when the facts upon which the plaintiff would was his agent at the time of the collision; be required to slow down or sound his horn are and whether the collision might have been known to him. 3. There must be knowledge of a curve, or a thickly settled district or an inter- avoided if he had had the car under control. secting street, on the part of the driver of an This disposes of the defendant's second, third automobile, to make it incumbent upon him to and fourth requests. The fifth and thirslow down or to blow his horn in order to be in teenth are not relied upon. As to the first, obedience to the statute. He does not violate the statute if he does not know these facts. 5. We think it was for the jury to say whether The plaintiff, Porter L. Newton, cannot be held the illegal conduct of the plaintiff in violatresponsible for not blowing his horn or for a ing the statute was one of the direct causes rate of speed which under other circumstances of the collision. might be in excess of the reasonable and proper rate of speed, unless he had knowledge that he was approaching such intersection of Cross street with Pleasant street." [1] We do not think that the judge modified the effect of these rulings when, in dealing with the plaintiff's due care, he charged the jury: "He was coming up a different street; his knowledge of the region was less than that of Thomas McSweeney; but the general propositions are the same, that he must use the care of a reasonably prudent man operating an automobile under the circumstances as they were known or ought to have been known to him." And while the defendant's fourth request also was given, it was not given to the jury as a modification of the others. [2] We are of opinion that the trial judge was in error in the construction placed by him upon the statute. This penal statute was intended for the protection of persons lawfully using the public highways. The requirements that one operating an automobile when approaching an intersecting street shall warn the travellers thereon of his ap Exceptions sustained. (225 Mass. 451) SHAPIRA v. WALKER. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 5, 1917.) 1. COURTS 190(6)—REPORT BY MUNICIPAL COURT-AMENDMENT. Under the authority given to the appellate division to recommit any report to the single judge for amendment at any time, by Boston Municipal Court Rule 38, adopted under authority to make rules conferred upon that court by St. 1912, c. 649, § 8, an amendment by the judge, consisting of a memorandum which is in reality a finding of the facts, is sufficient to correct omissions in the original report, since a finding of facts, while not ordinarily a part of the record by itself, may be properly embodied in a report or bill of exceptions and then become part of the record. [Ed. Note.-For other cases, see Courts, Dec. Dig. 190(6).] 2. SHERIFFS AND CONSTABLES 123-LIA BILITY OF OFFICER-ATTACHMENT OF MORT- which an attachment was made renders the at- The failure to enter in court a writ on [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. 88 230-235; Dec. Dig. 123.] 3. SHERIFFS AND CONSTABLES 123-LIABILITY OF OFFICER-SUBSEQUENT ATTACHMENT. proach, and shall proceed at such a rate of speed as presumably will enable him fully to control his car, and thereby avoid collision, are explicit and absolute. Com. v. N. Y. C. & H. R. R. R., 202 Mass. 394, 88 N. E. 764. Oftentimes the statutory requirements would be rendered ineffective if a person could be excused from complying with them on the ground that he did not observe in broad daylight that there was an intersecting street Property in the possession of an attaching in front of him. We find nothing in the officer under a previous attachment is not in the possession of the mortgagor, so that it may language or the purpose of the statute to be attached as if unincumbered and the mortwarrant reading into its express terms the gagee summoned in the same action, under Rev. modification which was read into it at the Laws, c. 167, § 74, and therefore a subsequent trial. If the admitted failure of the plain-is joined does not justify the officer in making attachment in an action in which the mortgagee tiff to sound his horn as he approached the the prior attachment which was not entered intersection of Cross and Pleasant streets, or in court. a violation of the statutory requirement as to speed, directly contributed to the collision in which he was injured, there was such contributory negligence on his part as would preclude him from recovering, even though the defendant also were negligent. McCarthy v. Morse, 197 Mass. 332, 83 N. E. 1109; Dudley v. Northampton St. Ry., 202 Mass. 443, 446, 89 N. E. 25; Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404; Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876. As this conclusion renders it necessary to sustain the defendant's exceptions referred to, the others may be briefly disposed of. On the evidence it was for the jury to say whether the person operating the defendant's car [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. §§ 230-235; Dec. Dig. mm123.] Appeal from Municipal Court of Boston, Appellate Division. Action in the municipal court of Boston by Bennie Shapira against Henry L. Walker. The report of the judge, after finding for the plaintiff, to the appellate division, was dismissed, and defendant appeals. missing report affirmed. Order dis W. I. Schell, of Boston, for appellant. H. E. Burroughs, of Boston, for appellee. RUGG, C. J. [1] The first report of the judge of the municipal court of the city of [3] The attachment upon the second writ affords no justification to the defendant. The goods were not then in the possession of the mortgagor, but in the possession of the defendant under his first attachment. It is only "personal property which is subject to a mortgage and is in the possession of the mortgagor" which "may be attached as if unincumbered and the mortgagee summoned in the same action the trustee of the mortgagor." 