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[21] In its argument, appellant challenges and criticizes particular instructions, but this does not meet the requirements of said rule. Leach v. State, 177 Ind. 234, 239, 97 N. E. 792. We might say, however, that in our discussion of the several grounds of the objections to the complaint, we, in effect, dispose of most of said criticisms and objections. Of 25 instructions tendered by appellant, all but 4 were given, and the instructions are as favorable to it as the law would

and that he did not hear said train. It is 181 Ind. 349, 350, 103 N. E. 413, 104 N. E not at all inconsistent to say that a thing 577; Bray v. Tardy, 182 Ind. 98, 105 N. E could be seen or heard which one who used 772. only ordinary care failed to see or hear. The use of ordinary care to see and hear will ordinarily reveal the things which are likely to be seen, but will not ordinarily reveal those things which it is possible to see or hear only by the exercise of extraordinary care or effort to see and hear. It is true, as appellant contends, that, generally speaking, the law will presume that a person actually saw what he could have seen if he had looked, and heard what he could have heard if he had listened, but this presump-warrant. tion is indulged in cases where one fails to look or listen, and in cases where the physical surroundings and conditions are such as to force conviction that one did see or hear, notwithstanding a statement or finding that he did not. Cones, Adm'r, v. Cincinnati, etc., R. Co., 114 Ind. 328, 16 N. E. 638; Lake Erie, etc., R. Co. v. Stick, 143 Ind. 449, 41 N. E. 365; Pittsburgh, etc., R. Co. v. Fraze, 150 Ind. 576, 50 N. E. 576, 65 Am. St. Rep. 377; Malott v. Hawkins, 159 Ind. 127, 63 N. E. 308; Cleveland, etc., Ry. Co. v. Moore, 45 Ind. App. 58, 90 N. E. 93; Cleveland, etc., Ry. Co. v. Pace, 179 Ind. 415, 101 N. E. 479;-to which he answered: Cleveland, etc., Ry. Co. v. Starks, 102 N. E. 279.

[22] The first, second, third, and fourth grounds of appellant's motion for new trial are predicated on alleged errors in the admission of evidence. For convenience, we take up those grounds in their reverse order. The fourth ground is not referred to in appellant's points and authorities, and hence is waived.

[23, 24] Dr. Homer C. Haas was asked the following question:

"Now state to the court and jury what you discovered with reference to the condition of his body"

"I found that there is a slight enlargement of the ninth rib on the left side, with slight soreness in the intercostal region."

This question was objected to on the

[18] The facts elicited by the answers supra do not invoke the application of this principle because there is no finding that ap-ground that the evidence was incompetent pellee did not use ordinary care, and there is no finding that some obstruction other than the box car on the elevator track, or that some noise present at the time appellee approached the crossing, may not have interfered with and made the hearing of the approach of such train difficult or impossible except by the use of extraordinary care.

because the examination was made for the purpose of testifying at the trial. Appellant also objected to and moved to strike out the italicized portion of the answer, supra, on the ground that "it is a self-serving declaration on the part of the plaintiff." The second and third grounds of the motion for new trial, as set out in appellant's brief, are re[19] The evidence may have showed, and spectively based on the court's action in overfor the purposes of the question under con- ruling the objection to said question and its sideration we must assume that it did show, motion to strike out the part of the answer inthat there was something to prevent appel- dicated. As preliminary to its objection, aplee from hearing at the time inquired about pellant developed by questions put to and anin the interrogatories. We conclude, there- swered by the witness that the examination fore, that no error resulted from the ruling of appellee, made by the witness, was made on the motion for judgment on said answers. [20] Appellant, in its points and authorities, makes some general statements with reference to what is proper and required in the giving of instructions, but under such heading no application is made of any of these statements to any particular instruction, nor is there any mention of, or reference to, any particular instruction. This is not a compliance with the rules of the court, and hence no question is presented on the instructions. German, etc., Ins. Co. v. Zonker, 57 Ind. App. 696, 701, 703, 108 N. E. The first ground of appellant's motion for 160; Pittsburgh, etc., Co. v. Lightheiser, 168 new trial is predicated on the action of the Ind. 438, 460, 78 N. E. 1033; Chicago, etc., trial court in overruling appellant's objection Co. v. Dinius, 180 Ind. 596, 626, 627, 103 N. to a similar question put to another doctor, E. 652; Kaufman v. Alexander, 180 Ind. 670, the objection being the same as that made to

