(192 Mass. 526) BASS v. INHABITANTS OF WELLESLEY (two cases).

(Supreme Judicial Court of Massachusetts. Norfolk. Sept. 5, 1906.)

1. BILLS AND NOTES-ACTION-FORGERY-EVIDENCE.

In an action on certain notes against a town, evidence held sufficient to warrant a finding that two of the notes sued on were signed by the selectmen of the town at a meeting held on a certain date, and were subsequently sold by the town treasurer and purchased by plaintiff. 2. PAYMENT-FORGED NOTE.

Payment by a forged note does not constitute a valid payment of the debt.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Payment, §§ 63-69.]

3. BILLS AND NOTES PAYMENT FORGED NOTES.

Where plaintiff, who was the holder of valid notes executed by the selectmen of a town, surrendered the same in exchange for certain forged notes executed by the treasurer of the town under the mistaken belief that the treasurer was authorized to give notes in renewal, the surrender of the old notes did not operate to extinguish them, or to prevent plaintiff from showing that the notes accepted in renewal were forgeries.

[Ed. Note.-For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 1256.]

Report from Supreme Judicial Court, Norfolk County.

Actions by E. Adalaide Bass against the inhabitants of Wellesley. A pro forma finding in favor of plaintiff was entered in the first action and in favor of defendant in the second, and the case was reported to the Supreme Judicial Court. Affirmed.

Robert M. Morse, for plaintiff. Albert E. Pillsbury and Peabody & Arnold, for defendant.

MORTON, J. These two actions were tried and argued together. The only evidence offered was the auditor's report which it was agreed should be accepted in both cases as a finding upon the facts. It was also agreed that the only question of law to be determined were the questions arising upon his report and the pleadings. The court found for the plaintiff in the first action, and for the defendant in the second, and reported the cases upon the question whether the evidence contained in the auditor's report was sufficient in law to warrant these findings. The first action is upon three notes of which two are alleged to have been lost and the other to be in possession of the defendants. If the plaintiff prevails in the first action she does not seek to recover in the second.

We are of opinion that there was evidence sufficient to warrant a finding for the plaintiff in the first action. That case turns upon the question whether there was sufficient evidence to warrant a finding that the two notes, which, it is found, were signed by the selectmen at the meeting of December 19, 1900, were the two notes that were subsequently sold by Jennings to Eastabrook

The

& Co. and by them sold to the plaintiff. There are other questions but this seems to us to be the principal one. It is conceded that the third note was a genuine note, and the defense to that rests on other grounds than forgery. The two notes referred to bear date December 23, 1899. They did not appear upon the books kept by Jennings as town treasurer, and there was no entry on those books charging him with the proceeds, and they were not mentioned in his report to the town. They were surrendered to Jennings under circumstances hereinafter stated. At the time when they were issued he was a defaulter to the extent of $25,000. On December 27th he sold to R. L. Day & Co. two notes also of $5,000 each bearing date December 27th. These notes appear in his accounts and are admittedly genuine. two notes bearing date December 23d were sold by him to Estabrook & Co. December 26th, for $9,552.50, being the face of the notes less the discount. Estabrook & Co. paid for the notes by a check payable to the order of the town of Wellesley which was indorsed by Jennings as treasurer, and on the same day deposited by him to the credit of the town in the Boston Safe Deposit & Trust Co. It does not appear whether the notes which the selectmen signed on December 19th were then dated, or if they were, what the date was, and the defendant contends that the circumstances are, to say the least, as consistent with the contention that they were the notes which were dated December 27th and sold to R. L. Day & Co. on that day, as with the contention that they were the notes dated December 23d and sold to Estabrook & Co. If the former was the case then it would seem to follow that the two notes dated December 23d and sold to the plaintiff were forgeries.

