BANKRUPTCY.

Bankruptcy.

An order, given by partners, who when insolvent had applied to the license commissioners of Worcester for a license to sell intoxicating liquors and borrowed from a brewing company $1,000 which they deposited with the city treasurer to be applied on their liquor license, "if granted," was addressed to the city treasurer and read as follows: "If we are not successful in having a liquor license granted to us, pay to [the brewing company], or order, the sum of one thousand ($1,000) dollars deposited with you this day as advance payment or deposit with our application for liquor license;" and it was held, in an action for the $1,000 by a trustee appointed in bankruptcy proceedings of the applicants afterwards instituted, that the order operated as an assignment. O'Connell v. Worcester, 159.

In the same case it appeared that, at the time of the loan and the giving of the order as security the lender knew that the borrowers were insolvent but it also appeared that they had not at that time been adjudicated bankrupts, and it was held that the giving of the order as security in good faith was not an unlawful preference under the bankruptcy act. Ibid. In an action by a trustee in bankruptcy under §§ 60 a and 60 b of the bankruptcy act of 1898 as amended to recover certain sums alleged to have been paid by the bankrupt to the defendant as preferences, in order to maintain the burden of proving the essential element of liability required by the act, that the defendant when he received the sums had reasonable cause to believe that the acceptance of the payment would result in a preference as defined by the statute, it is necessary to show only such substantial facts as will warrant the inference that the defendant knew or ought to have known of the bankrupt's financial condition. Jacobs v. Saperstein, 300. Evidence at the trial of such a case where among other things it appeared that the defendant and the bankrupt two and one half years before the bankruptcy had been partners was held to warrant a finding that such burden was maintained.

Ibid.

BASTARDY.

Under R. L. c. 82, § 16, at a trial under the bastardy process, where there is evidence that the complainant continued during the time of her travail to accuse the defendant of being the father of her child, her own testimony that she continued to accuse the defendant during her travail as well as the evidence of those who heard her is clearly admissible. Akeson v. Doidge, 574. At a trial under the bastardy process it is error for the presiding judge to permit the complainant to testify that, previous to her examination before the magistrate and several months before the time of her travail when she found that she was pregnant, she charged the defendant in the presence of a physician and of her mother, and when the defendant himself was not present, with being the father of her unborn child. Ibid.

BILL OF LADING.

Where the agent of a carrier, in filling out a "release clause," afterwards signed by the shipper, in a bill of lading for household goods which were worth more than $10 but much less than $1,000 a hundred pounds, by mistake wrote

Bill of Lading (continued).

"1000" before the word "dollars," and filled in corresponding spaces in the shipping order with an "indecipherable scrawl," it was held that an uncommunicated intention of the carrier's agent to write “10” and “ten" was immaterial, that both parties were bound by both writings and that the shipper could recover the full value of goods lost by the carrier. Aradalou v. New York, New Haven, & Hartford Railroad, 235.

In the case above described it appeared that the release clause in question was stamped upon the bill of lading and the shipping order by a rubber stamp and evidence of a custom of the defendant commonly to use the stamp only when the value declared by the shipper was ten dollars per hundred weight was held to be inadmissible, even if it had been shown, as it was not, that the custom was known to the shipper. Ibid.

In the case above described it was said that, if the release clause stamped on the bill of lading and that stamped on the shipping order should be construed together, the clause of the bill of lading in which the figures "1000" were inserted plainly in each of the blank spaces before the word "dollars" must control. Ibid.

It also was held that, as the plaintiff's only representation of value was that the goods did not exceed $1,000 per hundred pounds in value, which was much more than the amount that he sought to recover as their true value, he lost no rights if the defendant by mistake charged too low a rate, and that a contention of the defendant that it could not be held liable for more than $10 per hundred pounds because the rate charged by the defendant and prepaid by the plaintiff was on that basis, was without merit. Ibid.

In the same case it was said that if there was a mutual mistake of fact in the wording of a bill of lading, which did not appear to have been the case, the defendant might have been granted relief in a suit in equity to reform the instrument in writing. Ibid.

BILLS AND NOTES.
Validity.

