and the presiding judge said: "This is admitted de bene-the authority he is going to show later." Thereupon the witness testified that McNaughton stated in answer to a question as to the origin of the fire, that he had sent men from the defendants' factory to clear the defendants' land to sow rye, and in clearing the land they had started a fire and it had got away from them. Another witness, Rush by name, one of the two men sent by McNaughton, was allowed to testify against the objection and exception of the defendants that McNaughton told him to go to plough the field of the defendants in question, and added that there were some pine tops there which he told Rush and the other employé to pick up "and burn them out of your way."

It is plain that the testimony was admitted under Rev. Laws, c. 175, § 66, and was competent against the defendants if it was shown that McNaughton had authority from them to give the directions in question. Whether evidence of the directions given should be admitted first and the authority shown later, or the evidence of the directions given should be excluded until McNaughton's authority was shown, was a matter to be decided by the presiding judge in his discretion.

It heretofore has been generally laid down that in such a case the exception will not be sustained unless it appears from the bill of exceptions that the evidence was not properly connected. Whitcher v. McLaughlin, 115 Mass. 167; Costello v. Crowell, 133 Mass. 352, where the earlier cases are collected.

It is more correct to say that the exception will not be sustained unless the fact that the evidence admitted de bene had not been properly connected afterwards was brought to the attention of the court and a further ruling on that ground asked for. The rule was so laid down in Brady v. Finn, 162 Mass. 260, 38 N. E. 506. See, also, Williams v. Clark, 182 Mass. 316, 65 N. E. 419.

But whichever is the true statement of the rule, the exception in question must be overruled.

The matter was not subsequently brought to the attention of the court either by a request to strike out the evidence admitted de bene, or by a request for a ruling that there was no evidence for the jury on this point.

It is stated in the beginning of the bill of exceptions that "the evidence material to the issues raised was as follows." Whatever might be thought to be the true construction of this bill of exceptions if this statement stood alone, it is plain from the concluding statement of the bill that the defendants did not raise the question of the sufficiency of McNaughton's authority. The concluding statement is as follows: "The question of McNaughton's agency and authority to direct men to set fire to the brush on the lot was submitted to the jury under proper in

structions and not excepted to by either party."

The defendants now further object that McNaughton could not have testified to the facts stated by him because they were not within his personal knowledge. The question asked did not call for facts not within his knowledge, and no motion was made to strike out the answer on that ground. The objection cannot now be raised. See Packer v. Thomson-Houston Electric Co., 175 Mass. 496, 56 N. E. 704. Apart from that it appears that McNaughton went to the fire after it started, and therefore the only fact testified to by him of which he could not be found by the judge to have had personal knowledge was the fact that the fire was set by Rush and the other employé. That is stated in the bill of exceptions to be the fact, and therefore the defendants were not injured by the introduction of that evidence. In such a case the exception will not be sustained. Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166. Exceptions overruled.

(193 Mass. 30)

CORBETT v. CRAVEN. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 16, 1906.)

1. JUDGMENT-MATTERS CONCLUDED.

A final decree on the merits, as between the parties, includes everything that was litigated or might have been litigated.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1104, 1132, 1241.] 2. SAME JUDGMENTS CONCLUSIVE-DISMISS

AL.

A decree, "Bill dismissed," is a final decree on the merits, which settles all matter involved. [Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1032, 1165.]

3. SAME-MATTERS CONCLUDED-SCOPE OF IS

SUES.

Plaintiff in equity sued as the trustee of a bankrupt, alleging that the bankrupt owned all the machinery in certain described mills, and a final decree was entered dismissing the bill. Thereafter such plaintiff brought an action for the conversion of a part of the machinery in such mills, and it appeared that the principal matter to which the testimony at the hearing in equity was directed was the property covered by certain bills of sale given by the bankrupt to defendant. Held, that the decree in equity was final and conclusive as to the title of all the property in the mills.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1242, 1243, 1251, 1248.]

Exceptions from Superior Court, Hampden County; Loranus E. Hitchcock, Judge.

Action by William J. Corbett against Michael Craven. Judgment in favor of plaintiff, and defendant brings exceptions. Exceptions sustained.

