30 Trust Company (continued). the commercial risks of general deposit and discount banking and against the temptation of the officers of such institutions to misappropriate the readily marketable securities of the savings department under their control in order to relieve the financial straits of the commercial department. Commissioner of Banks in re Prudential Trust Co. 64. See also appropriate subtitle under In Liquidation. TRUSTEE PROCESS. Upon the evidence at the hearing of a motion to charge one summoned as trustee in a writ in trustee process, it was held that a fund in the possession of the alleged trustee as assignee for the benefit of creditors was held in trust by the alleged trustee subject to the terms of his agreement. Sinclair v. Napoli Cafeteria, Inc. 221. The alleged trustee held the fund in behalf of the assenting creditors upon a legal consideration and, there being no fraud, he was bound to distribute according to the agreement. Ibid. The claims of the assenting creditors being in excess of the fund held by the alleged trustee, there was nothing in his hands or possession with which he could be charged as trustee for the defendant and it was held that the alleged trustee should be discharged. Ibid. An unaccepted negotiable draft drawn by the defendant upon the plaintiff and a negotiable bill of lading attached to the draft covering an automobile and tool kit, ownership of which draft and bill of lading was in the defendant, it was held were not attached by a writ in trustee process. Boston Sheridan Co. v. Sheridan Motor Car Co. Inc. 425. UNDUE INFLUENCE. Upon the review of the evidence it was held that it warranted the submission to the jury of two issues, whether an alleged testator, who at the time of the making of the alleged will was sixty-six years of age, unmarried, living with two elderly sisters and suffering from cancer of the stomach, was then of unsound mind, and whether he was subjected to undue influence by a certain person, not related to him, but employed in his drug store, who was largely to benefit from the will if it was proved, and that this court was not concerned with the question, what weight should be given to the evidence. Flynn v. Cunningham, 306. Declarations made by a deceased person who was alleged to have procured a will to be made through fraud and undue influence but who was not named as a beneficiary under the will of what he had tried to accomplish in that respect, were held inadmissible at the trial of an issue whether the will was so procured. Rowley v. Cole, 375. UNFAIR COMPETITION. See UNLAWFUL INTERFERENCE. UNION. See LABOR AND LABOR UNION. Unlawful Interference. UNLAWFUL INTERFERENCE. A consignee, it was held, could not maintain an action against a transportation company for damages due to interference with certain contracts of purchase of goods without proof that the company knew of the existence of the contracts, and that with such knowledge it intentionally and malevolently persuaded the dealers and sellers to refuse performance. Terrini v. New England Steamship Co. 325. Upon the evidence, it was held that a manufacturer and seller of a flexible mat of rubberized cloth adapted for use on the floor of a Ford automobile, in the advertisement and sale of which he used a trademark, "Air Break," registered by him under G. L. c. 110, § 8, and the name "Air Break for Fords," advertising with special display cards and selling the mat in a special box, could not maintain a suit in equity to enjoin the use of the words "Wind Break" and "Wind Break for Fords" for like purposes in the sale by the defendant of a mat of leatherette cloth adapted for the same use and sold in an envelope under the name "The Practo Wind Break for Fords." Wallingford v. International Manuf. Co. 477. USAGE. VOLUNTARY ASSOCIATION. A motor vehicle registered in the name of "The International Brotherhood of Steam Shovel and Dredge Men" as owner, is not properly registered under G. L. c. 90, § 2, if it appears that it is owned in common by the members, over three hundred in number, of a volunatry unincorporated association known as "Local No. 60." Hanley v. American Railway Express Co. 248. Upon the evidence, in an action of tort for damage to an automobile owned by all the members of an unincorporated labor union known as "Local No. 60," a verdict properly was ordered for the defendant, not only because the automobile had not been properly registered originally under G. L. c. 90, § 2, but also because it was not properly registered when it was damaged, but was an outlaw on the highway. Ibid. Under the by-laws of a voluntary association called a Grand Court it was held that the Executive Council could not bring a suit in equity in their individual names as such Executive Council, where it was not alleged in the bill either that the individual members of the association were too numerous to be joined as plaintiffs or that the suit was brought on behalf of the plaintiffs' associates in membership in the association. Donovan v. Danielson, 432. A bill in equity against six named officers of a voluntary association "and each and every the other members" of the association, "who are too numerous to be herein named individually and whose names are to the plaintiffs unknown and who are fairly represented by the above named defendants," is not demurrable on the ground of non-joinder of defendants. Ibid. A bill in equity against a voluntary association and its treasurer seeking an accounting as to a trust fund in which the plaintiff has an interest is not Voluntary Association (continued). demurrable on the ground that the plaintiff has a plain, adequate and complete remedy at law. Donovan v. Danielson, 432. WAIVER. An insurer who did not argue in this court the question of dependency upon an appeal from a decree in workmen's compensation proceedings was held to have waived that question. Gillard's Case, 47. An exception not argued is treated as waived. Mielke v. Dobrydnio, 89. WANTON AND RECKLESS MISCONDUCT. Evidence, in an action for personal injuries, tending merely to show that a door, which fell upon a plaintiff, was in a fence which was old and "very rotten where it touched the ground," and that the door was held in place by "three bent spikes," two on the "left hand side," and one "on the right hand side," while it would warrant a finding that the door was insecurely fastened, would not warrant a finding that