satisfaction of his judgment against the insured. He has a temporary lien upon this insurance money and may enforce the lien by the usual remedies of a judgment creditor. Lorando v. Gethro, supra, or by G. L. c. 214, § 3, cl. 10. See G. L. c. 246, § 33. The statute gives the judgment creditor a valuable right which he can put into execution if he desires, but the plaintiff is not required to satisfy the judgment before he can recover against the defendant. Nothing contrary to what has been said was decided in Cogliano v. Ferguson, 245 Mass. 364, 139 N. E. 527. As the plaintiff was not obliged to allege and prove the satisfactions of the judgments the demurrer could not be sustained on the first ground relied on by the defendant. any person in violation of law as to age or in any event under the age of sixteen years; (b) accidents to assured's domestic or household servants while engaged in operating or caring for an automobile; (c) accidents to any other employee of the assured arising out of or in the usual course of the trade, business, profession or occupation of the assured; (d) any obligation assumed by or imposed upon the assured by any workmen's compensation agreement, plan or law. "(2) The company's liability for loss on ac- · count of an accident resulting in bodily injuries. and/or death to one person is limited to five thousand dollars ($5,000); and, subject to the same limit for each person, the company's total liability for loss on account of any one accident resulting in bodily injuries and/or death to more than one person is limited to ten thousand dollars ($10,000)." The exceptions in the policy were "incor [3] The demurrer was also sustained on the second ground, the plaintiff's declaration failing to negative various conditions which the court ruled were to be treated as except-porated in the general clause," and it was estions limiting the scope of liability. The decision on this point depends on the language and structure of the policy. The governing principle is stated in Commonwealth v. Hart, 11 Cush. 130, at page 134, as follows: "The rule of pleading a statute which contains an exception is usually expressed thus: 'If there be an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party.' The same rule is applied in pleading a private instrument of contract. If such instrument contain in it, first, a general clause, and afterwards a separate and distinct clause which has the effect of tak ing out of the general clause something that would otherwise be included in it, a party, relying upon the general clause, in pleading may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it together with the exception." This statement occurs in a criminal case, but the principle is the same in civil causes. [4] The policy provides: "The Etna Life Insurance Company does insure the assured named and described, while the automobiles described are within the limits of the United States of America and Canada, subject to the provisions herein set forth: "Against loss and/or expense arising or resulting from claims upon the assured for damages on account of bodily injuries and/or death accidentally suffered, or alleged to have been suffered, by any person or persons not hereinafter excepted, by reason of the ownership, maintenance and/or use of any of the automobiles described, provided suca accidents or alleged accidents occur during the term of the policy, and provided further that: "(1) The company shall not be liable under this clause of the policy for: (a) Accidents occurring while the automobiles described are being operated in any race or speed contest, or by sential for the plaintiff to negative them. The contract of indemnity is not general and unlimited in its general statement and then cut down by later sentences or paragraphs. The contract of insurance is limited, in its initial statement, to damages suffered "by any person or persons not hereinafter excepted." The scope of the indemnity cannot be ascer tained without consideration of the persons who were excepted. The insurance does not apply to injuries sustained by all persons except those named or described; it is only for injuries sustained "by any person or persons not hereinafter excepted." The injuries in sured against do not constitute "exceptions under an affirmation previously stated in gen. eral terms," to use the words of Anthony v. Mercantile Mutual Accident Association, 162 Mass. 354, 357, 38 N. E. 973, 974 (26 L. R. A. 406, 44 Am. St. Rep. 367). [5] The punctuation of the policy in the part already referred to shows that it was intended the words "persons not hereinafter excepted" are to be read as a part of the gener. al clause, and not as a separate, subsequent clause. The enumeration of the person or persons excepted is not made a separate and distinct sentence or clause, but is incorporated into the first general clause, the sepa ration being by a colon only, and not by a period. Punctuation "may