Attorney at Law (continued).
fairly was open to him had been considered fully and had been decided
adversely to the respondent. Boston Bar Association v. Casey, 46.
Where, in proceedings for disbarment, a final judgment of disbarment took
effect automatically under R. L. c. 177, § 1, as amended by St. 1912, c. 190,
and Rule 23 of the Superior Court (1906), and thereafter the respondent
filed a motion in arrest of judgment, which the Superior Court had no
jurisdiction to entertain, and thereupon a judge of that court, instead of
refusing to entertain the motion, made an order denying it, from which
the respondent appealed, and the judge also signed an allowance of a bill
of exceptions alleged by the respondent, it was held that the allowance of
the bill of exceptions and the appeal were nullities, because the motion
was not, and in the nature of things could not be, before the court. Ibid.
See appropriate subtitle under PRACTICE, CIVIL.
The mere facts that a national bank, which had in its possession for collection
a note of a corporation bearing also the personal indorsement of W, the
corporation's treasurer, and of another, on the date when the note fell
due received in payment of that note from a representative of the maker
a check of another corporation signed by W, who was also its treasurer,
payable to the bank's order and duly certified by a trust company upon
which it was drawn, are not enough to compel an inference that the bank,
when it received the check, knew that it was drawn by the treasurer upon
the second corporation without authority and was used by him to pay his
private debt. Colonial Fur Ranching Co. v. First National Bank of Boston,
SAVINGS BANK, see that title.
In a suit in equity by a trustee in bankruptcy to compel the transfer to him
of three hundred shares of the par value of $10 each of a certain corpora-
tion, which had been issued to the wife of the plaintiff's bankrupt on the
payment by her of $1,000 in cash, it was said that under the circumstances
disclosed by the evidence the plaintiff, as a trustee in bankruptcy, not-
withstanding the amendment of 1910 to the bankruptcy act of 1898, had
no greater rights or equities than his bankrupt would have had in a similar
suit if not bankrupt. Abele v. S. A. Meagher Co. 427.
It also was held that, no fraud nor attempt nor intention to mislead or defraud
the public by placing valueless stock on the market having appeared, a
decree dismissing the bill was right. Ibid.
On the evidence at the trial of an action against the indorser of a promissory
note, where it appeared that neither the place of payment nor the address
of the maker was stated in the note and that the only presentment for pay-
ment was to a man in an open field near the defendant's house, it was held
that there was a failure to show diligence in demanding payment of the
note by the maker or a demand upon the maker in person or upon her
authorized agent or upon any person found at a place where presentment
ought to have been made. Simmons v. Poole, 29.
In the same case the admission of evidence that the plaintiff asked the man
about the maker and her husband and that he answered that they had gone
to Boston and would be back, he thought, about six o'clock and that he
"was in charge," was held to have been error. Ibid.
In the same case it was held that evidence that more than six months before
the attempted demand the man on whom the plaintiff made the demand
had been a great many times to the plaintiff's store to buy provisions for
the maker of the note and her husband, had no tendency to show an agency
to receive a demand for the payment of a promissory note at the time and
place in question. Ibid.
In the same case it was said that it was not necessary to determine whether
the evidence of a promise of the defendant to pay the note made after the
note was due showed that the promise was made under such circumstances
of knowledge of the material facts as to justify a finding that the defendant
waived the requirement of a demand upon the maker. Ibid.
It was held that certain errors at the trial of an action upon a promissory note
in regard to the making of a demand on the maker of the note could not
have been said to have done the defendant no harm, although the plaintiff
contended that a finding was justified that the requirement of such a de-
mand had been waived. Ibid.
At the trial of an action by the payee of a demand note, a bank, against an
indorser, the wife of the maker, it was held that there could be no recovery
against the indorser because on the undisputed evidence demand for pay-
ment of the note was not made within a reasonable time, namely, within
sixty days of its date. Plymouth County Trust Co. v. Scanlan, 71.