C. T. Callahan, for plaintiff. Chas. H. Beckwith, for defendant.

KNOWLTON, C. J. This is a suit for the conversion of certain machinery. The question presented by the bill of exceptions is

whether the plaintiff is barred by a former decree for the defendant in a suit in equity. This suit was brought by the person from whom the present plaintiff took his title pendente lite, and the decree is binding not only upon the parties to it, but upon their privies. There is no dispute that the present plaintiff is affected by it as the plaintiff in that suit would have been if he had not parted with his title. Sawyer v. Woodbury, 7 Gray, 499-502, 66 Am. Dec. 518; Borrowscale v. Tuttle, 5 Allen, 377; Haven v. Adams, 8 Allen, 363. The decree was "Bill dismissed," which is a final decree upon the merits, that settles forever all matters involved in the suit. Snell v. Dwight, 121 Mass. 348; Foote v. Gibbs, 1 Gray, 412.

If the question were, "What is the effect of the judgment in a collateral proceeding?" the case would be different, and the answer would be, "Only to settle such matters as were actually tried and adjudicated." But as a final disposition of the case, a judgment on the merits includes everything that was litigated, or that might have been litigated, in the case brought by the plaintiff before the court. Foye v. Patch, 132 Mass. 105110; Watts v. Watts, 160 Mass. 464-465, 36 N. E. 479, 32 L. R. A. 187, 39 Am. St. Rep. 509; Butrick, Petitioner, 185 Mass. 107-113, 69 N. E. 1044. There is nothing in the decision in Waterhouse v. Levine, 182 Mass. 407, 65 N. E. 822, adverse to this view, although some of the language in the opinion is broader than the case called for. The cause of action in that suit was not the same as that to which the judgment in the former action related, but it came into existence after the former suit was brought. Although the two suits related to the same transaction, it was competent to show that the last was for a cause of action which had lately arisen, and which could not be affected by a judgment founded on different conditions existing previously.

We are, therefore, brought to the question which has been most discussed, namely, whether the suit in equity included the present cause of action. The plaintiff in equity was the trustee of one Connor, a bankrupt, and he averred in the third clause of his bill "that the said bankrupt owns and has located, in the brick building at No. 649 Main street in said Holyoke called the New York Mills, all the machinery, tools and manufacturing implements located in said mills, and all machinery in the mills situated at the corner of Cabot and Bigelow streets in said Holyoke, called the Bigelow Street Mills of the Holyoke Water Power Company, of great value, and all of which property is claimed to be owned by Michael Craven of Springfield in said county." Then followed an exception of certain machinery which is immaterial to this case. The present suit is to recover for a conversion of a part of the machinery in these mills. In the fourth clause, after an averment in regard to the purchase "of all of the above described personal property"

by the bankrupt, he charged, "that later, in the years 1883, 1885 and 1891, Michael Craven claims that the property was conveyed to him on the payment of certain amounts." In the fifth clause he charged "that the said Michael Craven did not make the purchase of any of the personal property above mentioned," and that his alleged title was fraudulent as against creditors.

The defendant's answer was an admission "that he claims to be the owner of certain machinery, tools and manufacturing implements located in the New York Mills, and all the machinery in the Bigelow Street Mills, excepting," etc., "as alleged in the third paragraph of plaintiff's bill, and says he became the owner thereof by purchase from said James Connor in the years 1883, 1885 and 1891." The other admissions of the answer are immaterial, and there was a denial of all allegations not expressly admitted. In his prayer for relief the plaintiff asked, among other things, that the title to all this personal property be decreed to be in him.

Here, then, was an issue including all the property referred to in the present action, and by a decree dismissing the bill the issue was determined in favor of the defendant. It now appears that the principal matter to which the testimony at the hearing in equity was directed was the property covered by the three bills of sale given by Connor to the defendant. There was other property in these mills which was not included in these bills of sale, which the defendant contends passed to him from Connor, under other agreements. In regard to this the jury in the present action has found for the plaintiff. But if it was included in the claim made by the bill in equity, the decree in that suit was final and conclusive as to the title, even if the parties omitted to distinguish the property from that described in the bills of sale.

