petitioner, the commonwealth appeals. Judg- instead of a separate act granting a further ment modified.

extension of time under the original con

demnation, the Legislature by St. 1902, p. E. R. Thayer and J. L. Motley, for peti

471, c. 543, § 1, again proceeded explicitly tioner. Dana Malone, Walter Perley Hall,

to condemn these estates, but with a proviand Fred T. Field, for the Commonwealth.

sion not before found, that any betterment BRALEY, J. While private property un

which had accrued by reason of the general der the right of eminent domain cannot law

improvement should be set off in the assessfully be taken by the sovereign power without

ment of damages. That this was intended awarding just compensation to the owner,

as a fresh taking is shown not only by the unless he has assented, yet the public pur

different provisions concerning the ascertainpose and time of such appropriation as well

ment of damages, but by the inclusion of

other estates in the vicinity. St. 1902, p. as the period in which any remedy for the recovery of damages is to be exercised are

471, c. 543, & 2. If the original taking for in its exclusive control, and failure by the

any reason had been considered of doubtful landowner to take advantage of the remedy

validity, or the provision for the payment of works a forfeiture of any claim for damages.

damages was considered as not being suffiTalbot v. Hudson, 16 Gray, 417, 424; Haskell

ciently favorable to the respondent, there v. New Bedford, 108 Mass. 208, 214; Bur

can be no serious question that the commonnett v. Com., 169 Mass. 417, 425, 48 N. E.

wealth could proceed independently under 758.

the subsequent statute without such action By St. 1899, p. 509, c. 457, the height of

being treated as reviving the petitioner's buildings within a small area west of the

right to recover under a former taking which State House was restricted, and St. 1901,

had been barred by the lapse of time, as a p. 474, c. 525, § 4, by amendment extended

second condemnation without a proviso to the restriction to include certain estates ly

that effect did not revive the former right ing easterly of the building and grounds,

of action. See Crompton Carpet Co. v. Woramong which was that of the petitioner. It

cester, 123 Mass. 498, 504. But it is obvious was provided that petitions for damages

there can be no entry upon the premises in should be brought within one year from June 2,

the sense that when land is taken for the 1899, the date of its passage, and this period use of the public, physical possession at some was subsequently enlarged to three years by

period in the proceedings becomes requisite St. 1901, p. 329, c. 417, but as the present suit

as in the laying out of public ways, and was not begun until February 4, 1905, it

where interest on the damages awarded, or cannot be maintained unless subsequent

recovered by suit is to be computed only from legislation either conferred a similar right,

the date of entry. Edmands v. Boston, 108 or removed this limitation. Danforth

Mass. 535; Pegler v. Hyde Park, 176 Mass. Groton Water Co., 176 Mass. 118, 120, 57 N.

101, 57 N. E. 327. And to compensate the E. 665. Upon the expiration of this limita

petitioner interest must be allowed from tion then came St. 1902, p. 471, c. 543, re

June 28, 1902, which is the date of the only enacting the restriction as to the height of taking under which the petition can be mainbuildings which might be erected on the tained. Old Colony Railroad Co. v. Miller, petitioner's estate, but this act granted a

125 Mass. 1, 28 Am. Rep. 194; Imbescheid period of two years from June 28, 1902, when

v. Old Colony Railroad Co., 171 Mass. 209, it took effect, within which a petition might 50 N. E. 609; Hay v. Com., 183 Mass. 294,

v be prosecuted. St. 1905, p. 151, c. 224, subse

295, 67 N. E. 334, and cases cited. quently extended this time for a further term

If the question of the measure of damages of one year, and as these two statutes are to is thus determined, the remaining inquiry be construed together they accordingly make concerns the title, and while the respondent the limitation three years from the date of makes no contention that she is not entitled the first enactment Danfortb v. Groton

to the entire sum absolutely, the judgment Water Co., 178 Mass. 472, 59 N. E. 1033, 86 from which the appeal is taken provides for Am. St Rep. 495; Dunbar v. Boston & Prov- the appointment of a trustee under Rev. idence Railroad Corporation, 181 Mass. 383, Laws, c. 48, 88 17, 19, because the petitioner 63 N. E. 916; Rogers v. Nichols, 186 Mass. was held to be only a tenant for life. By the 440, 443, 71 N. E. 950. It is manifest from first clause of the will of Matthias P. Sawyer the entire series of amendatory statutes so he devised to her the mansion house and far as they relate to the remedy, that at land, which are the premises described in the least the petitioner and probably other own- petition, "for and during her natural life ers of the estates which had been injuriously with the right to dispose of the same as affected by the primary act as amended, in- she shall think proper from the time of her advertently failed to taken advantage of its death." When this will was admitted to provisions, and thus had lost their right to probate Rev. St. C. 62, § 4, now Rev. Laws, recover compensation. Geraghty v. Boston, c. 135, $ 22, provided that in a devise of 120 Mass. 416. To remedy what may have lands all the estate of the devisor therein been deemed an injustice, and to enlarge and should pass, unless by his will it clearly apmore specifically define the restricted area, peared that he intended to convey a less

V.

