Sale (continued).

It might have been inferred that by implication there was made known to the defendant as a manufacturer and seller that the particular purpose of the purchase was resale to retail candy merchants, in which case G. L. c. 106, § 17, cl. 1, was applicable. Parker v. S. G. Shaghalian & Co. Inc. 19. An instruction in substance that there was an implied warranty that the candy was of a quality and fitness suitable for resale and distribution among retail dealers and would remain merchantable under the usual conditions attending proper exposure for retail sale for a length of time reasonable for candy of that nature, was proper. Ibid.

The evidence warranted a finding that there were innate defects in the goods and that their subsequent condition was not due to the usual risks incident to sound merchandise of the quality which was the subject of sale, and, upon such a finding, a verdict for the plaintiff was warranted. Ibid.

The plaintiff was not bound to point out the specific defect in the candy; it was enough to show its unfitness for resale. Ibid.

The provisions of G. L. c. 106, § 17, cl. 4, had no pertinency to the facts here disclosed. Ibid.

Rescission.

Conduct of the defendant which, in an action for conversion of a motor car, it was held was, or could have been found to be, wholly inconsistent with an intention to rescind a contract of sale to a purchaser and justified the judge in finding that it was not rescinded and that title did not revest in the defendant. Arnold v. Chandler Motors of New England, 210.

Repudiation.

Upon the evidence, at the trial of an action to recover the contract price of a carload of hay alleged to have been sold and delivered to the defendant, it was held that the defendant had a right to an instruction in substance that the contract could be repudiated by the defendant at any time before delivery of the hay by the plaintiff; and that the plaintiff thereupon could not recover the contract price unless it equalled or was less than the damages that resulted to the plaintiff from the refusal of the defendant to take and pay for the hay at the place of delivery. Pratz v. E. L. Fisher & Co. Inc. 6.

The wrongful removal of a bale of hay from the car at its destination without intent to accept the entire shipment in performance of the contract obligated the defendant to pay its value in an action of contract or tort; and did not as a matter of law operate to transfer the title to it or to the hay remaining in the car before the payment of the draft. Ibid.

On Execution.

A suit in equity to have a sheriff's sale on execution and his deed in accordance therewith declared null and void, on the ground that the sheriff made a false return in stating that the notice as set out in the return was given to the judgment debtor, and that no notice of the sale was published as alleged by the sheriff, was held barred by a judgment for the defendant in a writ of entry brought by the plaintiff. Allison v. Donovan, 233.

Savings Bank.

SAVINGS BANK.

Upon the evidence, in an action by an administrator against a savings bank for the amount of the deposit made by the intestate as "Trustee for" a claimant, it was held that while there was no evidence of a completed gift of $1,000 of the deposit, findings of a completed and executed intention to establish a trust in favor of the claimant to the extent of $1,000 and that the fact of such declaration of trust was communicated to the claimant and that such intention was assented to by her, were warranted. McCaffrey v. North Adams Savings Bank, 396.

The question, whether there was a complete declaration of trust and acceptance thereof, properly was submitted to the jury. Ibid.

Although Massachusetts savings banks are incorporated to encourage habits of thrift by the allowance of interest on small accounts, and their funds and deposits are held for the exclusive benefit of depositors, and they do in fact approximate somewhat to the character of charitable institutions, they are private corporations and are not charities in the true sense of the term, and their purpose is not within the meaning of St. 43 Eliz. c. 4, or its object as applied in this Commonwealth. Institution for Savings in Roxbury v. Roxbury Home for Aged Women, 583.

See also TRUST COMPANY, Savings Department.

SCHOOL AND SCHOOL COMMITTEE.

Spec. St. 1919, c. 248, did not require the school committee of Cambridge to expend for salaries of teachers all money appropriated in each period of time under the statute before the expiration of such period, and the committee in its discretion may reserve a balance to provide for automatic increases in salaries determined upon by them and for salaries of new teachers. Hunter v. School Committee of Cambridge, 296.

SENTENCE.

See appropriate subtitle under PRACTICE, CRIMINAL.

SEPARATE SUPPORT.

See HUSBAND AND WIFE.

SET-OFF.

The maker of promissory notes held by the savings department of an insolvent trust company was held not entitled to set off a deposit made by him in the commercial department against the notes. Tremont Trust Co. C. H. Graham Furniture Co. 134.

V.

SHIP.

Although ships are property of a peculiar nature, they are personal property and an investment by a corporation in them comes within the same general rules as do investments by corporations in other classes of personal property for the purposes of gain. Lapham v. Tax Commissioner, 40.

Ship (continued).

Complaint for the abatement of an income tax assessed upon a dividend paid exclusively out of profits obtained on the sale of ships was dismissed. Lapham v. Tax Commissioner, 40.

SLANDER.

See LIBEL AND SLANDER.

SOLDIERS' AND SAILORS' CIVIL RELIEF ACT.

Neither § 302 nor § 205 of the soldiers' and sailors' civil relief act, 40 U. S. Sts. at Large, 444, 443, is effectual to prevent the foreclosure under R. L. c. 187, §§ 1, 2, of a mortgage of real estate by an entry on November 23, 1918, the recording of the statutory certificate on December 12, 1918, and the retaining of possession for three years. Bell v. Buffinton, 294.

SPENDTHRIFT.

Upon a petition for a release from guardianship it was held that even though the petitioner's habits may have improved so that, under the guardianship, he no longer indulged in the conduct which had caused him under R. L. c. 145, § 7, to be placed under guardianship, it did not follow that at the time of the hearing his improved habits constituted him competent to manage his own affairs and suitably to care for his property. Modlich v. Jennings, 183.

