenty hours; that it was less than twenty-four hours; that it would be out of the question for diseased food to remain in a person’s stomach for a period of from forty-eight to seventy-two hours before he would feel any effects from it” and that, in his opinion, the plaintiff’s illness was caused by poisoning from food eaten on the boat the last afternoon he was aboard. Held, that a finding for the plaintiff was warranted.</p>

<p>Workmen’s Compensation Act, Procedure: motion for continuance before Industrial Accident Board, filing of claim, appeal; Jurisdiction. Jurisdiction.</p> <p>Upon an appeal by the insurer in a proceeding under the workmen’s compensation act from a decree of the Superior Court in accordance with a decision of the Industrial Accident Board adopting findings and rulings by a single member of the board and awarding compensation to the claimant, no question of law is presented relating to the propriety of a denial by the single member of the board of a motion by the insurer to continue the hearing by reason of the absence because of sickness of a physician who had been employed by the insurer to make an examination of the claimant, nor relating to a denial by the Industrial Accident Board of a motion by the insurer for a rehearing in order that the physician’s testimony might be introduced, the record not disclosing that any attempt had been made to take the testimony of the physician or that the claimant had refused to admit that, if present, the physician would testify in accordance with an offer of proof made by the insured.</p> <p>If an employee fails to file a claim for compensation under the workmen’s compensation act within the six months prescribed by the statute and such failure is not justifiable and is prejudicial to the insurer within the provisions of St. 1920, c. 223, § 2, the Industrial Accident Board has no jurisdiction to consider the claim, and in such circumstances jurisdiction cannot be conferred by express consent of the parties or by acts of estoppel.</p> <p>By agreement in writing between an insurer and an employee, who received injuries within the provisions of the workmen’s compensation act on June 11 of ' a certain year, the employee was paid compensation until the following November 6, when it was discontinued by order of a single member of the board without prejudice to a hearing on the merits. That hearing occurred on the following March 16, when the insurer for the first time contended that the employee had not filed a claim for compensation. A single member of the Industrial Accident Board found that the failure to file the claim earlier was due to mistake or other reasonable cause, in that the employee believed that the insurer would pay compensation for any incapacity resulting from the injury, and his finding was affirmed by the full board. There was no finding by the single member or by the board that the insurer was not prejudiced by the delay of the employee in failing to file the claim for compensation. Compensation was awarded by the board to the employee. In the Superior Court a decree was entered that compensation be paid to the employee in accordance with the decision of the board. The insurer appealed. Held, that</p> <p>(1) The fact, that the insurer did not notify the employee until March 16 that compensation would not be paid because of neglect to file the claim, was not a mistake of fact nor reasonable cause for the failure of the employee to comply with the statute as to the filing of a claim within six months of the injury;</p> <p>(2) The record disclosed no evidence warranting a finding that such failure was the result of mistake or other reasonable cause;</p> <p>(3) Before taking jurisdiction of the claim, it should have been determined that under St. 1920, c. 223, § 2, the insurer was not prejudiced by the employee’s delay in filing the claim, which had not been shown to have been justifiable.</p> <p>(4) The decree of the Superior Court was reversed, and the case was recommitted to the Industrial Accident Board for further hearing on the question, whether the insurer was prejudiced by the delay in filing the claim, at which hearing either party was given leave to introduce further evidence.</p>

<p>Bills and Notes, Foreign bill of exchange. Contract, What constitutes.' Sale, Of credit. Damages, In action upon foreign bill of exchange. Evidence, Presumptions and burden of proof.</p> <p>Where a customer of a trust company in this Commonwealth pays to the trust company a sum of money, for which he receives from it a foreign bill of exchange drawn by it upon a bank in Italy, and payable in Italian lire to the customer or to his order or to the order of the Italian bank for the customer’s account, the transaction constitutes a completed contract comprising a sale of credit by the trust company to its customer.</p> <p>After the bank in Italy had refused to accept and pay a bill of exchange, issued in the circumstances above described, because the commissioner of banks had taken possession of the property and business of the trust company and had countermanded the orders, the customer cannot maintain against the trust company, after his claim has been disallowed by the commissioner, an action of contract for money had and received in the amount paid by him for the bill of exchange, but, after he has protested the bill and has given the trust company notice thereof, he may maintain an action against the trust company as the drawer of the bill of exchange; and in such action he may recover the value of the number of lire named in the bill upon the day when it was presented to the bank in Italy for acceptance and payment and was protested and notice was given to the trust company, with interest at six per cent upon that amount from that date and five per cent of that principal sum as damages under G. L. c. 107, § 9.</p> <p>If, at the trial of an action upon a number of foreign bills of exchange, it appears that the current rate of exchange of the foreign money in which the bills were payable fluctuated on the date of demand and the evidence did not show the precise moment when demand was made on each of the bills, the fair and equitable rule is to calculate the principal on each bill at the average rate of exchange on the date when demand was made. "</p>

<p>Husband and Wife, Separate maintenance. Evidence, Presumptions and burden of proof.</p> <p>At the hearing of a petition by a wife seeking separate maintenance from her husband under G. L. c. 209, § 32, it appeared that for ten years preceding the filing of the petition the respondent continuously had deserted the petitioner and that she had lived apart from him for justifiable cause; that soon after the separation the petitioner both by letter and by interviews had sought reconciliation and renewal of martial relations, and that the respondent had rejected her overtures utterly and never had expressed any willingness nor made any overtures to have the petitioner return until the hearing upon her petition, when for the first time he declared that he desired to have her come back and live with him. She then was unwilling to go back to him. Held, that an inference of want of good faith on the part of the respondent in seeking the return of the petitioner was irresistible and that a decree granting her separate maintenance was warranted.</p>

<p>Mortgage, Of real estate: compensation for services of mortgagee in possession.</p> <p>There is no fixed rule of law limiting the compensation to which a mortgagee in possession of real estate may be entitled for his services in the care and management of the mortgaged premises.</p> <p>In a suit in. equity to redeem real estate from a mortgage, a master found that the mortgagee was in possession and, among other things, had collected gross rentals amounting to 810,871, that there was no express "agreement as to the amount to be paid for the mortgagee’s services, and that he was entitled to $825 for his services “in the care and management of the property making leases and collecting” rents. The plaintiff excepted to a refusal of the master to rule that the defendant was not entitled to an allowance for services in a sum greater than five per cent of the gross rentals and to the finding that he was entitled to 8825 therefor. Held, that no reason appeared for disturbing the master’s finding.</p>

<p>Agency, Existence of relation, Employer’s liability for intentional tort of agent. Workmen’s Compensation Act. Assault and Battery. False Arrest and Imprisonment. Malicious Prosecution. Evidence, Competency, Relevancy and materiality.</p> <p>A declaration in an action of tort by an employee in a factory against his employer, a manufacturing corporation, contained three counts, the first for personal injuries resulting from assault and battery, the second for false arrest and imprisonment and the third for malicious prosecution. At the trial there was evidence warranting the following findings: The plaintiff, who had been employed by the defendant as a stationary engineer, late on a Saturday afternoon during the period of the world war was discharged by the defendant’s superintendent, who told him to take his clothes and go home. The plaintiff protested against his discharge, but took his clothes and walked to the pump house, where the numbered brass checks of the employees were hung. It was necessary for a workman to have his check in order to enter, and, perhaps, to leave the mill premises. When the plaintiff reached for his check, the superintendent, who had followed him, called to an employee of the defendant, who was standing by the check rack, not to let him have his check and to hold him. The employee and the superintendent then seized the plaintiff and threw him down. The employee saw a revolver in the plaintiff’s pocket, and either took it out or picked it up from the doorway where it had fallen. Two others, employed by the defendant as watchmen, who, by reason of the necessity of special precautions during the war, had been appointed special police officers by the city where these events took place, took the plaintiff, put handcuffs on Mm, carried Mm to the gate, and sent for the city police patrol wagon. One of these special police officers had been in the defendant’s employ for thirty-five years and was at the head of thirty or forty watchmen employed by the defendant. The plaintiff then was taken to the police station, where he was confined for some hours. On Monday morning he was tried in the district court upon two complaints, made by the. deputy cMef of police upon information furnished by the special police officer above described, one complaint being for “disturbing the peace,” and the other charging that he “wMle so disturbing the peace" and when so arrested was armed with and had on Ms person a pistol.” There was no complaint for violation of St. 1911, c. 548, § 2. The superintendent and the special policeman appeared in court as witnesses at the trial. The plaintiff was discharged. The defendant was a subscriber under the workmen’s compensation act and the plaintiff had not reserved Ms rights at common law. Held, that</p> <p>(1) The personal injury resulting from the assault and battery arose out of and in the course of the plaintiff’s employment, and in the circumstances Ms sole remedy therefor was under the workmen’s compensation act;</p> <p>(2) Since it might have been found that the special policemen, who were employees of the defendant, in taking Mm into custody were acting as the agents of the defendant and not as representing the public for an injury done the public at large, a verdict for the plaintiff on the second count was warranted;</p> <p>(3) A charge to the jury, that, if the special police officer falsely arrested or imprisoned the plaintiff, the defendant was responsible, regardless of whether the officer acted as employee or as public police officer, was erroneous;</p> <p>(4) Since a finding was warranted that the prosecution of the plaintiff was set in motion by persons acting for the defendant and not for the public interest, and without probable cause, a finding for the plaintiff on the third count was warranted;</p> <p>(5) A charge to the jury that, if the special police officer, upon whose information the charge against the plaintiff was made, was guilty of malicious prosecution of the plaintiff, then the defendant was responsible therefor as a matter of law, was erroneous;</p> <p>(6) No harmful error was committed by admitting in evidence the complaints and records of discharge of the plaintiff in the district court, since, although not admissible under the second count, they were admissible under the third count.</p>