the night before the trial, and not for the purpose of treating appellee. It is so well settled in this state that a physician may testify to what he saw and found as a result of such an examination that citation of authorities is unnecessary. The part of the answer which the appellant sought to strike out did not purport to be what the appellee told the witness, but is a statement of what the witness found from his examination, and hence was not subject to appellant's objection.

hence for the same reason does not present

error.

Appellant also challenges the verdict of the jury on the ground that it is not sustained by sufficient evidence, but our examination of the record convinces us that there was evidence at least tending to support all the elements of the complaint essential to appellee's cause of action.

PIERCE, J. This is an action of contract brought by the plaintiff against the defendant on the covenants of a warranty deed for breach thereof.

The defendant conveyed to the plaintiff certain land in Cummington, in this commonwealth, by the warranty deed upon the covenants of which this action is brought dated June 27, 1904. The description in this deed

Finding no error in the record, the judg- is as follows: ment below is affirmed.

(225 Mass. 100)

BALL v. STREETER.

(Supreme Judicial Court of Massachusetts. Berkshire. Oct. 19, 1916.) 1. DEEDS 112(1) INCORPORATION OF DE

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SCRIPTION BY REFERENCE-LEGAL EFFECT. The legal effect of the incorporation of two prior deeds by reference in the description of premises granted depends upon the intent of the contracting parties as ascertained from the instrument when construed as nearly as possible in the situation of the parties and in view of all circumstances affecting them or the property at the time.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 323; Dec. Dig. 112(1).]

2. DEEDS 118 - INCORPORATION BY REFERENCE-DESCRIPTION OF PROPERTY CONVEYED -PRESUMPTION.

Where grantor and grantee in a deed to timber lands actually or constructively knew that the right to soft wood was in the grantee, conditional on its removal within a definite period, that there was a possible outstanding right in reverter to the soft wood in the grantor's predecessor in title, who had retained such rights and the right to the land in his deed by reservation of a right to cut and carry away all trees at any time before a fixed date, and that at the time of the delivery of the deed to the grantee the title to the land was incumbered by the conveyance of the grantor's predecessor and by the reservation in the deed, it will be presumed that the grantor, whose deed described the property only by reference to his predecessor's deed to him and to a deed to such predecessor, did not intend to grant, or the grantee to receive, title to property, or to an interest in property, which both knew the grantor did not own.

[Ed. Note.-For other cases, see Deeds, Dec. Dig. 118.]

3. DEEDS 99-CONSTRUCTION.

Where a deed conveyed land alleged to have been conveyed by two certain deeds in grantor's line of title, that the deed first executed conveyed all of a certain tract, and the second deed conveyed said land with a reservation of title to timber, the reference to the first deed was not inserted with intent to disregard the reservation in the second deed.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. 99.]

Exceptions from Superior Court, Berkshire County; Charles U. Bell, Judge.

Action by Charles H. Ball against Alden E. Streeter. There was a verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

"All the land conveyed to me by Edwin A. Jordan by Warranty Deed dated June 11th 1904 all the land conveyed to said Jordan by the heirs of Luther B. Towers Estate by Warranty Deed dated April 29th 1902 and recorded with Hampshire County Deeds in Book 558, Page 163."

The deed from Jordan to Streeter therein referred to, dated June 11, 1904, recorded July 8, 1904, conveyed

"all the land conveyed to me by the heirs of Luther B. Tower's estate by Warranty deed dated Apr. 29th 1902, & recorded with Hampshire County Deeds, in Book 558, Page 163, reserving all the trees standing and down on said premises with the right to cut and carry away the same at any time before Jan. 1st 1924, with the privilege to carry the same over said lot."

The deed referred to from the heirs of Luther B. Tower's Estate to the said Jordan conveys nearly two hundred acres of land in three tracts, described by metes and bounds.

