on a bright morning, and the evidence was conflicting as to whether the gong was sounded and as to the speed of the car. Held, that defendant's negligence and the plaintiffs' contributory negligence were for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 251, 255-257.] Exceptions from Superior Court, Suffolk County.

Actions by one Erb against the Boston Elevated Railway Company. A verdict was returned in favor of plaintiffs in each case, and defendant brings exceptions. Overruled. Thos. J. Barry, for plaintiff. R. A. Sears and J. E. Hannigan, for defendant.

LATHROP, J. These are two actions of tort for injuries sustained by the plaintiffs while driving in a buggy, in consequence of their vehicle being struck by an electric car of the defendant, on Washington street in Boston. At the trial in the superior court, a verdict was returned for the plaintiffs, and the cases are before us on the defendant's exception to the refusal of the judge to direct a verdict for the defendant.

The plaintiffs drove through Madison street from Shawmut avenue to Washington street. They then stopped and looked both ways for cars, and listened. They saw nothing and heard nothing. They then proceeded to cross Washington street in a diagonal direction towards Hunneman street, and were almost immediately struck by a car. The time of the accident was about half past 11 of a bright morning, on the 8th of March, 1904. There was conflicting evidence on the question whether the gong was sounded and as to the speed of the car.

If the jury believed the testimony of the plaintiffs there was evidence that they were in the exercise of due care; and it clearly was a question for the jury on the conflicting evidence whether there was negligence on the part of the defendant. Wood v. Boston Elevated Ry., 188 Mass. 161, 74 N. E. 298. Exceptions overruled.

(191 Mass. 522)

FRENCH v. JONES.

(Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1906.)

1. STREET RAILWAYS - RECEIVERS-SALE OF RAILWAY LINE-VESTING OF TITLE-CONDITIONS.

Rev. Laws, c. 112, § 12, authorizes the receiver of a street railway company to sell the road, property, locations, and franchises of the company under order of court, and section 13 declares that the purchaser shall, within 60 days thereafter, organize a corporation to hold, own, and operate the railway purchased, and for a failure so to do declares that all rights and powers to operate the roads shall thereupon cease. Held that, where receivers of a street railway company sold its rails and tracks laid in a street to petitioner, the latter's failure to organize a corporation and operate the road did not divest him of title to the property purchased,

2. SAME-RAILS LAID IN STREET-PERSONAL PROPERTY.

The rails of a street railway company imbedded in the streets of a city remain personal property, and are subject to disposition as such. 3. SAME ALIENATION OF FRANCHISE.

A street railway company has no power to alienate its franchise without permission of the Legislature.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 123, 124.] 4. SAME-SALE OF ROAD-FAILURE OF PURCHASER TO OPERATE.

Where the purchaser of the tracks and rails of a street railroad from the receivers of the corporation failed to organize a corporation within 60 days by which to operate the road, as required by Rev. Laws, c. 112, § 13, and thereby forfeited all right and power to operate the road as expressly provided by such section, and the gross receipts of the road were insufficient to pay operating expenses, such purchaser was under no duty to use the tracks so purchased for the operation of a street railway. 5. MUNICIPAL CORPORATIONS STREETS-REMOVAL OF STREET CAR RAILS-SUPERINTENDENT OF STREETS-PERMIT-DUTIES.

Waltham City ordinances provide that no person shall dig up any street without a written license from the superintendent of streets, and authorizes the superintendent to grant a license for the use of portions of streets under specified restrictions, providing that such license may be revoked by the superintendent at any time. The office of superintendent of streets for Walt§ 36, providing that he should have the power of ham was created by St. 1893, p. 1002, c. 361, a road surveyor and all the powers of road commissioners not otherwise conferred, and vested him with the power to determine whether in a particular case a license to authorize the digging of a part of the street should be granted. Held that, where petitioner owned the rails and tracks of a street railway imbedded in a street of such city, the superintendent of streets could not arbitrarily refuse a permit to remove them, because he hoped some other person or corporation would operate cars over them, but was bound to grant or refuse such license in the exercise of a legal discretion. 6. SAME-MANDAMUS.

Petitioner was not entitled to mandamus to compel such street commissioner to grant a license for the removal of such rails, but was entitled to a writ commanding him to hear and determine petitioner's application without regard of any hope or desire that any person or corporation would operate cars over the tracks, and to determine the controversy as a matter of legal discretion on the basis that petitioner was the owner of the rails and was not bound to use them for the operation of cars.

Case Reserved from Supreme Judicial Court, Suffolk County; John Lathrop, Judge. Petition by one French for mandamus to compel one Jones, as superintendent of the streets of the city of Waltham, to issue a permit for the breaking or digging up of the surface of the Trapelo road in Waltham to remove certain street railway rails from the street. Case reserved for full court. Granted.