167, § 74. The property in question did not conform to that condition. Porter v. Warren, 119 Mass. 535; Drysdale v. Wax, 175 Mass. 144, 55 N. E. 804; Jenness v. Shrieves, 188 Mass. 70, 74 N. E. 312. Order dismissing report affirmed. be as R. L. C. (225 Mass. 487) NASH v. WHITCOMB. (Supreme Judicial Court of Massachusetts. Norfolk. Jan. 5, 1917.) 1. COURTS 202(5) — PROBATE PROcedure — RIGHT TO APPEAL. Boston, who heard the case, was manifestly incomplete. It was recommitted to him by the appellate division. He thereupon filed a supplementary report, incorporating a socalled "memorandum of decision" which was in reality a finding of the facts, together with his decision, and referring to his first report. The record as a whole now presents an adequate report. All this is in conformity to law. The municipal court of the city of Boston has power to make rules. St. 1912, c. 649, § 8. Its rule 38 authorizes the appellate division to recommit any report to a single judge for amendment at any time. Although a finding of facts by a trial court, | standing by itself, is not ordinarily a part of the record, it may be embodied rightly in a report or bill of exceptions and then become a part of the record. Cressey v. Cressey, 213 Mass. 191, 192, 99 N. E. 972. See Swan v. Justices of the Superior Court, 222 Mass. 542, 545, 546, 111 N. E. 386. There is no fatal irregularity in any of the steps in procedure and practice in the case at bar. Cohen v. Berkowitz, 215 Mass. 68, 102 N. E. 124; Spear v. Hardon, 215 Mass. 89, 102 N. E. 126. that if a person aggrieved omits, without default Under Rev. Laws, c. 162, § 13, providing The plaintiff is a mortgagee of personal on his part, to prosecute appeal from an order in property owned by one Berman. The defend- probate and justice requires revision, a dilaant is a deputy sheriff who, on June 17, tory appeal may be prosecuted, before being allowed to prosecute such an appeal the petition1914, attached this property on a writ run- er must prove affirmatively that her failure to ning against Berman in favor of one Yanof- appeal in time was without default upon her sky. On the following day the present plain-part, and that justice requires a revision of the tiff notified the present defendant of his mortgage and made sufficient demand upon him for the payment of the amount due on his mortgage. The defendant did not pay, nor offer to pay, the amount demanded, nor return the goods. He retained possession through his keeper of the goods until June 20th, when he made a new attachment of the same goods by virtue of a new writ for the same cause of action, running against Berman and in favor of Yanofsky, in which Bennie Shapira, the present plaintiff was named as "mortgagee trustee." This writ was duly served upon the mortgagee as trustee. This writ appears to have been entered in court and to be still pending. There was no evidence tending to show that the writ on which the first attachment was made was entered in court, but there was evidence that it was not so entered and that Berman, therein named as defendant, entered his summons in court and procured an execution for costs. There was a general finding in favor of the plaintiff, which necessarily included a finding that the mortgage was valid. [2] The failure to enter the writ on which the first attachment was made, in the absence of waiver, rendered the attaching officer a trespasser ab initio as to the mortgagee of the goods attached, who was no party to that action. Russ v. Butterfield, 6 Cush. 242; Hanly v. Davis, 166 Mass. 1, 43 N. E. 523; Mills v. Sullivan, 222 Mass. 587, 111 N. E. 605. case. Dig. § 486; Dec. Dig. 2. COURTS 202(5).] 202(5) — PROBATE PROCEDURE RIGHT TO APPEAL. Such section vests a broad discretion in the court, and where public notice on the petition for allowance of the will and the appointment of and mailed, but the names and addresses of the an administratrix was published in a newspaper heirs at law and next of kin were not set out and none of them ever received any notice or knowledge of the petition or decree, the court to allow the appeal. cannot say that it was an abuse of discretion [Ed. Note.-For other cases, see Courts, Cent. Dig. § 486; Dec. Dig. 202(5).] 3. COURTS 202(4) — Probate Procedure CORRECTION OF DECREE. heir at law is not by application to the probate In such case, the remedy of an aggrieved court to vacate the decree. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 485; Dec. Dig. 202(4).] 4. EXECUTORS AND ADMINISTRATORS -REMOVAL-INDEMNITY. 