ants respectively formerly was included in a larger tract, all of which was owned by one Kendall, and was bounded on the south by a way known as Richards avenue, in North Attleborough. On May 30, 1881, Kendall by deed sold to Ellen Miller a lot of land bounded 50 feet by Richards avenue and 150 feet deep. The plaintiffs are the successors in title to an interest in this lot. The defendant, Annie M. Clifford, is the owner of a parcel of land adjoining the plaintiffs' lot on the west, and obtained title thereto by deed from one Lewis dated October 1, 1901. The plaintiffs claim a right of way over a strip of land 40 feet wide owned by the defendants along the westerly side of the lot owned by them and extending from Richards avenue northerly to Church street. The case was referred to a master who has found that: "At the time Kendall sold to Ellen Miller he had and showed to her, or her agent, and to at least one other person, a plan or blueprint which ning northerly from Richards avenue, where the locus in dispute is situated. In this deed to her he described the premises as beginning at the corner of a street.' That is the only reference in the deed to a street. There is no evidence of any plan now existing showing any street line northerly from Richards avenue by these premises." was marked or traced with a 40-foot street run The master also has found that there was no fence on the street line between the strip in dispute and Richards avenue and from the appearance of the surface of the ground no indication of a street; that there was no driveway over the disputed strip from Richards avenue to Church street; that there are no boundaries, stakes or marks indicating a street, and there never have been any such boundaries "excepting the placing of two posts about 40 feet apart in the northerly line of Richards avenue by Kendall before the sale to Miller, which posts remained there a short time only"; that no such posts were there when the trustees under the will of Kendall conveyed the premises now owned by the defendant, Annie M. Clifford, and there is nothing to indicate a street or way, and no evidence of any use of the Clifford premises northerly of a gate in the fence in the westerly line of the plaintiffs' lot, the southerly end of which gate is 80 feet northerly of Richards avenue. [1] When a grantor conveys land bounded on a street or way he and those claiming under him are estopped to deny the existence of such street or way, and the right of the grantee and his successors in title therein includes the entire length of the way as then actually laid out or clearly defined. This is the contention of the plaintiffs, and it is fully sustained by the authorities and applies as well to a contemplated way if clearly indicated, as to an existing street. Parker v. Smith, 17 Mass. 413, 9 Am. Dec. 157; Tufts v. Charlestown, 2 Gray, 272; Stetson v. Dow, 16 Gray, 372; Tobey v. Taun ton, 119 Mass. 404; Foley v. McCarthy, 157 Mass. 474, 32 N. E. 669. [2, 3] Although the master finds "that at the time Kendall sold to Ellen Miller he had, and showed to her, * * and to at least one other person, a plan or blueprint which was marked or traced with a 40-foot street running northerly from Richards avenue, where the locus in dispute is situated," still this finding cannot affect the rights of the defendant. The defendant is charged with notice of what is disclosed by the record, and is also charged with what appears upon the surface of the earth. There is no evidence to show that she had any knowledge of the plan, above referred to, which did not appear of record. The only reference upon the record to a street is in the description in the deed from Kendall to Miller, which begins: “Bounded: Beginning on said avenue at a corner of a street"-so that the only fact, therefore, of which the defendant was charged' with notice on the. record, was that the corner of the Miller lot, now owned by Ralph, began "at the corner of a street." She was not charged on the record with notice that it was adjacent to the land of the plaintiff on its westerly side, when the defendant took title to her land, nor was there anything on the surface of the earth to indicate a street. The only thing that could be seen was a narrow path which is established by prescription, leading from Richards avenue, northerly 80 feet along the westerly boundary of the plaintiff's lot. This evidence falls short of charging the defendant with notice of a street, and is distinguishable from the cases above cited and others decided by this court, in which it has been held that a grantor and his successors were estopped to deny the ex istence of a way. The case of Decatur v. Walker, 137 Mass. 141, cited in the plaintiffs' brief, is not at variance with the conclusion reached in the case at bar. In that case the court said: alleged dominant estate to Lydia, describing "On March 31, 1873, Decatur mortgaged the one boundary line as running to a passageway to be made.' There was some evidence that the passageway thus referred to was identified, and that it ran over the grantor's land in the course adopted by the defendant at the time of his alleged trespass. If the way was identified by mutual agreement at the time, or even after the conveyance, it stood on the same footing as if it had been described in the deed." From an examination of the original rec ord in that case, it appears that at the time of the conveyance there was evidence to show that stakes were set and that the passageway "looked as if ploughed in the middle and had a gutter on each side next to the stakes." There was also evidence that the passageway extended from the front of the lot conveyed to the railroad, and at that time had been partially constructed, and that the Walker lot was not adjacent to any public way and had substantially no other way of ingress and egress, and that the plaintiff in fact knew of the defendants' tions were brought after the defendants had claim to the way before her purchase from stopped payment of the checks. the one who had been common owner of both lots. The statement of the court in Decatur v. Walker must be taken in connection with the facts of that case and not to lay down a general proposition which would include a case like the case at bar where no way was described directly or indirectly in the deed and where no way existed upon the surface of the land. The evidence of the location of the street is too uncertain and indefinite for this court to say that the finding of the master was clearly wrong. He has found that the plaintiffs and their predecessors in title have obtained by prescription a right of way over the defendants' land from Richards avenue extending northerly along the westerly line of the plaintiffs' lot for a distance of 80 feet, and the parties have agreed that 10 feet is a reasonable width of such a way for vehicles and travelers. It follows that the entry must be Decree affirmed. In our opinion the trial judge was correct in ruling that the offer made did not constitute a defence. The letter of W. A. Castle, dated some days after these actions were instituted, shows that he deposited to his own credit in the plaintiff's bank, a check for a certain sum of money, as security to guarantee the plaintiff from loss in enforcing payment of the unpaid checks. The fact that the plaintiff cashed and held the proceeds of this check, instead of retaining the paper itself, must have been contemplated as the ordinary business method of dealing with it, and the plaintiff acquired thereby no additional title to the proceeds. The evidence offered would not warrant the conclusion contended for by the defendants, namely, that the plaintiff has been paid in full on the checks. Nor does the offer of proof support any other defence set up in the answers. In each action the entry must be (224 Mass. 303) (224 Mass. 95) INTERNATIONAL TRUST CO. v. PAIGE MOTOR CAR CO. OF NEW ENGLAND. SAME v. CHANDLER MOTOR CAR CO. OF NEW ENGLAND. (Supreme Judicial Court of Massachusetts. Middlesex. May 17, 1916.) PAYMENT 22—WHAT CONSTITUTES. Where the payee of checks drawn by defendant indorsed them to the plaintiff bank, and, upon payment being stopped, deposited with the bank a check for a sum of money as security to guarantee the bank from loss in enforcing payment of the unpaid checks, the fact that the bank cashed and held the proceeds of the check did not effect a payment of its claim, barring recovery on the checks drawn by defendant. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 87, 88; Dec. Dig. 22.] Exceptions from Superior Court, Middlesex County; Charles U. Bell, Judge. Actions by the International Trust Company against the Paige Motor Car Company of New England and the Chandler Motor Car Company of New England. There were verdicts for plaintiff, and defendants excepted. Exceptions overruled. Eaton & McKnight and Chas. T. Cottrell, all of Boston, for plaintiff. Ammidon & Bicknell, of Boston, for defendants. HAYES v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1916.) 1. DEATH 58(1)-EXERCISE of Care. Under St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392, § 1, declaring that, if a corporation which operates a railroad or a street railway by reason of its negligence causes the death of a passenger, or of a person who is in the exercise of due care and is not a passenger, it shall be punished by fine, etc., affirmative proof that one run down by a street car, who was not a passenger, was exercising due care, is essential to a recovery. Dig. 88 75-78; Dec. Dig. 58(1).] [Ed. Note.