25, 1901, at the rate of 5 per cent. is more than $200.18, there was here a manifest error, which made it the duty of the court to recommit the report, and wrong to confirm it. But it is evident from the report that fro time to time between August 17, 1896, and the bringing of the suit, there were payments made to the wards, and that these payments were greater in amount than the amount of interest which had accrued when they were made, and were upon principal to such an extent that, when the report was made, the principal, without any allowance for the guardian's services, had been reduced to $768.12, all accrued interest having been also paid. While it is stated in that part of the report which allows a further deduction for services that the amount with which the guardian is in effect both charged and credited as interest by the report is $200.18, and that the total amount of principal paid over before suit brought is $211.57, as in no instance is the date or amount of any payment given, it cannot be said that any error appears upon the face of the report. As there had been no request to the assessor to state evidence, to make rulings of law, or to find specific facts, and as no exceptions to his report had been filed, the court properly refused to recommit the report, and properly ordered it confirmed, and entered judgment and ordered execution.

The same considerations dispose of the exceptions and appeal of the defendant Lillie B. Titus. Indeed, it is stated explicitly in her bill of exceptions that at the hearing upon the question of confirming the assessor's report no error was shown.

Exceptions of Lillie B. Titus overruled. Exceptions of Michael Freeman, Jr., overruled. All orders appealed from affirmed. Judgment for plaintiff affirmed.

1. Plaintiff applied for prospecting license on certain areas of land in Nova Scotia, and paid the filing fees therefor, but never obtained the license to mine on the land required by Rev. St. Nova Scotia 1900, c. 18, § 2, without which he was punishable criminally under section 32 thereof, if he mined on the land. Held, that plaintiff was not entitled to recover for breach of a contract by which he conveyed such areas to defendants, which recited that plaintiff "held" them, and which required defendants to expend a certain sum in development thereof.

2. Evidence of a general mining custom in Nova Scotia to prosecute development work without having the license required by Rev. St. Nova Scotia 1900, c. 18, § 2, which is punishable criminally by section 32, was inadmissible in an action to recover damages for breach of defendants' contract to expend a certain sum in developing mining areas for which no license had been obtained.

3. Rev. St. Nova Scotia 1900, c. 18, § 157, authorizes the issuance of a mining license on the miner's application on his filing a bond with two sureties in the form prescribed. Held that, since the applicant for the license was the only person entitled to obtain the same on filing the required bond. he was not entitled to enforce a contract by which defendants agreed to expend a certain sum in developing areas covered by his applications until he obtained the license.

4. Since, under Rev. St. Nova Scotia 1900, c. 18, the only provision for the renewal of mining rights under an application is for the renewal of the license authorized by section 36, on payment of certain government fees, a plaintiff having applied for a license for certain areas, but having

never obtained one, was not entitled to recover for breach of defendants' contract to renew plaintiff's rights.

Exceptions from superior court, Suffolk county; Elisha B. Maynard, Judge.

Action by Charles F. Jones against George B. Holden and another. A verdict was directed in favor of defendants, and plaintiff brings exceptions. Overruled.

Plaintiff entered into a contract with defendants, which recited that plaintiff “held" 102 gold acres in the Mill Village gold district, in Queens county, province of Nova Scotia, and that in consideration of $1, paid to him by defendants, he transferred all his right and title to said areas to defendants on defendants paying him $1,000, and on their agreement to pool for plaintiff certain shares Defendants in a corporation to be formed.

further agreed to expend $500 in development work, which should be done on plaintiff's areas so conveyed. Nothing, however, was done by either party after execution of the contract. for breach of which by defendants plaintiff brought suit.

W. N. Buffum and F. S. Elliot, for plaintiff. Jas. H. Devlin, Jr., for defendants.

KNOWLTON, C. J. The decision of this case turns on the construction of a contract in writing, for breach of which this action is brought. Apparently neither the plaintiff nor the defendants ever did anything under the contract after it was signed. The breaches alleged were that the defendants failed to expend $500 in the work of development prospecting for gold upon the areas referred to in the writing, and failed to pay fees to the government on these areas to renew the plaintiff's rights. The Revised Statutes of Nova Scotia, which were put in evidence, are important in testing the validity of the plaintiff's claims. All the rights the plaintiff had when the contract was made, or at any time afterward, grew out of his applications for a prospecting license for these areas, and his payment of the fee required by statute to be paid on the filing of such applications. He had no right to prospect or to do anything upon the land until he should first obtain a prospecting license. The words "to mine" are defined in the statute in such terms as plainly to include the development mentioned in the contract. Rev. St. Nova Scotia 1900, c. 18, § 2. Mining without first having ob.