The selectmen kept no complete record of the notes which they signed or of the total amount which the town had borrowed. Meetings were held regularly every Tuesday evening and notes were usually signed at such meetings; but they were also frequently signed by them at their houses or places of business. Notes were usually signed two or three day before their date. The selectmen had a regular meeting Tuesday evening December 19th, and one also on Tuesday evening December 26th. It is found, as already observed that two notes for $5,000 each were signed by the selectmen at the meeting which was held Tuesday evening December 19th, and it would plainly be more in accord with the usual course of business that these notes should have been dated December 23d than that they should have been dated December 27th, which would carry them by another meeting of the selectmen. In view of the fact that there would be a regular meeting on the evening of December 26th, it can hardly be supposed that the notes signed on the 19th, would be dated as of the

27th. And if the date was written in at the time when the notes were signed by the selectmen on the 19th, the probabilities are more in favor of its being the 23d than the 27th. Or if, as quite likely, no date was written in, it is more probable that Jennings procured the selectmen to sign them with the expectation on their part and his that they would be negotiated before the next meeting and that pursuant to such expectation he dated them December 23d, but delayed or was prevented from disposing of them till the 26th, than that he dated and disposed of them on the 27th. Moreover Jennings was a defaulter, and it is not unreasonable to suppose that he would seek to cov er up his defaication by procuring the selectmen to sign notes, which, according to the usual course of business he could easily do and disposing of the notes thus signed and depositing the proceeds to the credit of the town omitting all reference to them in his accounts. The fact that the notes are not to be found and that they do not appear in the list of the genuine notes or in his accounts is not necessarily inconsistent with their genuineness. To have entered them of record would have made his detection more certain if and when his accounts were examined. There is nothing to show that the selectmen signed more than two notes on the 19th, or that more than two notes were signed by them between that and the 27th, and it would seem highly improbable that with two genuine notes of $5,000 each in his possession undisposed of Jennings would forge two others of the same amounts and date them the 23d. The plaintiff is not bound to exclude the possibility that the two notes which the selectmen signed on the 19th were those that were dated and sold the 27th, but only to show by a fair preponderance of the evidence with all reasonable inferences therefrom that they were the notes declared on. Woodall v. Boston Elevated Ry. Co. (Mass.) 78 N. E. 446. And we are of the opinion that she has done so, or at least, that it cannot be said that there was not evidence warranting such finding.

The three notes which are the subject of the first action fell due in December, 1900.

They were not paid in cash at maturity but were surrendered to Jennings for what purported to be a note of the town for $15,000. This note is found by the auditor to have been raised from $5,000 to $15,000. When this note fell due it was also surrendered to Jennings who gave what purported to be a new note by the town for the same amount. The auditor found that both of these notes were forgeries; but, even if they were not, he ruled that the treasurer would have had no right under the votes of the town to issue them in renewal of other notes. Abbott v. North Andover, 145 Mass. 484, 14 N. E. 754. It is clear that payment by a forged note is no payment. Central Nat. Bank v. Copp, 184 Mass. 328, 68 N. E. 334; Nat. Granite Bank v. Tyndale, 176 Mass. 547, 57 N. E. 1022, 51 L. R. A. 447; Walker v. Mayo, 143 Mass. 42, 8 N. E. 873; Grimes Kimball,

V.

3 Allen, 518; Atkinson v. Inhabitants of Minot, 75 Me. 189. The defendant contends that the plaintiff must be held, as a matter of law, to have taken the renewal notes with knowledge of the treasurer's want of authority to issue them, and that therefore her surrender of the old notes and acceptance of the new operated to extinguish the former. That would give to a presumption of law greater effect than would be given to the actual fact. If the plaintiff had had actual knowledge of the treasurer's want of authority she would not have surrendered the old notes at all except upon payment or the receipt of others equally good. The most that can be fairly said is that she was mistaken as matter of law in thinking or assuming that the treasurer could give notes in renewal, and that fact operated with his implied representation that the renewed notes were valid to induce her to surrender the old notes and accept the renewed notes in place thereof. A surrender of the old notes under such circumstances would not operate to extinguish them, or to prevent the plaintiff from showing that the notes accepted in renewal were forgeries.

