Volume 243 — Massachusetts Reports

<p>Way, Private. Deed, Construction.</p> <p>A deed giving a right of way over land of the grantor adjacent to the parcel conveyed must be so construed in determining the use to which the way is to be put as to carry out the intent of the parties to it as manifested by it in the light of the circumstances.</p> <p>A parcel of real estate conveyed by a deed was described as bounded on the south by “ lands of ” the grantee. The land of the grantee thus referred to and the parcel conveyed fronted on the west on a public way from which they rose abruptly. A right of way over other land of the grantor was described in the deed as follows: “Together with a right of way fifteen feet in width extending along the rear line of said above premises, to be used as a right of way in common with the grantor and his assigns, extending from lands of said” grantee “on the south and running to the proposed street which leads from” the public way “on the northerly side of” property bounding the described premises on the north “ with the intention of reaching the rear of said land above conveyed over said fifteen foot right of way to the proposed street, so called, and thence to” the public way. The grantee constructed the way on its described cotuse and also extended it southerly to his parcel called the “home place” and without objection by the grantor used it in connection with his land south of the parcel conveyed for over four years. He then conveyed the easterly part of “home place” by a deed purporting to convey a right to use the way in connection therewith. Fourteen months later the original grantor blocked the way where it joined the “home place.” Held, that</p> <p>(1) The language of the deed creating the easement clearly showed that it was to be used only in connection with the premises thereby conveyed;</p> <p>(2) There could not be read into the deed a grant of a right to use the way in connection with land which was mentioned in the deed merely as an abuttal referred to in delimiting the way;</p> <p>(3) The deed was not ambiguous and the evidence of user did not enlarge the grant and was not material in its construction.</p>

Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board that the claimant, a child twelve years of age of Henry Gillander, deceased employee of E. J. Pinney, Inc., was not conclusively presumed to have been wholly dependent upon him for support, and awarding her partial compensation only. The case was heard in the Superior Court by King, J. Material facts are described in the opinion.

<p>Bill in equity, filed in the Probate Court for the county of Hampden on January 14, 1922, by the trustees under the will of Michael Dunn, late of Springfield, for instructions, "to whom and in what proportions the income of said trust fund [[described in the opinion] should be paid and in particular to whom that proportionate part of said income formerly paid to said Rachel Griffin Sullivan, prior to her death, shall be paid.”</p> <p>In the Probate Court, the suit was heard by Long, J. Material facts are described in the opinion. By order of the judge, a final decree was entered adjudging that the surviving brothers and sister of Rachel Griffin Sullivan were entitled to receive that part of the income of the trust fund.which before her death was payable to her.</p> <p>Joseph C. Sullivan, administrator of the estate of Rachel Griffin Sullivan, and her husband and statutory heir, appealed.</p> <p>The case was submitted on briefs.</p>

<p>Mandamus. District and Municipal Courts. Practice, Criminal, Appeal. Words, " Conviction.”</p> <p>A petition for a writ of mandamus ordering the judge and the clerk of a district court to allow and enter an appeal of the petitioner from a conviction will not be dismissed on the ground that the petitioner has served his sentence.</p> <p>The imposition of a sentence after a finding or a plea of guilty in a district court constitutes a "conviction” as that word is used in G. L. c. 278, § 18, giving a right of appeal to the Superior Court, and in G. L. c. 279, § 1, providing for a suspension of the execution of the sentence and the placing of the defendant on probation.</p> <p>The time for appeal from a conviction in a district court is immediately after the imposition of the sentence.</p> <p>An appeal from a conviction in a district court, where execution of the sentence has been suspended under G. L.- c. 291, § 1, must be taken at the time when the sentence is imposed.</p> <p>A defendant was convicted in a district court and sentenced to an imprisonment for less than six months and the execution of the sentence was suspended for a year and he was put on probation. At the time the sentence was imposed, he was notified of his right to appeal and did not appeal. During the proba^ tionary year he was surrendered for violation of the terms of his probation, the suspension of sentence was revoked, the sentence was reduced at his request and compliance with it, as modified, was ordered. He then requested leave to appeal, which was refused. Held, that the defendant had lost his right of appeal by not claiming it when the sentence originally was imposed.</p>

<p>Negligence, Employer’s liability, Causing death, Effect of workmen’s compensation act. Workmen’s Compensation. Act.</p> <p>It is only rights at common law of an employee, his personal representative, next of kin or dependents against his employer which, upon the employer becoming a subscriber under the provisions of the workmen’s compensation act, can be retained by a notice given under G. L. c. 152, § 24.</p> <p>An employer who is insured under the provisions of the workmen’s compensation act is relieved by G. L. c. 152, § 68, of liability under G. L. c. 229, § 7, for the negligent causing of the death of an employee irrespective of whether the notice by the employee to the employer, described in G. L. c. 152, § 24, was given and whether the death, of the employee occurred within thirty days after the employer gave his employees the notice of the insurance required by the act.</p>

<p>Tort for personal injuries received by the plaintiff while he was a passenger on the New York, New Haven and Hartford Railroad at Avon in the State of Connecticut on November 18, 1918. Writ dated November 10, 1919; also an action of</p> <p>Tort by the administratrix of the estate of James E. Backer to recover under the provisions of statutes of the State of Connecticut for the causing through negligence of conscious suffering and the death of the plaintiff’s intestate resulting from personal injuries received by him at Meridqp in the State of Connecticut on July 29, 1918, while he was employed as a brakeman on the New York, New Haven and Hartford Railroad. Writ dated October 15,1919; also an action of</p> <p>Tort under Connecticut statutes by the administrator of the estate of Edward L. Murphy for the causing through negligence of conscious suffering and the death of the plaintiff’s intestate resulting from personal injuries received by him on September 1, 1919, while he was on a public highway at a grade crossing of the New York, New Haven and Hartford Railroad. Writ dated January 26,1920.</p> <p>The defendant originally named in each of the second and third actions was the corporation, the New York, New Haven and Hartford Railroad Company. On January 5, 1922, motions were 'allowed therein substituting as defendant James C. Davis, the person designated as agent under the provisions of the Federal Transportation Act (1920), 41 U. S. Sts. at Large, 456, and process was issued, summoning him as such agent.</p> <p>The defendant in all the actions appeared specially and filed motions to dismiss, described in the opinion.</p> <p>The motions to dismiss were heard by N. P. Brown, J., and were denied; and, being of the opinion that such ruling raised important and substantial questions of law which ought to be determined by this court before further proceedings were had, with the consent and at the request of the parties he reported the actions for that purpose.</p> <p>The Federal Transportation Act (1920), 41 U. S. Sts. at Large, 457, in § 200 (a) provided in substance that federal control of the railroads should cease on March 1, 1920; that (§ 206 a) suits thereafter brought for causes arising under federal control should be brought, after termination of federal control, “against an agent designated by the President for such purpose.” Section 206 (d) reads as follows:</p> <p>“Actions, suits, proceedings, and reparation claims, of the character above described pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).”</p>