be resorted to as an aid in construction when it tends to throw light on the meaning." Nickels v. Scholl, 228 Mass. 205, 209, 117 N. E. 34, 36. Commonwealth v. Kelley, 177 Mass. 221, 58 N. E. 691. Greenough v. Phoenix Ins. Co., 206 Mass. 247, 251, 252, 92 N. E. 447, 138 Am. St. Rep. 383. The structure of the policy shows an ample number of succeeding provisos or conditions which under the rule in Commonwealth v. Hart, supra, would be matter of defense and, therefore, need not be negatived in the declaration. The fact that the exceptions as to persons are included in the stating part of the policy, instead of under some of the numerous provisions following, bears some indication (149 N.E.) that a different force from that of an ordi-peals were raised by exceptions, and were connary proviso or condition was intended to be sidered, appeals are not properly before the attributed to them. Supreme Judicial Court. As matter of authority the case at bar is distinguishable from the cases upon which reliance is placed by the plaintiff. In no one of them were the words or structure of the policy like the one here involved. In Sohier v. Norwich Fire Ins. Co., 11 Allen, 336, 337, the words of the policy, immediately after the words insuring the theater, were: "This policy not to cover any loss which may originate in the theater proper." It was held that the burden of proof that the loss did not originate in the theater was on the plaintiff. This case governs the case at bar. The plaintiff's declaration was demurrable on the second ground. If the plaintiff is given permission in the superior court to amend his declaration negativing the conditions set out in subparagraph (1) of the policy within 30 days after the filing of the rescript, the case is to stand for trial; otherwise, the demurrer is sustained and judgment is to be entered for the defend Exceptions and Appeal from Superior Court, Suffolk County; E. B. Bishop, Judge. Humphrey Lane was convicted of larceny, and he excepts and appeals. Exceptions overruled. Appeals dismissed. W. R. Scharton, of Boston, for appellant Lane. Maurice Caro, Asst. Dist. Atty., of Boston, for the Commonwealth. CARROLL, J. The indictment in seventeen counts charges the defendants Downey, Finn and Lane with larceny. It was tried with another indictment alleging that Finn kept a room for the registering of bets. Downey pleaded guilty. Finn was found guilty and waived his exceptions. The case is before us on Lane's exceptions. * * The Federal Trust Company at the time of the alleged offenses was a banking institution, in Boston. Downey was employed by it as a note teller. There was evidence tending to show that Lane and Finn were bookmakers engaged in the business of placing bets on horses; that Downey made his first bet on the horses with Lane in April, 1921; that Lane at that time was making a book for one Coleman; that Lane, when Downey was introduced to him, was told that Downey was employed at the Federal Trust Company, and Lane said, "All right, you can register the bets with me and that will not cloud, cast any suspicion on you on account of being employed in the bank"; that later, Lane told Downey to meet him once or twice a week and in that way Downey would not be seen in Lane's company by people who knew Downey was employed by the bank; that at this time Downey's bets were about $30 or $40 a week; that in Sepdefendant Finn, saying to Finn, "I want to tember, 1921, Lane introduced Downey to the introduce you to Paul Downey, he works in the Federal Trust Company," and Finn said, "Instead of you meeting Lane you can call me up and then make the settlements with Lane afterwards"; that at this conversation Downey informed Finn and Lane that one Coleman, by whom Lane was formerly employed, had "tipped off one of the tellers in the bank that I was betting $500 or $600 a week on horses with him, and he knew that I didn't have that money to bet, and it must have been the bank's money. Lane in reply said to me, 'Well, I am not * Finn said to me, 'You don't have to worry; any business you do There was no error in refusal to take case from jury and continue it because additional counsel without compensation assisted prosecution, since assistant district attorney had entire control of case, and had right to avail him- | self of knowledge and information possessed surprised.' by attorney. 