sion for 20 years after the mortgage is due, the supreme court may, after notice to all persons interested, enter a decree barring all actions on such mortgage, if there is no evidence of any payment within 20 years, or of any other act recognizing its validity. Held to include cases where the mortgage is undischarged of record, whether there is evidence suflicient to show that the mortgage has in fact been discharged or not.

Report from supreme judicial court, Middlesex county; James M. Morton, Judge.

Petition by Eben R. Tarbell and others to bar action on a mortgage. Decree for petitioners.

The following is the report of Justice MORTON, of the supreme judicial court: "This is a petition under St. 1882, c. 237, to bar an action upon an undischarged mortgage on certain premises in Newton, in said county of Middlesex, of which petitioners allege they are the owners in fee. Upon a hearing before me I found the following facts: Robert Porter mortgaged the premises described in the petition to one William Jackson, guardian of Maria L. Wiswall, by mortgage dated May 22, 1847, for two hundred and fifty dollars, ($250,) payable in three years from date. Said mortgage was duly recorded with Middlesex South District Deeds, (libro 515, folio 209,) and was afterwards assigned by said Jackson to one Charles Russell, trustee for said Maria L. Wiswall, by deed dated October 5, 1847, and recorded with deeds aforesaid, (libro 515, folio 487.) No assignment of said mortgage from said Charles Russell appears of record, or was shown, except inferentially, to have been made by him or his representatives. Subsequent to said assignment to said Russell, to wit, July 31, 1850, one Joseph N. Bacon made an open and peaceable entry on the mortgaged premises, as the assignee of said mortgage, for the purpose of foreclosing the same, and a certificate of such entry was duly made and recorded. The certificate stated that the entry was made by said Bacon, as assignee and owner of said mortgage. It appeared that possession was continued under said entry during the statutory period necessary to complete a foreclosure by said Bacon and those claiming under him; and on May 23, 1850, the owner of the equity quitclaimed his interest in the premises to said Bacon. Said Bacon conveyed the premises, with other land, by warranty deed, dated January 1, 1851, duly recorded, to one from whom the premises came by mesne conveyance, to one Mary H. Jackson, from whom the petitioners took the same as heirs at law. Said Charles Russell is dead, and it did not appear that any administrator was appointed on his estate, or that any of his heirs at law resided in this state. No payment on account of the debt secured by the mortgage has been made, and no act in recognition of it as an existing mortgage has been done within twenty years, unless the conveyances which have been made of the premises constitute such recogni

tion; and the petitioners and their predecessors in title have held undisputed possession of the premises for more than twenty years last past, and also for more than that time after the expiration of the period limited in the mortgage for the payment of the debt secured thereby. The notice of the pendency of the petition was duly given as requir ed."

A. Blume and J. Willard, for petitioners.

FIELD, C. J. This case has been argued only by the counsel for the petitioners, and we infer that no person has appeared to answer the petition, or to contest the right of the petitioners to the remedy they seek. So far as any objections to the petition have been suggested by counsel, or occur to us, we think that they are not valid. We construe the words "where the record title of real estate is incumbered by an undischarged mortgage," etc., at the beginning of St. 1882, c. 237,' as including cases where the mortgage is undischarged on the record of the proper registry of deeds, whether there is evidence sufficient to satisfy the court that the mortgage has been in fact discharged or not. We think that one purpose of the stat ute was by entering a decree, and recording it in the proper registry of deeds, to perfect the record title, by removing what, according to the record, might be construed as a cloud upon the title. The petitioners are the owners of the equity of redemption if the mortgage was never in fact assigned to Bacon. If it was so assigned, then they are the owners of the fee. There is no direct evidence that the mortgage was assigned to Bacon. This is not a case in which the only title of the petitioners is under the mortgage, against the enforcement of which they ask for a decree. We are of opinion that the pe titioners are entitled to the decree they ask, if sufficient notice has been given. The effect of such a decree upon the rights of persons to whom no notice had been given we cannot now determine. Decree accordingly.

'St. 1882, c. 237, provides that when the record title of real estate is incumbered by an undischarged mortgage, and the mortgagor and those having his estate in the premises have been in uninterrupted possession of such real estate for 20 years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof, he or they may apply to the supreme judicial court by petition, setting forth the facts, and asking for a decree as hereinafter provided; and if, after notice to all persons interested, by publication or otherwise, as the court may order, no evidence is offered of any payment on account of the debt secured by said mortgage within said 20 years, or of any other act within said time in recognition of its existence as a valid mortgage, the court may enter a decree setting forth such facts and its findings in relation thereto, which decree shall, within 30 days, be recorded in the proper registry of deeds, and thereafter no action shall be brought by any person to enforce a title under said mortgage. Approved May 18, 1882.