In an action on a promissory note made to the plaintiff by the defendant for a sum less than $300 bearing interest at more than twelve per cent per annum, if it appears that this was the only time that the plaintiff lent a sum of money as small as $300, it may be found that the plaintiff was not engaged, either directly or indirectly, in the business of making small loans within the meaning of the statute, and he may be allowed to recover on the note. Goodowsky v. Rubenstein, 448.

In a suit in equity to compel the cancellation of a negotiable promissory note and a mortgage of real estate securing it, which were purchased by the defendant from one who obtained them from the plaintiff by fraud, it is not necessary for the plaintiff under R. L. c. 73, § 73, to prove that the defendant knew the exact fraud that was practiced upon the plaintiff by the defendant's assignor. Paika v. Perry, 563.

In such a suit it is sufficient to show that the defendant had notice that there was something wrong about his assignor's acquisition of title although he did not have notice of the particular wrong that was committed. Ibid.

Bills and Notes (continued).

Payment.

A defence of payment, in an action of contract for a balance alleged to be due
upon a promissory note after a sale in foreclosure of a mortgage of real
estate which had been given to secure its payment, based on a contention
that certain money received by the plaintiff from an insurance company
should be recorded as a payment, was held not to have been maintained be-
cause it appeared that the money was expended in repairing the mortgaged
property. Williams v. Sneirson, 199.

As Conditional Payment.

Where the negotiable promissory note of a third person indorsed by a debtor
is delivered by such debtor to his creditor as conditional payment only, to
be credited as payment of the debt when such note is paid, the creditor, if
he has not negotiated such note and it is overdue and unpaid, can surrender
it and recover the amount of his debt. Brown v. Bishop, 276.
Where in an action on the debt in such a case it appears that the note has not
been surrendered to the defendant and, upon a demand by the defendant
for its surrender, the plaintiff is unable to produce the note because he has
lost or mislaid it, it is right for the trial judge to order judgment for the
plaintiff and to order that the entry of such judgment be stayed until the
note is filed in court by the plaintiff. Ibid.

Whether, if the plaintiff in such a case should fail to file the note, he would
be entitled to judgment on giving a sufficient bond, here was mentioned as
a question that was not before the court. Ibid.

BOARD OF HEALTH.
Municipal.

Under the provision of the charter of the city of Medford contained in St.
1903, c. 345, § 39, as amended by St. 1906, c. 252, § 5, requiring for certain
contracts that the approval of the mayor be affixed, a contract made by
the board of health to pay to a contracting corporation an amount more
than $100 and less than $2,000 for certain work required in the abatement
of a nuisance under R. L. c. 75, §§ 75-82, which had not been approved
by the mayor, was held to be void as against the city. United States Drain-
age & Irrigation Co. v. Medford, 467.

In an action by the contracting corporation against the city of Medford upon
the contract in writing above described it was held that the plaintiff was
chargeable with knowledge of the limitations of the contractual powers of
the board of health under the provisions of the charter. Ibid.

BONA FIDE PURCHASER.

In a suit in equity against two defendants to set aside a mortgage of real
estate alleged to have been procured from the plaintiffs by fraud of the
first defendant, or to redeem the plaintiffs' land from such mortgage,
where it appeared that the first defendant, immediately after procuring
the mortgage, borrowed a smaller sum than its face from one who acted in

Bona Fide Purchaser (continued).

good faith and to whom he indorsed the note and assigned the mortgage
and that thereafter the same defendant borrowed a still larger sum from the
second defendant, who had notice of the fraud and who paid the previous
loan, taking over the note and mortgage, it was held that the second de-
fendant had become entitled to hold the mortgage to the amount he paid
on the first loan; and that therefore the plaintiffs had the right to redeem
the mortgaged property by paying that amount and interest. Paika v.
Perry, 563.

BOND.

What is a compliance with the provisions of St. 1909, c. 514, § 23, re-enacting
St. 1904, c. 349, requiring a contractor or subcontractor upon a public
work, in order that he may have the benefit of the security furnished under
that statute, to file a sworn statement of his claim within sixty days after
the completion of the work with the "officers or agents who" contracted
"in behalf of the" municipality for doing of the public work. Powers
Regulator Co. v. Taylor, 292.