tained a lease or license is punishable criminally under the statute. Chapter 18, § 32. A license could not be obtained under the plaintiff's application without his first filing a bond with two sureties for the protection of private landowners, substantially in the form prescribed by the statute. Chapter 18, § 157. After obtaining such a license, it could be transferred under the statute, but until the license should be issued, the plaintiff had no legal right which he could transfer. The contract to expend not less than $500 in the development of the mines, if it is to be construed to require such development by the defendants with no other pretense of authority than the plaintiff's application, was a contract to perform a criminal act, which cannot be enforced. Evidence from the plaintiff's witness that there was a general custom in Nova Scotia to violate the law in this particular was incompetent. If the fact were as the plaintiff offered to prove, it would not put upon the defendants a legal obligation to do that which was forbidden by the statute under a penalty.

If the contract is to be given validity, it can only be upon the construction that there was an implied understanding that the plaintiff should give the bond with sureties, and obtain the license, without which the defendants could legally do nothing; and that the defendants should then go on under his authority. Inasmuch as no one but the plaintiff had a legal right to do this, and as he did nothing, the conditions did not arise which might have put upon the defendants the obligation to expend this money. The same condition applies to the stipulation that the defendants shall "pay the government fees on said areas that may be necessary to renew them." The only provision in the statute for the renewal of rights of this kind is for the renewal of a license. Chapter 18, § 36. There is no provision for the extension of an application beyond the year within which the license was issued. Until the license was issued, there was nothing to renew, and no license was ever issued. Exceptions overruled.

(182 Mass. 425)

HANNON v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 8, 1903.)

CARRIERS-ELEVATED RAILWAYS-INJURIES TO PASSENGER-NEGLIGENCE.

1. For the rapid handling of the throngs of passengers on an elevated road, the cars were so arranged that the side doors for the exit of the passengers were opened by guards on the platforms at the stations. A passenger who had his hand on one of the doors was injured by the guard's opening it before the train came to a full stop. The guard had no knowledge of the position of the passenger's hand, and the train was so nearly stopped that the opening of the door was the occasion of no danger. Held, that the guard was not guilty of negligence.

Exceptions from superior court, Suffolk county.

Action by Hannon against the Boston Elevated Railway Company. Judgment for defendant, and plaintiff brings exceptions. Exceptions overruled.

Alfred S. Hayes, for plaintiff. E. P. Saltonstall, for defendant.

KNOWLTON, C. J. The defendant is engaged in carrying great numbers of passengers on its trains above the surface and through the subway in Boston. Its cars are fitted with doors at the end, through which passengers enter, and sliding doors at the side, through which they pass out. The stations are not far apart, and during the busy hours of the day throngs of passengers are very great. In order to accommodate them with rapid transit, it is important that arrangements be made for their exit and entry at the stations with the least possible delay. To do this, guards are provided at the stations, who open the doors when the trains arrive, so that passengers can quickly leave the cars, and other guards on the trains who open the gates at the ends of the cars, so that other passengers can quickly enter. The plaintiff was accustomed to ride on these cars three or four times a day, and was familiar with the method of managing them. At the time of the accident the car was not crowded, and he had a seat. There were plenty of straps by which one could hold, if he desired, when standing. When the station was called, he arose, walked across the car to the middle door, and took hold with his right hand of the wooden upright part of the side of the door. There was nobody standing in the aisle. As the car came to a stop it jerked somewhat, and he was thrown off his balance, and, in order to steady himself, put out his left hand, the fingers of which rested against the glass of the door near the casing. Before the car had come to a complete stop, the guard on the platform outside the car pulled back the door; and as he did so the middle finger of the plaintiff's left hand, which was resting against the glass of the door, was jammed between the window frame of the door and the door casing. The only negligence relied on by the plaintiff is the opening of the door before the train had come to a full stop.

We need not consider the question whether there was any evidence of due care on the part of the plaintiff in allowing his fingers to rest against the glass of the door at a time when he knew it was about to be opened, for we are of opinion that there was no evidence of negligence on the part of the defendant. To save time for the multitudes of traveling people, to whom time is valuable, it is necessary to have the doors ready to permit exit as soon as the passengers safely can begin to pass out. A little time must be consumed in unfastening and opening the doors. To hold that the guard outside shall not be permitted to begin the process until the cars come to a complete standstill would impose an unneces

sary and unreasonable restriction, whose effect would delay passengers and prolong the running time of the trains. Ordinarily there is no reason to anticipate danger from beginning to get ready the places of exit while the train is in the last part of its movement before coming to a full stop. Passengers are not expected to have their fingers in such a position as to be endangered by the opening of the doors at such times. Of course, the guard must be careful not to open the car when, from the speed of the train or from any other cause, he has reason to anticipate danger to passengers. In the present case there is nothing to show that he knew that the plaintiff's fingers were on the glass. Exceptions overruled.