Powers & Hall, for petitioner. Chas. E. Stearns, for respondent.

SHELDON, J. The first question presented in this case is whether the petitioner has became the absolute owner of the rails and

tracks laid by the street railway company and now lying on and imbedded in the surface of one of the public streets. He purchased all the property of the company at a sale properly made by duly appointed receivers of the company, and the receivers made a proper transfer to him. It is provided by Rev. Laws, c. 112, § 12, that "a receiver of the property of a street railway company may, by order of the court, sell and transfer the road and property of such company, its locations and franchises, on such terms and in such manner as the court may order. The purchasers from such receiver, and a corporation organized under the provisions of the following section, if such road has been transferred to it, shall hold and possess said road, all its rights and franchises and all property acquired in connection therewith, with the same rights and privileges and subject to the same duties and liabilities as the original street railway company; but no action shall be brought against such purchaser or such new corporation to enforce any liability incurred by said original corporation, except debts and liabilities owing from said original corporation to any city or town within which the road is operated and taxes and assessments for which said original corporation is liable under the statutes relating to street railways, which shall be assumed and paid by said new corporation. The provisions of this section shall not impair the powers of the holders of an outstanding' mortgage to enforce their rights by suit or otherwise."

Section 13 of the same chapter provides that the purchasers at such a sale shall within 60 days thereafter organize a corporation for the purpose of holding, owning and operating the street railway purchased, and that if they fail to organize such a corporation in the manner therein prescribed, all rights and powers to operate the road shall thereupon cease. The respondent contends that the petitioner, never having organized or intended to organize such a corporation, and never having intended in any way to operate the street railway or cause it to be operated, but having made his purchase for the purpose only of removing and selling the rails, was not such a purchaser as is contemplated by the statute, and did not acquire any right to the property. We think however that the title to the property sold by the receivers did pass to the petitioner. It may be granted that the sections of the statute to which we have referred contemplate the continued operation of a street railway which has been sold under the authority that they give. But no such requirement is made in terms; and the provision in section 13 that upon failure to form a corporation to hold and operate the railway the right and power to operate it shall cease, is far from being tantamount to a provision that the purchasers shall suffer the further

penalty of being deprived of the property which they have bought and paid for. The receivers have full power to make the sale; it is their duty to do so when ordered by the court which has appointed them; they have no right or duty to inquire into and no means of ascertaining the motives or intentions of bidders or purchasers. We are of opinion accordingly that the petitioner is the absolute owner of the property in question.

But his right to remove the rails and other materials which are imbedded in the surface of the public street, and for that purpose to. break and dig up the street depends upon other considerations. It has been decided by this court that these rails and materials remain personal property. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 73 N. E. 646. But they were laid by a street railway company in pursuance of a location granted to it and accepted by it and with the obligation to operate its road and thus to perform certain public duties; and they cannot be removed without digging up the surface of the street and making the public highway, at any rate partially and temporarily impassable. The petitioner does not contend that he has any right to remove the rails if he or the voluntary association which he represents is under any duty to operate this line as a street railway; and accordingly it becomes necessary to determine whether he is now under such a duty.

A street railway company, like a railroad corporation, has no power to alienate its franchise without permission of the Legislature. Richardson v. Sibley, 11 Allen, 65, 87 Am. Dec. 700. Our earliest statute upon this subject provided that "no street railway corporation shall sell or lease its road or property unless authorized so to do by its charter or by special act of the Legislature." St. 1864, p. 161, c. 229, § 24. And "any alienation either in fee or for the period of its corporate existence or for any less term of substantially all its real and personal property, so as to disable it from carrying on the business which it had been chartered to do for the benefit of the public, is clearly within the terms and meaning of the prohibition." Gray, J. in Richardson v. Sibley, ubi supra. And subject to certain limitations not material to the decision of this case, the same prohibition has since remained in force (Pub. St. c. 113, § 56: St. 1897, p. 241, c. 269; Rev. Laws, c. 112, § 85 et seq.), except that in 1900 power was given to the receiver of a street railway company to make such a sale of its road, property, locations and franchises as is here in question. St. 1900, p. 322, c. 381; Rev. Laws, c. 112, §§ 12, 13, 14. The petitioner's rights accordingly depend upon the provisions of these sections.

