Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95

242 Mass. 95 | Mass. | 1922

Rugg, C.J.

This is a suit in equity brought in the name of the Cosmopolitan Trust Company by the commissioner of banks in possession of its property and business under G. L. c. 167, § 22, against thirteen persons as its directors for the purpose of holding them responsible for losses of the trust company. A demurrer has been filed by each defendant. It is alleged in the bill that the commissioner of banks took possession of the property and business of the trust company on September 25, 1920, and that on that date it was insolvent.

1. A most., important question is raised at the outset. The constitutionality of the statute under which the commissioner of banks is acting is assailed as infringing various provisions of the Constitution of this Commonwealth and of the Constitution of the United States. It is alleged in the bill that the Cosmopolitan Trust Company was duly organized under the law and carried on business “until September 25, 1920, when its doors were closed and its business and assets taken possession of by the commissioner of banks under authority of law given to him ... by chapter 399 of the Acts of 1910.” No specifications of reasons for closing its doors and taking possession of its business and assets are set forth. Therefore, if any one of the grounds for such act enumerated in the statute is unconstitutional, the defendants are entitled to the advantage of it, because no intendment can be made in favor of the pleader in such case. Old Dominion Co. v. Commonwealth, 237 Mass. 269, 274.

The business of banking vitally concerns the public interests. Long established usage has given its sanction to legislative supervision and regulation to a greater or less extent of the conduct of banks. The prevention and redress of the evil and damage to individuals and to the public, likely to arise from violation of their charters and of general laws and from insolvency of banks, have received the attention of the General Court at least since the enactment of St. 1838, c. 14. It is of vast importance to the commercial prosperity, the manufacturing activity, and the industrial welfare of the community that banks be managed with integrity and sagacity and according to the rules of law prescribed for their administration. The savings of the poor, the earnings of the thrifty, and the resources of the wealthy, alike depend upon the prevention of delinquency on the part of those who control and direct the affairs of banks. Checks drawn against* deposits in banks have come to replace to so great an extent the use of currency and coin in the ordinary transactions of life that whatever rationally conserves their security is in the common interest. Reason and authority agree that the police power rightly may be exerted within rational limits to regulate and protect the safety of banking. Commonwealth v. Farmers & Mechanics Bank, 21 Pick. 542. Noble State Bank v. Haskell, 219 U. S. 104, 575.

The commissioner of banks is authorized to close the doors of the trust company and take possession of all its assets and business by § 2 of said c. 399 (see now G. L. 167, § 22) whenever it appears to him “[1] that any bank under his supervision has violated its charter or any law of the Commonwealth, or [23 is conducting its business in an unsafe or unauthorized manner, or [33 that its capital is impaired, or [43 if it shall refuse to submit its books, papers and concerns to the inspection of said commissioner or of his duly authorized agents, or [53 if any officer of such balnk shall refuse to be examined upon oath by the commissioner or his deputies touching its concerns, or [63 if it shall suspend payment of its obligations, or [73 if from an examination or from a report provided for by law the bank commissioner shall have reason to conclude that such bank is in an unsound or unsafe condition to transact the business for which it is organized, or that it is unsafe or inexpedient for it to continue business.” It has not been argued that the several statutory grounds thus specified do not justify a suspension of the right of the trust company to conduct a banking business. Therefore, it is not necessary to examine them in detail and delimit their scope. The contention is that the establishment of some or each one of these grounds involves the exercise of the judicial faculty, that confessedly the commissioner of banks is an executive or administrative officer and not an appointee of the courts nor clothed with any judicial functions, and hence that the decision of these matters by the commissioner of banks violates art. 30 of the Declaration of Rights, which prohibits the executive, the legislative and the judicial departments of government each from exercising in any particular the powers of either or both of the others.

The validity of § 2 of c. 399, St. 1910, already quoted (see now G. L. c. 167, § 22), must be considered in connection with § 13 of said c. 399, G. L. c. 167, § 33. This later section provides for a full judicial review of the merits of the conduct of the commissioner of banks in taking possession of the business and assets of any banking corporation, to be had on application of such corporation filed in court within ten days after such taking possession, and empowers the court after finding the facts to dismiss the application or to enjoin the commissioner of banks from further proceedings and to direct him to surrender such business and property to the banking corporation. These two provisions of the statute are complementary one of the other.

The powers conferred upon the commissioner of banks are not judicial but purely administrative. His decision to take possession is not a judicial adjudication. It binds nobody. It is subject to immediate judicial inquiry. The act of the commissioner of banks is designed primarily to conserve the property of the bank for the benefit of its creditors and its stockholders. It rests upon an inquiry into facts, which may be imposed upon officers plainly possessing no judicial authority when intended to be the basis of administrative action only.

The provisions of statute here assailed were enacted before the organization of the trust company and bind it to the same extent as if inserted in a special act of incorporation, but go no further. Arlington Board of Survey v. Bay State Street Railway, 224 Mass. 463, 468. Interstate Consolidated Street Railway v. Massachusetts, 207 U. S. 79, 84. See Terral v. Burke Construction Co. 257 U. S. 529.

The power of inquiry into the condition of a bank with a view to determine the existence of contingencies, upon which the continuance in business of the bank is made to depend, may by law validly be reserved by the Legislature to itself or to administrative officers appointed under its authority. Such an inquiry into the affairs or defaults of a corporation with a view to continue or to discontinue it is not a judicial act. Crease v. Babcock, 23 Pick. 334, 344.

There are numerous decisions of the Supreme Court of the United States to the effect that inquiry into facts may be devolved upon subordinate executive or administrative officers and that findings or decisions reached by such officers may be made conclusive without conferring judicial power or violating any guaranty secured by the Federal Constitution. See, for example, Oceanic Steam Navigation Co. v. Sirandhan, 214 U. S. 320; West v. Hitchcock, 205 U. S. 80; Zakonaite v. Wolf, 226 U. S. 272, 275; Selective Draft Law Cases, 245 U. S. 366, 389. These decisions go very far. Without intimating whether such statutes might infringe some guaranty of the Constitution of this Commonwealth, they illustrate the length to which the doctrine of executive or administrative as distinguished from judicial inquiry has been carried.

The enactment of St. 1910, c. 399, marked a significant departure in legislation in this Commonwealth. Previously it was not possible for any officer to take possession of the property or business of a banking institution except after an adjudication by a court. It is fair to assume from the similarity of provisions that in important particulars said c. 399- was modeled on the national bank act of the United States. That act authorizes the comptroller of the currency to take possession of property and all assets of a national bank (1) when it has refused to pay its circulating notes, U. S. Rev. Sts. §§ 5227, 5234; (2) when directors knowingly violate or knowingly permit officers and agents to violate any provision of the national bank act first to be ascertained by judgment of a court, 19 U. S. Sts. at Large, 63, U. S. Rev. Sts. § 5239; (3) when a creditor obtains judgment which remains unsatisfied for thirty days, 19 U. S. Sts. at Large, 63; (4) when the comptroller is satisfied of the insolvency of a national bank, 19 U. S. Sts. at Large, 63; (5) when capital stock has not been fully paid in and is thus reduced below the legal minimum and remains so for thirty days, U. S. Rev. Sts. § 5141; (6) for failure to make good lawful money reserve within thirty days after notice, U. S. Rev. Sts. § 5191. See federal reserve act of December 23, 1913, § 19; 38 U. S. Sts. at Large, 270, as amended by act of June 21,1917, § 10; 40 U. S. Sts. at Large, 239; (7) where a bank acquires its own stock to prevent loss on debt previously contracted in good faith and same is not disposed of within six months, U. S. Rev. Sts. § 5201; (8) for failure to make good impairment in its capital stock and refusing to go into liquidation within three months after notice, U. S. Rev. Sts. § 5205; (9) for false certification of checks, U. S., Rev. Sts. § 5208. The only provision in the national bank act for judicial inquiry into the soundness of the conclusions of the comptroller in taking possession of the assets and property of a national bank is in U. S. Rev. Sts. § 5237, and is confined to-the question whether the bank has refused to redeem its circulating notes. That act, which appears thus in some particulars, to be more severe than St. 1910, c. 399, had been upheld as constitutional long before the later statute was enacted. It was said' in Bushnell v. Leland, 164 U. S. 684, at page 685, by Mr. Justice White: “All these alleged errors may be reduced to the single contention that under the national banking law the Comptroller of the Currency is without power to appoint a receiver to a defaulting or insolvent national bank, or to call for a ratable assessment upon the stockholders of such bank, without a previous judicial ascertainment of the necessity for the appointment of' the receiver and of the existence of the liabilities of the bank, and that the lodgment of authority in the Comptroller, empowering him either to appoint a receiver or to make a ratable: call upon the stockholders, is tantamount to vesting that officer-with judicial power in violation of the Constitution. All of these-contentions have been long since settled, and are not open to. further discussion. Kennedy v. Gibson, 8 Wall. 498; Casey v. Galli, 94 U. S. 673; United States v. Knox, 102 U. S. 422.” In re Chetwood, petitioner, 165 U. S. 443, 458.

These decisions of the Federal Supreme Court are strongly persuasive as to the constitutionality of the act here attacked.. There is not to be found in the Constitution of the United States, the peculiarly forceful, clear and beautiful thoughts and words, of art. 30 of the Declaration of Rights of the Massachusetts Constitution. In substance and effect, however, the Federal Constitution as it has been interpreted does not differ materially from that article. The Constitution of the United States by art. 3, § 1, vests the judicial power of government in “ one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.” This always has been construed as the equivalent of a prohibition on Congress to exercise judicial functions or to impose judicial powers on any other officers of government than the courts. It was said in Kilbourn v. Thompson, 103 U. S. 168, at pages 190, 191: “It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. ... In the main , . . that instrument . . . has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another.” Ocampo v. United States, 234 U. S. 91, 100.

This court always has been most solicitous in maintaining the sharp division between the three departments of government as declared by art. 30 of the Declaration of Rights. It has declined steadfastly to exercise any functions except those strictly judicial in their nature. Case of Supervisors of Election, 114 Mass. 247. Boston v. Chelsea, 212 Mass. 127. It has refused to recognize the validity of acts where the Legislature has undertaken to perform the judicial office or to delegate that faculty to any save to the courts. Denny v. Mattoon, 2 Allen, 361. Forster v. Forster, 129 Mass. 559. Opinion of the Justices, 234 Mass. 612, 621. See Flint & Fentonville Plank-road Co. v. Woodhull, 25 Mich. 99. The present adjudication is in full accord with those decisions and does not in any degree impair their force. The statute here in question is of a different class.

These considerations lead us to the conclusion that , the statute here assailed, although drastic in operation, does not exceed constitutional bounds. The Commonwealth as represented by the General Court is the creator of the trust company and the guardian of the public interests affected by the conduct of its business. The police power is broad. Whatever reasonably may be thought to promote the general welfare within proper limits, not resting merely on expediency, if not infringing upon some specific protection of the Constitution, is permissible. We have no concern with the wisdom of a statute, as that is not within our province.

The reasons which have been stated apply with equal force to arts. 10, 11, 12 of our Declaration of Rights, and to art. 14 of the Amendments to the Constitution of the United States.

The constitutionality of acts in every essential like St. 1910, c. 399, § 2 (see now G. L. c. 167, § 22), has been upheld in Jeffries v. Bacastow, 90 Kans. 495; Montgomery Bank & Trust Co. v. Walker, 181 Ala. 368; McDavid v. Bank of Bay Minette, 193 Ala. 341; LeMonte v. Lurich, 86 N. J. Eq. 26, affirmed in 86 N. J. Eq. 251; Davis v. Moore, 130 Ark. 128; Carnegie Trust Co. v. Kress, 215 N. Y. 706; Cartmell v. Commercial Bank & Trust Co. 153 Ky. 798, and American Southern National Bank v. Smith, 170 Ky. 512. The validity of similar statutes was assumed without discussion as to constitutionality in Wisconsin Trust Co. v. Cousins, 172 Wis. 486; Ward v. Oklahoma State Bank of Atoka, 51 Okla. 193; Aetna Casualty & Surety Co. v. Moore, 107 Wash. 99.

The present statute cannot in our opinion be said to transcend the constitutional power of the General Court. Lorando v. Gethro, 228 Mass. 181. Holcombe v. Creamer, 231 Mass. 99, and cases there reviewed. Opinion of the Justices, 234 Mass. 597, and cases there reviewed. Noble State Bank v. Haskell, 219 U. S. 104, 575. State Savings & Commercial Bank v. Anderson, 238 U. S. 611, affirming S. C. 165 Cal. 437. Title Guaranty & Surety Co. v. Allen, 240 U. S. 136, affirming S. C. 27 Idaho, 752. State v. State Bank & Trust Co. 31 Nev. 456, 469-472. Pacific Live Stock Co. v. Lewis, 241 U. S. 440. La Tourette v. McMaster, 248 U. S. 465. 467.

2. The commissioner of banks upon these averments is authorized to bring suit against the directors for whatever liability-on their part may exist in favor of the trust company founded on their conduct as its directors. Among other duties imposed by statute upon the commissioner of banks, after taking possession of the property and business of a trust company, are those to collect “all debts due and claims belonging to it,” to “do all acts necessary to conserve its assets,” to “proceed to liquidate its affairs,” to enforce the individual liability of the stockholders, and to prosecute and defend all suits and other legal proceedings in its name. G. L. c. 167, §§ 24 and 25. The liability of directors for neglect of their duties and for mismanagement of their corporation comes within the fair meaning of claims belonging to the corporation. When not narrowed by its context the word “claims” is of large import. Cutting v. American Ins. Co. 197 Mass. 131. It is one of the broadest and most comprehensive terms known to the law. It is usual to enforce the liability of directors for wrongs to the corporation at the instance of stockholders, but that liability is also in the nature of an asset of the corporation for the benefit of its creditors. The frame and averments of the bill make it plain that the commissioner of banks is bringing this suit for the ultimate benefit of creditors. The commissioner of banks, not being a receiver but an executive or administrative officer carrying out a legislative policy, was not required to secure permission of the court to bring the suit. The authority is conferred upon him by the statute. Greenfield Savings Bank v. Commonwealth, 211 Mass. 207, 209.

3. The question of the liability of trustees of savings banks under our laws was exhaustively examined in Greenfield Savings Bank v. Abercrombie, 211 Mass. 252. It there was said at page 256, “the savings bank and its managing officers or trustees are held to the same duty as ordinary trustees of a direct trust. . . . For honest errors of judgment, while acting with ordinary skill and prudence, measured according to the demands of the duties or business which they have taken upon themselves, they are not to be held liable; .but they cannot excuse themselves from the consequences of their misconduct or of their ignorance or negligence by averring that they have failed merely to exercise ordinary skill, care and vigilance. ... As was said by Beaslev, C.J., in Williams v. McKay, . . . [13 Stew. 1893 ‘The equitable rule which is applicable to persons holding official positions such as were held by these defendants, is not in doubt. The duty belonging to such a situation is a plain one, — to care for the moneys intrusted to them in the manner provided in the charter, and to exercise ordinary care and prudence in so doing. It is true that the defendants were unpaid servants, but the duty of bringing to their office ordinary skill and vigilance was none the less on that account, for to this extent there is no distinction known to ’the law between a volunteer and a salaried agent. These defendants held themselves out to the public as the managers of this bank, and by so doing they severally engaged to carry it on in the same way that men of common prudence and skill conduct a similar business for themselves. This is the measure of the responsibility of officers of this kind.’ This is the same rule of duty to which other trustees have been held, that they must ‘exercise a sound judgment and a reasonable and prudent discretion.’ Davis, appellant, 183 Mass. 499, 501. Ashley v. Winkley, 209 Mass. 509. Pine v. White, 175 Mass. 585, 590.” It also is there pointed out that cases like Lyman v. Bonney, 118 Mass. 222, and Hill v. Murphy, 212 Mass. 1, to the effect that directors of pure business corporations acting honestly and within their powers are not responsible for mere errors of judgment or want of prudence, are not applicable to savings banks under our laws. Gilson v. Cambridge Savings Bank, 180 Mass. 444, 446.

There is thus adopted and made applicable to the trustees of savings banks the rule governing the liability of trustees under wills and other written instruments. The standard by which their conduct is measured is good faith and sound discretion as those terms ought to be understood by reasonable men of wise judgment. Kimball v. Whitney, 233 Mass. 321, 331. Harvard College v. Amory, 9 Pick. 446, 461.

This rule prevails in other jurisdictions and does not differ essentially from that of the federal courts. It was succinctly stated in Kavanaugh v. Commonwealth Trust Co. of New York, 223 N. Y. 103, 105, that “directors in financial institutions . . . are summoned to the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs.” It was said in Martin v. Webb, 110 U. S. 7, at page 15: “Directors cannot, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its business, and to exercise reasonable control and supervision of its officers.” Briggs v. Spaulding, 141 U. S. 132. Thomas v. Taylor, 224 U. S. 73. Bowerman v. Hamner, 250 U. S. 504. Bates v. Dresser, 251 U. S. 524. Dovey v. Cory, [1901] A. C. 477. Trask v. Chase, 107 Maine, 137, 144. Emerson v. Gaither, 103 Md. 564. Land Credit Co. of Ireland v. Lord Fermoy, L. R. 5 Ch. 763, 770. Marshall v. Farmers & Mechanics’ Savings Bank of Alexandria, 85 Va. 676. Warner v. Penoyer, 33 C. C. A. 222 (91 Fed. Rep. 587).

The law of this Commonwealth is settled by Greenfield Savings Bank v. Abercrombie, 211 Mass. 252. It is that trustees of savings banks are subject to the same fiduciary obligations as technical trustees of specific trust property.

4. The standard of liability established by Greenfield Savings Bank v. Abercrombie, 211 Mass. 252, applies to the directors of the trust company who here are defendants. The trust company in question had a savings department, for which were prescribed under the law many of the safeguards previously established for savings banks. Commissioner of Banks, petitioner, in re Prudential Trust Co. 240 Mass. 478. The relation of the directors to this trust company with its savings department was fiduciary in the same sense as is that of. trustees to a savings bank. There are numerous expressions in our decisions that directors of business corporations occupy a fiduciary relation to the corporation. Elliott v. Baker, 194 Mass. 518, 523. United Zinc Co. v. Harwood, 216 Mass. 474. Allen-Foster-Willett Co. petitioner, 227 Mass. 551. A critical examination of the meaning of those expressions and an analysis of the extent and limits of those cases is not here pertinent. It is enough to say that the present defendants fall within the principles of liability established for trustees of savings banks.

5. The circumstance, that directors of the trust company managed it in behalf of stockholders for profit and as a bank of deposit and discount as well as a banking institution for savings department depositors, makes no difference in respect to their liability. To a greater or less degree all the assets of the trust company are for the security of depositors in the savings department. Every reason supporting the judgment in Greenfield Savings Bank v. Abercrombie, 211 Mass. 252, is of equal potency in holding directors of a trust company with a savings department to the same degree of responsibility.

It follows that a suit in equity may be maintained to enforce the liability of directors and that the remedy at law is not exclusive. That point was settled for this Commonwealth in Warren v. Para Rubber Shoe Co. 166 Mass. 97, where it was held that, in view of the fiduciary relation to the corporation, a bill in equity could be maintained by the corporation against an officer guilty of a breach of that fiduciary duty as well as an action at law. That decision has been followed and applied to various states of facts as well as in Greenfield Savings Bank v. Abercrombie, 211 Mass. 252. United Zinc Co. v. Harwood, 216 Mass. 474, and cases cited at 476. Allen-Foster-Willett Co. petitioner, 227 Mass. 551. Jurisdiction in equity has frequently been upheld for the ascertainment of the liability of bank directors. Hornor v. Henning, 93 U. S. 228. Martin v. Webb, 110 U. S. 7. Briggs v. Spaulding, 141 U. S. 132. Bowerman v. Hamner, 250 U. S. 504. Bates v. Dresser, 251 U. S. 524. Curtis v. Connly, 257 U. S. 260. Williams v. Brady, 232 Fed. Rep. 740. Cockrill v. Cooper, 29 C. C. A. 529 (86 Fed. Rep. 7, 14). That jurisdiction rests on the existence of the fiduciary relation. Rolikatis v. Lovett, 213 Mass. 545. In re Hallett’s Estate, 13 Ch. D. 696, 710. It also is supported by the considerations that multiplicity of suits will be avoided, that the inquiries of necessity will involve complicated accounts, and that the relief afforded by equity is better adapted to the working out of justice between all parties. Bliss v. Parks, 175 Mass. 539.

6. It is not necessary to analyze or to narrate in detail the allegations of the bill. It is plain that they set out loans made to individual borrowers far beyond the statutory limit, G. L. c. 172, § 40; c. 168, § 54, cl. 9, (a) (b), loans made while the reserves were below the statutory requirement, G. L. c. 172, § 76, loans from the savings department funds on paper with less than three responsible names, and otherwise in violation of law. The bill also sets out loans to persons without credit, without business reputation and without financial resources, and being otherwise highly imprudent from the standpoint of sound banking. There are numerous specifications of particular loans alleged to come under these several headings.

7. There are averments that the defendants as directors did not exercise due diligence and were guilty of gross negligence and were reckless and careless and violated the laws of the Commonwealth in authorizing and approving loops and investments and in managing the affairs of the trust company, accompanied by many specifications as to particulars. The allegations are sufficient to the effect that the losses which depleted the resources of the trust company followed as the direct result of these failures to exercise prudence, sound discretion and good judgment in the management of its affairs as the proximate causes. If participation on the part of the several directors is proved as alleged, there are facts warranting a finding of breach of the duty resting on them "and each of them. While some of the defendants were not directors during the entire period for which recovery is sought, losses are alleged to have occurred while each was in office. The precise extent of the responsibility of each is matter of proof rather than of pleading.

8. There are adequate details and sufficient certainty in the statement of the several loans alleged to have been made in violation of duty. It is not necessary in a case of this nature that the specific connection of each defendant with each investment be particularized in the pleadings. It would be impracticable in advance to separate those events which well may be somewhat blended. Ginn v. Almy, 212 Mass. 486. Almy v. Almy, Bigelow & Washburn, Inc. 235 Mass. 227. The case at bar is distinguishable in this respect from Price v. Coleman, 21 Fed. Rep. 357.

Manifestly no one of the defendants can be held liable for anything save the results of his own misconduct. It is not necessary, however, in pleading to point out as to each bad loan the individual directors who participated in negligently causing that particular loss. Their conduct may be so intermingled that it would be impossible conveniently to separate the facts in advance of an investigation. The general but definite averments are sufficient. Attorney General v. Pelletier, 240 Mass. 264, 304-306.

9. The allegations of damage are sufficient. It is definitely averred that the trust company has lost about $5,000,000 in bad loans and investments as a result of the negligence of the several defendants. There is nothing premature in the suit in view of that allegation. The different loans specified do not cut down, impair nor dissipate this positive allegation. They are matters of proof. The fact that the actual loss on each is not asserted with precision is not fatal in this connection. Walton v. Ruggles, 180 Mass. 24. Paro v. St. Martin, 180 Mass. 29. As was said in St. Louis v. Knapp Co. 104 U. S. 658, at page 661, “It was not necessary, in such a case, to aver all the minute circumstances which may be proven in support of the general statement or change in the bill ... in most cases, general certainty is sufficient in pleadings in equity.” Campbell v. Watson, 17 Dick. 396, 405. Sigwald v. City Bank, 74 S. C. 473, 477.

10. The bill is not multifarious. While there are numerous different subjects, and some of the defendants are not interested in all of them, these factors are not decisive. There is no inflexible gouge by which to test multifariousness, and each case must depend largely upon its own circumstances. Reno v. Cotter, 236 Mass. 556, 563. “It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it is sufficient if each party has an interest in some matters in the suit, and that they are connected with the others.” Lenz v. Prescott, 144 Mass. 505, 513. Lovejoy v. Bailey, 214 Mass. 134, 151. Coram v. Davis, 209 Mass. 229, 249. The case at bar is well within the authority of Raynes v. Sharp, 238 Mass. 20, and the decisions there collected.

What has been said disposes either categorically or by necessary implication of all the numerous points urged in behalf of the several defendants.

Demurrers overruled.