608 314-PROTECTION OF LIFE, LIBERTY, AND PROPERTY-STAT UTE. ages. In order to recover he had the bur-13. CONSTITUTIONAL LAW Such statute is not violative of Declaration of Rights, pt. 1, art. 10, guaranteeing the protection of life, liberty, and property according to standing laws. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 934; Dec. Dig. 314.] 4. CONSTITUTIONAL LAW 321-GUARANTY OF RECOURSE TO LAW-STATUTE. [8] If each party used ordinary care the plaintiff's misfortune is not attributable to the fault of the defendant, and he must bear the burden which the law places upon him. Brown v. Kendall, 6 Cush. 292, 296; Tracy v. Boston Elev. Ry., 217 Mass. 569, 105 N. E. 351; Henry v. Grand Avenue Ry., 113 Mo. 537, 21 S. W. 214. Exceptions overruled. (224 Mass. 122) SIMON v. JUSTICES AND SPECIAL JUS- (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1916.) Such statute is not violative of Declaration of Rights, pt. 1, art. 11, declaring recourse to law for injuries to person, property, and char acter. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 950, 952-955; Dec. Dig. 321.] 5. CONSTITUTIONAL LAW 55-SEPARATION OF GOVERNMENTAL POWERS-STATUTE. Such statute is not violative of Declaration of Rights, pt. 1, art. 30, declaring the strict separation of the powers of the government in three departments, executive, legislative, and judicial, as the statute is not a legislative declaration that a decision may be rendered upon testimony that the judge has not heard, nor an encroachment by the legislative upon the judicial department, by directing the court to base its decision upon evidence not taken or received according to recognized formalities. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 58-69, 71, 80, 81, 83; Dec. Dig. 55.] 6. EXECUTION 451-RELIEF OF POOR DEBTORS-RIGHT TO CONFRONT WITNESSES. Only when one is held to answer for a crime has be the right to meet the witnesses against him face to face, not when he is simply being examined on his application to take the poor debtor's oath. [Ed. Note.-For other cases, see Execution, 1. EXECUTION 451-RELIEF OF POOR DEBT- Cent. Dig. §§ 1306-1361; Dec. Dig. ORS-EXAMINATION-STATUTE. Under Rev. Laws, c. 168, § 20, as amended by St. 1906, c. 203, § 1, providing that examination of an applicant for relief as a poor debtor may be in the presence of the magistrate, or otherwise, as he shall order, it was proper for a judge, engaged in other work in a room adjoining or near that in which examination of an applicant to take the poor debtor's oath was going on, at the suggestion of counsel of the judgment creditor, to order that a stenographer provided by such counsel, without putting her under oath, take a complete record of the questions to and answers of the applicant, and prepare a typewritten transcript thereof for each counsel, and, after examination by the parties, that it be corrected to conform with the truth, and read to the court in the presence of the debtor, who should sign and swear to it, since the examination was virtually in the presence of the court. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 1306-1361; Dec. Dig. ~451.] 2. CONSTITUTIONAL LAW 249-EXECUTION 422-EQUALITY BEFORE THE LAW-STATUTE-RELIEF OF POOR DEBTORS. 451.] Report from Supreme Judicial Court, Suffolk County. Petition for writ of prohibition by Isaac Simon against the Justices and Special Justices of the Municipal Court of the City of Boston. On report. Petition dismissed. F. Galloupe Woodbury, of Boston, for petiWalter F. Frederick, of Boston, for tioner. respondents. RUGG, C. J. This is a petition for a writ of prohibition. The pertinent facts are that the petitioner, a judgment debtor, was being examined under R. L. c. 168, § 20, as amended by St. 1906, c. 203, § 1, for the relief of poor debtors. This examination without objection was begun and had proceeded for a time in a room in the courthouse adjoining or near that in which the judge was engaged in other work, each question and answer being written out in long hand. Thereupon, in order to facilitate the examination and at the suggestion of counsel for the judgment creditor, the judge ordered that a stenographer provided by such counsel take a complete record of the questions and answers and prepare one typewritten transcript thereof for [Ed. Note.