Upon an examination of the testimony at the hearing above described, it was held that the findings and rulings by the judge who saw and heard the witnesses, including the petitioner, that the guardianship was still necessary were warranted and proper and the petition properly was dismissed. Ibid.

STATE FORESTER.

There is no statutory provision indicating that the State forester is given power to regulate the maximum of expenditure by municipalities for moth extermination. Milton v. Auditor of the Commonwealth, 93.

While no payments can be made by the Commonwealth to a municipality under G. L. c. 132, § 14, in excess of appropriations made therefor by the General Court, nevertheless the auditor of the Commonwealth and the State forester must examine and pass upon accounts and vouchers presented to them by a municipality as the basis of a claim under the statute. Ibid. It being the function of the writ of mandamus to compel public officers to apply their faculties to the performance of required duties without directing the particular action to be taken, a petition may be maintained by a municipality, which seeks reimbursement from the Commonwealth under R. L. c. 132, § 14, for a writ of mandamus requiring the auditor of the Commonwealth and the State forester to examine accounts and vouchers presented to them as the basis of a claim for such reimbursements and, if found correct, to approve them. Ibid.

Statute.

STATUTE.

The language of the workmen's compensation act, in view of its beneficent purpose, ought not to be narrowed any further than jurisdictional bounds demand. Per RUGG, C.J. Gillard's Case, 47.

Applying the rule that a statute, which would be unconstitutional as applied to a certain class of cases and is constitutional as applied to another class, may be construed to have been intended to apply only to the latter class if such construction seems in harmony with the general purpose of the Legislature, the workmen's compensation act must be and is interpreted as intended only to operate upon the classes of employment and injury within the jurisdiction of the General Court. Ibid.

G. L. c. 172, § 63, must have been intended to produce some effective result. Commissioner of Banks in re Prudential Trust Co. 64.

While § 4 of St. 1908, c. 520 (see now G. L. c. 172, § 63), is not entirely clear, it must be interpreted fairly to make it a workable piece of legislation and to accomplish the manifest purpose of the Legislature to give genuine protection to depositors in a savings department of a trust company against the commercial risks of general deposit and discount banking and against the temptation of the officers of such institutions to misappropriate the readily marketable securities of the savings department under their control in order to relieve the financial straits of the commercial department. Ibid. The word "may" in St. 1922, c. 508, relative to the granting by the Superior Court of a new trial in criminal cases, is used in a permissive and not an imperative sense. Dascalakis v. Commonwealth, 568.

STATUTE OF FRAUDS.

See FRAUDS, STATUTE OF.

STATUTE OF LIMITATIONS.

See LIMITATIONS, STATUTE OF.

STATUTES CITED AND EXPOUNDED.
See page 701.

STOCKBROKER.

The courts recognize that when a seat on a stock exchange is sold, and the rules of the exchange so require, the proceeds must first be applied to the members' obligations to the exchange and to the other members thereof in preference to all creditors. Austin v. Hayden, 286.

In an action of contract by a trustee in bankruptcy of a firm of stockbrokers in Michigan against a firm of stockbrokers in Massachusetts for money alleged to have been received by the defendants to the use of the plaintiff from the proceeds of the sale of seats on the New York and Boston stock exchanges formerly owned by a member of the bankrupt firm, where the plaintiff contended that the issues between the parties were res judicata by reason of certain proceedings in the Michigan courts in which it had been adjudged that nothing was due to the defendants from the bank

Stockbroker (continued).

rupts, it was held that there was nothing in the Michigan proceedings to preclude the defendants from asserting their claim as they did. Austin v. Hayden, 286.

The defendants, in receiving the proceeds of the sale of the seats on the exchanges, received and held the same under a claim of right and were under no obligation to turn over such proceeds to the plaintiff. Ibid. One who, through fraud of a stockbroker, has been induced to purchase securities from him, may rescind the contract, tender back what he received through it, and, upon the tender being refused, maintain an action for a return of what he paid to the stockbroker without depositing the property tendered with the court or retendering it at the trial. Patch v. Cashman,378. Upon the evidence, at the trial of an action of the character above described, where previous to the purchase the stockbroker had sold securities owned by the plaintiff and reinvested a part of the proceeds in the securities in issue, it was held that the plaintiff was not required, as a condition precedent to the maintenance of the action, to tender back the amount of a balance due him from the sale of his securities since he was not attempting to repudiate such sale. Ibid.

STOCK EXCHANGE.

The courts recognize that when a seat on a stock exchange is sold, and the rules of the exchange so require, the proceeds must first be applied to the members' obligations to the exchange and to the other members thereof in preference to all creditors. Austin v. Hayden, 286.

STREET RAILWAY.

Actions founded on alleged negligence of street railway corporations or their employees, see appropriate subtitle under NEGLIGENCE.

SUNDAY.

See LORD's Day.

SUPERIOR COURT.

Upon a petition, by the defendant in an action brought in the Superior Court, to remove the action to the District Court of the United States under §§ 28, 29, of the Judicial Code, the question, whether a cause for removal is made out on the face of the record as a matter of law, must be considered and adjudicated by the courts of the Commonwealth subject to review by the Supreme Court of the United States. Eaton v. Walker, 23. A person convicted of the crime of homicide may be sentenced by the Superior Court within one year from the date of trial and conviction without contravening the provisions of St. 1922, c. 508. Dascalakis v. Commonwealth, 568.

SUPREME JUDICIAL COURT.

The practice in appeals from decrees entered by a single justice of this court upon an appeal from a decree of the Probate Court previous to 1920 followed the practice in equity; and such a decree of a single justice based on findings