<p>Sale, Rescission. Contract, Performance and breach.</p> <p>At the trial of an action for a breach of a contract whereby the plaintiff sold a certain kind of flour to the defendant, it appeared that the defendant rejected a carload of the flour which contained some barrels of a different brand than that specified in the contract of sale. There was evidence that the barrels of the different brand were sent by the plaintiff under an express agreement with the defendant and that, upon a refusal of the defendant to take them, the plaintiff “eliminated” them from the car and ordered a sight draft upon the defendant reduced by the amount of their price. The judge instructed the jury in accordance with G. L. c. 106, § 33, cl. 3, and stated that, if the plaintiff included in the car the flour of the different brand without orders from the defendant, the defendant was under no obligation to sort it out from the other flour but had a right to reject the entire carload; and refused to rule that, as a matter of law, the defendant had a right to reject the entire carload. The jury found for the plaintiff. Held, that in the circumstances the ruling properly was refused.</p> <p>At the trial of the action above described, it appeared that there was further flour called for by the contract of sale beyond that included in the car rejected by the defendant, and there was evidence warranting a finding that the plaintiff already had manufactured the flour to fulfil the balance of the contract. The judge ruled that "upon the refusal of the defendant to receive any more flour under the contract, the plaintiff was under the duty of not manufacturing any more flour for him and of not incurring any further expense on his account” and refused to give rulings, relating to damages, which were based upon an assumption that, after the defendant refused to accept the carload of flour, the plaintiff proceeded to purchase and mill wheat with which to fill the remainder of the defendant’s order. Held, that the defendant was fully protected by the rulings made and that the refusal to give the further rulings requested was warranted.</p>

<p>Tort for personal injuries received when the plaintiff was run into by a motor car owned by Henderson and Ross and operated by the defendant, an employee of that firm. Writ dated September-10, 1920.</p> <p>In the Superior Court, the action was tried before Sanderson, J.,. at the same time with an action by the same plaintiff against the-firm of Henderson and Ross, the defendant’s alleged employers-Material evidence and exceptions saved by this defendant are described in the opinion. At the close of the evidence, a verdict was entered for the defendant’s employers by order of the judge. The jury found for the plaintiff in this action in the sum of $2,500; and the defendant alleged exceptions.</p>

<p>Tort, with a declaration in two counts, for personal injuries resulting from the plaintiff swallowing a part of a nail which was imbedded in a loaf of bread manufactured by the defendant. Writ dated June 16, 1919.</p> <p>In the first count of the declaration the plaintiff alleged that “the defendant advertised a food known as ‘Ward’s Peace Time Bread’ as being prepared by the defendant and as being made in such a manner that the same was ‘100% pure and made under the most modern, scientific process;’ . . ., that the defendant represented said bread as having ‘very special merit as a healthful and nutritious food’ meaning thereby to represent that the said bread contained no deleterious substances; . . . that these representations were made by the defendant, as of its own knowledge and that said representations were false and that the defendant knew or ought to have known the said representations were false;” that on or about May 10, 1919, “relying on such representations, the plaintiff purchased one loaf of the defendant’s bread which was contained in a wrapper with the above-named representations printed thereon; . . . that the said bread was so improperly and negligently prepared, compounded and mixed by the said defendant, its agents or servants that the same contained a tack one-half inch in length which the defendant knew or ought to have known was contained in said bread, so that when the plaintiff using due care ate the said bread the tack contained in said bread caught in the throat of the plaintiff,” causing the injuries of which the plaintiff complained.</p> <p>In the second count of the declaration, the plaintiff alleged, as the cause of the presence of the tack in the bread and of her injuries, “negligence of the defendant, its agents or servants.”</p> <p>The action was tried before White, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor on each count of the declaration. The motion was allowed as to the second count and denied as to the first count. The jury found for the plaintiff on the first count in the sum of $200; and the defendant alleged exceptions.</p>

<p>Tobt for the alleged conversion by the defendants of three flights of iron staircases, which the plaintiff on March 2, 1916, had sold to the then owner of property numbered 41-55 Beach Street in Boston by a conditional sale, recorded on March 6, 1916, •and which had been wrought into the building before the defendants had purchased it on March 20, 1917. Writ dated October -9, 1919.</p> <p>In the Superior Court, the action was heard by McLaughlin, J., without a jury, upon an agreed statement of facts. Material evidence is described in the opinion. At the close of the evidence, the judge ruled as a matter of law that the plaintiff was not entitled to recover, found for the defendants and reported the action to this court for determination, judgment to be entered for the defendants if the ruling was right; if the ruling was wrong and if upon the agreed facts the plaintiff as a matter of law was entitled to recover, judgment was to be entered for the plaintiff •in the sum of $1,200 with interest from March 28, 1917; if the ruling was wrong and if the plaintiff was not entitled to judgment as a matter of law, then the action was to stand for trial.</p>

<p>Tobt for personal injuries alleged to have been caused by negligence of the defendant in operating his motor car while the plaintiff was in the act of repairing the engine. Writ dated August 6, 1919.</p> <p>In the Superior Court, the action was tried before Sanderson, J. Material evidence and exceptions saved by the plaintiff are de■scribed in the opinion. The jury found for the defendant; and -the plaintiff alleged exceptions.</p>

<p>Contract with a declaration upon an account annexed for $1,728, "commission on sale of stock.” Writ dated July 28, 1920.</p> <p>In the Superior Court the action was tried before Fox, J. Material evidence is described in the opinion. The judge refused a request by the defendant "to take the case from the jury upon the ground that it was entitled to a ruling in its favor as a matter of law.” The jury found for the plaintiff in the sum of $1,526; and the defendant alleged exceptions, which, after the resignation of Fox, J., were allowed by Sanderson, J.</p>

<p> Bills and Notes. Husband and Wife. </p> <p>A note, signed by a husband and his wife and payable “to the order of ourselves/* upon indorsement by them and negotiation for value to one who knows them to be husband and wife, is valid and enforceable against the makers by the indorsee, who is a holder in due course.</p>

<p>Certification, filed in the Superior Court on May 12, 1921, under the provisions of the workmen’s compensation act, of a decision of the Industrial Accident Board affirming and adopting findings and rulings of a single member of the board that Francis Gallagher, who received personal injuries while unloading a barrel at the plant of the Vised Company, was an employee of that company and was not an independent contractor, and awarding him compensation.</p> <p>In the Superior Court the case was heard by Sanderson, J. Material evidence and findings and rulings of the single member of the Industrial Accident Board are described in the opinion. By order of the judge a decree was entered in accordance with the decision of the Industrial Accident Board. The insurer appealed.</p>

<p>Negligence, Railroad, Causing death. Evidence, Presumptions and burden of proof, Matter of conjecture.</p> <p>At the trial of an action by an administrator against a railroad corporation for causing the death of the plaintiff’s intestate, a woman, there was evidence tending to show that at about half past nine o’clock on an evening in November the body of the decedent was found on a dirt walk, maintained by the defendant east of double tracks at a station for use of passengers arriving and departing from trains on both tracks; that when last seen alive the decedent was about three hundred and thirty-three feet from where her body was found and was on her way to the station from a house where she had been visiting, which she had left at about fifteen minutes after nine o’clock, and that she intended to take a train which was due to leave the station going southerly at twenty-four minutes after nine; that the dirt walk east of the double tracks was about two hundred and thirty-five feet long and, at its narrowest, seven •feet wide and that it extended northerly to the station from a grade crossing with a highway, whence the decedent had come and thirty-three feet from which her body was found; that the train which the decedent was to take was to arrive on the track farther from this path; that the defendant till seven o’clock in the evening had maintained two lights overhanging this path, the one nearer where the decedent’s body was found being sixty-eight feet northerly therefrom; that these lights were not lighted after seven o’clock; that a light was maintained by the municipality at the highway crossing; that at twenty-five minutes after nine a train arrived at and left the station going northerly on the track nearer the path; that the train that the decedent intended to take did not arrive until twenty-six minutes after nine and that persons leaving that train had found the body of the decedent; that the decedent was an elderly woman whose sight and hearing were gdod. Held, that</p> <p>(1) The extinguishing by the defendant of the light over the path did not appear to have any connection with the accident;</p> <p>(2) The time and manner of the death of the decedent were left on the evidence entirely a matter of conjecture;</p> <p>(3) Even assuming that the decedent was a passenger of the defendant, a finding that her death was caused by negligence of the defendant or its employees was not warranted.</p>

<p>Tort for personal injuries alleged to have been received when the plaintiff, as he was leaving a train at the North Station in Boston, was run over by a train backing in on an adjoining track. Writ dated December 7, 1917.</p> <p>In the Superior Court, the action was tried before Fessenden, J. Material evidence and exceptions saved by the plaintiff are described in the opinion. The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Supreme Judicial Court, Moot question. Writ of Error.</p> <p>The Supreme Judicial Court does not consider moot questions.</p> <p>In a petition for a writ of error seeking to have declared invalid a judgment sentencing the petitioner to pay a fine of $100 and to be committed to the house of correction for one month, it appeared that on June 25, the time when the sentence was pronounced, the fine was paid and that the sentence then was suspended to the following December 27; that on August 5 the suspension of sentence was revoked and the petitioner was committed to the house of correction; that the petition was filed on August 30 and that the term of the sentence expired and the petitioner was released five days later. No allegation of error occurring before August 5 was included in the petition. Meld, that</p> <p>(1) The suspension of the sentence to a time certain was within the jurisdiction of the court;</p> <p>(2) Consideration of the question, whether such portion of the sentence as related to imprisonment was unlawful, was moot for every practical purpose, and the petition must be dismissed.</p>