-For other cases, see Constitution-each counsel, and after it had been fully exal Law, Cent. Dig. § 710: Dec. Dig. 249; amined by the parties, such changes might Execution, Cent. Dig. § 1208; Dec. Dig. be made as would make the interrogatories Rev. Laws, c. 168, § 20, as amended by St. 1906, c. 203, § 1, authorizing examination of applicant to take the poor debtor's oath out of the presence of the magistrate, its transcription by a stenographer, and its reading to the court in the debtor's presence, is not violative of Declaration of Rights, art. 1, guaranteeing every individual equality before the law. 422.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and answers conform to the truth, and that the judge, the written document is signed then the same should be read to the court in the presence of the debtor and signed and sworn to by him. [1] It is not argued that this procedure was not in conformity to the statute. By its express terms the examination "may be in the presence of the magistrate or otherwise as he shall order." [2-5] The contention is that the statute is unconstitutional as contravening articles 1, 10, 11, and 30 of the Declaration of Rights, which in general guarantee to every individual equality before the law, the protection of life, liberty and property according to standing laws, recourse to law for injuries to person, property and character, and the strict separation of government into the three departments of executive, legislative and judicial. The instant statute offends against none of these constitutional rights. and sworn to by the debtor in the presence of the court. It is only when thus completed that it is ripe for consideration by the court. It is not then hearsay evidence. The statute is not a legislative declaration that a decision may be rendered upon testimony that the judge has not heard, nor an encroachment by the legislative upon the judicial department by directing the court to base its decision upon evidence not taken or received' according to recognized formalities. The procedure prescribed by the statute conforms to established and appropriate methods of procuring and presenting evidence. The statute is a standing law, which regulates within constitutional limits rights of property and liberty. The use of the stenographer was an expeditious method in common use of reducing to writing the evidence of the debtor. The refusal by the judge to put her under oath for the faithful discharge of her duties was put upon the reasonable ground that "as the transcript of the examination was not to be binding upon either party until such additions, alterations or corrections, if any, had been made therein in order that it might be in the form in which the parties desired that it be submitted to the court," her duties were such that there was no occasion for her being sworn. Petition dismissed. [6] The examination of an applicant for the oath for the relief of poor debtors is not a common-law right. It is wholly the creature of statute, which, so far as concerns the present method, has come into existence since the adoption of the Constitution. Stockwell v. Silloway, 100 Mass. 287, 296. See Com. v. Badlam, 9 Pick. 362. It is entirely for the benefit of the debtor. As to him it is a concession of grace and not the regulation of a right. The procedure within the boundaries set for the protection of fundamental rights by the Constitution is entirely within the power of the general court. Affidavits and depositions long have been a fa-(Supreme Judicial Court of Massachusetts. miliar method of bringing facts before a court. Parker v. Nickerson, 137 Mass. 487. It is only when the subject is held to answer for a crime that he has the right "to meet the witnesses against him face to face." Moreover, the examination of the poor debtor is not the evidence of some one else. It is the testimony of himself in his own behalf and for his own relief. The examination under the circumstances here disclosed was in a sense in the presence of the judge. It was conducted under his general supervision. Objections as to testimony could be passed upon by him without delay. The debtor was not compelled to answer any question to which objection was made until directed by the judge. When such an examination is in writing, it is not the oral question and answer which constitutes the evidence, but the written interrogatories and answers signed and sworn to by the debtor. The writing out of the question and answer is preliminary to this final form which becomes the evidence to be considered by the court. The procedure is judicial. It is wholly under the control of the court. Although the writing out of the questions and answers may go on outside the physical presence of KERR v. WHITNEY. (224 Mass. 120) folk. May 18, 1916.) PLEADING 249(3) — AMENDMENT AT LAW-STATUTE. -- - Suf ACTION