The language of the bill is plainly inclusive of it, and there is nothing in the answer that limits the issue tendered by the plaintiff in the statement of his claim and of the defendant's adverse claim. The jury should have been instructed in accordance with the contention of the defendant. Exceptions sustained.

a matter of law guilty of contributory negligence.

2. SAME DEFECTIVE APPLIANCES-EVIDENCESUFFICIENCY.

Proof that a machine broke, injuring an employé while operating it in a reasonable way and for the use for which it was intended, is evidence that the machine was defective.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 955.] 3. SAME-NEGLIGENCE-QUESTION FOR JURY.

In an action by an employé for injuries received while attempting to stop a machine he was operating, evidence examined, and held to require the submission to the jury of the questions whether the break in the machine was due to its defective.condition, and whether the defect might and should have been discovered by the employer by proper inspection.

[Ed. Note.--For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1016, 1017.] Exceptions from Superior Court, Worcester County; Edwd. P. Pierce, Judge.

Action in tort by John F. Hannan against the American Steel & Wire Company of New Jersey for injuries sustained by reason of the alleged negligence of defendant. The court directed a verdict for defendant, and plaintiff brings exceptions. Sustained.

J. W. Sheehan, for plaintiff. Frank B. Smith, T. H. Gage, Jr., and Frank F. Dresser, for defendant.

would go as far as the die, and when it gets to the die of course will break and won't go through, and sometimes it will injure the die" so that repairs have to be made. As to the circumstances of the accident he testified as follows: "This kink was coming towards the die and I [saw] * * * the wire coming off the reel, and I stepped on the treadle to stop the machine. * * * To save the wire I stepped on the treadle to stop the machine, and I got on both feet using all the exertion I was possessed of to put down the treadle, but the treadle usually went down like a spring board, but this time the bolt which attached the treadle to the leaders broke, and I came on both heels on the floor. * * * I came down on the floor unexpectedly, using all the exertion I could to stop the machine." On cross-examination he testified, "I stepped on the treadle first with one foot and then brought up the other and stepped on it. I had to put on one foot before I could put on the other. I then had to jump up and down to force it down. I weigh probably a hundred and fifty-five pounds. While I was jumping the treadle broke."

It is argued by the defendant that the plaintiff was careless in subjecting the treadle to such a violent and unusual strain as he describes. But there was a necessity for

stopping the machine, and we cannot say as matter of law that the plaintiff used unusual or unreasonable force in his attempt. This question was for the jury.

The difficult question is whether there was evidence enough to warrant a finding of negligence on the part of the defendant. The fact that the bolt broke in the manner described from the use for which it was intended (provided the jury found that the plaintiff was using the machine in a reasonable way) was evidence that it was defective and unsafe. The defendant was charged with the duty to exercise reasonable care to keep its machinery in a safe condition for use. The machine had been used 14 years. There is no evidence as to when this belt was put in, or whether it was ever inspected. There was evidence that there was an old flaw at the point of breakage, but as to the nature of the flaw the evidence was somewhat vague and conflicting. One Hickey, called by the plaintiff, testified that he "saw the ends that were broken. * * * The piece appeared to me a little flaw like, a bit rusty where it broke. The rest appeared pretty fresh. One part looked fresh and one part looked rusty. About a quarter of an inch as near as I can figure it. Part of it looked fresh and part of its looked as though not a fresh break. The part that looked as though it was not a fresh break was the middle of the break. With reference to the circumference it was the middle of the bolt. Where it broke there was a piece that was rusty that was broken before. I could not very well tell where it was with regard to the outside circumference of the bolt." When asked whether this would come next to the surface or inside the surface he answered, "Inside of it," and when asked if it came to the surface he said, "Yes, it came up all right there, the rusty part. It extended a quarter of an inch from the surface."

*

*

One Burns, also called by the plaintiff, testified: "I could see of course that the bolt was kind of rusty where the break was, what you would call a flaw. This was right where it broke. * I couldn't say with regard to the circumference of the end of the bolt whether it was in the surface or in from the surface. I couldn't say how deep it was. Should say it came pretty close to it [the surface]." The "old and rusty piece" was "inside where the break was. You might say almost to the surface. You could see a rusty place." "Did not notice" "whether the rust extended to the surface."