Where, upon a petition for the establishment of a mechanic's lien, it appears
that the respondent delivered to the petitioner a promissory note for the
amount of the debt, it cannot be ruled as a matter of law that such note was
taken by the petitioner as payment nor that it was his intention thereby to
waive and surrender the security of the lien. See v. Kolodny, 446.
The mere facts, that a national bank, which had in its possession for collec-
tion a note of a corporation bearing also the personal indorsement of W,
Bills and Notes (continued).
the corporation's treasurer, and of another, on the date when the note fell
due received in payment of that note from a representative of the maker a
check of another corporation signed by W, who was also its treasurer, pay-
able to the bank's order and duly certified by a trust company upon which
it was drawn, are not enough to compel an inference that the bank, when it
received the check, knew that it was drawn by the treasurer upon the
second corporation without authority and was used by him to pay his pri-
vate debt. Colonial Fur Ranching Co. v. First National Bank of Boston, 12.
Under the circumstances an individual person was held to be unable to main-
tain an action against a surety company on a bond in which the obligee is
described only as the "New Boston Biscuit Company, a corporation of
Malden, Massachusetts," where there was no such corporation as the New
Boston Biscuit Company, there being no evidence of a contract between the
plaintiff and the defendant. Werlin v. Equitable Surety Co. 157.
In an action, in which the defendant gave a bond with sureties to dissolve an
attachment, an amendment of the writ, in which the plaintiff was described
as "H. Bowlwerk & Brother," a corporation, to make the parties plaintiff
"Henry Bollwerk and Joseph Bollwerk . . . as a copartnership under the
firm name of H. Bollwerk & Brother," there being no such corporation, was
held under the circumstances not to create an actual change of existing par-
ties nor to increase nor change the liability imposed by the terms of the
bond, so that the bond remained in force in the action. Bollwerk v. Hirshon,
375.
Notice given by a plaintiff, in an action at law in the Superior Court pending in
Suffolk County, to the defendant and to the sureties upon a bond to dissolve
an attachment, of a motion to amend the name and description of the plain-
tiff was held to be a compliance with the requirement of R. L. c. 173, § 121,
so far as that section was applicable. Ibid.
BOSTON ELEVATED RAILWAY COMPANY.
The provision of Spec. St. 1915, c. 293, § 1, that "The Boston transit commis-
sion shall construct a tunnel or subway" in the Charlestown district of the
city of Boston "under the same provisions as to construction, payment and
use that are provided by law for the construction, payment and use of the
present tunnel under Washington Street in the city of Boston," incorporate
by reference such portions of St. 1902, c. 534, as are pertinent and material.
Horan v. Boston Transit Commission, 142.
The provisions of Spec. St. 1915, c. 293, § 1, do not require the Boston transit
commission to proceed with the construction of the tunnel or subway
therein described until the Boston Elevated Railway Company has con-
sented to and has executed with the commission the contract for the sole
and exclusive use of the tunnel or subway described in St. 1902, c. 534, § 10,
and thereafter, as provided in St. 1902, c. 534, § 19, the statute has been
submitted for acceptance to the voters of the city at the next municipal
election and has been accepted by them. Ibid.
Boston Transit Commission.
BOSTON TRANSIT COMMISSION.
The provision of Spec. St. 1915, c. 293, § 1, that "The Boston transit commis-
sion shall construct a tunnel or subway" in the Charlestown district of the
city of Boston" under the same provisions as to construction, payment and
use that are provided by law for the construction, payment and use of the
present tunnel under Washington Street in the city of Boston," incorporate
by reference such portions of St. 1902, c. 534, as are pertinent and material.
Horan v. Boston Transit Commission, 142.