Rev. Laws, c. 173, § 52, authorized the Supreme Judicial Court, before final judgment and upon terms, to allow amendments, changing a suit in equity into an action at law, if necessary, to enable the maintenance of the action or suit for the cause for which it was intended to be brought; St. 1905, c. 263, repealed so much of Rev. Laws, c. 156, § 5, as conferred original jurisdiction upon the Supreme Judicial Court over certain actions in contract or replevin; St. 1909, c. 33, enabled that court to order the removal of any action of contract or for trial; and St. 1911, c. 275, amended Rev. replevin pending before it to the superior court Laws, c. 173, § 52, so as to make it permissive, instead of mandatory, for the court allowing a change from equity into law to retain jurisdiction of the cause. Held, that the Supreme Judicial Court retained power to amend a suit in equity by changing it into an action at law for a breach of contract. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 712; Dec. Dig. 249 (3).] Exceptions from Supreme Judicial Court, Suffolk County. Suit in equity by Walter Raleigh Kerr against Henry M. Whitney, commenced in the Supreme Judicial Court. Demurrer to the bill sustained, and plaintiff allowed to amend into an action at law, for breach of contract, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-39 and defendant excepts. amendment affirmed. Order allowing take or where the design was to get considered by the Supreme Judicial Court an action at law or in replevin. Channing & Frothingham and John P. Jackson, Jr., all of Boston, for plaintiff. Whipple, Sears & Ogden, of Boston, for defendant. Order allowing amendment affirmed. (224 Mass. 256) DORNTEE et al. v. LYONS et al. (Supreme Judicial Court of Massachusetts. Middlesex. May 19, 1916.) RUGG, C. J. This litigation was commenced as a suit in equity in the Supreme Judicial Court for Suffolk county. A demurrer to 1. EASEMENTS 52-WAY-RIGHT TO USE. the bill on the ground, among other things, that there was a plain, adequate and complete remedy at law, was sustained. Thereupon the plaintiff, against the objection and subject to the exception of the defendant, was allowed to amend his bill into an action at law for breach of contract. A grantee of land bounded by a private way has the right to the use of the surface for the usual purposes of such a way. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 113-116; Dec. Dig. 52.] 2. EASEMENTS 7(6)-WAY-OBSTRUCTION— EFFECT. Where petitioners owned the fee in the half of a section of a passageway abutting on their lot, and their grantor owned the fee in the other half, the obstruction of the passageway would be ineffective to prevent the acquiring of petitioners' prescriptive right, unless such interruption was authorized or ratified by the grantor. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 19, 27, 33; Dec. Dig. ~7(6).] 3. EASEMENTS STATUTE. 7(6)-WAY-OBSTRUCTION— The allowance of this amendment was strictly within the power conferred by R. L. c. 173, § 52. It is contended that this power no longer rests with the Supreme Judicial Court by reason of St. 1905, c. 263, which repealed so much of R. L. c. 156, § 5, as conferred original jurisdiction upon that court over certain actions in contract or replevin. St. 1909, c. 33, enabled that court to order the removal of any action of contract or replevin pending before it to the superior court for trial. St. 1911, c. 275, amended R. L. c. 173. § 52, so as to make it permissive instead of mandatory for the court allowing an amendment from equity into law to retain jurisdic-ed a right to use such way crossed the way, "to tion of the cause. The result of these statutes is to leave with the Supreme Judicial Court power to amend a cause from equity into law. The advantages of a generous jurisdiction to allow amendments changing the form of action, in order that a trial may be had upon the merits notwithstanding errors in the commencement or pleadings, are obvious. It is not unusual that in this way alone can the bar of the statute of limitations be avoided. The power has been freely exercised in order to simplify procedure, obviate delay and prevent a miscarriage of justice. Browne v. Browne, 215 Mass. 76, 102 N. E. 329; Day v. Mills, 213 Mass. 585, 100 N. E. 1113, and cases cited. It is not likely that the Legislature consciously intended to curtail this salutary power. R. L. c. 173, § 52, has not been narrowed, but on the contrary one and possibly the only manifest effect of the amendment of St. 1911, c. 275, was to enable the Supreme Judicial Court