.

estate. After this gift there is no devise the decree it records is to be performed, uses over, and the language of the residuary the following language, "within thirty days clause, that within two years after the testa

from the rendering of this decree, to wit, the

24th day of October, 1904," the latter recital tor's death his executor should dispose of will not be held so far controlling as to give the "balance of the estate to the "Massa- to such entry the effect of an entry nunc pro chusetts General Hospital,” is inconsistent

tunc, nor does it operate to give said decree with a construction that he intended to in

force and validity from October 24, 1904. But

such decree is valid and operative only from clude this property which previously had November 4, 1904, the date of its entry, and a been given to his daughter. Baker v. Bridge, motion for new trial filed within three days

thereafter is in time. 12 Pick, 27, 31; Joslin v. Rhoades, 150 Mass. · 301, 23 N. E. 42; Bassett v. Nickerson, 184

[Ed. Note.-For cases in point, see vol. 30,

Cent. Dig. Judgment, $ 985.] Mass. 169, 68 N. E. 25. But it is unneces

2. ERROR, WRIT OF REVIEW sary to decide if a fee passed for in any

- MOTION FOR

NEW TRIAL. event she took a life estate with a power of An order of the court dismissing and strikdisposal by deed or by will. Kimball v. Sul- ing from the files a motion for new trial without livan, 113 Mass. 345; Kent v. Morrison, 153 considering or determining such motion on its Mass. 137, 139, 26 N. E. 427, 10 L. R. A. 756,

merits is a final order reviewable on error.

Young v. Shallenberger, 41 N. E. 518, 53 Ohio 25 Am. St. Rep. 616; Dana v. Dana, 185 Mass. St. 291, distinguished. 156, 70 N. E. 49. The phrases "during her nat- [Ed. Note.-For cases in point, see vol. 2, ural life" and "from the time of her death," Cent. Dig. Appeal and Error, $$ 477, 522,

740.] which were used to express his purpose have no larger signification than if the testator had (Syllabus by the Court.) said that the estate was "to be kept and re

Error to Circuit Court, Franklin County. tained by her as long as she shall live,” and

Action by Carlisle Barrere against the Eld. this language was held in Todd v. Sawyer, ridge & Higgins Company and others. Judg. 147 Mass. 570, 17 N. E. 527, where a similar

ment for plaintiff was affirmed in the cirdevise was made to be insufficient to prevent

cuit court, and defendants bring error. Rethe devisee from conveying an absolute title

versed and remanded. in fee. The power given being unrestricted the devisee could sell the property to whom- The original action, out of which the pressoever she pleased, and when received the ent proceeding in error arises, was commenproceeds became her individual property. ced by the defendant in error, Carlisle BarKent v. Morrison, supra. That she chose to rere, against plaintiffs in error, the Eldridge convey to an intermediary upon a trust, for & Higgins Company and others, in the court her benefit, and who reconveyed to her was of common pleas of Franklin county, Ohio, a valid execution of the power, for being the on March 30, 1903. Judgment having gone donee she could convey directly to herself in against them in the court of common pleas. fee. By either form of conveyance she plaintiffs in error on December 31, 1903, apwould become seised not as grantee of her- pealed said cause to the circuit court. The self, but as the person designated by her in cause was again tried in the circuit court, exercise of the power conferred by the testa- and, the judgment being again adverse to the tor from whom upon its execution she would plaintiffs in error (defendants in the courts derive title. Hall v. Bliss, 118 Mass. 554, below), they, on November 4, 1904, filed their 559, 19 Am, Rep, 476, and authorities there motion for a new trial, which motion was cited ; Look v. Kenney, 128 Mass. 284.

as follows: "Now come the said defendants The judgment awarded by the superior by their attorneys and move the court here court having included interest from June 19, to vacate the judgment herein rendered and 1901, the date of the passage of St. 1901, p. to grant a new trial of this case for the fol473, c. 525, must be reversed, and judgment, lowing reasons substantially affecting the without the appointment of a trustee, is to be rights of the said defendants: (1) Said entered for the petitioner in the sum of judgment is contrary to the evidence in $32,500, with interest at the legal rate from the case and against the manifest weight June 28, 1902.

thereof. (2) Said judgment is contrary to So ordered.

law.' (3) Said judgment was given for the plaintiff when it ought to have been given

for said defendants. (4) The defendants were (74 Oh. St. 389)

entitled to a judgment in the case upon the ELDRIDGE & HIGGINS CO. et al. v. BAR

uncontradicted evidence and the pleadings. RERE

(5) Other errors apparent upon the record. (Supreme Court of Obio. June 26, 1906.) Wherefore the defendants pray the court to 1. JUDGMENT-ENTRY-NEW TRIAL.

vacate and set aside said judgment and for Where a journal entry confessedly made

a new trial of this action." Thereafter, on and entered on the 4th day of November, 1904,