Whether, in an action on a debt where it appears that the defendant had
given to the plaintiff the note of a third person as conditional payment,
which had not been paid, if the plaintiff should fail to file the note, he would
be entitled to judgment on giving a sufficient bond, was mentioned as a
question that was not before the court. Brown v. Bishop, 276.

BOSTON AND ALBANY RAILROAD COMPANY.

Consideration of exceptions to certain findings and rulings of an auditor ap-
pointed to audit all accounts of expense incurred by any parties to the
proceedings for the abolition of grade crossings in Worcester. Mayor &
Aldermen of Worcester v. Boston & Albany Railroad, 548.

BRIDGE.

Determination of whether a certain bridge complied with the requirements of
a decree in grade crossing proceedings ordering a "masonry arch bridge."
Mayor & Aldermen of Worcester v. Boston & Albany Railroad, 548.

CAMBRIDGE.

In the city of Cambridge, which adopted the Plan B form of government
under St. 1915, c. 267, Part III, and which voted not to grant licenses for
the sale of intoxicating liquors, the power to grant licenses of the sixth class
to retail druggists or apothecaries is vested in the city council. McMinn v.
Mayor of Cambridge, 104.

CAPITAL AND INCOME.

Where it became the duty of trustees, holding a trust fund consisting of real
and personal property, to remodel an old building that formed a part of the
trust property, the result of which was to benefit by a change of investment
both the life tenants and the remaindermen, it was held that under the cir-

Capital and Income (continued).

cumstances the trustees, in paying for the improvement out of the capital of the trust, in the exercise of their discretion properly might include as a part of the expense the loss of rents while the work was in progress, and that an item in their probate account charging to capital a sum representing such loss of rents and crediting it to income should be allowed. Morse v. O'Brien, 345.

Amount paid during the life of the sole life beneficiary of a trust from the income of the trust for the maintenance of one parcel of vacant and unproductive land where, after the death of the beneficiary, the trustee sold the parcel in question, was held properly to remain a charge on income, although an adjustment of accounts which would charge such upkeep to principal might have been proper if the unproductive real estate had been sold before the death of the widow. Ogden v. Allen, 595.

In the same case it was said that the question, whether the expenses incurred in the maintenance and sale of the unproductive land properly could have been deducted from the principal of the fund during the lifetime of the widow, need not be decided. Ibid.

CARRIER.

Of Passengers.

In an action for injuries sustained by reason of the starting of a street car of the defendant when the plaintiff was attempting to board it, where there was no evidence that the car was at a regular stopping place, testimony that there was a long line of cars standing still, of which the car that the plaintiff attempted to enter was the last, and that "they were receiving passengers and some getting off of these cars," was held to make it a question for the jury whether there was an invitation to the plaintiff to become a passenger. Nuttall v. Worcester Consolidated Street Railway, 167. Whether, in the case above described, if there had been evidence that persons were entering and leaving other cars in the line but that no person so entered or left the car which the plaintiff attempted to enter, the plaintiff could have been found to have been a passenger, was mentioned as a question which it was not necessary to decide. Ibid.

One, who had been a passenger in a street railway car and with a transfer was walking along a public highway for the purpose of transferring to and of boarding a second car, which was waiting, as matter of law had ceased to be a passenger on the first car and had not become a passenger on the second and toward the corporation operating both cars stood in the relation of a traveller on the highway. Niles v. Boston Elevated Railway, 570. Other actions for personal injuries or death of passengers caused by negligence of street railway, elevated railway and railroad corporations, see appropriate subtitles under NEGLIGENCE.

car,

Of Goods.

Where the agent of a carrier, in filling out a "release clause," afterwards signed by the shipper, in a bill of lading for household goods which were worth more than $10 but much less than $1,000 a hundred pounds, by mistake wrote "1000" before the word "dollars," and filled in corresponding spaces in the shipping order with an "indecipherable scrawl," it was held 40

VOL. 225.