*

face, one third at least." The pieces of the broken bolt were shown to the jury but one of the pieces had been subjected to the action of fire since the accident, to such an extent as to change materially its shape and appearance.

Upon this branch of the defense the case is close, but in view of the testimony of the plaintiff and the appearance of the pieces of the broken bolt, we are of opinion that the questions whether the break was due to the defective condition of the bolt, and whether the defect might and should have been discovered by a proper inspection, were for the jury. See Gould v. Boston Elevated Ry. (Mass.) 77 N. E. 712; Toy v. United States Cartridge Co., 159 Mass. 313, 34 N. E. 461; Murphy v. Marston Coal Co., 183 Mass. 385, 67 N. E. 342.

Exceptions sustained.

(192 Mass. 596)

COONEY v. WHITAKER et al. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 16, 1906.)

1. WILLS-DEBTS OF TESTATOR-PAYMENT OF DEBTS-LIABILITY AS BETWEEN SPECIFIC AND GENERAL DEVISES.

Under Rev. Laws, c. 135, §§ 26, 27, providing that, where property given by a will is taken from a devisee and legatee for the payment of the testator's debts, all other devisees and legatees shall contribute their respective proportions of the loss from whom such property is taken except where the testator by making a specified devise virtually exempts a devisee from liability to contribute, etc., specific devises and legacies are not to be taken for the payment of a testator's debts until the general legacies and devises are exhausted.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 2108.]

2. SAME-CONSTRUCTION-GENERAL DEVISE.

Under Rev. Laws, c. 135, § 23, providing that an estate acquired by a testator after the making of his will shall pass thereby in like manner as if possessed by him at the time of the making of the will, a devise of the remainder of testator's real estate after making a devise of designated real estate to devisces named, includes all the realty that the testator may own at the time of his death except that specifically devised, and is a general devise.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 1279, 1938.]

Appeal from Probate Court, Berkshire County; Edward T. Slocum, Judge.

Petition by Mary J. Cooney against Valmore A. Whitaker, administrator, for the marshaling of the assets of the estate of Jeremiah Broderick, deceased, testator, for the payment of the debts of his estate. From a decree directing the marshaling of the assets, Jeremiah M. Broderick and others, devisees under the will of the testator, appeal. Affirmed.

C. J. Parkhurst, for appellants. H. C. Joyner, for respondent.

KNOWLTON, C. J. The questions of law presented on this record are very simple. No doubt is suggested as to the jurisdiction

of the court to entertain a petition of this kind and make a decree which shall marshal the assets for the proper settlement of the estate. Rev. Laws, c. 162, §§ 2, 3, 5; Lee, Appellant, 18 Pick, 285-289.

There is no dispute that the devise of real estate to the petitioner and her brother, in the first clause of the will, is specific. It is equally clear and undisputed that specific devises and legacies are not to be taken for the payment of a testator's debts until the general legacies and devises are exhausted. Rev. Laws, c. 135, §§ 26, 27; Blaney v. Blaney, 1 Cush. 107-115; Farnum v. Bascom, 122 Mass. 282-286. The only contention of the appellants as a ground for reversing the decree of the probate court is that the devise of real estate to them, in the third clause of the will, is also specific. The language of this clause is as follows: "To my three sons, Jeremiah M. Broderick, James Broderick and P. H. Broderick, all the remainder of my real estate, to be divided equally between them in three equal shares."

The English rule that all devises of real estate are to be regarded as specific is not in force in this state. Blaney v. Blaney, 1 Cush. 107-116; Farnum v. Bascom, 122 Mass. 282-286. Under Rev. Laws, c. 135, § 23, land acquired by a testator after the making of his will may pass by the will, as well as that owned by him at the time of making it. The devise in question in this case included all the real estate that the testator might own at the time of his death, except that specifically devised in the preceding clauses of the will. The clause contains no reference to any particular land. We think it plain that the devise is general, and not specific.