(182 Mass. 447)

HENDERSON v. FOSTER.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 8, 1903.)

MASTER'S REPORT-MOTION TO RECOMMITDISCRETION-FINDINGS OF FACT

-REVIEW-EVIDENCE.

1. A motion to recommit a master's report for a statement of the evidence is addressed to the discretion of the court, and its ruling thereon will not be reviewed unless it is shown that the discretion was improperly exercised.

ters into any of the master's findings, there is nothing to show that he made an error. Decree affirmed.

(182 Mass. 449)

WOOD v. TILESTON & HOLLINGS-
WORTHY CO.

(Supreme Judicial Court of Massachusetts. Norfolk. Jan. 8, 1903.)

MASTER AND SERVANT-ASSUMPTION OF OBVIOUS RISK-EVIDENCE.

1. Evidence examined in an action by a servant against the master for injury resulting from the slipping of a ladder owing to the splitting of the cleat against which it rested, and held that the servant had assumed the obvious risk.

Exceptions from superior court, Norfolk county; Albert Mason, Judge.

Action by Amos A. Wood against the Tile ston & Hollingsworthy Company. From a verdict for defendant, plaintiff brings exceptions. Exceptions overruled.

Hiram P. Harriman, Harry E. Perkins, and John F. Neal, for plaintiff. Jas. E. Cotter, for defendant.

KNOWLTON, C. J. The plaintiff worked in the defendant's paper mill, and had occasion very frequently to use a ladder about

Exceptions from superior court, Middlesex county.

Action by one Henderson against one Foster. From a decree in favor of defendant, and refusal to recommit the master's report, plaintiff brings exceptions. Affirmed.

Ralph W. Bartlett, for plaintiff. Francis S. Hesseltine, for defendant.

KNOWLTON, C. J. This bill presents two questions, both of which are answered by the authorities. The plaintiff filed a large number of exceptions to the master's report, nearly all of which are founded on objections to findings of fact in regard to which there is no report of evidence. She also asked to have the report recommitted for a statement of the evidence. It is plain that the findings cannot be revised without the evidence, and it is equally plain that the motion to recommit was addressed to the discretion of the court. Ordinarily such a motion will not be granted in the absence of a special reason for making it. Nichols v. Ela, 124 Mass. 333; Parker v. Nickerson, 137 Mass. 487; Freeland v. Wright, 154 Mass. 493, 28 N. E. 678. Nothing appears in the present case to show that the court improperly exercised its discretion in denying the motion.

The other question is whether the decree is warranted by the pleadings and the master's report. Of this there can be no doubt. Freeland v. Wright, 154 Mass. 493, 28 N. E. 678; Langmaid v. Reed, 159 Mass. 409, 34 N. E. 593. So far as any question of law en

eight feet above the floor. The sides of this ladder, as appears by the model, were made of narrow boards, to which steps were fastened; the lower end being cut off at a slant corresponding to the slant at which the ladder would stand, such that, when the ladder was put up in a position for use, the cut ends of the boards at the bottom would rest horizontally on the floor, and would have little tendency to slip. Then at the foot of the ladder a cleat or pine board about an inch thick and five inches wide was nailed to the floor with five nails, and notches were cut at each end of the cleat within or against which the foot of the ladder would rest when it was in use. There were six or eight similar ladders, adjusted in the same way, and leading to similar platforms, connected with the calenders in other parts of the room. While the plaintiff was on the ladder, the cleat upon or against which the foot of the ladder rested, split through from end to end in a new split; starting at the angle of the notch at one end, and coming out a considerable distance from the notch at the other. The evidence tended to show that there were no nails in the part of the cleat which split off, and the negligence complained of by the plaintiff was the failure to have the cleat properly nailed. It hardly seems possible that the ladder, if rightly handled and put in its proper position, could have had such a tendency to slide on the floor as to split the cleat from end to end, and it seems probable that the accident was caused by improper handling of the ladder; but if we assume, in favor of the plaintiff, that it was rightly