By deed dated January 30, 1904, the plaintiff purchased of E. A. Jordan "all the soft timber on a certain tract of Land described in A Warranty Deed given to me by the heirs of the Estate of Luther B. Tower dated April 29th 1902 and recorded with Hampshire County Deeds in Book 558 Page 163. And the said C. H. Ball by agreement is to have ten years from May 1st 1903 to cut and remove said soft timber from the premises. Meaning to convey all soft wood trees, large and small, standing or down.".

The soft lumber remained growing on the land until 1914 when a steam mill was placed thereon and the soft lumber was cut and sawed.

February 2, 1914, Edwin A. Jordan asserted his right to the soft wood and trees by notice to the plaintiff in terms reading: Your Lease on the Tower Lot expired May 7 1913 and I object to you drawing any more Logs or Trees from thare."

66* * *

Thereupon the plaintiff "paid Jordan to acquire title to the soft wood, plus the value of the hard wood at the time of the ouster," a sum of money "with interest on the total amount." The plaintiff then brought an action on the covenants, of warranty.

As stated in the brief for the plaintiff:

"The question raised is the legal effect of conveying real estate by a warranty deed having no description of the property, but incorporating two prior deeds of the land; the first mentioned reserving for a period certain timber and trees Warner & Barker, of Pittsfield, for plain-growing on the land, and the second deed refertiff. Wm. A. Davenport, of Greenfield, John F. Manning, of Shelbourne Falls, and Abner S. McLaud, of Greenfield, for defendant.

red to, of an earlier date, describing the premises by metes and bounds and conveying the land free from incumbrances and without any reservations.'

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The presiding judge found and ruled, in This construction is consistent with the rule part as follows:

"In the deed Streeter to Ball there was no description of the premises conveyed except by reference to the Tower (?) deed to Jordan and the Jordan deed to Streeter. Unless these deeds | were read into the deed Streeter to Ball that deed would fail for want of any description of the premises. But such a reference does incorporate the deeds referred to as fully as if they were copied in. In law then expanding these references the deed Streeter to Ball had in it the clause from the previous deed 'Reserving (to Jordan) all the trees standing and down on said premises with the right to cut and carry away the same at any time before January 1st 1924 with the privilege to carry the same over said lot.' And to the premises with that reservation the covenants applied, and whatever right Jordan had under that reservation was not a breach of the covenants."

To this ruling and others of the memorandum the plaintiff duly excepted.

[1, 2] The legal effect of the incorporation of the two deeds by reference in the description of the premises granted, depends upon the intent of the contracting parties as ascertained from the instrument when construed as nearly as possible in the situation of the parties and in view of all circumstances affecting them or the property at the time, which are supposed to be equally understood by both parties. Auburn Congregational Church v. Walker, 124 Mass. 69; Smith v. Thayer, 155 Mass. 48, 50, 28 N. E. 1131. In the case at bar the parties to the deed actually or constructively knew that the right to the soft wood was in the plaintiff, Ball, conditional on its removal within a defined period of time; that there was a possible outstanding right in reverter to the soft wood, in Jordan, and that Jordan had retained these rights and the right to the land in his deed to Streeter by a broad reservation of a right to cut and carry away all trees at any time before January 1, 1924. They also actually or constructively knew at the time of the execution and delivery of the deed to Ball, that the title to the land was incumbered by the conveyance of Jordan to Ball, and by the reservation in the deed of Jordan to Streeter. White v. Foster, 102 Mass. 375. Under all the circumstances it must be presumed that Streeter did not intend to grant, and that Ball did not expect to receive, title to property or to an interest in property which both knew Streeter did not own. Daniels v. Citizens' Savings Inst., 127 Mass. 534.

that every part of a deed ought, if possible, to take effect and every word to operate. 13 Cyc. 627, and cases cited. 1 Jones Law of Real Property in Conveyancing, 269, and cases cited.

The rulings of the presiding judge that there was no breach of warranty and upon all the evidence the plaintiff was not entitled to recover, were right. Exceptions overruled.

(225 Mass. 97) POTTER et al. v. AIDEN LAIR FARMS ASS'N.