The respondent contends that as it is expressly provided by section 12 that the pur

it is for him to consider in each case the nature and magnitude of the interests involved, the extent and probable duration of any interference with public travel and the effect which may be produced upon the structure or paving of the way, and to determine whether or not, in view of all the circumstances and in the proper exercise of his discretion as a public officer charged with the care of the streets the license asked for ought to be granted. This he has not done in the case at bar, but has refused to issue the license prayed for merely from a hope and desire which ought not to have influenced his decision. He has not heard and determined the petitioner's application in the manner in which he ought to have heard and determined it; and we have no doubt that a mandamus may properly issue to compel him to do so. Osborn v. Selectmen of Lenox, 2 Allen, 207; Dodge v. County Commissioners, 3 Metc. 380; Nourse v. Merriam, 8 Cush. 11. It was his duty to hear and consider this application without regard to other considerations than those which we have stated, and not to base his action upon any such desire as has guided him. People v. Supervisors of Delaware County, 45 N. Y. 196; State v. St. Louis, 145 Mo. 551, 46 S. W. 981. He has a right to refuse to grant the license asked for if in the proper exercise of his judgment and official discretion he decides that it ought not to be granted; but he has not the right to refuse it merely for a reason which lies outside the scope of his duty. Similar questions have often arisen in other jurisdictions; and, so far as we are aware, this doctrine always has been maintained. Laclede Gas Co. v. Murphy, 170 U. S. 78, 18 Sup. Ct. 505, 42 L. Ed. 955; In re Excise Licenses (Super. N. Y.) 38 N. Y. Supp. 425; People v. Supervisors of Herkimer County, 56 Barb. (N. Y.) 452; People v. Perry, 13 Barb. (N. Y.) 206; State v. Commissioners of Warren County, 17 Ohio St. 558; Zanone v. Mound City, 103 Ill. 552; Gulick v. New, 14 Ind. 93, 77 Am. Dec. 49; Harwood v. Quimby, 44 Iowa, 385; Mobile Ins. Co. v. Cleveland, 76 Ala. 321; State v. Lutz, 136 Mo. 633, 38 S. W. 323; State v. Shannon, 133 Mo. 139, 33 S. W. 1137; State v. Barnes, 25 Fla. 298, 5 South. 722, 23 Am. St. Rep. 516; Stockton Railroad v. Stockton, 51 Cal. 328; Thomas v. Armstrong, 7 Cal. 286; Regina v. Fawcett, 11 Cox, C. C. 305; King v. Justices of Cumberland, 4 Ad. & El. 695.

But the petitioner contends that he is entitled to a mandamus commanding the respondent to issue the license prayed for. He contends that in acting upon such an application the superintendent of streets performs a purely ministerial duty, that his discretion goes no further than to see that proper indemnity is given to the city against any damage or loss and that proper precautions are taken against accident, and to determine whether sureties shall be required from the licensee. But we have been referred to no

authority in the statutes or ordinances for such a contention; and we are not aware that support can be found for it in any judicial decision. It has indeed been held that one who has an absolute and paramount right to do an act which necessarily involves the digging up of public streets may by mandamus compel the officers who are charged with the care of the streets to allow him to exercise that absolute right in a proper manner and with suitable safeguards. Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; State v. St. Louis, 145 Mo. 551, 46 S. W. 981; State v. Latrobe, 81 Md. 222, 31 Atl. 788. In the case at bar, however, no such absolute right can be found to exist. The petitioner bought the property with full notice of its character and position, and knowing that his power to remove it depended upon his ability to obtain a license from the superintendent of streets. It well may be that this officer cannot refuse a license upon wholly immaterial reasons or from mere wantonness or caprice; and that is all that was decided in People v. Keating, 55 App. Div. 555, 67 N. Y. Supp. 413; People v. Colliss, 17 App. Div. 448, 45 N. Y. Supp. 282, and Laclede Gas Co. v. Murphy, ubi supra. And it may be that he would not have the right to shut his eyes to proved facts, and rest a decision upon an alleged failure to find such facts, as was held in Stockton Railroad v. Stockton, ubi supra, though there might be a practical difficulty in reviewing his action in such a case. But none of these decisions support the petitioner's present contention.

We are of opinion that the correct rule to be followed in such a case as this was declared in Keough v. Aldermen of Holyoke, 156 Mass. 403, 31 N. E. 387. It appeared in that case that the petitioner had been duly elected collector of taxes for the city of Holyoke, but the board of aldermen denied his right to the office, claimed that another person had been elected, and upon that ground refused to accept the petitioner's official bond; and it was held that he was entitled to a writ of mandamus, declaring that he had been duly elected, and commanding the board of aldermen to consider the bond presented by him, and to accept or reject it as it might or might not be found to be satisfactory to them and in the form required by law, but that, although the board had put their refusal to accept his bond directly upon the ground that he had not been duly elected, yet they could not be required to accept his bond, for the reason that the bond must be in such sum as they should require and with sureties to their satisfaction. It is true that in that case the record of the board of aldermen had subsequently been amended by adding the statement that their refusal to accept the bond was for other reasons also; but the court in its opinion (page 408 of 156 Mass., page 387 of 31 N. E.) declined to pass upon the validity of this amendment, and rested its decision upon the general ground which has

