contracts generally, that the cases cited in | made. Held, that plaintiff had an insurable inthe briefs show that it has become common knowledge that the General Assembly may not by the discriminating imposition of burdens participate in the rivalries of business, except to the extent that may be authorized by consideration of the public weal. It is not necessary to enlarge upon the subject, since the first proposition of the syllabus in Marmet v. State, 45 Ohio St. 63, 12 N. E. 463, is an authoritative and exclusive definition of the subjects upon which a license fee may be imposed: "The General Assembly has power (except as limited by section 18 of the schedule to the Constitution) to regulate occupations by license, and to compel, by imposition of a fine, payment of a reasonable fee, where a special benefit is conferred by the public upon those who follow an occupation, or where the occupation imposes special burdens on the public, or where it is injurious to or dangerous to the public." It is true that the court was there considering a statute to exact the fee by the direct act of the General Assembly; but the point is wholly unimportant, since it could not confer upon municipalities a power which it does not itself possess. It may not any more authorize the municipal council to lay an imposition upon the ordinary use of the streets and the private residences of the city than it could provide for such imposition by an act of general operation. We might regret this conclusion if we were informed that in the village of Tippecanoe those who sell merchandise at retail outnumber those who buy from them. Not being so informed, we are serene in the belief that obedience to the requirements of the Constitution will in this instance, as it usually does, result in the greatest good to the greatest number; nor need we vex ourselves to inquire why, at a time when so much is done by legislation and adjudication to prevent the stifling of competition by private terest in the property to the extent of its full value and was entitled to recover on the policy. though the sale bond to the purchaser provided that he should pay for insurance. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 139-157; Dec. Dig. § 115.*] 2. VENDOR AND PURCHASER (§§ 129, 351*)— CONTRACT-Breach. Where real property contracted to be sold was attached before conveyance as the property of the vendor, the purchaser could not be compelled to accept the conveyance; the atfor which the vendor would be liable in an tachment constituting a breach of the contract amount at least equal to the value of the property. [Ed. Note. For other cases, see Vendor and Dec. Dig. §§ 129, 351.*] Purchaser, Cent. Dig. §§ 238-244, 1047–1058; Appeal from Supreme Judicial Court, Plymouth County. Action by George W. Adams, as owner of the fee of certain real estate, against the North American Insurance Company, on a fire policy, to recover for total loss of the insured buildings by fire. Judgment was ordered for defendant on agreed statement of facts, and plaintiff appeals. Judgment for plaintiff. James S. Allen, Jr., for appellant. F. W. Brown and W. L. Came, for appellee. SHELDON, J. The only question raised here is whether the original plaintiff had in the property insured an insurable interest sufficient to support a recovery; and it is agreed that if so, judgment shall be entered in his favor to the extent of that interest, not exceeding the amount of the policy. [1] He was the legal owner of the property. The title was in him. But he had given a bond for a deed to Donley; Donley, or his assignee Cushman, had paid the full agreed price; and the plaintiff was bound to convey erroneously, that he had done so by turning to Cushman and apparently thought, though over the bond to Cushman. In the meantime nine different attachments to the aggregate contracts, an attempt should be made to stifle it by legislation. amount of $157,000 had been placed upon Judgment reversed, and demurrer over- still outstanding when this action the plaintiff's real estate, all of which were brought. The agreed price was $500. SPEAR, C. J., and DAVIS, PRICE, JOHN- amount of the insurance was $800. ruled. SON, and DONAHUE, JJ., concur. ADAMS v. NORTH AMERICAN INS. CO. (Supreme Judicial Court of Massachusetts. Plymouth. Jan. 3, 1912.) 