YOUNG MEN'S PROTESTANT TEMPERANCE & BEN. SOC. v. CITY OF FALL RIVER.

(Supreme Judicial Coust of Massachusetts. Bristol. Jan. 6, 1894.)

TAXATION OF REALTY-EXEMPTIONS-CHARITIES.

Payment of sickness and funeral benefits for members only, out of an income chiefly derived from regular compulsory dues paid by such members, is not a use for a "benevolent" or "charitable" purpose, within Pub. St. c. 11, § 5, el. 3, and St. 1889, c. 465, exempting from taxation real estate of societies devoting their entire incomes to these and certain other laudable purposes.

Appeal from superior court, Bristol county; John Hopkins, Judge.

Action by the Young Men's Protestant Temperance & Benevolent Society against the city of Fall River to recover taxes paid under protest, on the ground that same were illegally assessed. Judgment for defendant. Plaintiff appeals. Affirmed.

Andrew J. Jennings, for appellant. Edward Higginson, for appellee.

FIELD, C. J. The plaintiff is a corporation organized under Pub. St. c. 115, and owns real estate in the city of Fall River. It contends that this real estate is exempt from taxation under Pub. St. c. 11, § 5, cl. 3, as amended by St. 1889, c. 465. This clause exempting property from taxation as amended, is as follows: "Third, the personal property of literary, benevolent, charitable and scientific institutions and temperance societies incorporated within this commonwealth, and the real estate belonging to such institutions occupied by them or their officers for the purposes for which they were incorporated; but such real estate when purchased by such a corporation with a view to removal thereto, shall not, prior to such removal, be exempt for a longer period than two years; but none of the real or personal estate of such corporations organized under general laws shall be exempt when any portion of the income or profits of the business of such corporations is divided among their members or stockholders or used or appropriated for other than literary, educational, benevolent, charitable, scientific or religious purposes." It is stated in the agreed statement of facts that the society was organized "for the purpose, as appears in its certificate of incorporation, of the promotion of temperance, mutual relief, assistance, and culture, and charity and benevolence." The constitution and by-laws, which are referred to, show that it is not a literary or scientific society. It is contended that it is a benevolent or charitable institution, and a temperance society, within the meaning of St. 1889, c. 465. The constitution and by-laws provide that the members must be of the Protestant religion; that "no member shall make, buy, sell, or use any spirituous or malt liquors, wine, or cider, unless when ordered by a

57

physician;" and that there shall be two classes of members, namely, "full members and nonbenefit members." Const. art. 2, §§ 1, 2. The rights of the members are as follows: "A full member shall be entitled to all the rights and benefits of the society, as provided for in the constitution and by-laws." Id. § 3. "A nonbenefit member shall not receive any of the benefits of the society, shall not be qualified to hold any office in the society, shall not vote upon any subject of charity or benefits, but in all other respects shall be equal to a full member." Id. 4. To become a full member, the candidate must pass the doctor's examination, and be found to be in good health. Id. § 5. It appears in the agreed statement of facts that "every full member pays into the general fund of the association sixty cents monthly, and every nonbenefit member twenty-five cents monthly. Every full member also pays into said fund twenty-five cents quarterly, as a doctor's fee. From this fund, all the expenses of the society are paid, including all benefits paid to members, and all expenses in connection with its real estate. In case of the sickness of a member, he is entitled to consult the doctor of the society at its expense, and to draw from said fund five dollars a week for a term not exceeding six months. In case of the death of a member, the sum of fifty dollars is paid as a funeral benefit." See ByLaws, art. 2, §§ 4-6; Id. art. 4, §§ 1-3. There are provisions in the by-laws for the appointment of a visiting committee to visit "sick members," and to "notify two of the members * * * to attend upon each sick brother during the night," and, in certain cases, to employ a nurse at the expense of the society. By-Laws, art. 3.

