TWENTY-SIXTH REPORT Judicial Council of Massachusetts For the Year 1950 CONTENTS OF THIS REPORT page 2 I ndex to Statistical T ables •■•••••• T h e A ct C reating t h e C o u n c il —M em b er s of t h e C o u n c il 4 R ecommendations A dopted i n 1950 ...... 5 Reports R equested by t h e L eg isla tu re i n 1950 .... 6 T h e R is in g C ost of A dministering J u st ic e—C ost of J ury T rials— J ury F ee and L o w er F ee for J ury of S ix —D raft A ct 7 J udgments o n U n d ispu t e d F acts i n A ction of C ontract S Contributory N eg lig en ce in C onsequential D amages—D raft A ct 10 T ransfer of D ist r ic t C ourt C ases B eg u n in W rong D istrict 11 D raft A c t ...... R emoval from D ist r ic t C ourts W it h o u t J ury C la im D raft A ct 12 Concurrent J urisdiction of t h e Su perior C ourt—D raft A ct 13 T respass— S. 33— R eport R equested—D raft A ct . . • ■ 15 Adoption— H. 220— R eport R equested—D raft A ct 16 Assessed V alue i n E m in e n t D o m a in C ases—D raft A n 17 23 “C h ip " A t t a c h m e n t s —D raft A c t ...... 25 W aiver of W ills— IT. S10— R eport R equested • Apportionment op D amages due to C ontributory N egligence IT. 124 2S —R eport R e q u e s t e d ...... D ischarge of M ortgages— H. 1306— R eport R equested . 30 T ax T itles F oreclosure— PI. 1709— R eport R equested . 31 E n fo rcem en t of A l im o n y E t c . by P robate R eg isters PL 17-2 38 R eport R e q u e s t e d ...... 39 R ecording C o n d itio n a l Sales— IT. 1727— R eport R equested . D isclosure of I n su r a n c e C overage— IT. 2333— R eport R equested 39 R enew al of R ecommendation as to J ury C ommissioners . 40 N eed of Q uarters and F u n d s for A d ditional A ssist a n c e for i h 41 J udicial C o u n c il —D raft A c t ......
Cumulative T ables of Contents of 16t h to 26t h J udicial Council Reports 1040-1950 ...... Circular Letters of Administrative Committee of th e D istrict Courts of J anuary 8 and September 18, 1950 • Summary of th e Work of th e Various Courts, W ith Statistics .
P ublication op t h is T)ocum :i :tt Approved by Gec p. id J. Cr o n in State P urc h a sin g Ag e n i. 2400-19-50-902891
% > *um
STATISTICAL INDEX TO APPENDIX C
Supreme Judicial Couirt ”8 6 UMRf fF pAGE Full Bench cases and their geographical distribution .... 69 Entries in all counties, other than Full Bench cases, Sept. 1 , 1949- Sept. 1 , 1950, arid details of business in Suffolk County . . . 70 STATE HOUSE, BOSTON
Superior Court:
Pre-trial sessions and R e s u l t s ...... 73 Appellate Division for Criminal Sentences...... 71 Cost of references to Masters and A uditors...... 75 Cases referred to Masters and A u d ito rs ...... 75 Civil business—for year ending June 30, 1950 ...... 85-95 Criminal business for year ending June 30, 1950 ...... 84
Land Court business for 1949-50 .... 75 Probate Court business in all counties in 1949 . 97 District Courts for year ending October 1 , 1950 . facing 53 District Courts—Six Year Comparative Table . 53 Municipal Court of the City of Boston . 76 Civil business, summary .... 76 Civil business in more detail 82-83 Sub-division—Contract and Tort 77 Tort Entries, Removals and Trials 77 Supplementary Process Entries . 77 Summary Process (Ejectment) Entries 77 Small Claims, summary .... 77 Criminal business for year ending Sept. 30, 1950 78
Boston Juvenile C o u r t ...... 79
Trial J u s t i c e s ...... 73
Industrial Accident Board—Business and C o s t...... 79 Appellate Tax B o a rd ...... §0 (AHI iJy 1 ° | 5 ~ 0 B
01ir (inntimnmu'nltb of HasaadjUBrito
D ecember, 1950 To His E xcellency, P aul A. D ever Governor of Massachusetts
In accordance with the provisions of section 34B of chapter 221 of the General Laws (Ter. Ed.) we have the honor to transmit the twenty-sixth annual report of the Judicial Council for the year 1950. FRANK J. DONAHUE, Chairman, WILFRED J. PAQUET, Vice-Chairman, LOUIS S. COX, JOHN E. FENTON, JOHN C. LEGGAT, DAVIS B. KENISTON, FRANK L. RILEY, FREDERICK J. MULDOON, REUBEN L. LURIE, CHARLES W. BARTLETT. Acts op 1924, Chapter 244 As amended by St. 1927, c. 923, St. 1930, c. 142, and St. 1947, c. 601 Now appearing as G. L. (Ter. Ed.) Ch. 221, §§ 34A-34C
An Act providing for the E stablishment of a J udicial Council to make a Continuous Study of the Organization, P rocedure and P ractice of the Courts.
Be it enacted, etc., as follows: Chapter two hundred and twenty-one of the General Laws is hereby amended by inserting after section thirty-four, under the heading “Judicial Council,” the following three new section—Section 34A. There shall be a Judicial council for the continuous study of the organization, rules and methods of procedure and practice of the judicial system of the common wealth, the work accomplished, and the resuits produced by that system and its various parts. Said council shall be composed of the chief justice of the supreme judicial court or some other justice or former justice of that court appointed from time to time by him; the chief justice of the superior court or some other justice or former justice of that court appointed from time to time by him; the judge of the land court or some other judge or former judge of that court appointed from time to time by him; the chief justice of the municipal court of the city of Boston or some other justice or former justice of that court appointed from time to time by him; one judge of a probate court in the commonwealth and one justice of a district court in the commonwealth and not more than four members of the bar all to be appointed by the governor, with the advice and consent of the executive council. 'The appointments by the governor shall be for such periods, not exceeding four years, as he shall determine.
Section 34B. The Judicial council shall report annually on or before December first to the governor upon the work of the various branches of the judicial system. Said council may also from time to time submit for the consideration of the justices of the various courts such suggestions in regard to rules of practice and procedure as it may deem advisable.
Section 3 4 C. No member of said council, except as hereinafter provided, shall receive any compensation for his services, but said council and the several members thereof shall be allowed from the state treasury out of any appropriation made for the purpose such expenses for clerical and other services, travel and incidentals as the governor and council shall approve. The secretary of said council, whether or not a member thereof, shall receive from the commonwealth a salary of five thousand dollars.
MEMBERS OF THE COUNCIL F rank J. D o n ahu e of Boston, C h a irm a n
W ilfr ed J. P aquet of W a te rto iv n
L outs S. Cox of Law rence J o h n E. F en to n of Lawrence J o h n C. L eggat of Lowell D avis B. K e n ist o n of Boston F ran k L. Ril e y of W orcester F rederic J. Muldoon of Winthrop R eu ben L. L u rie of Brookline Charles W. B artlett of Dedham
F rank W. Gr in n e l l , S r ere ta r n , 00 State St... Boston TWENTY-SIXTH REPORT OF THE JUDICIAL COUNCIL OF MASSACHUSETTS To His Excellency P aul A. D ever Governor of Massachusetts
The Judicial Council was created by St. 1924, Chapter 244 (See copy printed on opposite page), “for the continuous study of the organization, rules and methods of procedure and practice of the judicial system of the Commonwealth, the work accomplished and the results produced by that system and its various parts.”* Since the last report the term of Samuel P. Sears expired and Charles W. Bartlett of Dedham was appointed by Your Excellency as a member of the Council for a four year term. Wilfred J. Paquet was chosen vice-chairman by the Council.
R ecommendations A dopted in 1950 During the last session of the legislature the following recom mendations were adopted by the legislature. The recommenda tions adopted appear in the statute book for 1950 as:— Chapter 119, increasing entry fees in the Supreme Judicial and Superior Courts and before county commissioners from $3 to $5, and in the District courts, for cases, other than Small Claims, from $1 to $2. This is the first change since 1884 and was recom mended in the 25th report in view of the rising cost of the ad ministration of justice, for reasons stated, at length, on pages 7-14 of that report (reprinted in 34 Mass. Law Quarterly No. 5, Decem ber, 1939). This was followed by Chapter 500 providing the same entry fee of $5.00 for entry in the Superior Court of cases removed from the District Courts. Chapter 589, increasing certain fees in the Land Court. This was recommended in the 25th report p. 19 “because of the in creased cost of clerical and engineering services and of the postage involved in the items to which the fees applied”.
* In 1925, the legislature also submitted the following request to the council.
1 9 2 5 R e s o l v e s , C h a p t e r 27 “Resolved, That the judicial council is hereby requested to investigate ways and means for expediting the trial of cases and relieving congestion in the dockets of the Superior Court, and among other things . . . ways and means for encouraging, so far as consistent with constitutional rights, trials^ without jury . . . and any other ways and means that may appear feasible to said council for improving and modernizing court procedure and practice so that, consistently with the ends of justice, the proverbial delays of the law and attendant expense, both to litigants and the general public, may be minimized. (Approved April 24, 1925.)” 6 JUDICIAL COUNCIL P.D. 144
Chapter 387, relative to equitable replevin (see 25th report p. 28). Chapter 390, relative to ancillary probate of a will (for reasons see 25th report pp. 26-27). Chapter 391, relative to concurrent jurisdiction of the Superior Court in connection with revival of actions against executors and administrators (see 25th report p..40). Chapter 420 relative to jurisdiction of the probate courts to ap point successor guardians (see 25th report p. 41). Chapter 426 constituting pleas of guilty or verdicts of guilty in felony cases, convictions of crime for the purpose of affecting the credibility of witnesses (see 25th report p. 39 for reasons). Chapter extending the concurrent jurisdiction of the probate Courts relative to the support of poor persons by “kindred” under various statutes (see 25th report p.p. 35-36). The negative recommendations of the Council as to certain other matters on which reports were requested by the legislature, were followed.
R e p o r t s R e q u e s t e d b y t h e L e g is l a t u r e i n 1 9 5 0
This year the “subject matters” of nine bills, pending before the legislature, were referred to the Council with requests for a report, as follows:— House 810—Relative to waiver of wills (referred by Resolves, Chapter 4). House 1241—Relative to apportionment of damages due to con tributory negligence (referred by Resolves, Chapter 5). House 1709—Relative to procedure for the foreclosure of tax- titles (referred by Resolves, Chapter 6). House 1722—To provide for enforcement of decrees for alimony and non-support by registers of probate (referred by Resolves, Chapter 8). House 1727—Relative to recording conditional sales of personal property (referred by Resolves, Chapter 12). P.D. 144 REPORT 7
House 1306—Relative to the discharge of mortgages (referred by Resolves, Chapter 13). Senate 33—Relative to trespass (referred by Resolves, Chapter 15). House 2333—To require insurance companies to disclose motor vehicle insurance coverage in excess of the required minimum (referred by Resolves, Chapter 18). House 220—Relative to adoption proceedings (referred by Re solves, Chapter 27). We discuss these matters in this report.
The Cost of J uries and the P roposal for a F ee for a J ury of T welve and a Lower F ee for a J ury of Six . In the 23rd, 24th and 25th reports we discussed the rising public cost of the administration of justice (which has been the subject of repeated discussions for about twenty years), and recommended moderate increases in fees to lessen the burden of public expense carried by the counties for the benefit of the small minority of the population who are concerned in litigation. The legislature followed the recommendation by chapter 119 of 1950 increasing the entry fees in the Superior Court from $3 to $5 and in the district courts for cases other than small claims from $1 to $2. The fee for small claims was left at $1, as provided by G. L. c. 218 §§ 21-25. Entry fees for cases removed from the District Courts were also raised to $5 by chapter 500. As stated on p. 14 of the 25th report, the over-all public cost of jury trials alone in 1947 was estimated as about $1,224,000 and on pp. 16-17 of the 25th report, tables appear showing the total amounts paid to jurors in 1948 for compensation and travel in each county for civil and criminal cases making a total of $739,100.50. By chapter 335 of 1949 the daily compensation of jurors was in creased from $6 to $8, thus raising the probable public cost of jurors alone to almost $1,000,000. In view of these facts we said, “It is no disparagement of the right to jury trial to suggest that the tax payers deserve some slight consideration in the light of these figures.” We, therefore, recommended a fee for a claim of trial by a full jury of twelve in civil cases of $15 and a lower fee of $5 for a claim of a jury of six, and in connection with that recommendation we stated that s JUDICIAL COUNCIL P.D. 144
“We believe many litigants would be satisfied with a trial before a jury of six. . . . We believe such a provision would result in a substantial public sav ing to the various counties by the use of smaller juries. The extent of such savings can be ascertained only by trying the experiment. The whole situation will be optional. The mechanics of the plan can be worked out by the court by having a separate list of cases for juries of six so that the number of jury men needed might be estimated. It can do no harm to provide for it and, we, therefore, recommend it.” For the same reasons we again renew the recommendation and submit the following DRAFT ACT Section 1. Section 4 of chapter 262 of the General Laws, as most recently amended by chapter 119 of the acts of 1950 is hereby further amended by inserting therein the following:— “For filing a claim for jury trial, or a motion to frame issues in the Superior Court for jury trial, or for the entry in the Superior Court of such issues framed by the Land Court, or by a Probate Court, and transmitted to the Superior Court, for trial, fifteen dollars, but, if a claim is made, or a motion is made, or issues thus transmitted, for a trial by a jury of six, instead of a full jury of twelve, five dollars.” Section 2. Section 60 of Chapter 231 of the General Laws is hereby amended by substituting there for the following:— “Section 60. Separate lists of cases to be tried by jury, and by a jury of six, shall be kept in the Superior Court and no action shall be entered thereon, except as otherwise expressly provided, unless a party, before issue joined, or within ten days after the time allowed for filing the answer or plea, within ten days after the answer or plea, has, by consent of the plaintiff or permission of the court, been filed, or within such time after the parties are at issue as the court may by general or special order direct, files a notice that he desires a jury trial, or a trial by a jury of six; but in a case in which damages are demanded, the court may of its own motion refer the assessment thereof to a jury.”
J udgment on I ssues in Actions op Contract w h ic h there is no D ispute of F act. A bill on this subject (House 486 of 194S) was referred to the Council by Resolves Chapter 6 of 1948. The Council revised the bill and recommended a new draft in its 24th report in 1948. It was not adopted and the Council renewed its recommendation in its 25th report. This year the bill was reported favorably by the Judiciary Committee, passed the House and was ordered to a 3rd reading in the Senate. It was then referred to the next legislative session. P.D. 144 REPORT 9
For the reasons stated in our 25th report (pp. 24-25) we, again, recommend the passage of this bill. For many years the legislature has been considering the problems of reducing delay and unnecessary waste of time in the disposition of judicial business, and suggestions have been made in the reports of the Council, many of which have been adopted. The volume of cases for trial, somewhat reduced during the war, is again increasing at increasing expense to the public and to litigants. It would seem clear that reasonable procedure to avoid both expense and waste of time of courts should be provided wherever possible. The proposed bill is one of the methods of accomplishing this result in cases in which there are no disputes of fact, but only ques tions of law for decision, and it applies only to actions of contract. As pointed out in the 25th report, experience with such procedure in New \rork, Michigan, Illinois and under the Federal rules has proved effective. The bill which we recommend is specially guarded in its wording by the words printed, in italics in the draft submitted herewith. No one has a right to a trial of facts which are undisputed and the bill emphasizes the fact that it is applicable only to undisputed facts. We recommend the following:
DRAFT ACT
An Act to permit summary judgment on issues in w h ic h there is no dis pute OF FACT IN ACTIONS OF CONTRACT.
Section 1. Chapter 231 of the General Laws is hereby amended by striking out section 59 and the caption immediately preceding it, as appearing in the Tercentenary Edition, and inserting, under the caption motions for summary judgment, the following section:— Section 59. In any action of contract, except an action against an executor or administrator for liability of the deceased, at any time after the comple tion of the pleadings counsel for either party may file an affidavit that in his belief there is no genuine issue of material fact but only questions of law in connection with all or some part of the action, or of some issue deter minative thereof, and move for an immediate entry of judgment thereon. Said motion may be accompanied by affidavits on personal knowledge of admissible facts as to which it appears affirmatively that the affiants would be competent to testify. The facts stated in the accompanying affidavits shall be taken to be admitted for the purpose of the motion unless within twenty-one days, or such further time as the court may order, contradictory affidavits are filed, or the opposing party shall file an affidavit showing spe cifically and clearly reasonable grounds for believing that contradiction can be presented at the trial but cannot be furnished by affidavits. Copies of all motions and affidavits hereunder shall be furnished upon filing to opposing 10 JUDICIAL COUNCIL P.D. 144
counsel. If admissions in the pleadings, interrogatories, admissions under chapter two hundred and thirty-one, section sixty-nine, stipulations or affidavits hereunder show affirmatively, that except as to the amount of damages no genuine issue of material facts exists and that there is nothing to be decided except questions of law, an order for default, or judgment for the moving party, shall forthwith be entered if he shall be entitled thereto as a matter of law, subject to an assessment of damages, if required.
Section 2 . Said chapter 231 is hereby further amended by striking out section 59A, as so appearing, and inserting in place thereof, under the caption advancing causes FOR SPEEDY trial, the following section:— Section 59A. In any action at law or suit in equity in the supreme judicial court or in the superior court, the court may on motion for cause shown advance said action or suit for speedy trial. If, in an action removed by the defendant from a district court, the court is satisfied, upon an inspection of the declaration, that the plaintiff seeks to recover solely for his personal labor, with or without interest, the court shall, upon motion, advance such action for speedy trial. NOTE Section 2 of the bill does not change the law, but merely transfers a sentence now in Section 59 to Section 59A where it belongs.
Contributory N egligence in Claims for Consequential Damages Section 85 of G. L. Chapter 231, as amended by Chapter 386 of 1947, now provides: “Section 85. In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, or consequential damages arising out of such injuries or death, the person injured or killed or the person chargeable with his conduct shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.” Section 85D, inserted by Chapter 352 of the Acts of 1945, pro vides: “Section 85D. In all actions to recover damages for injury to the person or property of an infant, the negligence of the parent or other custodian of the infant shall not be imputed to the infant from the facts of such parent hood or custodianship.” These two sections do not place the burden on the defendant of proving contributory negligence in all claims for consequential damages (See Mendolia v. White, 313 Mass., 318, at p. 321). We think they should all be covered and recommend the following draft act, which, if passed, will make Section 85D above quoted unnecessary. P.D. 144 REPORT 11
D R A F T A C T
Section 1. Section 85 of Chapter 231 of the General Laws as amended by Chapter 386 of the Acts of 1947 is hereby amended by striking out the same and substituting the following: Section 85. In all actions, civil or criminal, to recover for death, personal injuries, damages to property or consequential damages, the burden of proving contributory negligence on the part of the person killed or injured or damaged in his property, or caused to sustain consequential damages, or of his agent or custodian or any other person whose conduct is im puted to him, shall be an affirmative defence to be set up in the answer and proved by the defendant. Section 2. Section 85D of said Chapter (inserted by Chapter 352 of th e Acts of 1945) is hereby repealed.
Transfer of D istrict C ourt Cases to a P roper D istrict W h e n B egun in tfie W rong D istrict
I f a suit is begun in the Supreme Judicial or the Superior Court in the wrong county, Section 15 of Chapter 223 of the General Laws provides that the court may transfer it to the proper county for trial. This section does not apply to the district courts. A Probate Court may also order a transfer (see G.L. 215 s. SA). In these days when people frequently move from one place to another it may be difficult to know the legal residence of a defendant and if a mistake appears we see no reason why the law should provide that it can be cured by transfer in some court but not in others. Under the present statutes a plaintiff in a district court may, be cause of a mistake in locating a defendant correctly, be caught in such a way as to lose the benefit of an attachment or otherwise. By Section 32 of Chapter 260 he is protected from the bar of the Statute of Limitations for one year during which he can begin a new suit in the proper district, if the defendant does not waive the question by a general appearance. We see no reason, however, why either the plaintiff, or the clerk’s office, for a mere mistake in the place of suit, should be subjected to possible loss and the necessity of filing more papers in another court, thus cluttering up the court files and requiring new service of process when the waste of time, money and clerical burden can be avoided by a mere transfer of the case and the papers on payment of a second entry fee to the court to which the case is transferred. Section 4A of Chapter 246 (inserted by St. 1921 c. 417) protects a defendant in an action begun by trustee process as follows: 4 a Change of venue in District Courts. Whenever an action is commenced by trustee process in a district court in the district in which the party named in 12 JUDICIAL COUNCIL P .D . 144
the writ as trustee lives or has his usual place of business, which could not be brought in that district except because of the residence or place of business of the trustee, the court may on motion of any party thereto transfer such action for trial and final disposition to any other district court in which the action might have been commenced had there been no trustee named in the writ. (1921, 417.) We think the plaintiff should have a similar opportunity of transfer in case of an error as to the place of suit on payment of an additional entry fee for entry in the proper court. Bringing a case in the wrong district court appears to invoke a question of venue which may be waived and not of jurisdiction (See Paige v. Sinclair 237 Mass. 482) but, to avoid misunderstanding on this point, we recommend the following:
D R A F T A C T
Chapter 218 of the General Laws is hereby amended by inserting, after Section 2, the following new Section: Section 2A. Each district court shall have civil jurisdiction of actions local or transitory begun in such court which should have been brought in some other district court, to the extent that the court in which the action is begun may try and dispose of the case if the question of venue is waived or, if not waived, the court may, on motion of any party, order the action with all papers relating thereto, transferred for trial or disposition to any other district court in which the action might have been commenced and it shall, thereupon, be entered and prosecuted in such court as if it had been originally commenced therein and all prior proceedings otherwise regularly taken shall, thereafter, be valid. An additional entry fee for entry in the court to which the case is transferred shall be paid to the clerk of the transmitting court fot transfer with the papers.
R emoval of C ases from D istrict C ourts W ith o u t C laim of J ury T rial The present statutes—sections 104 and 105 of Chap. 231 of the Gen. Laws as amended by chapter 316 of 1929 and chap. 426 of 1931 provide an action begun in the district court for an amount not exceeding the jurisdictional amounts as of September 1, 1929 (i.e. $5,000 in the Municipal Court of the City of Boston and $3,000 in all other district courts) may be removed to the superior court by a defendant, only if a jury trial is claimed. If the amount involved exceeds those limits the case may be removed to the superior court for trial “with or without jury”. While the require ment of a jury claim for removal may have been advisable origi nally when the removal system was first provided for in 1912 and until the jurisdictional limits were removed in 1929, we think it is no longer advisable to require a jury claim in some cases and P .D . 144 REPORT 13 not in others. We think it may stimulate claims for jury trial which is not really desired. We, therefore, recommend that all cases may be removed without a jury claim. This change will eliminate the need of Section 105 and we see no need of retaining Sections 2, 3 and 4 of the same chapter as joinder of parties is more fully covered by Chapter 350 of the Acts of 1943. We recommend the following: D R A F T A C T
An A c t to E l i m i n a t e t h e N e c e s s i t y o p a C l a im f o r Jurtr T r ia l i n O r d e r
to R e m o v e a C a u s e f r o m t h e D i s t r i c t C o u r t s
Section 1. Section one hundred and four of chapter two hundred and thirty-one of the General Laws is hereby amended by striking out said section and substituting the following:
Section one hundred and four—No other party to such action shall be entitled to an appeal. In lieu thereof any defendant may within two days after the time allowed for entering his appearance file in said court a claim of trial by the Superior Court together with the sum of five dollars for the entry of the cause ofeach plaintiff in the Superior Court, and, except as provided in section 107 as amended, a bond in the penal sum of one hundred dollars, with such surety or sureties as may be approved by the plaintiff or the clerk or an assistant clerk of said district court payable to the other party or parties to the cause conditioned to satisfy any judgment for costs which may be entered against him in the Superior Court in said cause within thirty days after the entry thereof. The clerk shall forthwith transmit the papers and entry fee to the clerk of the Superior Court, except that if such trial by the Superior Court is not claimed as to some parties to the action, the district court shall retain jurisdiction as to those parties, and the clerk shall transmit attested copies of the papers in lieu of the originals. Any case re moved to the Superior Court under this section shall proceed as though originally entered there.
Section 2. Sections two, three, four and one hundred and five of chapter two hundred and thirty-one are hereby repealed.
C oncurrent J urisdiction of t h e Superior C ourt Following discussions of many years and recommendations of the Judicature Commission in its Final Report in 1920 and of the Judicial Council in its 13th and 14th reports, the concurrent jurisdiction of the Superior Court (by chap. 257 of the acts of 1939) was extended to cover various prerogative writs and matters of equity formerly in the “original and exclusive” jurisdiction of the Supreme Judicial Court. The purpose of the act was to re lieve the Supreme Judicial Court of work which interfered with 14 JUDICIAL COUNCIL P .D . 144 its appellate work and could be properly dealt with in the first instance by the Superior Court. The class of cases to which the concurrent jurisdiction was thus extended was defined in the act. The act of 1939 was amended by chapters 28 and 180 of 1941 re storing such “exclusive jurisdiction” which the Supreme Judicial Court had of matters relating to banking and insurance under chapters 168, 172, 175, 176 and 178. We respectfully suggest that this action of 1941 was a mistaken policy but we are not now concerned with that. The present statute (section 1A of chap 213, as thus amended), reads in part— “Section 1A. The superior court shall have original jurisdiction, concur rently with the supreme judicial court, of all proceedings relating to habeas corpus, certiorari, quo warranto and informations in the nature of a quo warranto, mandamus (except a writ of mandamus to a court or a judicial officer), and also of all matters relating to the dissolution of corporations, and oj aU cases and matters oj equity oj which the supreme judicial 'court has had exclusive original jurisdiction under section two oj chapter two hundred and fourteen or otherwise, . . Then follows the list of exceptions. As indicated in italics the act reads “and of all cases and matters of equity of which the Supreme Judicial Court has had exclusive original jurisdiction under section two of chapter 214 or otherwise, other than, etc. The unfortunate words “has had” appear to fix the date as of 30 days from April 11, 1941, when the act was approved. Since 1941 a number of statutes have been passed providing for enforcement by a court and the Supreme Judicial Court is mentioned without a provision for concurrent jurisdiction of the superior court. For instance sec. 77 of chap. 130 inserted by St. 1941 chap. 598 s. 1, relates to enforcing rules as to pollution of shell fish against cities and towns. We see no reason why this sort of thing should be loaded on to the Supreme Court. We have been furnished by the commissioners to revise the General Laws with a considerable list of statutes, passed since 1939, specifying the Supreme Judicial Court, only, as the tribunal for enforcement proceedings and we are informed that their report to the legislature of 1951 will probably contain recommendations for amending most of these, as well as earlier statutes listed in an article in the “Bar Bulletin” for May 1941 (pp. 104-10S), by providing for concurrent jurisdiction where there is no sufficient reason for ex clusive jurisdiction. P.D. 144 REPORT 15
We recommend careful consideration of such suggestions as we think the policy gradually developed and specially emphasized by the act of 1939 of protecting the time and strength of the court of last resort for the adequate performance of its appellate work, is a sound policy in the public interest. It is, of course, easy, in the midst of many legislative questions to overlook the need of providing for concurrent jurisdiction in order to maintain this policy and, to guard it, we suggest a general pro vision in the chapter 4 of the General Laws, containing definitions, as follows. D R A F T A C T
Chapter 4 of the General Laws is hereby amended by inserting at the end of section 7, the following new clause.
Supreme Judicial Court—When to Have Concurrent Jurisdiction—Words conferring original jurisdiction or jurisdiction of appeals from an administration board or officer on the Supreme Judicial Court shall be held to mean concurrent jurisdiction with the superior court unless it is expressly provided that such jurisdiction of the Supreme Judicial Court is to be exclusive.
Senate 33 about T respass. By Resolves chapter 15 the subject matter of Senate 33 was re ferred to the Council with a request for a report. The bill to render “more effective the remedies against certain trespassers” is printed in a footnote on p. 16.* It would increase from twenty to fifty dol lars the penalty for violation of section 120 of chapter 266 of the General Laws, as amended by section 45 of chapter 426 of the acts of 1931, which now provides a penalty. This section first enacted in 1862 for the protection of fruit trees, etc. was gradually broadened to include other trespasses on improved land after notice not to do so. With the coming of motor cars such trespasses often take the form of the prolonged parking of cars in private ways, or on private premises, regardless of notices. The proposed law would include this parking trespass, specifically, in section 120 and stiffen the penalty which the court may impose when the facts of the trespass, or repeated, or defiant, trespass warrant a higher penalty. We recommend the passage of the bill in the following revised
D RAFT ACT (new matter 'printed in italics)
An Act r e n d e r i n g m o r e e f f e c t iv e t h e r e m e d i e s a g a in s t c e r t a in trespassers .
Section 120 of chapter 266 of the General Laws as appearing in the Ter centenary Edition is hereby amended by striking out the same and substituting the following:—
Section 120. Whoever, without right, enters or remains in or upon the 16 JUDICIAL COUNCIL P .D . 144
dwelling house, buildings, boats or improved or enclosed land, wharf or pier of another, or -private ways so designated by a posted notice, after having been forbidden so to do by the person who has the lawful control of said premises, either directly or by notice posted thereon, or whoever shall allow, permit or suffer any vehicle registered in his name to stand or park in such improved or enclosed land, wharf or pier of another, or private ways so designated by a posted notice, or whoever as driver of a vehicle shall so do, after having been forbidden so to do as aforesaid shall be punished by a fine of not less than ten dollars nor more than one hundred dollars.
In any proceeding for violation of this section, evidence that at the time of such parking the vehicle was registered in the name of the defendant as oumer shall be prima facie evidence that it was parked by and under the control of a person for whose conduct the defendant was legally responsible. A person who is found committing such trespass may be arrested by a sheriff, deputy sheriff, constable or police officer and kept in custody in a convenient place, not more than twenty-four hours, Sunday excepted, until a complaint can be made against him for the offence, and he be taken upon a warrant issued upon such complaint.
H. 220 R elative to A doption P roceedings The subject matter of this bill was referred to the Council by Resolves Chapter 27. The bill reads: “An A c t R e l a t iv e to a F a t h e r ' s L ia b i l i t y , i n A d o p t io n P r o c e e d in g s , to
S u p p o r t H i s M i n o r C h i l d r e n .
“Chapter 210 of the General Laws is hereby amended by adding to section 3 the following new paragraph:—-
“For the purposes of this section the common-law duty of a father to support his minor child shall continue notwithstanding any court decree granting custody of such child to another; provided, however, that where such decree stipulates an amount to be paid by him for said child’s support he shall not be obligated in excess of that amount.”
FOOTNOTE TO P. 15— S. 35 AS REFERRED TO THE COUNCIL. * Section 120 of chapter 2(50 of the General Laws, as most recently amended by section 45 of chapter 426 of the acts of 1931, is hereby further amended by striking out. in the sixth line, tlie word “twenty” and inserting in its place the w ord:— fifty, — and by inserting after the first sentence thereof the following new sentences :■— Xo person shall allow, permit or suffer any vehicle registered in his name to stand or park in such improved or enclosed land, wharf or pier of another. In any proceeding for nidation of this section, evidence that at the time of such parking the vehicle was registered in the name of the defendant as owner shall he prima. facie evidence that it was parked by and under the control of a person for whose conduct the defendant was legally responsible., — so as to read as follows:-— Whoever, without right, enters or remains in or upon the dwelling house, buildings, boats or improved or enclosed land, wharf or pier of another, after having been forbidden so to do by the person who has the lawful control of said premises, either directly or by notice posted thereon, shall be punished by a fine of not more than fifty dollars. .Vo person shall allow, permit or suffer any vehicle registered in his name to stand or park in such improved or enclosed land, wharf or pier of another. In any proceeding for violation of this section, evidence that at the time of such parking the vehicle was registered in the name of the defendant as owner shall be prima facie evidence that it was parked by and, under the control of a person for whose conduct the defendant was legally responsible. A person who is found committing such trespass may be arrested by a sheriff, deputy sheriff, constable or police officer and kept in custody in a convenient _ place. not more than twenty-four hours, Sunday excepted.^ until a complaint can be made against him for the offence, and he be taken upon a warrant issued upon such complaint. P.D. 144 REPORT 17
The bill was introduced by Judge Hanlon of the Berkshire Pro bate Court at the suggestion of probate judges. The statement of the reasons for the bill, submitted to the Council follows:
Letter jrom Judge Hanlon, petitioner for H. 220
“The purpose of this bill is to add a sentence to Section 3 of Chapter 210 so as to enable a couple to adopt a child against the wishes of the child’s father if he has wilfully deserted or neglected to provide proper care and maintenance for said child for one year next preceding the date of the adoption petition.
“Section 3, as it now stands, seems, at first blush, to cover this situation, but as a result of the decision in Broman v. Byrne, 322 Mass. 578, there is a rather glaring loophole. In that decision the Court said ‘If the father is de prived of the custody of his child by order of the Court, the common law duty to support ceases and, apart from statute, his obligation in this respect is then to be determined by judicial decree. In the present case, after the custody of the child was given by decree to the petitioner, in the absence of any order of Court the respondent was no longer liable for its support . . . Since the respondent has not consented to the proposed adoption and it does not appear that he has wilfully deserted or neglected to provide proper care and maintenance for the child in accordance with the provisions of Chapter 210, Section 3, the decree is reversed and a decree is to be entered dismissing th e p e titio n ’.
“In other words, what this case says is that the father of a child whose custody has been given to the mother (or some third party) is only obligated to support it to the extent ordered by the Court in the custody proceedings.
“But here is the difficulty: It has long been the law that no alimony or support order may be entered against a libellee or respondent unless he is personally served within the Commonwealth, or unless his property within the Commonwealth has been attached. Schmidt v. Schmidt, 280 Mass. 216 at 219; Parker v. Parker, 211 Mass. 139; Pennoyer v. Neff, 95 U. S. 714.
“Consequently a man who is divorced by his wife but who was outside the Commonwealth so that personal service on him within the Commonwealth was impossible, can decline to give any support whatsoever to his child for one year or for ten years and can still prevent that child from being adopted. No order for support could be made against him because he was not served with process within the Commonwealth, and so by the doctrine of Broman v. Byrne he has not been guilty of deserting or neglecting to provide proper care and maintenance for his child within the meaning of Section 3 of Chapter
210.
“The proposed bill is designed to cover just such a situation as arose in Broman v. Byrne and to require a father to support his child whether it is in his custody or the custody of another or else submit to its adoption. He should not be permitted to block a good adoption when he himself will not support the child. 18 JUDICIAL COUNCIL P .D . 144
“I know of no other way to overcome the situation arising out of the decision in Broman v. Byrne. If there is any other way, I would, of course, be in favor of it if it is preferable to House Bill No. 220.” The purpose of the bill seems to us a good one. In the case of Broman v. Byrne, referred to, the wife was granted a divorce and sole custody of the child, but without any order or support against the divorced husband. She married again, and then with her second husband petitioned for adoption of her own child. The adoption was not allowed for the reasons stated. The case of Barry v. Sparks, 306 Mass. 80 at pp. 83-84 says that after a divorce decree if the wife dies the “common law liability” revives. Also there is the parallel statutory liability under G.L. c. 117 s. 6 which has existed ever since 1692 (see 25th report of Judicial Council, reprinted in M.L.Q. for Dec. 1949, pp. 33-34). The act recommended on p. 35 has become chapter 485 of 1950. In Dumain v. Gwyne, 10 Allen 270 the court enforced an adoption agreement made by the wife without the husband while he was in jail. The cases all say the interest of the child is paramount. See Stimson v. Meegan, 318 Mass. 459. In Foss v. Hartwell, 168 Mass. 66, 67 the court left undecided whether the liability to support was legal or moral. Since then the court has said it is a common law liability. Following the idea applied in Dumain v. Gwyne as to the paramount interest of the child, if the sole custody has been given by decree to one parent or a third person (such as a grandmother) without an order for support by the father, we think the court should be in a position, if the facts found justify it, to allow the adoption without his consent, as was done in the Gwyne case be cause of the interest of the child. We therefore, recommend the following. D R A F T A C T
Section 1. Section 3 of chapter 210 of the Gen. Laws as amended by chap. 239 of the Acts of 1945 is hereby amended by inserting after the word commonwealth ’ in the seventh line thereof the words, “or of the United States or any other state or territory thereof”, and by inserting after the word “petition” in the 11th line thereof the following:
“or if the lawful parents of the child have been divorced or separated by judicial decree and the sole custody of the child awarded by judicial decree to one of the parents or some other person without an order of support by the other parent and if such decree is still in force and such other parent has wilfully neglected to contribute voluntarily a proper amount for the care and maintenance of the child for one year immediately preceding the date of the filing of the petition.” So that the section shall read as follows (the words inserted being 'printed in italics). P.D. 144 REPORT 19
“Section 3. Consent Not Required in Certain Cases; Notice of Petition if Child Supported by Town, etc.—The consent of the persons named in section two, other than the child or her husband, if any, shall not be required if the person to be adopted is of full age, nor shall the consent of any such person other than the child be required if such person is adjudged by the Court hearing the petition to be hopelessly insane, or is imprisoned in any penal institution in this commonwealth or of the United States or any other state or territory thereof under sentence for a term of which more than three years remain unexpired at the date of the petition; or if he has wilfully deserted or neglected to provide proper care and maintenance for such child for one year last preceding the date of the petition or if the lawful parents of the child have been divorced or separated by judicial decree and the sole custody of the child awarded by judicial decree of a court of this or any other state or territory of the United States to one of the parents or some other person without an order of support by the other parent and if such decree is still in force and such other parent has wilfully neglected to contribute voluntarily a proper amount for the care and maintenance of the child for one year immediately preceding the date of the filing of the p e titio n ; or if he has suffered such child to be supported for more than one year continuously prior to the petition by an incorporated charitable in stitution or by a town or by the commonwealth; or if he has been sentenced to imprisonment for drunkenness upon a third conviction within one year and neglects to provide proper care and maintenance for such child; or if such person has been convicted of being a common night walker or a lewd, wanton and lascivious person, and neglects to provide proper care and maintenance for such child. A giving up in writing of a child, for the purpose of adoption, to an incorporated charitable institution or the de partment of public welfare shall operate as a consent to any adoption subsequently approved by such institution or said department. Notice of the petition shall be given to the department of public welfare, if the child is supported by a town or by the commonwealth, and if the child is sup ported by a town, notice shall also be given to the board of public welfare thereof, and in Boston, said notice shall be given both to the overseers of the public welfare in the city of Boston and to the institutions department.”
ASSESSED VALUATION AS EVIDENCE IN LAND DAMAGE CASES General Laws, chapter 79, section 35 now provides
“Evidence of Assessed Value of Land Taken or Injured”—
“The valuation made by the assessors of a town for the purposes of taxa tion for the three years next preceding the date of the taking of or injury to real estate by the commonwealth or by a county, city, town or district under authority of law may, in proceedings, brought under section fourteen to recover the damages to such real estate, the whole or part of which is so taken or injured, be introduced as evidence of the fair market value of the real estate P .D . 144 •20 JUDICIAL COUNCIL
by any party to the suit; provided, however, that if the valuation of any one year is so introduced, the valuations of all three years shall be introduced in evidence. (1913, 401, s. 1, 2; 1915, 281; 1918, 257, s. 187, subs. 35; 1919, 5; 297; 1920, 2.)” This statute was passed in 1913, at a time when real estate values moved in a closer range than they have in lecent years. Purchasers and mortgage lenders at that time regarded the assessed value as a material factor in the price to be paid and the amount to be lent. For some years the assessed value has not been used as a factor in purchases and mortgage loans. There were 6,754 cases from all over Massachusetts pending before the Appellate Tax Board (appeals from assessments), the reason for appeal being over-valuation in most cases (June 30, 1949). In view of the great confusion which exists in our system of local taxation the value of the assessment does not seem to be entitled to the weight which courts and juries may give it. Sales of comparable real estate in the locality freely and fairly made, should be entitled to stand unaffected by this statute; Epstein vs. Boston Housing Authority, 317 Mass. 297, presents the picture fully. The valua tion made by the town assessors for the three years preceding the taking by eminent domain may be introduced as evidence of “fair market value” by any party under the Statute above quoted, but not in a taking by a public utility or by the Federal government.
I. B ackground The tax assessors, while charged with the duty to assess at “fair cash valuation”, almost invariably attempt to distribute the tax burden; and thus over and under-assessments are the rule rather than the exception. While the problem of assess ment for tax purposes is to raise specified amounts and in cidentally to spread the burden equally and proportionately and thus assess only a percentage of real value, the problem of the court in a case of land damage is to find the fair market value of the land. When a legislature provides that assessed valuation shall be the sole criterion of land damage, the law may run afoul of the Fifth and Fourteenth Amendments, See Monongahela Nav. Co. vs. U.S., 148 U. S. 312, County Court of St. Louis, County vs. Griswald, 58 Mo. 175. Massachusetts has not prescribed that the assessment shall be the sole criterion; and the question remains as to how much weight should be given to evidence of assessed valuation, if any. The majority of other courts have held gen erally (without statutory provisions to the contrary) that assessed valuations are inadmissible as evidence of market value in con demnation cases. P .D . 144 REPORT 21
The courts have based their decisions on different theories. 1. Res inter alios acta—or mere collateral determinations not in any way binding on the parties to the suit—are all that assess ments can be. 2. Ex parte—or hearsay evidence—The statements of the assessors may be wholly wrong and self-serving. 3. The owner may acquiesce for tax purposes in his own in terest, but this cannot be an admission by him of value in a land damage case. 4. The purpose for which the assessed value was determined is dissimilar. 5. Abnormal economic conditions are, or were, either in favor of, or against, the assessed owner’s in so far as the tax levy is con cerned. Some other states have statutes like the one in Massa chusetts, Pennsylvania allows use of assessed value only at the instance of the party claiming damages; West Virginia is similar to Massachusetts, England allows introduction of assessed valua tion. In New York City assessed values can be used to determine fair market value. Apart from statute, such evidence is not admis sible to show fair market value. Where such evidence is admitted, it is made admissible by statute on the theory that in a condemna tion proceeding all the evidence available should be brought to the attention of the court to assist in its determination, even if the assessed value is not considered as independent evidence. Before the passage of c. 79, s. 35, as it now stands, such evidence was inadmissible in Massachusetts. See Nichols on Land Damages, 1907, page 247; Brown vs. Prov., Warren and Bristol R.R. Co., 5 Gray 35 (1855). It does not now apply to all takings but only to those specified.
II. D ecisio n s in Ot h e r States Dubensky Realty Co. vs. Lortz, 129 F. 2d 669 (1942) ; Assessors valuation in Missouri is not competent evidence of value where the question of value is the subject of Litigation. Atlantic Towing Co. vs. The Cahche, 47F Supp. 610 (1943); In determining value the party offered tax returns, but the court took judicial notice that undervaluation was common and deemed the tax returns to be of little aid. Everts vs. Matteson, 157 P. 2d 651 (1945) ; Where the tax assessor stated he had no opinion as to the reason able market value, his assessment records were held not to be evidence of fair market value. 22 JUDICIAL COUNCIL P .D . 144
Bankers Trust & Co. vs. hit. Trust, 113 P. 2d 656 (1941); Colorado court held assessed value was not evidence of value other than for tax purposes. Stubblefield vs. Farmer, 291 Ky. 795 (1942); Tax values of realty furnish but slight evidence of market values. In re Shelmires Est., 56 Mont. 26 (Pa.) (1940) ; The assessed value of real estate is of little guidance in deter mining its value because it is well known that assessments are based largely on the necessities of taxing authorities rather than on real value. Emerson vs. U. S., 76 Ct. Cl. 613 (1934) ; The proven assessed value of property cannot, in the absence of proof of such fact be accepted as its actual value. In Vineyard Grove Co. vs. Oak Bluffs, 265 Mass. 270: The assessed value is not an admission of value which can be used against the party assessed even if he enters it on a certificate of condition filed with the Commission of Corporation and Taxa tion. The controlling Massachusetts Decisions allow such evidence only under the Statute. Amory vs. Commonwealth, 321 Mass. 240 at 258, the court said. “There was no error in the admission of the assessors’ valuation. Such evidence is competent by virtue of G.L. (Ter. Ed.) c. 79 s. 35.” Epstein vs. Boston Housing Authority, 817 Mass. 297; Evidence of assessed value was introduced and admitted—C.79 s.35; e.g. 1. Assessed value—$7,000.00 2. Value by expert witnesses—$5,900.00 to $11,500.00 8. Jury valuation—$6,720.00 (including interest) 4. Value by Evidence of Similar Sales—$5,900.00—but this was a foreclosure. III. D iscussion One of the questions which always arises over “assessed value” is whether or not, in the instant case, the tax rate is high and the assessment is low or, in the alternative, the tax rate may be low and the assessment may be at almost full value. The jurors who listen to the evidence invariably draw upon their own knowledge in such cases and it may well be that the assess- P .D . 144 REPORT 23 ment in question is based on an entirely different scheme than the one to which they are accustomed. It would be impossible and utterly absurd to go into this ques tion before the jury. There are other assessing practices which are peculiar to locali ties and individual assessors. The jury may not know these facts and evidence tending to bring them to light is probably inadmis sible. If the assessment figure is used at all, what is its probative value? The answer, viewed in the light most beneficial to those who might advocate the present statute, is—little or none. The assessment figure might have weight if it were shown that such figure was “the fair cash value”. This is almost never done and it is improper to make a judgment on a final fact where the sub sidiary facts are dubious and wholly unproved. Another answer is that the court should instruct the jury what weight may be given to this evidence, but this presupposes that the court is fully informed. It is entirely possible that the city might under-assess for three years with the aim of taking the property at a lower figure. The statute, as it now stands, does not aid either party to the land damage litigation in any material way and it has constantly beclouded the issue. As we have already pointed out, it does not apply to all public takings but only to some. We recommend the following
D R A F T A C T Section 35 of Chapter 79 of the General Laws is hereby repealed.
“C h i p ” A t t a c h m e n t s In the second report of the Council (reprinted in 12 M.L.Q. No. 2 for Dec. 1926) p.43, attention was called to the practice of making fictitious attachments of the property of a defendant. As there stated,
“the reason the practice grew up was that since the form of writ of summons and attachment (in common use) ordered the sheriff to attach first and sum mon afterwards, and the sheriff could not change the form of the writ, but was expected to obey its command and get the summons served . . . he had to do something if he found no property to attach, or was not ordered by the plain tiff’s lawyer to make an actual attachment. Accordingly, somebody invented the convenient fiction of 'attaching a chip as the property of the defendant’ and then serving the defendant with the summons, which contains the state ment to the defendant over the clerk’s signature: ‘Your goods or estate have been attached to the value of .’ (See Peabody v. Hamilton, 106 Mass. 24 JUDICIAL COUNCIL P .D . 144
217; Colby’s Practice, published in 1848, 109; Howe’s Practice, published in 1834, 61).” As the form of summons thus served contained the official state ment (not true in fact) over the name of the chief justice or judge of the court, that property had been attached the Council recom mended that this fiction be abolished in connection with a revised form of summons. Subsequently in 1935 the Supreme Judicial Court by rule revised the form of summons and ordered that a note should be added to the summons that “If no actual attachment is directed to be made the statement that goods and property have been attached should be crossed out”. (See 292 Mass. pp. 593-595, and 11th report of Judicial Council, 21 M.L.Q. No. 1, Jan. 1936, p. 21). In the “Bar Bulletin” for January 1950 (p. 12) it is explained that this attempt to stop “chip” attachments did not succeed for the following reason:
“G.L., c.262, s.8, which governs the fees of sheriffs and constables for the service of civil process, provides that fees shall be
“ ‘For each copy of a . . . superior . . . court writ . . . one dollar;
‘For each copy of a district court writ . . . fifty cents’.
“The statute governing service of process provides that where there is an attachment, service on the defendant shall be made by delivering to him a separate summons. An early case held that a chip attachment followed by service of a separate summons is a valid service of a writ of attachment and summons. The statute provides for no fee to the sheriff for making the sepa rate summons which he serves upon the defendant when an attachment is made. The separate summons is supplied by the plaintiff. No fee is charged for a chip attachment, which involves the use of a rubber stamp.
"On the other hand, an ‘original summons’ without an attachment must be served by delivering an attested copy. A charge of one dollar is made for an attested copy of the original writ where such a writ of summons (without attachment) is used. Rubber stamp fictitious chip attachments continue, because it would cost plaintiffs an additional dollar for service of the process to abolish the fiction.
“No one will be harmed by a statutory amendment which will provide for the service of a separate summons in all cases, as it now is when an attachment is ordered. The fiction of chip attachments will then end.” We think the change should be made as we clo not think it helps public confidence in the courts to continue the practice of requiring by law official misstatements to litigants. We recommend the following: P .D . 144 REPORT 25
D R A F T A C T Section 1.
Section 17 of chapter 223 of the Gen. Laws is hereby amended by striking out the section and substituting the following
Section 17. A separate summons shall be served on the defendant after an attachment on the writ or when no attachment is made at any time after the receipt by the officer of an original summons and the service thereof shall, in either case, be a sufficient service of the original writ.
Section 2.
Section 29 of said chapter is hereby amended by striking out the same and substituting the following
Section 29. A separate summons as provided in Section 17 shall be served by delivering it to the defendant or by leaving it for him as hereinafter provided.
Section 3.
Section 30 of said chapter is hereby amended by striking out the same and substituting the following
Section 30. The separate summons may be served at any time after the attachment has been made, or, if no attachment is made, at any time after the receipt by the officer of the original writ, if, in either case, it is served the number of days before the return day required for the service of the original writ, and a certificate of the service of the summons and of the date of the receipt by the officer of the original writ shall be endorsed on the original writ.
H. 810—R elative to W aiver of W ill s. This bill, referred to the Council by Resolves chapter 4, with a request for a report on the subject matter reads as follows:
An A c t r e l a t iv e to t h e w a iv e r o p w i l l s a n d e f f e c t t h e r e o f . Section 15 of chapter 191 of the General Laws, as appearing in the Tercen tenary Edition thereof, is hereby amended by striking out the same and insert ing in place thereof, the following:—
Section 15. Right to Waive Will. Effect of Waiver.—The surviving hus band or wife of a deceased person, except as provided in section thirty-five or thirty-six of chapter two hundred and nine, within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for her, or claiming such portion of the estate of the deceased as he or she would have taken if the deceased had died intestate, and he or she shall thereupon take the same portion of the property of the deceased, real and personal, that he or she would have taken if the deceased had died intestate. If, after probate of such will, legal proceedings have 26 JUDICIAL COUNCIL P .D . 144
been instituted wherein its validity or effect is drawn in question, the pro bate court may, within six months, on petition and after such notice as it orders, extend the time for filing the aforesaid claim and waiver until the expiration of six months from the termination of such proceedings. The bill copies the exact words of the present section 15 except that it omits the following provision which appears between the words “intestate” and “if” in the 10th line,
O m i s s i o n P r o p o s e d b y t h e B i l l .
“except that if he or she would thus take real and personal property to an amount exceeding ten thousand dollars in value, he or she shall receive in addi tion to that amount only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased; and except that if the deceased leaves no kindred, he or she upon such waiver shall take the interest he or she would have taken if the deceased had died leaving kindred but no issue. If the real and personal property of the deceased which the surviving husband or widow taken under the foregoing provisions exceeds ten thousand dollars in value, the ten thousand dollars above given absolutely shall be paid out of that part of the personal property in which the husband or widow is interested; and if such part is in sufficient the deficiency shall, upon the petition of any person interested, be paid from the sale or mortgage in fee, in the manner provided for the payment of debts or legacies, of that part of the real property in which he or she is interested. Such sale or mortgage may be made either before or after such part is set off from the other real property of the deceased for the life of the husband or widow.” While the bill would simplify to some extent, the work of the Probate Courts in administering estates when a will is waived by a surviving husband or wife, we do not recommend it as the present policy has been gradually developed by carefully worded statutes since 1783, and especially since 1854, in regard to the rights of a surviving husband or wife. The first statutory provision as to waiver of will appeared in section 8 of chapter 24 of the acts of 1783 as follows (the section relating also to the shares of omitted children),
“also the widow in all cases may waive the provision made for her in the will of her deceased husband, and claim her dower and have the same assigned to her, in the same manner as though her husband had died intestate, in which case she shall receive no benefit from such provision unless it appears by the will plainly the husband’s intention to be in addition to her dower.’’ The substance of this was provided in section 11 of chapter 60 of the Revised Statutes of 1836 (Commissioner’s note to s. 11). P .D . 144 REPORT 27
By chapter 428 of 1854, the wife, on waiver, was given the same share of both real and 'personal estate as on intestacy, provided that she “shall not, in any case”, be entitled to more than $10,000 -out of the personal estate. By s. 1 of chap. 164 of 1861, she was given, also, a life interest in the excess above $10,000 and provision was made for appointment of a trustee for her during her life. These statutes were all for the protection of the surviving wife. By later statutes, noted in the margin of section 15 in the Tercentenary Edition of the General Laws, the right of a husband to waive his wife’s will was provided for and the other details worked out which appear in the provision which would be repealed by the proposed bill, H. 810. The detailed operation of that provision is explained in the “Remarks” of Judge Alger in Fuller’s “Probate Law”, 4th ed., pp. 128-129 and Newhall’s “Settlement of Estates” 3rd ed. chap. XIX and XX. Judging from the wording of the statutes referred to, the purpose of the gradually developing policy has been to protect the right of a husband or wife, who knows the members of the family, to control the disposition of his or her property in the light of his or her knowledge and in accordance with his or her wishes except so far as public policy steps in to prevent dependency of the survivor on the public or others. The intentions of a person as expressed in his will have always been given primary consideration in Massachusetts both in the statutes and in the decisions of courts and this was apparent in the first statute of 1783, already quoted. It is also apparent in the Massachusetts law (mentioned in the same statute of 1783) and now provided for in section 20 of chapter 191 that children or their issue omitted from a will take the shares they would have in case of intestacy “unless it appears that the omission was intentional.” The limitation of the wife’s right in the personal estate to $10,000 in 1854 later changed by the addition of a life interest in the excess above that amount seems to show the same intention to respect the testator’s intention subject to reasonable protection to the wife. In case of intestacy the wife or husband is a statutory “heir” and if there are no surviving issue but surviving kindred she will take one-half of whatever there is. So where there is a will which he or she does not like and waives it, he or she will take that amount limited to $10,000 and a life interest in the excess and the will will govern the rest reduced by that amount as limited. This has been the legislative policy gradually developed since 1854 and we see no reason why it should be reversed. 28 JUDICIAL COUNCIL P .D . 144
There would appear to be a variety of reasons today for the con tinuance of the policy, such as the fact that the survivor may have ample independent property, or may be separated because of his or her fault, or may be disreputable, or alienated for some reason or other, or may be, apparently, but not legally, divorced under the varied and confusing divorce laws of different states, or other reasons known to the deceased when he made his will. We have explained in detail the history and purpose of the clauses which would be repealed by H. 810, as, otherwise, they would not be apparent from the somewhat technical wording of the present statute. We do not recommend the bill.
H ouse 1241 R elative to A pportionment of D amages due to C ontributory N egligence. By Resolves chapter 5 a report was requested on “The Subject M atter” of H. 1241 which reads:
“Chapter 231 of the General Laws is hereby amended by adding at the end of section 85 thereof the following new sentence:—Contributory negligence shall not bar a recovery, but the damages shall be diminished in proportion to the amount of negligence due to such person.” We do not recommend this bill. The bill would directly affect the trial of almost every accident case in the courts (of which the greatest number are motor vehicle cases) as it would change the common law rule that one who con tributes by his negligence to his own damage cannot recover. In a memorandum in support of the bill submitted to the Council by the petitioner, the proposal appears to be based mainly on the pro visions of the Federal Employers’ Liability Act and the Federal Jones, or Seaman’s Act of 1920, which gives a seaman a right of action at common law and incorporates the Federal Employers’ Liability Act. (as to Railroads) Title 45 U.S. Code, Sections 51 fff seq. Section 53 of that Act reads as follows:
Contributory negligence; diminution of damages.
“In all actions hereafter brought against any such common carrier by rail road under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have re sulted in his death, the fact that the employee may have been guilty of con tributory negligence shall not bar a recovery; but the damages shall be P.D . 144 REPORT 29
diminished by the jury in proportion to the amount of negligence attributable to such employee; Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ See also Robinson on Admiralty, p. 313. For the Jones, or Sea man’s, Act see U.S. Code, Title 46 (Shipping) Sec. 688. These acts relate only to employees and have the special reason in their relation to a business like that of the state workmen’s com pensation acts which carry the idea to the point of fixed compen sation regardless of the fault of the injured employee. The bill proposed (H. 1241) would apply to all accident cases in which the injured person was at fault. We are aware of the fact that comparative negligence acts have been adopted in varying broad, or narrow, forms in Mississippi, Nebraska, Georgia, A is- consin, South Dakota and several Canadian provinces and in Eng land, by the contributory negligence act, 1945, 8 and 9 Geo. VI, c. 28. These subjects are discussed at length in Gregory’s “Legislative Loss Distribution in Negligence Cases’’ published in 1936, “A Study of Comparative Negligence” 17 Cornell Law Quarterly f 1932) by Mole and Wilson; by Prof. Cowan in the Kansas Judicial Council Bulletin for October 1946, Pt. 3. pp. 127-132. and by Prof. Neef in the Michigan State Bar Journal for May 1948, pp. 34-38. We are also aware that in some states the common law rule has been judicially complicated by subsidiary rules not applicable in Massachusetts (see Beebe v. Randall, 304 Mass. 207 at p. 211) known as “ultimate negligence”' and “The last clear chance”. We appreciate the arguments from a theoretical point of view of ab stract justice of the idea of distribution of loss. In our opinion, however, the practical difficulties in obtaining the result outweigh the appealing considerations submitted to us in support of the proposed bill. In cases in which there is conflicting testimony, tried a year or two after an accident, just how can a jury divide the negligence up into fractions of “abstract justice”? It may be that in the course of time the doctrine of distribution of loss including “comparative negligence” may gradually gain ground and stand the test of ex perience in other jurisdictions, and practical methods of administer ing it fairly may emerge, but we do not think the time has arrived to embark on the experiment in Massachusetts. To pass a statute 30 JUDICIAL COUNCIL P .D . 144 directing the trial judge to tell them to figure out the relative per centage of mutual negligence would, in our opinion, complicate the law, greatly increase law suits, clog the already overloaded dockets, increase the delay in trials and increase the insurance cost and the insurance rates for all motorists in the commonwealth, wdthout in creasing the “abstract justice” obtainable in Massachusetts. For these reasons we do not recommend legislation on this sub ject.
H ouse 1306 R elative to D ischarge of M ortgages This bill was referred to the Council by Resolves chapter 13 with a request for a report on “the subject matter”. The bill would amend section 54 of chapter 18 of the General Laws, relating to the discharge of mortgages, which now provides for a discharge on the margin of the record and then continues,
“One of two or more joint holders of a mortgage may so discharge it or he may discharge it by a deed of release duly acknowledged and recorded. A mortgage may also be discharged by a written acknowledgment of payment or satisfaction of the debt thereby secured, or of the conditions therein con tained, signed and sealed by the mortgagee, his executor, administrator, suc cessor or assignee. Such instrument shall have the same effect as a deed of release, shall be valid if executed bjr one of two or more joint holders of a mortgage and may be recorded when duly acknowledged or on proof of its execution in accordance with sections thirty-four to forty-one inclusive.” The proposed bill would add at the end of the section the follow ing sentence: “If a husband and wife are holders of a mortgage, either one of them may discharge the mortgage as herein provided and such discharge shall have the same effect as if they were sole.” We do not recommend this bill. The purpose of the bill is to change the law as stated in Pineo v. White, 320 Mass. 4S7. We are informed that prior to that opinion many conveyancers considered that section 54 as above quoted authorized a discharge by a wife of a mortgage held by both if the mortgage note was given up and that, because of that view, since the opinion referred to, titles are clouded where both did not sign the discharge. In Pineo v. White the court said that a discharge by the wife alone was “not sufficient to release and discharge the mortgage” because a conveyance to husband and wife as joint tenants at com mon law “created a tenancy by the entirety”, a special kind of title based on the marital relations, and that the statutory provision for P.D. 144 REPORT 31 discharge by one or more joint holders” did not apply to holders “by the entirety”. The bill presents a question of policy having various aspects and while we appreciate the conveyancing problem involved which bears on the title questions before the Land Court or other courts, we think that the policy of protecting the marital relation and its incidents in the same manner as it is protected by the rights of dower and curtesy, outweighs the conveyancing difficulty and, therefore, we do not recommend the bill.
H. 1709 R elative to F oreclosure of T ax T itles This bill was referred, with a request for a report on the “subject matter”, by Resolves Chapter 6. The bill is printed in full in the footnote.* A statement in support has been submitted to us by the petiti- tioner. There is a difference of opinion among conveyancers as to the need of legislation. The petitioner in his statement says:
“From the point of view of the public, which would like to buy them, and the conveyancers who have to pass on them, foreclosing tax titles in Massachu setts have but two major weaknesses. The first has to do with the description of the property concerned and it may be dismissed by saying that it is seldom now-a-days that such description is so indefinite, ambiguous, uncertain, or insufficient as to invalidate the tax title in question.
“The real reason why most conveyancers shy away from foreclosed tax titles is because the procedure is not conclusive enough to assure them that
H O U S E 1709
An Act rela tive to respondents in a c tio n s to foreclose tax t it l e s and pro v id in g THAT SUCH ACTIONS SHALL BE ACTIONS IN REM. Section 66 of chapter 60 of the General Laws, as most recently amended, is hereby amended by adding at the end thereof the following four new paragraphs:— If the court orders that such notice be given by publication, such notice shall be published under the supervision of the recorder of the court by printing such notice once in a newspaper published in the town, if any, otherwise in the county, where the land lies, twenty days at least before the return day of said notice. The certificate of the recorder that notice has been published as ordered shall be filed in the case on or before the return day, and shall be con clusive proof of such publication. If notice has been so published, by the description in the notice “to all whom it may concern”, all the world shall be made parties defendant, whether mentioned by name in the petition, notice or citation. If, after notice has been given as herein provided and the time limited in such notice for the appearance of the respondents has expired, the court finds that there are or may be respondents not actually given notice within the commonwealth who have not appeared, or who are minors, or persons under disability, or unascertained, unknown or out of the common wealth, it may of its own motion, or on the representation of any party, appoint a disinterested person to act as guardian ad litem for any such respondents. The compensation of the guardian ad litem shall be determined by the court and paid by the petitioner. After all the respondents have been given notice as hereinbefore provided, and after the ap pointment of a guardian ad litem, if the court has found such appointment necessary, the court may proceed as though all respondents had actually been notified. •Such petition shall be a proceeding in rem against the land, and any decree entered as pro vided in section sixty-nine shall operate directly on the land and have the force of a release made by or on behalf of all respondents of all claims adverse to the petitioner’s title. JUDICIAL COUNCIL P.D. 144
all possible persons are precluded by the decree. The result is that it is deemed necessary to remedy the defect by resorting to one procedure of the Land Court to perfect another. In other words, before the holder of a foreclosed tax title can sell or mortgage the property in question, he finds it necessary to register his title at great expense of time and money. And the resort to registration of the title is not usually to set the bounds but merely to cut off all possible adverse claims, because the land registration procedure is an action in rem.
“The chief objective of the bill is to make the procedure under chapter sixty section 64 et seq. an action in rem so that a decree thereunder will beyond doubt preclude all possible adverse claimants. It has been loosely said that the present procedure under said section 64 et seq. is in rem but that is not so either in effect or by interpretation. That language of the statute is in per sonam. The most that could be said would be that it sounds like an action which is “quasi in rem”. But “quasi in rem” is not in rem at all and carries with it none of the conclusive benefits or advantages of an action “in rem.”
“Some have said that by force of chapter sixty section 69A, there is sort of a Statute of limitations erected as a barrier against any and all adverse claimants after one year after the date of the decree. In that connection, the writer would like to say that although he was instrumental in the passage of the law which created said Section 69A said section was merely the tail end of a bill similar to House Bill No. 1709 now in question, and that he has never been satisfied that as a constitutional matter said section 69A ever cut off non-residents of Massachusetts and maybe some others who may not have received at least constructive notice. And, it can be definitely stated that the rank and file of the Conveyancing Bar will never be satisfied with the procedure in question until it has been made in rem.” On the other hand a conveyancer of long experience in dealing with tax title foreclosures for the City of Boston writes us:
“As the law now stands, many conveyancers rely upon these proceedings and pass titles thus acquired. There are some remaining who decline to do so, the reason probably being historical and dating back to tax titles acquired under the law as it existed prior to July 1, 1915, when many, perhaps most, tax titles were vulnerable.
“The City of Boston has had little, or no, difficulty in disposing of titles acquired b 3i> foreclosure of tax titles. The added cost of foreclosure if the Bill under consideration becomes law, and is followed, would be approximately $50 per case. This would seem to be an unnecessary expense to the municipali ties in most cases. The words ‘in rem’ are a sort of ‘sesame’ inviting some con veyancers to enter where they would otherwise fear to tread. Merchantability of title to land—the basic asset of the Common wealth—is, of course, of great public importance and, as many land- owners know, merchantability depends largely on the opinions of conveyancers who examine the titles. Doubtful opinions even if P .D . 144 REPORT 33 unfounded, if sufficiently common, have serious consequences, but we should consider the nature of the doubts. We believe the doubt of the constitutional effectiveness of the present foreclosure procedure in Chap. 60 to be unfounded. It appears to revolve about the ancient Latin phrases “in rem” and “in 'personam”, borrowed from the Roman law and utterly imcom- prehensible to laymen and not always clear to lawyers. The peti tioner in support of his bill relies on the opinion of Chief Justice Holmes in Tyler v. Court of Land Registration, 175 Mass. 71, but in that opinion, the Chief Justice said (at p. 76), “It is certain that no phrase has been more misused.” Our system of foreclosing tax-titles originated with the report of the Special Commission “To consider and recommend changes in the laws relative to Liens, Mortgages and Tax Titles” appointed under Resolves of 1914 Chapter 121 (House Document No. 1600 of 1915). The members of that Commission were Hon. Charles T. Davis, a judge of the Land Court, Francis M. Phelan and Samuel W. Child. In the report (p. 18) the Commission said “at present [1914] the tax title is in practice merely a basis for trading or litigation. It is to the interest of the municipal authorities, landowners and the tax-title buyers that the title should be one under which the rights of all are definite, redemption ‘made simple, and, failing of redemption’, one that can be foreclosed so as to afford a market able title to the land thereafter.” (Italics supplied.) The act drafted by the Commissioners appears on pp. 31-38 of the report and to carry out the purpose recommended, as above quoted, contained, in Sections 1 and 2, the provision that the title under a sale or taking “Shall until redemption ‘or until the right of redemp tion’ is foreclosed as hereinafter provided, be held as security.” This provision appears in Sections 1 and 2 of Chapter 231 of the Acts of 1915 following the Commission’s report and now appears in Sections 45 and 54 of Chapter 60 of the General Laws. As we see it, following up these provisions, the obvious purpose of the statutes passed since 1915 has been to make it constantly clearer that the foreclosure of the tax lien on the land to secure the municipality is intended to be one to “bind the land” by pro viding first for an opportunity to appear and contest the tax or the foreclosure or to redeem and second a limitation of time for those opportunities. Binding the land, or quieting the title, is the substantial idea regardless of Latin words. 34 JUDICIAL COUNCIL P .D . 144
Accordingly section 64 of chapter 60 (adopted in 1915) provides that
“The title conveyed by a> tax collector’s deed or by a taking of land for taxes shall be absolute after foreclosure of the right of redemption by decree of the land court as provided in this Chapter.” Sections 65 and 66 provide for a petition and what shall be done about it including a notice by registered mail to persons interested as shown by a report of a title examiner’s report,
“The notice, to be addressed ‘To all to whom it may concern,’ shall contain the name of the petitioner, the names of all known respondents, a description of the land and a statement of the nature of the petition, shall fix the time within which appearance may be entered and answer filed, and shall contain a statement that unless the party notified shall appear and answer within the time fixed a default will be recorded, the petition taken as confessed, and the right of redemption forever barred.”
Section 67. “DEFAULT.—After the return day fixed, to be at least twenty days after the time of the actual issuance of notice, the court shall, if satisfied that the notice has been properly given, on motion of the petitioner enter an order defaulting all persons failing to appear and answer, and decreeing that the petition as to them be taken as confessed.”
Section 69. “DECREE BARRING REDEMPTION, WHEN.—If a de fault is entered under section sixty-seven, or if redemption is not made within the time and upon the terms fixed by the court under the preceding section, or if at the time fixed for the hearing the person claiming the right to redeem does not appear to urge his claim, or if upon hearing the court determines that the facts shown do not entitle him to redeem, a decree shall be entered which shall forever bar all rights of redemption.” The limitation on any form of “petition to vacate” or any form of “proceeding at law or in equity for reversing or modifying” a foreclosure decree in Sec. 69A above quoted, merely supplements and emphasizes the previous unqualified intent of sections 64 that “the title . . . shall be absolute after foreclosure of the right of redemption” and of Section 69 that “a decree shall be entered which shall forever bar all rights of redemption.” The English language provides no stronger words. The constitutional doubts expressed by the petitioner as to the effect of these statutes in cutting off non-resident claimants seem to be fully answered by both the Supreme Court of the United States and the Massachusetts court. The case of Tyler v. The Court of Land Registration, referred to by the petitioner in the passage quoted established the validity of our land registration system which has now been in operation P.D. 144 REPORT 35 for fifty-two years. The opinion was written by Chief Justice Holmes followed a few years later by the unanimous opinion of the Supreme Court of the United States (after he had become a mem ber of that court) in Leigh v. Green, 193 U. S. 79. In that case, relying on, and quoting from, the Tyler case, the court said, in regard to a Nebraska tax foreclosure statute, (at pp. 92-93),
“The principles applicable which may be deduced from the authorities we think lead to this result: Where the State seeks directly or by authorization to others to sell land for taxes upon proceedings to enforce a lien for the pay-, ment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are 'so minded,’ to ascertain that it is to be subjected to sale to answer for taxes, and. to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment to the Constitution.
“In the case under consideration the notice was sufficiently clear as to the lands to be sold; the lienholders investigating the title could readily have seen in the public records that the taxes were unpaid and a lien outstanding, which, after two years, might be foreclosed, and the lands sold and by the laws of the State an indefeasible title given to the purchaser. Such lienholder had the right for two years to redeem, or, had he appeared in the foreclosure case, to set up his rights in the land. These proceedings arise in aid of the right and power of the State to collect the public revenue, and did not, in our opinion, abridge the right of the lienholder to the protection guaranteed by the Constitution against the taking of property without due process of law. “The judgment of the Supreme Court of Nebraska is Affirmed.” The Nebraska statute did not contain the words ‘in rem” but the court, specifically and repeatedly, described the proceeding before it as “in rem” although these words were not used. See pp. 86, 90, 91, quoting Freeman on Judgments, and 92 (quoting Holmes. C. J. in the Tyler case). See also Ballard v. Hunter 204 U. S. 241, and the opinion of Mr. Justice Moody in Longyear v. Toolan, 209 U. S. 414 at p. 418. For Massachusetts tax foreclosure cases see Napier v. Springfield, 304 Mass. 174, in 1939 (citing Leigh v. Green) prior to chapter 302 of 1946 which inserted the words “in rem” in the revised section 80B of chap. 60 relating to “low value” lands; and Lowell v. Marden & Murphy, Inc. 321 Mass. 597 in which a Land Court decree of foreclosure of a tax taking was sustained after discussion of details of the tax collection pro cedure which was challenged. Certiorari was refused by the Su preme Court of the United States for lack of a “substantial federal question” in 332 U. S. 850. As shown by the cases cited, and especially by the case of Leigh v. Green, the paramount authority of the state to collect taxes on land within its borders by a reason able and not too expensive procedure which identifies the land is 36 JUDICIAL COUNCIL P .D . 144 the basis of the statutes. The state is not obliged to provide for expensive plans for establishing exact boundaries of the land assessed and taken or sold. In Town of Agawam v. Connors 159 Fed. 2nd 360 (1957) the Cir cuit Court of Appeals for the First Circuit said of our procedure (at p. 364). “It can hardly be doubted that the Land Court proceedings were essentially in rem. By commencement of foreclosure pro ceedings and the filing of the statutory notices the state court had acquired constructive possession and jurisdiction of the prop erty.” Certiorari was denied by the Supreme Court of the United States 330 U. S. 845. Publication and posting before a tax sale is required by sections 40 and 43 of chapter 60 of the Gen. Laws. Tax sales, which were formerly common have been commonly discontinued in favor of tax takings and “posting” in two “public places” is required, in addition to other notices as to takings, by section 53 as amended by section 3 of chapter 164 of 1933. (See Lowell v. Marden & Murphy Inc. above cited.) These requirements are sufficient under the cases cited. It usually takes about 4 years or more before all rights of redemption are finally barred. Assuming, therefore, a description which identifies the land we believe the present statutory procedure for foreclosing a tax title sufficient to justify conveyancers and their clients in relying on them for a good invulnerable title as a matter of law. This does not mean that such a title would stand under rare and peculiar circumstances if proved such as those in Saftel v. Brooks, 254 Mass. 516 where the holder of the equity tried to get rid of a mortgage by failing to pay taxes and then buying in the tax title and claiming it as paramount to the mortgage (see p. 519). Such a case may involve a breach of condition of the mortgage warranting proceedings to foreclose the mortgage in equity to which the tax title foreclosure decree might be no defense because of fraud or estoppel, and does not involve the problem we have discussed. Our problem may, perhaps, be best illustrated by assuming a case in which the property has been assessed to “un known owners” or to the occupant as the statutes allow (see G. L. Ch. 59, s. 11 as amended by St. 1939 chap. 175; and Boston v. Quincy Market Cold Storage Co., 312 Mass. 638 at pp. 642 and 645). In foreclosure proceedings, assume that the title examiner cannot find who, if anyone, besides the occupant, if any, has any P.D . 144 REPORT 37 interest in the property under See. 66 of Chap. 60. The land may be apparently vacant or the title based on adverse possession, if adequate against unknown or uncertain claimants, and not a title of record. Nevertheless, the city or town is entitled to its taxes and may take and foreclose as provided in the statutes. In such a case there would seem to be no question that the foreclosure decree would give absolute title as provided by statute against any claimant who appeared and who might have appeared earlier, even if not notified. The decree imports a finding of all subsidiary facts, see Bucher v. Randolph, 307, Mass. 391 (citing Tyler v. Court of Land Regis tration and Napier v. Springfield, at p. 394). The fact remains, however, that some and, perhaps, many careful conveyancers do not rely on a foreclosure decree unless they have examined the title, prior to foreclosure, as they would any other title, and are satisfied that all possible claimants of record were notified. They do not rely merely on the report of the Land Court examiner under section 66 of chapter 60 who is directed to make “an examination of the title sufficient only to determine the persons who may be interested in the same” so that “all persons appearing to be interested” may be notified by regis tered mail. It has been suggested that, if the Land Court examiner were directed, by statute or rule, to report his opinion as to the marketability of the title in someone, as conveyancers do outside of court, such a requirement might help, and might result in a better price for the property because of such report. This would, doubt less, add to the cost of foreclosure and redemption, but it would be cheaper than registration. Even such a requirement, however, would not convince many conveyancers who frequently disagree with the opinion of other conveyancers. Since, as we have already pointed out, marketability depends ultimately on conveyancing opinion which cannot be controlled by statute, we believe that doubts can only be removed by the gradual development of opinion among conveyancers themselves as to the effectiveness of a fore closure decree and the safe practice in regard to it. We hope this discussion may help such a gradual development. We believe we have enough statutes on the subject. If convey ancers are not convinced by existing statutes and judicial deci sions, we see no reason why the legislature should increase the steps and the cost of tax collecting, both to the municipalities and persons who wish to redeem, by an ineffectual statute inserting the two Latin words “in rem”, which would not add anything and would not remove the existing doubts. 38 JUDICIAL COUNCIL P .D . 144
We do not recommend H. 1709 or any other legislation on the subject. A thoughtful, but radical, revision of the whole procedure for tax foreclosures, resembling a taking by eminent domain, has been submitted to us in place of H. 1709 by a lawyer, other than the petitioner, but we do not advise it, or discuss it in detail, for the reasons stated.
H . 1722 P roviding for t h e E n fo rcem en t of D ecrees for Ali m o n y and N on -support by t h e R egisters of P robate This bill referred to the Council by Resolves Chapter 8, reads as follows:
Section 22 of chapter 217 of the General Laws, as appearing in the Tercen tenary Edition, is hereby amended by adding at the end the following:—
The registrar shall, when so directed by a judge of probate, receive and disburse moneys payable under a decree of the court for alimony and non- support. He shall make application to the court for such processes as may be necessary to carry into effect such decrees, and shall issue and serve such processes, the cost of such service to be taxed as costs against the party so served. He shall, on request' of an interested party, make application to the court for such processes as may be necessary to carry into effect a decree of alimony or non-support, and shall issue and serve such processes, the cost of such service to be taxed as costs against the party so served.
We do not recommend this bill. The register of probate is the clerk of the Probate Court. We do not believe that the clerk of any court should be turned into a collection agency in the manner suggested in this bill for certain specified litigants. In the district courts where non-support cases appear on the criminal side of the court the payments ordered by the court as a condition of probation are collected in substantial totals by the pro bation officers. The probate court has no probation officers. The only way to enforce probate court non-support orders is by con tempt. The proposed bill would place on the register the functions and responsibility of a lawyer for the petitioner, a sheriff and a probation officer all at once in a proceeding which may lead up to a contempt order. We do not think it is in the public interest to put a clerk of court in such a position, P.D . 144 R E P O R T 39
H. 1727 R elative to R ecording C onditional Sales of P ersonal P roperty
(Referred by Resolves Chapter 12) This bill (printed in full in a footnote)* calls for recording of all conditional sales of personal property except that attached to real estate and otherwise described in G.L. chap. 184, s. 13. It was introduced on petition of a used car dealers association for the apparent purpose of requiring the recording of such sales of used cars. It is vigorously opposed. We do not recommend the bill. So far as cars are concerned, there appears to be no sufficient difficulty in ascertaining the facts of ownership to call for such recording. So far as the broader aspects of the bill relating to other per sonal property is concerned, we have received no evidence of con ditions which call for such legislation which would add to the already excessive number of papers to be recorded and stored at public expense.
H. 2333—To require I nsurance C o m pa n ies to disclose M otor Veh ic le I n surance C overage in E xcess of R equired M in im u m . House 2333 was referred to the Council by Resolves chapter 18 with a request for a report on “the subject matter” thereof. The bill reads as follows:
“Chapter 175 of the General Laws is hereby amended by inserting after section 113G the following section:—■
“Section *13H. Any company issuing a motor vehicle liability policy, as defined in section thirty-four A of chapter ninety, shall, upon the written request of a person injured as a result of an accident involving a motor vehicle of an assured of such company, or upon the written request of his agent or attorney, furnish to such person, his agent or attorney, under oath,
H O U S E 1727 An Act to provide for t h e recording of conditional sales of all per so n a l property NOT COVERED BY GENERAL LAWS. Chapter 255 of the General Laws is hereby amended by adding the following new section Section 131. All conditional sales of personal property, with the exception of personal property covered by chapter one hundred and eighty-four, section thirteen, of the General Laws, as amended, shall within ten days from the date written in the conditional sale, be recorded on the records of the town where the conditional vendee resides when the conditional sale is made, and on the records of the town where he then principally transacts his business. If the conditional vendee resides out of the commonwealth, and the property covered is within the commonwealth when the conditional sale is made, the conditional sale shall be recorded on the records of the town where the property then is. If a record in two different places is re quired and the conditional sale is recorded in one within said ten days, it may be recorded in the other within five days after the date of the first record. The conditional sale shall not be valid against a person other than the parties thereto until so recorded, and a record made subsequently to the time limited shall be void. 40 JUDICIAL COUNCIL P.D. 144
the amount or limit of indemnification or protection contained in the policy of such assured in excess of the minimum amounts prescribed by said section thirty-four A.” This bill would result in an unwarranted invasion of the private affairs of defendants and their insurance company. A parallel situation would be a bill requiring that every person who is sued in court should be required, at the request of the plaintiff, to dis close his exact financial situation. The bill seems clearly discriminatory in that it would require insurance companies to divulge information, not only of their pri vate affairs, but those of their customers that would not be required of any one else. We believe the proposed statute would be against the public in terest. For these reasons we do not recommend the bill.
R enewal of R ecommendation for J ury Commissioners In the 23rd report (pp. 33-36) and in the 24th report (pp. 19-26) we recommended the establishment of jury commissioners for the selection of jurors in a district comprising the counties of Norfolk, Middlesex and Suffolk. The reasons for the recommendation were stated in that report and also in the 9th Report of the Judicial Council in 1934, as well as in the report of the so-called “Crime Commission” in 1934 and in the report of a special committee of the bar in 1935. The plan was not adopted. The long and successful experience with jury commissioners in Ohio and the recommendations of the conference of senior circuit judges for such commissioners for the Federal courts, submitted to Congress, formed a background for this recommendation. Vari ous criticisms of details and cost were received. These can be studied and considered further if, and when, the General Court considers the main proposal worthy of further consideration. We recommend the further consideration of the latest draft of the act submitted on pages 23-26 of the 24th report (in 1948) in the light of the discussion in that report and of the practical de tails referred to on pp. 21-23 of that report. The latest discussion of the subject appears in “Minimum Standards of Judicial Ad ministration” edited by the Chief Justice of New Jersey and pub lished for the National Conference of Judicial Councils, (p. 185). It, there, appears that “Jury Commissioners are used to select the names of jurors in all, or, at least, certain areas of thirty-four P .D . 144 REPORT 41 jurisdictions and that in twenty-four of these, the jury commis- sioners are appointed by the Courts” (see p. 187).
Quarters and Additional F unds for the W ork of the J udicial Council Last year the 25th report contained recommendations for perma nent quarters for the Council in the Suffolk County Court House and an additional appropriation for its work. The Judiciary Com mittee reported favorably on the matter of quarters but the Committee on Counties reported in the negative and negative action followed. No additional appropriation was made. We re new the recommendations for the following reasons. The Massachusetts Judicial Council is the oldest active Council in the country. As explained in the 25th report (p. 42) it was cre ated in 1924 on the recommendation of the Judicature Commission, in its second and final report (House 1205 of 1921, pp. 25-28) ’ which was the effective stimulant to the development of the move ment resulting in the creation of Judicial Councils, composed of judges and members of the bar, in many states. The purpose of such Councils is stated in the act on page 4 and in the opening sentence of this report on page 5. In support of that purpose the Judicature Commission said in its report (p. 26),
“It is not a good business arrangement for the Commonwealth to leave the study of the judicial system and the formulation of suggestions for its develop ment almost entirely to the casual interest and initiative of individuals. The interest of the people, for whose benefit the courts exist, calls for some central clearing house of information and ideas which will focus attention upon the existing system and encourage suggestions for its improvement.” Since its creation in 1924 the Council has made twenty-six annual reports (and a few special reports) containing many recommenda tions, most of which have been followed. In addition to the discus sions by the Council on its own initiative, it has reported, at the request of the legislature, on many bills referred to it. Almost all of these questions have been answered with the reasons and recom mendations of the Council with the few exceptions of questions of legislative policy for which the Council was neither created nor equipped. These reports appear to have been of assistance to the legislature as most of them have been followed. The history of the Council and its work from 1924 to 1938 ap pears in the 14th report (pp. 43-73) and the consolidated table of contents of the first fifteen reports were printed for convenient 42 JUDICIAL COUNCIL P .D . 144 reference in the 15th report (pp. 91-105). For the same purpose we print in Appendix A of this report the table of contents of the last ten reports from 1940 to 1950. A glance at these will show the number and variety of subjects with which the Council is called upon to deal. As stated in the 25th report (p. 44),
“The study of courts and the operation of judicial systems is constantly increasing throughout the country. In order to do the work for which it was created and answer questions referred to it by the legislature, it is necessary to keep in touch with the studies and the discussions and practice and procedure in other parts of the country which are frequently the basis of bills or other proposals suggested for Massachusetts. No judicial system can remain static in its details and meet the needs of the community. As has been stated in the earlier reports of the council every detail of procedure and practice af fects in some way, the lives and interests of more people than is commonly realized and, wise or unwise suggestions of varied character and scope, sup posedly for improvement, are constantly made and call for study.” So much by way of introduction.
Quarters The Council has no quarters:—quarters for working and for the files of twenty-six years have been provided by the secretary. Those files containing materials used in connection with its reports are now scattered either in a storage warehouse at the secretary’s expense or in the secretary’s house where they are not only a nui sance but are not within reach. For practical purposes the contents of the files and their location, if wanted, exist only in the secretary’s head because there is no other place for them. That does not seem a good business arrangement for such a body as the Council either for the present or future. We understand that there is available space in the Suffolk Court House. If the files are to be preserved, and we assume that to be advisable, some convenient place must be provided where they can be gathered and gradually sorted and arranged, so as to be accessible. We, therefore, renew the recom mendation for quarters.
Appropriations The story of appropriations, since 1924, was told in the 25th re port, pp. 43-44. and it was explained that the appropriation “for expenses” originally $3,000. was gradually cut down to the present $1,800, established by the Budget Commissioner about twelve years ago and approved by the governor and council annually. The ap propriation thus established and maintained has not been exceeded. P.D. 144 REPORT 43
As stated in the 25th report (p. 44), “hitherto all the work of the Massachusetts Council has been done by the secretary and the members of the Council (with part time clerical service), “while the New York Council “has quarters, an executive secretary, three research assistants, three stenographic clerks and its average cost has been $29,800 provided by the legislature. In California, where the council is established by the constitution, the appropriations have been very much larger.” In the opinion of the Council it can be of more service if it is better equipped, and with a larger appropriation, to enable it to employ such additional clerical assistance as may be needed to do the work described above more effectively by employing an assist ant secretary for such period and on such terms and conditions as the council may direct, to be employed by and removed by the council in its discretion and at a monthly salary rate during the time of his employment of not more than three hundred dollars. We estimate the cost of additional full time clerical assistance at $2,600.00. These two items amounting to $6,200.00 added to the present annual appropriation of $1,800.00 for expenses would make a total for expenses of $8,000.00 in addition to the salary of the secretary as now fixed by statute. For these reasons, we respectfully suggest an additional appro priation of sixty-two hundred dollars and that provision be made for permanent quarters for the Council in the Suffolk County Court house. As to the appropriation for clerical service no draft act seems needed, as it is solely a matter of appropriation as an item in the annual appropriation act and the expenditures from the appropri ation are subject to the approval of the Governor and Council, un der Section 34C of the Council Act. We submit the following
DRAFT ACT Section 34C of chapter 221 of the General Laws (see page 4 of this report) is hereby amended by adding at the end thereof the following “Permanent quarters for the judicial council shall be provided in the Suf folk County Court House. If the council so votes, there shall be an assistant secretary for such periods and on such terms and conditions as the council may direct, to be employed and removed by the council in its discretion, and at a monthly salary rate during the time of his employment of not more than three hundred dollars.” 44 JUDICIAL COUNCIL P.D. 144
T he D istrict Courts The volume of business of these courts is shown in Appendix B. The business of the Municipal Court of the City of Boston appears in Appendix C, pages 76-78. We call attention to the circular letters of the Administrative Committee of the District Courts of January 18, and September 8, 1950 which are reprinted, as usual, in Appendix B. Those letters contain a continuous story of the work of that committee and the helpful information distributed semi-annually to the judges, clerks and probation officers of those courts. Practitioners in these courts will do well to examine them.
Frank J. Donahue, Chairman Wilfred J. Paquet, Vice-Chairman Louis S. Cox John E. Fenton John C. Leggat Davis B. Keniston Frank L. Riley Frederic J. Muldoon Reuben L. Lurie Charles W. Bartlett P.D. 144 REPORT 45 APPENDIX A
THE CUMULATIVE TABLE OF CONTENTS OF THE SIXTEENTH TO THE TWENTY-SIXTH REPORTS OF THE JUDICIAL COUNCIL OF MASSACHUSETTS FROM 1940-1950 In Appendix A of the Fourteenth Report of the Judicial Council (pages 43-73), appeared an account of the history of the Judicial Council and the results of its work from 1924 to 1938. To supple ment that account, the tables of contents of the first fifteen reports were printed for convenient reference at the end of the 15th report in 1939. We now reprint the tables of contents of the last ten reports from 1940-1950 for convenient reference. They, as well as the appendix to the Fourteenth Report are likely to be found of value to the bench and bar as a guide to material not found else where, but bearing directly on problems in practice because they contain references to much statutory history. The reports of the Council are obtainable at the Public Document Room at the State House. References are given to the number of the Massachusetts Law Quarterly in which each report was re printed so that those who keep the back numbers of the Quarterly can find the reports readily.
SIXTEENTH REPORT — 1940 (Reprinted 26 Mass. Law Quart. No. 1, January 19^1)
T he P resent R eport as a Continuation of th e F ifteenth R eport . . . 5 Concurrent Studies—Appropriations ...... 7 T he P osition of th e M assachusetts C ouncil in th e N ationwide M ovement . 8 T he D istrict Court Sy s t e m ...... T he Administrative Committee of th e D istrict C ourts . . . . 1 0 T rial J u s t i c e s ...... D istrict C ourt B u sin ess, 1933-1940 ...... 13 R epeal of the E xclusive Original J urisdiction of M otor Vehicle T orts . 14 D istrict C ourt J ustices Sitting in th e Superior Court . . . . 1 5 T h e P roblem of F ull-T im e J udicial Se r v i c e ...... 17 E xpense and W ork L oads of Courts in E ach C ounty . . . 19-23 D iscussion of Suffolk Co u n t y ...... 24 D iscussion of Other Co u n t ie s ...... 25 H ow B oston C an Save M o n e y ...... 31 T emporary P robation Of f ic e r s ...... 33 Crim inal P r o c e d u r e ...... 34 E ntry D ays for C rim inal Ap p e a l s ...... 34 P rocedure as to A ccessories After th e F a c t ...... 34 Civil P r o c e d u r e ...... 36 Comparison w it h F ederal R ules—D iscussion of R ule-m aking . . 36-38 P iece-meal C hange—Consolidation of Ac t i o n s ...... 38-39 Counter claim, etc.—S eparate J u d g m e n t s ...... 39-40 P rivileged C ommunications between H usband and W ife . . . 4 0 46 JUDICIAL COUNCIL P.D. 144
M inor Se t t l e m e n t s ...... 41 R eports R equested by th e L egislature in 1939 ...... 42 D efamation by R adio (H ouse 2 4 0 4 )...... 42 I ntermediate Appeals (H ouse 1 3 5 5 )...... 43 Common T rust P unds (H ouse 2 2 4 5 ) ...... 43 Common L aw A ssignm ents (H ouse 237 and 6 4 1 ) ...... 46 P revious R eports R equested by th e Leg isla tu re...... 47 T ax T itle D eeds and R elated D o c u m e n t s ...... 47 Organization of the B a r ...... 48 M iscellaneous M a t t e r s ...... 54 N otice of R efusal to I nsure a M otor Ve h ic l e ...... 54 L icense to Sell R eal E state by Administration d. b. n ...... 55 G eneral L aws, C hapter 215, Section 4 4 ...... 55 Statutory' Adjustm ents to St. 1939, C hapter 257 ...... 56 T h e System of C ounty P aymasters for State Courts, E specially in Suffolk Co u n t y ...... 58 P rogress in th e P ublication of the M assachusetts R eports . . . . 5 9 M emorandum by M r. D a l y ...... 60 R eport of A merican B ar A ssociation Committee on R adio D efamation . . 61 T h e N ew Y ork R ule as to M inor Settlements of I n ju r y Cases . . . 6 6 A n nual Summary of the W ork of the Courts and Statistical T ables . . 68 A L etter from th e C hairman of th e A ppellate T ax B oard...... 83
SEVENTEENTH REPORT — 1941 (Reprinted 27 Mass. Law Quart. No. 1, January 1942) Concurrent St u d i e s ...... 5 T h e N ature of the P resent R e p o r t ...... 9 R ecommendations Adopted T h is Y ear from the 15th. and 16th. R eports T em porary P robation Officers; Common T rust F u n d s ; L icense to Sell by Administrator d.b .n .; P rivileged Communications of a D eceased P erson; E xamination U nder G. L. C. 215, § 44; Sixty-D ay R ecord ing of Value T ax D e e d s ...... 6 P re-trial P rocedure in th e Appellate T ax Board...... 7 T h e I ncreasing U se of S mall Claims P rocedure...... 8 G eneral D iscussion of C ertain D istrict Court D evelopments (w it h T ext of the A ct Creating th e N eyv Administration Comm ittee) . . . 9 T h e U se of D istrict Court J udges in the Crim inal Sessions of th e Superior Court...... 12 C omparison of P opulation of J udicial D istricts as S how n by the 1940 Census and D istrict J udicial L o a d s ...... 14 T rial J u s t i c e s ...... 15 D iscussion and R equest for Suggestions as to M atters R eferred to th e Coun cil by the Legislature : Attachments and T rustee P rocess—16 B i l l s ...... 15 L egacies I nvalid for F raud or U ndue I n f l u e n c e ...... 17 V iolation of Statutes, Ordinances, etc., as E vidence of N egligence . . 18 M otor Vehicle I nsurance for P ublic B odies and C haritable Corporations 18 L ibel, Slander and T ruth as a D efence—4 B ills ...... 20 T h e L ayv of L ibel G e n e r a l l y ...... 23 F iling Statements as to R eal E state in E ach County by E xecutors, G uardians, etc, ...... 24,32 R eference to M atters R eferred in 1933, w it h R equest for Suggestions . . 24 F ees U nder G. L. C. 262, for T ravel, W itnesses, Service of C ivil P rocess, etc. Other M atters, w ith R equest for Suggestions: Conviction of Violation of Statutes, Ordinances, etc., as Affecting C redibility of W itnesses . 25 M inor Settlements . . 29 P.D. 144 REPORT 47
P rocedure as to Accessories A fter th e F a c t ...... 30 T he M assachusetts R e p o r t s ...... 31 INFORMATION FOR CONSIDERATION IN CONNECTION WITH REQUESTS FOR SUGGESTIONS...... 33 M emorandum of L incoln B ryant, E sq., l ow x Counsel of M ilton, Submitted in Opposition to Senate 222 ...... 33 M emorandum Submitted by L eland P owers, E sq., in Support of H is B ill (Senate 413) R elative to Violation of Statutes, etc., as E vidence of N egligence...... 36 H ouse 1747 as to Attachments R eferred for R e p o r t ...... 39 R eprint of D iscussion of F ees under C hapter 262, from th e 9th. R eport 41 Annual Summary of the W ork of th e Courts and Statistical T ables . . 47
EIGHTEENTH REPORT— 1942 (Reprinted 2S Mass. Law Quart. No. 1, January 191,3) I ntroductory R emarks and C hapter 27 of th e R esolves of 1925 .... 5 W ar and th e A dministration of J u s t ic e ...... 6 R ecommendations A dopted in 1 9 4 1 ...... g T he D istrict Co u r t s ...... g R eports R equested by th e L egislature On Attachments and T rustee P rocess—16 B i l l s ...... g D raft A ct to L im it A m o u n t ...... H D raft Act as to P roperty U nder C onditional Sa l e ...... 12 On V iolation of Statutes, etc., as E vidence of N egligence . . . . 1 5 On Legacies I nvalid for F raud, etc...... 17 On Statements of R eal E state by F i d u c i a r i e s ...... lg On M otor V ehicle I nsurance for P ublic B odies and C harities . . .IS On the Law of L ibel: T ruth as a D efence—P ublication of P leadings— R etraction—M alice—E ffect on D amages—M ultiple Suits—D efama tion by R adio—V arious D raft Ac t s ...... 39-57 Summary Social Security T ax J u d g m e n t s ...... 19 Rules of E vidence—I ntroductory D i s c u s s i o n ...... 21 D raft Acts as to R eputation, C ommerical L ists, etc., C ertified C opies of Various R ecords, and D eclarations of D eceased P ersons . . 2 3 N aming C o-respondents in D ivorce—D raft Act .... 25 Resignation of a F iduciary by h is G uardian—D raft Ac t ...... 26 Simplified P rocedure for M andamus and Certiorari—D raft Act . . 3 5 R epeal or A m endm ent of E xclusive J urisdiction of D istrict Courts in M otor Vehicle T orts T he M ajority V iew w it h D raft A c t ...... 32 T he M inority V i e w ...... A U nanim ous R ecommendation—D raft A c t ...... 35 D istrict Court J udges Sitting in th e Superior C o u r t ...... 27 Appellate Session of Superior C ourt for Summary R eview of Sentences__ D raft Ac t ...... og E ntry D ays for Crim inal Appeals—D raft Ac t ...... 39 P rocedure as to Accessories After the F a c t ...... 30 R evision of W rit of Su m m o n s ...... 34 Consolidation of Actions for T rial—D raft Ac t ...... 31 Counter-C laim, etc.—D raft Ac t ...... ' 01 Separate J udgments—D raft A c t ...... 61 M ortgage F oreclosure E ntries—D raft Ac t ...... 32 Soldiers and Sailors R elief as to M ortgage F oreclosure E ntries—D raft A ct 32 Organization of the B a r ...... 57 T rial J u s t i c e s ...... 62 Concurrent St u d i e s ...... " 0 3 Circulars of th e N ew Administrative Committee of th e D istrict Courts ' 77 Annual Summary of t h e V ork of the C ourts and Statistical T ables . . 99 48 JUDICIAL COUNCIL P.D. 144
NINETEENTH REPORT — 1943 (Reprinted 29 Mass. Law Quart. No. 1, January 1944) R ecommendations Adopted in 1943 ...... 5 P reliminary R eports on M atters R eferred to th e C ouncil by t h e L egisla ture C haritable Contributions by G uardians from Surplus I ncome (H ouse 6 8 2 ) ...... 9 M ortgage F oreclosures ...... 16 Senate B ill 1 6 8 ...... 16 H o u s e B il l 1417 (D e f ic i e n c y S u i t s ) ...... 18 P enalizing “F ake” M o tor Vehicle Claims (H o u s e 965) . . .19 N otice of I n ju ry by D efect in W a y s (H ouse 7 2 ) ...... 20 P roposal to E xtend Scope of Compulsory M otor V ehicle L iability I nsurance (H ouse 1 1 1 6 ) ...... 21 Compulsory M otor Vehicle I nsurance against P roperty D amage and R egulations for Cars of N on-residents R eport of Com m ission on I nterstate Cooperation and B ill R ecommended by that Com m ission (H o u s e 1275) . 22 T he “U niform Veteran’s G uardianship A c t ”(S enate 283) . .23 T h e “ U n i f o r m A cknowledgements A c t ” (S e n a t e 2 3 1 ) ...... 24 D istrict Co u r t s ...... 28 T h e W ork of th e Administrative Committee, and 1943 B u sin ess .28 and 30 T h e C o s t o f t h e D is t r ic t C o u r t s ...... 28 Suggestions of the W ays and M eans Committee as to E ntry F ees (H. 1 2 9 5 ) ...... 29 H o w B o s t o n C a n S ave M o n e y ...... 30 Costs in Other Co u r t s ...... 32 S u g g e s t io n s o f t h e W a y s a n d M e a n s C o m m i t t e e (H. 1295) . . . . 3 2 C om m ents on th e Su gg estio n s...... 34 T rial J u s t i c e s ...... 36 B i r t h C ertificates ...... 36 C oncurrent St u d i e s ...... 37 R eport of the J udicial C ouncil (M ay 17, 1943 R equested by the L egislature) on “ Salvage Operations of T rustees” (Senate 488) E xplaining B ill, n o w St. 1943 c. 389 38 R eport of H enry E . W arner, E sq. on Contributions by a G uardian of an I nsane P erson (F rom files of M iddlesex County P robate C ourt) . 41 Annual Summary of th e W ork of th e V arious Courts and Statistical T ables 45 Bulletins, R equirements and C ircular L etters of the Administrative Com mittee of D istrict C o u r t s ...... 71
TWENTIETH REPORT — 1944 (Reprinted 29 Mass. Law Quart. No. 4, December 1944)
R ecommendations Adopted in 1943 ...... 6 E mergency J urors and W aiver of F ull J ury in C rim inal Cases—D raft Act 7 C onsolidation of Cases for T rial under St . 1943 c. 369 D raft Act . . . 1 4 P rocedure for D eclaratory J udgments in C ivil C ases—D raft Act . . . 1 5 A P lan for an Optional A lternative P rocedure w it h in th e Superior Court for R ehearing w ithout P rinting M atters of L aw in C ivil C ases— D raft Ac t ...... - 2 1 N ew T rials W h e n D amages Awarded Are I nadequate—D raft Act . . . 2 5 D istrict Courts and F ull-tim e J udicial Service—D raft Acts . . . . 2 8 P robate Courts—P ractice as to Authority to Carry on B u sin ess of a D e ceased P erson—D raft Act . . • • - • • • • . 3 4 T im e of Appointm ent of G uardian Ad Litem of M inors and D raft Act . 36 P.D. 144 REPORT 49
R ules of E vidence—R eputation as to C haracter—D raft A ct . . . . 3 9 COMMERICAL LlSTS AND THE, LlKE—DRAFT A C T ...... 40 P robative E ffect of R ecord of D eath—D raft Ac t ...... 41 P inal R eports on M atters R eferred to the Council by th e L egislature (F or P reliminary R eports see 19t h . R eport in 1943) .... 42 C haritable C ontributions by Guardians from Surplus I ncome (H ouse 6 8 2 ) ...... 42 P enalizing “F ake" M otor Vehicle C laims (H ouse 965) . . . .42 N otice of I n ju r y by D efect in W ays (H ouse 72) ...... 43 E xtending Scope of M otor Vehicle I nsurance to Cover “U se w ithout E xpress or I mplied C onsent" (H ouse 1 1 1 6 ) ...... 43 M ortgage F oreclosures—Senate B ill 1 6 8 ...... 44 H ouse B ill 1417 (D eficiency Su it s) D iscussion and D raft A ct . . 44 P roposal to extend Scope of Compulsory M otor V ehicle L iability I n surance A gainst P roperty D amage and R egulations for Cars of N on residents—R eport of Com m ission on I nterstate Cooperation and B ill R ecommended by that Co m m issio n (H ouse 1275)—D raft Act 51 T h e “U niform V eteran’s G uardianship A ct” (Senate 283)—D raft Act 57 T he “U niform Acknowledgments A ct" (Senate 2 3 1 ) ...... 61 Court F ees Suggested by W ays and M eans Committee—D iscussion . . . 6 1 F ees for “Certificate of W aiver of N otice of M arriage”—D raft Act . . 63 Cost of P ostage on L and C ourt N otices—D raft A c t ...... 64 Am endm ent of G. L. C hapter 211 Section 4 ...... 65 D estruction of O ld D ocuments—D raft Ac t ...... 66 W ork of th e Appellate D ivision for Crim inal Se n t e n c e s ...... 67 D eclaratory P rocedure—Additional I n f o r m a t i o n ...... 69 T h e Act of Congress of 1934 ...... 69 F ederal R ule 57 and N ote of th e Advisory Committee on R ules . . 69 E xtract from Senate R eport to the 73d Congress in 1934 . . . 7 0 Annual Summary of the W ork of th e Various C ourts and Statistical T ables 72 Circular L etter of Administrative Committee of th e D istrict C ourts of J uly 15, 1944 ...... 99
TWENTY-FIRST REPORT — 1945 (Reprinted 30 Mass. Law Quart. No. 4, December 1945)
R ecommendations Adopted in 1945 ...... 5 E xceptions in E quity and in t h e P robate Courts—D iscussion of C hapters 469 and 530 of 1945 and R ecommendation for P ostponement of T heir E ffective date of M arch 1, 1946 to allow T im e for Study of Better M ethods in Order to Avoid Statewide C onfusion in P ractice . . 7 T he D istrict Co u r t s ...... 9 R eports R equested by th e L egislature On M ajority or “ Split” V erdicts in Civil C ases H . 933 . . . . 1 1 On T hree B ills R elative to D ivorce H . 513, 1122 and 1123 D raft A ct . IS On D eclarations of I nsane P ersons before I nsanity, as E vidence H . 366 and 1233 ...... 19 On W ritten Contracts between H usband and W ife—Senate 374 . . 20 On H ouse 365 to R educe R ecording of R epetitions in M ortgages—D raft— A c t ...... 22 On the Appo in tm en t of R eceivers in Suits by T ax C ollectors H . 1129 . 24 On P rocedure R elative to N eglected C hildren H . 434 and 435—D raft Act 27 On an Advisory Board to A ssist th e Courts w h e n V eterans are C harged w it h C rim e H . 256 ...... 29 O n Sentences of P ersons Already in th e R eformatory H . 66 . . . 3 0 On th e T erm of I ndeterminate Sentences to th e R eformatory for W omen for Adultery H. 368—D raft Ac t ...... 32 O n Sentences of P ersons Already in th e State P rison H. 67 . . .35 50 JUDICIAL COUNCIL P.D. 144
On the General Subject op Sentencing Offenders H . 58 and 68 and S e n a t e 478 36 On Service on C ertain F oreign Corporations' H . 939 ...... 38 O n R ecommendations of the Attorney General as to E scheats and P ublic Administrators—D raft Ac t s ...... 38 O n R ecommendations Attorney G eneral as to C haritable T rusts— 42 D raft Act for N otice to Beneficiaries by E xecutor . . . . 5 3 On F ederal E ncroachments on the J urisdiction of M assachusetts Court i n L andlord and T enant C ases H . 11 2 8 ...... 53 R u l e s o f E v id e n c e R eputation as to C haracter—D raft Ac t ...... 55 Commercial L ists—D raft A c t ...... 56 R ecords of H ospitals in Other States—D raft A c t ...... 56 P ractice on N otice to Admit F acts—D raft A c t ...... 57 E ntry F ees for P laintiffs under C hapter 350 of 1943—D raft A ct . . . 5 8 C ircular Letter of th e Administrative Committee of the P robate Courts as to D ivorce Cases, M arch 1945 ...... 60 C ircular L etters of th e Administrative Committee of th e D istrict Courts of J anuary and August, 1945 w it h I ndex to P revious C irculars . . 61 T he Statutory H istory of the “I ndeterminate” Sentence and of the M assa chusetts R eformatories ...... 99 T he L aw of Other States as to R emarriage of D ivorced P ersons from V e r n i e r ’s “ A m e r ic a n F a m i l y L a w s ” ...... 69 T he P enalties for Adultery in Other A merican St a t e s ...... 70 Annual Summary of the W ork of th e Various Courts and Statistical T ables 72
TWENTY-SECOND REPORT — 1946 (Reprinted 82 Mass. Law Quart. No. 1, March 1947) R ecommendations Adopted in 1946 ...... 5 R eports R equested by th e Legislature P enalizing Certain Strikes Affecting the P ublic H ealth and P ublic Safety—Senate 302 ...... 6 E xceptions and Appeals in E quity and in P robate Courts—St . 1945, C hapters 469 and 530—S. 235 and 238—D raft Ac t ...... 7 N otice to Beneficiaries B efore and After P robate of W ill—R esolves C hapter 32, D raft R u l e ...... 22 T ax R eceivers—R esolves C hapter 6 ...... 29 U nnatural Acts as G rounds for D ivorce, H ouse 949, D raft A ct . . . 3 5 R equirement of H earing in Superior Court Before D ivorce L ibel F iled, H ouse 1 5 9 ...... 37 Lack of D ue Care and Contributory N egligence, H . 440—D raft Act . 37 M edical E xamination in P ersonal I n ju ry C ases—H ouse 951 . . . 3 8 D ocuments U sed to R efresh R ecollections—H ouse 952 . . . . 3 9 Operations of M otor V ehicles at Grade C rossings, H . 259 and 260 40 Crim inal J urisdiction of D istrict Courts—H . 698 ...... 41 M ental H ospital R ecords—H . 6 3 ...... 42 R elease on Bail in Certain C ases—H . 1883 ...... 43 T h e Crime of Breaking and E ntering—H . 438 ...... 46 J oinder of P arties—H . 935 49 E ntry F ees for P laintiffs U nder St. 1943, C. 350—D raft Act . . 50 W aiver by Commonwealth of I m m u n ity F rom L iability in T ort W it h in th e Admiralty J urisdiction—H. 1 1 2 1 ...... 50 T ransfer and D ischarge of P ersons Committed to the V eterans’ Administration—H. 5 9 ...... 83 T rials B efore T hree J ustices of th e Superior Court. S. 234 . . .52 Sentencing and T reatment of Offenders, R esolves C. 16 . . . . 53 R elease of D ru nk s—R epeal of St. 1946, C. 274 64 P.D. 144 REPORT 51
R epeal of T wo Y ear P rohibition of R emarriage After A bsolute D ivorce (R eport R equested in 1945) D raft A c t ...... 65 II. 365 of 1945 (R eport R equested in 1945)—A P lan to Save Counties Some M oney by R educing R ecording of R epetition in M ortgages—D raft a c t ...... 66 Adoption—D iscretion of Court to W aive R eport by D epartment of P ublic W elfare for C ause—D raft A c t ...... 67 E vidence P rivate C onversations Between H usband and W ife—D raft Act . . . 6 9 M inority R eport by M r. M u l d o o n ...... 76 Commercial L ists and th e L ik e—D raft A c t ...... 78 R eputation as to C haracter—D raft A c t ...... 79 J udgment by Agreement in M otor V ehicle C ases—D raft A ct . . . . 8 0 R ule R ecommended to the Superior C ourt and Boston M unicipal Court as to M otions to N onsuit or D e f a u l t ...... 82 Salary of Secretary of th e J udicial C ouncil—D raft A c t ...... 84 Circulars of the A dministrative Committee of D istrict C ourts of J anuary 2, and J uly 20, 1946 and J anuary 2, 1947 ...... 85 D iscussion of “T h e D istrict Court P roblem” .... 86 and 92 Service of N otice to Show C a u s e ...... 87 Summary P rocess A ctions—R ent R egulations for H ousing . . . 8 7 D istrict Court B u s i n e s s ...... 93 Annual Summary of W ork of the Various C o u r t s ...... 97
TWENTY-THIRD REPORT — 1947 (Reprinted 32 Mass. Law Quart. No. 4, December 1947)
R ecommendations A dopted in 1947 ...... 6 R eports R equested by th e L egislature Service of P rocess on N on-resident I ndividuals—H . 1337—D raft Act . S As to L iability of P arents and Others for D amage D one by M inors— S. 1 0 0 ...... 11 R elative to th e T ermination of T rusts 30 Y ears Old or M ore—S. 230 . 12 R elative to F urther R egulating th e P roving of W ills—H. 1363 . . 13 R elative to the J urisdiction of P robate C ourts on P etition for C hange of N ame—H . 1675 ...... 14 N otices to Attorney G eneral in R egard to C haritable T rusts—H . 653— D raft A c t ...... 16 Conviction of C ertain M otor Vehicle Offenses as Affecting the C redi bility of a W itn ess—S. 299 ...... 18 T he R ising Cost of Administrating J ustice—F ees in Various Courts . . 20 E ntry and Other F ees, J ury F ees, and J uries of Six W it h a L ower F ee— D raft A c t ...... 20-38 J ury Commissioners for a D istrict Comprising M iddlesex. N orfolk, and Suffolk Counties—D raft A c t ...... 33 Limitation of Actions of T ort—D raft Ac t ...... 39 D isqualification of J udges—D raft A c t ...... 41 Suspension of D ecrees in E quity—D raft Ac t ...... 42 R ecommendation to th e Supreme J udicial Court for R evision of the F orm of D ivorce L ibel—D r a f t ...... 42 Reports from P robate Courts to D istrict Attorneys in Adultery Cases— D raft A c t ...... 45 Administrative Authority in C ertain C ourts W it h M ore T han On e J udge— D raft A c t ...... 47 and 62 Circular L etter of A dministrative Committee of th e D istrict Courts . . 51 D istrict C ourt Bu sin ess in 1947 60 Summary of th e W ork of the Various Courts, W it h Statistics . . . . 6 5 52 JUDICIAL COUNCIL P.D. 144
TWENTY-FOURTH REPORT — 1948 (Reprinted S3 Mass. Law Quart. No. o, December 1948) R ecommendations Adopted in 1948—Statutes—P robate F orms .... 5 R ecommendations N ot Ad o p t e d ...... 6 T h e R ising Cost of Administering J ustice—F ees in Various C ourts . . 7 E ntry F ees, J ury F ees, and J uries of Six w it h a L ower F ee—D raft Act . 16 R eport of M aterial F acts in E quity and P robate Appeals—D raft E mergency Ac t ...... 17 J ury C ommissioners for a D istrict C omprising M iddlesex, N orfolk, and Suf folk Counties—D raft A c t ...... 19 D amages in M andamus P roceedings—D raft A c t ...... 26 E quitable R eplevin—D raft A c t ...... 27 L ate D emands for P roof—D raft A c t ...... 27 Service of N on-R esidents—D raft Ac t ...... 28 R eports R equested by the L e g is l a t u r e ...... 30 Summary J udgments H . 486—D raft A c t ...... 30 Arrest W ithout W arrant—H . 1452—D raft A c t ...... 33 C hanges in T erms of M ortgage L oans of Savings Ba nk s—H . 18—D raft A c t ...... 39 Appo in tm en t of Attorneys in Separate Support P roceedings—H . 1 2 9 1 - D raft Act as to E v i d e n c e ...... 36 R ights of W ay and E asements S. 266 42 C hange of N ame—H . 1 6 4 1 ...... 44 F ees for E xecutors, Administrators and Attorneys—H . 1282 . . 4 6 P ayments from E states of P ledges for C haritable P urposes—H . 770 . . 50 Co m m itm en t of P ersons to H ospitals for th e I nsane—H. 216 . . .51 Clarifying D ecrees of P robate Courts—H . 493 ...... 5 5 D istrict Court B u sin ess in 1948 57 Circular L etters of Administrative C ommittee of the D istrict Courts . . 59 Summary of the W ork cf th e Various Courts, W it h Statistics . . . . 6 7
TWENTY-FIFTH REPORT — 1949 (Reprinted 34 Mass. Law Quart. No. 5, December 1949) R ecommendations Adopted in 1949—St a t u t e s ...... 5 R ecommendations N ot Ad o p t e d ...... 6 R eports R equested by the L egislature in 1949 7 T h e R ising Cost of Administering J u s t ic e ...... 7 F ees in Various Courts—E ntry F ees, J ury F ee and J uries of Six w it h a L ower F ee—D raft Ac t ...... 14,18 L and Court F ees—D raft A c t ...... 19 E xceptions—H . 892— R eport R eq u e st e d ...... 20 Sittings of th e F ull Ben ch of Supreme J udicial Court—D raft Act . . . 2 1 Summary J udgments—D raft Ac t ...... 24 Ancillary P robate—D raft A ct and A m endm ent of P robate F orm . . . 2 6 E quitable R eplevin—D raft Ac t ...... 28 D efences of I nsurance C ompanies S. 198 and S. 199—R eport R equested . . 29 Banking P ractice—S. 733—R eport R equested...... 31 W itnesses T ravel Allowance—D raft Ac t ...... 31 J urisdiction of Support of D isabled C hildren Over 21 Y ears of Age—S. 5 8 9 - R eport R equested—D raft A c t ...... 33 U nclaimed D ividends of L iquidated Corporations—D raft Act . . . 3 7 R eciprocal L aw for I nterstate P rocedure for N on-Support—S. 264—R e port R e q u e s t e d ...... 38 C itation of E xecutors and Administrators, H . 510—R eport R equested— D raft Ac t ...... 40 “Conviction” of An Offense as Affecting Credibility—D raft A ct . . . 3 9 STATISTICS OF THE DISTRICT COURTS OF MASSACHUSETTS FROM OCTOBER 1, 1949 TO OCTOBER 1, 1950 AS REPORTED BY THE CLERKS OF SAID COURTS. Compilai by the Administrative Committee of District Courts
DISTRICT COURT Criminal Appeals Drunkenness Automobile Cases (total) Reported to App. Div. Small Claims Criminal Cases Begun Total Number of Complaints Intoxicating Liquor Cases Supplementary Process Operating under influence of Juve n ile Cases under 17 years Superior Court All Other Cases Appealed to S. J. C. Civil Writs Entered C o n tra ct Summary Process(Ejectment) Rem ovals to(Total S. C. of all removals) Total Motor Tort Cases Total removals of such to T o rt r J intoxicatingJ liquor ’ entered’
Yorcester, Central.... 3,351 1,849 968 469 65 197 773 107 14 1 1,230 3,473 9,970 8 8 4,811 3,647 1 2 0 3 231 pringfield...... 2,933 1,799 733 368 33 218 565 93 5 0 1,155 2,998 18,479 37 5,435 11,368 172 14 19! liddlesex, 1 st Eastern.. 4,162 2,297 1,321 524 2 0 308 1,149 239 1 1 2 1,084 2,917 4,540 115 1,377 2,496 155 6 141 io x b u ry ...... 1,727 126 299 1,295 7 57 246 42 1 0 1,610 2,317 11,046 615 3,970 4,648 106 5 401 ■ l-istol. T h ird ...... 1,556 794 446 304 1 2 114 400 65 6 1 264 2,454 3,060 77 1,171 544 217 3 14: liddlesex, 3rd Eastern. 3,879 1,983 1 , 2 0 1 672 23 2 2 2 1,085 163 6 1 908 2,084 6,880 83 1,684 4,294 218 5 2 R )orchester...... 1,207 192 476 521 18 8 6 406 74 0 0 1,026 1,355 3,539 59 1,329 1,280 72 1 1 .V o w c ll...... 1,780 928 623 2 2 0 9 134 502 92 2 0 268 1,845 3,036 26 1,556 718 8 8 14 7( iristol, Second...... 1,232 717 292 208 15 85 230 23 0 0 128 1,251 3,059 126 1,326 816 98 1 1 isscx, Southern ...... 2,354 1,214 747 343 50 298 640 194 l 1 791 1,918 3,551 43 1,545 1,239 143 8 1 1 1 ■ awrence...... 1,114 596 342 161 15 6 8 295 40 2 0 159 738 2,446 28 1,551 721 8 6 13 9! iorfolk, East...... 2,403 1,515 625 245 18 132 533 89 4 0 898 2,407 3,595 49 1,230 1,574 175 5 151 o m erville...... 1,954 1,203 405 338 8 105 375 90 3 1 585 1 , 2 0 1 3,794 90 1,414 1,490 113 0 1.58 Yest Roxbury ...... 616 183 161 265 7 35 127 24 0 0 564 812 3,258 128 905 1,694 56 3 13! issex, F irs t...... 1,917 1,491 308 1 1 0 8 169 278 105 3 0 346 1,139 2,536 8 6 1,160 701 128 3 84 Irockton...... 1,267 707 400 93 67 62 375 35 1 2 0 297 812 3,012 49 1,037 526 8 6 2 71 last Boston ...... 752 128 311 301 1 2 91 274 77 0 0 361 855 3,496 93 824 1,816 25 5 231 'hclsea...... 1,183 359 551 268 5 183 425 1)7 1 0 482 1,115 3,554 146 1,317 1,204 95 15 131 outh Boston ...... 566 40 60 464 2 19 43 16 0 0 280 388 4,066 103 2 , 2 0 0 1,252 54 0 124 issex, North Central.. . 583 283 204 83 13 65 176 45 0 0 46 566 1,113 17 594 188 28 0 2 2 lo iy o k e ...... 359 179 8 8 89 3 30 69 15 0 0 47 633 2,257 15 1,144 <134 98 4 71; ia m p s h ire ...... 390 2 2 1 97 70 2 40 8 6 32 0 0 73 785 2,310 33 633 1,209 126 3 25 liddlesex, 2nd Eastern 1,604 1,071 314 2 1 2 7 69 281 46 5 1 385 945 3,031 57 840 1,559 78 5 247 Berkshire, Central...... 769 603 61 95 1 0 18 44 5 3 3 252 1,934 2,978 1 0 554 1,964 48 0 72 iristol, First ...... 473 269 125 72 7 59 91 29 0 0 57 598 1,070 56 189 519 79 0 55 liddlesex, 4th Eastern. 1,013 673 247 90 3 83 219 63 2 0 436 950 1,428 49 651 436 75 1 52 (e w to n ...... 1,440 930 380 119 11 76 335 51 4 1 442 738 2,738 63 526 1,758 6 6 2 53 ’itc h b u rg ...... 500 253 79 63 105 23 61 1 1 0 0 103 350 1,887 48 1,117 448 71 0 55 Norfolk, Northern ...... 901 606 229 56 1 0 48 207 38 2 0 346 602 1,247 33 402 349 77 0 50 Brighton...... 397 73 1 1 0 2 1 1 3 2 0 99 15 0 0 339 630 2,812 46 959 1,489 58 3 31 'ranklin, Greenfield. . . 273 208 43 2 1 1 8 38 8 0 0 42 964 914 1 1 241 398 71 3 45 Yorcester, 1st Southern 320 2 1 2 60 47 1 17 46 6 2 1 35 877 1,673 2 1 379 1,065 59 1 8 iro o k lin e ...... 1,259 824 292 1 1 0 33 6 6 260 26 1 1 354 550 2,722 44 239 1,326 25 0 77 Iristol, Fourth ...... 305 223 41 40 1 19 36 7 1 0 264 730 641 52 1 0 1 246 64 0 30 ’lvmouth, Second...... 790 589 109 69 23 40 98 2 0 2 0 285 824 1,116 39 514 314 1 1 0 0 57 Chicopee...... 239 1 2 2 60 55 2 17 32 8 0 0 37 308 1,094 2 472 363 70 0 41 Yorcester, 1st Northern 367 263 61 41 2 18 55 9 0 0 230 703 853 2 0 333 300 55 0 29 L a rle s to w n ...... 664 49 334 281 0 1 1 0 309 99 0 0 223 373 5,376 143 2,333 2,496 31 2 115 .liddlesex, 1st Southern 715 455 2 0 0 57 3 116 184 1 0 0 0 0 171 483 1,728 23 459 606 81 0 82 Issex, Eastern ...... 400 308 48 35 9 25 43 13 0 0 82 274 892 23 372 261 47 0 27 Norfolk, Western...... 466 363 71 29 3 2 2 63 1 1 0 0 124 496 864 1 2 158 381 6 8 0 26 .liddlesex, Centra!.... 466 335 91 38 2 28 77 17 0 1 140 429 931 2 1 173 46.6 69 0 108 Yorcester, 2nd Southern 158 87 39 32 0 15 39 13 0 0 18 178 2 1 2 3 25 91 18 1 4 latnpden, Western. . . . 166 1 1 2 23 29 2 1 0 18 4 0 0 38 463 1,016 1 2 158 621 41 0 36 Berkshire, Northern. . . 138 91 25 2 0 2 6 2 1 2 0 0 32 305 616 25 366 158 2 0 0 2 !) la rlb o ro u g h ...... 287 113 1 0 2 17 55 38 80 26 0 0 54 302 337 9 1 2 1 193 38 1 18 Y o t a l...... 55,702 30,647 14,547 9,715 793 3,969 12,456 2,585 96 19 18,255 54,962 155,398 3,317 54,679 ' 68,352 4,921 182 4,933 ADDITIONAL INFORMATION Neglected C h ild re n ...... 593 Inquests held...... 65 Parking tickets returned to Clerk’s offices.. 364,080 Drunkenness releases by probation officers. 27,950 I P.D. 144 REPORT 53 J urisdiction to A p p o i n t a N e w G u a r d ia n —D r a f t A c t ...... 41 N e e d o f Q u a r t e r s a n d A d d it io n a l F u n d s f o r t h e W o r k o f t h e J u d ic ia l C o u n c i l —D r a f t A c t ...... D is t r ic t C o u r t B u s i n e s s i n 1949 ...... 47 C ir c u l a r L e t t e r s o f A dministrative C o m m i t t e e o f t h e D is t r ic t C o u r t s . . 49 S u m m a r y o f t h e W o r k o f t h e V a r io u s C o u r t s , W i t h S t a t is t ic s . . . . 6 1 TWENTY-SIXTH REPORT — 1950 (See Cover oj This Report) APPENDIX B DISTRICT COURTS There are 72 of these courts in addition to the Municipal Court of the City of Boston, and eight of them, besides that court, are in Suffolk County. Their volume of business appears in the table opposite. The history of the discussion of these courts since 1876 appears in the Law Society Journal for February 1945 (also MLQ May 1945, see also list of reports in 20th Report of the Judicial Council, page 29 and pp. 86 and 92 of the 22nd report. For comparison, we have added to the first of the following circular letters, a column of business for the year ending September 30, 1950, from the table opposite this page. COMMONWEALTH OF MASSACHUSETTS ADMINISTRATIVE COMMITTEE OF THE DISTRICT COURTS January 18, 1950 To t h e J u s t ic e s , C l e r k s a n d P ro bation Off ic e r s of t h e D ist r ic t C o u r t s : We are sending herewith on separate sheet the statistical compilation of the work of the District Courts for the year ending September 30th, 1949. A five- year comparison is as follows: 1944 1945 1946 1947 1948 1949 to to to to to 1945 1946 1947 19 4 8 1949 1950 Civil Writs Entered ...... 3 3 ,0 0 9 38,660 51,616 59 ,8 1 7 58,697 55,702 C o n tra c t ...... 15,027 15,356 19,676 24,512 29,737 30,647 T o rt ...... 9,668 11,416 13,213 15,443 15,663 14,547 Summary Process (Ejectment) 7,464 11,321 18,007 18,798 12,282 9,715 All O ther C a se s...... 850 567 579 1,064 1,015 793 Rep. to Appellate Div ...... 72 98 87 82 90 96 Appealed to S. J. C ourt ...... 26 10 8 20 15 19 Supplementary Process ...... 11,785 10,990 11,517 13,148 16,423 18,255 Small Claims ...... 28,986 28,950 37,788 4 8 ,5 9 4 56,166 54,962 Criminal Cases Begun ...... 1 0 5,936 135,176 1 6 8,465 155,452 157,988 155,398 Criminal Appeals ...... 2,609 3,118 3,400 3,150 3,462 3,317 Drunkenness ...... 41,715 4 8 ,8 0 7 64,244 59,398 5'6,696 54,679 Op. under Inf. Int. Liquor. . . 2,665 3,752 4,601 4,079 4,197 4,921 Total Automobile Cases ...... 37,132 55,666 72,923 66,076 68,522 68,352 Int. liquor C ases ...... 228 217 170 207 179 182 Juv. Cases under 17 Yrs...... 7,458 6,376 5,542 4,701 5,219 4,933 Total Motor Cases Entered. . . 8,251 9,836 11,398 13,593 13,477 12,456 54 JUDICIAL COUNCIL P.D. 144 There was a slight decrease in the number of civil entries from that of the previous year which was more than accounted for by the great drop in the entry of summary process cases (ejectment) which decreased more than 34%. The number of tort cases entered was slightly larger but there was a large increase in contract cases entered which did not, however, quite compensate for the loss of the entries in the summary process cases. A comparison of the foregoing statistics shows the following changes for the past year: Civil writs entered decreased from 59,817 to 58,697—of these contract actions increased from 24,512 to 29,737 and tort actions from 15,443 to 15,663. There was a decrease in summary process cases (ejectment) from 18,798 to 12,282 indicating that there has been great improvement in the housing problem. The total number of removals to Superior Court decreased from 4,544 to 4,406 and the removal of tort cases from 3,315 to 3,065 which indicates a decrease in the percentage of removals to the Superior Court. Small claims again made a large increase from 48,594 to 56,166 which is almost double the number of such cases entered than were entered four or five years ago. It will be observed that the number of small claims actions now entered has almost reached the number of total civil writs entered and far exceeds the number of contract and tort actions entered by regular writs. We find that there are a great many trials in the small claims session and that many of such trials consume as much time for the court as many cases heard in the regular civil session. It would appear that the small claims procedure which originally was used to collect small bills over which ordinarily there was no dispute has developed into a medium for full fledged trials of contested actions of small amounts governed, of course, by the informal small claims procedure. It is undoubtedly economical to the litigant and the public and its use should be encouraged. We mention the great increase in these cases and the change in the character of them simply to call attention to the fact that the civil work of each court has been greatly increased with a corresponding increase in the work in the Clerk’s offices. Supplementary process cases increased from 13,148 to 16,423 a relatively large increase over entries of previous years which perhaps indicates an unfavorable turn in the economic situation but certainly indicates an increase of work for the judges and clerks in handling this troublesome type of procedure. The number of criminal cases begun (actually the number of defendants in such cases) increased from 155,452 to 157,988 and the appeals in such cases increased from 3,150 to 3,462. The increase in appeals follows in a normal ratio to the increase in the number of entries and still indicates that only 2% of the cases entered are appealed which shows satisfactory disposition of such cases in the District Courts. Automobile cases have increased from 66,076 to 68,522 and operating under the influence of liquor cases have increased from 4,079 to 4,197. The increase in such cases par ticularly those of operating under the influence of intoxicating liquor is moder ate and has undoubtedly been caused by the tremendous use of the highways for motor vehicle traffic during the past year by the greater number of auto mobiles. Drunkenness cases decreased from 59,398 to 56,696 and releases of such by the probation officers has decreased from 31,328 to 28,932. Intoxicating liquor cases have again decreased from 207 to 179 and inquests have decreased P.D. 144 REPORT 55 from 82 to 76. Parking tickets returned to the Clerks’ offices numbered 298,217 as against 249,142 which continued to increase the work of the Clerks’ offices. Chapter 425 of the Acts of 1949 amending G.L. Chap. 90. Sec. 20A which became effective January 1st will undoubtedly further increase the work in the Clerks’ offices in this type of case. Cases reported to the Appellate Division increased from 82 to 90 but there was a decrease in such cases appealed to the Supreme Judicial Court from 20 to 15. The insane commitments were 5,938 as against 6,150 for the previous year. These commitments entail a great deal of work for the justices of many courts outside the District Courts in Suffolk County. The number of neglected children, which cases are heard in the juvenile session of the court, decreased from 932 to 795. For the first time in five years there has been an increase in the number of juvenile cases. This year there were 5,219 as against 4,701 for the previous year. The Youth Service Board, established under the Acts of 1948, Chapter 310, has been in operation since January 1st, 1949 and its members have diligently applied themselves to their many per plexing problems. We are sure that the increase in juvenile cases can in no way be attributed to the operation of the Youth Service Statute and no con clusions to that effect are warranted. However, we think that one conclusion is warranted; namely, that the passage of this remedial legislation has not resulted immediately in the decrease of juvenile delinquency as was so confidently pre dicted by many of its sponsors. Juvenile delinquency depends upon so many factors and conditions that it is not ordinarily possible to attribute its increase or decrease in one year to any given cause. Experience has shown, however, that both as to juvenile deliquency and adult crime, favorable results cannot be ac complished solely by legislative means. STATISTICAL COMPILATION OF WORK OF TRIAL JUSTICES October 1, 1948 to October 1, 1949 (These figures were printed on p. 48 oj the 25th report of the Council) DELAYED DECISIONS G. L. Chapter 220, Section 14A requires a justice or special justice of a Dis trict Court other than the Municipal Court of the City of Boston, who has re served his decision in a case heard by him, to render his decision within a period of four months from the date when the hearing was closed or within such further time as the Presiding Justice of the Appellate Division of the court in which the case was heard may grant upon a request made in writing by such justice or special justice within the four month period. The Second Requirement of the Administrative Committee directs the clerk of each court to notify the Presiding Justice of said Court on the forty-fifth day after the completion of a trial or hearing of every case where a decision has not been rendered and the Chairman of the Administrative Committee on the sixtieth day after such completion. 56 JUDICIAL COUNCIL P.D. 144 The few delayed decisions reported by the clerks have been shortly filed after being brought to our attention. NAME OF COUNSEL IN APPEALED CRIMINAL CASES In order that it may appear in permanent form in our circular letter we call attention of the clerks to our letter to them dated November 25th, 1949 in reference to the entry of the name of counsel for the defendant in criminal cases appealed to the Superior Court. This letter was written at the suggestion of the Chief Justice of the Superior Court who requested that on all criminal cases that are appealed to the Superior Court the name of counsel for the de fendant or the fact that no counsel appeared for the defendant be entered upon the complaint in order to expedite the disposition of appealed criminal cases in the Superior Court. We again urge all the clerks to be careful to comply with this request. FORMS UNDER G. L. CHAP. 218, Sec. 35A This statute was originally inserted in the General Laws by Chap. 349 of the Acts of 1943 and was entitled “An Act to Provide that Certain Persons Against Whom Complaints are Made in District Courts may be Given an Opportunity to be Heard before the Issuance of Process Thereon”. It was effective Septem ber 1, 1943. It has since been amended by Chap. 293 of the Acts of 1945. In our circular letter of September 1, 1943 we suggested a form for use in carrying out the provisions of the aforesaid Chap. 349. We now recommend the discon tinuance of the use of these forms. The statute imposes no obligation upon the court to notify a prospective defendant that a complaint against him has been applied for but requires a hearing upon request of the person against whom the complaint for a misdemeanor is made if seasonably made in writing and he is not under arrest. Ordinarily a person against whom a complaint is sought is not aware of the application for such complaint unless some notification is re ceived from the court. Accordingly, we feel that it is good practice in carrying out the purpose of the statute and in the interests of the administration of justice for some notification to be given by the clerk to the person against whom the complaint is sought in cases coming under the statute which the clerk feels are complicated or apt to be controversial. Of course if he has received notice from a party that he desires to be heard before a complaint is issued on behalf of a certain individual, he should arrange for a date for hearing and notify the parties. Long before the passage of this statute it was the custom in some courts to give a prospective defendant notice that a complaint against him had been applied for and to set a date for the hearing at which he could be present. We suggest the continuance of this practice on the part of the clerk of notifying a prospective defendant in appropriate cases by letter or by the followin'* form or one of similar import: P.D. 144 REPORT 57 COMMONWEALTH OF MASSACHUSETTS ...... , SS., TO WIT: (Name of the Court), holden in said district in the County of...... , for the transaction of crim inal business. To You are hereby notified that an application for a criminal complaint to issue against you for has been made in this Court and a hearing thereon will be had on the day of in the year one thousand nine hundred and at , at which time you may appear and present such evidence as you desire to have considered before said Court, or the Clerk thereof. Clerk of the Court Please bring this notice with you and present it at the Clerk’s office. SOME RECENT SUPREME COURT DECISIONS In Commonwealth v. John L. Shea, 1949 A. S. 1045, the defendant was charged with operating a motor vehicle while under the influence of liquor and going away without stopping, making known his name, residence and the register number of his motor vehicle, after knowingly colliding with or otherwise causing injury to property. There was no direct and positive proof that the defendant was operating the motor vehicle. The evidence in this respect was altogether circumstantial and is stated in the opinion. The Court says: “The true rule of law respecting the probative character of circumstantial evidence is well settled. It is that the circumstances must be such as to pro duce a moral certainty of guilt, and to exclude any other reasonable hypoth esis; “that the circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty, that the accused, and no one else, committeed the offence charged’/ ’ and held that the evidence was insufficient to warrant the submission of the case to the jury. In this connection it might be well to re-read the case of Commonwealth v. Wood, 261 Mass. 458, where the Court held the facts in that case justified a finding beyond a reasonable doubt that the defendant must have operated the automobile in violation of the statute. Upon reading both cases the difference in the facts of each is easily recognized. In Brown v. Bigelow, 1949 A. S. 1053, the plaintiff alleged that the defendant sold to one Dunkerly a quantity of hay knowing that the same was to be resold by Dunkerly in the open market as food for animal consumption; that the de fendant negligently prepared such hay so that it was not reasonably fit for food but was dangerous to use as a food in that it contained foreign and deleterious 58 JUDICIAL COUNCIL P.D. 144 matter; that the plaintiff bought some of the hay from Dunkerly to be fed to his cows, and by reason of eating said hay plaintiff’s cows became ill and died. The defendant demurred to the plaintiff’s declaration, alleging that the plaintiff could not recover upon the count in contract for the reason that the declaration did not show a contractual relation between the defendant and the plaintiff, and that the plaintiff could not recover upon a count of tort for the reason that the plaintiff’s declaration did not show or set forth facts that the alleged defective article was inherently dangerous, nor that it was intended to be used for human consumption. The Superior Court sustained the demurrer and the plaintiff ap pealed to the Supreme Court. The Supreme Court reversed the order sustaining the demurrer, holding that the case was governed by the decision in Carter v. Yardley & Company, Ltd., 319 Mass. 92, and that the failure to allege that the hay was inherently dangerous was not ground for demurrer; that all dangerous things are brought into the same class as those termed “inherently dangerous” to which the principle of liability to persons not in privity of contract has com monly been applied. The Court further said that it was not necessary to allege that the hay was intended for human consumption. The liability of the de fendant for damage resulting from his negligence is not limited to personal injury. In Andre v. Ellison, 1949 A. S. 985, there was an action of contract by the buyer against the seller for breach of contract for the sale of land. One of the defenses alleged was the statute of frauds. There was an alleged written contract which, standing alone, the plaintiff conceded was not sufficient to meet the re quirements of the statute of frauds. The plaintiff contended, however, that the memorandum when considered with other writings was sufficient to satisfy the statute. The other wriitngs were an unsigned survey and an unsigned deed. The Supreme Court held on the facts in the case that the statute of frauds had not been complied with. In Lasell v. Director of the Division of Employment Security et al, 1949 A. S. 1077, the petitioner was denied unemployment compensation by the Board of Review; upon her petition for review to the Municipal Court of the City of Boston under G. L. Chap. 151A, Sec. 42, amended by St. 1947, Chap. 434, that Court rendered a decision in her favor, and contrary to that of the Board of Review. The Director appealed to the Supreme Court and filed his draft report, which was disallowed by the trial judge. Thereupon the Director filed his peti tion to establish that report and the Appellate Division dismissed the petition and the director appealed to the Supreme Court. A careful reading this case gives important,information as to what is required in such a petition and draft report. In the case of Commonwealth v. Sostilio, 1949 A. S. 1211, the Court again defined “wanton or reckless conduct” to be “intentional conduct, by wajr either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another” ; that wanton or reckless conduct is the legal equivalent of intentional conduct, and that where, by said conduct, bodily injury is caused to another, the person guilty of such wanton and reckless conduct is guilty of assault and battery. P.D. 144 REPORT 59 The Court further says that the insistence of the defendant (who was oper ating a motor vehicle in a midget automobile race) in attempting to drive past racers ahead of him, when there was not room enough to do so, which made a collision almost inevitable, can be found to be wanton and reckless conduct and support a conviction for manslaughter where death ensues as a result thereof. In Commonwealth v. Capitol Theatre Company, 1949 A. S. 1215, the Court held that where a former owner of premises erected thereon a sign overl^tnging a way, without the permit required by a city ordinance, and a consequent owner of the premises continued to maintain such sign over said way, there was a continuing violation of the ordinance and its maintenance by the defendant was punishable under the provisions of the ordinance. AN IMPORTANT CASE In the case of John O’Leary, Pet. 1950 A. S. 21 the Court recently ordered a writ of habeas corpus to issue for the release of the plaintiff’s minor son from the custody of the Superintendent of the Department for Defective Delinquents holding that the hearing upon which the son was committed to the department was invalid because no notice was given to this boy or anyone on his behalf of the filing of the application for his commitment before the hearing. The Court says that while such notice is not in terms prescribed in the statute it is not prescribed therein and that consequently it construes Section 113 as impliedly calling for notice in accordance with the elements inherent in due process. The case should be carefully read and the decision closely followed in cases of commitments of defective delinquents under G. L. Chapter 123, Section 113. THE NEW PARKING VIOLATION LAW Chapter 425 of the Acts of 1949, effective January 1, 1950, amended G. L. Chapter 90, Section 20A by permitting the mailing to the clerk of the court with the notice the amount due as provided therein by postal note, money order or check. The Committee on November 25th last sent forms of notices to be used under the statute to all of the clerks. In our letter transmitting these forms we observed that the duties of the offender and the clerk in the case of the first of fense were uncertain under the new law and suggested that the statute might be clarified by an amendment. It is too early yet to determine how the statute is working but we will be glad to have the clerks of the various courts notify us particularly as to their experience with first offenders. PROBATION OFFICERS Chapter 783 of the Acts of 1949 restored to the Administrative Committee the approval of the appointment of probation officers in the Boston Juvenile Court and the District Courts in Suffolk County excepting the Municipal Court of the City of Boston which authority for the past two years had been vested in the Municipal Court of the City of Boston. This seems to be an appropriate time to reprint some of the standards laid down by us and printed in our circular 60 JUDICIAL COUNCIL P.D. 144 letter dated September 1, 1943 and again in our letter of July 15, 1947. As w said in our letter of September 1, 1943, the standards are comparatively high and the judges should approach them as closely as possible in making their choices. Furthermore, the standards are flexible and cannot be too arbitrarily applied as there are many probation officers who only serve part time and they, of course, cannot be expected to have the qualifications particularly as to edu cation and training of those who serve in full time positions. % The qualifications which generally should be fulfilled by the prospective appointee are as follows: 1. Be between 25 and 45 years of age; 2. Have had a high school education or its equivalent at least; 3. Have had some active experience in social work; 4. Should be in sound health, mentally mature and emotionally balanced and possessed of great patience; 5. Should have the qualities of leadership, be interested in his fellow men and able to work with others; 6. Should have religious affiliation and character not open to attack; 7. Should be respected by the police and cooperate with them and have the confidence of the people; 8. Should have all the necessary qualities to perform the duties wriiich may be roughly classified as coming under the three following designations: A. Investigation B. Supervision C. Rehabilitation We feel that a probation officer should not be a deputy sheriff, police officer, clerk or court officer when it is possible to avoid such duplication of duties, should not be a relative of the judge making the appointment, a member of the Bar in active practice or a person who holds any public salaried office. This latter situation, of course, could not exist if the probation officer was one expected to give full time service to the court. SIMULTANEOUS SESSIONS The number of simultaneous sessions which may be held in each of the district courts for the calendar year 1950 has been determined by the Committee to be the same as that promulgated by Requirement No. 3 effective January 1, 1948 with the exception of the four courts which went on a full time basis February 1, 1949. The number of such sessions in these courts was reduced for the year 1949 and the justices thereof notified. The number of such sessions in these courts has been determined by the Committee to be the same as that au thorized for the year 1949 with the exception of the Springfield District Court in which a second full time justice has been appointed. The simultaneous ses sions in the Springfield District Court have again been reduced by reason of this appointment and the justices thereof notified. Following its usual cus tom, the Committee will entertain requests for additional simultaneous sessions from the justices of the various courts in unusual or meritorious situations. P.D. 14-4 REPORT 61 VISITS TO THE COURTS Carrying out its policy of frequent visits to the courts, the Committee has in the past calendar year visited practically all of the courts except the two courts in Barnstable County and those on Martha’s Vineyard and Nantucket. We hope to be able to visit those courts early in the spring. Our experience with the various court officials continues to be pleasant and satisfactory and we again take the opportunity of thanking them for the courtesy and consideration they have shown the Committee during its visits. We trust that these opportunities of contact between the officials and the Committee have resulted in some benefit to the personnel of the various courts and the district court system in general. Frank L. Riley, Chairman Kenneth L. Nash Leo H. Leary Ernest E. Hobson Arthur L. Eno COMMONWEALTH OF MASSACHUSETTS ADMINISTRATIVE COMMITTEE OF THE DISTRICT COURTS September 8, 1950 TO THE JUSTICES, CLERKS AND PROBATION OFFICERS OF THE DISTRICT COURTS The mid-year letter of the Committee has again been delayed by the ex tremely long session of the Legislature as the Committee has made it a practice to include in this letter the Acts of the Legislature passed at its last session that are of particular interest to the District Courts. Many of them have been in effect for some time and were effective even before they appeared in print. On our visits to the Courts we have called attention to several of these Acts but will list them below so that they may be brought to the attention of the court officials in one place. The list is not all inclusive. Only a brief description of the Act is given and it is recommended that they be read carefully when they appear in print. (Here follows a list of 54 statutes without special comment.) CHAPTER 145 This is an Act further regulating probation records. It amends Section 85 of Chapter 276 and Section 4A of Chapter 279 of the General Laws. These sections require the probation officer to inform the Court whether the defendant has previously been convicted of crime and in case the crime charged is punishable by imprisonment for more than one year that the probation officer present to the Court such information as the Board of Probation has in its possession rela tive to prior criminal prosecutions and the disposition of the same before such 62 JUDICIAL COUNCIL P.D. 144 person is admitted to bail in court or before the Court disposes of the case against the defendant by sentence, placing on file or probation and requires the Court to obtain from its probation officer for disposition of cases punishable by im prisonment for more than one year all available information relative to prior criminal prosecutions, if any, of the defendant and the disposition of each such prosecution. Each section is amended by inserting therein the following: “Such record of the probation officer presented to the Court shall not contain as part thereof any information of prior criminal prosecutions, if any, of the defendant wherein the defendant was found not guilty by the Court or jury in said prior criminal prose cution.” We do not know what prompted this legislation as it would seem that no Court would give any consideration that might be detrimental to a defendant of a not guilty finding in a prior prosecution. However, it has caused a great deal of discussion among the probation officers of the various courts and we have received many inquiries as to what records are comprehended by the statute and also whether it is necessary for the probation department of each court to alter their present records which may contain not guilty findings and whether or not they should neglect to record such findings in the future. It is the opinion of the Committee that as this amendment applies only to the record presented to the Court, it would not seem necessary for the probation department of each court to alter their present records containing not guilty findings or neglect to record such findings in the future. The probation office’s records should show a true picture of the disposition of each case brought before the Court. The only directive in the statute is that such records shall not be presented to the Court. We find there is a difference in procedure in the various courts as to the manner in which probation records are brought to the attention of the court. Where the records are presented orally to the court by the probation officer, he should omit findings of not guilty by the Court or jury in reading the record, and if a written record is presented to the Court, such findings should be omitted from this writ ten record. A discharge of course is a finding of not guilty by the court but a dismissal for want of prosecution of at the request of the plaintiff, a return of no bill, a nolle prosequi or a finding of no probable cause is not a finding of not guilty by the Court or jury although the practical effect may be the same. While we are on the subject of presenting probation records to the Court, it may be appropriate to remind probation officers that they should not present a defendant’s record to the Court and the judge should not ask for the same until the judge determines that the defendant is guilty, except when bail is to be fixed on a continuance before trial. CHAPTER 210 This Act prescribes the use of uniform official blanks in certain district courts of the Commonwealth. It does not apply to district courts in the County of Suffolk and it does not affect the forms of records for use in probation offices in the district courts. It requires the Administrative Committee, except as thus limited, to prescribe official forms which shall be used in and after Jan. 1, 1951. P.D. 144 REPORT 63 These forms are to be furnished by the counties and the clerk of each court is to notify the county commissioners of his county on or before December 1st of the probable needs of his office for the ensuing year including an estimate of the quantity of each then in his possession. We do not feel that the words “official forms” cover the form of writs to be used as the approval of the form of writs rests with the Supreme Judicial Court. The Committee desires the assistance of all the justices and clerks in the performance of its duty in prescribing these forms and we would welcome suggestions from them in reference thereto at an early date. We are presently collecting from several of the courts copies of all their official forms but as many of them may be outmoded, we desire suggestions of any changes therein from any of the court officials. CHAPTER 260 AND CHAPTER 558 These Acts regulate the attachment of wages by trustee process. The first Act which was approved March 27, 1950 placed the duty of prescribing forms under the statute entirely upon the Administrative Committee of the District Courts. After many consultations, this was called to the attention of the Legislature and Chapter 558, which was approved as an emergency law on June 23rd last, provided that the form of notice required under the statute should be prescribed in the Superior Court by the Chief Justice thereof, in the Municipal Court of the City of Boston by the Chief Justice thereof and in other district courts by the Administrative Committee of the District Courts and that the manner of serving such notice should be designated in each case by the justice, special justice or associate justice authorizing the attachment. As the Committee could not know that Chapter 558 would be enacted before Chapter 260 became effective, we sent to the various courts on June 12th forms to be used under Chapter 260 which were in substance the same as those recommended by the Municipal Court of the City of Boston and had been agreed upon after consultation between the Chief Justice of that court and your Committee. In our letter transmitting these notices we asked the various courts to give us information as to the operation of the statute having in mind that some changes might be necessary in pro cedure or the forms if the statute was amended. On the whole we have found that the procedure has worked very well under the new statute and we have received some suggestions in reference to the forms and procedure. However, in view of the provisions of Chapter 210 requiring the Committee to prescribe all official forms, we feel it wise to await further suggestions and observe the opera tion of the statute before making final changes in the present forms. We invite further suggestions from the justices and clerks. SOME RECENT SUPREME COURT DECISIONS Following are some decisions of the Supreme Judicial Court made since our last circular letter. A careful reading of them is recommended. Cummings v. Wajda, 1950 A.S. 91. In this case the Court held that sum mary process is purely statutory procedure and can be maintained only in the instances specifically provided for in the statute. Those instances are where 64 JUDICIAL COUNCIL P.D. 144 there has been a “forcible entry”, where there has been “a peaceable entry” and “possession is unlawfully held by force,” where a “lessee” or “a person holding under him” holds possession without right after determination of the lease, where a mortgage or a tax title has been foreclosed and (with certain qualifica tions) where title has been registered. Leventhal v. Krinsky, 1950 A.S. 197. In this case the note in question provided for the payment of the principal sum at a designated trust company “together with all costs and all legal expense for the enforcement and collection hereof, such charges in no event to be less than a sum equal to twenty per cent of the aggregate of principal and interest unpaid on this note at the time this note is placed in the hands of an attorney for collection”. The Court holds that a stipulation in a promissory note for the payment of “a reasonable attorney’s fee” is binding upon the maker of the note, and holds also, as is done in a majority of other jurisdictions, that a provision fixing the attorney’s fee as a certain per cent of the principal or of the principal and interest is good at least unless it clearly appears that it is so unconscionable and oppressive as to amount to a penalty or that it is a device to circumvent the usury statutes. Shaw v. Boston American League Baseball Company, 1950 A.S. 285. In this case the plaintiff was struck and injured by a baseball while attending a game at the defendant’s baseball park. The Court holds that a spectator fa miliar with the game assumes the reasonable risks and hazards inherent in the game and said there could be no recovery. Galjaard v. Day, 1950 A.S. 351. In this case the defendant obtained on October 21, 1948 judgment against plaintiff for the possession of a tenement in an action of summary process but the issuance of execution was stayed from time to time until some time in March, 1949. Plaintiff remained in possession of the tenement. On December 25, 1948 he fell on ice on a common walk on the premises. The Court held that the plaintiff, while he was in possession of the premises, because of the stay of the issuance of the execution, was a tenant at sufferance, and that the recent statutes providing for stays of execution in cases of summary process do not extend the tenancy at will. Silke v. Silke, 1950 A.S. 371. In this case there will be found an interesting and helpful statement by Ronan, J. relative to the presumption of legitimacy and a review of the decisions of the Court regarding the period of gestation. Commonwealth v. Carpenter, 1950 A.S. 403. In this case it was charged that the defendant “did wilfully and unreasonably saunter and loiter in a certain public street . . . called Columbus Avenue for more than seven minutes after being then lawfully directed there . . . to move on” by a police officer. The complaint was based upon Chap. 40, Section 34 of the Revised Ordinances of Boston (1947). The Court held, by a majority decision, that this section of the ordinances was unconstitutional. Kerr v. Palmieri, 1950 A.S. 443. In this case, after a hearing, the judge al lowed plaintiff’s motion to reopen the case. The reason stated in the motion was that at 'the time of the trial records of a hospital of the veterans administra tion were not admissible but subsequently had become so by virtue of statute P.D. 144 REPORT 65 1948, Chapter 74[. The motion asked that the case be reopened and such evi dence and any other matters pertaining to personal injuries of the plaintiff be heard. The defendant did not question that as a general proposition the grant ing of a motion to permit additional evidence to be introduced after the trial has been closed rests in the discretion of the trial judge, but argued that the allowance of this particular motion was erroneous as a matter of law because the statute concerning the records of a hospital of the veterans administration cannot be given a retroactive effect. The Court said that this statute relates to the admissibility of evidence and is therefore procedural and operates to affect pend ing cases. There are several other interesting points in this case worth noting. Maguire v. Haddad, 1950 A.S. 485. This is an interesting case dealing with rent, termination of tenancy, tenancy at will and notice. Standing and Special Justices when called upon to make a judicial review of decisions of the Board of Review in the Division of Employment Security under G.L. Chap. 151A, Section 42, will find the following eases helpful: Olechnicky v. Director of the Division of Employment Security et al, 1950 A.S. 561; Corrado v. Director of the Division of Employment Security, 1950 A.S. 621. DISCRETIONARY STAY OF JUDGMENT AND EXECUTION IN SUMMARY PROCESS CASES It is now provided by Chapter 2 of Acts of 1948, as amended, that so long as this Act continues in force a stay or successive stays of judgment AND execu tion may be granted under sections nine to thirteen, inclusive of Chapter 289 of the General Laws for a period not exceeding twelve months or for periods not exceeding twelve months in the aggregate. During some of our visitations we have been asked by judges whether or not in our opinion it was necessary to stay both judgment and execution, or whether judgment could be entered and the issuance of execution alone stayed. It is our considered opinion that the issuance of the execution can be stayed without the judgment being stayed. If judgment is stayed, the aggrieved party is deprived of his right to appeal. We think it the better practice to enter judgment and stay the issuance of the execution if that seems warranted. In the case of Galjaard v. Day, 1950 A.S. 351, it is stated in the opinion that judg ment for possession was obtained but the issuance of execution was stayed. This also appears to have been done in the case of Dennett v. Nesson, 244 Mass. 299. As in neither case was there any criticism of this procedure by the Supreme Court, we conclude that it has the Court’s tacit approval. In view of the fact that we have received complaints from the bar relative thereto, judges should be careful to see that no stays of execution are allowed in cases based upon a fourteen days notice to quit for nonpayment of rent. While the situation in landlord and tenant cases has eased considerably during the past few months, it is still very troublesome in some localities. While 66 JUDICIAL COUNCIL P.D. 144 we feel that the judges and special justices of the district courts have administered the summary process law remarkably well under trying conditions, we occa sionally receive complaints that in certain courts a tendency is shown to favor the landlord and in others the tenant. We are passing this criticism along having in mind that all the officials of the court in these cases will conduct themselves so that no justified criticism can be made in this respect. EXTENSION OF PROBATION We have been asked whether it is necessary for a defendant to appear before the Court at the end of his probationary period. We feel that the probationer should be before the Court if the terms of his probation are to be altered or extended unless he has consented to the alteration or extension of the terms thereof and this consent is in some way a matter of written record. It would not seem to be sound practice for the Court to act in the absence of the proba tioner if such waiver has been given orally to the probation officer. It must be borne in mind that a defendant is not obliged to accept probation with or without a suspended sentence and if he accepts either, he does so on certain terms to which he consents and such terms should not be changed without his consent and probably giving him a right to appeal in a district court from any new disposition of his case. Marks v. Wentworth 199 Mass. 44. In s'ome courts it is the practice to notify the probationer by letter that his case will be considered by the Court on a certain date and that it will be necessary for him to appear at that time unless he signs and returns the enclosed paper to the effect that he agrees to a continuance of the case for one year upon the same terms without appearance. Accompanying this is a written agreement to be signed and returned to the probation officer that the probationer agrees to the continuance of his case upon the same terms to a certain date without his appearance. Of course, if a probation officer recommends that the case be dismissed at the end of the probationary period and the Court is willing to take the recommendation, there would seem to be no necessity for the probationer being present. TIMES OF HOLDING TRIALS AND OFFICE HOURS OF CLERKS During the past year we have had some complaints as to the punctuality with which courts opened and the irregularity with which certain sessions thereof are held and during the past summer we have had some complaints about the offices of the clerks closing in the afternoon. The times for holding civil and criminal sessions in the district courts and the hours in which the clerks’ offices should be open were approved by the former Administrative Committee under the provisions of Chapters 280 and 81ft of the Acts of 1939 which were effective September 1, 1939 (now Gen. Laws Chap. 218, Sec. 15) and have not been changed by the present Administrative Committee. On inquiry we found that the offices of several clerks were authorized by the former Administrative Committee to close certain hours during the summer months. We have taken the matter up with the justices and clerks of these courts and have been very gratified at their reaction to our suggestion that the clerk’s office hi their courts be kept open as usual during the summer months in conformity with the general practice in the clerks’ offices in the district courts. P.D. 144 REPORT 67 The present Committee feels that in the interests of uniformity and to more adequately serve the bar and public the offices in all the district courts should be open until 4 o’clock on all days of the year except Saturdays and holidays. The Legislature, by Chapter 160 of the Acts of 1947 having this in mind, authorized the clerks to operate their offices on Saturday with reduced personnel upon the approval of the justice of the court and the Administrative Committee. If the officials of any court feel that there should be an exception to this general rule, they may take the matter up with the Committee as provided in the statute. As to the punctuality of opening courts and the regularity of holding ses sions, we urge all justices and special justices that they comply as nearly as is possible to the hours which have been established under the foregoing statutes and by their own rules to the end that the public and the bar are properly served. Parties and witnesses are required by legal process to attend at a certain time and place in proceedings before our courts and we rightly expect them to heed the directions of such process. It is only fair, therefore, that the courts should be operated as nearly as possible upon schedules that they them selves have fixed. The district court is known as the people’s court and we should strive to make the service therein as adequate and satisfactory as may be to the general public and the bar. APPEARANCE OF DISTRICT ATTORNEYS We have been infonned that some question has arisen as to the right of a district attorney or his assistant to appear for the Commonwealth in criminal cases in the district courts. We feel that such appearances are perfectly proper, are ordinarily very helpful to the court and that the practice should be en couraged. In support of this view the following is quoted from Commonwealth v. Buck 285 Mass. 41 at pages 43 and 44: “Although the statute (G.L. (Ter. Ed.) c. 12, Sec. 27) expressly requires the attendance of the district attorney in the courts of superior jurisdiction, his appearance in district courts within his district is discretionary. It is a common practice for district at torneys to appear in district courts in cases where persons are charged with the commission of serious crimes. It is plain that the district attorney had power to appear for the Commonwealth in the District Court, and where as here the grand jury had returned an indictment against the defendant for the same offence charged in the District Court he could enter a nolle prosequi of the complaint, the effect of which without trial would be like dismissing a com plaint.” 6S JUDICIAL COUNCIL P.D. 144 COMMITTEE VISITATIONS We have continued our recent practice of attempting to visit every court in the Commonwealth in approximately one year. This keeps the Committee in touch with the constantly changing personnel in the courts and affords court officials a chance to take up with the Committee any and all of their problems. These visits have been highly instructive to the Committee and we trust that they have been helpful to the various court officials. We have been pleasantly and cordially received in all instances and we wish to take this opportunity of thanking all of the court officials with whom we have come in contact for their courtesy and the cooperation that has been shown by them. FRANK L. RILEY, Chairman KENNETH L. NASH LEO H. LEARY ERNEST E. HOBSON ARTHUR L. ENO P.D. 144 REPORT 69 APPENDIX C Summary op the Work Accomplished by the Various Courts The act creating the Judicial Council (reprinted at the beginning of this report) provides that the Council shall study “the work accomplished and the results produced by the judicial system and its various parts” and “shall report annually upon the work of the various branches.” The annual periods reported by the different courts are not the same, some reporting for the last calendar year while others report from June 30 to June 30, or from September 1 to September 1, etc. The details as to counties appear below as reported by the clerks of the courts. Supreme J udicial Court (Full Bench Cases) During the court year September 1, 1949, to August 31, 1950, the Supreme Judicial Court decided 250 cases with opinions and 29 cases by rescripts, not accompanied by opinions; and gave 1 ad visory opinion as shown by the table below. These cases are re ported beginning in 324 Mass, at page 574 and ending in 326 Mass, at page 313 and Supplement. The table of full-bench cases from 1875 to 1939 appears on p. 71 of the 15th Report. The usual table of Supreme Court business, other than full-bench cases, with more detailed statements from Suffolk county appears on the following page. Geographical Distribution of F ull B e n c h C a s e s Opinions Rescripts only Barnstable ...... 1 Berkshire ...... 3 1 16 4 24 2 Hampden ...... 17 1 Middlesex ...... 43 8 Norfolk ...... 17 3 Plymouth ...... 10 2 100 8 W orcester ...... 19 — — 250 29 Advisory opinion ...... 1 (a minority opinion was also filed) (No t e : Where one opinion covered more than one case it is listed above as one case.) Dissenting opinions: Paltsios’s Case, Mass. Adv. Sh. (1950) 219; 325 Mass. 356. Lincoln v. Secretcu-y of the Commonwealth, Mass. Adv. Sh. (1950) 1011; 326 (Mass. 313. 70 JUDICIAL COUNCIL P.D. 144 SUPREME JUDICIAL COURT ENTRIES F or the Y ear B eg in n in g September 1, 1949, through August 31, 1950 (Not including full bench cases) Transferred R eferred Petitions for Equity to Other to Masters Prerogative Admission Other Courts or Auditors W rits to B ar Proceedings B arnstable...... _ — — — — B erkshire...... —— ——— 2 B ristol...... —— — —— — D ukes...... __ — — — — — E ssex...... 1 1 — —— 1 F ran k lin ...... —— — — — •— H am pden...... — 1 — 1 — 1 H am pshire...... —— — —— M iddlesex...... 4 —— 1 — — N antucket...... —— — — — — N orfolk...... 1 1 —— — 1 P lym outh...... —— ' — — —• — W orcester...... — 1 ■ T otals...... 6 4 — 2 — 6 SUPREME JUDICIAL COURT FOR THE COUNTY OF SUFFOLK F rom September 1, 1949 to September 1, 1950 Transferred Petitions for to Referred Admission Superior Prerogative to Master to the Bar Court Writs 2 1178 10 118 L a w D o c k e t Appeals from decision of Appellate Tax Board...... 6 Petitions for Admission to the Bar...... 1,178 Petitions for Writs of Error...... 8 Petitions for Writs of Mandamus...... 4 Petitions for Writs of Certiorari...... 4 Petitions for Writs of Habeas Corpus...... 2 Petitions for Stay of Execution...... 5 Petition by Bar Association (Disciplinary Actions)...... 1 Petition for leave to appeal from denial of Motions for a new Trial...... 1 Reports of Special Commissioners...... 4 Entry fee increased by Legislature from §3.00 to §5.00 as of May 22, 1950 1,213 Total Entries on Law Docket...... 1 ,2 1 3 Equity Docket Informations ...... 18 Bills of Complaint...... 13 Bills in Equity...... 5 Bills for Declaratory Judgment...... 2 Bill for authorization to sell Real Estate...... 1 Petitions for Dissolution (G.L. c. 155, s. 50A)...... 4 (About 2,450 corporations) Petitions ...... 6 Petitions to suspend Decree of Superior Court...... 6 Petitions for modification of Decree under the Provisions of G.L. c. 214. s. 22 as amended by the Acts of 1948. c. 309...... 2 Petition for Review...... 1 Petition for Stay of Proceedings under G.L. (Ter. Ed.) c. 215. s. 23, 24...... 1 Petition for license to mortgage Trust Estate...... 1 Petition for appointment of a Receiver ...... 1 Petition to reform Trust Instrument...... 1 Petition for transfer of church property and other relief...... 1 Petition for Injunction...... 1 Entry fee increased by Legislature from §3.00 to §5.00 as of May 22, 1950 Petition for appointment of a Trustee ...... 1 65 Total Entries on Equity Docket...... 65 Total Entries on Both Dockets ...... 1,278 P.D. 144 REPORT 71 THE SUPERIOR COURT This court consists of a chief justice and thirty-one associate justices. It has unlimited civil and criminal jurisdiction and holds sessions in all of the fourteen counties. It is the only court sitting with juries. The tabulated returns of the clerks under St. 1936, chap. 31, § 3 for the year ending June 30, 1949, will be found on pp. 85-97. To have a true picture of the work of the trial sessions one must take into consideration many cases settled during trials and others nonsuited or defaulted. An example is Suffolk County where a case is deemed tried only when a trial results in a verdict or disagree ment. Of all civil cases tried most are tried in this county. Motion sessions are held regularly in Suffolk, Middlesex, Worces ter, Hampden and Essex and Norfolk Counties. In other counties motions are considered at jury-waived sessions. Many questions are considered by the court at these sessions. APPELLATE DIVISION, SUPERIOR COURT Foe th e R eview of Sentences to the State P rison and R eformatory for Women Appeals in I ndictment Cases U nder St . 1943, Ch . 558 November 1, 1949—October 31, 1950 (Reported by the Clerk of Suffolk County) Number of appeals pending October 31, 1949 ...... 43 Sentences increased ...... 2 Number of defendants filing Appeals dismissed ...... 78 appeals ...... 114 Appeals withdrawn ...... 28 Sentences modified ...... :..... 19 Pending October 31, 1950 ...... 30 The division consisting of three justices sat 17 days. Cases where the sentence has been modified or increased by the Appellate Division from November 1, 1949 to October 31, 1950. Original Sentence New Sentence Robbery (Armed) 18-20 yrs. 12-15 yrs. 12-15 yrs. 8-10 yrs. 5-7 yrs. 3-5 yrs. Robbery 7-10 yrs. 3- 5 yrs. 10-12 vrs. Mass. Reformatory 5 yrs. 1 day Rape 8-10 yrs. 4- 6 yrs. 72 JUDICIAL COUNCIL P.D. 144 Incest Life 25-30 yrs. 10-15 yrs. 8-10 yrs. Breaking and Entering 4-5 yrs. 6-8 yrs. 6-8 yrs. 3-5 yrs. Larceny 4-5 yrs. 6-8 yrs. Larceny of Auto 21/2-3 yrs. Mass. Reformatory Lewd and Lascivious Co Reformatory for Reformatory for Women habitation Women 5 yrs. 1 (indefinite) day Larceny of Auto 12 counts 15-20 yrs. 10-15 yrs. adjudged a common and notorious thief Cases where the sentence has been modified or increased by the Appellate Division from November 1, 1949 to October 31, 1950 and the defendant has appealed from more than one sentence. Offence Original Sentence New Sentence A. Robbery (Armed) 12-15 yrs. 4-6 yrs. Robbery (Armed) 12-15 yrs. concurrent 4-6 yrs. Robbery (Armed) 18-25 yrs. concurrent 18-25 yrs. from and after B. Robbery (Armed) 1S-20 yrs. 12-15 yrs. F & A 25-30 yrs. concurrent 1S-25 yrs. C. Robbery (Armed) 18-20 yrs. 12-15 yrs. concurrent 25-30 yrs. F & A. 18-25 yrs. D. Robbery (Armed) 5-8 yrs. Mass. Reform. 5 yrs. 1 day Robbery (Armed) 5-8 yrs. con. Mass. Reform. 5 yrs. 1 day Robbery (Armed) 5-8 yrs. con. Mass. Reform. 5 yrs. 1 day Robbery (Armed) 5-8 yrs. con. Mass. Reform. 5 yrs. 1 day Robbery (Armed) 5-8 yrs. con. Mass. Reform. 5 yrs. 1 day Robbery (Armed) 5-8 yrs. con. . Mass. Reform. 5 yrs. 1 day Carrying weapon 3-5 yrs. con. Mass. Reform. 5 yrs. 1 day Larceny of Auto 3-5 yrs. con. Mass. Reform. 5 yrs. 1 day Sentences to Mass. Re form. all concurrent E. Assault to Rob 10-15 yrs. Appeal dismissed Confining with intent / to comit larceny 10-15 yrs. F & A 10-15 yrs. concurrent F. Robbery (Armed) 10-15 yrs. 7-10 yrs. Robbery (Armed) 10-15 yrs. concurrent 7-10 yrs. concurrent G. Assault with intent to abuse 10-15 yrs. 10-20 yrs. Unnatural Act 4-5 yrs. F & A 4-5 yrs. concurrent P.D. 144 REPORT 73 PRE-TRIAL SESSIONS These were held in five counties—Suffolk, Middlesex, Hampden, Essex and Worcester—as compared with three counties last year. SUFFOLK COUNTY P re- trial S e s s io n s op S u perio r C ourt 154 D a y s from J u l y 1 1949 to J u n e 30, 1950 (Reported by the Clerk) Number of Cases on Pre-trial List ...... 5 373 Number of Cases Pre-tried ...... 4 -q i Number of Cases Settled by Agreement ...... 558 Number of Cases Nonsuited ...... -j ... - Number of Cases Defaulted ...... 2Q0 Number of Cases Disposed of by nonsuit and default, or discontinued 75 Number of Cases Referred to Auditors ...... 10 Number of Cases Where Jury was waived ...... 1 1 4 Number of Cases Continued ...... 3gg Number of Cases to Trial Lists (short lists) ...... 1 867 Number of Cases from Pre-trial Lists Settled on Trial Lists (short lists) 1,209 P re- trial “D ispositions ” J u l y 1 , 1949 to J u n e 30, 1950 Cases on Pre-trial list ...... 5 373 Cases Pre-tried ...... 4 ,1 1 1 Cases not Pre-tried ...... 1,262 Cases Pre-tried and Settled while awaiting trial ...... 1,209 Referred to Auditors ...... 10 Sent to Trial Sessions ...... 1,981 Awaiting Trial ...... g il ------4,111 Cases not Pre-tried ...... Settled ...... 558 N onsuits ...... 135 Defaults ...... 1 0 6 . Nonsuits and Defaults ...... 75 C ontinuances ...... 333 Cases in which entry of “Neither Party” was ordered en tered ...... ------1,262 Total Pre-trial “Dispositions” ...... 5 373 74 JUDICIAL COUNCIL P.D. 144 M iddlesex County P re-trial Sessions (29 Days), J anuary—J une, 1950 Cases Pre-tried ...... 1,825 Nonsuits ...... 69 Defaults ...... 42 Nonsuits and Defaults ...... 77 Continued for Pre-trial ...... 482 Added to Jury Trial List ...... 605 Added to Jury Waived Trial List ...... 49 Miscellaneous ...... 61 Conditional Neither Party ...... 288 Neither Party ...... 9 Settled ...... 108 Total Cases disposed of ...... 405 Added to Assessment of Damage List ...... 35 ------1,825 Hampden County P re-trial Sessions, 21 Days—J uly 1, 1949 to J une 30, 1950 Number of cases on Pre-Trial Lists ...... 1,255 Number of cases pre-tried ...... 858 Number of cases settled ...... 99 Number of cases nonsuited ...... — Number of cases defaulted ...... 3 Number of cases discontinued ...... 5 Number of cases referred to auditor ...... 2 Number of cases in which jury trial was waived...... 34 Number of cases ordered to subsequent pre-trial lists .... 254 Number of cases to trial lists (short lists) ...... 858 Number of cases from pre-trial lists settled off short lists...... 387 E ssex County There were three days of pre-trial at Lawrence, during the year July 1, 1949 to June 30, 1950. There were 285 cases pre-tried. 45 were settled at the pre-trial and 14 were otherwise finally disposed of. The remaining 226 went to the trial lists. Worcester County Call of D ocket, J une 13, 14, 15 and 16, 1950 Settled ...... 64 Non-suited ...... 32 Default ...... ‘ Neither party ordered ...... 134 Dismissed or discontinued ...... ■*...... 102 Ordered on pre-trial list ...... 79 Taken off the list ...... 62 Ordered on motion list ...... 64 Ordered on trial lists ...... 146 Decree pro confesso ...... 4 Order for judgment ...... 1 Decree after rescript ...... 1 686 P.D. 144 REPORT 75 R e f e r e n c e s to A u dito rs a n d M a sters i n t h e S uperio r C ourt Calendar Year 1949 County A u d ito r Master Barnstable ...... 14 14 Berkshire ...... 1 2 Bristol ...... 6 2 1 Essex ...... 9 18 Franklin ...... — 6 Hampden ...... 3 8 Hampshire ...... 2 2 Middlesex ...... 12 27 Norfolk ...... 9 1 1 Plymouth ...... 2 15 Suffolk (Civil) ...... 38 25 Worcester ...... 10 17 106 166 Two or more cases tried together are counted as one reference. A uditors a n d M asters E xpenditures 1949 1949 Barnstable $6,377.34 Berkshire 159.75 Bristol .... 7,922.50 Dukes .... Essex ...... 2,638.4S Franklin . 1,071.55 Hampden 1,050.00 Hampshire 483.00 Middlesex 11.139.75 Nantucket Norfolk .... 6.042.25 Plymouth 3.093.25 Suffolk .... 21.397.75 Worcester 4,361.85 $65,737,47 Note: In Suffolk and Plymouth Counties these figures apply to the Superior Court. In other Counties expenditures in the ¡Supreme Judicial, Probate and Land Courts, if any, may be included. LAND COURT This is a court of three judges created in 1898 for the registration of title to land and since then developed by additional extensions of jurisdiction both at law and in equity into the court in which almost all litigation regarding title to land takes place in addition to its original function of a court for the registration of title. LAND COURT FIGURES FROM JULY 1, 1949 to JUNE 30, 1950 Registration Cases ...... 553 Confirmation Cases...... 6 Post Registration Cases ...... 818 Tax Lien Cases ...... 646 Miscellaneous Cases ...... 317 Equity Cases ...... 926 Total Cases Entered ...... 3,266 76 JUDICIAL COUNCIL P.D. 144 Decree plans made ...... 622 Subdivision plans made ...... 9 8 6 Total plans made...... 1 ,6 0 8 Total appropriation ...... $2-19,880.00 Fees sent State Treasurer...... 7 6 ,5 4 2 .0 0 Income from Assurance Fund applicable to expenses...... 9 ,6 8 7 .1 3 Unexpended balance ...... 4 ,9 8 8 .5 4 Net cost to Commonwealth...... 1 2 8 ,6 6 2 .3 3 Assurance Fund June 3 0 , 1 9 5 0 ...... • 3 3 4 ,6 8 7 .1 5 Assessed value of land on petitions in registration and confirmation cases entered 3,689,317.57 CASES DISPOSED OF BY FINAL ORDER DECREE OR JUDGMENT BEFORE HEARING Land Registration ...... jj70 Land Registration—Supplementary ...... »ob Tax Foreclosure ...... Equity, Real Actions and Miscellaneous ...... 1»uuo Total Cases Disposed of ...... 3,379 PROBATE COURTS There is a probate court in each county with jurisdiction of wills, trusts, settlement of estates, guardianship, adoption, change of name, divorce and separate maintenance and a variety of other matters. There are now three judges in Suffolk, and in Middlesex, two in Essex, Worcester, Hampden, Norfolk and Bristol, one in each of the other counties. The report prepared by the Administrative Committee of the Probate Courts for the year 1949 appears on page 98. THE MUNICIPAL COURT OF THE CITY OF BOSTON This court consists of a chief justice and eight associate justices, all full time judges. There are also special justices. The tables showing the details of the civil business for the year 1949-50 will be found on p. 76. The comparative table of civil business from 1913 to 1939 will be found in the 15th. Report, p. 65. The con densed civil and criminal business and other information for the year 1949-50 is as follows: M unicipal Court of th e City of Boston Civil A c t io n s (O t h e r t h a n S m all C la im s C a s e s ) 1949-50 Y f a r ments Contract only Contract ments sion ment Security Law Security ment Court from Appellate Appellate from Court Division Court under Court Employ under ments Heard, Appellate Divi Appellate Heard, Tiials of Cent Per Average Plaintiff’s Judg Plaintiff’s Average Judicial Supreme To To Supreme Judicial Judicial Supreme To Total Plaintiff’s Judg Plaintiff’s Total Tried Per Cent of Entiies of Cent Per All Defaults All Per Cent Per Removed Entered I Per Cent of Entiies of Cent Per I *2,902,323.33 $214.15 37 1.9 15 1949 21,178 899 4.2 9638 45.5 1963 9.3 1950 SI,930,948.51 $201.33 15 1.1 4 9 mos. 14,472 707 4.9 6491 44.9 1328 9.2 6 P.D. 144 REPORT 77 SUBDIVISION—CONTRACT AND TORT—1949-1950 E n t e r e d R e m o v e d T r ie d Y e a r Per Cent Per Cent Contract Tort Contract of Entries Tort of Entries Contract Tort 1949 14,952 4 ,969 383 2 .6 488 9 . 8 846 770 1950 9 mos. 9,667 3 ,925 286 3 .0 400 1 0 .2 529 579 TORT ENTRIES, REMOVALS AND TRIALS 1949 TORTS ENTERED TORT REMOVALS TORTS TRIED Motor Vehicle...... 3,714 Motor Vehicle, Plff. . . . — Motor Vehicle...... 607 Other Torts...... 1,255 Motor Vehicle, Def.. . . 454 Other Torts...... 16(3 ------Other Torts...... 34 Total...... 4,969 ------Total ...... 770 Total...... 488 1950 (Nine Months) TORTS ENTERED TORT REMOVAL'S TORTS TRIED Motor Vehicle...... 3,034 Motor Vehicle, Plff. . . . — Motor Vehicle . . . . 499 Other Torts ...... 891 Motor Vehicle, Def.. . . 356 Other Torts ...... 80 Other Torts...... 44 Total...... 3,925 Total ...... 579 Total ...... 400 S u m m a r y P ro cess (E j e c t m e n t ) E n t r ie s 1949 ...... 675 1950 (9 Months) ...... 499 S upplementary P rocess E n t r ie s 1949 ...... 2,579 1950 (9 Months) ...... 1,840 SMALL CLAIMS DIVISION 1949 1950 (January-September, 9 months) Contract Tort Total Contract Tort Total Actions Entered ...... 1,583 309 1,892 1,194 230 1,424 Actions Settled...... 352 173 525 252 136 388 Counter-Claims or Set-Offs.... 13 8 21 7 13 20 Trials...... 325 160 485 180 135 315 Reserved...... 108 78 186 71 71 142 Finding for Plaintiff...... 246 115 361 130 89 219 Finding for Defendant...... 80 44 124 52 47 99 Judgments by Default...... 769 77 846 458 40 498 Judgments by Non-Suit...... 13 8 21 11 4 15 Amount of Plaintiff’s Judgments S34,997.46 $3,804.09 $38,801.55 $23,041.78 $2,701.86 $25,743.64 Transferred to Regular Civil Docket...... 12 3 15 15 3 18 Removed to Superior Court . . . 6 5 11 4 2 6 Executions...... 741 240 981 567 165 732 Amount of Plaintiff’s Claimsf. . $42,908.14 $10,258.32 $53,166.46 $29,174.13 $11,575.25 $40,749.38 Notices Returned Unclaimed . . 442 17 459 377 23 400 78 JUDICIAL COUNCIL P.D. 144 MUNICIPAL COURT OF THE CITY OF BOSTON FOR CRIMINAL BUSINESS October 1, 1 9 4 9 ...... September 30, 1950 T o t a l B u s i n e s s o f C o u r t 1. Automobile Violations ...... 1,717 2. Traffic Violations ...... 32,070 3. Domestic Relations ...... 499 4. Drunkenness in Court ...... 7,815 5. Drunkenness Released by Probation Officers ...... 7,639 6. Other Criminal Cases ...... 4,017 7. Inquests Entered ...... 13 8. Search Warrants Issued ...... 94 9. Complaints Heard but Denied ...... 1,690 10. GRAND TOTAL BUSINESS ...... 55,554 D ispositions 1. Pleas of Guilty ...... 28,643 2 . Pleas of Not Guilty ...... 3,228 3. Placed on file before trial, after trial, dismissed, nol-prossed, quashed, etc. 11,821 4. Defendants not arrested, pending for trial ...... 2,053 5. Defendants acquitted ...... 970 6. Defendants Bound Over to Grand Jury ...... 454 7. Defendants placed on probation (not including surrenders) ...... 2,834 8. Defendants fined and paid ...... 24,583 9. Imprisonments ...... 2,237 10. Fines appealed ...... 190 11. Imprisonment appealed ...... 964 1 2 . Defendants pending for sentence ...... 6 N o n -C r i m i n a l P a r k in g L a w 1. Parking tags turned in by violators as issued by Police...... 259,832 F i n a n c e s 1. Money rec’d by parking tag office ...... $237,030.00 2. Money received from Court fines, forfeitures and fees, etc...... 95,284.96 3. Total money received and turned over to Comm. County, City of Boston, etc# ...... $332,314.96 4. Moneys received as bail by Court and forwarded to Superior Court or re turned to defendants ...... 249,359.00 5. TOTAL moneys handled by the Court...... $581,673.96 WORK OF TRIAL JUSTICES Reported to the Administrative Committee of the D istrict Courts October 1, 1949 to October 1, 1950 Criminal Criminal Drunken Drunkenness Automobile Juveniles Cases Begun Appeals ness Releases Cases under 17 yrs. North Andover 100 0 30 23 65 0 Andover .... 147 .1 0 0 0 0 Nahant ...... 163 0 42 32 100 0 Marblehead* Saugus ...... 731 1 151 142 548 0 Hopkinton . . . 7 0 0 0 7 0 Hudson ...... 26 0 13 0 15 -0 Hardwick 4 0 3 1 1 0 Barre ...... 57 0 7 1 21 2 Ludlow ...... 194 0 32 0 120 0 By St. 1947 343 civil jurisdiction of claims up to $50.00 under the small • claims. procedure was extended to the Trial Justice in the town oi Barre. Thirty (30) such . cases have been entered for the above period. * Although requested several times, this Trial Justice has not sent in his statistics. P.D. 144 REPORT 79 T h e B oston J u v en ile C ourt The Boston Juvenile Court, created in 1906, is a separate court with jurisdiction in juvenile cases in the central district of Boston. It has one judge and two special justices. Complaints— October l, 1949— September SO,, 1950 : Boys Girls Totals Adults Juvenile Criminal ...... 12 0 12 Men ...... 40 Delinquent ...... 434 209 643 Women ...... 20 Wayward ...... 0 1 1 446 210 656 Adults 60 716 representing 59 chil- Neglect Complaints ...... 23 dren TOTAL___ 739 Active as of September 30, 1950: Individuals C omplaints J u v e n i l e s : Boys ...... 167...... 195 Girls ...... 112...... 113 Total ...... 279...... 308 Adults : Men...... 20. . , ...... 22 Women ...... 19...... 19 Total ...... 39 41 Neglected Children ...... 102 38 Totals ...... 420...... 387 Number of Cases: Juvenile ...... 279 Adults ...... 39 Neglected children ...... 38 Total 356 THE INDUSTRIAL ACCIDENT BOARD J anuary 1, 1949 to D ecem ber 31, 1949 This board administers the workmen’s compensation law. During the year 1949, 250,175 reports of injury were filed with the Department, About 53,488 were injuries causing the loss of at least one day or one shift, 195* being fatal injuries, 35* perma nent total disability, 990*, 31,132* temporary total disability with over 7 days lost time, and 21,136* cases of 1 to 7 days of temporary total disability. A total amount of approximately $21,740,488.87* was paid out in compensation, medical, and other statutory payments under the Workmen’s Compensation Act. Insurers paid out $19,204,706.71* ; self-insurers paid out $1,757,044.90; and the governmental units which have accepted the provisions of the Act paid out $778,- 737.26*. The cost to the commonwealth of administering the workmen’s compensation law for 1949 was $527,419.13; for 1948. $454,587.78; in 1947, $438,621.82; in 1946, $395,220.05. In 1927 it was $177,- 219.21 (see 4th Report of Judicial Council p. 60). * These figures are subject to change because one governmental unit has not yet filed its report. so JUDICIAL COUNCIL P .D . 144 APPELLATE TAX BOARD The Appellate Tax Board is an administrative tribunal, to which have been transferred some of the functions formerly imposed on the Superior Court. It came into existence under St. 1937, c. 400, on May 29, 1937, succeeding the old Board of Tax Appeals created in 1931 and later abolished. The following tables show the number and distribution of appeals. Comparative figures since 1931 may be found in earlier reports. More detailed statistical information appears in the annual report of the board to the legislature. C o m b in e d F orm al a n d I n fo r m a l P rocedure ( R eal E state A p p e a l s) 1950 (Year Ending June 30) The State (taken as a whole) 1950 Appeals pending at beginning of year...... 6,754 Appeals entered (net) during year...... 4,346 Total number before Board during year...... 11,100 Less: Settled or withdrawn during year...... 4,329 Net total to be decided by Board...... 6,771 Appeals decided by Board during year...... 386 Appeals pending at end of year...... 6,385 BOSTON Appeals pending at beginning of year...... 5,812 Appeals entered (net) during year...... 3,184 Total number before Board during year...... 8,996 Less: Settled or withdrawn during year...... 3,414 Net total to be decided by Board...... 5,582 Appeals decided by Board during year...... 199 Appeals pending at end of year...... 5,383 OUTSIDE Appeals pending at beginning of year...... 942 Appeals entered (net) during year...... 1,162 Total number before Board during year...... 2,162 Less: Settled or withdrawn during year...... 915 Net total to be decided by Board...... 1,189 Appeals decided by Board during year...... 1ST Appeals pending at end of year...... 1,002 P.D. 144 REPORT 81 R eal E state A pp e a l s F iled W it h A ppella te T a x B oard July 1, 1949—June 30, 1950 (Arranged by Counties) Bakstablf, Springfield ...... 26 Quincy ...... 45 Barnstable ...... 1 W. Springfield . . . 13 Sharon ...... 3 Bourne ...... 18 Westfield...... 26 Stoughton ...... 2 Chatham ...... 2 H a m psh ir e Walpole ...... 1 Falmouth ...... 2 Amherst ...... t Wellesley ...... 4 Harwich ...... 1 Easthampton . . . . 1 Weymouth ...... 1 Yarmouth...... 2 Middlesex P lym outh Berk sh ire Arlington ...... 6 Bridgewater...... 1 Adams ...... Bedford ...... 1 Brockton ...... 10 Becket ...... Belmont ...... 4 Hull ...... 11 Hinsdale...... 1 Billerica ...... 3 Kingston ...... 1 Mt. Washington . . Cambridge ...... 36 Marshfield ...... 1 North Adams .... Everett ...... 23 Pembroke ...... 2 Pittsfield ...... 17 Hudson ...... 1 Plymouth ...... 5 Lexington ...... 1 Rockland ...... 1 Bristol Lowell ...... 35 Scituate ...... 1 Fairhaven ...... 1 Malden ...... 42 Fall River ...... Marlboro...... 4 New Bedford .... 5 Maynard...... 1 Su ffo lk North Attleboro . . Boston ...... 3,184 Medford ...... 42 Chelsea ...... 23 Westport ...... Melrose ...... 5 Revere ...... 83 Natick ...... 8 2 Dukes Newton...... 48 Winthrop ...... Gay Head ...... 24 Reading ...... 1 Sherborn ...... 1 W orcester E ssex Somerville...... 64 Athol ...... 1 Andover ...... Stoneham ...... 3 Clinton ...... 6 Beverly...... Tyngsboro ...... 2 Fitchburg ...... 4 Gloucester ...... 8 Wakefield ...... Grafton ...... 2 Haverhill ...... Waltham ...... 13 Holden ...... 1 Ipswich ...... Watertown ...... 19 Hubbardston .... 1 Lawrence ...... Wayland ...... 2 Lancaster ...... 2 Marblehead...... Weston ...... 2 Leominster ...... 4 Nahant ...... Wilmington ...... 3 Mendon ...... 1 Newburyport .... Winchester ...... 1 Milford ...... 1 North Andover . . 8 Woburn ...... 1 Millbury ...... 1 Rowley ...... Milton ...... 1 Princeton ...... 1 Saugus ...... 1 Spencer ...... 1 Swampscott ...... 1 Sturbridge ...... 2 1 Norfolk Wenham...... Braintree ...... 9 Sutton ...... 1 27 Winchendon . . . . 8 Ham pden Brookline ...... Worcester ...... 261 Chicopee ...... 2 Canton ...... 8 3 Cohasset ...... 2 Holyoke ...... Dedham ...... 2 Longmeadow . . . . 2 4,346 Palmer ...... 1 Norwood...... 1 R eal E state A pp e a l s P e n d in g o n J u n e 30, 1950 (Arranged by Cities and Towns) 23 Boston ...... ___ 5,383 Malden ...... 36 Brookline Worcester...... ___ 245 Quincy ...... 33 Chelsea . . 20 94 31 Westfield . ¡17 6(3 30 Bourne . . 16 Newton...... ___ 50 Medford ...... Watertown 15 39 24 Springfield 15 Hull .... 13 74 other cities and towns (1 to 12 appeals pending) 208 6,3815 A pp e a l s v s . C ommissioner of C orporations a n d T a x e s 1945-1950 1945 1946 1947 1948 1949 1950 Pending at beginning of year. 70 175 248 209 140 116 177 220 205 134 85 118 247 395 453 343 225 234 Settled or withdrawn during 32 44 94 131 53 55 215 351 . 359 212 172 179 40 103 150 72 56 23 p0„AiT, Ints. Marked A p p e l l a t e D iv is io n Filed for T r ia l L is t Findings Ph Q Ph Q o o o Ou H H pH pH Ordered Re-Trial Entire Contract...... ; 14,952 383 9.023 172 917 846 500 653 160 40 22 5 4 28 25 22 _ _ 3 : Tort...... 4,969 488 309 2,946 2,116 — 770 578 426 295 10 3 1 — 3 2 2 — — Contract or Tort . 463 28 39 30 28 —— 67 63 _ 22 8 4 — 6 5 5 — — All Others...... 794 267 1 —; _ 280 87 203 66 3 2 i Totals...... 21,178 899 9,638 3,149 3,0611 4,181 11,3031 751 1,963 1,228 1,282 543 j 31 7 37 32 29 — 3 — 140 1 “ 4 1950 — J anuary 1 - Se p t e m b e r 30 — 9 M onths Totals...... 14,472 707 6,491 2,986 2,848 2,853 7,964 88 548 1,328 826 892 429 42 26 2 —— 15 15 14 1 - MUNICIPAL COURT OF THE CITY OF BOSTON FOR CIVIL BUSINESS b Summary, 1949— C o n tin u ed * J udgments Appellate Division—C o n . Defendants’ J udgments Plaintiffs CO TJ1 T3 T3 CO 1950 — J anuary 1 - Se p t e m b e r 30 — 9 M onths —- C o n tin u e d 1,930,948.51 $197.74 7,567 92 13 42 4 3 3 2oj 87 90 339 65 581 427 6,008| 412 480 2,865 9,765 | ! ' Appeals to Supreme Judicial Court under Employment Security Law, 6, Perfected, 6—Affirmed, 1—Reversed 1. 00 ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CRIMINAL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950 CRIMINAL CASES o . a & 2'-^2 ° I 1 e § .a ° Z £ *13 © > O T3 m c. © a ■ *'3'© o"§ g >,3^5® a a 2 o ©eg 8 *£-3 II J i *2 20 ©~ o ” 5 o s &§~S K © T3 c3 W) .M3 C o u n t i e s a* w- +J •«■Q © .23 o Q . S* g I; ^ T3-r1 2 ° O © *».2 *3 >> c ©.3*3 O U-S^'E £ S3? t i S 2 "S’© « a « a 0) £ -^.2 Q £ m rt Total...... 2,340 4,577 5,972 581 273 19 601 713 11,272 2,339 1,955 1,768 1,117 368 ♦Complaints by District Attorney G. .. 144 P.D. ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950 Made by the Clerks of Court to the J udicial Council in Compliance with St. 1936, C. 31, § 3 CIVIL CASES Table 1 N u m b e r U n d i s p o s e d o f a t B e g i n n i n g o f Y e a r L a w Total Total Divorce Jury Cases Non-Jury J u r y C a s e s N O N - J URY C o u n t y Equity and Motor I Other I All Motor Other All Nullity Contracts i Torts 1 Torts 1 Others Contracts Torts Torts Others Barnstable...... 95 104 47 10 59 16 3 13 81 0 256 91 Berkshire...... 74 197 46 13 54 11 5 4 97 0 330 74 Bristol...... 451. 1,677 344 22 102 61 35 30 170 0 2,494 228 REPORT Dukes...... 5 4 2 1 4 0 0 1 6 0 12 5 Essex...... 591 1,838 539 69 119 45 21 11 246 0 3,037 196 Franklin...... 17 56 8 8 17 1 4 6 34 1 89 28 Hampden...... 337 1,437 336 83 149 46 20 50 328 1 2,193 265 Hampshire...... 37 142 36 2 18 3 2 15 50 137 217 38 Middlesex...... 1,116 6,517 1,710 147 268 96 74 121 918 2 9,490 559 Nantucket...... 3 1 0 0 16 0 0 1 0 0 4 17 Norfolk...... 293 980 296 31 50 46 11 56 155 0 1,600 163 Plymouth...... 150 440 109 19 41 23 3 12 158 0 718 79 Suffolk...... 1,782 7,793 3,996 898 390 82 133 416 1,659 9 14,469 1,021 Worcester...... 622 2,963 861 104 198 112 49 70 435 0 4,550 429 Totals...... 5,573 24,149 8,330 1,407 1,485 542 360 806 4,337 150 39,459 3,193 Combined Totals...... 39,459 3,193 Total undisposed of all kinds 42,652 00 Ü1 CO ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE Ci SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 2 N u m b e r o f N e w C a s e s E n t e r e d D u r i n g t h e Y e a r R e m o v a l s f r o m D i s t r i c t C o u r t s O r i g i n a l W r i t s Divorce C o u n t y Equity and All B y P l a i n t i f f o r O r d e r o f C t . B y D e f e n d a n t Nullity Others Con Motor I Other I All Con Motor Other I All Con Motor I Other I All tracts Torts | T orts 1 Others 1 tracts | Torts T orts 1 Others tracts Torts | T orts 1 Others Barnstable...... 91 51 31 25 0 0 0 0 35 13 3 0 80 0 0 Berkshire...... 54 139 42 0 0 3 0 0 j 34 7 2 0 72 0 29 COUNCIL JUDICIAL Bristol...... 139 646 140 4 0 0 0 1 111 154 28 6 158 0 36 Dukes...... 1 2 0 0 0 0 0 0 1 0 2 0 1 0 0 Essex...... 354 1,023 313 2 180 511 103 10 f 0 0 0 0 376 0 58 Franklin...... 23 101 14 0 0 0 0 0 ! 2 17 1 0 22 0 8 Hampden...... 221 1,139 247 46 0 0 0 0 130 149 28 0 226 0 0 Hampshire...... 15 95 19 0 0 3 0 0 17 33 1 0 49 52 0 Middlesex...... 586 2,421 637 144 0 1 0 13 215 999 127 50 684 2 0 Nantucket...... 6 6 1 0 0 0 0 0 0 0 0 0 1 0 2 Norfolk...... 153 604 157 91 0 0 0 0 116 190 23 0 133 0 0 Plymouth...... 85 225* 70 1 0 0 0 16 48 102 18 0 198 1 46 Suffolk...... 1,352 4,140 2,057 457 8 151 16 6 406 929 162 27 1,427 6 0 Worcester...... 322 1,561 420 2 3 22* 0 108 180 35 292 0 111 0 • Total...... 3,402 12,153 4,148 772 191 691 119 54 1,223 2,773 430 89 3,719 61 290 Combined Totals...... 20,475 1,055 4,515 4,070 P D . . D P Total removals...... 5,570 30,115 Grand Total Entries...... 144 ♦By ordeu of court. - 144 -P-D ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES N u m b e r o f T r i a l s T a b le 3 C a s e s T r i e d C o u n t y J u r y N o n -J u r y Divorce Equity and Contracts Motor Other All Contracts Motor Other All Nullity Torts Torts Others Torts Torts Others Barnstable...... i i i 2 0 2 5 1 1 4 0 Berkshire...... 5 19 4 0 1 1 0 0 6 0 Bristol...... 28 178 51 10* 4 2 4 1 11 0 REPORT o 0 o 0 0 0 0 0 Essex...... 30 234 38 11* 26 9 7 7 48 0 Franklin...... 4 21 0 0 0 0 0 0 0 0 Hampden...... 18 128 11 2 8 6 2 6 30 0 Hampshire...... 7 31 3 0 1 0 0 2 2 46 Middlesex...... 58 303 80 9 15 15 6 10 68 2 Nantucket...... 0 0 0 0 2 0 0 0 0 0 Norfolk...... 33 56 19 10 0 0 0 9 2 0 Plymouth...... 17 96 15 3 7 0 1 5 27 0 Suffolk...... 150 403 195 51 61 58 19 90 460 2 Worcester...... 17 122 42 23 10 14 3 23 29 0 T otal...... 368 1,602 460 119 137 110 43 152 687 50 2,991 737 3,728 *Bristol—1 equity case tried to a jury on issues. ♦Essex—1 equity case tried to a jury on issues. co ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 4 N u m b e r o f J u r y V e r d i c t s F o r P l a i n t i f f F o r D e f e n d a n t O rd ered N ot O rdered L ess t h a n $200 $200 to $500 $500 to $1,000 O v e r $1,000 O rdered N ot O rdered C o u n t y *> o o H H o 0) o A COUNCIL JUDICIAL Motor Torts j C o n tracts C ontracts Motor Torts Motor Torts Motor Torts Other Torts Other Torts C o n tracts Motor Torts Other Torts Other Torts Motor Torts Motor Torts C o n tra cts C o n tracts Other Torts C o n tra cts s Other Torts C o n tracts Other Torts C o n tracts 6 Barnstable. 0 0 0 1 6 1 0 1 0 1 0 0 0 3 1 0 2 0 0 3 0 0 2 1 Berkshire. . 0 0 0 4 8 4 1 0 2 1 0 0 1 3 1 1 5 1 1 1 0 0 10 0 Bristol 0 0 0 21 32 11 2 3 0 5 15 1 6 4 3 8 10 7 2 8 9 1 24 4 Dukes.... 000000000000 0 0 0 0 0 0 0 0 0 0 0 0 E s 8CX ...... 0 0 0 11 65 18 1 5 3 2 22 3 5 15 5 3 23 7 2 5 3 3 43 6 Franklin. . 0 0 0 2 8 0 0 0 0 0 1 0 0 3 0 2 4 0 2 0 0 0 13 0 Hampden. 1 0 1 10 85 4 0 8 0 1 11 2 3 16 2 6 50 1 2 1 2 5 42 4 Hampshire. 0 0 0 7 15 2 1 0 0 1 0 0 1 3 1 2 12 1 0 0 0 2 6 1 Middlesex. 0 0 0 34 156 38 5 18 4 7 35 7 11 34 7 11 64 20 6 20 10 18 127 32 Nantucket. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Norfolk. . . 0 0 0 15 33 7 0 14 1 4 6 0 4 4 0 7 9 6 2 0 3 6 14 7 Plymouth. . 3 0 0 2 28 6 2 3 1 2 6 0 1 12 0 0 7 5 1 1 2 2 27 1 Suffolk__ 1 0 2 93 229 66 14 40 7 23 67 8 17 44 18 40 78 35 25 9 29 31 165 98 .. 144 P.D. Worcester. . 0 2 0 12 48 17 0 4 3 4 6 2 3 8 3 5 32 9 4 7 18 1 26 4 T otals. 5 2 3 212 713 174 26 96 21 5 1 169 23 52 149 41 85 296 92 47 5 5 76 69 499 1 5 8 Total for Plaintiff 2,210 Total for Defendant 904 "-a ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE b SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1949—Continued CIVIL CASES Table 5 NUMBER OF NON-JURY FINDINGS F in d in g s f o r P l a i n t if f C o u n ty L e s s t h a n $200 $2 0 0 t o $500 $5 0 0 t o $1 ,0 0 0 O v e r $1,000 f o r D e f e n d a n t Con Motor Other Con Motor Other Con Motor Other Con Motor Other Con Motor Other tracts Torts Torts tracts Torts Torts tracts Torts Torts tracts Torts Torts tracts Torts Torts Barnstable...... 1 0 0 0 1 0 0 1 1 0 0 0 1 3 0 Berkshire...... 0 0 0 0 1 0 0 0 0 0 0 0 0 1 0 Bristol...... 0 0 1 0 1 0 0 0 0 1 0 1 1 1 0 Dukes...... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 S) Essex...... 4 1 1 3 1 2 5 1 0 3 0 1 4 6 2 Franklin...... 0 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 £ I Hampden...... 2 1 0 1 2 0 1 0 0 3 1 2 1 2 0 H Hampshire...... 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 Middlesex...... 3 1 0 4 2 1 2 2 1 5 2 3 1 8 1 Nantucket...... 1 0 0 0 0 0 0 0 0 1 0 0 0 0 0 Norfolk...... 0 1 0 0 1 0 0 0 0 1 0 0 1 1 0 Plymouth...... 2 1 0 0 0 0 0 0 1 1 0 0 2 0 0 . Suffolk...... 3 8 1 12 16 3 11 7 0 21 9 7 14 18 8 Worcester...... 1 2 1 3 4 0 1 1 0 1 0 0 4 7 2 Total...... 17 15 3 26 28 6 20 12 3 37 12 14 29 47 13 Combined Totals...... 35 60 35 63 89 Total for plaintiff 193 For defendant 89 GO CO ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 6 F in a l l y D is p o s e d O f J u ey N o n -J u ry Div. C o u n ty Equity and On A u d it o r ’s R e p o r t O t h e r w is e O n A u d it o r ’s R e p o r t O t h e r w is e Nul. r * ** Con Motor Other All Con Motor Other All Con Motor Other All Con Motor Other All tracts Torts Torts Others tracts Torts Torts Others tracts Torts Torts Others tracts Torts Torts Others 1 0 1 0 49 68 21 3 1 0 0 0 31 12 2 9 47 0 Barnstable...... COUNCIL JUDICIAL Berkshire...... 0 0 0 0 37 157 26 5 0 0 0 0 17 13 0 0 61 0 Bristol...... 0 0 0 0 132 827 187 19 0 0 0 0 42 15 10 14 80 0 Dukes...... 0 0 0 0 0 2 0 0 0 0 0 0 2 0 0 0 0 0 Essex...... 0 0 0 0 315 1,493 303 38 2 0 0 0 138 57 17 29 346 0 Franklin...... 0 0 0 0 7 97 7 2 0 0 0 0 7 2 0 1 10 0 Hampden...... 0 0 0 0 153 1,074 194 32 0 0 0 0 71 13 4 18 112 0 Hampshire...... 0 0 0 0 12 136 15 0 0 0 0 0 9 5 2 5 16 57 Middlesex...... 1 0 3 0 573 3,587 745 84 0 0 2 0 115 48 20 75 442 1 Nantucket...... 0 0 0 0 0 0 0 0 0 0 0 0 5 0 0 0 0 0 Norfolk...... 0 0 2 0 140 628 154 24 0 0 0 0 38 15 5 54 78 0 Plymouth...... 1 0 5 0 72 325 49 7 0 0 0 0 23 20 2 17 111 1 Suffolk...... 1 0 1 1 1,015 4 ,338 1,644 137 0 0 0 0 415 165 74 203 946 2 Worcester...... 1 0 0 0 306 1,470 368 55 0 0 0 0 158 88 25 76 328 0 Total...... 5 0 12 1 2,811 14,202 3,713 406 3 0 2 0 1,071 453 161 501 2,577 61 PF>. Combined Totals...... 18 21,132 5 2,186 2,577 61 Total disposed of...... 25,979 -- 144 P-D- ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 7 C a s e s T r ia b l e i . e . a t I s s u e a n d A w a it in g T r ia l a n d n o t M a r k e d I n a c t iv e JUPY N o n -J u ry T r ia b l e b u t E n jo in e d C o u n ty Divorce Equity a n d Con Motor Other All Con Motor Other All Con Motor Other All Nullity tracts Torts Torts Others tracts Torts Torts Others tracts Torts Torts Others 92 Barnstable...... 90 35 20 35 3 2 7 0 0 0 0 21 1 Berkshire...... 81 127 50 15 11 10 3 3 0 0 0 0 17 0 399 Bristol...... 1,405 337 39 73 24 19 21 5 6 1 0 91 0 Dukes...... 2 4 3 0 0 0 0 1 0 0 0 0 0 0 REPORT Essex...... 650 1,798 604 59 48 35 15 27 0 5 0 0 86 0 Franklin...... 15 68 13 5 8 0 3 7 0 0 0 0 14 1 H a m p d e n ...... 405 1,481 345 41 119 64 29 43 0 0 0 0 381 1 Hampshire...... 35 96 29 2 7 5 4 4 0 0 0 0 32 61 Middlesex...... 1,062 6,031 1,660 1,169 350 144 71 134 0 75 10 2 394 0 Nantucket...... 1 0 0 0 4 0 0 0 0 0 0 0 0 0 352 Norfolk...... 1,162 309 21 55 51 20 44 0 0 0 0 130 0 Plymouth ...... 159 432 128 32 29 8 3 11 0 0 0 0 53 0 Suffolk...... 2,465 8 ,354 3,913 318 651 536 203 289 0 0 0 0 886 5 , W orcester...... 546 3,059 831 81 111 65 28 22 0 13 0 0 143 0 Totals...... 6,264 24,107 8,257 1,802 1,501 945 400 613 5 99 11 2 2,248 69 Combined Totals...... 40,430 3,459 117 2 ,248 69 ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 8 C a s e s R e m a in in g U n d is p o s e d o f I n c l u d in g C a s e s M a r k e d I n a c t iv e J u ry N o n -J u ry COUNTT Divorce Equity and Con Motor Other All Con Motor Other All Nullity tracts Torts Torts Others tracts Torts Torts Others Barnstable...... 122 98 55 23 76 6 5 13 114 1 Berkshire...... 107 174 60 34 55 13 9 7 108 0 JUDICIAL COUNCIL COUNCIL JUDICIAL Bristol...... 508 1,526 393 45 122 45 31 45 248 0 Dukes...... 5 4 4 0 3 0 1 1 7 0 Essex...... 691 1,850 624 63 101 44 22 33 290 0 Franklin...... 21 76 13 10 24 0 7 9 46 1 Hampden...... 455 1,616 403 66 158 68 30 63 442 0 Hampshire...... 51 129 37 3 15 6 4 9 83 132 Middlesex...... 1,112 6,290 1,724 175 364 147 78 151 1,160 3 Nantucket...... 7 1 0 0 18 0 0 1 0 0 Norfolk...... 359 1,171 311 25 74 56 23 78 210 0 Plymouth...... 177 443 140 32 53 17 4 21 245 0 Suffolk...... 2,022 8,518 4,516 985 485 74 129 478 2,140 13 Worcester...... 619 3 ,168 918 98 169 112 54 64 399 0 Totals...... 6,256 25,064 9,198 1,559 1,717 588 397 973 5,492 150 Combined Totals 42,077 3,675 5,492 150 144 P.D. Total undisposed of, all kinds—51,394 ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 9 C a s e s M a r k e d I n a c t i v e i n P r e v i o u s Y e a r s J u r y N o n -J u r y C o u n t y Divorce Equity and Con Motor Other All Con Motor Other All Nullity tracts Torts Torts Others tracts Torts Torts Others Barnstable...... 10 2 5 0 1 1 0 0 2 9 0 Berkshire...... 16 7 4 5 10 1 4 1 33 0 Bristol...... 24 35 17 4 12 7 6 7 5 0 Dukes...... 2 0 2 0 2 0 0 0 1 0 Essex...... 22 28 21 1 2 1 0 0 18 0 Franklin...... 2 2 3 1 6 0 0 0 4 0 Hampden...... 22 C 71 32 13 23 3 0 14 53 1 £ Hampshire...... 4 6 4 0 4 0 0 2 6 26 Middlesex...... 12 40 20 1 28 7 9 19 165 0 Nantucket...... 2 1 0 0 12 0 0 1 0 0 Norfolk...... 2 1 1 2 1 0 2 0 3 0 Plymouth...... 2 0 0 0 1 0 1 1 0 0 Suffolk...... 9 45 8 6 31 9 12 9 53 0 Worcester...... 37 63 48 1 15 0 7 2 29 0 Totals...... 164 303 165 34 158 28 41 58 379 27 Combined Totals ...... 666 285 379 27 Total of all kinds marked inactive in previous years—1,357 o CO CO ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950—Continued CIVIL CASES Table 10 C a s e s M a r k e d I n a c t i v e D ü r i n g t h e Y e a r C o u n ty J u ry N o n -J u ry Divorce Equity and Con Motor Other All Con Motor Other All Nullity tracts Torts Torts Others tracts Torts Torts Others Barnstable...... 11 4 3 2 5 3 1 0 12 0 1 15 2 1 3 0 0 0 13 0 Berkshire...... COUNCIL JUDICIAL Bristol...... 36 36 17 3 8 3 2 3 7 0 Dukes...... 0 0 0 0 0 0 0 0 0 0 Essex...... 24 28 15 2 1 2 3 0 23 0 Franklin...... 1 3 0 2 2 0 0 2 5 0 Hampden...... 23 34 21 8 17 5 4 4 0 0 Hampshire...... 4 5 1 0 0 0 0 1 7 14 Middlesex...... 20 60 21 2 17 6 3 12 92 1 Nantucket...... 0 0 0 0 0 0 0 0 0 0 Norfolk...... 0 3 0 0 0 1 0 0 4 0 Plymouth...... 18 4 5 0 7 4 0 2 20 0 Suffolk...... 84 194 69 11 77 41 19 33 153 3 Worcester...... 14 26 16 0 9 4 2 0 8 0 Total...... 36 412 170 31 146 69 34 57 344 18 Combined Totals...... 849 306 344 18 144 - D P Total marked inactive of all kinds—1,517 ABSTRACT AND TABULAR STATEMENT OF THE RETURNS RELATIVE TO THE CIVIL BUSINESS OF THE SUPERIOR COURT FOR THE YEAR ENDING JUNE 30, 1950— C o n tin u ed CIVIL CASES Table 12 Number of Days Table 11 I n a c t i v e C a s e s D i s m i s s e d D u r i n g Y e a r in which Court Sat Non-Jury COUNTY J u r y N o n -J u r y Including Divorce Equity and Equity and Jury Motion Con Motor Other All Con M otor Other All Nullity and Pre- tracts Torts Torts Others tracts Torts Torts Others Trial Sessioi Barnstable...... 3 4 0 1 4 0 0 2 4 0 20 8 Berkshire...... 4 2 0 0 7 1 0 0 11 0 42 13 Bristol...... 0 0 0 0 0 0 0 0 0 0 157 32 Dukes...... 0 0 0 0 0 0 0 0 0 0 0 3 Essex...... 1 2 3 1 1 0 0 0 1 0 272 114 REPORT Franklin...... 1 0 0 1 1 0 0 0 0 0 29 0 Hampden...... 5 18 1 3 2 0 0 2 7 0 183 88 Hampshire...... 0 1 1 0 0 1 0 2 1 6 41M 4 Middlesex...... 12 19 7 0 6 0 1 1 25 0 599 192 Nantucket...... 0 0 0 0 0 0 0 0 0 0 0 3 Norfolk...... 0 3 0 0 0 0 0 0 1 0 123 21 Plymouth...... 0 0 0 0 0 0 0 0 0 0 86 24 Suffolk...... 38 106 84 4 40 16 14 9 6 0 1,307 884** Worcester...... 16 21 14 5 20 2 3 3 20 0 257 48 Totals...... 80 176 110 15 81 20 18 19 76 6 3.116JÍ 1,425 Combined Totals...... 381 138 76 6 4,541 ^ days Total dismissed all kinds—601 ** Law & Equity Sessions ...... 480 Motion Session ...... 250 Pre-trial Session ...... '...... 154 Total 884 co 0 5 REPORTS OF REGISTERS OF PROBATE FOR YEAR ENDING DEC. 31, 1949 (Table prepared by the Administrative Committee of the Probate Courts) P r o b a t e —D e c r e e s D i v o r c e s F e e s C o l l e c t e d UIIL COUNCIL JUDICIAL Decrees and Orders Entered Nisi Others Feeble Minded Feeble Copies (New Cases) (New gages Appointed Allowed Commitment, Insane Insane Commitment, Probate Divorce Total Certificates and and Certificates Other Decrees and and Decrees Other Entries Original Real Estate Partitions Estate Real Desertion and Living Living and Desertion Custody Entered Orders Recorded Papers Real Estate Sales Estate Real Mort Estate Real Separate Support Separate Apart Original entries entries Original Administrations allowed Wills Appointed Guardians Conservators Appointed Trustees Allowed Accounts j Equity Decrees Equity j Barnstable.... 518 143 195 46 16 22 362 94 11 6 17 2 3 1 231 2,241 146 88 4 $3,308.65 $730.00 81,890.73 S5,929.38 2 Berkshire...... 940 344 246 81 25 33 626 134 6 4 6 27 13 9 306 ' 2,529 287 224 95 5,163.00 1,520.00 3,141.58 9,824.58 5 Bristol...... 2,133 835 593 152 40 67 1,098 366 15 14 26 63 9 11 1,548 7,941 803 546 458 10,170.00 4,010.00 6,017.14 20,197.14 12 Dukes...... 80 22 34 2 1 2 79 12 0 2 0 0 0 2 16 435 9 8 10 533.00 45.00 230.50 808.50 0 Essex...... 3,410 1,440 866 284 93 150 2,205 559 14 27 48 80 21 14 1,742 10,621 956 754 885 19,519.00 4,765.00 9,450.50 33,734.50 — 153 106 25 22 19 315 62 0 4 0 2 1 151 2,385 100 80 46 2,497.50 500.00 823.75 3,821.25 2 Hampden...... 1,955 692 454 140 62 96 1,536 258 6 0 41 67 2 8 920 11,729 929 602 411 11,174.00 4,645.00 6,231.20 22,050.20 21 1.418 182 161 34 17 13 351 78 2 2 2 9 1 2 266 2,492 42 26 16 2,871.00 210.00 1,171.00 4,252.00 0 M idalesex...... 6.358 2.417 1,722 542 218 311 4,984 948 60 35 93 217 28 40 5,573 24,893 1,896 1,396 1,655 37,004.00 9,445.0 23,111.70 69,560.70 37 Nantucket .... 26 1 3 3 44 9 0 0 1 0 1 0 24 169 10 7 4 310.00 50.00 • 82.55 422.55 0 2,661 889 800 217 72 134 2,431 328 15 8 62 69 9 20 1,122 12,668 707 391 765 18,183.00 3,535.00 11,091.60 32,809.60 41 Plymouth...... 1,395 445 392 121 50 36 1,179 274 17 5 31 43 ö 5 427 4,489 425 274 153 8,271.00 2,120.00 3,552.70 13,943.70 1 Suffolk...... 2,358 1,153 460 182 190 4,587 603 45 53 162 897 21 36 5,419 25,598 2,141 1,466 2,008 34,213.00 10,690.00 18,112.45 63,015.45 1,352 482 69 158 5 2,663 11,466 1,279 1,398 148 16,808.00 6,395.00 6,974.55 30,177.55 58 Worcester...... 3,482 1,512 831 351 136 131 1,592 23 12 4 D 144 PD-