<p>Tort, with a declaration in two counts, the first count being for damages resulting from alleged assault and battery of the plaintiff on September 16, 1918, committed by “a servant of the defendant acting within the course of the defendant’s employment,” and the second count being for malicious prosecution of the plaintiff by the defendant “by its agents or servants” on the same day. Writ dated July 15, 1919.</p> <p>The defendant originally named in the writ was the New York, New Haven and Hartford Railroad Company. A motion to amend was allowed on December 19, 1921, which substituted for the corporation as defendant "James C. Davis, agent designated by the President under the Transportation Act of March, 1920, for the New York, New Haven and Hartford Railroad.” Process against the new defendant was issued on December 19, 1921, and was served on the same day. The new defendant filed a motion to dismiss the action, setting forth the following grounds:</p> <p>“1. That under the laws of the United States, this Court is without jurisdiction to entertain this action as against the above named defendant.</p> <p>“2. That the proceedings heretofore had in this action, seeking to make the said James C. Davis, Agent, a party defendant in this action by amendment or substitution, and the issuance and service of the writ herein summoning him to appear and take upon himself the defense of this action as a party defendant, are null and void because in violation of and in conflict with the laws of the United States.</p> <p>“3. That this proceeding against the above named defendant was not instituted within the time prescribed nor in the manner provided by the laws of the United States, which laws exclusively govern the plaintiff’s right, if any, to maintain an action against the above named defendant.</p> <p>“4. That the provisions of the General Laws of this Commonwealth, under which authority was exercised to issue the summons herein to the above named defendant, in so far as said provisions purport to authorize the proceedings herein against the above named defendant, are repugnant to the laws of the United States, and, therefore, said proceedings are null and void and without the authority of law.</p> <p>“5. That it appears from the record of the return of the writ herein issued to the above named defendant that the service of said writ was not made in accordance with the provisions of the laws of this Commonwealth and therefore, said service is null and void.”</p> <p>The motion was heard by N. P. Brown, J., and was denied; and, being of opinion that the ruling thus made raised important and substantial questions of law which ought to be determined by this court before further proceedings in the Superior Court, the judge reported the action for such determination.</p>

<p>Contract, Construction, Validity. Partnership. Corporation. Equity Jurisdiction, Discovery, Accounting, Adequate remedy at law. Jurisdiction. Arbitrament and Award. Interrogatories.</p> <p>A contract in writing between a corporation, an individual conducting a business as produce broker, and a second individual, recited that the parties had “ entered into a co-operative agreement to buy and sell onions in the Connecticut Valley this season,” that the corporation and the broker were “to be the active operators in connection with this deal, ... to keep an accurate item of all of its purchases and sales . . . also an expense account in connection with its business. . . [that] expenses with the exception of the services of” the manager of the corporation and of the broker were to “be chargeable at the end of the season to what will be known as a joint expense account. Said expenses are to be deducted from the profits if there are any, and if not, each party to this contract shall bear an equal share of said expenses. The books of the” corporation and of the broker were to “be subject to inspection at any time by a duly authorized representative of any party to this contract.” Warehouses of the corporation were to be leased “to this joint account.” It was “understood and agreed by all parties concerned that the” corporation and the broker “shall conduct its business of buying and filling orders as in the past, but shall not have the right to embark in any speculative transaction in onions without the consent of the three parties to this contract. The duties and obligations of . . . [the third party] are that of a silent partner. He is to furnish the necessary capital for the conduct of this business, without charging interest on money advanced for this purpose, but he shall have the privilege of rendering an expense account for all the money disbursed in connection with the buying or selling of any onions owned or controlled by the three parties to this contract, and said expenses shall be charged to the joint account in the same manner as the expenses of the other two parties to this contract. It is understood that the services of. . . [the corporation manager and of the broker] being given free of charge, shall constitute an offset for the use of the money supplied without interest by . . . [the third party] ... It is also agreed that at the end of the season all parties to this contract shall render a proper accounting to each other of their receipts and disbursements, and they are to share equally in the loss or profits accruing from the operation of this business on a joint account basis.” During the season, the corporation and the broker signed a certificate that, as the third party was finding the capital to pay for onions stored, warehouse receipts should be issued to him. The third party and the broker brought a suit in equity against the corporation for discovery of books and accounts and for an accounting. The defendant demurred. Held, that</p> <p>(1) The contract on its face was not a contract of partnership, and the corporation could enter into it;</p> <p>(2) The defendant corporation, in the absence of evidence, could not be presumed to have intended to make an ultra vires contract;</p> <p>(3) It appearing that the dispute between the parties went to the root of their relations, a provision of the contract, that in the event of a disagreement "the matter in dispute should be left to a Board of Arbitration whose decision was to be final and binding upon the parties,” could not be invoked to prevent the plaintiffs, who had not alleged that they previously had sought an award of a board of arbitration, from maintaining the suit;</p> <p>(4) The plaintiffs did not have a full, adequate and complete remedy at law;</p> <p>(5) The right to interrogate under G. L. c. 231, §§ 61-67,144, did not impair relief by discovery in a suit in equity;</p> <p>(6) The bill disclosed sufficient ground for relief in equity.</p>