It is plain that this is in part a temperance society, and in part a mutual aid and relief society, and that the relief and assistance afforded is limited to its members. What is called the "benevolence" or "charity" of the society is shown in taking care of its sick members, and in paying $50 towards the funeral expenses of its deceased members. To be entitled to the exemption claimed, the plaintiff must show that in the use of its income or profits it acts exclusively as a temperance society, or as a benevolent or a charitable institution, or as some two or all of these combined. By the terms of the statute, its real estate must be occupied by the society or its officers for the purposes for which it was incorporated, and the income or profits of its business must not be divided among its members or stockholders, or used or appropriated for other than literary, educational, benevolent, charitable, scientific, or religious purposes. In Saltonstall v. Sanders, 11 Allen, 446, 464, it was said:

"There is a species of organization, sometimes called a 'private charity,' which is not a public or general charity, in the view of the statute of Elizabeth or of a court of

chancery, and that is an association for the mutual benefit of the contributors, and of no other persons; but such a case wants the essential element of indefiniteness in the immediate objects, if not that of gratuity in the contribution." Similar societies have been regarded in the law, not as charitable institutions, but as in the nature of mutual insurance societies or mutual benefit societies. Dolan v. Court Good Samaritan, 128 Mass. 438; Coe v. Washington Mills, 149 Mass. 543, 21 N. E. 966. See Bangor v. Masonic Lodge, 73 Me. 428; Bolton v. Bolton, Id. 299. It is contended, however, that the word "benevolent" in the statute has a broader meaning than "charitable," and that the society is a temperance and benevolent institution. The word "benevolent," when used in connection with "charitable," has often been construed as synonymous with "charitable." Saltonstall v. Sanders, 11 Allen, 446, 465-470; Suter v. Hilliard, 132 Mass. 412. Whether the two words in St. 1889, c. 465, must be held in all respects to have identically the same meaning or not, we think that they must be construed as intended to describe institutions of a similar kind; and we are of opinion that the plaintiff is not a benevolent society, within the meaning of the statute. A society whose principal income is derived from a fixed regular compulsory contribution from its members, which is to constitute a fund to be used exclusively for the benefit of its members, cannot be held to be either a benevolent or a charitable society, within the meaning of the statute. Without considering other objections, we are of opinion that on this ground, which is the ground on which the presiding justice of the superior court found for the defendant, the judgment must be affirmed. So ordered.

1. Plaintiff, while at work for a city on a sewer, was injured by the negligent backing against him of a team, which, with its driver, had been hired for a certain amount per day from defendant, its owner, who paid the driver. The foreman for the city had general supervision of the work and the men. There was nothing to show but that the driver managed and drove the horses as he thought best, without control or direction of the foreman. Plaintiff testified that he saw defendant three or four times at the place of work, and that he saw him speak to the driver. Defendant, when asked if he exercised any control after the team left the barn, or at any time while at the place of work, stated that he passed there three or four times. Held, that there was evidence to warrant a finding that at the moment of the injury the driver was defendant's servant.

2. The driver of the team was not a fellow servant of plaintiff, though they were working to a common end, if in backing the team he was not under the control and direction of the city's foreman.

Exceptions from superior court, Suffolk county; Caleb Blodgett, Judge.

Action by Jeremiah Reagan against John Casey for injuries from the negligent backing against him of a team owned by defendant. There was a verdict for plaintiff, and defendant excepts. Exceptions overruled. Plaintiff was working for a city on a sewThe team, together with its driver, was hired by the city from defendant for a certain amount per day. William O'Brien was the city's foreman in charge of the work. George R. Swasey and Wm. H. Brown, for plaintiff. H. N. Sheldon, for defendant.

er.

MORTON, J. The question in this case is whether there was evidence that fairly warranted the jury in finding that the driver of the team was at the moment of the injury to the plaintiff the servant of the defendant. We think there was. O'Brien had general supervision of the work of digging the trench, and of the men engaged in it, and had the right to direct where the teams should back up, and the place to which the dirt should be carted. But we think that there was evidence that in the management and control of the team while engaged in doing the work for which it and the driver had been hired the driver was the servant of the defendant. The plaintiff testified that "he had seen the defendant there three or four times, and saw him speak to this teamster;" and the defendant, when asked, "Did you exercise any control at all after the team left the barn, or at any time while on the Commonwealth avenue sewer?" answered, "I passed there three or four times," which the jury may have considered so equivocal as to warrant an inference that ne

did exercise control. The driver was the general servant of the defendant, and was paid by him, and not by the city, and, for aught that appears, the driver fed, harnessed, and unharnessed the horses, and managed and drove them as he thought best; and there is no evidence that fairly warrants the inference that O'Brien controlled or directed him in any of these respects. One object in hiring a team with a driver may have been to have some one who would be responsible for the management of the team. We do not think that, if a third person had been injured by the carelessness of the driver while going to or from the dumping ground, O'Brien would have had such exclusive control of the driver that the city would have been liable. See Huff v. Ford, 126 Mass. 24; Kimball v. Cushman, 103 Mass. 194.