<p>Contract, Modification, Performance and breach.</p> <p>A merchant made a contract in writing with the publisher of a mercantile reference book and reports which “requested” the publisher to place the reference book in the merchant’s keeping and required the merchant to “pay in advance $100 for one year’s services of” the publisher “together with the use of the said Reference Book.” The contract stated that it was signed on a May 14 and was dated July 1, 1919. No payment or offer of payment ever was made by the defendant. In an action by the publisher against the merchant begun in September, 1920, for the $100 payment, the defendant testified, subject to an exception by the plaintiff, that on the day after the contract was signed an agent of the plaintiff had stated to the defendant that the reference book could not be delivered on July 1, “so you wouldn’t have to pay in advance for that book; you have got time to pay from July up to January.” A motion by the plaintiff that a verdict be ordered in his favor was denied and the jury found for the defendant. Held, that</p> <p>(1) Assuming, without deciding, that the modification of the contract delaying the payment by the defendant to, January, 1920, was authorized by the plaintiff, the defendant still was required to make the payment before performance could be required of the plaintiff;</p> <p>(2) A verdict should have been ordered for the plaintiff.</p> <p>At the trial of the action above described, there was uncontradicted evidence tending to show that the plaintiff had attempted to deliver the reference book to the defendant at an address placed under his signature on the contract, and it was stated that such a delivery by the plaintiff was performance by him of the provisions of the contract as to delivery of the book, and, in the circumstances, judgment for the plaintiff in the sum of $100 and interest was ordered by this court under G. L. c. 231, § 123.</p>

<p>Equity Pleading and Practice, Appeal, Master. Equity Jurisdiction, Accounting.</p> <p>Where the report of a master in a suit in equity did not contain a report of evidence and no exceptions were filed by either party, the facts found by the-master must be accepted as true upon an appeal from a final decree, and the only question before this court i§, whether the decree appealed from lawfully could be entered upon such findings.</p> <p>In a suit in equity for an accounting, the fqllowing facts appeared: In June, 1909, the plaintiff owned or controlled all the capital stock of a corporation whose only asset was a lumber mill in Maine worth about $6,500 and subject to a. mortgage for $1,500. He also owned land in Vermont subject to a first mortgage, upon which $4,500 was due, and to a second mortgage of $3,000, which, also included the first mortgage of $1,500 upon the mill, there being standing upon this land about three million feet of soft timber suitable for cutting and. several million feet of hard wood. The defendant agreed to buy the soft; timber on the land and to pay the plaintiff therefor $5,000 above the first mortgage. This the defendant never paid. By further agreements, the plaintiff caused one half of the stock in his corporation to be transferred to . the defendant, who was elected treasurer and who thereafter had charge of the corporation finances, the mill was moved to the land in Vermont and the plaintiff and the defendant undertook, through the corporation, to cut and to dispose of the soft timber, the plaintiff receiving $100 per month for superintending the work. Money was borrowed on notes signed by the parties as joint makers or as indorsers for the corporation, and from the proceeds thereof the first mortgage on the land was paid. In October, 1909, the holder of the ■second mortgage on the land (which included the first mortgage on the lumber mill) started to foreclose the mortgage, and the plaintiff told this to the defendant and demanded of him payment of the $5,000 which he had agreed to pay for the soft timber. The defendant obtained a check for $5,000 from a second corporation which he had formed and used the proceeds to pay off the remaining mortgage on the land and on the mill, and, at his request, the plaintiff conveyed to the second corporation the land in Vermont and released to it all his interest in the lumber mill. The first corporation then was dissolved by act of the Legislature. The plaintiff continued getting out lumber until March, 1910, when the defendant stopped him, only one and one half million feet of timber then having been shipped out. The defendant denied any liability to the plaintiff and refused an accounting. A final decree was entered adjudging that the defendant owed to the plaintiff $5,000 as of October, 1910, and ordering payment thereof with interest. The defendant alone appealed. Held, that the facts warranted the decree.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Agency, Scope of employment. Proximate Cause.</p> <p>Upon the hearing by the Industrial Accident Board of a claim under the workmen’s compensation act by an employee for compensation by reason of injuries received when, as he was on his way to perform the duty of “ringing out” on a time clock at the noon hour, he was knocked down by a fellow employee who-was pushed into him by another employee, the board found that the fellow employee who was pushed into the claimant “always bothered the men a great, deal by blocking the way to the clock so that the others could not” register; that the “object of the employees who pushed” the offending fellow employee “away from the time clock was to perform their duty of registering their time-with which he was interfering;” that a “natural incident” of the situation in the line at the clock was the forcible pushing away of the offending employee and the injury to the claimant, and “that the injury to the claimant . . . followed as a natural incident of his duty to his employer to register his time.”’ The board awarded compensation, and, upon certification to the Superior Court, a decree was entered accordingly, from which the insurer appealed. Held, that</p> <p>(1) There was no causal connection between the employment of the claimant and his injury;</p> <p>(2) The injury did not arise because the employee was exposed by the nature of his employment to some peculiar danger;</p> <p>(3) The injury did not follow as a natural incident to the employee’s work and did not arise out of his employment;</p> <p>(4) Decisions holding that an injury to a claimant from acts of a fellow employee who was known by the employer to be a man of dangerous disposition, or who was known to be given to play or fooling, had no application-</p>

<p>Petition, filed in the Supreme Judicial Court for the county of Suffolk on March 15,1921, by the commissioner of banks in possession of the property and business of the Prudential Trust Company of Boston, seeking authority to pay to the savings department of that trust company from funds in its commercial department the amount of a transfer of funds and securities from the savings department to the commercial department, and to return to the commercial department certain notes transferred from it to the savings department.</p> <p>The petition was referred to a master. Findings of the master relating to tracing of funds were as follows:</p> <p>“Various theories of law were advanced by counsel with regard to the tracing of funds in case the court finally determined that, by virtue of some development of the trust theory, these funds might be traced and restored. I find; in concise form, the following facts for the court’s assistance upon that point:</p> <p>“ (a) I find the total amount represented by unpaid balances of notes transferred by the commercial department to the sayings department to be $221,882.83.</p> <p>“ (b) I find the total amount given by the savings department to the commercial department, for which uncollected checks of the latter are now held, to be $63,528.03.</p> <p>"(c) I find the total amount under both (a) and (b) to be $285,410.86.</p> <p>" (d) I find that the entire amount of $285,410.86 was appropriated and used by the commercial department for its own benefit and purposes.</p> <p>“ (e) I find that of this money the sum of $207,782.33 is directly traced into the account of the commercial department in the Fourth Atlantic National Bank.</p> <p>“(f) I find that $62,628.53 is traced into the funds of the Prudential Trust Company in its banking rooms, and there loses its identity.</p> <p>“ (g) I find that $15,000 never in specie reached the Prudential Trust Company or its bank account. $10,000 was the set-off occurring in the Tremont Trust Company, and $5,000 going to pay a commercial department debt at the Hanover Trust Company.</p> <p>“ (h) I find that up to September 23, 1919, $72,510 of savings department money went into the account of the commercial department in the Fourth Atlantic National Bank. On September 23, 1919, the balance of the commercial department account in that bank dropped to $33,034.09. Between September 23, 1919, and January 23, 1920, $14,728.91 of savings department money went into said account. The next low mark of that account was - on January 23, 1920, when it stood at $67,925.19. Between January 23 and August 14,1920, $105,347.42 went in and the low balance on August 14 was $69,559.97. Between August 14, 1920, and September 10, 1920, $10,000 more went in. The balance of the fund on September 10, 1920, was $131,413.37. It should be noted that more money than is stated above actually was deposited, but I have subtracted from the gross figures the amounts theoretically returned by the payments on transferred notes while in the savings department.”</p> <p>Other material facts found by the master in his report are described in the opinion. The report was confirmed and the case then was reserved by Pierce, J., for determination by this court upon the petition, answers, and the master’s report.</p>

<p>Contract or tort, by the administrator of the estate of Mabel E. Burrows, late of Scituate, against her daughter with a decía-/ ration as amended in three counts for $659.63, alleged to have been withdrawn improperly from an account of the intestate in the Commonwealth Trust Company upon a check signed by the intestate and delivered to the defendant before the death of the intestate but not presented until after her death. Writ in the Municipal Court of the City of Boston dated July 8, 1920.</p> <p>Material facts found by the judge in the Municipal Court are described in the opinion. The plaintiff there asked for the following rulings:</p> <p>“The giving of a check without consideration on a bank which is not presented for payment prior to the death of the drawer, is not good delivery as against the administrator of the drawer’s estate.</p> <p>"If a check is drawn on a bank intended ás a gift without consideration and the check is given to the payee and before it is presented for payment the drawer dies, the gift is not completed by delivery and the drawee is not entitled to the funds.</p> <p>“A gift of checks under the circumstances shown here is not good as against creditors.”</p> <p>The judge refused to rule as requested, found for the defendant and, at the request of the plaintiff, reported the case to the Appellate Division. The Appellate Division ordered that an entry be made: “Finding vacated. Judgment for the plaintiff for $689.83.” The defendant appealed.</p>