<p>Bill in equity, filed in the Superior Court on January 20,1921, for an injunction restraining the defendants from trespassing upon, passing over or using Jordan Promenade, property of the plaintiff bordering on Jordan Pond in Shrewsbury, for the storage and transportation of ice.</p> <p>In the Superior Court, the suit was referred to a master. Material facts, found by him in a report which did not include a report of the evidence, are described in the opinion. Exceptions to the report, filed by the plaintiff and by the defendants, were heard by Lawton, J., by whose order there were entered an interlocutory decree overruling the exceptions and confirming the report and a final decree that the defendants “be enjoined from using Jordan Promenade, for uses other than passing and re-passing thereon, to and from Jordan Promenade and the ways to which said Jordan Promenade gives access, as shown on the Plan of 1906,” and ordering them “to remove all obstructions thereto and structures maintained by them on said Jordan Promenade within sixty days” from the date of the decree.</p> <p>The defendants appealed.</p>

<p>Landlord and Tenant, Premises leased, Repair of plate glass window, Construction of lease. Words, “Unavoidable casualty.”</p> <p>A lease of “room on the first floor of” a certain building “with the lavatory and conveniences connected or enjoyed therewith, and the use of the corridors and halls leading thereto, and the passenger elevator provided for the use of the tenants in said building, together with steam heat for said offices and building” includes as a part of the demised premises, where there is no provision in the lease to the contrary, a plate glass window of considerable size next to the sidewalk, which formed a part of the outer wall of the room and admitted light to no other part of the building.</p> <p>In the absence of any agreement in the lease requiring the landlord to repair the plate glass window above described, the obligation to repair it rested upon the tenant.</p> <p>The breaking of the plate glass window above described through accident or negligence of a third person, for whose conduct neither the landlord nor the tenant was responsible, was not an “unavoidable casualty” within the meaning of a provision of the lease requiring the tenant to “keep the premises in tenantable repair, damage by fire, unavoidable casualty and usual wear and tear alone excepted.”</p>

<p>Complaint, filed in the Superior Court on November 25, 1921, under G. L. c. 62, § 47, by way of appeal from the refusal of the respondent to abate a portion of an income tax assessed upon the complainant for the year 1919.</p> <p>The complaint was heard in the Superior Court by Sisk, J., upon an agreed statement of facts. Material facts are described in the opinion. The judge, without malting any decision, reported the case under G. L. c. 231, § 111, for determination by this court.</p>

<p>Contract for breach of a contract to deliver light drop forge trimmings. Writ dated June 13, 1918.</p> <p>The action was tried in the Superior Court before Callahan, J., and there was a verdict for the plaintiffs. The defendant filed a proposed bill of exceptions. A motion by the plaintiffs to dismiss the bill was allowed. The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Fire Prevention. Sprinkler. Constitutional Law, PoEce power. Pleading, Criminal, Complaint. Boston.</p> <p>G. L. c. 148, § 36, requiring the installation of automatic sprinklers in a building in which four or more persons Eve or are usuaUy employed above the second floor and which is “ used in whole or in part” for manufacturing certain specified inflammable substances, is not open to objection on constitutional grounds.</p> <p>Conformity of an order issued under G. L. c. 148, § 36, with the requirement of § 41, that “no rule or order shaU be made or enforced which requires an expenditure by the owner or occupant of more than five per cent of the last annual assessed valuation of the land and buildings to which such rule or order relates,” need not be averred in a complaint for violation of the provisions of § 36 of the chapter, it being a matter of defence and not a part of the description of the substance of the offence.</p> <p>By reason of the description of the metropoEtan district contained in G. L. c. 148, § 28, the provisions of §§ 28-50 of that chapter are operative in the city of Boston without their having been accepted by the city council.</p> <p>An order of the fire marshal served upon the owner of a building subject to the provisions of G. L. c. 148, § 36, recited that an inspection had been made of the premises, that the building was used in part for the business of working upon paper boxes and the storage of paper and that four or more persons were usuaUy employed above the second floor, and continued: “By virtue of the power conferred on me by chapter 795 of the Acts of 1914, or any act or acts in addition thereto, or amendment thereof, you are hereby ordered to equip the second and third floors of the front section of said building with automatic sprinklers in a manner satisfactory to the Building Commissioner of the City of Boston.” Held, that the notice was not in conformity to the statute, in that</p> <p>(1) The statute confers no authority upon the fire marshal to make any delegation of power or duty;</p> <p>(2) An attempt to vest an untrammeUed discretion in a pubEc officer as to improvement of property without some rule for guidance is void;</p> <p>(3) The notice was vague and indefinite in requiring the instaUation of a mechanical device to conform to the satisfaction of a city officer without affording, by reference or otherwise, any guide.</p> <p>What, if any, jurisdiction the building commissioner of the city of Boston possessed in the circumstances above described, it was not necessary to determine.</p>

<p>Replevin to recover "One Buick Coupe automobile.” Writ dated May 2, 1921.</p> <p>In the Superior Court, the action was heard by Sisk, J., without a jury. Material facts found by him are described in the opinion. The judge found for the plaintiff. The defendant “claimed exceptions to the finding for the plaintiff upon the facts set out in findings of fact, but says that upon the findings of fact under the laws of this. Commonwealth, and under the laws of New York, where the contract was made, the finding for the plaintiff was not warranted and the defendant claims exceptions to the finding for the plaintiff upon the facts set forth in findings of fact.”</p> <p>The defendant’s bill of exceptions contained no recital of evidence upon which the findings of the judge were based.</p>

Petition, filed in the Probate Court for the county of Plymouth on September 9, 1921, for the proof of the will of Edward Mottau, late of Brockton, and of a codicil thereto.