20(10) be removed on dilatory appeal from order of ap- Dec. Appeal from Supreme Judicial Court, Norfolk County; Edward P. Pierce, Judge. Petition by Henrietta C. Nash for leave to enter appeal from decree in probate admitting to probate the will of Stephen H. Price, deceased, and issuing letters of administra For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion with the will annexed to Carrie T. Whit-that the remedy of the petitioner is by an comb. From a final decree allowing the ap- application to the probate court to vacate the peal, respondent appeals. Affirmed. Arthur V. Harper, of Boston, for appellant. Prescott Keyes, of Boston, for appellee. CROSBY, J. The respondent, who was a creditor of the estate of Stephen H. Price, was appointed administratrix with the will annexed of his estate, by decree of the pro bate court on February 24, 1915. The testator devised and bequeathed all his estate to his wife, Mary A. Price, whom he named as executrix. He survived his wife, and deceased on December 15, 1914, leaving as his only heirs at law and next of kin, a brother, two sisters (one of whom is the petitioner), and two nieces. This is a petition for leave to enter an appeal from the decree of the probate court admitting the will to probate and the issuing of letters of administration with the will annexed to the respondent. "Public notice upon the petition" for the allowance of the will and for the appointment of the respondent as administratrix was published in a newspaper and mailed in conformity with R. L. c. 137, § 1, cl. 3, but the names and addresses of the heirs at law and next of kin were not set out in the petition and no notice thereof was received by any of them, nor did they receive knowledge of such petition and of the decree thereon until April 9, 1915. This petition for leave to enter and prosecute an appeal from the decree of the probate court in accordance with R. L. c. 162, § 13, was filed April 27, 1915. The single justice, before whom the petition was heard, made a finding of facts and ordered a final decree allowing the appeal to be entered, from which decree the respondent has appealed. The petitioner, as an heir at law and next of kin of the deceased, is a person aggrieved by the decree. It is plain that if she had known of the petition and had seasonably objected to its allowance, and notwithstanding such objection it had been granted and a decree thereon entered, she could have appealed. R. L. c. 162, § 9. [1, 2] That the petitioner may be entitled to enter an appeal, she is required to prove affirmatively that her failure to claim an appeal was without default on her part, and that justice requires a revision of the case. R. L. c. 162, § 13. As a final decree has been ordered by the single justice allowing the entry of the appeal, it must be assumed that he found the failure to claim an appeal from the decree was without default on the part of the petitioner and that justice required a revision of the case. The statute (section 13) vests a broad discretion in the court, and we cannot say that it was not properly exercised in this case. Capen v. Skinner, 139 Mass. 190, 29 N. E. 651. decree. The case of Clarke v. Andover, 207 Mass. 91, 92 N. E. 1013, is not an authority for that proposition. In that case there was an appeal from a decree of the probate court appointing a trustee in place of a former trustee. It appeared that the appointment was made without any notice actual or construcstatute applicable to such cases provides that tive to the parties interested, although the notice of proceedings for the appointment shall be given "to all persons interested." R. L. c. 147, § 5. Accordingly it was held that "the decree of appointment was made without authority, and the petition to vacate it should have been granted," and that the irregularity must be corrected in the probate court since St. 1891, c. 415, § 4 (R. L. c. 162, 2). The case of Clarke v. Andover, supra, in this connection merely decided that since the enactment of St. 1891, c. 415, § 4-which made probate courts, courts of superior and general jurisdiction-when a decree of appointment was made by the court without authority, such irregular appointment must be corrected by application to that court to set aside such decree. The decision in that case does not affect or impair the power of this court, as the supreme court of probate, to correct on appeal an erroneous decree of the probate court. [4] We are of opinion that the respondent should not be removed as administratrix unless she is indemnified from liability on account of acts properly performed by her as such administratrix before the date of the filing of the petition to enter an appeal. The final decree must be affirmed with costs. So ordered. (225 Mass. 422) GARBER v. GREENBERG. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1917.) 1. EXECUTORS AND ADMINISTRATORS 441ACTIONS "GENERAL APPEARANCE"-EFFECT. Where administrators of a deceased defendant filed a paper reciting that the defendant had died, that they were the administrators, and prayed to be permitted to defend the action, there was, in substance, a "general appearance" under Rev. Laws, c. 171, § 5, providing for prosecution or defending of actions by administrators, and while they could waive privileges, they could not evade obligations founded on their ap pearance. For other definitions, see Words and Phrases, Where such administrators subsequently filed a motion, attempting to waive everything ex[3] We cannot agree with the respondent cept suggestion of death, they did not wipe out the effect of their appearance, though the motion was allowed by the court. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1792-1797; Dec. Dig. 441.] 3. APPEARANCE CEEDINGS-WAIVER. Cmm 27 PRELIMINARY PROA party cannot waive the effect of his general appearance, once entered in court, to the harm of his adversary. [Ed. Note.-For other cases, see Appearance, Cent. Dig. §§ 160-163; Dec. Dig. 27.] Report from Superior Court, Suffolk County; William Cushing Wait, Judge. Action by Michael Garber against Louis Greenberg, trustee. On suggestion of defendant's death, William Hirsh and Bertha G. Hirsche, administrators of his estate, were permitted to defend the action. Case reported on order denying default. Order reversed. A. Goldberg, of Boston, and E. J. Coughlin, of Lynn, for plaintiff. its express terms an abnegation of that right and a relinquishment of all other matters set forth in the paper previously filed. But it did not deprive the plaintiff of the advantage of their having appeared generally. A party cannot waive to the harm of his adversary the effect of his general appearance once entered in court. It would be gross injustice to permit administrators of the estate of a deceased defendant to appear in court voluntarily and then, after the expiration of the short statute of limitations, when a plaintiff would be powerless to cite them in to defend the case, to allow them to escape all responsibility. The plaintiff's motion to default the defendants because of their withdrawal ought to have been granted. denial was error. Its Order denying motion for default reversed. (225 Mass. 458) LAIGHTON et al. v. BROOKLINE TRUST CO. RUGG, C. J. [1-3] This is an action of tort for personal injuries. The defendant appeared and filled an answer. Thereafter, on January 14, 1913, the following was filed 1. in court without objection: "Now comes William Hirsh and Bertha G. Hirsche and say that on October 23rd, last past, the defendant, Louis Greenberg, died, and that they were duly appointed administrators of the estate of the defendant, and pray that they be permitted to defend said action." (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 4, 1917.) BANKS AND BANKING 119-DEPOSITS RELATION BETWEEN BANK AND DEPOSITOR. Funds on general deposit in a bank are its absolute property, the relation between the parties being that of debtor and creditor. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 289-292; Dec. Dig. 119.] 2. BANKS AND BANKING 134(1)—DEPOSITS -APPLICATION TOWARD DEBTS DUE BANK. A bank is ordinarily entitled to apply the balance on an account due the depositor to the satisfaction of a debt due from him to the bank. Banking, Cent. Dig. § 353; Dec. Dig. [Ed. Note.-For other cases, see Banks and 134(1).] 3. BANKS AND BANKING 134(1) DEPOSITS-APPLICATION TOWARD DEBT DUE BANK -INSOLVENCY. Where a depositor died leaving an insolvent estate, the bank can apply the balance of the deposit as it existed at the depositor's death toward debts due from him to the bank. [Ed. Note.-For other cases, see Banks and Banking, Cent, Dig. §§ 353, 373; Dec. Dig. 134(1).] 4. BANKS AND BANKING 134(1)-DEPOSITS -APPLICATION TO DEBTS DUE BANK-DEPOSITS BY EXECUTOR. This was in substance a general appearance by the administrators of the estate of the defendant. R. L. c. 171, § 5. There was no occasion in view of that appearance for the plaintiff to make a motion under the latter part of said section 5 to require the court to cite the administrators to appear and defend the action, because they already were in court and the estate was represented. The purpose of that section is that, when a sole defendant to a cause of action dies, his administrator or executor may appear, or, if he does not, he may be summoned. Colt v. Learned, 133 Mass. 409, 411. But both a voluntary appearance and a summons are not required. Either is enough. After the administrators were once in court as representatives of the estate, they might waive Rev. Laws, c. 174, § 6, permitting a defendtheir privileges, but they could not evade ant to set off claims due from a testator when their obligations founded on their appear-sued by his executor, does not authorize a bank to set off debts due it from the testator against ance. Their so called "waiver of motion," a claim for funds of the estate deposited with whereby they undertook to "waive" every-it by the executor. thing in the paper first filed except the suggestion of death of the defendant, did not wipe out the effect of their appearance. Even though allowed by the court ex parte, it was not equivalent to an effacement of the general appearance. That still remained Action by William B. Laighton and others, with all the obligations and liabilities flow-executors, against the Brookline Trust Coming therefrom. So far as concerns this case, pany, upon an agreed statement of facts. the administrators of the deceased defend- Ruling for plaintiffs, and case reported for ant had the option of giving up their right to determination by the Supreme Judicial Court. a defense. The "waiver of motion" was by Entry of judgment for plaintiffs ordered. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 353; Dec. Dig. 134(1).] Report from Superior Court, Middlesex County; Richard W. Irwin, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes CROSBY, J. The plaintiffs are executors of the estate of James A. Laighton, who deceased on August 25, 1912. Upon that date he had a deposit with the defendant of $1,372.90, which deposit, after deducting $18.40 interest due the defendant, amounted to $1,354.50. At that time the testator owed the defendant four promissory notes, none of which were due or payable. John L. Harvey and Wm. J. Bannan, both due to or from the testator or intestate, and of Waltham, for plaintiffs. Wm. D. Turner the remaining question is, whether the and Jas. D. Colt, both of Boston, for de- amounts deposited by the plaintiffs after the fendant. testator's decease can also be set off in payment of the defendant's claim. The statute is doubtless remedial in its nature and is to be given a broad and liberal construction. Still we are of opinion that it ought not to be so interpreted as to allow a set-off of that part of the account which has been deposited by the plaintiffs of moneys belonging to the estate. We think that the right to set-off is limited to the balance of the deposit as it existed at the time of the testator's death. It could not successfully be contended that if, upon the appointment of the plaintiffs as executors, they had opened a new account and made deposits therein, such account could have been set off against the defendant's demand. The funds of the estate deposited by the plaintiffs did not belong to the account standing in the name of the depositor, nor could they properly be credited to his account after his decease. Accordingly they are to be treated as if deposited in the name of the plaintiffs in their representative capacity. The deposits made by the plaintiffs stood upon an entirely different footing than did that part of the account which existed at the date of the testator's death. As to the account as it then stood, the right of the defendant to set off was unimpaired notwithstanding his death. The plaintiffs, upon their appointment, instead of taking over the account, or opening a new account, as properly they should have done, made from time to time deposits to this account of funds belonging to the estate. On or about October 2, 1913, the plaintiffs wrote the defendant that the estate might prove insolvent, and on October 11th the defendant charged the amount of the notes with interest due thereon against the account, and notified the plaintiffs of its action by letter dated October 16, 1913. The estate is insolvent and has been so represented in the probate court by the executors. The question is, whether the defendant can apply the deposit to payment of the notes due it, and, if so, to what amount? The plaintiffs contend that, as the estate is insolvent, no part of the account can be applied to payment of the notes. It is the contention of the defendant that it is entitled to apply so much of the account as is necessary to pay the notes, and that it is liable to the plaintiffs in this action only for the balance of the account. [1, 2] It is well settled that funds on general deposit in a bank are the absolute property of the bank, that the relation between the parties is that of debtor and creditor, and that the bank is entitled to apply the balance of the account due the depositor to the satisfaction of the debt due the bank. National Mahaiwie Bank v. Peck, 127 Mass. 298, 301, 34 Am. Rep. 368. To We are of opinion that the judge of the superior court correctly rule that the defendant's right to set-off was limited to the amount of the deposit at the date of the testator's death, and could not include the amounts added thereto by the executors. hold otherwise would permit the defendant to obtain an inequitable preference which would be unjust to other creditors. It follows that judgment should be entered for the plaintiffs in the sum of $1,907.32, in accordance with the finding made by the judge, with interest. So ordered. V. BRUNO. (226 Mass. 461) [3] It is equally well settled that ordina- TREMONT THEATER AMUSEMENT CO. rily a bank has a right to apply a deposit toward the payment of its claims against the depositor although the latter or his estate is (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1917.) insolvent. Furber v. Dane, 203 Mass. 108, 117, 89 N. E. 227; Wiley v. Bunker Hill Nat. Bank, 183 Mass. 495, 497, 67 N. E. 655; Clark v. Northampton Nat. Bank, 160 Mass. 26, 35 N. E. 108; Boyden v. Mass. Life Ins. Co., 153 Mass. 544, 27 N. E. 669; Demmon v. Boylston Bank, 5 Cush. 194. We are of opinion that the defendant is entitled to apply the balance of the deposit as it existed at the date of the death of the testator. [4] In an action by or against an executor or administrator, the statute (R. L. c. 174, § 6) permits a defendant to set off a claim 1. LANDLORD AND TENANT 124(2)—PREM other tenants is a common stairway in the posA stairway used by a second floor lessee and session and control of the lessor. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 438; Dec. Dig. 124(2).] 2. LANDLORD AND TENANT 124 (2)—PREMISES-STAIRWAY. A second floor lessee has a right, in the na ture of an easement appurtenant to the premises, to use a common stairway necessary, to gain access to the leased property. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 438; Dec. Dig. 124(2).] |