according to the testimony of the defendant, the plaintiff came to see Olney, and agreed to take care of the note, saying that he would have it put into two notes; adding: "Don't worry about these at all." "I will take care of them. All we want of you is to get well." Mrs. Olney further testified that nothing was said to her about signing any note; that she had no property at the time, but had a policy of insurance, which would be available only at her husband's death. It further appeared on behalf of the defendant, by the testimony of Miss Olney, who was the daughter, that she went to the bank to get a power of attorney to her for her father to sign; that she obtained this from the attorney of the bank, and that Warner gave her the two notes of $750, pointing out how they were to be signed, and saying: "Take them home to your father, and tell your father to sign there, and your mother there." She knew that the two notes were to take up the $1,500 note, as she stated, because she was so told by her mother. The conversation which took place at the time of signing the notes was admitted against the objection of the plaintiff, and was testified to by Mrs. and Miss Olney, substantially to the effect that the daughter repeated what Mr. Warner had said; that Mr. Olney said, "I do not see why your mother's name should be on there;" and that he sank back and said, "I guess it is all right." The power of attorney was signed by Mr. Olney, after which the daughter signed his name as it now appears on the notes. Mrs. Olney then signed the notes. Mrs. Olney further testified that she had never been spoken to about signing the notes; that she did not think of binding herself on the notes; that she signed them at once after her daughter signed them; that the daughter went right back with the notes; and that her husband was very sick, and she thought the plaintiff was very kind not to worry her husband about the notes.

Upon this testimony, we do not perceive that there was any evidence of fraud or deceit practiced upon the defendant by which she can avoid the promise made by her in signing these notes. While she says she did not sign them intelligently, but mechanically only, she could not have failed to understand what she was doing; and the very remark made by the husband shows that her attention was called to the responsibility she was assuming. No person was present representing the plaintiff. She had full opportunity to consider the act she was about to do, and she signed the very paper she intended to sign, and not one differing therefrom or substituted therefor. She knew that these two notes of $750 were to take up the $1,500 note. Even if she had a right to believe, from the conversation with the plaintiff, that he would himself take up the $1,500, when, the next day, she received the message from Warner, she was informed that, in order that the note should be taken up, she must herself sign the two notes which were to be used for that purpose. If this were a violation of the promise that the plaintiff had made, there was still no fraud or deception on his part, or on that of Warner,-if it be assumed that Warner acted as his agent, and that the plaintiff is thus responsible for his conduct,-by which she was betrayed into signing an instrument she did not intend to sign, or one

which she did not understand. We are thus brought to the conclusion that there was no sufficient evidence of fraud to warrant a verdict for the defendant, and that the court should have so ruled.

The plaintiff further objected to the admissibility in evidence of the conversation which took place at the time of signing the notes. As the case may be again tried, it is proper to say that, so far as this forms a part of the act done by the defendant,-as, for instance, in showing that she signed in consequence of the message brought to her from Warner,this evidence was properly admissibile. But it would not be competent

to use the declaration then made by Mr. Olney to contradict the evidence of the plaintiff that Mrs. Olney was to sign the notes. This declaration in no way qualified the act done by the wife in signing these notes. Exceptions sustained.

FIELD, C. ALLEN, and GARDNER, JJ., absent.

(140 Mass. 199)

(Hampden, ss.)

READ v. BOSTON & A. R. Co.

Filed October 24, 1885.

SUNDAY-PERSONAL INJURIES-RIGHT TO RECOVER.

Under the law in this state, a plaintiff who is injured by a railway train on Sunday cannot recover damages unless the work he is engaged in is one of necessity or charity.1

Action of tort for personal injuries. The material facts appear in the opinion.

H. W. Ely, for plaintiff.

A. L. Soule, for defendant.

W. ALLEN, J. Under the authority of Day v. Highland St. Ry. Co., 135 Mass. 113, the ruling that the plaintiff was not entitled to recover was correct, unless the running of the railroad freight train on which he was employed was a work of necessity or charity. The statute of 1884, c. 37, was passed after the injury complained of, and does not apply to this action. Bucher v. Fitchburg R. Co., 131 Mass. 156.

The only evidence that the plaintiff was engaged in a work of necessity or charity was his own testimony, "that the train was made up of box and stock cars, and that there was stock on the train;" "that there was no convenience for feeding or watering stock at Pittsfield," the place he had left; and "that he did not know how they were to be fed and watered there." This is not sufficient to prove that there was stock on the train which could not have been fed and watered at Pittsfield, and that the purpose of running the train was to transport stock to a place where it could be fed and watered, or that the work was necessary for the proper and humane treatment of living creatures being transported upon the road, or for compliance with the requirements of Pub. St. c.