<p>Probate Court, Jurisdiction, Issues for the jury. Will, Validity.</p> <p>In a petition for the probate of the will of one who died domiciled in New Bedford, twenty-four next of kin were named, of whom eight were alleged to reside in this Commonwealth, one in the State of Rhode Island, five in the Azores, and ten in the State of California. A citation was issued, which was returnable sixteen, days after the date of the filing of the petition and was ordered to be published in a New Bedford newspaper and by mailing or delivering copy to all known persons interested in the estate. The return showed service by publication and mailing. Held, that, even though none of the heirs at law resident outside of this Commonwealth appeared and even though they in truth may have been unaware of the proceeding, nevertheless the general notice was sufficient to give the court jurisdiction of the petition and to justify a final decree.</p> <p>The settlement of estates of deceased residents of this Commonwealth ought to go forward to a conclusion as speedily as is reasonably possible.</p> <p>Upon the return day of the citation upon the petition above described, the only appearance of a contestant was by a resident of New Bedford, who moved for jury issues. His motion was denied and he appealed. Before his appeal was heard in this court, appearances as contestants were entered by one of the next of kin who was a resident of Providence in the State of Rhode Island and for next of kin residing in the Azores, who also filed a motion for jury issues. At the hearing by this court of the appeal already filed, the appellant moved for a continuance in order that the motion of the later contestants might be heard before disposition of the pending appeal. The motion was denied and a rescript was issued affirming the decree denying the first motion for jury issues. The second motion for jury issues then was heard in the Probate Court, it being agreed that the judge might consider and compare the statements of evidence made at the hearing of the two motions, and the motion was denied. The second group of contestants appealed. Held, that</p> <p>(1) Only extraordinary circumstances would justify a framing of issues on the second motion after the affirmation of the decree denying the first motion;</p> <p>(2) No such extraordinary circumstances appeared.</p>

<p>Contract, Consideration. Statute of Frauds.</p> <p>An agreement by one, to whom a debt is owed jointly and severally by two debtors, to look to each of them for one half of the debt, to be paid in instalments, followed by payments by one of them, is not supported by a consideration and does not bar the creditor from recovering the entire balance due with interest in an action against one only of the debtors.</p> <p>The statute of frauds, G. L. e. 259, § 1, cl. 5, is not a bar to an action to recover a balance due under an oral agreement by two persons jointly and severally to repay a loan of $2,000 with interest, and, in addition thereto, one cent on every barrel of flour (with a minimum number of one hundred thousand barrels) sold by a certain corporation in which they were interested during twelve months beginning after the date of the loan, since the contract might have been fully liquidated and performed within a year.</p>

