In the case at bar we cannot say that on the evidence before him the presiding judge did not find that Marsh's experience was confined to the fees charged by two or three physicians, on two or three occasions, in the treatment of smallpox cases which may have been quite unlike the case of smallpox in the action now before us, in a small town like Methuen, and consequently that he was not qualified to give an opinion on the reasonableness of the fee charged in this case by a physician in a city like the city of Lawrence. See Muskeget Island Club v. Nantucket, 185 Mass. 303; Phillips v. Marblehead, 148 Mass. 326. 2. We are of opinion that the last clause of St. 1898, c. 425, § 2, now R. L. c. 80, § 6, is not to be construed to be retroactive. The defendant contends that the word "shall" in the clause in question is not indicative of the future but of the imperative character of the provision in question; that it is not expressive of time but is used to declare that the provision is a mandatory enactment; and that the person who drafted the clause in question had his mind fixed on past settlements, as is shown by the previous clause of this section. The section repealed by St. 1898, c. 425, § 2, was a section which made void all settlements acquired by any provision of law in force prior to February 11, 1794; and the first clause of St. 1898, c. 425, § 2, makes void all settlements not fully acquired after May 1, 1860. It is however to be observed that the clause in question is altogether a new provision. There is no counterpart to it in the section repealed by the section in question. Also that the Legislature did not enact in terms that all persons absent from the Commonwealth for ten consecutive years shall be regarded as having lost their settlements, as the defendant asks us to hold was enacted by this section. What the Legislature did provide was that "all persons absent from the Commonwealth of Massachusetts for ten years in succession shall lose their settlement," in the words of the original act. St. 1898, c. 425, § 2. The use of the word "shall" in the clause in question is in contrast with the words "are hereby defeated and declared to be lost," found in the earlier clause of the section which deals with past settlements. In other words, so far as language goes, the two clauses. are not similar but are in contrast with each other. We see nothing here to take this section out of the general rule that even in a pauper settlement act the word “shall " prima facie refers to the future. Worcester v. Barre, 138 Mass. 101. Exceptions overruled. CHARLES H. Cox vs. CENTRAL VERMONT RAILROAD FRANCIS A. AMBLER vs. Same. W. F. BURDITT & another vs. SAME. E. C. DENNIS vs. SAME. ROBERT T. PRENTISS vs. SAME. DAVID WHITING & others vs. SAME. E. C. CROSBY & another vs. SAME. W. B. JOHNSON v8. SAME. SAMUEL P. TRAIN vs. SAME. Suffolk. November 14, 15, 1904. — April 4, 1905. Present: KNOWLTON, C. J., MORTON, LATHROP, Barker, HAMMOND, LORING, & BRALEY, JJ. Trustee Process. Railroad. Statements made upon information and belief in the answer of one summoned as trustee by trustee process in the absence of anything in the record to control them must be taken as true. In an action against a railroad company another railroad company cannot be charged by trustee process for money credited to the defendant on account of the earnings of railroads beyond the defendant's lines which the defendant would take only as the agent and trustee of the companies operating those railroads. In an action against a railroad company another railroad company can be charged by trustee process for money due to the defendant on account of the earnings of a railroad leased to the defendant by an instrument under which the defendant is to conduct the business of the leased road as a proprietor and not as a trustee, its possession and control being that of a lessee bound by the covenants of the instrument. In an action against a railroad company another railroad company cannot be charged by trustee process for cars in its possession mortgaged by their owner and lessor to which the defendant's only title is that of a lessee for ninety-nine years under an instrument containing among other covenants one to keep the cars in good condition and to replace them with other like property when worn out, and a covenant giving the lessor the right at any time, after a short notice, to enter and take possession of the property and terminate the lease in case of a breach of covenant by the lessee. Sections 3300, 3353 and 3443 of R. L. of Vermont, 1880, give no right to attach by trustee process or otherwise rolling stock leased to a defendant railroad company but which it never has owned. R. L. c. 167, § 39, providing that railroad cars and engines in use and making regular passages on railroads shall not be attached upon mesne process within forty eight hours previous to their fixed time of departure unless the officer first demands other property upon which to make the attachment, applies to an attachment of cars and engines by trustee process. In an action against a railroad company another railroad company cannot be charged by trustee process for a freight car in its possession on a side track in another State. ELEVEN ACTIONS OF CONTRACT, numbered on the docket of the Superior Court for the county of Suffolk from 62 to 72 inclusive, against the Central Vermont Railroad Company in which the Boston and Maine Railroad was summoned as trustee. Writs dated December 