1. INSURANCE (§ 115*)-INSURABLE INTEREST -OWNER OF FEE-CONTRACT OF SALE. Plaintiff, the legal owner of insured property, gave a bond for a deed to D. D. or his assignee had paid the full price, and plaintiff had turned over the bond to such assignee. Before actual conveyance, the property was attached by plaintiff's creditors and the buildings burned before any conveyance had been was The This was the state of affairs when the house was destroyed by fire. The plaintiff had an insurable interest when he took out the policy, although he had agreed to sell the property for a fixed price to be paid by installments, and to convey it upon full payment. But the price had not yet been fully paid, and the time for the conveyance had not arrived. If he should fail to keep his agreement by making the conveyance, he would at the election of Cushman be liable in damages. But he still owned the property and had a full insurable interest in it. Thompson v. Gould, 20 Pick. 134; Wells v. Calnan, 107 Mass. 514, 9 Am. L Rep. 65; Hawkes v. Kehoe, 193 Mass. 419, | of the time for the severance and removal of 79 N. E. 766, 10 L. R. A. (N. S.) 125. The the buildings were not binding on the city. ordinary principle, res perit suo, must be [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 230.*] applied. [2] When the time came for making the conveyance, the property was subject to attachments to an amount far exceeding its apparent value. The purchaser could not have been compelled to accept a conveyance; and the plaintiff would have been liable for !! damages in a sum equal to the value of the property. This liability continued up to the time of the fire. He had a right to protect himself against it by insurance; and for this reason too he had an insurable interest to the full value of the buildings. The reasoning of the opinion in Jenks v. Liverpool & London & Globe Ins. Co., 206 Mass. 591, 597, 92 N. E. 998, applies here. 4. DEEDS (§ 143*)—FORFEITURE--EQUITABLE RELIEF. Where a grantor of land to a city, and the city, dealt on an equal footing, and the grantor reserved the right of entry and removal of future date, the failure of the grantor to effect buildings on the land on or before a designated a severance before such date operated as a forfeiture of his rights to the buildings, and equity would not prevent a forfeiture in the absence of accident or mistake. [Ed. Note.-For other cases, see Deeds, Dec. Dig. § 143.*] Report from Superior Court, Bristol County; Henry A. King, Judge. Suit by F. William Oesting against the City of New Bedford. The court, at the close of the evidence, ruled that plaintiff could not recover and reported the case to the Supreme Judicial Court for determination. Bill dismissed. J. W. Cummings and C. R. Cummings, for plaintiff. Benj. B. Barney, for defendant. The provision in the bond that the pur[ chaser should pay for insurance does not indicate that the parties intended that the purchaser should have the insurable interest and should protect the property for his own benefit. This provision, like that for the payment of taxes and other charges, was inserted for the benefit and relief of the ownAs to insurance, it evidently contemThe plaintiff's title to the plated that this should be in the name of buildings rests upon the construction of the the plaintiff, for his benefit, upon his proper- deed under which the city acquired the freety and payable to him. Otherwise the stip-hold. Noble v. Bosworth, 19 Pick. 314; Mil er. ulation would have been needless. The plaintiff, both when he took out the policy and when the building was burned, had an insurable interest to the full value of the property. Under the agreed facts he is entitled to judgment for $800 with interest from July 1, 1907. So ordered. OESTING v. CITY OF NEW BEDFORD. (Supreme Judicial Court of Massachusetts. Bristol. Jan. 3, 1912.) 1.-DEEDS (§ 117*) - PROPERTY CONVEYED -BUILDINGS. A grant of "certain lots or parcels of land" includes the buildings thereon. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 339; Dec. Dig. § 117.