<p>Conspiracy. Monopoly. Food. Pleading, Criminal, Indictment, Motion to quash, Motion to expunge. Practice, Criminal, Jury, Verdict, Exceptions. Jury and Jurors. Verdict. Evidence, Competency, Relevancy and materiality, Privileged communications, Admission. Attorney and Client.</p> <p>Conspiracy as a criminal offence is established when the object of the combination is either a crime, or, if not a crime, is unlawful, or when the means contemplated are either criminal, or, if not criminal, are illegal, provided that, where no crime is contemplated either as the end or the means, the illegal but non-criminal element involves prejudice to the general welfare or oppression of the individual of sufficient gravity to be injurious to the public interest.</p> <p>An indictment charged that the defendants between January 1,1916, and February 3, 1919, when, by reason of conditions created by the World War, there was general scarcity of food-stuffs and of steam trawlers and other vessels available for the catching of fish, engaged in a conspiracy to create a monopoly in fresh fish, to fix, regulate, control, and to enhance exorbitantly and unreasonably the price of fresh fish with intent “to injure, oppress, impoverish, cheat and defraud . . . divers persons and corporations . . . and the public in general.” The means by which, it was alleged, the defendants intended to carry out their plans were (1) by the acquisition and by securing control of the assets, property and good will of divers corporations, partnerships and individuals and of other agencies theretofore engaged in catching, selling, storing and distributing fresh fish in Boston and the establishment thus of a monopoly of the fresh fish business; (2) by withholding fish from sale and controlling the sale thereof; (3) by keeping fish in storage in violation of the cold storage laws of the Commonwealth; (4) by sham bidding and sham selling as to fresh fish at auction on the fish exchange in Boston; (5) by causing to be published false quotations of sales of fresh fish; (6) by false representations as to scarcity of fresh fish; (7) by causing to be unlawfully and fraudulently issued within this Commonwealth by officers, agents and servants of a foreign corporation certificates of stock therein purporting and represented thereon to be fully paid and non-assessable shares of such stock but in truth issued for property conveyed at the behest of the conspirators to the corporation at prices grossly in excess of their value; (8) by causing dividends to be paid on fraudulently issued stock of such corporation; (9) by misrepresenting the value of property conveyed at the instance of the defendants to such corporation for issuance of stock; (10) by misrepresenting to the public that such stock was issued lawfully and for the fair value of property conveyed to the corporation therefor; (11) by eliminating competition in the fish business, and (12) by coercing others by threats and intimidation to join in the conspiracy and restraining their trade. Held, that the indictment properly charged a criminal conspiracy to do an unlawful act by means which in some particulars were unlawful and in someowere criminal under our law.</p> <p>In the modern and wider sense monopoly denotes a combination, organization or entity so extensive and unified that its tendency is to suppress competition, to acquire a dominance in the market and to secure the power to control prices to the public harm with respect to any commodity which people are under a practical compulsion to buy. Per Rtjgg, C. J.</p> <p>By the common law monopolies were unlawful because of their restriction upon individual freedom of contract and their injury to the public. Following Standard Oil Co. v. United States, 221 U. S. 1.</p> <p>Private monopoly of an essential article of food in time of war is unlawful in this Commonwealth.</p> <p>It was stated by Rtjgg, C. J., that it should be noted, as an exception to any generalization, that monopolies in public utilities may be granted by the General Court in the public interests, subject to appropriate regulation for the general welfare.</p> <p>Even if monopoly alone and without more at common law and under St. 1908, c. 454, § 1, be not considered a crime, it is illegal, void and against public policy, and a combination for the purpose of establishing a monopoly in an essential article of food and of raising its price excessively and unreasonably in time of war is highly inimical to the public welfare and is indictable as a conspiracy.</p> <p>One of the means for compassing the end of the combination described in the above indictment was to be the holding of fresh fish in cold storage for a longer period than twelve months without the consent of designated State officers. Held, that such conduct was a crime under St. 1912, c. 652 (see now G. L. c. 94, §§ 69-73).</p> <p>Sham bidding and sham selling of fish at auction on the fish exchange in Boston, alleged in the indictment above described to have been one of the means for attaining the end of the combination, was a crime at common law.</p> <p>Another means adopted for carrying out the above described conspiracy, false representations as to the scarcity of fresh fish, constituted an unlawful act of such nature that at the least a contract made in reliance upon such false representations might have been avoided. •</p> <p>Averments in the indictment above described as to the fraudulent issuance of stock in the Maine corporation organized as one of the means of carrying out the conspiracy and as to the fraudulent payment of dividends on such stock set forth means at least unlawful in the sense of being contrary to good faith and commercial honesty.</p> <p>An allegation in the indictment above described that, as one of the means for carrying out the conspiracy, certificates of stock in a Maine corporation were fraudulently issued and sold to the public in this Commonwealth as fully paid and legal was sufficient as matter of criminal pleading.</p> <p>In an indictment for criminal conspiracy, a general description of illegal means employed by the defendants by terms of recognized meaning in law is sufficient without the particularity which might be necessary in an indictment for the substantive crime.</p> <p>To indict one for engaging in a conspiracy seeking to acquire a monopoly and thereby to enhance unreasonably the price of a given article is to charge him ■with a specific offence in plain words and such an indictment is not open to the objection that it was too vague and indefinite to constitute a proper criminal charge.</p> <p>The facts, that some of the means alleged to have been used by the defendants in the indictment above described had no taint of illegality and that others were not set out with the detail which would be essential if they constituted the main crime, did not invalidate the indictment.</p> <p>There was no fatal defect in the indictment above described by reason of duplicity or misjoinder.</p> <p>An indictment charging several defendants with the offences described in St. 1912, c. 651, and in the words used in that statute, is sufficient in matter of form.</p> <p>Defendants may be charged, in a single indictment containing several counts, with divers and distinct offences, whether felonies or misdemeanors, if the offences are of a kindred nature and subject the defendants to punishments of the same general character.</p> <p>Two counts charging a criminal conspiracy at common law to promote by unlawf ul means a monopoly in fish inimical to the public welfare, and fourteen counts charging violations of G. L. c. 93, §§ 8-12, may^be joined in a single indictment against thirty individuals.</p> <p>The indictment above described named three persons in several counts as co-conspirators with the defendants with an averment that no indictment was found against these three for the reason that they “testified and produced evidence before a committee of the General Court of Massachusetts upon a subject referred to said committee relating to matters and things included within this presentment.” The defendants moved that the above statement be expunged and that because of it the indictment be quashed. The motions were denied. In his charge the judge instructed the jury that the statement was unnecessary and superfluous and that it could be disregarded. Held, that</p> <p>(1) There was no legal harm to the defendants in naming all the conspirators and at the same time stating why accusation was not made against those omitted from the indictment;</p> <p>- (2) Although the statement did not set forth a substantive part of the crime and well might have been omitted, the defendants’ motions were denied rightly, and their substantive rights were protected by the charge.