4. Criminal law 1013-Appeals not prop- with me will be only known to Finn and erly before Supreme Judicial Court. Lane." That at this time he was betting In view of G. L. c. 278, § 28, where all approximately $30 a day with Finn. Downquestions of law sought to be presented by ap-ey further testified that he paid Finn in cash For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and in treasurer's checks of the Federal Trust Company; that these checks were made out by Downey, payable to Finn, were signed by an officer of the trust company, and charged to customers' accounts; that at times he made bets with Finn of from $500 to $1,500 a day, and at other times as high as $20,000 a day; that he continued this practice until the day of his arrest; and that he paid Finn in cash and checks $127,500. (Mass.) 149 N. E. 198, and cases cited. There was no error in the conduct of the trial. [4] The appeals are not properly here. G. L. c. 278, § 28. All questions of law sought to be presented thereby were raised by the exceptions and have been considered.. Exceptions overruled. Appeals dismissed. MALLEY v. HART. (Supreme Judicial Court of Massachusetts. Suffolk. Dec. 4, 1925.) 1. Master and servant 330(3) - Evidence held insufficient to show driver of defendant's automobile was acting within scope of employment. [1] Without reciting the evidence in detail, it shows that Lane knew Downey was employed by the Federal Trust Company; that Lane and Finn encouraged Downey to make these large bets and they knew that Downey was using the funds of the trust company and making treasurer's checks of the company for large sums of money, payable to Finn, in settlement of Downey's gambling debts. In carrying out this common purpose, the defendant Lane with the other defendants could have been found guilty of larceny of the money of the bank. Commonwealth v. King, 202 Mass. 379, 387, 88 N. E. 454; Com-2. Appeal and error monwealth v. Althause, 207 Mass. 32, 45, 93 N. E. 202, 31 L. R. A. (N. S.) 999. : In action for personal injuries sustained through being struck by automobile owned by defendant, evidence held insufficient to show that at time of accident driver was acting within scope of employment by defendant. 205—No reversible error shown in exclusion of question, where no offer of proof was made. No reversible error is shown in exclusion of question to driver of defendant's automobile on direct examination by plaintiff, where no offer. of proof was made. [2] The three defendants acted together in a scheme to steal from the trust company. This was accomplished by using its money and manipulating the treasurer's checks so that larceny at common law and by false pretenses was committed. The act of each one in the carrying out of this scheme was the act of all the conspirators. See Commonwealth v. Harley, 7 Metc. (Mass.) 462: Com-tered monwealth v. Mulrey, 170 Mass. 103, 49 N. E. 91. Commonwealth v. Carey, 103 Mass. 214, upon which the defendant relies, is not in conflict. Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge. Action of tort by Thomas Malley, p. p. a., against Franklin L. Hart. Verdict was enfor defendant, and plaintiff excepts. Exceptions overruled. F. W. Mansfield and E. R. Mansfield, both of Boston, for plaintiff. W. W. Hart, of Boston, for defendant. [3] The defendant moved that the case be taken from the jury and continued, because PER CURIAM. [1] This is an action of Edward L. Logan, Esquire, an attorney at law, represented the prosecution in the trial tort to recover compensation for personal inof the cause. This attorney was familiar juries sustained by the plaintiff through bewith the facts in the case and had assisted ing struck on a public way by an automobile in its preparation; he sat with the assistant owned by the defendant. The question is district attorney at the trial, and gave him whether there was any evidence that at the suggestions during its progress. The judge time of the injury the driver of the automofound that the assistant district attorney bile was in the employ of the defendant and "had the active superintendence and man-acting within the scope of his employment. agement of the prosecution of the trial"; There was no evidence that the driver was that Mr. Logan received no pecuniary com- in the general service of the defendant or pensation for his services in the preparation that he ever worked for the defendant exand trial of the case; that prior to Febru- cept on odd jobs. There was evidence that on ary 21, he expected compensation for these the day of the injury he was engaged to services; that at no time did he actively di- drive one or two women from the Dorchest rect the trial; that he did not address the er district to the shopping district in Boston, court except at the bench, in conference, and to wait until the shopping was done and then then only at the express or implied consent drive her or them home; that he returned of the court. There was nothing improper in one, if not both, of the women home at 12 the conduct of Mr. Logan. The assistant o'clock and then used the car on business of district attorney had the entire control of his own and not that of the defendant until the case, he had the right to avail himself of the time the accident happened, not earlier If this evidence was bethe knowledge and information possessed by than 12:45 p. m. Mr. Logan. Commonwealth V. Herman lieved, the defendant was not liable. If it (149 N.E.) As right of passage in private way did not bestow on owners of easement right to obstruct