c. 139, and St. 1890, c. 348), authorizing the town for the benefit of which it was created to take. [Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 67-73; Dec. Dig. § 9.*] Case Reserved from Supreme Judicial Court, Bristol County. Bill by Charles T. Oldfield and others, as trustees of the Hicks Trust Fund, and the Hicks Reserve Fund, established under a declaration of trust executed by one Cyrus Hicks, deceased, against the Attorney General. Case reserved and decree entered. Prior to April 2, 1883, Hicks gave to the town of Norton $4,000, instructing the selectmen and town treasurer to use one-half of the income to care for a large cemetery lot in which his wife was buried and a large monument which he had built on the lot. The cemetery was property of the town, which had been in the habit of assigning lots to residents for burial purposes without charging any purchase price. Hicks instructed the selectmen and town treasurer, as custodian and trustees of the funds, to use the other half of the income toward paying the general expenses of the town and this gift was regularly accepted. On June 16, 1883, the General Court of the commonwealth passed St. 1883, c. 246, authorizing the town to receive and hold the property in trust for the purposes specified, and some time between April 2, 1883, and the date of the town meeting accepted the trust. June 30th following Hicks prepared the declaration of trust and changed his original gift by adding a provision that, if the whole of one-half of the income set aside for the care of his burial lot was not actually needed or required, the portion unexpended should be set apart and kept separate from the trust fund mentioned, and should be known as the Hicks Reserve Fund, and that the income of Hicks Trust Fund remaining unexpended each year should be added to the Hicks Reserve Fund, constituting the principal thereof. It was provided that 95 per cent. of the income should accumulate for 100 years and that thereafter 80 per cent. should accumulate forever. The trustees accordingly carried out the directions of Hicks and in this manner the Reserve Fund was established. In order to increase the amount payable to the Reserve Fund Hicks during the last years of his life took entire care of his cemetery lot, so that practically the whole of the income reserved from the Trust Fund passed into the Reserve Fund. The General Court passed a second act (St. 1884, c. 139) allowing the town to accept the gift as provided in the written declaration of trust. Hicks died testate and by his will left $600, the income of which was to be used for the care of a parrot and after its death to be paid over to the trustees of the Reserve Fund and become a part of the principal thereof. He also gave the residue and remainder of all his principal and real estate to such fund, which on the final accounting of the executors amounted to $11,318.70. White & White, of Taunton, for plaintiffs. L. R. Eyges, Asst. Atty. Gen., for defendant. SHELDON, J. [1, 2] The trust here in question is valid as a public charitable trust. Wood v. Oldfield, 106 N. E. 1014. But the instrument creating the trust contains provisions under which by far the greater portion of the income will be forever accumulated and added to the principal. Not only an indefinite, but a perpetual, accumulation is provided for. Only a little more than one-fifth part of the income ever can be applied to the charitable purposes specified, unless the court or the Legislature can interfere, and a constantly increasing amount must be applied to the increase of the principal of the fund. But it was held by this court in St. Paul's Church v. Atty. Gen., 164 Mass. 188, 41 N. E. 231, that the limits of an accumulation for the benefit of a charity are subject to the order of a court of equity, although such a provision ought not to be interfered with unless the accumulation appears to be unreasonable, unnecessary, or to the public injury-unless, in other words, it is against a sound public policy. Accordingly, in Dexter v. Harvard College, 176 Mass. 192, 57 N. E. 371, a provision for the perpetual accumulation of 5 per cent. of the income did not prevent the court from sustaining the whole of a charitable trust, although it was not found necessary to pass upon the validity of this particular provision. Provisions for an accumulation for a limited time, or until the attaining of a specified amount or an amount sufficient for a specified purpose, where the whole amount finally was to be applied for charitable purposes, likewise have been upheld. Williston Seminary v. Co. Commsrs., 147 Mass. 427, 18 N. E. 210; Codman v. Brigham, 187 Mass. 309, 72 N. E. 1008, 105 Am. St. Rep. 394; Masonic Education & Charity Trust v. Boston, 201 Mass. 320, 87 N. E. 602. And see, in the case of the fund bequeathed to the city of Boston under the will of Benjamin Franklin, Higginson v. Turner, 171 Mass. 586, 51 N. E. 172, and Boston v. Doyle, 184 Mass. 373, 68 N. E. 851. But the court will rather apply the doctrine of cy pres, where that can be done with due regard to the intention of the founder of the trust, than allow an indefinite or unduly prolonged accumulation of income, contrary to the dictates of public policy. Ely v. Atty. Gen., 202 Mass. 545, 89 N. E. 166; Grimke