1 See note at end of case.

207, § 55. As the work in which the plaintiff was engaged upon the Lord's day contributed to his injury, and was not a work of necessity or charity, the ruling of the court was correct, without regard to the question whether there was any evidence that the negligence of the defendant caused the injury. Exceptions overruled.

1

C. ALLEN and GARDNER, JJ., absent.

NOTE.

Where a railroad company finds it necessary to run its trains on the first day of the week, commonly called Sunday," and also finds it necessary for its employes to labor on that day,-keeping its track in proper order and repair for the use of such trains,and while so engaged an employe is injured or killed by the negligence of such railroad company, the fact that the accident occurred on that day will not exonerate the company from liability. Johnson v. Missouri Pac. R. Co., (Neb.) 26 N. W. Rep. 347.

The court held in Day v. Highland St. Ry. Co., 135 Mass. 113, followed in the principal case, that a conductor of a street railway car, performing his ordinary duties on Sunday, is both "laboring" and "traveling," within the prohibition of the statute, and can maintain no action for an injury by collision with a car of another company while so employed.

It was said in McGrath v. Merwin, 112 Mass. 467, that the cleaning out of a wheel-pit on the Lord's day, for the purpose of preventing the stoppage, on a week day, of mills which employ many hands, is not a work of necessity or charity, and that one who gratuitously, and as a matter of kindness, assists in such cleaning, and sustains personal damage from the negligence of the party assisted, while at the work, the illegal act in working upon the Lord's day is so inseparably connected with the cause of action as to prevent the maintenance of a suit for damages.

In Sutton v. Town of Wauwatosa, 29 Wis. 21, the plaintiff was driving his cattle to market, on a Sunday, when they were injured by the breaking down of defendant's bridge. On the trial of the case the court granted a nonsuit, on the ground that when the injury occurred plaintiff was violating the statute prohibiting any secular work on Sunday, and this was held to be error. The court say: "The point thus presented, that the unlawful act of the plaintiff was negligence, or a fault on his part contributing to the injury, and which will preclude a recovery against the town, is not a new one; nor is the law, as the court below held it to be, without some adjudication directly in its favor, and those by a judicial tribunal as eminent and much respected for its learning and ability as any in the country. Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18; Gregg v. Wyman, 4 Cush. 322; Way v. Foster, 1 Allen, 408. * * In direct opposition to the above decisions are the numerous cases decided by the courts of other states, the supreme court of the United States, and the courts of Great Britain. The court then cite Woodman v. Hubbard, 25 N. H. 67; Mahoney v. Cook, 26 Pa. 342; Norris v. Litchfield, 35 N. H. 271; Corey v. Bath, 35 N. H. 530; Merritt v. Earle, 29 N. Y. 115; Bigelow v. Reed, 51 Me. 325; Hamilton v. Goding, 55 Me. 428; Baker v. City of Portland, 58 Me. 199; Kerwhacker v. Railway Co., 3 Ohio St. 172; Philadelphia, etc., R. Co. v. Philadelphia, etc., Tow-boat Co., 23 How. 209; Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 Man., G. & S. 420.

(140 Mass. 183)

BASSETT, Judge, etc., v. GRANGER and another, Adm❜rs. (Hampshire, ss.)

TRUST ACCOUNTING.

Filed October 26, 1885.

Trustees filed an account, in which they charged themselves with a certain sum received. Held, that the account is conclusive between the cestuis que trust and the trustees, and the trustees are estopped from denying they have received the trust fund.

D. W. Bend, for defendants.

J. C. Hammond, for plaintiff.

MORTON, C. J. This is an action on a probate bond. After the decision in the case, reported in 136 Mass. 174, the case was referred to an assessor, to ascertain the amount for which the execution ought to issue. The assessors have found that the trustees under the fourth clause of the will of Colton Smith have misappropriated a large part of the trust fund, and of the income thereof, which, with interest to April 18, 1885, amounted to $12,836.77, and that execution ought to issue for that sum. The defendants contend that there should be deducted from the amount found due by the assessor the sum of $6,236.53.