<p>Contract for $350, rent alleged to be due under the provisions of a lease of a house and land in Watertown by the plaintiff to the defendant, and for damages alleged to have resulted from other breaches of the lease described in the opinion. Writ in the Municipal Court of the City of Boston dated September 23, 1920.</p> <p>The defendant filed a declaration in set-off, described in the opinion.</p> <p>On removal to the Superior Court, the action was tried before Morton, J. Material evidence, rulings and instructions made by the judge and exceptions saved by the defendant are described in the opinion. The jury found for the plaintiff in the sum of $426.30; and, by order of the judge, for the plaintiff (defendant in set-off) on the declaration in set-off. The defendant alleged exceptions.</p>

<p>Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board, more fully described below, relating to compensation to be paid to Annie Ramondetta for personal injuries received on March 15, 1918, while in the employ of the Ayer Mills.</p> <p>The findings of the single member of the board and of the full board are described in the opinion.</p> <p>In the Superior Court, the case was heard by Bell, J., by whose order, after he had ruled as described in the opinion, a decree was entered directing the insurer to pay to the claimant .$223.25 less $107.16 already paid on account of specific compensation. The insurer appealed.</p>

<p>Negligence, In use of motor car, In use of highway, Contributory, Imputed. Practice, Civil, Charge to jury, Exceptions.</p> <p>At the trial of an action against a street railway company for damages resulting from the plaintiff’s motor car being run into shortly after one o’clock on an afternoon in mid-July by a street car of the defendant after the motor car had skidded and tipped over upon the defendant’s track, there was uncontradicted evidence tending to show that, before the skidding, the plaintiff had been driving at the rate of twelve miles per hour. The plaintiff' testified that the surface of the street was oiled with some oil preparation and was more or less wet on account of a rain which had fallen the night and early morning before, and that before his car began to skid he did nothing that he recalled relative to either increasing or decreasing the speed of his car. Held, that</p> <p>(1) A ruling, that “The mere skidding of the car was not an occurrence of such uncommon or unusual character that, unexplained, the jury could say it furnished evidence of the plaintiff’s negligence,” asked for by the plaintiff and refused by the judge, should have been given;</p> <p>(2) The error in refusing the above ruling was not cured by an instruction, given by the judge, that the “mere skidding of his automobile, unexplained, is not necessarily evidence of negligence on” the part of the plaintiff.</p> <p>With the action above described there was tried an action by the wife of the plaintiff therein against the same defendant for personal injuries. The wife testified “that they were not going very fast; that she noticed nothing until they were in the car track and tipping over.” There was no other evidence of her conduct before the collision. The judge refused to rule that there was no evidence of contributory negligence on her part, and instructed the jury that “she would not be entitled to recover if, in the exercise of common prudence, she ought to have given some warning to her husband of carelessness upon his part, which she observed or might have observed in the exercise of due care, nor if she negligently abandoned the exercise of her own faculties and trusted entirely to the vigilance and care of her husband.” The judge further stated to the jury that he so instructed them because it was possible on the evidence that they might find the husband to have been negligent, “and that, while he cannot recover, you may then have to consider whether his wife can recover.” Held, that the ruling requested properly was refused, and that the instructions were adequate.</p> <p>At the trial of an action against a street railway company for damage to a motor car owned and driven by the plaintiff, which skidded upon a highway and turned over upon the defendant’s track, where it was struck by a street car, there was uncontradicted evidence that, at the time the car skidded, the plaintiff was driving at the rate of twelve miles an hour. It appeared that the defendant’s track was off the travelled way at the left hand side of the highway as the plaintiff was travelling. The plaintiff testified that the surface of the street was oiled with some oil preparation and was more or less wet on account of a rain which had fallen the night and early morning before, and that before his car began to skid he did nothing that he recalled relative to either increasing or decreasing the speed of his car. The plaintiff requested a ruling that there was no evidence that the speed of the motor car before it skidded was such as to establish negligence on the part of the plaintiff. The ruling was refused. Held, that the request could not properly have been granted.</p>