to send suits in equity amended into actions of contract or replevin to the superior court for trial. While the purpose of St. 1905, c. 263, was to relieve the Supreme Judicial Court of a part of its nisi prius work, the combined effect of the two later acts, to which allusion has been made, was not to impose upon it necessarily any of the work of which it had thus been relieved. Moreover, amendments of the nature here in question scarcely would be allowed in instances where there was not an honest mis Under Rev. Laws, c. 130, § 2, providing right of way from, in, upon, or over the land of that no person shall acquire by adverse use a another unless such use is continued uninterruptedly for 20 years, an obstruction of a passageway bounding petitioners' land at a point where the boundary of an adjoining owner grant prevent the acquiring of any prescriptive rights by third persons," was such a temporary intrusion or occasional trespass by a stranger as not to interrupt the running of the statute in behalf of an adverse occupant. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 19, 27, 33; Dec. Dig. ~7(6).] Exceptions from Superior Court, Middlesex County; Charles U. Bell, Judge. Petition by Jennie M. Dorntee and others against John Lyons and others, filed in the land court for the registration of a certain Jury trial in the superior parcel of land. court, and to a part of the court's charge petitioners excepted. Exceptions overruled. Wilson, Juggins & Murphy, of Boston, for petitioners. Augustus F. Crowley, of Arlington, for respondents. DE COURCY, J. A large tract of land in Arlington was partitioned in 1883 into three parcels, Louisa Cook taking one, and Harriet A. Pitts the second, which was adjoining and north of the first. These two owners agreed to contribute sufficient land to provide for a 40-foot street along the division line between their respective parcels; but later Louisa Cook repudiated her agreement and erected a fence on the division line. This fence was torn down in 1907 by the respondent Lyons, who at that time had purchased all the parcel originally owned by said Cook. The Harriet A. Pitts parcel was divided into lots in 1886, and a plan of the same was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes recorded. The proposed street appears on this plan, the center line thereof indicating the southerly boundary of her land; and the 20-foot strip of her land adjoining this boundary is the passageway involved in this controversy. The lot of the petitioners (being lot 1 on said plan) was conveyed by Harriet A. Pitts to a predecessor in title of the petitioners in 1886. In the deed it was described as "beginning at a point on the southwesterly side of Massachusetts avenue, formerly Arlington avenue, at the corner of a twenty-foot passageway, now called Belknap place, and from thence running northwesterly by said line of Massachusetts avenue fifty-eight feet to lot two (2) on said plan; thence turning and running southwesterly by said lot two (2) one hundred and fifty feet to lot thirteen (13) on said plan; thence turning and running southeasterly by said lot thirteen (13) fifty-eight feet to said twenty-foot passageway; thence turning and running northeasterly by said twenty-foot passageway one hundred and fifty feet to said Massachusetts avenue and point of beginning." to and from certain coal yards which were on the northerly side of the railroad track shown on the plan, and for other purposes. His route was from Linwood street, through Belknap street to the passageway in question, then through said passageway to Massachusetts avenue. On behalf of the petitioners there was evidence that Stearns, the owner of lot 13, had erected obstructions, consisting of planks placed on the tops of barrels, across said passageway in two places--one at its easterly end, parallel with the line of Massachusetts avenue, the other along the easterly line of Belknap street, extended. The petitioners excepted to that portion of the judge's charge to the effect that the obstruction of the passageway would be ineffective to prevent the acquiring of a prescriptive right unless such interruption was authorized or ratified by the owner of the passageway. This is the only exception before us for consideration. We assume that the petitioners own the fee in the northerly half of that section of the passageway which abuts on their lot, and that Mrs. Pitts owns the fee in the southLot 13 on the plan adjoins the lot of the erly half. See Gould v. Wagner, 196 Mass. petitioners on the west. Its southerly line 270, 82 N. E. 