used, we come to the question whether there was any evidence of negligence on the part of the defendant. These arrangements for the use and security of the ladders were a part of the construction of the defendant's paper mill, and were there when the plaintiff made his contract of service. The risks attendant upon this use of ladders were open and obvious. There was no guaranty by the defendant that the cleats were nailed with any particular number of nails, or with nails in any particular parts of the cleats. If any one cared to know how they were nailed, he had only to look, and he easily could ascertain. Their condition was open and obvious. "So far as risks are obvious, pertaining to the apparently permanent features of the business as it is openly conducted, an employer has a right to believe that his employé agrees to assume them." Murch v. Thomas Wilson's Sons & Co., 168 Mass. 408, 47 N. E. 111; Content v. Railroad Co., 165 Mass. 267, 43 N. E. 94; Rooney v. Cordage Co., 161 Mass. 153, 36 N. E. 789; Nealand v. Railroad Co., 173 Mass. 42, 53 N. E. 137; Hoard v. Manufacturing Co., 177 Mass. 69, 58 N. E. 180; Goodes v. Railroad Co., 162 Mass. 287. 38 N. E. 500; Kenney v. Cordage Co., 168 Mass. 278, 47 N. E. 117. We are of opinion that the defendant, when the plaintiff entered its service, owed him no duty to change the arrangement or construction of its works in reference to the slipping of ladders, or to examine the cleats to see whether the nails were in every part from side to side, so that no part could be split off from the rest. Exceptions overruled.

(182 Mass. 431)

TIFFANEY v. HATHAWAY, SOULE & HARRINGTON.

(Supreme Judicial Court of Massachusetts. Bristol. Jan. 7, 1903.)

INJURY TO EMPLOYÉ-EVIDENCE-WANT OF ORDINARY CARE.

1. Where a woman who had worked in a shoe factory for 15 years, and for 6 or 7 years within a few feet of the place where she was injured, voluntarily selected to work at a particular machine at a bench under which there was a revolving shaft which lacked the usual dress guard, and worked at such place with the shafting in the same condition for six months, when her dress caught on the shaft, and she was injured, she was not in the exercise of ordinary care.

Exceptions from superior court, Bristol county; Franklin G. Fessenden, Judge.

Action by Eunice Maria Tiffaney against Hathaway, Soule & Harrington, a corporation. From a ruling that on the whole evidence plaintiff was not entitled to recover, she brings exceptions. Exceptions overruled.

L. E. White and A. R. White, for plaintiff. Crapo, Clifford & Prescott, for defendant.

BARKER, J. Through the whole period during which the plaintiff had worked on the machine which she operated on the day of

the accident the place, with all the appliances and arrangements, had been in the same condition in which it was when she was hurt. That period was six months, and for six or seven years before that she had worked within a few feet of the same spot. She was of mature age, and for 15 years had been employed in similar work. She had herself selected the place because at that particular machine, of a row of 15 or more, the cut made for the convenience of the operator in the bench which ran along the side of the room was square in shape, and went further into the bench than the cuts at the other machines. Under the bench, parallel with the wall, and three or four inches nearer to it than the rear edge of the square opening, and three or four inches above the floor, was a line of shafting; and upon this line, at the right-hand side of the opening, a coupling larger in diameter than the shaft. As she knew, dress guards, to prevent the skirts of the female operatives from coming in contact with the shafting, had been provided for all the machines, but were not in use at this place when she chose it, or while she worked there. Having occasion to place upon the bench some materials for use in her work, she walked into the opening, her skirts were caught by the shaft, and she was hurt. The coupling was fastened by means of bolts, the ends of which were countersunk in the coupling, and held in place by nuts, from the top of which the screw ends of the bolts projected, and the outermost part of the thread upon the bolts projected one thirty-second of an inch beyond the outer surface of the coupling. There was evidence tending to show that the plaintiff's dress was caught by the thread of the nuts, and that she was drawn under the shafting.

The tendency of a revolving shaft to catch, wind up, and draw around itself clothing with which it comes in contact is obvious, and is well known. The plaintiff's work constantly exposed her to this danger. The only incident of it of which she contends she was ignorant is that the threads of the bolts projected beyond the surface of the nuts. We think that a woman who voluntarily chooses to work, as here, in a place where her skirts may come in contact with revolving shafting, is not in the exercise of ordinary care. Exceptions overruled.

2. Where a gravel heater had been permitted by a city to remain next to the curb on a street for more than a week, while it was not in use, and the tongue was held up by a defective wire, such heater constituted a defect in the street, rendering the city liable for injuries to a pedestrian caused thereby.

Exceptions from superior court, Suffolk county; Wm. Cushing Wait, Judge.