v. Atty. Gen., 206 Mass. 49, 91 N. E. 899; Norris v. Loomis, 215 Mass. 344, 102 N. E. 419. [3] These principles however are not applicable here. Whatever otherwise might have been the view taken by the court in this case, the question of public policy has been settled by the Legislature. St. 1883, c. 246, amended by St. 1884, c. 139, and St. 1890, c. 349. By these acts the town of Norton was authorized to receive and hold this fund and to appropriate the income thereof for the purposes stated by the founder of the trust. Within the limits set by the Constitution, it is of course for the Legislature finally to determine all questions of public policy. Those limits do not include such a question as this. While these acts remain in force, we cannot say that this provision for accumulation is invalid. Wm. Hirsh, of Boston, for appellant. H. Douglas Campbell, of Boston, for appellee. HAMMOND, J. This was a bill in equity originally brought to set aside the foreclosure of a mortgage and for an accounting. The case is before us upon appeals by the defendant Carro from the order overruling his exceptions to the master's report and from the final decree. In the course of the proceedings the plaintiff abandoned her claim to be entitled to redeem; and the bill was held only for an àccounting between the plaintiff and Carro. In any event the court could not instruct The first, second, third, fourth, seventh, the petitioners what their duties will be when eighth, ninth, tenth and twelfth exceptions the principal of the fund shall have reached relate to the effect of the foreclosure prothe amount of $150,000-an amount not yet ceedings of September 9, 1912. The defendreached or likely to be reached in the imme- ant Carro contended in substance that these diate future. It is only as to their present that he became thereby the owner in fee, proceedings worked a valid foreclosure and duties that trustees have a right to ask for and that the accounting should be only up to the instructions of the court. Bullard v. Chandler, 149 Mass. 532, 21 N. E. 951, 5 L. proceedings did not work a valid foreclosure, that date. The plaintiff contended that these R. A. 104; Sibley v. Maxwell, 203 Mass. 94, and further, that even if they did Carro had 107, 89 N. E. 232. We do not know what the elected to hold as a mortgagee in possession. circumstances will be when the fund shall The master found that Carro elected to hold have increased to about three times its pres- as a mortgagee in possession. We think this ent amount, what exigencies then may exist, general finding justified by the subsidiary or what constitutional or legislative enact-findings in the report. It further appears in ments then may be in force. A decree will be entered instructing the petitioners that the trust upon which they hold this fund is valid as a public charitable trust; that it is their present duty to comply with the directions for accumulation contained in the instrument creating the trust; and that the court declines to give them now any further instructions. Ordered accordingly. (219 Mass. 370) DEBBINS v. FORSTER et al. Where the purchaser at a foreclosure sale, the validity of which was questioned, elected to hold as mortgagee in possession rather than as one in fee. but thereafter as owner in fee sold the premises to another, equity will require him to account as mortgagee in possession for the period up to and including the sale, even though the foreclosure proceedings were sufficient to enable him to convey the fee. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1566; Dec. Dig. § 548.*] the report that this was the understanding of the plaintiff, and that she relied upon the right to redeem as still outstanding. As between the plaintiff and Carro the election should stand so far as respects the question of accounting, at least so long as Carro held the land. But on October 7, 1912, Carro sold the property to one Yuill, free from all incumbrances except certain first mortgages and taxes. He sold as owner in fee. The master has found that the sale was "a bona fide transaction entered into in good faith by both parties," and that the consideration was $1,250, which was received by Carro partly in cash with a note for the balance which has since been paid. By this transaction Carro parted with all his interest in the land. He no longer could be regarded as holding as mortgagee in possession. Under these circumstances equity requires that up to and including the sale to Yuill he must be held to his agreement with the plaintiff as holding as mortgagee in possession, so far as respects the period to be covered by the accounting. And that would be so even if, as contended by the defendant (and we think rightly), the foreclosure pro Appeal from Superior Court, Suffolk Coun- ceedings were sufficient to enable him to conty; Charles F. Jenney, Judge. Bill in equity by Sophia M. Debbins against Edward W. Forster and Samuel Carro, to set aside the foreclosure of a mortgage, and for an accounting. From a decree settling the account against the defendant Carro after plaintiff abandoned her claim to redeem, the defendant Carro appeals. Affirmed. vey the fee to Yuill. The result is that the third, fourth and twelfth exceptions should be overruled as not in accordance