clude none fairly within the scope of the stat-effective in some circumstances. See Prusik

(161 Ν.Ε.)

cases collected; County Commissioners v. Mayor of Newburyport, 252 Mass. 407, 410, 147 Ν. Ε. 901. Although the petitioner Godfrey was afforded no remedy under said sec

tion 20, he belongs to a class without private interest to whom the Legislature has decided that no remedy ought to be given.

The provisions of said section 20 already quoted distinguish the case at bar from decisions like Bancroft v. Building Commissioner of Boston, 257 Mass. 82, 153 N. E. 319. That case arose under St. 1907, c. 550, which made

no provision whatever for remedy by private individuals. It was held that mandamus might be invoked. As already pointed out, the provisions of section 20 of said chapter 488 cover the field of remedy for the violation

of its terms.

Arguments have been urged in support of these petitions founded on illustrations of conceivable action by the board of zoning adjustment in excess of its jurisdiction, where no relief had been sought by certiorari under section 20, which might be remediless. We do not undertake to determine the effect, if any, of such action, nor to decide how extrajurisdictional conduct of that nature may be dealt with, nor to inquire whether it protects anybody. We only decide that these petitioners have no standing to maintain the present proceedings.

The grounds of this decision render unnecessary any discussion of the difference between the positions of the two petitioners. It is decisive in these cases that the petitioners cannot maintain these petitions and therefore we cannot consider whether the board of zoning adjustment transcended its powers in creating the new B-155 district; no intimation is made on that point.

Petitions dismissed.

SIMMONS v. BARNS.

Supreme Judicial Court of Massachusetts.
Worcester. May 26, 1928.

4. Executors and administrators 451 (2)
Directed verdict for executor in action for
conversion of bonds by deceased held proper,
in absence of evidence justifying finding of
demand therefor on deceased.

In absence of evidence justifying finding, in action against executor for conversion of bonds by deceased, that demand for bonds was made on deceased, court properly directed verdict for defendant.

2. Gifts 49 (6) -Evidence in action against executor for conversion of bonds by deceased held to justify finding of valid gift thereof to plaintiff by deceased.

In action against executor for conversion of bonds by deceased, evidence that deceased delivered bonds to plaintiff and that plaintiff accepted

deceased's offer to place them in envelope with plaintiff's name on it in deceased's safe deposit box for safe-keeping, giving plaintiff interest semiannually and renewing them at maturity or

reinvesting proceeds in something which would

give plaintiff equal return, justified finding of valid gift of bonds to plaintiff.

3. Trusts44(1)-Evidence held to justify finding that plaintiff, who received bonds from and paid interest thereon to defendant's decedent, was trustee for decedent.

Evidence, in action against executor for conversion of bonds by deceased, that latter delivered bonds to plaintiff, who accepted his offer to place them in envelope with her name thereon in his safe deposit box for safe-keeping, giving her interest thereon semiannually and renewing bonds at maturity or reinvesting proceeds for her, held to justify finding that valid trust in bonds and proceeds was established. 4. Trusts289-Trustee must account for money held in trust.

It is the trustee's duty to account for money held by him in trust.

5. Trusts

61(3)-Trust in bonds and pro

ceeds held terminable by beneficiary at any time; nothing remaining for trustee to do but pay over money.

Trust in bonds and proceeds thereof, which trustee agreed to pay beneficiary or reinvest for her, held terminable by her at any time as matter of right; nothing remaining for trustee to do but pay over money.

6. Trusts 358(1)-Trust ceases when trust money becomes so mixed with trustee's individual funds that it is impossible to trace and identify it.

When trust money becomes so mixed with trustee's individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases.

7. Trusts 244-Absence of evidence that trustee reinvested or expended proceeds of bonds at maturity for beneficiary justified inference that money was in his estate when he died, or had been used or expended by him.

In absence of evidence, in action against executor for conversion of bonds by deceased trustee, that latter reinvested or expended for plaintiff money received for bonds at maturity, inference was justified that money was in his estate at time of his death, or had been used or expended by him.

8. Trusts 247-Cestui que trust can sue at law for money payable by trustee on demand, where nothing else remains to be done.

Where nothing remains to be done by one who is or has been trustee except performance of duty to pay definite sum of money to cestui que trust on demand, an action at law therefor can be maintained by the latter.

9. Money received 3-Action for money had and received lies where plaintiff's property has been reduced to money after its receipt by defendant.

Where property belonging to plaintiff has been reduced to money after its receipt by de

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fendant, but before action is brought, an action for money had and received lies.

10. Abatement and revival

52-Action for money had and received by trustee for bonds held in trust may be prosecuted against his executor (G. L. c. 230, § 1).

Action for money had and received could have been maintained against trustee during his lifetime for proceeds of bonds held in trust, and, being action which survives, may be prosecuted against his executor under G. L. c. 230,

§ 1.

11. Trusts 244-Specific proceeds of trust bonds need not be traced, nor possession of money by trustee's executor proved, to maintain action against latter, for money received.

To maintain action against trustee's executor for money received by trustee for bonds held in trust at maturity thereof, it is not necessary to trace specific proceeds or prove that money came into hands of executor.

12. Money received 11-Previous demand is unnecessary to sue for money had and received; writ being sufficient demand.

No previous demand for money is necessary as foundation for action for money had and received; the writ itself being a sufficient demand.

13. Executors and administrators

451(2)

Where issue tried was whether decedent received money, with no evidence as to receipt by executor, though executor was alleged to have received it, executor was entitled to directed verdict that money was received by executor.

In absence of evidence justifying finding that proceeds of bonds held in trust by decedent were received by defendant executor, latter's motion for directed verdict, based on pleadings and evidence, on count for money had and received, should have been granted.

14. Appeal and error 1061(4)-Where issue whether testator received money sued for was fully tried, exceptions to denial of directed verdict for want of evidence that defendant executor received money will be overruled on amendment of count by substituting testator's

name.

Where issue whether money belonging to plaintiff was received by defendant executor's testator was fully tried, defendant's exceptions to overruling of his motion for directed verdict for lack of evidence that money was received by him will be overruled on amendment of count by substituting testator's name for "defendant."

Exceptions from Superior Court, Worcester County; Charles H. Donahue, Judge.

Action by Florence M. Simmons against Thomas E. Barns, as executor under the will of Augustus Wheeler, deceased. A verdict for plaintiff was returned on one count, and a verdict for defendant directed on the other counts, and both parties bring exceptions. Defendant's exceptions overruled conditionally, and plaintiff's exceptions overruled.

W. C. Towne, of Boston, for plaintiff.
W. C. Mellish, of Worcester, for defendant.

SANDERSON, J. [1] In this case a verdict was returned for the plaintiff upon a count for money had and received. Subject to the plaintiff's exception, the court directed a verdict for the defendant on counts two and three, based upon a conversion of the bonds by the deceased, Augustus Wheeler. The evidence would not justify a finding that demand for the bonds was made upon Wheeler or that he converted them. No error appears in the ruling of the court on these counts.

[2] The jury were warranted in finding that in the summer of 1913, the defendant's testator, Augustus Wheeler, delivered to the plaintiff five $1,000 bonds of the New York Central Railroad Company, bearing interest at five per cent. payable May 1 and November 1 of each year; that thereupon she accepted his offer to place them in an envelope with her name upon it in his safe deposit box for safekeeping, giving her the interest twice a year, and to renew them at maturity or invest their proceeds in something equally good which would give the plaintiff an equivalent return. The evidence justified the finding that there was a valid gift of the bonds to the plaintiff. Grover v. Grover, 24 Pick. 261, 35 Am. Dec. 319; Bone v. Holmes, 195 Mass. 495, 505, 81 Ν. Ε. 290. Although she examined the bonds, she was unable to state of what issue they were, but testified that Wheeler told her they would mature between 1916 and 1919. Interest was paid by Wheeler to the plaintiff, or to some one in her behalf, from November, 1913, to May, 1922.

Thereafter she received no income from him except $50 and never received any payment on account of principal. When he died, in 1924, no bonds of the New York Central Railroad Company were found among his assets. The plaintiff wrote the executor in regard to the bonds and he informed her that he could find no record of such bonds in Mr. Wheeler's papers. There was evidence from which it could have been found that only two issues of New York Central five per cent. bonds were outstanding in August and September of 1913, on which coupons became due and payable May 1 and November 1; one of these maturing November 1, 1922, the other May 1, 1918. The jury could have found that the bonds were a part of one of these issues; that both issues were paid at par at maturity; and that Wheeler, having undertaken to collect them at maturity, then received their proceeds. There was testimony tending to show that in 1920 Wheeler burned all his personal books of account and records, making it impossible to determine what he might have done with the proceeds of any bonds.

[3-12] The jury could have found that a valid trust in these bonds and in their pro

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(161 Ν.Ε.)
received the writ was a sufficient demand.
See Dill v. Wareham, 7 Metc. 438, 448.

ceeds was proved. Jenkins v. Bacon, 111 Mass. 373, 377, 15 Am. Rep. 33; Chase v. Perley, 148 Mass. 289, 294, 19 Ν. Ε. 398. It is the trustee's duty to account for money held by him in trust. Ashley v. Winkley, 209 Mass. 509, 525, 95 N. E. 932; Chamberlain v. Henry (Mass. 1928) 160 N. E. 317. The trust could have been terminated by the plaintiff at any time as matter of right. Nothing would remain for the trustee to do but to pay over the money. Farrelly v. Ladd, 10 Allen, 127; Chase v. Perley, supra; Gannon v. Ruffin, 151 Mass. 204, 207, 24 Ν. Ε. 37. "When trust money becomes so mixed up with the trustee's individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases." Little v. Chadwick, 151 Mass. 109, 110, 23 Ν. Ε. 1005, 7 L. R. A. 570; Lowe v. Jones, 192 Mass. 94, 100, 78 Ν. E. 402, 6 L. R. A. (N. S.) 487, 116 Am. St. Rep. 225, 7 Ann. Cas. 551. The defendant offered no evidence tending to prove that Wheeler reinvested or expended for the plaintiff the money received for the bonds at maturity, and in the absence of such evidence the inference was justified that it was in his estate at the time of his death or had been used or expended by him. "Where there is or has been a trust, and it is the duty of the trustee to pay to his cestui que trust a definite sum of money on demand, and nothing else remains to be done, an action at law can be maintained by the cestui que trust." Henchey v. Henchey, 167 Mass. 77, 79, 44 N. Ε. 1075, 1076. "Where property belonging to the plaintiff has been reduced to money after it was received by the defendant but before the action is brought, money had and received lies." Devlin v. Houghton, 202 Mass. 75, 78, 88 Ν. Ε. 580, 581. On the evidence such an action could have been maintained against Wheeler during his life. Arms v. Ashley, 4 Pick. 71, 73; Flye v. Hall, 224 Mass. 528, 529, 113 N. E. 366. An action so begun would have survived and it may, therefore, be prosecuted against his executor. G. L. c. 230, § 1. To maintain the action it is not necessary to trace the specific proceeds of the bonds or to prove that the money came into the hands of the executor. Attorney General v. Brigham, 142 Mass. 248, 250, 251, 7 Ν. Ε. 851; Minchin v. Minchin, 157 Mass. 265, 266, 32 N. E. 164; Henchey v. Henchey, supra; Hewitt v. Hayes, 205 Mass. 356, 363, 91 N. E. 332, 137 Am. St. Rep. 448. The plaintiff is not seeking to establish a trust in any spécific property in the hands of the defendant. See Lowe v. Jones, 192 Mass. 94, 78 N. E. 402, 6 L. R. A. (N. S.) 487, 116 Am. St. Rep. 225, 7 Ann. Cas. 551; Hewitt v. Hayes, supra; Stadmiller v. Schrimer, 248 Mass. 244, 248, 142 Ν. Ε. 905. No previous demand for the money was necessary as the foundation for an action; on the count for money had and

[13, 14] Inasmuch as the motion for a directed verdict on the first count was based upon the pleadings and the evidence, it should have been granted, because the evidence would not justify a finding that the money was received by the executor. But the issue whether the money was received by the testator was fully tried, and, for this reason, if within thirty days after rescript the Superior Court shall permit the plaintiff to amend count one by substituting for the word "defendant" the words "the deceased Augustus Wheeler," then the defendant's exceptions are to be overruled; otherwise, they are to be sustained. Plaintiff's exceptions overruled.

So ordered.

PEARSON v. BARA.

Supreme Judicial Court of Massachusetts.
Essex. May 28, 1928.

1. Parties

95(4)-Amendment held proper, in suit for injuries to automobile, to substitute plaintiff's wife as plaintiff, after it appeared automobile was registered in her name (G. L. c. 231, § 51).

Under G. L. c. 231, § 51, authorizing any amendment which will enable plaintiff to sustain action for cause for which it was intended to be brought, trial court properly permitted amendment in suit for injuries to automobile to substitute plaintiff's wife as plaintiff, where it appeared at trial that automobile was registered in her name and purchased by husband with funds belonging to various members of family.

2. Action 66-Party has no vested right to have case determined on form of procedure which may have been inadvisedly or mistakenly chosen.

Party to action has no vested right to have case decided and determined under a form of procedure which may have been inadvisedly or mistakenly chosen.

3. Parties

61-Trial judge is not required to deny amendment substituting plaintiffs on ground of prejudice by loss of jury trial, in absence of request therefor (St. 1925, с. 132, § 2).

In absence of request for jury trial, or removal to superior court pursuant to St. 1925, c. 132, § 2, the trial judge is not required to deny amendment to substitute different party as plaintiff on ground that defendant would be prejudiced by loss of trial to jury.

4. Automobiles 33-Automobile held properly registered in name of person contributing to purchase and having interest as owner.

Registration of automobile in name of person who contributed to the purchase and had interest therein as owner held proper, and machine was not an outlaw.

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5. Husband and wife 209(1)-Husband could recover because registration was in the name

not maintain action for injuries to automobile registered in name of wife.

Where automobile registered in name of wife was purchased by husband with funds belonging to various members of the family, husband could not maintain suit in his own name to recover for injuries to automobile.

6. Parties 58-Amendment in suit for injuries to automobile by substituting plaintiff's wife as plaintiff, in whose name machine was registered, did not render proceeding new suit (G. L. c. 231, § 138).

Allowance of amendment in suit for injuries

of the wife alone; (4) the amendment, if allowed, constituted the bringing of a new suit, in which Ernest had no beneficial interest.

The court, on January 30, found for the plaintiff Martha Pearson in $115, the full amount of damage proved, denied the requests filed January 22, allowed the motion to amend, granted requests filed on January 26, and numbered one and two and denied that numbered four, and, although denying that numbered three, ruled that Ernest Pearson could not recover if the machine was joint

to automobile, so as to permit substitution of property but registered in the name of the

plaintiff's wife as plaintiff therein, after it appeared that automobile was registered in her name, did not render proceeding thereafter a new suit, in that allowance of amendment implied a finding that action as amended was proceeding begun to obtain redress for. cause intended, in accordance with G. L. c. 231, § 138.

Appeal from District Court of Lawrence, Appellate Division; A. G. Pierce, Special Judge.

Suit by Ernest Pearson against Stanley Bara. Motion to substitute Martha Pearson as plaintiff was allowed, judgment rendered for plaintiff, and, from an order dismissing the report, defendant appeals. Affirmed.

Andrew A. Hagen, of Lawrence, for appel

lant.

WAIT, J. The defendant negligently damaged an automobile. Suit in the district court of Lawrence was brought by Ernest Pearson, who alleged that he was owner of the machine. At the trial it appeared that the automobile was registered in the name of Martha Pearson, his wife, and was purchased by Ernest with funds belonging to various members of his family. A daughter, who was driving the car at the time of the accident and who was in the exercise of due care, testified that the car belonged to her mother, Martha. Ernest moved that his name be struck out and the name of Martha Pearson be substituted as plaintiff. At the conclusion of the evidence, on January 22, 1926, the defendant requested rulings that the plaintiff could not recover, and that the motor vehicle was an outlaw on the highway because not duly registered. On January 26 the motion to amend was heard. The defendant asked for rulings that (1) the amendment, if allowed, deprived him of right to jury trial; (2) Ernest Pearson had no cause of action that he could properly ask to sustain in the name of another; (3) if he purchased the machine with money partly of himself and partly of his wife, he could not

wife, regardless of amendment.

[1-3] We find no error. The action was intended to be brought to enable the owner of the automobile to recover compensation for the damage suffered in the accident. A mistake in the person of the owner could be remedied by amendment when, as a result of the trial, all the facts were before the court. General Laws, chapter 231, section 51, authorizes any amendment which will "enable the plaintiff to sustain the action for the cause for which it was intended to be brought." The judge well might regard the motion as the correction of a mistake in the name of the owner. "A party to an action has no vested right to have a case decided and determined upon a form of procedure which may have been inadvisedly or mistakenly chosen." Pizer v. Hunt, 250 Mass. 498, 504, 146 N. E. 7, 9. No steps had been taken to remove the case to the Superior Court. By St. 1925, c. 132, § 2, the judge was not required to deny the amendment on the ground that the defendant had been prejudiced by the loss of trial to a jury. No desire for such trial had been shown at the proper time for claiming it, and no claim was made, so far as appears, when the motion to amend was presented. No prejudice is made out.

[4, 5] Registration in the name of Martha Pearson, who had contributed to the purchase and had an interest as owner, was proper. The machine was not an outlaw. Shufelt v. McCartin, 235 Mass. 122, 126 Ν. Ε. 362; Harlow v. Sinman, 241 Mass. 462, 463, 135 Ν. Ε. 553. The ruling that Ernest Pearson could not maintain the action was correct. Shufelt v. McCartin, supra.

[6] There is nothing in the contention that the allowance of the amendment rendered the proceeding thereafter a new suit. The allowance implies a finding by the judge that the action, as amended, was the proceeding begun to obtain redress for the cause intended -the same suit, not a new one. G. L. c. 231, § 138. It follows that the entry must be Order dismissing report affirmed.

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