plaintiffs' title and possession of land, maintenance of electric light pole, which is such an obstruction, can be restrained. was disbelieved in whole or in part, the re- 15. Easements 61 (2)-Maintenance of elecmaining evidence was insufficient to show tric light pole on private way may be rethat at the time of the accident the driver strained. was acting within the scope of his employment by the defendant. McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490; Porcino v. De Stefano, 243 Mass. 398, 400, 137 N. E. 664; Lowe v. Antonelli, 245 Mass. 237, 139 N. E. 818; Washburn v. R. F. Owens Co., 252 Mass. 47, 147 N. E. 564; Phillips v. Gookin, 231 Mass. 250, 120 N. E. 691. [2] No reversible error is shown in the exclusion of the question to the driver on his direct examination by the plaintiff because no offer of proof was made. Geary v. Stevenson, 169 Mass. 23, 31, 47 N. E. 508; Cook v. Enterprise Transportation Co., 197 Mass. 7. 10, 83 N. E. 325; Kennon v. Shepard, 236 Mass. 57, 127 N. E. 426. Exceptions overruled. 6. Easements 44(1)-Easement In private way determined by grant construed in light of circumstances. Easement in private way is determined by terms of grant construed in light of attending circumstances. 7. Easements 61 (2)-Restraining right to maintain pole on private way held authorized. Neither grantee of right to use private way for purposes of travel nor his grantee had right to maintain electric light pole on grantor's land, and it was a new and additional burden which could be restrained by injunction. Appeal from Superior Court, Suffolk County; J. D. McLaughlin, Judge. Suit in equity by Frederick E. Crullen and CRULLEN et al. v. EDISON ELECTRIC IL- others against the Edison Electric IlluminatLUMINATING CO. OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 27, 1925.) 1. Easements 58(2)-Erection of electric light pole held not within easement of travel. Where plaintiffs owned to center of private way, subject to easement of travel, owners of easement could not erect electric light pole; it being obstruction of way and interference with plaintiffs' rights as owners and an invasion of owners' title. ing Company of Boston to restrain defend- F. M. Ives, of Boston, for appellant. CARROLL, J. This is a suit in equity to restrain the defendant from maintaining an electric light pole in front of the plaintiffs' premises in a private way ten feet in width, 2. Highways 88-What easement by pub- known as Hilburn Place, in the Roslindale lic in public highways includes, stated. district of Boston. Easement acquired by the public in public The plaintiffs' land is situated at the southhighways includes every reasonable means for east corner of Poplar Street and Hilburn transmission of intelligence, conveyance of per- Place. Adjoining it on the east, and abutsons, and transportation of commodities, gas ting on Hilburn Place, is the land of one and water pipes, electric light and power poles, Rogers. In 1915 Rogers granted permission electric railways, and other means for transto the defendant to erect and maintain a portation, and conveyance of commodities, per-line of two poles through this private way sons, and intelligence are not additional servitudes. with the necessary fixtures for the transmission of electricity; and one Morse, who then 3. Highways 88-Easement of public in pub-owned the premises now owned by the plainlic highways imposes no additional burden on abutting landowner. Easement of public in use of public highways for all purposes of travel, including conveyance of persons, transfer of goods, and transmission of intelligence, is a public right belonging to the public, and imposes no additional burden on abutting landowner. 4. Easements 52-Public held to have no free and unobstructed right to easement in private way. tiffs, gave like permission. The defendant thereupon erected a pole on that part of the private way on which the plaintiffs' land abuts and close to the southerly line of the way. Soon after the plaintiffs acquired title to the land they requested the defendant to remove this pole. The presiding judge found that the plaintiffs own to the center of Hilburn Place, subject to the easement of the other abutters, to use the way for purposes of travel; that Where plaintiffs owned to center of private the easement of Rogers was limited to the way subject to easement of passage of other abutters, the public had no easement to use it use of the way for purposes of travel and for all purposes of travel, including conveyance did not include the right to "maintain an of persons, transfer of goods, and transmission electric light pole to support wires for the of intelligence. purposes of his household"; that the defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant, acting in the right of the abutting owner Rogers, had no greater rights in the way than Rogers. A decree was entered for the plaintiffs, and the defendant appealed. [1] The plaintiffs owned