6. Injunction 118(3)-Bill to enjoin wrongful use of right of way over plaintiff's premises by persons resorting to playground held to entitle plaintiff to relief. Bill to enjoin objectionable use of public playground for baseball and wrongful use of right of way thereto held not to state cause of relief for permitting objectionable use of playground, but to state cause of relief for wrongful use of right of way. court questions of law relating to errors as cannot be held that laches appear on face to interrogatories is by exceptions. Brooks thereof. v. Shaw, 197 Mass. 376, 378, 379, 84 N. E. 110; Cutter v. Cooper, 234 Mass. 307, 314, 125 N. E. 634. Such questions cannot come up by appeal. Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 134, 137 N. E. 169; G. L. c. 231, § 96. Without intimating that any error was committed in the rulings, it is enough to say that they all relate to inquiries respecting what newspapers were read by officers of the bank between August 9 and 12, 1920, and to what newspapers the bank subscribed. These interrogatories were immaterial as it did not appear that the officers acquired any knowledge of the bankruptcy proceedings. The appeal should be dismissed. Exceptions overruled. Appeal dismissed. PEASE v. PARSONS et al. (Supreme Judicial Court of Massachusetts. Franklin. April 5, 1927.) 1. Equity 148(1)-Bill to enjoin objectionable use of public playground and wrongful use of right of way held not multifarious. Bill for injunction, complaining that trustees permitted objectionable use of public playground and wrongful use of right of way thereto by persons resorting to the playground, held not multifarious. Appeal from Superior Court, Franklin County; Irwin, Judge. Bill by Sarah A. Pease against Charles Parsons and others to enjoin objectionable use of public playground and wrongful use of right of way. From interlocutory decree sustaining demurrer to bill and final decree dismissing it, plaintiff appeals. Reversed. Earl D. Getman, of North Adams, for appellant. William A. Davenport and Charles Fairhurst, both of Greenfield, for appellees. land in the town of Conway, which they hold WAIT, J. The defendants are owners of in trust "to be forever kept open as a public playground for the use and benefit of all the public school children of Conway, under the control and management of the trustees for the time being, upon which said trustees may purposes * 2. Injunction 48-Where repeated trespass-erect such structures and fit up the same in es are alleged, irreparable damage is not such manner as shall best conduce to the designed essential to injunctive relief. *" and which, since May, 1916, had been used in accordance with the trust as a public playground. They also own, as appurtenant to this land, a right of way "for teams to pass and repass" over the land of the plaintiff to a public way. The In suit for injunction, where repeated trespasses are alleged in complaint, irreparable damage is not essential to give equity jurisdiction. 3. Injunction 46-Where damages for injury alleged would not prevent continued in-plaintiff, owner of adjoining premises, comjury, remedy at law is not so adequate that equity should refuse jurisdiction. Where damages in action at law for injuries to plaintiff's property from objectionable use of public playground and wrongful use of right of way would not prevent injury in the future, her remedy at law is not so adequate and complete that equity should refuse juris diction. 4. Attorney general 7-Attorney General is not proper plaintiff for injunctive relief, where bill was not directed to secure performance of terms of trust for public. Where bill to enjoin objectionable use of public playground and wrongful use of right of way over plaintiff's land was not directed to secure performance of terms of trusts therein for the public, the Attorney General was not proper plaintiff to enforce rights of adjoining landowner. 5. Injunction plains that "the defendants have consented 113-Laches held not to ap- to use the way as a foot path; and "have pear on face of bill. (156 N.E.) erating or conducting the playground as to cause baseballs to fall or be thrown or batted upon her premises and from using, permitting or allowing the right of way to be used for any other purpose than for teams to pass or repass. The case is before us upon her appeal from an interlocutory decree sustaining a demurrer to the bill, and a final decree dismissing the bill. [1] The defendants set out many causes of demurrer. Two causes of complaint-permitting objectionable use of the premises for baseball, and wrongful use of the right of way by persons resorting to the playground -are set out in the bill; but they are so connected that there is no weight in the objection that the bill is multifarious. Bliss v. Parks, 175 Mass. 539, 543, 56 N. E. 566; Hermanson v. Seppala (Mass.) 152 N. E. 363. Mesisco v. Guiliano, 190 Mass. 352, 76 N. E. 907, cited by the defendants, is not controlling here. [2, 3] This court has jurisdiction of the subject matter. Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N. E. 371, Ann. Cas. 1915B, 1054. Irreparable damage is not essential where repeated trespasses are alleged. O'Brien v. Murphy, 189 Mass. 353, 75 N. E. 700. The plaintiff's remedy at law is not so adequate and complete that equity should refuse jurisdiction. Damages in an action at law for such injury as she alleges would not prevent continued injury in the future. Stevens v. Dedham, 238 Mass. 487, 131 N. E. 171. [4] The bill is not directed to secure the performance of the terms of the trust for the public. The plaintiff is seeking a remedy against wrongs to her in her capacity as a landowner. The Attorney General is not the proper plaintiff to enforce such rights as she is seeking to maintain. Compare Burbank v. Burbank, 152 Mass. 254, 25 N. E. 427, 9 L. R. A. 748. [5] The bill alleges injuries arising since May 17, 1926, and was filed June 9, 1926. It cannot properly be held that laches appears on the face of the bill. If the date, 1926, is a clerical error, the delay admits of explanation, and no harm appears to have resulted to the defendants. Stewart v. Finkelstone, 206 Mass. 28, 36, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370. been stated. The allegations in regard to injury caused by the driving of baseballs upon the plaintiff's premises fall short. There is no allegation that the defendants themselves have batted or driven balls to the plaintiff's damage. There is no allegation that they have so laid out the portion of their land to be used for games of baseball that a reasonable person would anticipate that balls would be batted upon the plaintiff's property in the ordinary course of the games. There is no allegation that they can so manage and conduct the playground that no injury to the plaintiff will result. The plaintiff stops with the assertion that she is informed and believes that they can. There is no allegation that damage to the plaintiff's premises is a necessary consequence of the existing layout of the playground. We find no allegations setting out conditions created by them which call for action on their part, to guard against injury reasonably to be expected as a consequence of those conditions. It is not what they have done that is complained of. It is what others have done and the defendants have not prevented. Nothing is set out to show invitation or encouragement to those others to commit the injurious acts. Cases like Bostock v. North Staffordshire Railway Co., 5 De G. & S. 584; King v. Moore, B. & Adol. 184; Walker v. Brewster, L. R. 5 Eq. 25; Chibnall v. Paul, 29 W. R. 537, do not apply. All that definitely appears is, that the defendants hold title to the playground. The allegations with regard to the wrong ful use of the right of way go further. They charge a use by the defendants, as well as a use by others "consented to, permitted and allowed" by the defendants. If that use is a greater burden upon the servient estate than the deed conferring the easement granted, then the servient owner is entitled to the aid of equity to prevent it. Gray v. Cambridge, 189 Mass. 405, 76 N. E. 195, 2 L. R. A. (N. S.) 976. A general use of the plaintiff's land by the dominant owner and by large numbers of persons at his invitation to pass and repass on foot is, on its face, greater than a use merely "for teams to pass and repass." See Davenport v. Lamson, 21 Pick. 72, 74; Atwater v. Bodfish, 11 Gray, 150. Although the allegations are less specific These causes of demurrer are not well and full than good pleading demands, the bill taken. states a cause in equity. The demurrer should have been overruled. [6] There remains only to consider whether a case entitling the plaintiff to relief has Decree reversed. The court held that this provision could not be construed as a mere covenant for renewal; that no renewal was contemplated by the parties and that unless the notice provided for was given, the lease was to continue in force for another term of one year. "It is not a mere agreement to give a lease for a term to commence in futuro, but, upon the failure to give the three months' notice required to terminate the lease, it continued in operation, and was a lease in presenti for the third year." In Carlisle v. Weiscopf, 237 Mass. 183, 129 N. E. 375, the lease contained a provision similar to that in the case at bar. The tenant who held over after the term contended that he was holding as a tenant at will. The court, following the principle stated in Dix v. Atkins, supra, held in effect that the lease was one from year to Exceptions from Superior Court, Suffolk year until notice to terminate was given. It County; G. A. Flynn, Judge. must therefore be held that vacating the did not terminate the lease; that the lessee's premises before the end of the second year right to terminate it on the first day of Octo Action of contract by Rachel Lewenberg against Leo Friedstein and another. Verdict was directed for plaintiff, and defendants ex-ber, in the year 1925, depended upon his havcept. Exceptions overruled. Judgment for plaintiff. B. Spinoza, of Boston, for plaintiff. SANDERSON, J. The defendant was lessee of certain premises under a written lease containing the following provision: "To have and to hold the above-described premises for the term of two years beginning with the first day of October, A. D. 1923, and this lease shall continue in full force and effect thereafter from year to year until one of the parties shall on or before the first day of August in any year give to the other party written notice of his intention to terminate this lease on the first day of the following October in which case the lease hereby created shall terminate in accordance with such notice." The defendant left the premises before October 1, 1925, paying rent to that date but without giving any notice of his intention to terminate the lease. ing given the lessor notice of his intention to terminate on or before the first of the previous Exceptions overruled. Judgment for plaintiff in the sum of $1,198. HUFFAM v. PAQUIN. (Supreme Judicial Court of Massachusetts. Suffolk. April 6, 1927.) 1. Municipal corporations 706 (5)—Evidence held to warrant finding that 7 year old girl, killed by motor truck, did not lack in due care (G. L. c. 231, § 85). In action for death of girl of 7 years, killed by a motor truck in a street, evidence, in view of presumption of G. L. c. 231, § 85, held to warrant finding that decedent, in going around rear of a street car and being struck by the was not truck approaching without signal, lacking in due care. The defendant contends that by the terms above quoted the lease was for a definite term of two years and that he was not required to give any notice if he left within that time. The plaintiff's contention is, that the defendant is liable for rent after the ex-2. Municipal corporations 706 (5)—Driving piration of the second year because of his failure to give notice. The parties agreed to the amount to be recovered in case the defendant is liable. truck along outbound street car track without signal when it approached street car standing on inbound track, held negligence (G. L. c. 90, §§ 14, 17). In action for death of a child run over In Dix v. Atkins, 130 Mass. 171, 172, the by a motor truck, evidence that truck was belease provided that "If, before the end of the said term, neither of the said parties shall give to the other three months' notice in writing of his intention to terminate this lease at the end of the said term, the said lease shall continue in force for another term of one year." ing driven along outbound street car track within 5 feet of inbound track on which was standing street car, at speed of from 12 to 15 miles an hour, without signal of its approach, held sufficient, with other facts, to establish negligence of driver, in view of violation of G. L. c. 90, §§ 14, 17, as to sounding of signals. (156 N.E.) Report from Superior Court, Suffolk Coun- | mussen v. Whipple, 211 Mass. 546, 98 N. E. ty; Patrick M. Keating, Judge. Action of tort by Harold H. Huffam, administrator of the estate of Marjorie W. Huffam, against Frank Paquin, to recover for death of plaintiff's intestate, on report. Judgment for plaintiff. 592; Tripp v. Taft, 219 Mass. 81, 106 N. E. 578; Prendergast v. Boston Elevated Railway, 232 Mass. 409, 122 N. E. 318; Bengle v. Cooney, 243 Mass. 10, 136 N. E 812; Pawloski v. Hess, 253 Mass. 478, 149 N. E. 122. [2] The evidence that the truck was driven along the outbound track within five feet of A. E. Lewis and W. E. Corkum, both of the inbound track at a speed of from twelve Boston, for plaintiff. G. W. Reed, of Boston, for defendant. CROSBY, J. This is an action to recover damages for the death of the plaintiff's intestate, a girl seven years and seven months old, who was run over and killed by a motor truck owned by the defendant and operated by his agent in the conduct of the defendant's business. The truck was about fifteen feet long and seven and one-half feet wide. It weighed about three tons, and, at the time of the accident, was loaded with nine cows. The accident occurred on Centre street, in Boston, a public highway extending in a northerly and southerly direction, at a point nearly opposite Starr lane, which runs into Centre street on its easterly side but does not cross it. Centre street is about fifty feet wide at this place, and located upon it are the tracks of a street railway. to fifteen miles an hour, without giving any warning or signal of its approach, was enough, together with other circumstances, to establish a finding of negligence of the driver. Its speed, and the failure of the driver to sound its horn, could have been found to be a violation of G. L. c. 90, §§ 14, 17. Rasmussen v. Whipple, supra; Tripp v. Taft, supra; Bengle v. Cooney, supra; Pawloski v. Hess, supra. In accordance with the terms of the re port, judgment is to be entered for the plain- COMMISSIONER OF BANKS v. TREMONT (Supreme Judicial Court of Massachusetts. 1. Banks and banking ~47 (2)-Commissioner of banks has power to determine whether to enforce stockholders' liability and amount of such liability to be enforced (G. L. c. 172, § 24). Commissioner of banks has power to deter 2. Banks and banking 47 (2)-Necessity of enforcing stockholders' liability and extent to which liability shall be enforced are not open to judicial inquiry in proceeding to enforce such liability (G. L. c. 167, § 24, c. 172, § 24). In proceeding by the commissioner of banks, acting under G. L. c. 167, § 24, to charge stockholders with their liability under chapter 172, 24, the question of the necessity of enforcing liability of stockholders and extent to which such liability shall be enforced are not open to judicial inquiry. [1] There was evidence from which it could have been found that the deceased was a bright, intelligent girl who had been accustomed to going upon the streets; that she had attended a kindergarten and a primary school over a period of four years, and for three years had been in the habit of doing er-mine whether to enforce the liability of stockrands for her mother; that on the day of the holders and power to decide finally the amount accident, after returning from school, she of such liability to be enforced up to the full limit permitted by G. L. c. 172, § 24. was sent by her mother to make a purchase at a store on the westerly side of Centre street about opposite Starr lane; that she came down Starr lane "not [on] a run, more of a fast walk"; that she stopped at the corner of the lane and street a moment or two and looked up and down Centre street; that she then started around the rear of an inbound electric car and was struck by the truck on the outbound track traveling at a speed which could have been found to be from twelve to fifteen miles an hour; and that no horn was sounded or other signal given of its approach. Upon this evidence it could have been found that the deceased was in the exercise of the degree of care which reasonably would be expected of a girl of her age. No question is made that her parents were negligent in permitting her to go unattended upon the street. The electric car behind which she passed to some extent obstructed her view of the westerly side of the street. The jury viewed the place and upon all the evidence were warranted in finding that she was not lacking in due care. G. L. c. 231, § 85; Beale v. Old Colony Street In suit by commissioner of banks to enforce Railway, 196 Mass. 119, 81 N. E. 867; Ras- stockholders' liability under G. L. c. 172, § 24, 3. Corporations 262 (1)-Stockholder, to es cape liability, cannot set up infirmities in issue of stock. A stockholder cannot set up infirmities in the issue of stock which corporation had power to create as means of avoiding stockholder's liability. 4. Banks and banking 47(1)-Corporation's noncompliance with statute in issuance of stock held not to relieve stockholders, who had accepted stock and dividends thereon, from liability (G. L. c. 172, § 24; c. 156, 41, c. 172, § 18). For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes accepting and cashing dividend checks were subject to stockholders' liability under statute, though stock was issued without their consent and request (G. L. c. 172, § 24). defendant stockholders who had accepted stock, 12. Banks and banking 47(1)—Stockholders and dividends thereon could not escape liability on ground that stock had been issued without a proper compliance with St. 1903, c. 437, § 40 (G. L. c. 156, § 41), assuming issuance of stock was authorized by St. 1916, c. 37 (G. L. c. 172, § 18). 5. Corporations 102-Corporation has no implied power to change amount of capital prescribed in its charter. A corporation has no implied power to change the amount of its capital as prescribed in its charter, and all attempts to do so are void. 6. Corporations 194-Special stockholders' meetings, called without notice to stockholders of object thereof, and votes thereat, held illegal under statute. (G. L. c. 156, § 41). Special stockholders' meetings, called without notice by mail or otherwise to stockholders of the object thereof, and votes cast at such meetings by less than majority of stock, held illegal, under St. 1903, c. 437, § 40 (G. L. c. 156, § 41). 7. Banks and banking 313-Infant stockholders of trust company held not subject to stockholders' liability (G. L. c. 172, § 24). Stockholders of trust company, who had not yet attained their majority, held not subject to stockholders' liability, under G. L. c. 172, § 24. 8. Infants 30(1)-Infant stockholder of trust company, receiving dividends after attaining his majority, held subject to stockholder's liability (G. L. c. 172, § 24). Stockholder of trust company, who received stock as a gift from his father while yet a minor, but who received dividends after attaining majority, held subject to stockholder's liability, under G. L. c. 172, § 24. 9. Banks and banking 313—Holders of stock of trust company as trustees for their minor children held subject to stockholders' liability (G. L. c. 172, § 24). Stockholders of trust company holding as trustees for their minor children held legal owners of stock and subject to stockholders' liability, under G. L. c. 172, § 24. 10. Banks and banking 313-Stockholders accepting stock and giving note for accommodation of trust company held subject to stockholders' liability, though certificates were not delivered or were canceled on closing day (G. L. c. 172, § 24). Stockholders of trust company, who accepted stock to accommodate bank at request of its treasurer and delivered their several promissory notes to bank, held subject to stockholders' liability, under G. L. c. 172, § 24, though none of them regarded the transaction as a sale, and though certificates of some were either not delivered or canceled on closing day. 11. Banks and banking 47 (3)-Cancellation of certificates on day of bank's closing held not to relieve stockholders from liability under statute (G. L. c. 172, § 24). Cancellation of stock certificates issued in consideration of stockholders' notes on day of bank's closing held too late to relieve stockholders from liability, under G. L. c. 172, § 24. That stock was issued to stockholders without their request and permitted to stand in their names after they had informed treasurer they did not desire to purchase held not to re lieve stockholders from liability under G. L. c. 172, § 24, where they accepted and cashed dividend checks. 13. Banks and banking 48(1)-Real owner of stock lent to another, who had certificate issued in his name, held subject to stockholders' liability under statute (G. L. c. 172, § 24). Stockholder lending certificate to another, who exchanged it for one in his own name, held the real though not the registered owner, and subject to stockholders' liability, under G. L. c. 172, § 24. 309-Ex 14. Executors and administrators ecutrix of stockholder's estate held subject to stockholder's liability to extent of estate, undiminished by voluntary distribution (G. L. c. 172, § 24). Executrix of stockholder's estate held subject to stockholder's liability, under G. L. c. 172, § 24, to the extent of the estate which came to her as executrix, undiminished by any voluntary distribution of it. 15. Corporations 243 (1)—Leather company held subject to stockholders' liability as against claim that purchase of stock was ultra vires (G. L. c. 172, § 24). Leather company, specifically authorized by its charter to "subscribe for, purchase, invest in shares of capital stock," held not entitled to escape stockholders' liability, under G. L. c. 172, § 24, on ground that its purchase of trust company's stock was ultra vires. 16. Banks and banking 313-Stockholder of trust company held subject to statutory liability, notwithstanding attempted alienation of stock without compliance with by-laws of company (G. L. c. 172, § 24). stockholders' liability, under G. L. c. 172, § 24, Stockholder in trust company held subject to notwithstanding attempted sale and transfer of its stock without compliance with by-laws of trust company. 17. Banks and banking 315(2)—Trust company held to have ratified purchase of stock of another trust company by its president, and subject to statutory liability (G. L. c. 172, 24). Trust company, accepting dividends on stock of another trust company, purchased by its president without consultation with board of directors, held to have ratified purchase, and subject to stockholders' liability, under G. L. c. 172, § 24. 18. Banks and banking 315(2)-President's purchase of stock for trust company without consultation with directors held voidable only. Purchase of stock for trust company by its president without consultation with its board of directors held not illegal but voidable, and subject to ratification and adoption by corporation. |