<p>Bill in equity, filed in the Superior Court on August 20, 1919, against Indiana Flooring Company, a corporation, and Samuel D. Elmore, alleged to be its attorney, seeking to restrain the defendants from taking out an execution upon a judgment, entered for the defendant corporation against the defendant, from attempting to enforce that judgment and for general relief.</p> <p>The suit was referred to a master. Material facts found by the master are described in the opinion. Neither party filed any exception to the report. Upon a hearing by Sanderson, J., there were entered by his order an interlocutory decree confirming the report and a final decree dismissing the bill with costs. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the-county of Suffolk on January 21, 1921, and afterwards amended, by Dudley L. Page and Charles N. Shaw against the corporation, The Page Si Shaw Chocolate Company, the corporation,, Page & Shaw, Incorporated, and Otis E. Dunham.</p> <p>The allegations of the bill as amended in substance were as-follows:</p> <p>For over twenty years previous to the year 1912 the plaintiffs-were copartners doing business under the firm name of Page-Si Shaw, and were engaged during all that period in the manufacture and sale of fine candies in Boston and elsewhere. The firm had become well and favorably known, and the name of’ Page Si Shaw had acquired great value as a trade name and trademark.</p> <p>In the early part of the year 1912 the firm was dissolved by mutual consent of the partners and a written agreement of dissolution was entered into, dated March 11, 1912, set out below. The plaintiff Shaw early in the year 1912 caused to be organized Under the general laws of Massachusetts the defendant corporation Page Si Shaw, Incorporated, to engage in and carry on the-business of manufacturing and selling candy and confectionery at wholesale and retail, and became the holder of the greater part of the stock of said company; and by an agreement in writing dated April 30, 1912, set out below, he undertook to convey to that corporation, with certain reservations not now material, “the wholesale business heretofore conducted by Charles N. Shaw individually and by Dudley L. Page and Charles N. Shaw under the firm name of Page Si Shaw for the manufacture of candy and confectionery, and except as hereinafter limited, the exclusive right to manufacture and to sell at wholesale and at retail the so-called Page & Shaw candy and confectionery, and to establish retail stores or agencies, or both, for the sale of such candy and confectionery, together with the goodwill, trademarks, trade names, and copyrights belonging to or appertaining to said business.” No right was conveyed to the said Page Si Shaw, Incorporated, by that or by any agreement to use the trade name Page & Shaw, except in the manufacture and sale by itself of ■fcandy and confectionery.</p> <p>In or previous to November, 1918, the defendant Dunham be--c&me the owner of all or substantially all of the common stock of Page & Shaw, Incorporated, and became the president and general manager of that corporation; and early in 1919 Page & Shaw, Incorporated, and Dunham, acting together, promoted the organization of a new corporation, the defendant The Page & Shaw •Chocolate Company. The principal business which the company was authorized to engage in, as shown by its agreement of association, was the manufacture and sale of chocolate and cocoa in various forms. The manufacture and sale of candy and confectionery was not included in its purposes.</p> <p>On February 20, 1920, the directors of The Page & Shaw Chocolate Company, including the defendant Dunham, held a •meeting and voted to issue three thousand five hundred shares •of the preferred stock of the company of the par value of $100 ■each and four thousand nine hundred and ninety seven shares of the common stock also of the par value of $100 each. The directors further voted to purchase from Page 8s Shaw, Incorporated, the right to use the name Page 8s Shaw, to be used as a part of the corporate name of The Page 8s Shaw Chocolate Company, and also to purchase from Page 8s Shaw, Incorporated, ■the good will attaching to the name Page 8s Shaw and to issue to Page 8s Shaw, Incorporated, in payment therefor common stock of The Page 8s Shaw Chocolate Company of the par value of $250,000, and to issue to Page 8s Shaw, Incorporated, other shares of the common stock of The Page 8s Shaw Chocolate ■Company of the par value of $249,700 in payment for a contract "by Page 8s Shaw, Incorporated, to purchase the entire output ■of The Page 8s Shaw Chocolate Company upon certain terms agreed upon. All of the defendants well knew that the names Page and Shaw which they were using or about to use-were the names of the plaintiffs respectively. The property received by the defendant Page 8s Shaw, Incorporated, for the use of the name Page 8s Shaw as aforesaid and for the good will attaching to it was of great value. On February 26, 1920, stock of The Page 8s Shaw Chocolate Company was issued pursuant to the votes, and Page & Shaw, Incorporated, now holds a considerable part of the stock so issued. Since the spring of 1920, The Page & Shaw Chocolate Company has been engaged in a large way in manufacturing chocolate of various kinds, cocoa such as is used for drinking, and cocoa butter such as is used in the manufacture of candy. It has sold its entire output to Page & Shaw, Incorporated, pursuant to the contract above mentioned.</p> <p>The plaintiffs did not know until shortly before the filing of the bill that The Page & Shaw Chocolate Company had been formed or that their names or the name Page & Shaw was being used by a new company, and they never consented either separately or jointly to the use of their names or the use of the name Page & Shaw by The Page & Shaw Chocolate Company as a part of its corporate name or as a trademark or trade name or otherwise.</p> <p>The plaintiffs alleged that “ each and all of the defendants have derived large sums of money or large amounts of property by means of their unlawful use of the plaintiffs’ names and goodwill as aforesaid and the plaintiffs have suffered great loss and damage by reason of such unlawful use; and the defendants are liable to account to the plaintiffs for the profits they have received and for the damages sustained by the plaintiffs, if the plaintiffs so elect.”</p> <p>Prayers of the bill were that the defendant Page & Shaw, Incorporated, and the defendant Dunham be ordered to account for what they received from The Page & Shaw Chocolate Company for the right to use the names of the plaintiffs and the good will as aforesaid, and to pay over and deliver the same or the proceeds of the same to the plaintiffs; or that the defendant The Page & Shaw Chocolate Company be permanently enjoined from using in its business or as a part of its corporate name or as a trade name or trademark the names of the plaintiffs or of either of them or the name Page & Shaw; and that it be determined how much the plaintiffs were entitled to as damages “by reason of the unlawful acts aforesaid and how much of the same should be paid by each of the defendants; and also how much the plaintiffs were entitled to by reason of the profits which the defendants or any of them had derived from the unlawful use of the names of the plaintiffs and said good-will, as aforesaid,” and “that each of the defendants be ordered to pay to the plaintiffs the several amounts which the plaintiffs are found entitled to receive as aforesaid.”</p> <p>The dissolution agreement between the plaintiffs was. dated March 11, 1912, and, so far as material, provided as follows:</p> <p>“Whereas said Page and said Shaw have heretofore been associated together in business and otherwise as partners and by the contracts and agreements heretofore executed, and whereas the said Shaw intends to incorporate his said business as wholesale manufacturer of candy, and that, therefore, it is necessary and desirable that the mutual rights and obligations of the said Page and the said Shaw be established and herein definitely set forth.</p> <p>“Therefore . . .</p> <p>“ (1) The said Dudley L. Page hereby sells, assigns, transfers, and releases to the said Charles N. Shaw, his heirs, executors, administrators, or assigns, any and all right, title, and interest in or unto the lease, stock, fixtures, good-will, or any other appurtenance or accessory connected with or appertaining to the business of ‘Page & Shaw’, or in the business of Charles N. Shaw in the manufacture and sale of candy and confectionery now conducted by Charles N. Shaw at No. 9 West Street, Boston, or elsewhere; and hereby assigns and conveys to the said Charles N. Shaw, his heirs, executors, administrators, and assigns, the right to use the name ‘Page’ accompanied by the name ‘Shaw’ as the trade name or trade-mark in the business of the manufacture or sale of candy.</p> <p>“(2) The said Dudley L. Page further agrees and contracts that he will not use the name ‘Page’ alone or in any combination with any other name or names in any manner which will imitate or represent in any way the trade name or trade-mark of Page & Shaw, or the initials of the two names i.e. ‘P&S’. The said Dudley L. Page, however, reserves the right to manufacture and sell candy under his own name. . . .</p> <p>“I. In consideration of the foregoing, the said Charles N. Shaw agrees to incorporate his business of manufacturing candy and confectionery under the laws of the Commonwealth of Massachusetts, and as a part consideration for the assignments and releases of the said Dudley L. Page hereinbefore set forth, agrees to issue in the name of the said Dudley L. Page or in such name as he, the said Page, shall direct, capital stock of the said Corporation in the sum of $10,000 par value of preferred stock, and in the sum of $10,000 par value of the common stock.</p> <p>"II. The said Charles N. Shaw further agrees to pay to the said Dudley L. Page as an annuity during the lifetime of the said Dudley L. Page, but no longer, the sum of four thousand dollars, ($4,000) per annum payable in equal quarterly installments; and the said Charles N. Shaw further agrees to secure the payment of this annuity to the said Dudley L. Page by good and sufficient collateral security as may be agreed upon by and between the said Dudley L. Page and the said Charles N. Shaw subsequently, provided, however, that if the said Charles N. Shaw shall die before the said Dudley L. Page, the said annuity shall cease at the death of the said Shaw. . . .”</p> <p>The conveyance by the plaintiff Shaw to Page & Shaw, Incorporated, was dated April 30, 1912, and, so far as material, purported to convey</p> <p>"(1) All furniture, fixtures, machinery, accessories, and appliances now installed in the factory at Cambridge, Mass., and all stock in trade in said factory including all supplies for the manufacture of candy or confectionery on hand in said factory on March 26, 1912, and all candy and confectionery manufactured or in the process of manufacture on said date; and all book accounts and accounts receivable due for the sale of candy and confectionery in said factory and unpaid on said date, the said corporation assuming the accounts payable on such date.</p> <p>" (2) The wholesale business heretofore conducted by Charles N. Shaw individually, and by Dudley L. Page and Charles N. Shaw co-partners under the firm name of Page & Shaw, for the manufacture of candy and confectionery, and except as hereinafter limited, the exclusive right to manufacture and to sell at wholesale and at retail the so-called Page & Shaw candy and confectionery, and to establish retail stores or agencies or both for the sale of such candy and confectionery, together with the goodwill, trade-marks, trade names, and copyrights belonging to or appertaining to said business [here follow certain reservations not material to this decision]].’</p> <p>The defendants demurred to the bill as amended on the following grounds:</p> <p>"1. The plaintiffs are improperly joined as plaintiffs in this suit.</p> <p>“2. The causes of action, if any, of the two plaintiffs are improperly joined.</p> <p>“3. The bill of complaint as amended is multifarious.</p> <p>“4. The bill of complaint as amended does not state facts entitling the plaintiffs, or either of them, to relief in equity.</p> <p>“5. The bill of complaint as amended does not state facts entitling the plaintiffs, or either of them, to the relief prayed for.</p> <p>“6. It does not appear that the plaintiffs, or either of them, are entitled to recover the profits, if any, derived by the defendants, or any or either of them, from the use of the name ‘Page & Shaw.’</p> <p>“7. It does not appear that the plaintiffs, or either of them, have sustained any damages.</p> <p>“8. It does not appear that either the word ‘Page’ or the word ‘Shaw’ has been used by the defendants, or any or either of them, in a manner not authorized by the plaintiffs.</p> <p>“9. It does not appear that any property received by Page & Shaw, Inc., for any name or for any good-will is affected with a trust in favor of the plaintiffs, or of either of them.</p> <p>“10. It does not appear that any profits have been derived by the defendants, or by any or either of them, from the use by them, or by any of them, of the name ‘Page’ or of the name ‘Shaw’ in a manner not authorized by the plaintiffs.</p> <p>“11. It appears that the phrase ‘Page & Shaw’ is a trademark and trade name owned by the defendant Page & Shaw, Inc., and that neither of the plaintiffs is entitled to object to any use thereof, and particularly that neither of the plaintiffs is entitled to object to such use thereof as is alleged in the bill of complaint.</p> <p>‘12. It does not appear that either plaintiff is entitled to relief against the defendant Dunham.”</p> <p>The demurrer was heard by Crosby, J., and by his order an interlocutory decree was entered overruling it, from which the defendants appealed. The single justice, being of opinion that the overruling of the demurrer so affected the merits of the controversy that the matter, before further proceedings, ought to be determined by the full court, reported the case for such determination, the bill to be dismissed if the demurrer was sustained. and, if it was overruled, the defendants to answer to the amended bill.</p>

<p>Petition, filed in the-Probate Court for the county of Middle-sex on January 22, 1921, for the allowance of an instrument alleged to be the will of George H. Caldwell, late of Newton.</p> <p>In the Probate Court, the petition was heard by Leggat, J., a commissioner having been appointed to take the testimony. Material evidence, rulings by the judge and exceptions by the contestants, are described in the opinion. By order of the judge, a decree was entered which contained a ruling “that the contestants had not made out a case which would entitle them to appear” and allowed the will. The contestants appealed.</p>

<p>Tort under St. 1917, c. 344, Part IV, § 23, by the administrator of the estate of Ethel Andresen for the loss of the life of the intestate by reason of her being struck by a limb of a tree falling upon a sidewalk in Lexington. Writ dated July 21, 1919.</p> <p>In the Superior Court, the action was heard by Shaw, J., without a jury, upon an agreed statement of facts. Material facts are described in the opinion. At the close of the evidence, the defendant asked for the following among other rulings: 2. “Upon the agreed statement of facts and inferences of fact to be drawn therefrom, I find that the conditions with reference to the limb which caused the plaintiff’s intestate’s death did not constitute a defect in the highway.”</p> <p>The ruling was refused. The judge found for the plaintiff in the sum of $750; and the defendant alleged exceptions.</p>