with law, and the first, second, seventh, eighth and ninth as immaterial. The sixth exception is untenable and was properly refused. Interest was to be paid on the mortgage note at the rate of 6 per cent. per year. The tenth For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes So ordered. (219 Mass. 416) ROGERS v. SHEA. and eleventh exceptions also should be over-action every ground on which James Shea, ruled. The error in overruling the fifth ex- the present defendant, could be held legally ception is corrected by the final decree. The liable upon the note was open to the plainresult is that the final decree should be af- tiff. The judgment then rendered in favor firmed, and it is of all the defendants settled the nonliability of James Shea to the plaintiff on the note in suit. Cotter v. Boston & Northern St. Ry., 190 Mass. 302, 76 N. E. 910; Edwards v. Columbia Amusement Co., 215 Mass. 125, 102 N. E. 268. No question was raised at the trial as to the admissibility of the evidence of res judicata under the general denial in the answer (see Foye v. Patch, 132 Mass. 105); and it is apparent that the judge, with all the facts before him, based his ruling on the evidence, irrespective of any question of pleading. The first ruling requested by the defendant should have been given. (Supreme Judicial. Court of Massachusetts. Where, in an action on a note indorsed by "J. S. & Co., by J. S.," against all the parties thereto, including J. S., who was one of the parties conducting a business under the name of J. S. & Co., judgment was rendered in favor of all the defendants, such judgment barred a subsequent action against J. S., in which the holder of the note sought to recover on the ground that J. S. indorsed the note, and that he became liable as indorser by writing the name of J. S. & Co. without authority, as every ground on which he might be held legally liable was open to plaintiff in the former suit. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1181, 1185; Dec. Dig. § 670.*] Exceptions from Superior Court, Suffolk County. Action by Benjamin P. Rogers against James Shea. The court found for plaintiff, and defendant brings exceptions. Exceptions sustained. Richard G. Kilduff, of Boston, for plaintiff. C. W. Ford and Edwin F. Schwarzenberg, both of Boston, for defendant. DE COURCY, J. This action was brought upon a promissory note of which the following is a copy: "$450.00. Boston, November 29th, 1909. "Two months after date we jointly and severally promise to pay to the order of ourselves four hundred and fifty dollars, at any bank in Boston. Value received. "No. Due Jan. 29th, '10. "[Signed] James J. Grace. "Margaret A. Grace. Indorsements: "James J. Grace. "Margaret A. Grace. "Pierce J. Grace. "John Shea & Co., "By James Shea." The first count is based upon the allegation that the defendant duly indorsed the note; and the second count upon his alleged liability as indorser by reason of writing thereon the name of John Shea & Co. without authority. It appeared at the trial that "John Shea & Co." was the name under which Julia A. Shea, Charles Shea and James Shea were conducting a hotel business as trustees; that a former action had been brought on this same note, by the present plaintiff against the defendant and the other parties thereto; and that after a trial in the jury waived session of the superior court a finding had been made in favor of all the defendants, on which judgment was entered. In that former Whether the defendant would be liable in an action of tort for falsely representing that he had authority to indorse the note in the name of John Shea & Co., or could be held responsible to the plaintiff on an implied warranty or otherwise, is not before us in this action on the note. See People's National Bank v. Dixwell, 217 Mass. 436, 105 N. E. 435, and cases cited. Exceptions sustained. (219 Mass. 418) HAMILTON v. CITY OF CAMBRIDGE. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 30, 1914.) 1. MUNICIPAL CORPORATIONS (§ 817*)-TORTS -DEFECTIVE SIDEWALK-BURDEN OF PROOF -NOTICE. Under Rev. Laws, c. 51, § 18, providing that if a person sustains bodily injury by reason of defects on a highway, and such injury might have been prevented or defect remedied by reasonable care on the part of the city obliged to repair it, he may, if such city had or by the exercise of proper care would have had reasonable notice of the defects, recover damages, the burden is on the plaintiff to show that the city had knowledge, or by the exercise of reasonable care and diligence might have had knowledge, of the defect in time to have remedied it or prevented the injury. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. § 817.*] 2. MUNICIPAL Corporations (§ 819*)—TortsDEFECTIVE SIDEWALK-SUFFICIENCY OF EVIDENCE-NOTICE. caused by a defect in a sidewalk, where two In an action against a city for injuries bricks had been broken and depressed to a V-shape, three inches deep, and six or eight inches long, evidence held insufficient to warrant the jury in inferring that the defect had existed long enough to affect the city with notice, so that a directed verdict for the defendant was proper. [Ed. Note.-For other cases, see Municipal Dig. § 819.