10; Kaatz v. Curtis, 215 Mass. is 120 feet long, and abuts on said passage- 311, 102 N. E. 424. But the acts of Stearns way. Its westerly line is 58 feet in length, in maintaining for a few days the obstrucand abuts on a 40-foot street, indicated as tions at the easterly end of the passageway Belknap street; although Belknap street was were not authorized or ratified by either of first laid out and graded about 1896. On May them. We infer that "Stearns, the owner of 4, 1893, Harriet A. Pitts conveyed this lot 13 lot 13," is Caroline A. Stearns, to whom Mrs. to Caroline A. Stearns, "together with the Pitts conveyed that lot in 1893. Her only inright to use said twenty-foot passageway terest in this portion of the way, so far as from Arlington avenue to the southwesterly shown by the record, above recited, was a line of said forty-foot street extended to land right to use it for ordinary travel. Maniof Louisa Cook and said forty-foot street festly this right to use the passageway was through its entire length for passing and renot confined to the petitioners and to the passing and all the purposes for which public owners of lot 13, but was enjoyed by an instreets are or hereafter may be commonly definite number of other persons. As the used." The 40-foot street referred to doubt-plan indicates, this 20-foot passageway, origiless is Belknap street. The title and interest nally designed as the northerly half of a 40of Mrs. Pitts in so much of the passageway foot street, connects Massachusetts avenue, a as lies west of the westerly line of Belknap street extended southerly, apparently was conveyed by her to Edward L. Smith July 1, 1893; but the record is obscure and confusing in this and some other particulars. The petitioners applied to the land court for registration of their lot (No. 1) and of the said passageway, from Massachusetts avenue to Belknap street. A jury claim having been filed by the respondent, the judge of that court framed this issue, which was submitted to a jury in the superior court: "Is there any easement over the passageway parcel of land claimed by the petitioners appurtenant to the land of the respondent Lyons which has been acquired by prescription, and if so, what?" The answer of the jury was "Yes." public way, with Belknap street, which in turn runs into Linwood street. See Downey v. Hood, 203 Mass. 4, 89 N. E. 24; Atty. Gen. V. Onset Bay Grove Ass'n, 221 Mass. 342, 347, 109 N. E. 165. [3] The obstruction opposite the lot of the petitioners, was placed there by Stearns "for the purpose of preventing the acquiring of any prescriptive rights by third persons." It does not appear to have been even brought to the notice of the respondent. Such temporary intrusion or occasional trespass by a stranger does not interrupt the running of the statute in behalf of an adverse occupant. R. L. c. 130, § 2; Proprietors of Jeffries Neck Pasture v. Ipswich, 153 Mass. 42, 45, 26 N. E. 239; 2 C. J. 98. The other obstruction, at the westerly end [1, 2] At the trial of this issue in the su- of lot 13, does not seem material to the regperior court, there was evidence offered by istration of the land of the petitioners. Over the respondent that he had used the said that portion of the passageway they have passageway continuously for a period of at only a right of way, and that right is not least twenty-one years as a means of travel disputed. The rights of Stearns in that part of the passageway are not before us for de- 15. TRIAL 340(5)—VERDICT-AMENDMENT. termination. No copy of the deed from Pitts to Stearns is in the record, and all the ties interested are not before the court. In an action on a life policy, where the jury par-while they were in their seats, and before the returned a verdict for a sum, with interest, and We find no reversible error in the portion of the charge objected to, and the entry must be: Exceptions overruled. (224 Mass. 6) FONDI v. BOSTON MUT. LIFE INS. CO. (Supreme Judicial Court of Massachusetts. Essex. May 16, 1916.) verdict was recorded, it was amended by the judge by the addition of interest, which then was affirmed by the jury and recorded, the procedure was proper. [Ed. Note.-For other cases, see Trial, Cent. Dig. 799; Dec. Dig. 340(5).] Exceptions from Superior Court, Essex County; Jabez Fox, Judge. Action by Guisseppe Fondi against the Boston Mutual Life Insurance Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained. 