been stated. The same doctrine is affirmed in the well-reasoned opinion of the court in State v. Latrobe, 81 Md. 222, 31 Atl. 788, relied on by the petitioner, in which it is expressly declared that whenever the performance of a duty is dependent upon the exercise of judgment and discretion on the part of the person to whom its performance is assigned, that judgment and discretion will not be in-. terfered with or controlled by the writ of mandamus, and this for the reason that there is no warrant of law justifying the substitution of the judgment of the court for the judgment and discretion of the individual exclusively intrusted with the performance of that particular duty. To the same effect are Lunt v. Davison, 104 Mass. 498; Rice Machine Co. v. Worcester, 130 Mass. 575; Deehan v. Johnson, 141 Mass. 23, 6 N. E. 240; Provident Savings Society v. Cutting, 181 Mass. 261, 63 N. E. 433, 92 Am. St. Rep. 415; Rice v. Highway Commissioners of Middlesex, 13 Pick. 225; Inhabitants of Ipswich, Petitioners, 24 Pick. 343; Prickett's Case, 20 N. J. Law, 134; High, Extraordinary Legal Remedies, §§ 80, 88, 91, 92, 97.

It is not necessary to consider in detail the different requests for rulings which were made by the petitioner. They are all disposed of by what has been said. In our opinion the petitioner is entitled to have a writ of mandamus issue, commanding the respondent, as he is superintendent of streets of the city of Waltham, to hear and determine the petitioner's application without regard to any hope or desire that some person or corporation will operate street cars over the tracks in question, but exercising in the manner hereinbefore stated his sound discretion as an officer charged with the care of the streets, in view of the fact that the petitioner is the owner of the property in question and is not under any duty to use it for the operation of street cars.

So ordered.

(191 Mass. 506)

SHATTUCK v. SIMONDS.

(Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1906.)

1. MALICIOUS PROSECUTION - ELEMENTS ACTION.

OF

To sustain an action for malicious prosecution, plaintiff must show that the original suit was not only terminated in his favor, but was instituted by defendant without probable cause and with malice.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, §§ 18-22, 59, 72.]

2. SAME-PROBABLE CAUSE EVIDENCE.

In an action for malicious prosecution, evidence held to justify a submission to the jury of the question whether the prosecution was commenced without probable cause.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, §§ 161, 162.j

Exceptions from Superior Court, Suffolk County; Edgar J. Sherman, Judge.

Action by Ernest V. Shattuck against James L. Simonds. A verdict for defendant was directed by the court, and plaintiff brings exceptions. Exceptions sustained.

J. J. O'Connor, Wm. J. Corcoran, and Chas. E. Walsh, for plaintiff. Clarence W. Rowley, for defendant.

BRALEY, J. To sustain an action for a malicious prosecution it was incumbent on the plaintiff to offer evidence from which it could be found that the original suit was not only terminated in his favor but that it was instituted by the defendant without having probable cause to believe that he was guilty of the crime alleged, and that in causing complaint to be made charging him with a criminal offense he was actuated by malice. Stone v. Crocker, 24 Pick. 80, 85; Bacon v. Towne, 4 Cush. 217; Ellis v. Simonds, 168 Mass. 316, 47 N. E. 116. If the evidence upon these issues is conflicting, such questions are for the determination of a jury under suitable instructions, and a verdict having been ordered for the defendant we proceed to an examination of the testimony to ascertain if this direction was right, and in such an inquiry neither the credibility of witnesses, nor the weight to be given to their evidence is of importance. That the plaintiff had been discharged by a court or magistrate having jurisdiction at least to determine whether he should be held for trial in the superior court is not disputed, and this discharge must be deemed to have ended the prosecution, Moyle v. Drake, 141 Mass. 238, 242, 6 N. E. 520 and cases there cited. While the defendant did not appear at the trial of the present case, in his deposition which was read he denied having caused the arrest, and claimed that until he was notified to appear as a witness in the criminal proceedings he had not learned of the plaintiff's arrest, or that he was charged with having committed the crime. But upon referring to the evidence offered by the plaintiff this denial was met by testimony of alleged statements of the defendant to the effect that it was his purpose to cause the plaintiff to be prosecuted, and accordingly he had taken such action. This, if believed, was enough to show that the making of the complaint, and the subsequent arrest were put in train by him. It also appears that he went so far as to offer a pecuniary consideration to at least one of the plaintiff's witnesses if she would aid him by supplying testimony from which the plaintiff's identity as being the thief might be established and without which his conviction might be defeated. When this evidence is united with the further proof from which a legitimate inference could be drawn that the defendant had manifested a hostile feeling towards the plaintiff by stating in substance that although he was his nephew, and had been in his employment for a considerable period of time he had been unfaithful, and