(Supreme Judicial Court of Massachusetts. Franklin. Oct. 19, 1916.)

1. EVIDENCE 353(11)-DOCUMENTARY EVI

DENCE-LEASE-RECORD.

farm association for merchandise sold to its In an action to recover from an incorporated clerk and director, having a lease on the farm, where the issue was whether he was the association's agent or its lessee, the lease was admissible in evidence between the parties, notwithstanding that it was not recorded under Rev. Laws, c. 127, § 4, making a lease for more than seven years invalid except between the parties, and persons having actual notice of it, unless recorded; the purpose of the statute being to protect subsequent purchasers against prior unrecorded conveyances.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1420-1423; Dec. Dig. 353(11).j 2. PRINCIPAL AND AGENT 194(1)-ACTION

AGAINST PRINCIPAL-CHARGE.

duct of the parties to see whether the associaWhere the jury were told to look at the contion ever intended to make its director its agent, the jury were not misled, since the jury were to pass on their acts done rather than on an unreferring to the intent of the director, where it disclosed intention; nor was there any error in was stated that to hold the defendant, he must have been its agent by appointment or ratification.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 727; Dec. Dig. 194(1).1 3. FRAUD 58(1)-ACTION AGAINST PRINCIPAL EVIDENCE.

That the director, holding a lease, told a third person that the plaintiff was charging things to him which should be charged to the association, made without the association's approval or knowledge, even if he was its agent, and the facts that the lease was not recorded, and that the lessee had made a deposit in the name of the corporation, were not sufficient to impute fraud to the defendant.

Dig. § 55; Dec. Dig. 58(1).]
[Ed. Note.-For other cases, see Fraud, Cent.

4. TRIAL 145-INSTRUCTION.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 328, 341; Dec. Dig. 145.]

[3] The reference to the deed of the Tower Where there was no evidence of fraud for a heirs to Jordan, manifestly was not inserted jury to pass upon, there was no error in chargwith the intent to destroy or to disregarding them to eliminate it from their minds. the reservation of rights in the land contained in the deed of Jordan to Streeter, the instrument first referred to in the description, but presumably, because it was the one deed in the chain of title that described the land to be conveyed with the fullness and certainty of a description by metes and bounds. See Daniels v. Citizens' Savings Inst., ubi supra.

Report from Superior Court, Franklin County.

Action by Arthur D. Potter and others against the Aiden Lair Farms Association. Verdict for defendant, and plaintiffs except, and case reported. Judgment on the verdict.

Wm. A. Davenport, of Greenfield, and Abner S. McLaud, of Lynn, for plaintiffs. Sanborn G. Tenney, of Williamstown, for defendant.

CARROLL, J. [1] The plaintiffs sought to recover from the defendant for certain merchandise sold to George Peabody, the clerk and a director of the defendant corporation, who, when the goods sued for were purchased, was the lessee of the farm and all the "equipment, chattels, live stock and personal property," under a lease running from February, 1913, to February, 1928. The lease was not recorded as required by R. L. c. 127, § 4. The plaintiff contended that Peabody was the defendant's agent. This the defendant denied and claimed he was its lessee carrying on the business on his own account.

The plaintiffs excepted to the admission of the lease in evidence, for the reason that under R. L. c. 127 § 4, a lease for more than seven years is not valid against any person except the lessor, his heirs or devisees, and persons having actual notice of it, unless it is recorded in the registry of deeds. The defendant had the right to show its relation to Peabody-that he was its agent, not its lessee. The statute did not prohibit it from showing these facts. Between the parties the lease was valid. The purpose of the statute was to protect subsequent purchasers against prior and unrecorded conveyances; it was not passed to protect those who claim no right or title in the premises conveyed by the unrecorded lease. As was said by Morton, J., in Phila. & Reading Coal & Iron Co. v. Boston, 211 Mass. 526, 531, 98 N. E. 1067: "The object of the statute is to protect those taking title bona fide from a prior unrecorded deed or lease of which they have no notice."