8, 1890. The liability of the defendant in these actions was determined at a previous stage of the cases, as reported in 170 Mass. 129. On June 21, 1898, the Superior Court upon a motion of the plaintiffs that the alleged trustee be charged upon its answers made the following order: "As it appears by its answers to the plaintiffs' interrogatories Answer to Int. 3, filed May 29, 1897-that there were some goods, effects or credits to wit: certain credits and money of the defendant in the hands and possession of the alleged trustee at the time of the service of the writ upon it for which it is liable as such trustee. It is ordered that the said Boston and Maine Railroad be and stand charged as trustee-without determining whether there was any valid or such attachment of any cars of the defendant then in its hands or possession, for which it is, or may also be liable to be charged." On April 29, 1903, the plaintiffs moved that an order of notice be issued to the Grand Trunk Railway Company, a corporation established under the laws of the Dominion of Canada, ordering it to appear for the purpose of determining its title, if any, to the funds held by the trustee. This motion was opposed by the trustee, but the Superior Court ordered that the notice be given, and it was served upon the Grand Trunk Railway Company by leaving an attested copy with the commissioner of corporations of this Commonwealth as its agent. The Grand Trunk Railway Company did not comply with the notice and never appeared in the cases. On August 12, 1903, in pursuance of a motion previously filed, the Boston and Maine Railroad summoned as trustee moved in the Superior Court before Schofield, J. that the trustee might be discharged or if chargeable that the extent to which it was chargeable might be ascertained. The judge made certain findings and rulings as stated below, and ordered that the trustee be charged in the sum of $12,840.89. Being of opinion that the questions involved in the cases ought to be determined by this court before any further proceedings were had in the Superior Court, with the consent of all the parties, he reported the cases for determination by this court. If the findings and rulings made by the judge were right, judgment was to be entered on the verdict in each case charging the trustee in accordance with the ruling and order made. If any finding or ruling made by the judge, to which exception was taken, was erroneous, such finding or ruling or any order based upon it was to be set aside and such judgment and order were to be entered as law and justice might require. The report was as follows: On November 20, 1894, the plaintiff in each action recovered a verdict against the defendant, and the exceptions taken at the trial were overruled on January 8, 1898. Nothing remains to be done before judgment except to determine whether and to what extent the trustee is chargeable. The trustee was charged generally by an order made on June 21, 1898, [quoted above] upon its answers that then had been filed without determining any question as to the amount for which it was chargeable. Afterwards, on December 1, 1902, the trustee by consent of the plaintiffs was allowed to file an additional answer amending its former answers. On August 5, 1903, at a hearing before Sheldon, J., the trustee moved that the order of June 21, 1898, might be vacated. The motion was denied, and the trustee excepted. Upon the hearing of the motion made on August 12, 1903, which is mentioned above, the trustee requested the following rulings: 1. That the trustee is not chargeable for the $16,521.42 mentioned in its additional answer as due to the Grand Trunk and other railway companies the same never having been due to the defendant. 2. That the trustee is not chargeable for the $2,154.18 mentioned in the same answer as arising from business on the Ogdensburg and Lake Champlain Railroad, the same being subject to a trust under the lease of that railroad, and the defendant having no beneficial interest in this money. 3. That the trustee is not chargeable for the $10,686.71 mentioned in the same answer as arising from business on the Consolidated Railroad, the same being subject to a trust under the lease of that railroad and the defendant having no beneficial interest in this money. 4. That the trustee is not chargeable for the twenty-seven freight cars mentioned in the same answer as belonging, two to the Burlington and Lamoille Valley Railroad Company and twenty-five to the Ogdensburg Car Company. 5. That the trustee is not chargeable for the cars comprised in the mortgage by the Consolidated Railroad Company to the American Loan and Trust Company, the interest of the defendant under the subsequent lease to it by the Consolidated Railroad Company having been extinguished by the foreclosure of the mortgage. 6. That the five cars purchased by the defendant out of the earnings of the leased railways as renewals of some of the other cars in pursuance of the lease as mentioned in the same answer were subject to the mortgage according to its provisions and by the law of Vermont mentioned in the answer. 7. That the trustee is not chargeable for any cars that were not in this State at the time of the attachment. 8. That the trustee is not chargeable for any cars that are not ascertained to have been in this State at the time of the attachment. 9. That the trustee is not chargeable for any cars that were making regular passages in trains or about to depart on a |