*] Corporations, Cent. Dig. §§ 1739-1743; Dec. Exceptions from Superior Court, Suffolk County. Action by Laura M. Hamilton against the City of Cambridge. Judgment for the plain tiff, and defendant excepts. Exceptions overruled. Timothy J. Ahern, of Boston, for plaintiff. Jas. F. Aylward, of Boston, for defendant. DE COURCY, J. The alleged defect was in the sidewalk of Massachusetts Avenue in Cambridge, near a city water shut-off. There was testimony that two bricks were broken in halves, making a V-shape depression two or three inches deep and six or eight inches long. It did not appear how this condition was caused, or how long it had existed before the accident. The trial judge directed a verdict for the defendant, on the ground that there was no evidence to show that the city "had or by the exercise of proper care and diligence might have had reasonable notice of the defect." The correctness of this ruling is before us on the plaintiff's exceptions. [1] The action is brought under R. L. c. 51, § 18; and the burden rests upon the plaintiff to establish, as a condition precedent to her right of recovery, that the defect which caused her injury was one of which the city had knowledge, or by the exercise of reasonable care and diligence might have had knowledge, in time to have remedied it or to have prevented the injury. Smith v. Hyde Park, 106 N. E. 564, and cases cited. [2] There is no evidence that the defendant had actual notice of the defect.. In order to show that the city had construc tive notice it was open to the plaintiff to prove the length of time before the accident during which this condition of the sidewalk had existed. If it had been defective for any substantial length of time, presumably she would not find it difficult to prove that fact, as the place was a much traveled business thoroughfare, was near the subway entrance, and a police officer was stationed there every evening. Yet the record fails to disclose any testimony as to the existence of the defect or the appearance of the sidewalk before the accident. We do not think that the nature and appearance of the defect, as indicated by the testimony, was such that an inference properly could be drawn therefrom by the jury as to the length of time it had existed, although the case is close on this point. It seems apparent from the plaintiff's testimony that by the expression "worn down," as applied to the bricks, she meant no more than "depressed," which was the fact as shown by the undisputed testimony. In short the plaintiff failed to present any evidence from which a jury properly could infer that the defect had existed long enough to affect the city with notice. It should be added that there is no basis in the record for the argument that the defective condition was probably brought about by employés of the city. See Brooks v. Somerville, 106 Mass. 271. Exceptions overruled. (219 Mass. 387) MERRILL v. FOX MASTER AND SERVANT (§ 286*)-INJURY TO An employé fell on a floor made slippery and dangerous by paste leaking on the floor ployé in the course of her employment had the from a barrel, at a place over which the emright and was accustomed to pass. The superintendent, part of whose duty was to use reasonable care to see that the floor was safe, discovered the condition of the floor before the employé fell, and had time to warn the employé of her danger, but failed to do so, notwithstanding her apparent purpose to step in that direction. Held, that the employé was entitled to go to the employer, based on the negligence of the suthe jury on the question of the negligence of perintendent. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] Report from Superior Court, Essex County. Action by Carrie A. Merrill against Charles K. Fox. The court ordered a verdict for defendant, and reported the case to the Supreme Judicial Court, on stipulation and agreement that if, on the competent evidence reported, plaintiff was entitled to go to the jury, judgment should be entered for her in the sum of $250 as of the date of the verdict; otherwise, judgment to be entered on the verdict. Judgment for plaintiff. Chas. Howard Poor and Essex S. Abbott, both of Haverhill, for plaintiff. Sweeney & Cox, of Lawrence, for defendant. HAMMOND, J. This is an action to recover for personal injuries sustained by the plaintiff by reason of her falling on a floor alleged to be slippery with paste, in the defendant's factory where the plaintiff was employed; and it is before us upon a report made by the trial justice. The question of the due care of the plaintiff was plainly for the jury. The question whether there was evidence of the negligence of the defendant presents more difficulty. It is close. Upon a careful examination of the evidence, however, we are of opinion that it would have warranted findings that the paste, which had leaked from the barrel, was upon that part of the floor over which the plaintiff, in the course of her employment, had the right to pass and was accustomed so to do; that the spot thus covered by the paste was slippery and dangerous; that Howard was the superintendent of that part of the factory; that one of his duties as such was to use reasonable care to see that this part of the floor was safe; that even if he did not early discover the condition of the floor he did discover it before the plaintiff fell; that