The provisions of Spec. St. 1915, c. 293, § 1, do not require the Boston transit
commission to proceed with the construction of the tunnel or subway therein
described until the Boston Elevated Railway Company has consented to and
has executed with the commission the contract for the sole and exclusive use
of the tunnel or subway described in St. 1902, c. 534, § 10, and thereafter, as
provided in St. 1902, c. 534, § 19, the statute has been submitted for accept-
ance to the voters of the city at the next municipal election and has been
accepted by them. Ibid.
Under the provisions of the contract of May 2, 1910, between the Boston,
Cape Cod and New York Canal Company and the Old Colony Railroad
Company and its lessee, New York, New Haven, and Hartford Railroad
Company, as to the maintenance of Buzzards Bay Railroad Bridge, it was
held that it was the duty of the canal company to pay the expense of main-
tenance of the bridge, including the inspection of wooden piles at the ends
of the bridge and not within the channel of the canal under the draw span.
New York, New Haven, & Hartford Railroad v. Boston, Cape Cod & New
York Canal Co. 518.
Under the provisions of the contract of May 2, 1910, between the Boston, Cape
Cod and New York Canal Company and the Old Colony Railroad Com-
pany and its lessee, New York, New Haven, and Hartford Railroad Com-
pany, as to the maintenance of Buzzards Bay Railroad Bridge, it was held
that it was the duty of the canal company to pay the expense of mainte-
nance of the bridge, including the inspection of wooden piles at the ends
of the bridge and not within the channel of the canal under the draw span.
New York, New Haven, & Hartford Railroad v. Boston, Cape Cod & New
York Canal Co. 518.
In a probate account charges for the services of a guardian ad litem, appointed
to represent persons unborn or unascertained having possible future in-
terests in a trust fund, are to be charged to capital and not to income. Lor-
ing, petitioner, 392.
A common carrier is not responsible for injuries to a passenger caused by the
misconduct of others which it could not have foreseen and guarded against.
Eaton v. New York, New Haven, & Hartford Railroad, 113.
Actions for personal injuries or death of passengers caused by negligence of
street railway and railroad corporations, see appropriate subtitles under
NEGLIGENCE.
Delivery by a railroad corporation of a part of a carload of coal, upon which it
has a lien for unpaid freight, does not discharge the lien upon the portion of
the coal retained by the corporation unless it appears that the parties in-
tended that the delivery should operate as a constructive delivery of the
whole and thus waive the lien. Sheppard v. New York, New Haven, & Hart-
ford Railroad, 234.
A finding of a judge, who heard without a jury an action of replevin of two car-
loads of coal, brought by a common law assignee for the benefit of creditors
against a railroad corporation, that, although there had been a delivery of
part of the coal to the plaintiff's assignor the remainder of the coal never had
been delivered so that at the time of the replevin the defendant had a valid
lien upon the coal then remaining in its possession for freight due to it, it
was held, could not be said to have been wrong. Ibid.
A petition for a writ of certiorari is the proper remedy to quash proceedings for
the unlawful taking of the petitioner's land by a city for the purposes of its
water supply under the alleged authority of a statute. Jenks v. Mayor &
Municipal Council of Taunton, 293.
Upon a petition for a writ of certiorari to quash the proceedings for the laying
out of Dwight Street in Springfield, it appeared that such laying out for a
considerable distance was in effect a widening of a pre-existing street by
taking a tract of land about twenty feet in width from the front of lots abut-
ting on that street, and it was held that the record did not show, and the
facts did not require the inference, that the awards of damages were not made
in the exercise of honest judgment. Nevins v. City Council of Springfield,
538.
In the case above described it was held that the making of awards, which in
many instances corresponded exactly with offers made by the owners of
land whose property would be affected by the laying out of Dwight Street,
either as compensation for the fee of an entire parcel or for an easement over
a part of the land, did not show that the action of the city council was in-
fluenced improperly by the offers. Ibid.
In the case described above the order laying out the street authorized the city
treasurer to pay the amounts awarded as damages "if said owners shall
not attempt to recover damages by instituting proceedings for the recovery
thereof," and it was held that the order did not undertake to prevent a
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