-For other cases, see Death, Cent. 2. DEATH 75(1) CONTRIBUTORY NEGLI GENCE. Where defendant's request that there was no evidence which would warrant the jury in finding deceased was in the exercise of due care when run down by defendant's car, was improption, should, under the direct provisions of St. erly refused, the court, on sustaining the excep1909, c. 236, enter judgment for defendant; such finding being an essential to recovery. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4579; Dec. Dig. 1175(5).) Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge. DE COURCY, J. It is admitted for the purposes of the order of proof, that the check of the Paige Company and the two of the Chandler Company were delivered by Action by Joanna M. Hayes, administrator, them, respectively, to one H. C. Castle, against the Boston Elevated Railway Comwere payable to his order and indorsed by pany. There was a verdict for plaintiff, and him to the plaintiff, and that the plaintiff is defendant excepted. Exceptions sustained, the owner and holder of them. These ac and judgment ordered for defendant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Clarence W. Rowley and Wm. J. Foley, both of Boston, for plaintiff. Henry S. MacPherson, of Boston, for defendant. PIERCE, J. [1] This is an action of tort for the death of the plaintiff's intestate, not a passenger, alleged to have been caused by the negligence of the defendant. In order to recover, there must be affirmative proof that the decedent was actually looking out for his personal safety at the time he was injured, and so was in the exercise of due care within the meaning of these words in St. 1906, c. 463, part 1, § 63, as amended by St. 1907, c. 392, § 1. McCue v. Boston Elev. Ry., 221 Mass. 432, 109 N. E. 360; Gaffney v. Bay State St. Ry., 221 Mass. 457, 109 N. E. 361; Raymond v. Worcester Cons. Ry., 222 Mass. 396, 110 N. E. 1033. There was evidence of negligence on the part of the defendant in that its motorman permitted the car to coast across A street under the then existing conditions. We need not decide whether that part of the charge which described the method of arriving at the penalty to be imposed upon a defendant found guilty upon a criminal prosecution for manslaughter, was, as a matter of law, so prejudicial to a fair trial of the issues as to require a setting aside of the verdict and the granting of a new trial, as it is not reasonable to expect that a like illustration will be again used. [3] The request numbered 2, that "there is no evidence which would warrant the jury in finding that the plaintiff was in the exercise of due care" should have been given. The exceptions must be sustained and judgment entered for the defendant under St. 1909, c. 236. So ordered. INS. CO. (224 Mass. 86) (Supreme Judicial Court of Massachusetts. 1. MASTER ANd Servant ~3S8-WORKMEN'S Suffolk. May 17, 1916.) COMPENSATION-DEPENDENTS-WIFE OF INJURED EMPLOYÉ LIVING APART. Where an employé and his wife lived toat various places where he had desultory emgether only occasionally and for short periods, ployment as a common laborer, it was erroneous to find that the wife was living apart from him for justifiable cause; their living apart being inability to due to his mental and physical deficiencies and and not to willful neglect. secure remunerative employment [2] Upon the issue of the decedent's due care, the direct and inferential evidence warranted a finding by the jury of these facts: The accident happened on Broadway, South Boston, at or near the easterly crossing of A street, February 13, 1914, at 8:15 p. m. VEBER v. MASSACHUSETTS BONDING & Broadway is about 50 feet wide and runs nearly east and west, having two tracks in the middle; A street is about 30 feet wide and crosses Broadway at right angles; there was a white post on the southerly side of Broadway about 25 feet east of A street; there was an electric arc light on the southeast corner of Broadway and A street, which was lighted, and there were stores on both sides of Broadway, which were lighted; the plaintiff's intestate was struck by a car which was coming from Boston, and going easterly toward City Point on the southerly outbound track; the intestate, immediately before the accident, started at the easterly crosswalk at A street on the northerly side of Broadway, to cross to the southerly side of Broadway; as he left the sidewalk, he was observed by a number of witnesses to be looking in the direction of a plainly visible approaching car, 250 to 300 feet distant; he was walking slowly with a hand in his pocket and head down; no witness testified that the intestate looked in the direction of the car while crossing the street, and a witness for the defendant testified that he did not look; when the intestate was upon the inbound track, the car approaching on the outbound track was distant somewhat more than the width, 30 feet, of A street; he took a step or two over the outbound track and was struck, knocked down and dragged under the car for about 27 feet. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.] 2. MASTER AND SERVANT 416-WORKMEN'S COMPENSATION-PROCEEDINGS-EVIDENCE. gether only occasionally and for short periods, [Ed. Note.-For other cases, see Master and Court Suffolk Proceedings for compensation before the Industrial Accident Board by Ruby L. Veber, widow of the deceased employé, opposed by the Massachusetts Bonding & Insurance Company, insurer. From a finding of the board, The undisputed facts leave the question the insurer appeals. Case recommitted to of the decedent's due care after he saw the the board, with instructions. car from the sidewalk a matter of pure conJecture, and fail to prove that he was actually looking ont for his own safety. This is fatal to a recovery on any count of the declaration. See Callaghan v. Boston Elev. Ry., 200 Mass. 450, 86 N. E. 767; Haynes v. Boston Elev. Ry., 204 Mass. 249, 90 N. E. 419. Jos. A. Dennison and Chas. D. Driscoll, both of Boston, for appellant. Leonard F. Hardy and Gurdon W. Gordon, both of Springfield, for appellee. PIERCE, J. On October 13, 1914, the deceased employé met his death through an in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes $486 112 NORTHEASTERN REPORTER jury in the course of and arising out of his There was no evidence that he was addicted Between 1903 and 1910 he worked on farms, in quarries, in stables, on the state roads and in cutting ice, as he got jobs in one town or another for short periods of time. During this time the husband and wife sometimes lived together for two or three months "at her mother's, his mother's, his sister's or his uncle's." They never hired a house or a tenement, and sometimes did not see each other for a month. They lived together for five weeks in 1911; the month of June, 1912; a week in August, 1913, and a month one In March, 1914, the winter at Pittsfield. husband came to the house of his mother and had dinner with them. In April, 1914, the wife went to work at Onset and remained until September 22, 1914. When she arrived home her mother told her that her husband had been there and wanted her, his wife, to go to Chester and live with him. The last time the wife saw the husband was on September 30, 1914, when she was hurrying to a train. During the years of their married life, he paid doctors' bills, grocery bill, bought clothes for the child, and gave money to his wife aggregating between two hundred and three hundred dollars. Upon the evidence, all of which is reported, It [1, 2] This ruling cannot be sustained. lect. The case at bar is governed by New- a fact The case is to be recommitted to the In- 1. So ordered. (224 Mass. 39) WALSH v. COMMONWEALTH, TION-NECESSITY FOR AVERMENT. see Criminal REVI1202(6).] [Ed. Note. For other cases, SION. Mere verbal changes in the revision of a statute without indicating that a modification of meaning was designed do not alter its signification. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 216; Dec. Dig. 147.] Under Rev. Laws, c. 193, § 12, providing COSTS IN CRIMINAL By direct provision of Rev. Laws, c. 193, § 12, plaintiff in error, after final judgment is reversed for error in the sentence, is entitled to see Counties, his costs, to be paid by the county in which he [Ed. Note.-For other cases, Cent. Dig. 88 203-207; Dec. Dig. 139.] was convicted. Error to Supreme Judicial Court, Suffolk County. William G. Walsh was convicted of taking clams within prohibited bounds, and he brings error. Judgment of sentence reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Clarence W. Rowley, of Boston, for plain- principle that mere verbal changes in the retiff in error. Albert F. Barker, Dist. Atty., of Brockton, and Geo. E. Adams, Asst. Dist. Atty., of Boston, for the Commonwealth. vision of a statute, without indication that a modification of the meaning was designed, do not alter its signification. Great Barrington v. Gibbons, 199 Mass. 527, 85 N. E. 737; Shawmut Commercial Paper Co. v. Brigham, 211 Mass. 72, 97 N. E. 636. Before the enactment of any such statute, the only judgment possible on a writ of error in a criminal case was RUGG, C. J. [1] This is a writ of error to reverse a judgment of the superior court whereby the petitioner was sentenced upon a verdict of guilty on a complaint based on R. L. c. 