the defendant had been guilty of reckless and wanton misconduct toward the plaintiff. Leuci v. Sterman, 236. WARRANTY. See SALE. WAY. Upon the evidence, in an action for personal injuries resulting from a door falling on the plaintiff from premises owned by the defendant bordering on a private street along which the plaintiff was passing, it was held that a verdict properly might be ordered for the defendant, there being no evidence warranting a finding of a breach of duty of the defendant toward the plaintiff, whose rights in the use of the street were at most those of a licensee. Leuci v. Sterman, 236. Neither the absence of a notice or sign on the private street above described, indicating that it was a private way or warning the public against its use, nor the fact that the private way was laid out between lands of the defendant's predecessors in title and other abuttors, warranted a finding of any greater duty of the defendant to the plaintiff than that owed to a licensee. Ibid. Public. Actions for negligent use of, see NEGLIGENCE, Way. WILL. Upon a review of the evidence it was held that it warranted the submission to the jury of two issues, whether an alleged testator, who at the time of the making of the alleged will was sixty-six years of age, unmarried, living with two elderly sisters and suffering from cancer of the stomach, was Will (continued). then of unsound mind, and whether he was subjected to undue influence by a certain person, not related to him, but employed in his drug store, who was largely to benefit from the will if it was proved, and that this court was not concerned with the question, what weight should be given to the evidence. Flynn v. Cunningham, 306. Declarations made by a deceased person who, it was alleged, had procured a will to be made through fraud and undue influence, but who was not named as a beneficiary under the will, of what he had tried to accomplish in that respect, were held inadmissible at the trial of an issue whether the will was so procured. Rowley v. Cole, 375. Lost Will. Where a will once known to exist cannot be found after the death of the testator, there is a presumption that it was destroyed by the testator with an intent to revoke it. Smith v. Smith, 320. Upon the facts reported by the judge upon an appeal from a decree of the Probate Court dismissing a petition for the proof by copy of an alleged lost will of a widow, it was held that the conclusion of the judge that the original will "was not in existence, uncancelled and unrevoked" at the death of the alleged testatrix, and that it did not appear that it had been "fraudulently destroyed by any other person before or after the death" of the testatrix, could not be said to be plainly wrong, and that the decree must be affirmed. Ibid. WITNESS. The qualifications of an expert witness, called by the plaintiff to testify as to the color and composition of certain candy, were to be determined by the trial judge in the exercise of sound judicial discretion, which did not appear to have been abused. Parker v. S. G. Shaghalian & Co. Inc. 19. Credibility. Testimony of a police court judge in rebuttal held admissible to explain an inference that certain testimony of government witnesses in a murder trial was of recent invention. Commonwealth v. Williams, 515. WORDS. Words, expressions and reasoning used in judicial opinions with reference to the single question actually before the court cannot be wrested from their context and applied authoritatively to the determination of other questions. Eaton v. Walker, 23. "Accumulated profits." See Lapham v. Tax Commissioner, 40, 43, 46. "Capital stock." See Commissioner of Banks in re Prudential Trust Co. 64, 72. "Distribution of capital." See Lapham v. Tax Commissioner, 40, 43, 46. "Entire completion." See Hurley v. Boston, 466, 468. "Income." See Lapham v. Tax Commissioner, 40, 44. "Legally bound to support." See Miller's Case, 281, 283, 285. Words (continued). "May." See Dascalakis v. Commonwealth, 568, 569. WORKMEN'S COMPENSATION ACT. Construction. The language of the workmen's compensation act, in view of its beneficent purpose, ought not to be narrowed any further than jurisdictional bounds demand. Per RUGG, C.J. Gillard's Case, 47. Procedure. Evidence: burden of proof. In workmen's compensation proceedings the burden is upon the employee, and not upon the insurer, to show that he is entitled to compensation and, if so, to what amount of compensation. Ginley's Case, 346. Requests for findings and rulings. No question of law is raised by a refusal of the Industrial Accident Board to grant a request for a finding of fact. Hudson's Case, 330. The Industrial Accident Board properly may refuse to grant requests for rulings which assume as true facts which they do not find to be true. Ibid. Finding by Industrial Accident Board. A finding of the Industrial Accident Board, upon a claim for review of weekly payments under the workmen's compensation act, that the employee was able to earn an average weekly wage equal to what he was able to earn at the time of his injury, cannot be reviewed. Hudson's Case, 330. Findings by the Industrial Accident Board, warranted by the evidence, that there was no causal connection between an injury, received by an employee, arising out of and in the course of his employment when he was burned by an explosion of metal polish and his subsequent death, and that the injuries were not caused by the serious and wilful misconduct of the employer, it was held must stand as final and could not be reviewed, and double compensation and compensation for the death of the employee were denied. O'Connor's Case, 445. Certification. Upon certification to the Superior Court under G. L. c. 152, § 11, of an order or decision of the Industrial Accident Board, entered upon a review of a decision of a single member, and of all papers in connection therewith, it is the duty of a judge of that court to whom the matter is presented to order the entry of such decree as the law requires on the facts found as disclosed in the record, even though such decree reverses rulings made by the Industrial Accident Board and is contrary to the board's decision. Gillard's Case, 47. Upon the record in workmen's compensation proceedings it was held that a contention made in this court for the first time by the insurer that the case was informally entered in the Superior Court, because the presentation was |