The result is that in each case the judg ment is to be affirmed.

So ordered.

(185 N. Y. 603)

WILLIAMSON v. RANDOLPH. (Court of Appeals of New York. June 19, 1906.)

NEW TRIAL-MATTER OF RIGHT-DISQUALIFICATION OF JUDGE BEFORE JUDGMENT.

When a justice of the Supreme Court has been designated, and has actually begun, to sit in the Appellate Division, before he has settled and signed a formal decision in writing and a judgment, but after he has handed down his opinion announcing his rulings on the facts and law, and directing judgment for defendant and the submission of findings, and such justice refuses to settle and sign such a decision and judgment, for alleged lack of power, under the Constitution, because of such designation, plaintiff has an absolute right to a new trial, without terms or conditions.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Harry L. Williamson against Lewis V. F. Randolph, as president of the Consolidated Stock & Petroleum Exchange of New York. From an order of the Supreme Court, Appellate Division (97 N. Y. Supp. 949) affirming an order of the Special Term, defendant appeals. Affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 1906, which affirmed an order of Special Term restoring the aboveentitled case to the Special Term calendar. The following questions were certified: "1. When a justice of the Supreme Court has been designated and has actually begun to sit in the Appellate Division before he has settled and signed a formal decision in writing and a judgment in an action, all of the issues of fact and of law in which have been tried before him at Special Term, but after his opinion has been handed down, specifically announcing his rulings on the facts and the law, and directing judgment for the defendant, with costs, and the submission of findings upon notice; and when such justice has refused to settle and sign such a decision and judgment, for alleged lack of power, under the Constitution, due to such designation, has the plaintiff in such action, whose right to relief therein is denied in said opinion, an absolute right to new trial, without terms or conditions, solely by reason of such designation and refusal?

"2. Has the Supreme Court, or a justice thereof, in granting an application for a new trial, made by the plaintiff in an action (all of the issues of fact and of law in which have been tried at Special Term before a justice of said court, who has handed down his opinion directing judgment for the defendant, with costs, and the submission of findings on notice, but thereafter and before settling and signing a decision in writing and a judgment, has been designated and has actually begun, to sit in the Appellate Division, and consequently has refused to settle and sign such a de78 N.E.-35

Proceedings for the laying out and establishment of a street, begun before one council and board of aldermen, may be continued before succeeding councils and boards of aldermen, and finally completed by a council and board. composed of different members from that before which the proceedings were instituted and by which the parties have been heard. 2. SAME-VIEW.

Rev. Laws, c. 48, § 94, providing that the law in regard to the laying out of highways by county commissioners shall apply to the laying out of streets in cities so far as applicable, except as may be otherwise provided by the charter or by special laws, and requiring county commissioners to view such proposed highways, does not require that a view of a city street about to be established should be taken by the entire city council. as distinguished from the joint committee on highways, to which the petition for the laying out of the street was referred.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 800.] 3. SAME-ORDER-FINAL ADOPTION-HEARING. Where objectors to the laying out of a street were afforded several opportunities to be heard in the course of the proceedings, they were not entitled to another hearing on the final adoption by the city council of the order laying out the street.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 799.]

Report from Supreme Judicial Court, Middlesex County.

Petition by Giles Taintor for writ of certiorari against one Thurston and others, comprising the mayor and city council of the city of Cambridge. An order was entered denying the writ, and the case was reported for hearing before the full court. Petition dismissed.

Giles Taintor, pro se. Gilbert A. A. Pevey, for respondents.

MORTON, J. This is a petition for a writ of certiorari to quash the proceedings of the respondents as mayor and city council of the city of Cambridge in accepting and laying out a certain street in said Cambridge called Brown street. The petitioner is an abutting owner whose land was taken in the laying out of the street. The presiding justice found that the allegations of fact contained in the answer of the respondents were true, and thereupon ruled that no error of law appeared. He further found that substantial justice did not require the writ to be issued and dismissed the petition, and, at the request of the petitioner, reported the case to the full court, such order to be entered as law and justice may require.