March 6, 1905, the defendant in error, Carbegins with the recital, "This day this cause came on to be heard on the pleadings and the 'lisle Barrere (plaintiff below), filed in said evidence and was argued by counsel; on con- cause the following motion: "The plaintiff sideration whereof the court does find on the

moves the court to strike from the files of issues joined in favor of the plaintiff and against the defendants,” etc., but thereafter this court the inotion for a new trial filed by the same entry, in fixing the time within which defendant herein on the 4th day of Novem

*"

ber, 1904, for the following reasons to wit: ed by plaintiff thereon, with interest from (1) Saia motion was not filed within the time the time said loans were made, the defendrequired by law. (2) No motion for a new ants, the Eldridge & Higgins Company, Chartrial in this case was or is necessary.” On les G. Higgins, as president thereof, T. W. April 1, 1904, this motion was sustained by Bulford, as secretary thereof, David S. Gray, by the circuit court for the cause alleged in J. M. Parker, J. H. Cartzdafner, J. E. Mcthe first paragraph thereof, and the motion Intosh, Charles C. Higgins, and Frank Jones, for a new trial filed by plaintiffs in error was as directors of said defendant company, and ordered to be stricken from the files. Addi- each of them, transfer said certificate of tional facts are stated in the opinion herein. stock on the books of the defendant, the Thomas E. Powell, for plaintiffs in error.

Eldridge & Higgins Company, from the name Huggins, Huggins & Johnson, for defendant

of said John E. McIntosh to the name of in error.

plaintiff, and that the president and secretary

of said company cancel said certificate of CREW, J. (after stating the facts). This

stock No. 29 and issue a new certifiproceeding is prosecuted by plaintiffs in er- cate of stock for said

certificate No. ror to obtain the reversal of an order made 29 to plaintiff and in plaintiff's name, and by the circuit court of Franklin county, Ohio, that said defendants enter upon the books dismissing and striking from the Alles, for of said company, among the stockholders the alleged reason that the same was not

thereof, the plaintiff as the owner of said filed within the time required by law, the shares of capital stock of said corporation, motion of plaintiffs in error for a new trial, and that said corporation pay all dividends without considering or determining said mo

declared by said company upon said stock tion on its merits. Section 5307, Rev. St.

since the 12th day of May, 1902, to plaintiff, 1906, provides: “The application for a new with interest. To all of which judgments, trial must be made at the term the verdict,

rulings, orders, and decrees of the court, the report, or decision is rendered; and, except said defendants, by their counsel except. for the cause of newly discovered evidence, * material for the party applying, which he

It is admitted that this entry was made could not with reasonable diligence have dis

at the time it bears date (November 4, 1904), covered, and produced at the trial, shall be

and that no entry of any judgment or decree inade within three days after the verdict or

by the circuit court in this case had been predecision is rendered, unless such party is

viously made. The question therefore is unavoidably prevented from filing the same

whether, in computing and determining the within such time.” It is not disputed in this

time within which plaintiffs in error were .case that the motion for a new trial filed by

required to file their motion for new trial, the plaintiffs in error was filed at the term

the judgment and decree of the circuit of the circuit court at which the final decis

court, as evidenced by this entry, is to be ion was rendered, but it is the contention of counsel for defendant in error that said mo

given effect as a judgment and decree of Oc

tober 24, 1904, or whether the same shall tion, which was filed on November 4, 1904,

be considered and given effect as a judgwas not filed within three days after such decision was made, and it is their claim that

ment and decree of November 4, 1904, the

time of its entry upon the journal of said th's fact is affirmatively slown by the following entry in said cause made and entered up

court. It will be noticed that, in fixing the

time within which defendants were to peron the journal of the circuit court on November 4, 1904: "November 4, 1904. This day

form the duty enjoined upon them by the dethis cause came on to be heard on the plead

cree rendered, the language used in the entry ings and the evidence and was argued by

is, "within 30 days from the rendering of this counsel. On consideration whereof the court

decree to wit: the 24th day of October, 1904," does find on the issues joined in favor of the

and it is claimed for this language, thus plaintiff and against the defendants that the

used, that it affirmatively and conclusively defendants have abandoned all defense as to

establishes the fact that the decree in this the second cause of action in plaintiff's pe

case was rendered on October 24, 1904, and to tition contained, and concede plaintiff's right all intents and purposes gives to said decree thereto; that the plaintiff is in law and eq

the same force and effect as if made and uity the rightful holder of the certificates of

entered on that day. To give effect to such stock Nos. 29 and 37, as described in plain- claim in this case is not only to ignore the tiff's petition, as pledgee, for value as for

earlier recitals in said entry that the cause a present consideration; and that he is en- came on to be heard on the pleadings and titled to have the same transferred upon the evidence and was argued and submitted on books of the defendant company as prayed November 4, 1904, but it would be to invest for in his petition herein. It is therefore or- this entry, because of this language, with the dered, adjudged, and decreed that, unless attribute and office of an entry nunc pro said John E. McIntosh redeem said certifi. tunc, and at the same time give to it cate of stock No. 29 within 30 days from the a force and effect different from that the rendering of this decree, to wit, the 24th day law would give it as such entry. But of October, 1904, by paying the amount loan- this entry is not, neither does it purport to