Action by Daniel F. Griffin against the city of Boston. A verdict was directed for defendant at the close of the plaintiff's case, and plaintiff brings exceptions. Sustained.

A gravel heater was left unused next to the curb in one of the principal streets of the city of Boston for more than a week. The heater was provided with a tongue or handle by which it was moved, and this handle was held up at an angle by a wire attached to the smokestack of the heater. The wire was old, rusted, and kinked; and plaintiff, while lawfully using the street, stepped back under the handle in order to escape a team, and was struck and injured by the falling of such tongue or handle.

J. E. Cotter, J. W. McAnarney, and G. A. Healy, for plaintiff. Arthur L. Spring, for defendant.

BARKER, J. We think the case should have been submitted to the jury.

1. There was no evidence that the plaintiff voluntarily or by his own act came in contact with any portion of the heater, or that there was any circumstance which ought to have indicated to him that the tongue or handle would fall. It was proper for him to be in the highway and to cross it when he attempted so to do. Therefore he might have been found to be a traveler exercising due

care.

2. Inanimate objects resting upon the surface of a properly wrought way, if ofa nature to endanger travel, have been held to make the way defective, whether put in place by some agency of the municipality charged with the care of the way (Bigelow v. Inhabitants of Weston, 3 Pick. 267; Pratt v. Inhabitants of Cohasset, 177 Mass. 448, 59 N. E. 79), by an individual owner of the soil (Snow v. Inhabitants of Adams, 1 Cush. 443), or by one having some other qualified right in connection with the way (Hayes v. Inhabitants of Hyde Park, 153 Mass. 514, 27 N. E. 522, 12 L. R. A. 249). See Barber v. City of Roxbury, 11 Allen, 318, 320; Maccarty v. Inhabitants of Brookline, 114 Mass. 527; Pratt v. Weymouth, 147 Mass. 245, 17 N. E. 538, 9 Am. St. Rep. 691. But if, when the injury is done, the obstacle which constitutes the defect is in use, and the acts of persons who are using it contribute to or are the moving cause of the injury, the statutory liability cannot be enforced. Barber v. City of Roxbury and Pratt v. Weymouth, ubi supra. In the present instance the heater, with its tongue held up by a rotten and unsafe wire, was an obstruction in the way which

made travel unsafe. It was not in use, and no act of any person tended to cause the tongue to fall. The evidence tended to show that the heater had been left in the same place, next the curbing, unused, for more than a week, and in the same condition in which it was when the plaintiff attempted to pass near it. This would justify a finding that it was a defect. and that the defendant was answerable, under the statute, for the injury which the plaintiff sustained because of the fall of the tongue upon him. See Chase v. City of Lowell, 151 Mass. 422, 425, 24 N. E. 212. Exceptions sustained.

(182 Mass. 473)

ROPES v. FLINT et al.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 8, 1903.)

PARTITION FENCES-RIGHT TO REMOVEMONUMENTS.

1. A wall built by the owners of adjoining lands on their division line merely as a fence between their lands, under an assignment by fence viewers, and which has never been mentioned as a monument in any deed, is not within Rev. Laws, c. 208, § 78, prohibiting the willful and intentional destruction of a monument without right.

2. Where a fence is built by the owners of adjoining lands on their division line, under an assignment by fence viewers, that part assigned by the viewers to one owner to keep in repair may be removed by him for the purpose of replacing it by another partition fence.

Appeal from superior court, Middlesex county.

Suit by Ropes against Flint and others. AfBill dismissed, and plaintiff appeals. firmed.

A. J. Selfridge, for appellant. Smith, Ludden & Ludden, for appellees.

BARKER, J. The plaintiff and the defendant Flint are owners of adjoining lands, and upon the division line between the lands is an ancient stone wall, about 44 rods in length. In the year 1821 the fence viewers set off to Flint's predecessor in title the half of the division line next the road, and to the plaintiff's predecessor in title the other half. Each owner, upon this assignment, built upon his part of the line a stone wall, which still remains in place, but for a long time has been less than four feet high. In the spring of 1901 Flint took down and carried away about 60 feet of the wall on that part of the line assigned to his predecessor in title, and thereafter, at the request of the plaintiff, erected to her satisfaction a wall in place of the part he had taken away. This did not close the controversy between the plaintiff and Flint as to the wall. Neither party knew of the action of the fence viewers had in 1821, and in August, 1901, Flint called out the fence viewers by a petition representing that a controversy had arisen

2. See Fences, vol. 23, Cent. Dig. § 55.