tion, 23 Me. 350, 41 Am. Dec. 389; Burt v. | property could be acquired in both ways by Lathrop, 52 Mich. 106, 17 N. W. 716.

There is a case in England (Smith v. Anderson, 15 Ch. D. 247) in which the distinction between cases like Hoadley v. County Commissioners and Mayo v. and Mayo v. Moritz was pointed out and established, and that case is now the established law in England. In Smith v. Anderson (decided by the Court of Appeals in 1880) the trust deed provided for the purchase by trustees of shares in the capital stock of 11 different submarine telegraph companies. The money was to be furnished by subscribers to whom transferable certificates were to be issued. The income derived from the submarine shares and the proceeds of any sales of them were to be applied by the trustees (1) in paying 6 per cent. interest on the trust certificates issued under the trust; (2) in redeeming these trust certificates at $120; and finally, when (3) all the certificates had been redeemed, the surplus, if any, was to be divided among the former certificate holders. It was held that this was a trust and not a company, association, or partnership which had to be registered under Companies Act of 1862 (25 & 26 Vict. c. 89) § 4. That act provided that "no company, association or partnership * shall be formed for the purpose of carrying on any other business [that is to say, any business other than banking] that has for its object the acquisition of gain by the company, association or partnership, or by the individual members thereof unless it is registered." This conclusion was reached on the ground that there is a difference between a partnership where money raised by the issue of transferable certificates is to be held by so-called trustees who are really managing agents, and a trust where money raised by the issue of transferable certificates is to be held by trustees properly so called, and that the distinction between the two is that which we have just stated in de

tail.

The decision in Smith v. Anderson is the law of England to-day, although by reason of some special facts in that case and the way in which the question arose doubts as to the conclusion reached in that case have been thrown out by two or three individual judges. For the subsequent cases see Crowther v. Thorley, 32 W. R. 330; In re Siddall, 29 Ch. D. 1; In re Jones, [1898] 2 Ch. 83, 91. For two cases where the distinction between managing agents who hold the legal title and trustees properly so called is reaffirmed, see In re Thomas, 14 Q. B. D. 379, 383; In re Faure Electric Accumulator Co., 40 Ch. D. 141, 151, 152.

[3] This brings us to the question of the character of the Boston Personal Property Trust. It is plain that it is a trust and not a partnership. By the terms of the indenture of trust the property contributed by the certificate holders, or that bought with

the terms of the indenture of trust), was to be held by the trustees in trust to pay the income to the holders of the certificates, and on the termination of the trust to divide the trust fund or the proceeds thereof among them. The certificate holders are throughout called "cestuis que trustent." The certificate holders, or "cestuis que trustent," are in no way associated together, nor is there any provision in the indenture of trust for any meeting to be held by them. The only act which (under the trust indenture) they can do is to consent to an alteration or amendment of the trust created by the indenture or to a termination of it before the time fixed in the deed. But they cannot force the trustees to make such alteration, amendment or termination. It is for the trustees to decide whether they will do any one of these things. All that the certificate holders or "cestuis que trustent" can do is to give or withhold their consent to the trustees taking such action. And the giving or withholding of consent by the cestuis que trust is not to be had in a meeting, but is to be given by them individually. As we have said, no meeting of the cestuis que trust for that or any other purpose is provided for in the trust indenture. The trustees of the Boston Personal Property Trust have a right to sell the trust securities and reinvest the proceeds, and also a limited power to borrow on the security of the trust property. The certificate holders, or "cestuis que trustent," as they are called in the trust deed, have a common interest in precisely the same sense that the members of a class of life tenants (among whom the income of a trust fund is to be distributed) have a common interest, but they are not socii, and it is the trustees, not the certificate holders, who are the masters of the trust property. The sole right of the cestuis que trust is to have the property administered in their interest by the trustees, who are the masters, to receive income while

the trust lasts, and their share of the corpus when the trust comes to an end.

[4] It has been urged by the learned counsel for the city of Boston that these certificate holders or "cestuis que trustent" are in effect carrying on the business of buying and selling securities through the trustees as managing agents or directors, and he refers to two facts which (he argues) bear him out in that contention, namely: (1) That the trustees on April 1, 1911, had on hand undivided income to the amount of $51,516.93, and a "surplus capital" amounting to $488,566.35. By the terms of the trust the trustees are authorized to set aside from time to time such portion of the net income as shall not be required for dividends for a "surplus fund," which surplus fund may be subsequently used by them in their discretion in payment of dividends. It appears that the

$2,090,500. The surplus fund of undivided [5] Up to this time we have not alluded to income therefore amounts to about 22 per the declaration in the indenture of trust here cent. of the corpus of the fund. The surplus in question that it was the intention of the capital of $488,566.35 is about 231⁄2 per cent. parties to it to create a trust and not a of the face value of the outstanding certifi- | partnership. It is what the parties did that cates. That is not an extraordinary increase is decisive. If there had been doubt as to in the value of the corpus of the trust fund what they did, what they intended to do during a period of 18 years. But this con- would have been a matter entitled to some tention brings out a fact in addition to those consideration in determining what they did. already referred to, which shows that the It was stated in a passing remark made by Boston Personal Property Trust is not a this court in Williams v. Johnson, 208 Mass. partnership, but a trust, and nothing but a 544, 552, 95 N. E. 90, that in the trust betrust. When persons engage as partners in fore the court in that case the certificate buying and selling stocks, bonds and other holders were partners within the meaning of securities for their mutual profit, the gains that word in St. 1909, c. 490, pt. 1, § 27. made by purchases and sales are profits of While that trust provided for meetings of the the partnership, divisible as such among shareholders and in that respect for some those entitled to the profits of the partner- association of and among them, an examinaship. In case of a trust, on the other hand, tion of the original papers shows that it was any gain made by a change of investments a trust and not a partnership. This remark is an accretion belonging to the corpus of was in no way essential to the decision in the trust fund and belongs to those who own Williams v. Johnson. the corpus of the fund. Such gains become part of the corpus as much as the original money contribution to the trust fund. On them the certificate holders or "cestuis que trustent" are entitled to income while the trust lasts, and to their share of them (because they are included in the corpus of the trust fund) when the trust ends and there is a distribution of the corpus among the cestuis que trust. That is the way in which the trustees of the Boston Personal Property Trust have dealt with gains made by changes of investment of the securities of that trust. That is to say, the trustees have treated gains from sales of securities not as profits of a partnership organized to buy and sell stock for a profit, but as gains on a change made in the investments of a trust fund.

It was largely with respect to the gains made by sales of the securities of the trust that the special circumstances in Smith v. Anderson raised a doubt as to that being a trust for investment and not a "business that has for its object the acquisition of gain." It was provided in the trust deed in Smith v. Anderson that the submarine telegraph shares should not be sold unless they brought a premium of 30 per cent., and that the proceeds of such sales should be used in the same way that the annual income derived from the submarine telegraph shares should be used, namely, in paying interest on the trust certificates and in retiring those certificates at $120 a share. They were issued originally at $90 per share. In that respect the trust in question in Smith v. Anderson was quite different from the Boston Personal Property Trust. There is nothing in the trust deed of the Boston Personal Property Trust which is in any way different from a trust under a will except that there are no limitations over and the interests of the cestuis que trust are represented by transferable

and transmissible certificates.

In the Boston Personal Property Trust the property is the property of the trustees, to be managed for the benefit of the certificate holders, but to be managed by the trustees and not by the certificate holders. There is no association of or among the certificate holders. The rights of the certificate holders are limited to each receiving his share of the income of the trust investments during the continuance of the trust and his share of the corpus of the trust when the trust comes to an end. It is in every respect an investment trust and nothing more.

It follows (1) that the property held by the plaintiff as trustees of the Boston Personal Property Trust was not taxable as partnership property, and that in the petition brought by them against the city of Boston they are entitled to an abatement; and (2) that their property was taxable as property held in trust, the income of which was payable to another, and the taxes assessed by the assessors of the city of Waltham and by the assessors of the inhabitants of Milton and of Brookline were properly assessed, and that the petitions against those municipalities should be dismissed. It is so ordered.

(215 Mass. 31)

FOSTER et al. v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk., May 24, 1913.)

Petitions by Charles H. W. Foster and others, trustees, against the City of Boston, against the Inhabitants of Brookline, against the Inhabitants of Milton, and against the Inhabitants of Westwood for abatement of taxes. Relief granted in part, and denied in part.

Ropes, Gray & Gorham, of Boston (John E. Searle, of Boston, of counsel), for complainants. Wm. G. Rowe, of Brockton, for respondent Inhabitants of Westwood. Wm. H. White, of Boston, for respondent Inhabitants of Brookline. W. P. Higgins, of Boston (R. M. Walsh, of Bos

ton, of counsel), for respondent City of Boston. I tiff's premises, was caused by the acts of the Jas. R. Dunbar and Felix Rackemann, both of defendant, and that other sources of pollution Boston, for respondent Inhabitants of Milton. did not contribute materially or substantially to its pollution during the period considered, are sufficient findings that the pollution which caused the plaintiff's damage was due to the defendant.

"6. That what constitutes a reasonable use 5. WATERS AND WATER COURSES (§ 76*)-POL- of water in a stream in respect to the deLUTION-LIABILITY-STREAM ALREADY POL-posit of waste matter therein is a question of fact to be determined from all the circumstances of the case.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 64; Dec. Dig. §ed, namely: The size and character of the 76.*]

stream, its condition, volume, and rapidity, and the density of the population along its banks; the use to which the stream has Findings by the master that the pollution been, is, and can be applied; the state of of water and the loss in rental value of plain-improvement of the country in regard to

mills and machinery, and the use of water | He is entitled to full compensation for all as a propelling power; the general and established usages of the country in similar cases, and the usages and wants of the community; and the necessity or importance of the use claimed by the defendant, and the extent of the benefit to him as compared with the extent of the injury to the other party."

On the master's findings, the plaintiff's claim for additional damages was properly disallowed.

It is unnecessary to consider the exceptions in detail. As we discover no reason for disagreeing with the findings of the master that have been contested before us, and no error of law in dealing therewith, the decree entered by the single justice must be affirmed; and it is So ordered.

erated in bringing about the one indivisible result of which the plaintiff complains, and so that all the parties must be treated as if they had been joint wrongdoers in intention as well as in the result brought about by their combined acts, according to the rule which has been applied in cases of personal injuries. D'Almeida v. B. & M. R. R., 209 Mass. 81, 87, 95 N. E. 398. The rule that in a case like the one here presented separate wrongdoers acting independently of each other are liable only for their individual acts has been declared. Mansfield v. Bristor, 76 Ohio St. 270, 81 N. E. 631, 10 L. R. A. (N. S.) 806, and 118 Am. St. Rep. 852, and cases in note on page 873, 10 Ann. Cas. 767; Pulaski Anthracite Coal Co. v. Gibboney Sand Bar Co., 110 Va. 444, 66 S. E. 73, and 24 L. 1. MANDAMUS (§ 7*)-NATURE AND SCOPE OF R. A. (N. S.) 1185. The real distinction was perhaps taken in Nitro Phosphate & Odam's Manure Co. v. St. Katherine's Docks Co., 9 Ch. D. 503, 527.

(215 Mass. 353)

SMITH v. ROURKE, Com'r of Public Works. (Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1913.)

REMEDY.

Mandamus is not a writ of right, and is granted only in the exercise of sound judicial discretion.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 5; Dec. Dig. § 7.*]

2. MANDAMUS (§ 100*)-ACTS OF PUBLIC OF

FICERS-DISCRETION.

apparatus for street illumination, and that re000 for the purchase of gas lamps and other spondent at the time of the appropriation was investigating as to the most practical system of municipal lighting, and was of the opinion that the public interest would be better served by not making the purchase authorized by the appropriation, and. by lighting by electricity. Held, that the appropriation for a specific puron the defendant, and that mandamus to compel pose did not make its expenditure mandatory its expenditure was properly denied.

[6, 7] On the findings of the master taken together, it sufficiently appears, as we have seen, that the pollution of the stream which Upon mandamus against the commissioner caused the plaintiff's damage was due to the of public works of the city of Boston, it appearacts of the defendant and not to those of oth-ed that the city council had appropriated $300,er parties. This is stated in the master's This is stated in the master's second report in his finding that the "pollution of the water and loss in rental value was caused by the acts of the defendant company." And again he found "that the piggery on Beaver brook did not at any time materially or substantially contribute to the pollution of the brook during the period considered, and that the rendering plant above the mill ceased to do business in 1902, and did not contribute substantially or materially to the pollution of the brook before 1902." By reason of these findings the sixth and seventh requests for rulings which the defendant asked the master to give were inapplicable to the case. The rulings made by the single justice upon this question have done no injury to the defendant, and afford to it no ground of complaint.

[8] The master's finding that the plaintiff had a prescriptive right to pollute the water at his paper mill made it unnecessary to give the ruling requested by the defendant, that in computing the rental value of his property the plaintiff was not entitled to include any profit due to his own illegal pollution of the stream. No such illegal pollution by the plaintiff was found. And the defendant's claim that it had put in as strong evidence of its own prescriptive right as that upon which this finding in favor of the plaintiff was made, if we assume that this position is now open to it, merely illustrates the rule that findings made by a master upon conflicting evidence are not lightly to be overthrown. The evidence in support of the two contentions did not seem to him to be equally strong, and we cannot reverse his conclusion.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 205-210; Dec. Dig. § 100.*]

Report from Supreme Judicial Court, Suffolk County.

Petition by Earnest E. Smith for a writ of mandamus against Louis K. Rourke, Commissioner of Public Works of the City of Boston. Writ refused, and case reported from the Supreme Judicial Court. Petition dismissed.

R. J. Cram, of Boston, for petitioner. Jos. J. Corbett, of Boston, for respondent.

RUGG, C. J. [1, 2] This is a petition for a writ of mandamus. It was heard by a single justice, who refused to issue the writ so far as it rested in his discretion, and reported the case. Mandamus is not a writ of right, and it is granted only in the exercise of sound judicial discretion. Hill v. County Commissioners, 4 Gray, 414; Murray v.. Stevens, 110 Mass. 95; McCarthy v. Street Commissioners, 188 Mass. 338, 340, 74 N. E. 659. The facts are that the city council of Boston appropriated in May, 1911, $300,000, to be exended by the department of public works for the purchase of gas lamps and other apparatus for street illumination, and this amount of money is now available for that use. The respondent as commissioner