The defense of coservant cannot avail. In order to make that defense available, it must appear that the plaintiff and the driver were engaged not only in working to a common end, but that at the time of the injury complained of, and in doing that which caused the injury, the driver was subject to the control and direction of O'Brien. Mor

gan v. Smith, Same v. Sears, 159 Mass. 571, 35 N. E. 101. In the case of Johnson v. Boston, 118 Mass. 114, on which the defendant relies, the plaintiff was subject to the exclusive control of the defendant's foreman when engaged in the work in which he experienced the injury complained of, and was a fellow servant with others under the charge of the same foreman, and engaged in excavating the trench. Exceptions overruled.

RELIANCE MUT. INS. CO. v. SAWYER et al.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 6, 1894.) INSURANCE-FOREIGN COMPANIES-ILLEGAL CON

TRACTS.

1. St. 1887, c. 214, § 77, declaring that no foreign company shall be authorized to do business until it shall have complied with certain conditions, avoids a premium note given such an unqualified company for an insurance effected in the state.

2. Where the application and premium note are taken by the company's agent in Massachusetts, and by him sent to the home office, in Iowa, where they are accepted and the policy is executed, said policy being delivered in Massachusetts, the business of effecting the insurance is done in Massachusetts.

Appeal from superior court, Middlesex county.

Action by the Reliance Mutual Insurance Company against Howard M. Sawyer and others on a promissory note. Judgment for defendants. Plaintiff appeals. Affirmed.

George H. Ryther, for appellant. W. P. Martin, for appellees.

FIELD, C. J. On April 9, 1888, the plaintiff, a fire insurance corporation organized under the laws of the state of Iowa, and doing business in this commonwealth without having complied with the provisions of the statutes applicable to such a corporation, issued a policy of insurance to the defendants upon property situated in Cambridge, in this commonwealth, and the defendants signed a premium note therefor, and this suit is brought to recover an installment alleged to have been duly assessed upon the note. We infer from the agreed facts that the business was transacted through "the company's agent in Massachusetts;" that the application and the note were sent by mail to the office of the plaintiff, in Dubuque, Iowa: and that the policy was delivered to the defendants in Massachusetts. The statutory provisions in force when this contract of insurance was made are St. 1887, c. 214, 77 et seq. We have no doubt, on the agreed facts, as we interpret them, that the business of effecting this insurance was transacted in this commonwealth, within the meaning of these provisions of the statute.

The principal contention of the plaintiff is

that the present case falls within the declsions in Insurance Co. v. Lapsley, 15 Gray, 262; Insurance Co. v. Pursell, 10 Allen, 231; and Insurance Co. v. Matthews, 102 Mass. 221,-instead of the decisions in Jones V. Smith, 3 Gray, 500; Insurance Co. v. Dawes, 6 Gray, 379; Insurance Co. v. Phillips, 13 Gray, 90; Insurance Co. v. Chamberlain, 16 Gray, 165; and Insurance Co. v. Hastings, 2 Allen, 398. These latter cases were decided under Rev. St. c. 37, § 40 et seq., and St. 1847, c. 273, § 3, while the former cases were decided under St. 1854, c. 453, § 36, and other similar statutes. See St. 1856, c. 252, § 49; Gen. St. c. 58, § 72; Pub. St. c. 119, § 200. The difference between these two sets of statutes is that the later statutes provide that if insurance is made by any foreign insurance company, without complying with the requirements of the statutes, the contract of insurance shall be valid, but the agent of the company making the insurance shall be punished, while the earlier statutes contain no such provision. The legislature, however, in enacting St. 1887, c. 214, § 77, omitted this provision, and the preceding statutes then in force were repealed. This statute of 1887 is explicit and absolute that "no foreign insurance company shall be so admitted and authorized to do business until" it shall have complied with certain conditions expressed in the statutes. Id. § 78. The present case, therefore, must be held to be within the earlier decisions. "The consideration of the note was a contract on the part of the insurance company, made by an agent, which he was prohibited from making by the laws of this commonwealth." Insurance Co. v. Phillips, ubi supra. Judgment affirmed.

ERLUND v. MANNING. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 23, 1894.) EXCEPTIONS-FAILURE TO FILE-AFFIRMANCE.

1. Where defendant excepts to the judgment of a single justice of the supreme judicial court, but fails to file his exceptions in full court, a single justice may affirm, under St. 1888, c. 94.

2. Persons summoned as trustees are not "parties interested," who must be notified of motion for affirmance of judgment on exceptant's failure to enter the question above. St. 1888, c. 94.

Exceptions from supreme Judicial court, Suffolk county.