to the center of the private way subject to the easement of Rogers. Lemay v. Furtado, 182 Mass. 280, 65 N. E. 395; Lagoris v. Lewenberg, 226 Mass. 464, 115 N. E. 979. As the owners of the servient estate they possessed all the rights of an owner except as limited by the easement of the dominant estate; they could not interfere with the abutter's right of passage through the way. But the easement did not give Rogers the right to erect the pole; this was an obstruction of the way and an interference with the plaintiffs' rights as owners of the land; it was an invasion of their title as owners and was not within the easement of travel granted to Rogers. Ganley v. Looney, 14 Allen, 40; Zimmerman v. Finkelstein, 230 Mass. 17, 119 N. E. 194; Congregation Beth Israel v. Heller, 231 Mass. 527, 121 N. E. 400; Siegel v. Starzyk, 238 Mass. 291, 297, 130 N. E. 499; New York Central Railroad v. Ayer, 242 Mass. 69, 136 N. E. 364.. The [2-5] The easement acquired by the public in public highways includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities. Gas and water pipes, electric light and power poles, electric railways, and other means for the transportation and conveyance of commodities, persons, and intelligence are not additional servitudes in public highways. Commonwealth v. Morrison, 197 Mass. 199, 83 N. E. 415, 14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338. easement which the public possess in the free and unobstructed right to use the public highways for all purposes of travel, including the conveyance of persons, the transfer of goods and transmission of intelligence, is a public right, belonging to the public and imposing no additional burden on the abutting landowner. The public have no such easement in a private way similar to the way in question. The right of passage in this private way did not bestow upon the owners of the easement the right to obstruct the plaintiffs' title and possession of the land. The maintenance of the electric light pole was such an obstruction and it can be re strained. See Boston & Albany Railroad V. Terminal Realty Corporation, 252 Mass. 165, 147 N. E. 556; Killion v. Kelley, 120 Mass. 47; Nute v. Boston Co-operative Building Co., 149 Mass. 465, 21 N. E. 881. the terms of the grant construed in the light of attending circumstances. Baldwin v. Boston & Maine Railroad, 181 Mass. 166, 168, 63 N. E. 428. [7] Neither Rogers nor the defendant under the permission granted it by Rogers, had the right to maintain the pole upon the plaintiffs' land. It was a new and additional burden on their land. Carpenter v. Capital Electric Co., 178 Ill. 29, 52 N. E. 973, 43 L. R. A. 645, 69 Am. St. Rep. 286. The decree restraining the defendant from maintaining the pole is affirmed, with costs. Ordered accordingly. SIMPIONBATO v. ROYAL INS. CO., Limited. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 24, 1925.) I. Insurance 282(2)-Recital in policy held tantamount to declaration that plaintiff was not sole or absolute owner. Recital in policy that assured was the plaintiff and the W.-O. Company "as their interests may appear," amounted to declaration that plaintiff was not sole owner, and satisfied warranty that assured's interest in property was sole ownership, except as otherwise stated in warranties or indorsed on policy. 2. Insurance 283(1)-Clause that automobile was not mortgaged or incumbered, "except as follows," held not declaration of fact. Warranty clause in theft insurance policy to effect that automobile was not mortgaged or otherwise incumbered, "except as follows," held not declaration by assured; position of clause and fact that blank space was unfilled indicating that it was in form of question. 3. Insurance 282 (2)-Stipulation as to insured's sole ownership held sufficiently complied with. Where automobile was sold to plaintiff on conditional sale contract, and policy stated that plaintiff and the W.-O. Company were the assured, as their interests might appear, stipu lation as to plaintiff's lack of unconditional and sole ownership held sufficiently indorsed on policy, though plaintiff's place of business was described and no mention made of seller's place of business. 4. Appeal and error 861-Supreme Judicial Court bound by recital in report. assured as S. and W.-O. Company, as their Where policy of theft insurance named interests might appear, but conditional sale contract showed vendor was W.-O. Company, Incorporated, report reciting that W.-O. Company was vendor is binding on Supreme Judicial Court. 5. Corporations 48-If corporation incor rectly stated in contract, correct name could be shown. [6] The rights of the public to an easement of travel and the carrying of commodities upon the public highways are not involved; the defendant relies entirely upon the easement granted to Rogers in Hilburn In action on theft insurance policy, even Place. His easement is to be determined by if name of insured vendor was incorrectly stat |