See Butrick, Pet'r, 185 Mass. 107, 111, 69 N. E. 1044; Anthony v. N. Y. Prov. & Boston R. R., 162 Mass. 60, 61, 37 N. E. 780. The lease, therefore was properly admitted in

evidence.

[2] We do not think the jury were misled by what the judge said to them when speak

ing of the intention of the corporation acting by its officers and agents. Their undisclosed intention was of no importance. It was what was said and done their speech and conduct -that the jury were to pass on in determining whether Peabody was in fact the agent of the corporation or was acting for himself in the conduct of the business and in purchasing the merchandise from the plaintiff. The jury were told to look at the conduct of the parties, especially "the conduct of the corporation, to see whether" it ever intended to make him its agent. Neither was there any error in that part of the charge where the intention of Peabody was referred to. It was fully explained to the jury that to hold the defendant, Peabody must have been its agent by appointment or ratification, and that his

acts without the knowledge or consent of the defendant did not bind it.

[3, 4] There was no evidence of fraud for the jury to pass on and there was no error in charging them to eliminate it from their minds. The mere fact that Peabody told some one other than the plaintiff, with whom he was dealing, that "they were charging things to him when they should charge them to the Aiden Lair Farm," standing by itself, does not go far enough to impute fraud to the defendant. The record does not show this statement to be untrue. Goods may have been charged to Peabody which should have been charged to the Aiden Lair Farms Association. Even if there were anything before us to show that this remark of Peabody indicated he was the agent of the defendant, it was made without the defendant's approval or knowledge, and could not, standing alone be relied upon to prove the defendant's fraud. Nor is this circumstance, together with the fact that the lease was not recorded, and Peabody had a deposit in the bank in the name of "Aiden Lair Farms" sufficient to raise a presumption of fraud. No error of law appears. Judgment on the verdict.

In re COWDEN.

(225 Mass. 66)

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1916.)

1. MASTER AND SERVANT 388-WORKMEN'S
COMPENSATION "MEMBER OF FAMILY"
"FAMILY."
Where an illegitimate son, adopted by his
mother and her husband, paid the board of and
supplied money to their child while boarding with
strangers, and maintaining no household, during
life of the father, the son being under no obli-
gation to support such child, she was not a mem-
ber of his family within Workmen's Compensa-
tion Act (St. 1911, c. 751, pt. 5, § 2), nor a de-
pendent, and could not have compensation on his
death, a "family" meaning the collective body
of persons living in one house under one head
and management, so that he was not maintain-
ing a family.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.

First and Second Series, Family; Member.]
For other definitions, see Words and Phrases,
2. MASTER AND SERVANT 388 - "WORK-
MEN'S COMPENSATION-"NEXT OF KIN."

Neither was she next of kin, since, under Rev. Laws, c. 154, § 7, an adopted child has the status of one born in lawful wedlock, and by chapter 133, § 1, the adopting father who was living was nearer in degree than a sister.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.

For other definitions, see Words and Phrases, First and Second Series, Next of Kin.]

Appeal from Superior Court, Worcester County.

Proceedings by Edith M. Cowden for Workmen's Compensation for death of Herbert E. Cowden, deceased, opposed by the ClaflinSumner Coal Company, employer, and the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Employers' Liability Assurance Corporation, [ployé. R. L. c. 154, § 7, and chapter 133, § Ltd., insurer. From a decree affirming de- 1. The words "next of kin" in the Worknial of award by the Industrial Accident men's Compensation Act refer to those who Board, petitioner appeals. Modified and affirmed.

Marvin M. Taylor and Marvin C. Taylor, both of Worcester, for appellant. Chas. C. Milton and Frank L. Riley, both of Worcester, for appellee, insurer.

RUGG, C. J. The pertinent facts are that the deceased employé, Herbert E. Cowden, was the natural son of a woman who subsequently married a man named Cowden, The claimant, Edith M. Cowden, was a daughter of this marriage. Herbert was adopted by Mr. Cowden according to law, his wife, the mother of Herbert, joining in the petition. The mother predeceased the employé, but the adopting father still is living.

are nearest in degree. Kelley's Case, 222 Mass. 538, 541, 111 N. E. 395; Murphy's Case, 224 Mass. 592, 113 N. E. 283. The circumstance that, if there had been no adoption, or if the deceased had inherited property from his natural relatives through or from his mother, there might be a descent of that estate to some one other than the adopting father, is immaterial in this connection.