To understand this claim it is necessary to refer to the will, and to some of the facts which appeared before the assessor. The will made several specific devises and bequests, and in the fourth clause gives to George C. Smith and John W. Smith the sum of $10,000, to be held upon certain trusts, therein defined, for the benefit of children and grandchildren of the testator. The tenth clause gives to George C. Smith and John W. Smith "all the rest, residue, and remainder of my estate, both real and personal, which may remain after paying all previous bequests and legacies," upon certain trusts therein named, different from those created by the fourth clause. The eleventh and last clause appoints George C. Smith executor. The will creates two independent trusts. The trust under the fourth clause must be established by the payment by the executor of the sum of $10,500 before the rest and residue, which is to form the body of the trust under the tenth clause, can be ascertained. The will was proved on August 7, 1860. The executor rendered a first and second account, both of which were approved on July 2, 1867, in which he credited himself with having paid to the trustees, under the fourth clause, the trust fund of $10,500. The said trustees rendered an account allowed on July 24, 1871, in which they charged themselves with $10,500, received as the body of the trust, and with yearly interest thereon for nine years, and credited themselves with the payment of such interest to the cestuis que trust. We think the account is conclusive, as between the cestuis que trust and the trustees, and estops the trustees from denying that they have received the trust fund. This would be clear if the trustees under each clause and the executor had been different persons. But the defendants contend that the rule does not apply in this case, because the second account of the executor shows that there was a balance due him of $6,236.53; that is, that, in order to establish this trust fund, he had paid to that amount more than he had received from the estate. Their argument is that the two clauses of the will are to be regarded as creating one trust, to be administered by the same trustees; that the executor has a claim against the estate which he ought to be entitled to enforce against the residue devised in trust by the tenth clause; and that if the sureties are obliged to pay the amount found by the assessor, the result will be that the trust-estate is actually increased by the amount due to the executor. If all the facts assumed in the argument were true, it would be inequitable for the sureties of the former trustees to be compelled to pay this amount. there is a balance due the executor which he can enforce out of the resi

If

due, to the diminution of the corpus of the trust fund held under the tenth clause, it would seem to be just that, in some form of remedy, the trustees should be required to transfer to the fund under the fourth clause the sum due the executor, and thus reduce the amount which the sureties upon the bond of the trustees should reimburse to the trust-estate; but even then it is difficult to see how all the equities between the parties could be adjusted in this action, which is an action of law upon the bond, to which the executor, as such, is not a party. But the difficulty of the defendants' argument is that it has no foundation in the facts proved. It appears that when the executor filed his second account, in July, 1867, there was a balance due him of $6,236.53. This was not a final account. The estate was unsettled, and he has continued to act as executor to this day. If there is a balance now due him, it is susceptible of proof.

Upon the facts as they stand, the case is that the trustees have appropriated to their own use the trust funds to the amount found by the assessor, and they show no reason why, in equity and good conscience, they should not repay this amount. The result is that execution should issue for the amount found due by the assessor, with the interest to the date of the execution. Exceptions overruled.

FIELD, C. ALLEN, and GARDNER, JJ., absent.

(140 Mass. 227)

(Worcester, ss.)

GROGAN v. CITY OF WORCESTER

Filed October 24, 1885.

MUNICIPAL CORPORATION-INJURY FROM DEFECTIVE SEWER-NOTICE TO CITY. A notice, under the statute, to a city of intention to claim damage for personal injuries caused by a fall into a drain or sewer, which states that the injury was caused by the lack of a railing to protect the embankment, is not defective.1

This was an action of tort for personal injuries, caused by an alleged defect in a street of defendant city. The plaintiff offered evidence to prove that on December 17, 1881, he gave the defendant the following written notice:

"You are hereby notified that James Grogan, of said Worcester, at or about 6:30 P. M., on the twenty-first day of November, A. D. 1881, was traveling on foot on Lamartine st., in said Worcester, and upon that part of said street next easterly of the stone bridge over the sewer or canal; that said street, at that place, was then and there out of repair and defective for the lack of sufficient railing at said point; the ground at said location sloping abruptly for several feet, making it unsafe and dangerous for public travel. And while said Grogan was then and there traveling, by reason of said lack of railing on said street and sewer, and of said abruptness, he fell down the bank into said sewer, and was greatly injured. Said defect might have been remedied, and the injury might have been prevented,

1 For a general discussion of the question of the liability of municipal corporations for injuries caused by defects in streets and sidewalks, and therein of notice of defects and of injury, see Bullock v. Mayor, etc., of New York, (N. Y.) 2 N. E. Rep. 1, and note, 2, 3; and Veeder v. Village of Little Falls, (N. Y.) 3 N. E. Rep. 306, and note,