although the time was short, it was yet long enough for him to warn the plaintiff of her danger; that in view of her apparent purpose For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes to step in that direction he ought to have warned her, and that his failure to do so was negligence. For this negligence the defendant would be answerable. Upon the question therefore of the negligence of the defendant, the plaintiff was entitled to go to the jury. to meet its methods. The eleventh request was rightly refused. Exceptions overruled. In view of the ground of our decision as to this part of the case, under the terms of the reservation the exception as to the admis-1. sion of the alleged conversation between the witness Powers and the plaintiff becomes immaterial. Judgment for the plaintiff for $250. (219 Mass. 382) SMITH V. EQUITABLE CO-OPERATIVE BANK. (Supreme Judicial Court of Massachusetts. Essex. Nov. 25, 1914.) The master of a vessel, through an agent, agreed with the principal for hire of the vessel for fishing, the proceeds to be apportioned between the two. On a dispute the captain was dismissed, whereupon the captain stopped payment on a check he had given the principal as his share of the proceeds of a catch. The master sued the principal and agent jointly for breach of the contract of hire, and the principal sued the master on the check. In the meantime the master was declared a bankrupt, and the trustee proceeded to judgment against the principal and agent, and execution was issued. Judgment was also entered in the prin INFANTS (§ 58*) - CONTRACTS — AVOIDANCE-cipal's action against the master, and execution RETURN TO STATU QUo. A minor who made payments from her own money to a building and loan association, not as the agent of her mother's estate, but on her own account, which payments were not beneficial to her, may rescind the transaction without putting the association in statu quo. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig. § 58.*] Exceptions from Superior Court, Essex County. Action by Charlotte Smith, by next friend, against the Equitable Co-operative Bank. Judgment for the plaintiff, and defendant excepts. Exceptions overruled. H. D. Linscott, of Lynn, for plaintiff. A. B. Tolman, of Lynn, for defendant. HAMMOND, J. The court before whom without a jury the case was tried found that in making the payments in question the plaintiff acted not as the agent of her mother's estate, but for herself alone; that the payments were made from her own money; that they were not beneficial to her, and that they were not made by way of a loan to her mother's estate. All of these findings were warranted by the evidence. The plaintiff, being a minor at the time the payments were made, had the right to rescind the transactions even without putting the defendant in statu quo. Simpson v. Prudential Ins. Co., 184 Mass. 348, 68 N. E. 673, 63 L. R. A. 741, 100 Am. St. Rep. 560, and cases cited. It follows that the ten rulings requested were properly refused. It is urged by the defendant that the practical effect of a decision that an institution like the defendant, having thousands of depositors, "takes payments from the hands of a minor at its peril," would be serious. The obvious answer to this is that if the defendant cannot safely do business under the general rules of law, it should close its business, and not that the law should be changed was issued. Held, that the demands of the principal and the master could not have been set off against each other in the original action, since the parties were different. [Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 76-79, 81; Dec. Dig. § 41.*] 2. EXECUTION (§ 349*)-SET-OFF OF EXECUTION-DIFFERENT PARTIES. Held, also, that the executions could not be set off under Rev. Laws, c. 177, § 27, because the parties were different. [Ed. Note. For other cases, see Execution, Cent. Dig. § 1068; Dec. Dig. § 349.*] 3. SET-OFF AND COUNTERCLAIM (§ 8*)—JuRISDICTION OF EQUITY BANKRUPTCY OF PARTY. Held, also, that since the original demands could not be set off in the actions, and the executions were not subject to set-off, under Rev. Laws, c. 177, § 27, equity, by reason of the bankruptcy of the master, had jurisdiction to set off the execution, since it would be considprincipal, and that the principal was the only ered that the agent was only a surety for the real party in the joint action. [Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 9-11; Dec. Dig. 8.*1 Report from Superior Court, Essex County. Suit by Joseph H. Cromwell against Carleton H. Parsons, trustee in bankruptcy, and another, to restrain the collection of an execution in favor of the trustee against Cromwell until an execution in favor of Cromwell has been allowed in set-off. On the decree rendered the case was reported. Decree for complainant. Joseph H. Cromwell was manager of a fishing vessel, and acted through his father, Thomas A. Cromwell, as agent in engaging Solomon Jacobs as master of the vessel, agreeing to allow Jacobs to have the vessel to engage the same in the fishing business on an apportionment of the proceeds of the catch. Jacobs and Joseph H. Cromwell thereafter had a dispute, and Jacobs was dismissed. A few days previous to the dismissal Jacobs had given a check to Joseph H. |