91, § 113, charging him with having tak-to reverse the judgment already entered and en clams within prohibited bounds. The discharge the prisoner. Plumbly v. Commoncomplaint contained no charge of a previous wealth, 2 Metc. 413, 418; Shepherd v. Comoffense. The maximum fine permitted by monwealth, 2 Metc. 419; Jacquins v. Comsection 114 for a first offense is a fine of not monwealth, 9 Cush. 279; Commonwealth v. less than five nor more than ten dollars. The Murphy, 174 Mass. 369, 372, 54 N. E. 860, 48 plaintiff in error, however, was sentenced to L. R. A. 393, 75 Am. St. Rep. 353. The statpay a fine of fifty dollars and to stand com- ute was remedial in its nature. But it dismitted until the fine was paid. After being closes no legislative purpose to curtail the imprisoned twelve days, he paid the fine. In-power previously possessed by the court to asmuch as the complaint contained no averment of a prior conviction for the same offense, the only sentence which lawfully could have been imposed upon his conviction was that authorized for a first offense. Plainly, therefore, the judgment was erroneous, even though in fact there may have been a prior conviction which, if averred and proved, would have warranted the sentence imposed. The averment of the previous conviction is an essential part of the description of the crime of having committed a second or other subsequent offense, which must be charged in order to support a sentence for the subsequent offense. Tuttle v. Commonwealth, 2 Gray, 505; Commonwealth v. Harrington, 130 Mass. 35; Commonwealth v. Walker, 163 Mass. 226, 39 N. E. 1014. Manifestly the defendant has suffered enough for the crime of which he was convicted. He has paid quintuple the fine which lawfully could have been imposed. Apparently the only purpose of this proceeding is to obtain the reversal of an erroneous judgment. discharge the prisoner entirely if justice should require it. It cannot be presumed that such was the intent of the Legislature. Where the offense is trifling measured by the fine imposed by the statute, and where the prisoner already has paid all or more than all the penalty which lawfully could have been imposed, there appears no reason or justice in remanding the case to the superior court for further proceedings, and none has been suggested in argument. Apparently now no further judgment ought to be rendered. It is true that the plaintiff by the disposition to be made perhaps will escape without a record of conviction of a crime. See Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413. But that is not of sufficient consequence where the offense itself is purely statutory and of comparatively insignificant magnitude. [4] The plaintiff is entitled to his costs, to be paid by the county in which he was convicted, by the express terms of the statute. Haynes v. Commonwealth, 107 Mass. 194, 198. Let the entry be: Judgment of sentence reversed. Petitioner not remanded for further sentence, but awarded judgment for costs against the commonwealth, to be paid by the county of Nor folk. (224 Mass. 46) BRIGGS v. STEVENS, Commonwealth Treas [2, 3] It is contended, however, in behalf of the commonwealth, that the only courses open upon reversal of the judgment are that "such judgment shall be rendered in the case as the court below should have rendered, or it may be remanded for that purpose to said court." R. L. c. 193, § 12. At first sight the language of the statute seems to support this contention. Although "shall" is used, that word is not infrequently used in a permissive and not in a mandatory sense. Cheney v. Coughlin, 201 Mass. 204, 211, 212, 87 N. E. 744. That which is now section 12 of chapter 193 was enacted first in St. 1851, c. 87, where the permissive word "may" was employed, and this word was continued in the subsequent revisions. Gen. Sts. c. 146, § 16, and Pub. Sts. c. 187, § 13. When the revised laws were compiled, two sections were combined in one and the section recast. But there is no indication in the report of the commissioners or otherwise that any change of meaning was intended. It is a familiar | Dig. 9(1).] urer. (Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1916.) 1. RECORDS 9(1) - ASSURANCE FUND-ACTION FOR COMPENSATION. Under Rev. Laws, c. 128, § 95, giving an ance fund for the wrongful registration of a action to recover compensation out of the assurparcel of land, the right of action, if any, was in the owner of the land when the erroneous registration was made, and a stranger to the parcel, thereafter becoming a grantee in a deed purporting to convey it to him, had no right to action. [Ed. Note. For other cases, see Records, Dec. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |