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(146 N.E.) attributed, as the defendant contends, solely 1 Exceptions from Superior Court, Essex to the collision. The wrecking of the car County; Joseph Walsh, Judge. was caused by the collision. The collision

Action of contract by Mary Carpenter and the wrecking were almost simultaneous, the one following the other. In reality, they against the A. O. H. Widows' and Orphans' constituted one transaction.. Construing the Fund to recover on certificate of insurance

issued by defendant. Verdict ordered for policy fairly, and carrying out the intent of the plaintiff and the defendant, the injuries plaintiff for amount of certificate, and deto the insured resulted from "or in conse

fendant excepts. Exceptions overruled. quence of the wrecking of the car.

J. P. Kane, of Lawrence, for plaintiff. [7] The defendant further contends that

J. J. Shaughnessy, of Marlboro, for defenddue and sufficient proof of loss to permit re- ant. covery under clause K was not furnished. The question, "What were you doing when in- WAIT, J. This action was brought on a jured ?", was answered by the plaintiff, certificate of insurance issued by the de"Traveling from Springfield to Holyoke in fendant on September 30, 1895, to John J. an electric car.” He was then asked: "How Carpenter, then a member since 1883 of Didid the accident happen?" and he replied, vision 8, Ancient Order of Hibernians of Law"Collision." The notice of injury was sea- rence. At the trial in the superior court the sonably given, the proofs submitted on the defendant sought to introduce evidence to blanks furnished by the defendant were filled show that Carpenter at the date of his apout in a responsive manner and within the plication, July 3, 1895, was over 45 years of specified time sent to the defendant. It was age; that in his application for membernot necessary, in the proof of loss, that the ship and in his answers at his medical explaintiff should go into further details, un- amination he had made misrepresentations in less additional information was requested. regard to his age, which affected the risk See Traiser v. Commercial Travelers' East of the insurance; that the by-laws of the ern Accident Association, 202 Mass. 292, 395, defendant limited the age of those who could 88 N. E. 901, 24 L. R. A. (N. S.) 1199, 132 be admitted to insurance to 45 years. This Am. St. Rep. 511; Silberstein v. Vellerman, evidence was excluded subject to the defend241 Mass. 80, 85, 134 N. E. 395.

ant's exception. The certificate stated that We discover no error in the conduct of the the defendant was incorporated December trial.

4, 1890. The defendant claimed, and, apExceptions overruled.

parently, the rulings objected to were made on the assumption, that it was incorporated under St. 1888, c. 429, and amendments there

of as a fraternal beneficiary insurance assoCARPENTER V. A. O. H. WIDOWS' AND ciation; that only members of the Ancient ORPHANS' FUND.

Order of Hibernians could join; and that

on September 30, 1895, and at the time of the (Supreme Judicial Court of Massachusetts. trial it was acting under the act of 1888 and Essex. Jan. 24, 1925.)

amendments thereof now embodied in G. L. C. 1. Insurance ww687–Certificate held to be 176. one of assessment insurance.

The judge ruled that the case was governBeneficial life insurance association, ored by the provisions of law now embodied ganized under St. 1888, c. 429, not being pre-in G. L. c. 177; that the defense of the age cluded by section 9 thereof, as amended by St. limit was not open ; and ordered a verdict for 1890, c. 341, § 1, St. 1890, c. 421, § 1, St. 1892, the plaintiff for $1,000, the amount of the cerc. 435, § 1, and St. 1894, c. 367, § 16, from tificate. The defendant excepted. It does entering assessment contracts in 1895, certifi- not appear that any contention was made cate of insurance of that year containing no agreement to observe and comply with any oth- tiff was entitled otherwise to recover.

that the amount was improper, if the plainer than conditions, requirements, and stipulations specified therein, and in which insured

The decision of the questions argued upon promised to pay when assessment was required, the bill of exceptions depends upon the held to be one for assessment rather than fra- language of the certificate. If the transacternal beneficiary insurance.

tion was one of assessment insurance sub

ject generally to the provisions of St. 1890, 2. Insurance Om655(2)-By-laws held inadmis

C. 421, and amendments thereto, now G. L. sible to show insured's misrepresentation as to age in application.

C. 177, the rulings were correct, If, how

ever, the transaction was one of fraternal Where there was no reference to by-laws in certificate of assessment insurance, under

beneficiary insurance ibject generally to St. 1890, c. 421, $ 21, and St. 1895, c. 281, the provisions of St. 1891, c. 367, with its they were inadmissible to show insured's al' amendments, now G. L. C. 176, the rulings leged misrepresentation as to age in applica- were wrong. tion, which was referred to but not set out in

[1] W assume that the defendant was or attached to certificate.

organized under St. 1888, C. 429, as amendFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.

ed by St. 1890, c. 341; and, as stated in Here there was no reference to constituCrowley v. A. O. H. Widows' and Orphans' tional, by-laws or rules; but the effort to inFund, 222 Mass. 228, 110 N. E. 276, was and troduce them was made in order to show missince has been, a fraternal beneficiary life in- representation in the application, which was surance association. At the date of this referred to, and was not set out in or atcertificate, however, it was not precluded tached to the certificate. The ruling that thereby from entering into contracts of as- the testimony was inadmissible, therefore, sessment insurance. St. 1890, c. 341, $ 9; was right. Boyden v. Masonic Life Ass'n, St. 1890, c. 421, § 1; St. 1892, c. 435, § 1; St. 167 Mass. 242, 45 N. E. 735; Nugent y. Green1894, C. 367, 8 16. The certificate differs field Life Ass'n, 172 Mass. 278, 52 N. E. 440. from that concerned in Crowley v. A. 0. H.

St. 1895, c. 281, provided that no misrepWidows' and Orphans' Fund, supra, or any resentation or warranty made by the assured other fraternal beneficiary case which we

or in his behalf in the application for the .find in our reports. It contains no agree-certificate or the negotiation of the contract ment to observe and comply with any oth- should defeat or avoid the certificate iser than “the conditions, requirements and sued by a fraternal beneficiary association, stipulations specified in this certificate." Nothing is said of constitution or by-laws. unless it increased the risk of loss; but no

unless made with actual intent to deceive or Carpenter promises to pay "when an assessment is required.” The language is more implication therefrom can defeat the explicit consonant with assessment than with frater. prohibitions of St. 1890, c. 421, § 21-pronal beneficiary insurance. The judge was hibitions continued in force by G. L. c. 177, 8

15. right in holding it a contract of assessment

They can stand together. Stocker v. insurance. Harding v. Littlehale, 150 Mass. Boston Mutual Life Ass'n, 170 Mass. 224, 100, 22 N. E. 703; St. 1890, c. 421, § 1.

49 N. E. 116. [2] Section 21 of St. 1890, c. 421, provides It is not necessary to consider whether with reference to assessment insurance, that it was a fatal defect here for the defendunless a correct copy of the application, con. ant to fail to make an express offer to prove stitution, by-laws of rules, if referred to in that the John Carpenter named in the the certificate as having any bearing on the Lowell birth record was the assured John contract, is contained in or attached to the J. Carpenter, who died at Lawrence, The certificate, no such application, constitution, evidence of age at the time of application by-laws or rules shall be received as evi- and of the issue of the certificate was wholly dence, nor shall it be considered a part of immaterial. the policy or of the contract.

Exceptions overruled.

(146 N.E.)

offenses were committed within the limits STATE ex rel. NEAD V. NOLTE, MAYOR. of the city of Norwood, or outside of the (No. 18551.)

city, and within the limits of Hamilton coun(Supreme Court of Obio. Dec. 16, 1924.)

ty. It is presumed that some of them were

committed within the city and others out(Syllabus by the Court.)

side of the city within the county. Before 1. Mandamus na 100–Proper, to determine beginning the action, the taxpayer, under controversy between mayor and municipality date of September 24, 1923, made written reas to right to certain fees collected; only quest, under section 4314, General Code, upconstruction of statute being involved,

on the city solicitor to institute a proceedWhere there is a controversy between aing in mandamus, which request was remunicipality and the mayor thereof over the fused. On September 10, 1923, the taxpayer title to certain fees collected by the mayor, it had made a previous written request upon being admitted by the mayor that the fees were collected and retained by him, and it being ad- the city solicitor that an action be brought mitted by the municipality that the identical to recover the money, and for its payment fees so collected and retained have been kept into the city treasury; that letter making intact, and no other issue of fact being made, no mention of the form of the action. On mandamus at the suit of the city against the September 24, 1923, the same date as the mayor to order the payment of said moneys into second communication of the taxpayer, a the city treasury is an appropriate remedy.

suit was begun by the city solicitor, which 2. Abatement and revival em 5-Suit in manda- action was apparently in form an action to

mus by taxpayer to compel mayor to pay recover money on the ground of conversion, fees into city treasury held maintainable, pursuant to a report of the state bureau of notwithstanding pending action at law by city accounting, stating that the moneys were solicitor against mayor to collect them.

withheld from the city treasury, but makWhere a suit is brought by a city on the ing no “finding for recovery,” under the relation of its solicitor, to recover a judgment provisions of section 286, General Code. against the mayor thereof, and subsequently Whether the action brought by the city thereto a taxpayer makes written request upon the city solicitor to bring an action in manda- solicitor was brought after the receipt of the mus against the mayor to compel the payment of letter of September 24, or before its receipt, the identical moneys for which judgment is does not appear. The taxpayer and his sought in the former action, and the city solici- attorney were evidently dissatisfied with tor refuses to bring such mandamus suit, and that form of action, and on the 26th of Septhe taxpayer thereupon brings suit in manda-tember filed a suit in mandamus. There bemus upon his own relation, and the mayor files po answer in the action at law, but joins issue ing no “finding for recovery" in the report in the action in mandamus, in which he pleads of the bureau of accounting, and the mayor as a defense the pendency of the action at law, never having made any use of the money, the special plea of abatement should be over- but having retained, either in the iron safe ruled.

in his office or in a safety deposit box in a

Cincinnati bank, the identical moneys col3. Municipal corporations en 162(3)-Mayor

not required to pay fees in state cases into / lected by him as fees, there was not a techcity treasury.

nical conversion. The answer makes a deSection 4270, General Code, as amended (108 fense that there is a former suit pending, 0. L. pt. 2, p. 1208), imposes no duty upon and for further defense the mayor claims to the mayor of a municipality to pay into the city be entitled to the fees by virtue of the stattreasury the fees taxed in favor of such mayor utes in such case made and provided. in the hearing of state cases.

The first suit brought has lain dormant, Conn, J., dissenting.

no answer ever having been filed. The man

damus suit promptly proceeded to trial, Error to Court of Appeals, Hamilton Coun- was heard before two of the judges of the ty.

court of common pleas, and judgment was Mandamus by the State of Ohio, on the rendered in favor of the relator. Upon prosrelation of Charles E. Nead, taxpayer, ecution of error to the Court of Appeals, that against Louis H. Nolte, Mayor of Norwood. judgment was reversed and final judgment Judgment for relator was reversed by the entered in favor of the defendant. The cause Court of Appeals, and relator brings error.

was thereupon admitted to this court, upon Affirmed.--[By Editorial Staff.]

allowance of motion to certify the record. This action originated in the court of

Allen C. Roudebush, of Cincinnati, for common pleas of Hamilton county, Ohio, as plaintiff in error. a taxpayer's suit, to require the defendant, Charles S. Bell, Pros. Atty., and Louis H. the mayor of Norwood, to pay into the city Capelle, both of Cincinnati, for defendant treasury certain fees theretofore collected in error. by him in the trial of criminal cases before C. C. Crabbe, Atty. Gen., Chas. M. Earhim for violation of the laws of the state. hart and Arthur H. Wicks, both of ColumThe record does not disclose whether the bus, amici curiæ.

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

MARSHALL, C. J. This record presents | moneys and to have them paid into the treas. to this court two questions for determina- ury must be predicated upon a claim of contion: First, the right of the taxpayer to version, and any adverse judgment against maintain a proceeding in mandamus; sec- him in an action at law would necessarily ond, the right of the mayor of the city of place upon him the stigma of having conNorwood to retain the statutory fees tax- verted moneys belonging to the city. The ed in his favor in state criminal cases. present form of action, as instituted, gives These questions will be discussed in the or him credit for honesty of purpose, and only der named.

submits for determination the construction [1, 2] The first of these questions has of a statute. two branches: (a) Does mandamus lie, or is

Let us next inquire whether this conthere an adequate remedy at law? (b) Does troversy is abated by the pendency of the the pending suit brought by the city solicitor, suit for the recovery of the money, brought which is still pending, abate the suit in man- upon the relation of the city solicitor. By damus brought by the taxpayer? These virtue of section 11309, General Code, in questions will also be disposed of in the or- paragraph 4 thereof, it is provided that it der named.

shall be a ground for demurrer to a peThe evidence offered and received at the tition “that there is another action pending trial contains no dispute upon any point, and between the same parties for the same a review of this record by this court does cause." And, by virtue of section 11311, not in any sense involve a weighing of evi- when such ground of demurrer does not apdence. The mayor had kept all fees taxed pear on the face of the petition, “the obin his favor separate and distinct from any jection may be taken by answer." The obother moneys, and from time to time had jection in the instant case did not appear deposited the same in a private box in a

on the face of the petition, but is pleaded Cincinnati bank, under an agreement between in the answer, thereby presenting the questhe mayor and the bank that the same were tion for determination. held awaiting a determination of the title "At common law the pendency of another to the same. That deposit still awaits a final action was ground for abatement, and be determination of this controversy. This por-Ohio statutes are but declaratory of the tion of the case therefore turns upon the

common law. Although the statutes above proper construction of section 4313, Gen. referred to have been a part of our Code of Code:

Procedure for a long period of time, very “Sec. 4313. In case an officer or board fails little light has been thrown upon those proto perform any duty expressly enjoined by law visions by the decisions of the Ohio courts. or ordinance, the solicitor shall apply to a The diligence of counsel has resulted in no court of competent jurisdiction for a writ of mandamus to compel the performance of such citation of authorities. In the case of Spence duty."

v. Union Cent. Life Ins. Co., 40 Ohio St.

517, it was decided that the pendency of It being sought by mandamus to compel an action on a promissory note secured by the mayor to pay the moneys held by him a mortgage, with a prayer that the amount into the city treasury, and it being claimed due on the note be found, and for decree that this is a duty expressly enjoined upon of foreclosure and sale, but in which no perhim by statute, and there being practically sonal judgment is demanded, is not a bar to no dispute about the facts, but to the con- another action upon the note against the trary, the whole controversy relating to a maker for personal judgment. One of the construction of the statutes of Ohio, a clear actions there involved was a suit in equity; case is presented for the exercise of equity the other, one at law. In the absence of jurisdiction. Section 12283, Gen. Code, pro- interpretation by this court of the Ohio statvides:

ute, and the statute being declaratory of the "Mandamus is a writ issued, in the name of common law, it is proper to turn to the the state, to an inferior tribunal, a corporation, decisions of other states on the subject of board, or person, commanding the performance abatement, on the ground of another suit of an act which the law specially enjoins as pending. There is no lack of authority on a duty resulting from an office, trust, or sta

this subject. It has been decided that a tion."

former bill pending in equity cannot be The identical moneys collected by the pleaded in abatement of a subsequent action mayor are deposited in a safety deposit box at law: Blanchard V. Stone, 16 Vt. 234; in a bank, and, if the money belongs to the Mattel v. Conant, 156 Mass. 418, 31 N. E. 487; city, he should be ordered to make the pay- Moore v. Peirce (Va.) 9 S. E. 1008; Williamment. This conclusion is in perfect har- son, Trustee, v. Paxton, Trustee, 59 Va, (18 mony with the decision of this court in the Grat.) 475; Joslin v. Millspaugh, 27 Mich. case of State v. Staley, 38 Ohio St. 259. 517; Kittredge v. Race, 92 U. S. 116, 23 L.

The mayor should not seriously complain Ed. 488; Black v. Lackey, 41 Ky. (2 B. Mon.) of the action of the courts below on this 257; Julian v. Pilcher, 63 Ky. (2 Duv.) 254; point, because any action at law to recover the Copperthwait v. Dummer, 18 N. J. Law,

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(146 N.E.) 258; Graham v. Meyer, Fed. Cas. No. 5673, be questioned. In the last analysis, there4 Blatchf. 129; Gambling v. Haight, 59 N. fore, this controversy turns upon a proper Y. 354; Hall v. Bennett, 48 N. Y. Super. Ct. construction of section 4270, General Code. 302; Humphries v. Dawson, 38 Ala. 199. The provisions pertinent to this inquiry are

The foregoing cases state the converse of as follows: the situation presented in the instant case.

"Allfines and forfeitures in ordinance cases There are, however, a number of cases which and all fees collected by the mayor, or which in hold that a former suit at law is not a ground any manner comes into his hands, due such of abatement of a subsequent suit in equity. mayor or to a marshal, chief of police or other Way v. Bragaw, 16 N. E. Eq. 213, 84 Am. officer of the municipality and any other fees Dec. 147; Chicago & S. W. R. Co. v. Heard, and expenses which have been advanced out 44 Iowa, 358; Curd v. Lewis, 31 Ky. (1 of the municipal treasury, and all moneys reDana) 351; Hatch v. Spofford, 22 Conn. ceived by such mayor for the use of the munici

pality, shall be by him paid into the treasury 485, 58 Am. Dec. 433; Langstraat v. Nel- 1 of the municipality on the first Monday of each son (C. C.) 40 F. 783.

month, provided that the council of a village in the case of Julian v. Pilcher, 63 Ky. (2 may, by ordinance, authorize the mayor and Duv.) 254, the court, construing sections iden- marshal to retain their legal fees in addition tical with the Ohio Code sections, held that to their salaries, but in such event a marshal a suit to foreclose a lien is not an action shall not be entitled to his expenses. for the same cause as a suit at law to re- Except as otherwise provided by law, all fines

and forfeitures collected by him in state cases cover a personal judgment on a note secured by the same lien. The court made the which have been advanced out of the county

together with all fees and expenses collected, following significant statement:

treasury, shall be by him paid over to the coun"The Code did not intend to make a new rule ty treasury on the first business day of each for determining the identity of causes of action, month." but to enforce the old maxim that no should be twice vexed for the same cause."

Prior to the last amendment, that sec

tion (P. & A. Code, $ 4270) read as follows: Many of the cases above cited hold that abatement will not be ordered in such cases, mayor, or which in any manner comes into his

"All fines and forfeitures collected by the but suggest that the trial court might re- hands, and all moneys received by him in his quire the plaintiff to elect between the two official capacity, other than his fees of office, actions.

shall be by him paid into the treasury of the If, by virtue of section 4314, General Code, corporation weekly. At the first regular meetthe taxpayer has a right to have a suit pros- ing of the council in each and every month, he ecuted, it follows as a necessary adjunct of shall submit a full statement of all such moneys that right that he is entitled to have a form received, from whom and for what purpose re

Allfines, penal. of action which will be effective and ade- ceived, and when paid over. quate.

ties, and forfeitures collected by him in state

cases shall be by him paid over to the county If the principles so uniformly held by oth

treasurer monthly." er jurisdictions shall be applied to the instant case, the question is not one of diffi- It will be observed that several changes culty. The question presents even less dif- were made by the amendment, and it will be ficulty, by reason of the fact that the suit presumed that the Legislature intended that which was brought upon the relation of the certain rights and privileges which existed city solicitor has never been brought to an before, should no longer exist after, the issue, and, in the meantime, the instant case amendment. The case is full of difficulty, has been tried and prosecuted to this court. and has commanded the earnest consideraThe likelihood that the defendant will ever tion of the court. be troubled or embarrassed by the former The conclusion which has been reachsuit seems, therefore, too remote to justify ed by the majority is that the section as this court in dismissing this case upon a amended leaves the fees taxed in favor of question of adjective law.

the mayor in two general classes, to wit, [3] Having found that this action does not ordinance cases and state cases. abate by reason of the former suit pending, lier provisions of the section apply only to and having found that mandamus is an ap- ordinance cases, and the latter provision only propriate remedy, it only remains to deter- to state cases. Taking up the latter provimine whether or not the mayor has a legal sion first, it will be observed that in state right to retain fees taxed in his favor in cases it is the duty of the mayor to pay into

Other sections of the Code the county treasury "all fines and forfeitures make provision for taxation of costs in favor collected by him

together with all of the mayor, who hears and decides minor fees and expenses collected, which have been offenses against the state laws, and who advanced out of the county treasury.” It conducts preliminary hearings in felony requires no elaboration of argument to show cases, and except for certain provisions found that the fees taxed by the mayor are not in section 4270, General Code, as last amend-included within the language quoted. Coned (108 0. L. pt. 2, 1208), his right would not struing the earlier parts of the section, it

The ear

state cases.

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