<p>. Petition, filed in the Land Court on August 28,1921, for the registration of the title to a parcel of land, formerly owned by George Wales Soren, on Main Street in Tisbury north of the middle line of Horton’s Lane. • '</p> <p>In the Land Court the petition was heard by Corbett, J. Material facts found by him and agreed to by the parties are described in the opinion.</p> <p>Subject to exceptions by the petitioner, the judge. refused requests of the petitioner for the following rulings:</p> <p>“1. On the evidence and the agreed facts the petitioner is entitled to a decree and order of registration.</p> <p>“2. The devise to the Boston Young Women’s Christian Association lapsed on May 3, 1913, because said Association had not up to that time delivered to G. W. Soren’s executor an agreement in writing legally binding said Association and its successors to perform the conditions of the second clause of the second- codicil.</p> <p>“3. The devise to the Salvation Army, Inc., lapsed on May 3, 1914, because said devisee had not up to that time delivered to G. W. Soren’s executor an agreement in writing legally binding said devisee to perform the conditions of the second clause of the second codicil.”</p> <p>“6. Neither the Boston Young Women’s Christian Association, nor the Salvation Army, Inc., nor the Woman’s Seaman’s Friend Society were entitled to actual notice of the devises or the conditions annexed thereto.</p> <p>“7. There was no duty imposed by law or equity upon the executor, or the administrator, or the heirs, or any other person to give actual notice to the Boston Young Women’s Christian Association, or to the Salvation Army, Inc., or to the Woman’s Seaman’s Friend Society, of these devises.</p> <p>“8. The fact that the Boston Young Women’s Christian Association and the Salvation Army, Inc., had no actual notice or knowledge of the devises and of the conditions annexed thereto until after the expiration of the times limited in the second clause of the second codicil for the performance of the conditions thereof relative to delivering an agreement in writing, is immaterial.</p> <p>“9. The condition relative to the delivery of a written agreement by the Boston Young Women’s Christian Association and by the Salvation Army, Inc., was a condition precedent.</p> <p>“10. The delivery by the Boston Young Women’s Christian Association of a written paper to the executor or administrator in May, 1916, was not a compliance with, or performance of, the condition in the second clause of the second codicil, and had no legal effect.”</p> <p>Of rulings asked for by the respondent, Boston Young Women’s Christian Association, the judge, subject to exceptions by the petitioner, gave the following:</p> <p>“1. The title to the premises is in the Boston Young Women’s Christian Association in fee simple under the second article of the second codicil of the will of George Wales Soren.”</p> <p>“7. The Boston Young Women’s Christian Association having never been in possession of the devised land and not having received the funds referred to in the second article of the second codicil of the will of George Wales Soren until June 30, 1920, there is no violation of failure to perform the agreement referred to in said article for two successive years.</p> <p>“8. The conditions annexed to the devise to the Boston Young Women’s Christian Association contained in Article Two of the . second codicil to the will of George Wales Soren are conditions subsequent.</p> <p>“9. The provisions contained in the second article of the second codicil to the will of George Wales Soren directing the Young Women’s Christian- Association to deliver an agreement to the Executors within one year after the probate of the will is subject to the tacit qualification that the Association receive seasonable notice of the probate of the will.”</p> <p>Of rulings asked for by respondents who were heirs of the testator, the judge, subject to exceptions by the petitioner, gave the following:</p> <p>“1. Upon all of the evidence and agreed facts, the petitioner is not entitled to have the land registered in its name at this time.</p> <p>“2. The devise to the Young Women’s Christian Association is a devise in fee simple, subject to be divested by the failure to comply with a condition subsequent.</p> <p>"3. The devise to the Salvation Army is a devise in fee simple, and is valid only as an executory devise.”</p> <p>“9. The land in question, being located in Massachusetts, makes it obligatory to construe the devises according to the law of this Commonwealth.”</p> <p>The petitioner further excepted to “findings and rulings to the following effect:</p> <p>“1. That the testator’s intent clearly was that the Boston Young Women’s Christian Association should not have the funds except for the purposes as stated by the testator.</p> <p>“2. That it is beyond reason to say that he (the testator) ever expected it (the Boston Young Women’s Christian Association) to accept the devise and its condition unless it had knowledge of the same.</p> <p>“3. That what the testator had in mind was — not that the title should be divested without ever having an opportunity to accept the conditions.</p> <p>“4. That the devise in the case at bar is upon a condition subsequent.</p> <p>. “5. That there is any distinction, so far as notice is concerned, between an individual devisee and a charitable corporation.</p> <p>"6. That there was any duty on the executor to give to the devisees notice of the devise.</p> <p>“7. That it was as much the duty of the executor to see to it that this charity was established as it would have been to pay an unconditional gift of money to an individual legatee.</p> <p>“8. That the testator desired that an opportunity should be given to the Boston Young Women’s Christian Association to accept the gift.</p> <p>“9. That the testator undoubtedly believed that all the charitable corporations named in the will would have notice of it.-</p> <p>“10. That the filing of the agreement by the Boston Young Women’s Christian Association was a sufficient compliance with the conditional provision of the devise in that regard.</p> <p>“11. That the petition must be dismissed.”</p> <p>The Boston Young Women’s Christian Association excepted to the refusal of the judge to give rulings requested by it, as follows:</p> <p>“2. The limitations over to the Salvation Army and the Woman's Seamen’s Friend Society under the second article of the second codicil of the will of George Wales Soren are void as repugnant to the gift of the fee simple to the Boston Young Women’s Christian Association.</p> <p>"3. The conditions attempted to be imposed on the land devised to the Boston Young Women’s Christian Association under the second article of the second codicil of the will of George Wales Soren are void as repugnant to the gift to said Association in fee simple. -</p> <p>“4. The provision in the second article of the second codicil to the will of George Wales Soren directing the Boston Young Women’s Christian Association to deliver an agreement in writing legally binding the Association to perform the conditions and requirements referred to in said article is void.</p> <p>“5. The provisions of the second article of the second codicil of the will of George Wales Soren that the Boston Young Women’s Christian Association shall deliver to his executors an agreement in writing legally binding the Association to perform the conditions and requirements referred to in said article within one year from the probate of his will are directory only.</p> <p>“6. The Boston Young Women’s Christian Association is entitled to equitable relief from the condition requiring it to deliver an agreement in writing to the executors of the will of George Wales Soren within one year after the probate of said will, all as referred to in the second codicil of said will for the reason that it had no notice of the probate of said will and had no means of knowing the same until long after the year referred to had expired and because said Association within a reasonable time after it acquired such knowledge delivered to the successor of the executor the agreement called for by said article and for the further reason that it appears that it has always been ready and willing and is now ready and willing to carry out the valid provisions contained in said article. So long as this right to equitable relief exists the petitioner’s title cannot be registered.” The Boston Young Women’s Christian Association also excepted to the granting by the judge of rulings requested by the petitioner, as follows:</p> <p>“5. The devises to the Salvation Army, Inc., and to the Woman’s Seaman’s Friend Society were valid executory devises, the first of which was liable to be defeated by said devisee’s failure, neglect, or omission to perform the condition relative to delivering a written agreement.”</p> <p>The Association also excepted to the granting of a ruling asked for by the heirs of George Wales Soren, as follows:</p> <p>“2. The devise to the Young Women’s Christian Association is a devise in fee simple, subject to be divested by the failure to comply with a condition subsequent.”</p> <p>The petitioner and the Association filed separate bills of exceptions.</p>

<p>Contract for $562.50 alleged to have been due under an agreement relating to advertising to be done for the defendant by the plaintiff. Writ dated February 26, 1919.</p> <p>In the Superior Court the action was referred to’ an auditor. Material findings of the auditor are described in the opinion. The action was heard by McLaughlin, J., without a jury, upon the auditor’s report and an “excerpt from testimony of one Schnell,” which formed part of the record.</p> <p>The plaintiff asked the trial judge to rule that upon all the evidence the plaintiff was entitled to recover the sum of $562.50 as damages for breach of the contract. The judge refused so to rule; but he did rule that the plaintiff had no claim against the defendant except by virtue of the contract, that its only remedy was for damages for breach of the contract, that the publication of the defendant’s name, address and warerooms against the protest of the defendant was not such a substantia] performance of the contract on the part of the plaintiff as would entitle it to recover for such publication, that the addition of three full pages to each of the three monthly issues immediately following November 20, 1915, against the protest of the defendant was not such a substantial performance of the contract on the part of the plaintiff as would entitle it to recover for such publication; and he found for the plaintiff in the sum of $58.34. The plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on April 30, 1921, and afterwards amended, by the surviving trustee under the will of Richard S. Fay, late of Boston, for instructions.</p> <p>John G. Palfrey, Esquire, was appointed guardian ad litem for certain minors.</p> <p>By order of Braley, J., the suit was reserved upon the pleadings for determination by the full court.</p>

<p>Duress. Fraud. Deed, Validity. Evidence, Competency.</p> <p>At the trial of a writ of entry, brought by one who had purchased the demanded premises at a sale in foreclosure of a mortgage given by the tenant, the tenant contended that the mortgage was procured by duress. It appeared that the tenant was the mother of a debtor of a corporation and that he had forged her name as an indorser upon notes which he gave the corporation in payment; that after negotiations between an attorney for the son and an attorney for the corporation and for its treasurer, the tenant gave the mortgage to the president of the corporation, the forged notes were surrendered, and the mortgage was assigned to the corporation and by it was foreclosed by sale to its treasurer, the demandant, who, it was agreed, “took title with full notice and knowledge of the tenant’s claim that the mortgage was obtained by duress and was voidable.” There was evidence tending to show that the attorney for the corporation, acting within the scope of a retainer to obtain payment or security for the payment of the notes, stated in substance to the attorney for the tenant’s son that, if the mortgage was not given, the son would have to goto jail, and intended and proposed to the son’s attorney that he should cause the tenant to be informed of the attitude and demands of the corporation; that such information was given to the tenant by the son’s attorney; that the demandant, treasurer of the corporation in charge of the negotiations, with full knowledge acquiesced therein, and that the mortgage was executed by the tenant “for fear of the consequences” of her not doing so. Held, that</p> <p>(1) The representations and knowledge of the attorney for the corporation in the circumstances were binding upon the corporation and the demandant;</p> <p>(2) Testimony of the attorneys, respectively for the corporation and for the son, detailing the history of their negotiations, was admissible as evidence;</p> <p>(3) In the circumstances, the fact, that neither the attorney nor any representative of the corporation “saw or communicated [directly]] with the tenant” or her husband about “ these forgeries, or the giving of the mortgage in question,” was immaterial;</p> <p>(4) A finding was warranted that the mortgage was procured or obtained by duress by the corporation or by its president or by an agent, servant or attorney of one of them.</p>

<p>Petition, filed in the Superior Court on November 12, 1919, for the assessment by a jury of damages resulting to the petitioners from the taking by the respondent for the purpose of protecting and increasing its water supply for domestic use of approximately three hundred and ninety-two thousand, eight hundred and sixty-six square feet of land of the petitioners, bounded in part by the Pawtucket Boulevard, the Old Ferry Road and other land of the respondent.</p> <p>In the Superior Court, the petition was tried before Fosdich, J.</p> <p>One Simon B. Harris, referred to in the opinion as “the petitioner’s remaining expert,” testified as to his qualifications as an expert on land values in the vicinity of the land in question and his acquaintance with it for about fifty years, and described it. He also testified "that he had heard of sales within the vicinity of the land in question;—he knew of none of his own knowledge.” Subject to an exception by the respondent, he was permitted to give his. opinion of the fair market value of the land in question.</p> <p>Other proceedings at the trial and material evidence are described in the opinion. The jury found for the petitioners in the sum of $7,975; and the respondent alleged exceptions.</p>

Contract for $595.44 and interest upon a judgment obtained by the plaintiff against the defendant on January 10, 1902, in the Municipal Court of the City of Boston. Writ dated January 3, 1921. The defendant set up a discharge of the defendant in bankruptcy dated May 12, 1903, following his adjudication as a bankrupt on March 5, 1902.

<p>Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board affirming and adopting findings of a single board member, who heard the evidence, that the claimant, the widow and dependent of Charles Feldman, who, she alleged, died while in the employ of Jacob Bikofsky, had “failed to sustain the burden which is upon her of. proving that the death of her husband was due to a personal injury which arose out of and in the course of his employment.”</p> <p>In the Superior Court, the claim was heard by Hammond, J. Material evidence appearing on the record is described in the opinion. He ruled that the decision appealed from was upon a pure question,of fact and by his order a decree was entered, in accordance with the decision of the Industrial Accident Board,, dismissing the claim. The claimant appealed.</p>

<p>Contract by the collector of taxes of the city of Lowell to recover a personal property tax alleged to be due from the defendant for the year 1916. Writ dated March 30, 1918.</p> <p>In the Superior Court, the action was heard by Hammond, J., without a jury. Material evidence and the substance of requests for rulings are described in the opinion. The judge found “ that as to the intent of the defendant in March, 1916, when he hired half of the Parker house [in Dunstable], he intended to live in the manner in which he has actually lived since that time, and that, so far as consistent with so living, he intended to be an inhabitant of the town of Dunstable and to acquire a domicil there, but that to live in the manner in which he has lived did not seem to me to amount in a real and just sense to making Dunstable the defendant’s home.” The judge found for the plaintiff in the sum of $9,283.17 with interest from the date of the writ and reported the action to this court for determination.</p>

<p>Bill in equity, bégun in the Superior Court by writ of attachment dated May 12, 1919, to which was attached a bill of complaint, afterwards amended, seeking an accounting from the defendant as to certain alleged partnership transactions in securities.</p> <p>In the Superior Court the suit was referred to a master on November 30,1920, by a rule directing him “to hear the parties and their evidence and report his findings to the court together with such facts and questions of .law as either party may request.” Upon a motion by the plaintiff, representing, among other things, “that the plaintiff and defendant have both submitted their evidence upon the issue as to whether the defendant must be held to render an account of transactions for the joint account made under his supervision during the period of his connection with Henshaw and Company,” an order was entered on February 1, 1921, modifying the rule and directing that the master “forthwith, upon the evidence now before him, report to the court his finding of facts with reference to the right of the plaintiff to any recovery or accounting; and take no further action under the rule directed to him until further order from the court.”</p> <p>Material findings of the master are described in the opinion. The suit afterwards was heard by Wait, J., by whose order there were entered an interlocutory decree overruling exceptions of both parties to the report of the master, and a final decree dismissing the bill.</p>

<p>Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board upon the claim of the widow of George Fernald, who was alleged to have died as the result of a bullet wound received in the course of his employment by Mitchell and Company, Incorporated. The board affirmed and adopted findings and rulings of a single member of the board, who heard the evidence, decided that the injury which resulted in the death of the employee arose out of and in the course of his employment, and awarded -compensation to the claimant.</p> <p>In the Superior Court the claim was heard by Keating, J. Material evidence is described in the opinion. The insurer moved that the case be recommitted to the board for hearing of newly discovered evidence. The motion was denied; and the insurer appealed. By order of the judge, a decree then was entered in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p>

<p>Estoppel. ,Replevin. Corporation, Officers and agents.</p> <p>.At the trial of an action of replevin of a motor car, it appeared that the defendant was a corporation whose president and controlling stockholder as an individual had purchased the car, giving therefor his notes under a conditional bill of sale; that later the vendor had assigned the notes and the contract of conditional sale to one from whom, upon payment of the notes, the defendant corporation had taken it by assignment; but that, in the meantime, the original vendee had returned the car to the original vendor and had demanded but had not received back his contract of conditional sale and notes, and the original vendor then resold the car to one from whom the plaintiff had derived his title. There was -evidence tending to show that the first vendee was present at the negotiations "which resulted in the resale, that, with full knowledge of his own status of ownership, he had stood by and without speaking had permitted the original vendor, who was in a,ctual possession, to appear to be the real owner of the car with full power of disposition, and that the prospective buyer at the resale, being deceived "by this attitude of the first vendee not only at the time of the purchase but -also during previous conversations about the car, as the first vendee had reasonable cause to know and believe he would be, and having no' information of the true state of affairs, was induced to buy the car in which the first vendee still "had enforceable rights, which, if exercised, would confer a good title. Held, that</p> <p>(1) The evidence was sufficient to justify a finding of estoppel of the defendant to deny the plaintiff’s title;</p> <p>(2) The defendant corporation was bound by the knowledge possessed by its president, who was the first vendee, and could have no greater rights than would have been his had he been defendant.</p>

<p>Equity Pleading and Practice, Appeal; Master: motion to recommit report, motion to set aside report, motion to report evidence, exceptions to findings of fact, exceptions to refusal to find certain facts; Bill; Variance; Decree. Equity Jurisdiction, Accounting.</p> <p>A motion in a suit in equity, supported by an affidavit which sets forth excerpts from testimony taken before a master and seeking a recommittal of tire master’s report for the finding of certain facts not reported, is addressed to the sound discretion of the trial judge, and an interlocutory decree denying the motion will not be reversed on appeal where no abuse of discretion is shown.</p> <p>A suit in equity was referred to a master “to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.” The master filed a report containing a report of facts found by him but no report of evidence. The defendant moved that the report be set aside and that the evidence be reported. At the hearing of the motion, a transcript of all the evidence taken by the master was before the 1 judge by agreement of the parties. The motion was denied and the defendant appealed. Held, that the motion was addressed to the sound discretion of the judge and that no abuse of discretion was shown.</p> <p>Under a rule in a suit in equity directing a master "to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request,” the master cannot be required to make certain findings of fact, and an exception to his refusal to do so must be overruled.</p> <p>Upon an appeal by the defendant in a suit in equity from a final decree awarding pecuniary damages to the plaintiff, a corporation, it appeared that the bill was for an accounting by the defendant as to certain joint enterprises set forth in the bill. The bill contained averments .in substance that, following certain joint enterprises between the plaintiff and a former employer of the defendant, who had retired from business, the plaintiff and the defendant entered into an agreement, by the terms of which each in consideration of the promise of the other promised to the other that each should have one half of the net profits of the business thereafter done by the other and after the manner of the similar arrangement which up to that time had subsisted for many years between the plaintiff and the defendant’s former employer; that pursuant thereto the plaintiff and the defendant had bought and sold wool, sometimes in the name of the defendant and sometimes in the name of the plaintiff; that the enterprise had come to an end and that the defendant had refused to account. The defendant answered in substance that, if made, the agreement was void because it was one of partnership and therefore beyond the plaintiff’s corporate powers; that the agreement had to do only with one kind of wool and that the plaintiff was to receive only such profit as the defendant determined. A master found that there was no agreement for an equal division of profits, but that the parties “agreed generally to go in together on joint adventures,” that each joint enterprise or series of enterprises was a unit by itself, and that the terms of the different joint ventures were not always the same; he stated the facts as to certain transactions which he found to be joint and also stated an accounting which was the basis of the final decree. Held, that</p> <p>(1) The question of the nature of the transactions was one of mixed law and fact and was for the master to decide;</p> <p>(2) Upon the findings of the master, the defence that the contract was voidable was untenable;</p> <p>(3) An objection that the defendant was held liable outside of the scope of the bill was not well founded;</p> <p>(4) The master’s findings were decisive of the defence that the plaintiff’s share of profits was to be fixed and determined by the defendant;</p> <p>(5) There was no material variance between the contract as set out in the bill and the contract as found by the master;</p> <p>(6) The allegations of the bill were broad enough to include the joint transactions found and described in the master’s report;</p> <p>(7) No reversible error was shown.</p>

<p>Marriage and Divorce, Nullity of marriage; Procedure: decree, appeal, report.</p> <p>A decree dismissing a libel for nullity of a marriage, entered before the expiration of twenty days after notice of the decision of the trial judge ordering the decree, has no effect as a final decree from which an appeal may be taken; but it may be given effect as an order for a decree, so that the case may be brought before this court for determination by a report of the trial judge, filed a year and five months after his decision and order for a decree and the attempted entry of a final decree.</p> <p>A libel by a man for nullity of a marriage on the ground that the libellee "entered the holy estate of matrimony fraudulently and without intent to perform her marriage vows and obligations, and without intent to perform sexual and marital duties, and without intent to bear children but with intent to deceive your petitioner, and that your petitioner was deceived,” must be dismissed where the judge who heard the case, while finding that, beginning about two years and eight months after the marriage, the libellee had continuously, wilfully and without justification refused to have sexual intercourse with the libellant and that during that period there had been no such intercourse, also stated that he was unable to find upon the evidence that the parties never had had intercourse, and found that the libellee did not marry the libellant intending never to have sexual intercourse with him.</p>