</p> <p>An entire panel of traverse jurors, who had been summoned by a special writ of venire fados for the trial of an indictment for criminal conspiracy at the “Third Session” of the Superior Court for criminal business in the county of Suffolk, was discharged. The trial judge then directed jurors to be called from two" other sessions of the Superior Court then being held for criminal business in the court house for the same county and from those jurors five were chosen. Thereafter the remaining seven jurors were secured from jurors then in attendance at several civil sessions of the Superior Court being held for the same county. Held, that the proceedings following the discharge of the panel first summoned were regular under G. L. c. 212, §§ 12, 14; c. 234, § 27.</p> <p>The sitting of the Superior Court each month for Suffolk County for criminal business is single and not several, each of the several sessions in which such business is conducted being a part of that single sitting.</p> <p>The designation by the clerk of the Superior Court for criminal business in Suffolk County, in writs of venire fadas issued to jurors, of the particular session of the single sitting held each month for the county of Suffolk at which the jurors shall attend is a matter of convenience and does not constitute that session a special sitting nor those jurors a special jury.</p> <p>At the trial of the indictment above described, evidence, relating to several specific instances as well as to general practices occurring after the alleged conspiracy was formed and tending to indicate that some of the defendants, when they and the business concerns for whom they acted had quantities of fish ample for their needs, bid upon fares of fish merely for the purpose of keeping up the price, could not be pronounced inadequate to warrant the submission to the jury of the question, whether the defendants used such means in carrying out the conspiracy.</p> <p>Evidence relating to obliteration of marks on packages showing dates of putting fish in refrigeration, to taking fish from one cold storage place and putting it in another, to the acquisition of cold storage plants, to observations by police officers and conversations by them with some of the defendants which were susceptible of being treated as admissions, was held to have been sufficient to support the portion of the indictment relating to violation of the cold storage laws, and was competent for that purpose.</p> <p>G. L. c. 266, § 66, is a penal statute and is not to be extended by construction beyond its fair implications.</p> <p>G. L. c. 266, § 66, plainly prohibits only the manual making out and handing over of the physical thing known as a certificate of stock in fraud to one having no right to it and is not aimed at directors voting to instruct the proper ministerial officers to issue stock to promoters, who, by receiving the same in return for property sold by them to the corporation at a secret profit, violate their fiduciary obligations to the corporation.</p> <p>The allegation of the counts of the indictment above described which charged criminal conspiracy at common law and stated as one means of accomplishing its ends a fraudulent issue of stock as a means to accomplish the conspiracy were confined by the trial judge in submitting the case to the jury to two particulars: (1) whether there was a fraudulent issue of stock in the Maine corporation to a certain one of the defendants, who was the main promoter of the scheme, when he was not entitled thereto, in violation of R. L. c. 208, § 57; (2) whether some or all of the defendants voted to take from the treasury of the Maine corporation money obtained from the exorbitant prices of fish and pay it as dividends to holders of stock who had no title to it. There was evidence tending to show that the defendant above designated was the organizer and promoter of the Maine corporation, that in acquiring as a part of the alleged conspiracy the assets of a Massachusetts corporation engaged in merchandising fish, votes were passed without investigation or inquiry by the directors of the Maine corporation who were his nominees, and stock was issued to him in such a way that he made a large secret profit in the purchase from the Massachusetts corporation, which, in violation of his duty as an officer of the corporation, he did not disclose to stockholders, and that the other defendants shared in the scheme. The trial judge left the case to the jury under instructions that, if the promoter defendant sold property, which he had procured from the Massachusetts corporation, to the Maine corporation at a profit in return for its stock without pursuing one of the methods by which, through full disclosures and bona fide conduct, a promoter may secure perfect title to stock received in payment of such sale, then there might be a verdict of guilty as to those defendants who conspired to cause that transaction to come to pass, provided its purpose was to enhance unreasonably the price of fresh fish and thus to cheat the public. Held,, that, whatever might be said as to the conduct of the defendants when assailed in a civil suit, no violation of R. L. c. 208, § 57 (now G. L. c. 266, § 66), was shown by the evidence, and consequently there was error in the trial of the common law counts in the indictments.</p> <p>A malevolent purpose is not an essential element of the crime prohibited by St. 1912, c. 651, § 2.</p> <p>St. 1912, c. 651 (now G. L. c. 93, §§ 8-12), is not unconstitutional.</p> <p>Evidence tending to show that the defendants in the counts of the indictment above described alleging violation of St. 1912, c. 651, § 2, were actuated in their conduct by a purpose, to destroy the business of other dealers on the fish pier in Boston who declined to come into their combination, was found in threats to various dealers, “It is policy for you to get in, in out of the wet;” “We will take care of you;” “We,” meaning the defendants, their corporation and their allies, “will put . . . [^certain competitors] on the bum;” the “second preferred stock was going fast and that ‘those who didn’t get aboard quick would get left’;” that they wanted the "live ones;” that “some of these concerns aren’t in very good'financial circumstances, and it is only a question of time when they will have to get out.”</p> <p>At the trial of the indictment above described, evidence relating to activities of that defendant who was a promoter, in inducing those who handled over eighty-five per cent of the fish landed at the fish pier in Boston in 1916 to enter upon a scheme looking to a control of the business of procuring, refrigerating, distributing and selling fish through Boston, and of sixteen others of the defendants who joined with him, was held to warrant a finding that those defendants combined for the purpose of creating a monopoly in violation of St. 1912, c. 651, § 2; and that those defendants were actuated by a purpose to establish a monopoly critically harmful to the public welfare.</p> <p>Instructions to the jury at the trial of the above described statutory counts, that there was nothing illegal in the defendants planning by lawful means to do the largest business in producing, distributing, buying, selling and dealing in fish, and thereby to make a gain or profit; and that, if it was found that their purpose was that the Maine corporation should become a large producer and a large distributor of fish, and that, by increasing the efficiency of the business and by economies and savings effected, fish could be furnished at reasonable prices with profit, or if it was found that the acts, declarations and admissions of the defendants were reasonably susceptible of that construction, then the defendants were not guilty, were sufficiently favorable to the defendants.</p> <p>At the trial of an indictment against thirty defendants charging a criminal conspiracy to accomplish the acts denounced by St. 1912, c. 651, § 2, such an association or combination may be found to exist from purely circumstantial evidence, which may be re-enforced by declarations, admissions or conduct of one of them in furtherance of the common object; and many facts of no consequence in isolation may be proved because of the persuasiveness of their united effect.