*] 2. DEEDS (§ 143*) - ESTATES CONVEYED RIGHTS RESERVED. A deed of "certain lots or parcels of land," which provides that all buildings are to be removed from the premises by the grantor on or before a designated date, requires the grantor to remove the buildings on or before such date, and, unless the grantor removes them within the time specified, the buildings pass to the grantee. BRALEY, J. ler v. Washburn, 117 Mass. 371. [1] By the unambiguous language of the grant, “certain lots or parcels of land," are conveyed and under the terms of this description the estate included the buildings. First Parish in Sudbury v. Jones, 8 Cush. 184, 189. [2] If the subsequent clause immediately preceding the habendum, "all buildings to be removed from these premises on or before July 1st next by the grantor or his assigns," leaves no doubt of the intention of the parties, that they were to belong to the plaintiff, yet until severed they would not become his personal property. But if for the purpose of severance the right of entry and removal are implied, it is also plain, that unless the right was exercised within the period the soil and buildings were to remain united. Washington Mills Mfg. Co. v. Weymouth Ins. Co., 135 Mass. 503; Poor v. Oakman, 104 Mass. 309; Perkins v. Stockwell, 131 Mass. 529; Barry v. Woodbury, 205 Mass. 592, 91 N. E. 902. The plaintiff's separate property in the buildings as chattels, depended therefore upon compliance with the condition. [3] It is specifically averred in the answer, and stated in the report as a finding of fact, that the plaintiff failed to effect a severance be [Ed. Note. For other cases, see Deeds, Cent. fore the date of termination, and while the Dig. § 468; Dec. Dig. § 143.*] 3. MUNICIPAL CORPORATIONS (§ 230*)-CONTRACTS-VALIDITY. Where a grantor of land to a city reserved the right to enter and remove buildings on or before a designated future date, negotiations with various municipal officers for an extension parties by agreement could have extended Mass. 425, 68 N. E. 841; Adams v. Essex, 205 Mass. 189, 91 N. E. 557. [4] The plaintiff invokes the rule, that equity will relieve against a forfeiture, and that on this ground alone the bill can be maintained. But the parties dealt on an equal footing, and the plaintiff was the grantor. It may be in ferred from his evidence that he intended to preserve and to remove them to another location, and not to demolish them, and take away the materials. The length of time, however, which might be required, and their value if preserved, were important factors which he must be presumed to have considered in making the sale, and it was within his power by an appropriate stipulation to have guarded against the consequences of a default, if the period reserved should prove to be insufficient. John Soley & Sons V. Jones, 208 Mass. 561, 566, 95 N. E. 94. The nature of the contract having expressly made the time of performance essential, and his right to the property dependent upon it, the plaintiff shows no equitable circumstances of accident or mistake under which relief should be given. Mactier v. Osborn, 146 Mass. 399, 402, 15 N. E. 641, 4 Am. St. Rep. 323; Baltimore City Bank v. Smith, 3 Gill & J. (Md.) 265; Brown V. Vandergrift, 80 Pa. 142; Wells v. Smith, 2 Edw. Ch. 78; Baxter v. Lansing, 7 Paige (N. Y.) 350; Klein v. New York Life Ins. Co., 104 U. S. 88, 26 L. Ed. 662; Davis v. Thomas, 1 Russ. & M. 506. If the right of separation had been exercised seasonably, although the removal had been accidentally postponed beyond the limitation, the question argued by the plaintiff whether compensation to the defendant in damages being practicable, equitable relief should be granted, would have been presented. Claflin v. Carpenter, 4 Metc. 580, 582, 583, 38 Am. Dec. 381; Gates v. Johnston Lumber Co., 172 Mass. 495, 52 N. E. 736; Henry v. Tupper, 29 Vt. 358. It is not open on the record and the result is, that under the reservation in the report, the bill must be dismissed with costs. Decree accordingly. TROWBRIDGE et al. v. TUPPER. (Supreme Judicial Court of Massachusetts. Worcester. Jan. 3, 1912.) 1. APPEAL AND ERROR (§ 74*) - DECISIONS REVIEWABLE-INTERLOCUTORY ORDERS. An interlocutory order overruling a demurrer is not appealable before the entry of final decree in the cause. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 417-425; Dec. Dig. § 74.*] 2. HEALTH (§ 19*) - USING BUILDING FOR STABLE-STATUTORY PROVISION-ACTION PROOF. Rev. Laws, c. 102, § 69, which makes it unlawful to "erect, occupy or use for a stable, any building," etc., and Rev. Laws, c. 102, § 71, which makes a violation of section 69 a penal offense and confers equitable jurisdiction on the superior court to restrain such erection, etc., is designed to protect the health and comfort of the community, and, where there is a reasonably certainty that its provisions are to be violated, the board of health may sue to prevent the accomplishment of the purpose, even before actual injury has been inflicted. [Ed. Note.-For other cases, see Health, Cent. Dig. §§ 17-23; Dec. Dig. § 19.*] 3. HEALTH ̧ (§ 19*) — USING BUILDING FOR STABLE-LICENSE OF BOARD OF HEALTHACTION TO RESTRAIN-DEFENSES. In an action by the board of health to restrain the use and occupancy of a building as a stable, brought under Rev. Laws, c. 102, §§ 69, 71, which prohibit the occupancy or use for a stable of any building in cities of over 25,000 inhabitants, unless such use is licensed by the board of health of the city, and confer equitable jurisdiction on the superior court to restrain such erection, that the board of health acted arbitrarily or unjustly in refusing a license cannot be asserted as a defense in an action to restrain the use of a building as a stable, as no limitations are placed on the discretion of the board, so that evidence of the sanitary appointments of the building, and that other stables in more densely populated portions of the city had been licensed, was inadmissible. [Ed. Note.-For other cases, see Health, Cent. Dig. §§ 17-23; Dec. Dig. § 19.*] 4. WITNESSES (§ 374*) — BIAS - EVIDENCE – ADMISSIBILITY TO DISCREDIT. Where, in an action by a board of health to restrain violation of Rev. Laws, c. 102, § 69, 71, prohibiting the use of buildings for stables except on license granted by the board of health, the testimony upon which a decision was sought was given by a member of the vidually or as a member of the board, exhibitboard, statements made by him either indiing bias or prejudice, while collateral to the action for the violation of the statute, were admissible to affect the credibility of the witness and the weight of his testimony. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1201-1202; Dec. Dig. § 374.*] 5. APPEAL AND ERROR (§ 260*) — ReservaTION OF GROUNDS-EXCEPTIONS. The action of the trial court in excluding evidence will not be reviewed, where no exception was taken to such refusal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dec. Dig. § 260.*] 6. HEALTH (§ 19*)—USING Building as STABLE-ACTIONS-PARTIES. The city is a proper party to proceedings under Rev. Laws, c. 102, §§ 69, 71, which makes it unlawful to erect a stable, etc., without a license from the board of health of the city, but the board of health under Rev. Laws, c. 75, §§ 9-15, 65-90, are officers of the city, and where an action is prosecuted by them to restrain the use and occupancy of the building as a stable, the bill is in effect a bill on behalf of the city and may be amended to make the city, in form, the plaintiff. [Ed. Note. For other cases, see Health, Cent. Dig. §§ 17-23; Dec. Dig. § 19.*] Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge. Bill by Edward H. Trowbridge and others against George L. Tupper. From a decree for plaintiffs, defendant brings exceptions. Exceptions overruled conditionally. * * The plaintiffs, who constitute the board of health of said city, and in such case only to health of the city of Worcester, bring this the extent so licensed." Newton v. Joyce, 166 bill against the defendant, asking that he be Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385. restrained from using or occupying a certain And by section 71, under which the bill is building as a stable on the ground that the brought, a violation of these provisions is defendant has openly threatened to use and made a penal offense, while jurisdiction in occupy such building for a stable in defiance equity is conferred upon the superior court of the orders of the complainants. The bill "to restrain such erection, occupation or use. does not allege that he ever attempted to The statute was designed to proput horses in the building. The court order-tect the health and comfort of the commued a decree sustaining the bill and ordering | nity, and should receive a construction which an injunction to issue, and the respondent, the plain meaning of the words imports. being aggrieved by said decree and by said If there is reasonable certainty that a buildrulings and refusals to rule and by said ex- ing is to be unlawfully occupied, and used clusion of evidence, having reduced his ex- for the stabling of horses, the public authorceptions to writing, prays that the same may ities need not delay action until the purpose be allowed. of the owner, or those in control, has been accomplished, but may under section 71 prevent the attempted creation of a statutory nuisance, even if no actual injury to the public has been inflicted. Langmaid v. Reed, 159 Mass. 409, 411, 34 N. E. 593. evidence justified the finding of the judge, E. H. Vaughan, City Sol., and Clifford Anderson, Asst. City Sol., for plaintiffs. E. Tupper, for defendant. S. C. BRALEY, J. [1] The appeal from the interlocutory order overruling the demurrer is [3] The that it was the defendant's intention to oc Cupy and use, as a stable for horses, the v. Archambault, 189 Mass. 70, 75 N. E. 65. not before us, as no final decree has been entered. Forbes v. Tuckerman, 115 Mass. 115, 118, 119; Fuller v. Chapin, 165 Mass. 1, 3, 42 N. E. 115. But as the exceptions cover in scope the question whether proof of the allegations of the bill as amended makes out a case for equitable relief, as well as the question whether the evidence warranted the decree ordered, the defendant to this extent has all the advantage which he could have derived from the appeal. Ontario Bank v. Root, 3 Paige (N. Y.) 478; Small v. Bondinot, 9 N. J. Eq. 381; Thompson v. Thompson, 1 Yerg. (Tenn.) 97. [2] The bill does not go upon the general equity jurisdiction of the court, to restrain the unlawful use of a building which creates a nuisance made punishable as a statutory or common-law misdemeanor. Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443. If it were so brought, the defendant's building not having as yet been used for an offensive purpose there would have to be adequate proof, that unless relief were given the threatened act sought to be enjoined would be so substantial in character, vidually or as a member of the board exthat the public health might suffer before hibiting bias or prejudice against him would effectual steps could be taken to stop its con- be collateral to the question of the defendtinuance, or to punish the wrongdoer. Atty. ant's intention to violate the statute, yet they Gen. v. Metropolitan R. R., 125 Mass. 515, would have been admissible to affect his 516, 28 Am. Rep. 264; Beck v. Railway credibility as a witness, and the weight to Teamsters' Protective Union, 118 Mich. 497, be given to his testimony. Day v. Stickney, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 14 Allen, 255. But the exception to the ex421; Hamilton Brown Shoe Co. v. Saxey, 131 clusion of the question asked of the defendMo. 212, 32 S. W. 1106, 52 Am. St. Rep. 622; ant in direct examination, if he had not been In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, informed by Coffey that a license would not 39 L. Ed. 1092. See 2 Dan. Ch. Pl. & Pr. be granted because he had published articles, (6th Am. Ed.) 1620, note a. But the pro- in the newspapers reflecting upon the refusal visions of the Rev. Laws, c. 102, § 69, which of the board to grant a license, was put upon have been held to be constitutional, make it the ground, that the offer was to show unlawful for any person to "erect, occupy or unjust discrimination. The evidence subseuse for a stable any building in a city whose quently offered, that this witness had said to population exceeds twenty-five thousand, un- the defendant that he would not grant a his antipathy to and dislike for him, and because of his conduct in publishing statements in the newspapers, apparently was excluded for the same reason. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 248-250; Dec. Dig. i 117.*] 2. STREET RAILROADS ( 85*)-INJURIES TO TRAVELERS-RIGHTS IN STREET. as he could see along the street. He saw one approaching on the track nearest to him, but more than 150 feet from where he was crossing. He continued his way, the horse trotting or jogging, and, before he could get across, the [5] No exception, however, was taken to car struck the rear end of the buggy. The car the exclusion, and the question which the de- violation of an ordinance providing that cars was moving at an unreasonable speed, and in fendant endeavors to raise is not before us. approaching any public or private way interThe first, second, third and fourth requests secting a railway track must reduce speed to for rulings present no questions which are such a rate as will make it possible to stop imnot disposed of by what we have said, ex-mediately. Held, that intestate was not negligent as a matter of law. cept that under the first request the inquiry remains, whether the plaintiffs have established their right to institute and prosecute the suit. [6] It is of course, clear that under section 71 a criminal prosecution could be instituted only in the name of the commonwealth, or if an information in equity had been presented it must have been in the name of the attorney general. Atty. Genl. v. Metropolitan R. R., 125 Mass. 515, 28 Am. Rep. 264. The plaintiffs are described and they prosecute as a board of health, but their powers and duties are defined by statute. Rev. Laws, c. 75, §§ 9-15, 65-90. Belmont v. New England Brick Co., 190 Mass. 442, 77 N. E. 504. The authority to preserve the health of the inhabitants is lodged in the municipality, and the members of the board are officers of the city. Salem v. Eastern R. R., 98 Mass. 431, 442, 96 Am. Dec. 650. It is for this reason that suits to enforce the orders of a board of health for the removal, suppression, Wa and abatement of a nuisance, or for its prevention have uniformly been brought in the name of the city or town, since the decision in Winthrop v. Farrar, 11 Allen, 398. tertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694; Taunton v. Taylor, 116 Mass. 254; Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860; Newton v. Joyce, 166 Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385; Brookline v. Hatch, 167 Mass. 380, 45 N. E. 756, 36 L. R. A. 495; Cambridge v. Trelegan, 181 Mass. 565, 64 N. E. 204; Lowell v. Archambault, 189 Mass. 70, 75 N. E. 65; Belmont v. New England Brick Co., 190 Mass. 442, 77 N. E. 504. The bill in effect, however, is in behalf of the city of Worcester, and it may be amended to make the city in form the plaintiff. If this is done, the order will be, exceptions over ruled, otherwise they must be sustained. Fay v. Walsh, 190 Mass. 374, 377, 378, 77 N. E. 44. So ordered. FARRIS v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1912.) 1. STREET RAILROADS (§ 117*)-INJURIES TO TRAVELERS-CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCE. Plaintiff's intestate, being about to drive across a street on which defendant's street car tracks were located in the center of the street, looked up and down the street for cars as soon Neither a traveler crossing a street railway track nor a motorman in charge of a car has an exclusive right to the street, to which the other must yield, but both have the rights and duties of travelers on a common thoroughfare, so that the motorman is not entitled to expect that its right of way will be wholly unimpeded. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 193-195; Dec. Dig. § 85.*] 3. EVIDENCE ( 591*) — CONCLUSIVENESS OF TESTIMONY. Where, in an action for injuries in a street railway crossing accident, one of plaintiff's witnesses testified to facts, which if true, established that decedent was negligent as a matter of law, the evidence of such witness having been contradicted by other evidence, plaintiff was not concluded thereby. Cent. Dig. 88 2440-2443; Dec. Dig. § 591.*} Exceptions from Superior Court, Suffolk Action by Adelaide P. Farris against the Boston Elevated Railway Company. Judg ment for plaintiff, and defendant brings exceptions. Overruled. G. H. Mellen and C. R. Darling, for plaintiff. E. P. Saltonstall, for defendant. RUGG, C. J. This is an action for personal injuries received by the plaintiff's intestate while traveling with a horse and buggy on a public way in the evening, through collision with a car of the defendant. There was evidence tending to show that the accident occurred in Boston, on Columbus Avenue, which at this point was straight for more than a quarter of a mile and was about fifty-three feet wide between curbstones. Two tracks of the defendant ran in the middle part of the street. The plaintiff's intestate drove out of Davenport Street, which intersects Columbus Avenue on its easterly side, into Columbus Avenue, intending to cross the tracks to the westerly side of the street in order to go southerly on the avenue. There was a block on the Southerly corner of Columbus Avenue and Davenport Streets, the distance from which to the nearest rail of the defendant was 50 feet, and as soon as the intestate could see past this block he looked up and down |