<p>Tort for trespass quare clausum fregit. Writ in the District Court of Northern Berkshire dated August 22, 1919.</p> <p>On appeal to the Superior Court, the action was tried before Irwin, J.</p> <p>The alleged trespass consisted of the driving of pipes of iron and the stringing of wire connecting same for, approximately, a distance of thirty feet, extended southerly from Main Street in the village of Blackinton in North Adams. The common boundary line of the respective lands of the parties was near the line of wire. The plaintiffs contended that the line of wire was on their land. The defendant admitted driving the iron pipes and stringing the wire, but contended that title to the locus was not in the plaintiffs but was in the defendant. The line of iron pipes was approximately nine inches westerly of what the plaintiffs contended to be the easterly line of their land. The plaintiffs claimed only nominal damages.</p> <p>The deeds relied on by the plaintiffs to establish their title are described in the opinion.</p> <p> </p> <p>A “plan of Alice P. Sayre Tract, Blackinton, Mass.; Scale 10 feet to an inch; W. N. Tuller, C. E.,” was introduced in evidence by the plaintiffs and marked Exhibit “H.” The essential features of this plan, not drawn to scale, are reproduced above. The iron pipes driven by the defendant near the boundary between his land and the plaintiffs’ are shown at the easterly side of the plan. The amount of curve of Massachusetts Avenue (formerly Main Street) and the distance between the spike and the iron pipe at the northeastern corner are exaggerated to permit adequate reproduction here.</p> <p>The northeastern corner of the land of James R. Reynolds, shown on the plan, was located by a spike driven in the southerly side of the sidewalk of Main Street, and its location was not in dispute. The easterly line of Reynolds’ land also was not in dispute. Main Street, West Main Street and Massachusetts Avenue are different names of the same highway.</p> <p>It was admitted by the defendant that a straight line drawn between the two iron pipes driven by the defendant at the northeast and southeast corner of Sayre land, which the plaintiffs contended constituted a trespass upon their land, would not be parallel with the easterly line of land of James R. Reynolds.</p> <p>The plaintiffs introduced evidence tending to show that in 1888 and from that time to 1895, Main Street, as then used between those dates, was a straight street, that in the year 1895, its course was changed from a straight street to a curved street and that it has so existed and been so used continuously from 1895 to the present time.. The defendant contended and introduced evidence tending to show that Main Street at the place indicated had always been curved.</p> <p>It “was conceded and not in dispute” that, if the three hundred and seventeen feet which constituted the sum of the measurements on Main Street called for in the descriptions in the three deeds of Sayre to Reed, as given in the opinion, were measured easterly from the northeast corner of land of James R. Reynolds along the southerly line of the sidewalk of Main Street as it was curved and had been used since 1895, the locus of the alleged trespass would not be on the plaintiff’s land; but that, if that three hundred and seventeen feet were measured from the northeast corner of land of Reynolds along a straight line and a straight street, as the jury found the street to be in 1888, the locus of the alleged trespass would be on the plaintiffs’ land.</p> <p>It further was “conceded” that, if the southerly line of Main Street, as found by the jury to have been straight in 1888, is the monument which controls the construction and fixes the extent of the grants in the various deeds from the S. Blackinton Woolen Company to Alice P. Sayre and from her to Emily M. Reed and by Emily M. Reed to the plaintiffs, the plaintiffs own the land where the alleged trespass was committed; but that, if the curved Main Street, as used continuously since 1895, is the monument which controls the construction and fixes the extent of the grants from Alice P. Sayre to Emily M. Reed and from Emily M. Reed to the plaintiffs, then the alleged trespass was not committed on land of the plaintiffs.</p> <p>At the close of the evidence, the defendant asked for the following rulings:</p> <p>“1. That upon the evidence the plaintiffs can not recover.</p> <p>“2. That the northeast corner of plaintiffs’ land is fixed by starting at the northeast corner of land of Reynolds, on the southerly side of ‘Main Street,’ as it existed and was used in 1918, at the time of plaintiffs’ deed, and measuring easterly along said southerly side of said Main Street, as then used.</p> <p>“3. The easterly line of plaintiffs’ land was located by their deed at a point westerly of the place where it is alleged the trespass was committed.</p> <p>“4. The place where it is claimed the trespass was committed, was by construction of the deeds introduced in evidence, upon land of defendant.</p> <p>“5. The place of the alleged trespass was easterly of the easterly line of plaintiffs’ land.”</p> <p>The judge refused to rule as requested, and submitted the following special question to the jury: “Was the line of the highway upon which the land conveyed to Alice P. Sayre by Blackinton Woolen Company by deeds dated January 23, 1888, and February 28, 1888, straight, or was it at that time curved as represented on a plan marked ‘H’”? The jury answered that the line of the street in the year 1888 was straight. Upon the return of the jury’s answer to the special question, the judge ordered the jury to return a verdict for the plaintiffs and to assess damages in the sum of $1. The defendant alleged exceptions.</p>

<p>Contract, with a declaration upon an account annexed stating a balance of $1,301.35 and interest alleged to be due to the plaintiff for “furnishing labor and materials for plumbing three houses on Chestnut Street.” Writ dated September 19, 1919.</p> <p>In the Superior Court, the action was tried before Hammond, J. Material evidence, portions of the charge to the jury objected to by the defendant and exceptions saved by the defendant are described in the opinion. The jury found for the plaintiff in the sum of $1,576.61; and the defendant alleged exceptions.</p>

<p>The following order was passed by the Senate on February 16, 1922, and was transmitted to the Justices of the Supreme Judicial Court on February 27, 1922.</p> <p>Whereas, The Governor of the Commonwealth has recommended to the General Court that the opinions of the Justices of the Supreme Judicial Court be obtained as to “whether the spirit and meaning of the Nineteenth Amendment to the Federal Constitution has not given to women the right to hold all offices under the Constitution of Massachusetts,” and</p> <p>Whereas, There is pending before the General Court a bill entitled “An Act further to define the eligibility of women for public office,” presented as Senate Bill No. 58, a copy of which is hereto annexed, and which provides, inter alla, that women shall be eligible for election or appointment to all elective offices, to all judicial offices within the Commonwealth and to all offices to be filled by all the voters of the Commonwealth or of any political subdivision thereof, and</p> <p>Whereas, Doubt exists as to the constitutionality of such a. bill if enacted into law, therefore be it</p> <p>Ordered, That the General Court require the opinions of the-Justices of the Supreme Judicial Court on the following important, questions of law: —</p> <p>(1) Has the adoption of the Nineteenth Amendment to the-Federal Constitution conferring the suffrage upon women so far-affected the status of women as to render it constitutionally competent for the General Court to enact legislation declaring-women eligible to hold any public office, elective or appointive, within the Commonwealth?</p> <p>(2) Has the adoption of said Nineteenth Amendment had the-effect of rendering women eligible to hold an office from which they were previously excluded by the Constitution of the Commonwealth?</p> <p>■ (3) From what, if any, elective or appointive offices in the-Commonwealth are women excluded by the Constitution of the-Commonwealth?</p> <p>(4) Is.it necessary to amend the Constitution, National or State, or to enact legislation, in order to render women eligible for election as Senators and Representatives in Congress?</p> <p>The bill, a copy of which accompanied the order, was as follows:</p> <p>An Act further to define the eligibility of women for public office.</p> <p>Whereas, The deferred operation of this act would cause great inconvenience in determining the rights of women at the primaries and elections for the year nineteen hundred and twenty-two; therefore it is hereby declared to be an emergency law necessary for the immediate preservation of public convenience.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:</p> <p>Section 1. Women shall be eligible to election or appointment to all elective offices and all judicial offices within the Commonwealth and to all other public executive or administrative offices, public commissions and public organizations, agencies, positions and employments.</p> <p>Section 2. Section seven (a) of chapter thirty of the General Laws as amended by section three of chapter four hundred and forty-nine of the acts of nineteen hundred and twenty-one is hereby further amended by striking out said section .and substituting therefor the following: Section 7 (a) Women shall be eligible to appointment to all state executive or administrative offices, all state commissions and all other state organizations, agencies, positions and employments.</p> <p>Section 3. Section three (a) of chapter thirty-four of the General Laws as amended by section four of chapter four hundred .and forty-nine of the acts of nineteen hundred and twenty-one is hereby further amended by striking out said section and substituting therefor the following: Section 3 (a) Women shall be ■eligible to election or appointment to all county elective offices, all county executive or administrative offices, county commissions and •all other county organizations, agencies, positions and employments.</p> <p>Section 4. Chapter thirty-nine of the General Laws is hereby amended by inserting after section two the following new section: Section 2 (a). Women shall be eligible to election or appointment to all city elective offices, all city executive or administrative ■offices, city commissions and all other city organizations, agencies, positions and employments; and this section shall include within its scope cities which now hold charters under general or special law, and shall become effective by way of amendment of all existing charters.</p> <p>Section 5. Chapter thirty-nine of the General Laws is hereby further amended by inserting after section thirteen the following new section: Section 13 (a). Women shall be eligible to election or appointment to all town elective offices, all town executive or administrative offices, town commissions and all other town organizations, agencies, positions and employments.</p> <p>Section 6. Chapter fifty-three of the General Laws is hereby amended by inserting after section ten the following new section: Section 10 (a). Women shall be eligible to nomination and election for all offices to be filled by all the voters of the Commonwealth or of any political subdivision or district thereof.</p> <p>Section 7. This act shall take effect upon its passage.</p>