Action by one Erlund against J. F. Manning, as trustee, for the price of services rendered. Judgment for plaintiff affirmed by single justice. Defendant excepts. Affirmed. The other facts fully appear in the following statement by ALLEN, J.:

This was an action of contract, to recover for services. In the supreme judicial court, before a single justice, judgment was entered for the plaintiff, and defendant excepted, but failed to file the exceptions in the

full court, and plaintiff moved to have the judgment of the single justice affirmed. This motion was granted by a single judge, and defendant excepted, claiming that the affirmance of the judgment could only be made by the full court.

C. P. Searle, for plaintiff. J. F. Manning, pro se.

The

ALLEN, J., (after stating the facts.) principal question raised by the exceptions is whether the order of affirmance could legally be passed by a single justice, or whether it could only be done by the full court. An appeal from a decree of a single justice, in a suit in equity, if not prosecuted or entered, can only be affirmed by the full court, because, by statute, if such appeal is taken, "all proceedings under such decree shall be stayed, and such appeal shall thereupon be pending before the full court, who shall hear and determine the same and affirm, reverse or modify the decree appealed from as circumstances may require." Pub. St. c. 151, § 13. Appeals in probate cases stand on the same footing. Pub. St. c. 156, § 11; Gray v. Gray, 150 Mass. 56, 25 N. E. 91. But exceptions, and other cases of appeals, fall under St. 1888, c. 94, amending Pub. St. c. 150, § 16; and the order of affirmance may be made by the court in which the appeal was taken or the exceptions allowed. It is contended that the language of this statute shows that it is only applicable to cases coming from the superior court. We think, however, that it applies as well to cases heard or tried before a single justice of this court as to cases coming from the superior court. Exceptions which have been allowed in either court can only be entered in the full court; and, when the statute speaks of a neglect to enter the question in the supreme judicial court, it means a neglect to enter the same upon the docket of the full court, where, alone, it is cognizable. Ingalls v. Ingalls, 150 Mass. 57, 25 N. E. 92.

The plaintiff's application for affirmance might be made and signed by attorney.

It is established by the finding of the justice that one notice of the application was given to the defendant. It was not necessary, under St. 1888, c. 94, to give notice to the persons summoned as trustees.

The defendant makes certain objections founded on Pub. t. c. 153, § 12, but they have no relevancy to the question before us. The objection that the application for affirmation was, on its face, an application by the defendant, cannot avail. The error was obvious, and would, no doubt, have been

1 St. 1888, c. 94, amends Pub. St. c. 150, so as to provide that if a party who has taken an appeal or an exception, which has been allowed, neglects to enter the question in the supreme judicial court, the court in which the appeal was taken or the exceptions allowed may, upon the application of the adverse party, upon due notice to all parties interested, order the judg ment, opinion, ruling, or order affirmed.

So

corrected, if attention had been called to it at the hearing before the single justice. far as appears, the objection on this ground was not then taken. The application was in the interest of the plaintiff; it prayed to have judgment entered for the plaintiff; it was signed by the attorney for the plaintiff, who was described as such; and, in the or der of affirmance, it was recited to be an application of the plaintiff. None of the objec tions being valid, the entry must be, exceptions overruled.

1. In an action for personal injuries, where plaintiff could not testify in court owing to his physical condition, it was discretionary with the trial court to refuse to admit plaintiff's photograph as evidence of his health and strength at the time of the injury, though there was evidence that his appearance had not changed in the year between the taking of the photograpb and the injury..

2. The court properly refused to charge that defendant carrier was negligent if it was possible for it to have prevented the accident to plaintiff.

3. A conductor was not negligent in starting a street car so as to throw off a passenger who was about to alight, when the car had waited a reasonable length of time for passengers to alight, the passenger had delayed, and was not apparently in the act of leaving the car when the signal to start was given, and the conductor had no knowledge of the passenger's desire to alight.

Exceptions from superior court, Suffolk county; J. B. Richardson, Judge.

Action by Maurice Gilbert against the West End Street Railway Company for personal injuries. Verdict for defendant. Plaintiff excepts. Affirmed.

Plaintiff requested the following rulings of law: "(1) That, if it was possible for the de fendant to prevent this accident, then defendant was negligent. (2) That the burden of proof is on defendant in this action to prove that it was not negligent, and that it did everything that could have been done to prevent the accident." The court refused to make such rulings, and plaintiff excepted, but waived exception to the second on the argument.

The defendant, among others, asked for certain rulings of law, to which the plaintiff objected, but in respect to which the court instructed the jury as follows: "(1) A common carrier is bound to delay at a station or stopping place only a reasonable length of time for the purpose of allowing passengers to alight, unless those in charge know, or have reason to know, that some passenger has not got off, and is desiring to do so. (2) Passengers on a street car, when at their place of destination, should leave the car with reasonable dispatch; ano