We think that the ruling was right. One question, if not the principal one, is whether proceedings in relation to the laying out of a street begun before one council and board of aldermen may be continued before succeeding councils and boards of aldermen and finally completed by a council and board of aldermen composed of different members from that before which they were instituted and by which parties have been heard. city council is a continuous body though its members and its officers may change from time to time. See Collins v. Holyoke, 146 Mass. 298, 15 N. E. 908; Fairbanks v. Fitchburg, 132 Mass. 42. In recognition of this the city charter of Cambridge provides that "every officer of the city shall unless sooner removed continue after the expiration of his term of service to hold his office until his successor is appointed or elected and duly qualified." St. 1891, p. 941, c. 364, § 33. In the transaction of business that may come before them the members of one city council may properly refer unfinished matters to those who are to succeed them and succeeding members may adopt or acquiesce in the official action of their predecessors upon such matters. They are not obliged in every case to begin de novo. In the laying out of a street the members of a city council act as public officers in the discharge of duties appertaining to the office which they hold, and to the municipality which the council represents. And it follows from the continuous nature of the body, and the purely official relation which those who compose it sustain to it, that the laying out of a street begun and partly heard or finished before one council and board of aldermen may be completed before another council and board of alder

So far, therefore, as the petitioner relies upon the contention that a part of the proceedings took place and hearings were had before some other council and board of aldermen than those of 1905, which finally completed the laying out of the street and the taking of land therefor, his contentions must fail.

The petitioner further contends that the city council should have taken a view that there was no adjudication by it of public

convenience and necessity, and that there was no hearing by the city council on the final laying out of the street and taking of the petitioner's land.

The proceedings were begun in June, 1902, and completed in December, 1905, and it is apparent we think, from an examination of the copies of the records of the board of aldermen, and of the common council, and of the board of survey which are annexed to and form a part of the answers of the defendants and which in their allegations of fact must be taken as true under the finding of the single justice, that the petitioner had full notice and an opportunity to be heard in regard to all matters connected with the laying of the street and the taking of his land where a hearing was required or he was entitled to one. The petitioner contends that the law in regard to the laying out of highways by county commissioners applies to the laying out of streets in cities. But it applies "only so far as applicable," and "except as may be otherwise provided by the charter or by special laws." Rev. Laws, c. 48, § 94. It is manifest that provisions in regard to a view applicable to a small body consisting of three like the county commissioners, would be inapplicable to a numerous body like a city council, and there is nothing in the city charter of Cambridge which requires that a view should be taken by the city council or which prevents it from being taken, as it was in this case, by the joint committee on highways, to which the petition for the laying out of the street was referred by the board of aldermen, the charter requiring that action should be first taken by that board. There is nothing which requires that another view should be had at the request of a party interested if one has already been taken.

The committee on highways having taken a view gave a hearing on the question of laying out the street, of which the petitioner had due notice, but at which he was not present. The committee reported to the city council recommending the laying out of the street and the adoption of an order accompanying the report providing for notice and a hearing in regard to the intention of the city council to lay out the street. The order began by reciting that public convenience and necessity required that the street should be laid out, and was adopted by the city council at a meeting after due hearing in joint convention of which the petitioner and all others interested had notice, and constitued an adjudication by the city council that public convenience and necessity required the laying out of the street. Subsequently a hearing was had by the city council, also in joint convention, of which the petitioner and all others interested had notice and at which the petitioner was present in regard to the intention of the city council to lay out the street and take the land necessary therefor. This was in November, 1902. In December,

without any further action on the part of the city government of 1902, the matter was referred by it to the board of survey, a body which had been established under St. 1900, p. 348, c. 405, amended by St. 1903, p. 294, c. 436. The board of survey took a view and gave hearings of which the petitioner and others interested had notice, and at one of which at least the petitioner was present. The board voted to change the proposed layout and so reported to the city council. Thereupon the matter was referred again by the city council to the joint committee on highways, which took another view and gave a hearing on the laying out of the street as altered by the board of survey, of which the petitioner and others had due notice, and reported recommending the adoption of an order which recited that public convenience and necessity required that the street should be laid out, and provided for the giving of notice to all parties interested of a hearing in regard to the intention of the city council to lay it out and take the land therefor. This was referred to the next city government by which it was again referred to the joint committee on highways, which reported recommending the adoption of an order substantially like that last above referred to, which was done, and a hearing was had in joint convention, at which the petitioner appeared. The result of the matter was that the question of laying out the street was again referred to the next city government, that of 1905, by which on the recommendation of the joint committee on highways to which the matter had been referred and which took still another view and gave still another hearing, the order laying out the street was finally adopted. It is plain, we think, that the petitioner was not entitled to be heard upon the final adoption by the city council of the order laying out the street, and we see no error of law in the proceedings, or in the finding that substantial justice did not require the issuing of the writ.

Petition dismissed with costs.

(192 Mass. 517)

NAY V. BOSTON & W. ST. R. CO.
(two cases.)

(Supreme Judicial Court of Massachusetts. Suffolk. Sept. 4, 1906.)

1 ARBITRATION AND AWARD-ENFORCEMENT. Where a dispute is submitted to arbitration in pais, the only way of enforcing the award is by action thereon.

[Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Arbitration and Award, § 457.] 2. SAME.

Where a dispute is submitted to arbitration by a submission under Rev. Laws, c. 194, providing therefor, the award must be enforced by an independent proceeding in court.

[Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Arbitration and Award & 457.1 8. SAME.

Where a dispute is submitted to arbitration by a rule of court made in an action, this

of its own force ends the proceeding in the action.

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Arbitration and Award, §§ 97, 98, 101.]

4. SAME-STATUTORY SUBMISSION.

Where a submission to arbitration departed from the statutory form prescribed by Rev. Laws, c. 194, in providing that no hearing should be had except in the discretion of the arbitrators, and for the selection of "some reputable physician" as a referee, if the arbitrators named were unable to agree, such provisions were matters of substance, and rendered the submission void as a statutory submission. [Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Arbitration and Award, §§ 38, 47.] 5. SAME-TRIAL.

Where defendant elected to treat a submission to arbitration as a statutory submission, and the submission was void as such, it was not error for the court to disregard the arbitration and proceed to trial.

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Actions by Lucy S. Nay and by George M. Nay against Boston & Worcester Street Railway Company. From an order of the superior court rejecting an award of arbitrators and dismissing an order of reference, defendant appeals; and from the court's refusal to rule according to defendant's request, it brings exceptions. Appeal dismissed. Exceptions overruled.

Edwd. N. Carpenter, for plaintiffs. Guy Murchie and Jas. F. Bacon, for defendant.

LORING, J. The parties to these two actions at law might have submitted to arbitration the matters in dispute between them by a submission in pais, a submission under the statute, or by a rule of court made in the two actions. If the first method of procedure had been adopted, the only way of enforcing the award would have been by an action on the award when made. If the second had been adopted, it would have been an independent proceeding in court. The third method of procedure is the only method which proprio vigore would have ended the further prosecution of these two actions.

Had it not been for the first, second and thirty-first rulings asked for by the defendant, it might have been somewhat difficult to decide which method of submission to arbitration the parties in these actions intended to take. On the one hand the submission in the main is in the terms of a statutory submission under Rev. Laws, c. 194. On the other hand it was filed in the two ac tions and "allowed" by the court.

But the defendant is bound by its first, second and thirty-first requests for rulings, in which it in effect asked that the submission should be treated as a submission under the statute. As a statutory submission it is void. It departs from the form prescribed in Rev. Laws, c. 194, in providing in substance (first) that no hearings are to be had except in the discretion of the arbitrators, and (second) for the selection of "some