1. INSURANCE 646(1) LIFE INSURANCE Jas. J. Sullivan and Michael A. Sullivan, COMPLIANCE WITH CONDITION OF POLICY- both of Lawrence, for plaintiff. John P. S. BURDEN OF PROOF. In an action on two policies of life insur-Mahoney and Cornelius J. Mahoney, both of ance, providing that no obligation was assumed Lawrence, for defendant. by the insurer prior to the dates of the policies, unless insured was alive, in sound health, etc., plaintiff had the burden of showing, as to each policy, by the fair preponderance of the evidence, that insured was in sound health on date of policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1649; Dec. Dig. 646(1).] 2. INSURANCE 646(1)-LIFE INSURANCE PROOF OF PERFORMANCE OF CONDITION PRECEDENT STATUTE. Proof of performance of a condition precedent to the taking effect of a life insurance policy is not affected by St. 1907, c. 576, § 21, providing that no warranty made by insured in the negotiations for a policy of insurance shall be deemed material, or defeat or avoid the policy, unless made with actual intent to deceive, or unless the matter made a warranty increased the risk of loss. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1555, 1645-1649; Dec. Dig. 646(1).] In an action on a life policy providing that no obligation was assumed by the insurer, unless on the date of the policy the insured was alive and in sound health, error in misdirecting that the burden was on defendant to show that the policy had been avoided by breach of the condition was not cured by the instruction that, if it appeared to the jury that insured was not in sound health when the policy was taken out, by its express terms there could be no recovery. [Ed. Note.-For other cases, see Trial, Cent. Dig. 710; Dec. Dig. 296(7).] RUGG, C. J. [1, 2] This is an action of contract whereby the plaintiff seeks to recover on two policies of insurance on the life of Edwardo Contestabile. Each policy contained this among other conditions: "Provided, however, that no obligation is assumed by said company prior to the date hereof nor unless on said date the insured is alive, in sound health. * There was evidence tending to show that on the date of each policy the insured was not in sound health, but was suffering from tuberculosis. In this state of the evidence the jury were instructed that: "The burden of proof in this case to show that this policy has been avoided by breach of the condition referred to, rests upon the defendant. That is, unless he satisfies you by a fair preponderance of the evidence that the conditions of the policy are broken, then you should bring in a verdict for the plaintiff." Exception was duly saved to this instruction. The instruction was erroneous. The correct principle of law was called to the court's attention by the defendant's requests for rulings, to the effect that, in order to recover, it was necessary for the plaintiff to show as to each policy by a fair preponderance of the evidence that on its date the insured was in sound health. When it is made a condition precedent to the taking effect of a policy of insurance as a binding contract, 4. EVIDENCE 333(9) DOCUMENTARY EVI- that the insured shall be in sound health on DENCE-STATUTE "PUBLIC RECORD." In an action on a life insurance policy, de- its date, then the burden of proving complifended on the ground of breach of condition that ance with that condition rests on the plaininsured be in sound health at the date of the tiff. Barker v. Metropolitan Life Insurance policy, a copy of a card from the office of the Co., 188 Mass. 542, 547, 74 N. E. 945; Lee v. state board of health, appearing to show that Prudential Life Ins. Co., 203 Mass. 299, 301, sputum sent to the board by insured's examining physician has been tested by the bacteriologist 89 N. E. 529, 17 Ann. Cas. 236; Everson v. and found to be tuberculous, such records being General Accident Fire & Life Assur. Corp., kept by the board as part of its voluntary activ- 202 Mass. 169, 172, 173, 88 N. E. 658. Proof ities, without legislative requirement, there being no showing that the bacteriologist might of performance of a condition precedent of not have been called as a witness, was properly the policy is not affected by St. 1907, c. 576, excluded, not being a "public record," in the § 21, to the effect that: sense of Rev. Laws, c. 35, § 5. "No tion of a warranty made in the negotia[Ed. Note.-For other cases, see Evidence, * policy of insurance by the Cent. Dig. § 1259; Dec. Dig. 333(9). shall be deemed material or For other definitions, see Words and Phrases, defeat or avoid the policy * unless First and Second Series, Public Record.] made with actual intent to deceive or * assured For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |