admitted to practice in the state, he did not | And the question more precisely stated is make a nomination in open court, so as to render the services legal, in case one of the persons was in fact not so admitted.

and a member of the bar of that state, but whether, being a citizen of New Hampshire not of this, he is included in the phrase "whoever, not being admitted to practice as an attorney at law in accordance with the

3. TRIAL (§ 247*) — WITHDRAWAL OF IN-provisions of this chapter."

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

has been the practice of our courts to permit | least as the immediate actors are concerned an attorney from a sister state to appear in a case here as an attorney and, either alone or assisted, to conduct a case. There is no doubt of this practice here, and we have no doubt that in doing this our courts are following a practice generally prevalent throughout the states of this country. But this privflege is not claimed by the attorney nor granted by the court as a matter of right, but it is requested and granted simply as an act of curtesy. And the prohibition contained in the section in question is in no way inconsistent with the practice. See Ames v. Gilman, 10 Metc. 239; In re Mosness, 39 Wis. 509, 20 Am. Rep. 55.

this section is not applicable where the party to the litigation simply selects a person whom he believes and has reason to believe to be a duly admitted attorney at law, but simply where he supposes that the person whom he nominates is so far as respects the suit in hand invested with the powers and rights, and subjected to the responsibilities, of a regularly admitted attorney solely by reason of the nomination. The party making the nomination is fairly entitled to know that the person to be nominated is not an attorney at law in this state, and cannot act as such except by the authority conferred in the manner provided by the statute. We see no error in the other instructions upon this branch of the case.

[3] Although the presiding justice at first charged the jury that the defense of illegality was applicable to the claim for disbursements as well as to that for services, yet subsequently, after a colloquy between the court and counsel, he said to the jury that it was agreed by counsel for the defendant that the defense of illegality did not apply to the reasonable sum for cash dis

R. L. c. 165, §§ 41, 43, have been amended by St. 1904, c. 355, but the amendments in no way strengthen the case of the plaintiffs. Whether, as contended by the plaintiffs, these amendments are to be construed as changing in no way the law as to nonresidents of the state, or whether, as also contended by the plaintiffs, if they do permit the admission of nonresidents they are unconstitutional, we have not found it necessary to consider. In any event the prohibition contained in R. L. c. 165, § 45, remains as be-bursements; and as to this matter the case fore, and applies to all persons not lawfully admitted to be attorneys or counselors at law in our courts. It follows that the junior member of this firm was practicing law illegally in this state. For his services thus illegally rendered there can be no recovery by him either alone or jointly with the other member of the firm. Ames v. Gilman, 10 Metc. 239. The instructions of the court upon this point were correct.

[2] There was evidence, although upon this point the evidence was conflicting, that at least in one of the cases wherein the plaintiffs acted as counsel for the defendant she in reply to a question put by the then presiding justice as to whether she had counsel replied, "Yes, J. M. Browne & Son," and it is contended that at least as to that case they had the right to go to the jury under R. L. c. 165, § 47, which provides that a person may act as attorney for a person “if authorized by personal nomination in open court." Upon this branch of the case the court instructed the jury as follows: "If a client believing two persons in partnership to be both attorneys at law admitted to practice in this commonwealth engages them as such to represent her in court. and when asked in court who are her attorneys, names them both, still believing them both to be admitted to practice in this commonwealth, this would not be a nomination in open court such as would be required to render it legal for one of said persons was in fact not so admitted and had no written authorization to conduct the case as the attorney for said client."

This instruction was correct. So far at

was finally sent to the jury with instructions to find for the plaintiffs for any such disbursements if any there were.

It is suggested by the plaintiffs that there was no sufficient withdrawal of the first instruction and that the justice did not sufficiently impress his last instruction upon the minds of the jury. But the matter was simple and it does not appear that the plaintiffs have any just ground of complaint. Exceptions overruled.

for error of law apparent on the record. Appeal from Superior Court, Suffolk CounPlainly no error of law is apparent on this ty; J. B. Richardson, Judge. record. It follows that the sentence stands and is to be executed as if no appeal had been taken.

Judgment affirmed; sentence to stand

(211 Mass. 382)

SOLARI v. ITALIAN SOCIETY OF CO-
LUMBUS.
(Supreme Judicial Court of Massachusetts.
Suffolk. March 1, 1912.)

Action by Micheli Solari against the Italian Society of Columbus. From a judgment for defendant, plaintiff appeals. Affirmed. Charles J. Martell, for appellant. Samuel L. Bailen and Frank Leveroni, for appellee. HAMMOND, J. [1] Section 18 of the defendant's constitution reads follows: "Within a year from their admission all members must be supplied with the society uniform (like the existing pattern), other

as

1. BENEFICIAL ASSOCIATIONS (§ 5*)-CONSTI-wise they shall lose all the rights to benefits

TUTIONAL PROVISIONS-VALIDITY.

A society of Italians was formed to promote the physical, moral, and intellectual wellbeing of its members and to secure for them the benefits of American citizenship. The constitution required the presence of pallbearers at funerals in full uniform, and also the wearing of the uniform by all members in public parades of the society and at the annual feast given by the society in commemoration of its foundation and of the discovery of America. Held, that a provision of the constitution that all members must be supplied with the society uniform within one year after their admission, otherwise they were to receive no benefits and their membership might be canceled, was not an unreasonable requirement, as be: ing outside the purposes of the society; it not appearing that the cost of the uniform was immoderate.

and may be canceled from membership." And the question is whether the plaintiff having persistently refused to provide himself with the required uniform is thereby deprived of his right to benefits.

It is contended by the plaintiff that this section is not fairly within the purposes for which the society was incorporated, and moreover that it is unreasonable. In considering these objections it is to be noted that this is not merely an organization for the physical relief of disabled members. is of much wider scope. It is a society composed of people of Italian birth or ancestry, persons the greater part of whom are in a strange land, but who desire to assist each

It

[Ed. Note.-For other cases, see Beneficial other mutually in their new environment. Associations, Dec. Dig. § 5.*]

The preamble speaks of "the purpose of pro

2. BENEFICIAL ASSOCIATIONS (§ 5*)-CONSTI-viding mutual assistance and relief, moral TUTIONAL REQUIREMENTS REASONABLE

NESS.

It cannot be said as matter of law that the penalty imposed for failure to procure a uniform was too severe, and hence unreasonable and invalid.

[Ed. Note.-For other cases, see Beneficial Associations, Dec. Dig. § 5.*]

3. BENEFICIAL ASSOCIATIONS (§ 18*)-BENE

FITS-FORFEITURE-WAIVER.

and intellectual education, in order to obtain the same rights and consideration which other colonies [colonists?] enjoy, and share with them the influence which they exercise on the destiny of this country"; and the first section of the constitution recites that

the society is established "with the purpose of promoting among members noble sentiA member of a beneficial association, aft-ments, mutual assistance and relief, and ober receiving warning that he would not be en-taining the moral and intellectual improvetitled to benefits unless he complied with a

provision of the society's constitution requirment of the associated." In a word it is a ing all members to procure a certain uniform, society whose members desire as strangers absolutely refused to obtain the uniform. Aft- in a strange land to assist each other physer he was injured he made application for ically, morally and intellectually to obtain sick benefits, and appeared before a meeting of the directors, and, on being asked whether the advantages either by way of citizenship he would forthwith comply with the require- or otherwise of the land to which they have ment for a uniform, answered in the negative. Held, that his failure and refusal to comply with the requirement before his injury was not waived.

[Ed. Note.-For other cases, see Beneficial Associations, Dec. Dig. § 18.*]

come.

And they desire to do things decently and in order. They have a love of show. The constitution requires that (section 32) every six months twelve pallbearers shall be nom

4. BENEFICIAL ASSOCIATIONS (§ 18*)-Ex-inated to represent the society at the funeral PULSION OF MEMBERS - VIOLATION OF

RULES.

A provision of the constitution of an Italian society that all members must be supplied with the society's uniform within a year from their admission, otherwise they would not be entitled to benefits and their membership might be canceled, operated to deprive a member failing to obtain a uniform of a right to benefits, though he was not actually expelled as a member by a vote of the directors of the society.

[Ed. Note.-For other cases, see Beneficial Associations, Dec. Dig. § 18.*]

of members dying in Boston, and that they shall be in full uniform when placing the "coffin in the hearse" and while marching in the funeral procession; that the uniform shall be worn (section 80) by all members who take part in the annual "feast" of the society held in commemoration of its foundation and of the discovery of America, and (section 83) by all members who take part in any public parade of the society. It does not appear nor is it contended by the plain

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Judgment affirmed.

tiff that this costume is of immoderate cost. [is expelled. And as if to make it more cerIt fairly may be assumed to be of moderate tain that a failure to get the uniform did of cost and seemly in appearance. The found- itself suspend the right to benefits it is proers of this society evidently were convinced vided (section 85) that "they shall be punthat whenever its representatives appeared ished with suspension of the sick benefit to officiate as such at a funeral, or in a pub-* who shall not have the society's lic parade, their appearance would be more uniform." This of itself would seem concluimpressive if all were clothed in the same sive that the right to benefits even if lost ununiform. Badges, insignia and uniforms der section 18 is suspended so long as the within reasonable limits may tend to strength-member shall not have the society's uniform en discipline and common ties and to impress although he may still remain a member of upon the mind a greater and more realizing the society. sense of that of which they are emblematical. The substance of show, or, in other words, the power of show, is not to be disregarded by him who desires to impress upon the members of an organization moral and religious truths. This power is seen in the effect of his country's flag upon the soldier or of the cross upon the Christian worshipper. And even where the members alone meet, as in the case of their annual feast, uniformity of dress tends to prevent unseemly or ambitious attempts to outdo each other in attire and tends to increase the esprit du corps. It cannot be said that the requirement that the members should provide themselves with uniforms is outside the general purposes for which the defendant was incorporated, or that it was unreasonable. It was therefore the duty of the plaintiff to comply with the requirement.

[2] It is however further contended by the plaintiff that, even if this be so, nevertheless the penalty for noncompliance is too great. But that position is untenable. It cannot be said as matter of law that the penalty is too severe. It follows that the section stands as a valid part of the constitution.

[3] The agreed facts show that after repeated requests to get a costume and repeated warnings of the consequences of a refusal, the plaintiff finally absolutely refused, "whereupon it was determined that he shall have no benefits," and all this before his injury. It is true that subsequent to the injury he appeared before a meeting of the directors on the matter of his claim for benefits, at which meeting he was asked whether he would forthwith comply with the requirement for the uniform, and answered that he never would do so, whereupon it was voted that he be allowed no benefits. But he had lost his right before, and this action of the directors is not to be taken as a waiver of the right to insist upon that fact.

[4] Moreover it may well be doubted whether the right to benefits had not been lost by the very provisions of the constitution without any vote of the directors or of the society. It will be observed that in case of noncompliance section 18 distinguishes between the loss of benefits and the loss of membership. The recalcitrant member shall lose his benefits, but yet will retain his membership unless by some subsequent action he |

(211 Mass. 211)

OLD SOUTH ASS'N v. CODMAN et al. (Supreme Judicial Court of Massachusetts. Suffolk. March 1, 1912.)

1. APPEAL AND ERROR (§ 1009*)-FINDINGSCONCLUSIVENESS.

A finding in equity will not be disturbed, where there is evidence supporting it. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*]

2. WORDS AND PHRASES-"PREMISES."

The word "premises" has different meanings, dependent on its connection and the object to which it is applied, and it oftentimes describes the fee of land; but it may signify something less extensive where the context requires it, and to determine the meaning of the word used in an instrument the court must bear in mind the subject about which the parties were contracting and their general purpose.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 6, pp. 5509-5513; vol. 8, p. 7761.]

3. EASEMENTS (§ 33*)-CONSTRUCTION-EASEMENT OF LIGHT AND AIR.

to the adjacent owner of an office building an Complainant, owning open land, conveyed easement of light and air for a stipulated rental, payable without reduction on account of any future taking of the premises by the city of Boston; but if the whole of the premises over which the easement extended, or if the major part thereof, was taken by the city, there should be a reduction. The conveyance was made while St. 1902, c. 534, authorizing a subway, was in force, and the premises and office building, consisting of stores on the street floor, were in the congested part of the city. The total area of the land was 2,156 square feet. The city as a result of a taking acquired exclusive surface rights in 457 square feet, and there remained to complainant exclusive surface rights in 471 square feet, and over the remaining surface a right of way as foot passage was taken. The right taken by the city did not extend more than 10 feet above the surface. Held, that since the parties contracted with reference to easements of light and air over valuable land, which might be used face of the earth, the surface area was not a profitably many feet above and below the surmeasure by which to determine whether the whole or major part of the premises was taken, and the facts did not show the taking of a major part of the premises, and there could be no reduction in the rent.

[Ed. Note. For other cases, see Easements, Dec. Dig. § 33.*]