</p> <p>At the trial of the indictment above described,</p> <p>(1) Evidence, admitted and tending .to show that no information was given to the directors of the Maine corporation or to the fish dealers and others who became stockholders therein of the secret profits made by the promoter defendant in promoting that corporation and as to the means employed by him in selling stock, evidence as to the law of Maine touching promoters’ profits, and other evidence of that nature bearing upon the alleged issue of stock in violation of R. L. c. 208, § 57, and payments of dividends thereon, ought to have been excluded;</p> <p>(2) Evidence as to the methods of bidding for fish on the Boston fish exchange by dealers who were stockholders of the Maine corporation, and as to withdrawal of its fish for a time from the exchange and the consequences thereof as affecting the prices of fish and the resultant advantages to the Maine corporation, was relevant and material;</p> <p>(3) Evidence as to the organization, capital stock and corporate powers of the Maine corporation, and as to the acquisition of subsidiary companies was competent, relevant and material; and much of the evidence as to records, although remote, could not be said to have prejudiced the substantial rights of the defendants;</p> <p>(4) Evidence as to the acquisition of control of a cold storage plant at Portland, Maine, and the use made of its facilities was relevant;</p> <p>(5) Testimony as to the interest of the Maine corporation as lessee of a part of T Wharf in Boston and the interest of one of the defendants in another fish store there located was admissible;</p> <p>(6) Testimony by an attorney for some of the defendants which related to conferences concerning the proposed commission of a crime by the client in furtherance of the conspiracy properly was admitted;</p> <p>(7) Evidence tending to show what amounts were paid, as compensation for services rendered to the defendants, to an attorney who was a witness and was alleged to be a co-conspirator was admissible in the discretion of the trial judge, where the attorney was alleged to be one of those who participated in the illegal combination although he was not indicted;</p> <p>(8) Evidence as to hale of vessels written on the blackboard of the fish exchange, in connection with the method of business there prevailing and the means available to fish buyers as to the state of the market and the prices based upon the information there displayed, could not be said to have been admitted erroneously;</p> <p>(9) Testimony given by one of the defendants in another proceeding respecting the matters in issue under this indictment was admissible against him as admissions;</p> <p>(10) Copies of a paper published under the authority of the Maine corporation, containing matter showing the corporation’s business methods and assertions in its name tending to show monopoly, were admissible as indicating the execution of a purpose to establish a monopoly;</p> <p>(11) A witness, who had been long in the fish business in Boston and for several years had been statistician for the federal government, rightly was. permitted to give computations tending to indicate monopoly, made from the books of the fish exchange which were in court.</p> <p>There is no privilege between an attorney and his client as to conferences which concern the proposed commission of a crime by the client.</p> <p>The factors employed in the establishment and maintenance of a monopoly are so numerous and shifting as to have slight significance each standing alone and yet to possess convincing force in combination..</p> <p>Numerous rulings by the trial judge, at the trial of the indictment above described, admitting evidence subject to the defendants’ exceptions on the promise of the assistant district attorney that it would be connected with the defendants or some of them, were interpreted as meaning that the evidence was admitted on that condition, and if the defendants deemed at the close of the evidence that no such connecting evidence had been introduced, it was the duty of the defendants to move to have the evidence stricken out; and such exceptions in the several instances were overruled, either because the evidence was competent, or because it was admissible in the discretion of the judge, or because it was harmless in its adverse effect upon the defendants or because it should have been but was not made the subject of motion by the defendants to strike it out and to direct the jury to disregard it.</p> <p>A contention of the defendants that the judge who presided at the trial of the indictment above described had abdicated his function and had made the prosecuting officer the judge of the admissibility of evidence was held to have been utterly without foundation in fact.</p> <p>The trial judge at the trial above described was held to have performed his duty to guard solicitously the rights of parties against improper arguments by counsel to the jury and to have given appropriate instructions with regard to certain arguments by the counsel for the Commonwealth.</p> <p>Upon the return of the jury with their verdict at the trial of an indictment in several counts against thirty defendants, the clerk asked them if they had agreed upon their verdict. The foreman responded in the affirmative. The clerk then inquired of the foreman, seriatim, as to findings as to each defendant on the several counts, and the foreman responded, "guilty,” or "not guilty,” as the finding was. The defendants found not guilty then were discharged, the judge thanked the jurors, and the clerk asked, “The verdicts that I have read, Mr. Foreman, is your verdict so you say, and so you all say, gentlemen, do you? ” and the jurors answered "Yes.” The jurors then left their seats and the court room, conversed with others present and had begun to disperse when they were recalled to the box and the clerk addressed them as to each defendant relating to the several counts of the indictment, " Gentlemen of the jury, hearken to your verdict as the court has recorded it. You upon your oaths do say that . . . [with a repetition of each finding]." Held, that there was no irregularity affecting the validity of the verdict.</p> <p>It is the general rule that exceptions not argued are treated as waived.</p> <p>This court exercises its power to correct genuine errors of law: ordinarily it spends no time in the elucidation of matters not deemed by those in interest, as worthy of their own reasoning faculties.</p> <p>An indictment against thirty defendants contained sixteen counts, two charging a criminal conspiracy at common law in furthering a monopoly to the injury of the general public and fourteen charging a violation of St. 1912, c. 651, § 2. As bearing upon the counts at common law, certain evidence was erroneously received, certain requests for rulings erroneously were refused and certain instructions erroneously were given to the jury as to alleged unlawful conduct of the defendants in taking a secret profit from the sale of the assets by a Massachusetts corporation to a Maine corporation which they had organized as a part of their monopolistic scheme. Evidence as to the establishment of the Maine corporation, the amount and classes of its capital stock, the nature of the property transferred to it and all other factors connected with it as an instrument calculated to produce and maintain a monopoly was admissible to prove the allegations of the statutory counts. The charge to the jury as to the statutory counts, while depending upon the portion of the charge as to common law counts for the definition of monopoly, was in other respects distinct and separate. Held, that</p> <p>(1) The charge and the trial as to the statutory counts were not affected adversely to the defendants as matter of law by the errors as to the common law counts;</p> <p>(2) As to the verdicts: while those rendered upon the common law counts were set aside, those on the statutory counts were allowed to stand, there being no reversible error as to them; and it was ordered that judgment might be entered upon the statutory counts provided a nolle prosequi was entered as to the common law counts;</p> <p>(3) The case was to be treated, with respect to the two groups of counts so far as concerns verdicts and judgments, the same as if the trial had been had upon separate indictments for each charge;</p> <p>(4) As to sentences: the defendants having been sentenced by a single sentence on all the counts and the execution of the several sentences having been stayed, and the defendants’ exceptions sustained, the sentences were set aside.</p>