It becomes unnecessary to discuss other questions decided by the board and argued at the bar.

The final decree is to be modified by striking out all the words thereof and by substituting therefor these words:

of 1906.

As so modified, it is affirmed.
So ordered.

"This case came on to be heard at this sitting and was argued by counsel, and thereupon, upThe question to be decided is whether the on consideration thereof, it is ordered, adjudged and decreed that the claimant was not a dependclaimant, Edith M. Cowden, was a dependent upon the employé at the time of his injury, ent of Herbert E. Cowden, the deceased em- and that the case is dismissed." Gould's Case, ployé, at the time of the latter's injury, with- 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, in the meaning of the Workmen's Compensa- 372; Superior Court Equity Rule 37, Edition tion Act. The act in part 5, § 2, St. 1911, c. 751, as amended by St. 1913, c. 568, § 1, defines dependents as "members of the employé's family or next of kin who were wholly or partially dependent upon the earnings of the employé for support at the time of the injury." Two general classes thus (Supreme Judicial Court of Massachusetts. are created, who may be dependents; first, members of the employé's family; second, his next of kin.

(225 Mass. 104)

McMINN v. ROCKWOOD.

Suffolk. Oct. 18, 1916.)

1. INTOXICATING LIQUORS 61(1)-LICENSES -MAYOR'S VETO POWER-STATUTES.

c.

1915, c. 200, vests the granting of sixth class Rev. Laws, c. 100, § 22, amended by St. liquor licenses to retail druggists in the mayor and aldermen in a city where there is no licensing board, as in the city of Cambridge, Rev. Laws, C. 8, § 5, cl. 10, declares the mayor and aldermen in such case to mean the board of aldermen, and Rev. Laws, c. 26, § 3, declares that in cities having a single legislative board other than the board of aldermen, the board shall have the powers of a board of aldermen. Rev. Laws, c. 100, §§ 9, 10, and chapter 102, § 2, vests the power to grant licenses to sell liquor or to be an innholder in a license board, and the latter section, as amended by St. 1910, c. 383, gives such power to the board of aldermen in cities voting not to grant licenses. St. 1915, c. 267, pt. 3, § 8, provides that every order passed by the city council shall be presented to the mayor for his approval. Held, that where the council voted to grant petitioner a liquor license of the sixth class in the city of Cambridge, the mayor had no veto power, and the petitioner was entitled to have it issued and signed by the mayor.

[1] 1. The Industrial Accident Board has found that the claimant was not a member of the employé's family. That finding must stand, for it is amply supported by evidence. The employé was not the head of a family. He maintained no household. He simply was a boarder in the family of another. He paid the board of the claimant for about three months before his death, in the same family. He was under no obligation to support her. That duty rested upon her father, who, as the board found, maintained a suitable home and repeatedly asked her to come to it. These circumstances show that she was not a member of the family of the employé. Family in its usual sense means "the collective body of persons who live in one house, and under one head or management." Dodge v. Boston & Providence R. R., 154 Mass. 299, 301, 28 N. E. 243, 244 (13 L. R. A. 318). That is the significance ordinarily attributed to the word under the act. Kelley's Case, 222 Mass. 538, 111 N. E. 395. See Newman's Case, 222 Mass. 563, 568, 111 N. E. 359, L. R. A. 1916C, 1145. [2] 2. The claimant, being the natural half sister and the sister by adoption of the deceased employé, manifestly was not his next of kin, because his adopting father, being the only living parent, stands in the relation of next of kin to the deceased em- folk County.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 60, 61; Dec. Dig. 61(1).]

2. INTOXICATING LIQUORS 74-REFUSAL OF LICENSE-MANDAMUS.

A petitioner having a right to have a liquor license of the sixth class issued to him, signed by the mayor which was refused, was entitled to a mandatory writ.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 74, 75; Dec. Dig. 74.] Report from Supreme Judicial Court, Suf

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