<p>Practice, Ciml, Exceptions, Verdict, New trial, Order nunc pro tune.</p> <p>A case is not ripe for judgment, so that pending exceptions to rulings in the trial court can be entered in this court, until the record so to be entered is of such a character that, if this court in determining the questions of law presented thereby sustains the action of the trial court, a final judgment may be entered in the trial court.</p> <p>On motion of the defendant in an action of tort a verdict for the plaintiff was set aside and a new trial was ordered on February 20,1919, to which order the plaintiff saved exceptions and his bill of exceptions (the first) was allowed on October 24, 1919. .At a second trial, a verdict for the defendant was returned on May 25, 1920. On June 1, 1920, the defendant filed a bill purporting to state exceptions saved at the second trial, which was allowed in a substituted form on October 19, 1920. These exceptions were dismissed by order of court on November 5, 1921, for lack of prosecution and because intended for delay. To this order of dismissal, the plaintiff alleged exceptions on November 22, 1921. On March 20, 1922, a hearing was had in the Superior Court on a motion by the defendant to dismiss the first exceptions and the matter was taken under advisement. On March 27, 1922, the exceptions alleged on November 22, 1921, were dismissed under Superior Court Rule 54 (1915). On March 30,1922, the plaintiff, without notice to the judge of the Superior Court, entered the first bill in this court. On April 12, 1922, the judge of the Superior Court entered an order dismissing that bill, which order he thereafter vacated, entering a new order dismissing the bill nunc pro tunf as of March 20, 1922. Held, that</p> <p>(1) The plaintiff’s conduct in entering the exceptions in this court while the motion to dismiss or to overrule them was being considered by a judge of the Superior Court before whom it had been heard, and without notice to that judge, was not dealt with, the plaintiff having had no hearing on that subject;</p> <p>(2) The action was not ripe for judgment until March 27, 1922, and the first bill of exceptions could not have been entered in this court before that date;</p> <p>(3) The first bill of exceptions, having been entered in this corut on the third day after entry was permissible, could not be said not to have been entered within the time permitted in the absence of a specific finding to that effect;</p> <p>(4) The entry by the judge of the Superior Court of the order dismissing the first bill as of a date previous to the date of its entry in this court was ineffectual.</p> <p>The declaration in an action of tort contained four counts, two for libel, one for malicious prosecution, and one for slander, each being for a distinct and independent cause of action. A separate verdict for substantial damages was returned for the plaintiff on each count. After a hearing, a motion by the defendant for a new trial, alleging several grounds, one of which was that the verdict as to each count and as a whole was against the evidence and the weight of the evidence, was allowed, the trial judge making the order as follows: “By agreement of counsel and order of the court separate verdicts were returned on each of the four counts of the plaintiff's declaration. The four verdicts must be treated as one verdict. The verdict is against the evidence and the weight of the evidence and is set aside and a new trial ordered.” Held, that</p> <p>(1) The words in the order of the judge did not constitute a ruling of law that it was impossible to treat the verdicts otherwise than as a single verdict;</p> <p>(2) As matter of construction the words used by the judge expressed in concise form the opinion of the judge that the verdicts upon the several counts all stood on the same footing so far as concerned their freedom from error and therefore that on the motion for new trial they did not require separate treatment but would be grouped as all being tainted with the same infirmity;</p> <p>(3) There was nothing in the record to show abuse of discretion by the trial judge in setting aside the verdict.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Bristol, seeking to enjoin the defendant Nickel, doing business under the name Sanitary Laundry, from prosecuting against the plaintiffs, doing business under the name Mercantile Wrecking Company, an action at law then pending in the county of Dukes County for a breach of the contract in writing described in the opinion, for an accounting under that contract and for general relief.</p> <p>The defendant Nickel filed a motion for the framing of issues for a jury and also a motion that the issues so framed “be ordered tried with the action at law” then “pending in the county of Dukes County between Nickel and Zeitz et al.”</p> <p>The motions were heard by Crosby, J. He filed the following memorandum and order:</p> <p>“This motion came on for hearing before me and was argued by counsel. It appears that when this suit in equity was brought there was pending between the parties herein, in the Superior Court in the county of Dukes County, an action at law brought by Nickel against Zeitz, which action is now pending. It appears that many, if not all, the issues of fact to be tried and determined in the case at law are the same as the issues to be determined in this suit in equity pending in the Supreme Judicial Court in the county of Bristol. Counsel agree that such issues should be framed for trial by a jury.</p> <p>“I am of opinion that this court is without jurisdiction to order the action at law pending in the Superior Court in the county of Dukes County to be tried in Bristol County. I am also of opinion that in the absence of any statute to the contrary that this court has power to order the issues to be tried by a jury with the action at law in the county of Dukes County. I am also of opinion that the determination of the issues of fact in Dukes County by the jury before which the action at law is to be tried will obviate the necessity of two trials involving many if not all the same facts, and will save time and expense to the parties.</p> <p>“Accordingly I direct that the issues heretofore framed be tried with the action at law in the county of Dukes County.”</p> <p>The issues framed were as follows:</p> <p>“First issue: Was the defendant, Nickel, induced to enter into the contract of May 5, 1919, in consequence of the false and fraudulent statements of facts made to him by the plaintiffs, their agents, servants and partners?</p> <p>“Second issue: Was the defendant, Nickel, induced to write the letter dated May 10, 1919, in consequence of the false and fraudulent statements of facts made to him by the plaintiffs, their agents, servants and partners?</p> <p>“Third issue: Did the defendant, Nickel, accept any sum or sums of money in full accord and satisfaction of all claims and payments due from the said Mercantile Wrecking Company?</p> <p>“Fourth issue: Did the defendant Nickel receive a number of jerkins from the Mercantile Wrecking Company for which he did not account to said Company and if so what was the value of said jerkins? ”</p> <p>The single justice reported to this court the question of his “authority to direct that the issues be tried with said action at law in the county of Dukes County.”</p>

<p>Homicide, Evidence. Evidence, Admission, Presumptions and burden of proof.</p> <p>After a captain of police bad stated to one under arrest on a charge of murder, “You are now under arrest charged with the murder of A. You are not compelled to make any statement; if you make a statement you do so voluntarily, fully understanding your rights, as any statement you make can be used either for or against you in court,” that person made a statement, in which he denied his guilt but, without acknowledging guilt, admitted facts from which inferences unfavorable to him might be drawn. At the trial, the statement was admitted in evidence subject to the defendant’s exception. Held, that</p> <p>(1) The defendant’s statement was not a confession, and the rule which excludes a confession of guilt by a defendant who was induced to make it through fear of personal injury or hope of personal benefit, was not applicable;</p> <p>(2) The statement clearly was admissible in evidence;</p> <p>(3) Even if the statement of the defendant to the captain of police while in custody were treated as in fact a confession of guilt, it was not shown that he was induced to make the confession through fear or hope of reward; the preliminary warning given by the captain of police was neither ambiguous, misleading nor improper;</p> <p>(4) A confession made to a person in authority by a defendant in an indictment while under arrest is presumed to be voluntary and, if the defendant objects to its admission in evidence on the ground that it was made because of a threat or a promise, he must show such to be the fact.</p>