It follows that the land covered by it is. to be applied to the payment of debts before resort is had to the real estate specifically devised, and that the decree of the probate court should be affirmed. Decree accordingly.

(193 Mass. 84)

DANIELS v. CLARKE.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.) GARNISHMENT TRUSTEE PROCESS PENDING ACTION-PLACE OF BRINGING PROCEEDINGS. Rev. Laws, c. 167, § 80, which provides that, at any time during the pendency of an action "upon the commencement of which an arrest or attachment is authorized by law," the court may order "such arrest of the defendant or such attachment of his property by the trustee process," and that such attachment shall be subject to all the provisions of the law relative to attachment on mesne process so far as applicable, permits such an attachment on a special precept from a superior court only. where it is returnable in the county where one or all of the trustees dwell or have their usual place of business, as in case of an original attachment under Rev. Laws, c. 189, § 2.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Garnishment, § 148.]

Appeal from Superior Court, Worcester County.

Action by Augustus Daniels against Henry A. Clarke. Plaintiff appeals from a judgment discharging trustees summoned by special precept for attachment by trustee process. Affirmed.

J. M. Cochran, for appellant. Jos. Bennett, for appellee.

RUGG, J. This is an action of contract commenced in the superior court for the county of Worcester. The plaintiff is described as of Southbridge in the county of Worcester, and the defendant as of Boston in the county of Suffolk. While the action was pending the plaintiff filed a motion, representing that no attachment was made of property of the defendant upon the original writ, and alleging that there were funds due to the defendant from S. D. Loring of Newton, in the county of Middlesex, and Homer Loring of Brookline, in the county of Norfolk, doing business as S. D. Loring & Son at Boston, in the county of Suffolk. Upon this motion a special precept issued, directing the attachment of funds in the hands of S. D. Loring & Son by trustee process. Within the time allowed for appearance to the special precept, said Lorings appeared, and moved to dismiss the special precept, on the ground that neither of the trustees lived or had his usual place of business in Worcester county. Upon this motion judgment was rendered for the trustees against the plaintiff, from which the plaintiff appealed.

*

*

*

The special precept was issued by virtue of the authority conferred by Rev. Laws, c. 167, § 80, which, so far as material to this cause, provides that "at any time during the pendency of an action, * upon the commencement of which an arrest or attachment is authorized by law, the court * may ** order such arrest of the defendant or such attachment of his property by the trustee process, or otherwise, to secure the judgment * * which the plaintiff may obtain in said cause. Such * * attachment shall be subject to all the provisions of law relative to * attachment upon mesne process, so far as applicable." This language plainly permits an attachment to be made during the pendency of an action only of a like kind as the law authorized to be made at its commencement. The word "such" wherever it occurs in this section can have no force or effect unless it refers to the "arrest or attachment" first mentioned in the same section; and the scope of the words as there used is clearly limited to what the law authorized at the "commencement" of the action. But the only attachment by trustee process which can legally be made at the commencement of a suit in the superior court is upon a writ returnable in the county where one or all of the trustees dwell or have their usual place of business. Rev. Laws, c.

189, § 2. It is contrary to the letter, as well as the spirit of the statute, to permit a court to obtain jurisdiction of parties in trustee process under the mask of a special precept, which it cannot acquire directly at the time the action is instituted. As the supplementary process in this action was not returnable in a county in which either or both of the trustees dwelt or had his usual place of business, the motion to dismiss was well founded. Hooper v. Jellison, 22 Pick. 250; Lewis v. Denny, 4 Cush. 588.. Judgment affirmed.

To make a highway safe for travelers, railings are required in cases of bridges, embankments, or causeways forming a part of the highway, and where excavations, deep water, etc., are so near to the line of public travel as to expose travelers to unusual hazards.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, § 486.]

2. SAME-DEFECTIVE HIGHWAYS-INJURY TO NEGLIGENCE ·

TRAVELER CONTRIBUTORY
KNOWLEDGE OF DANGER.

Proof that a traveler on a public highway, injured by a defect therein, knew of the defect and could have observed the danger, is not conclusive proof of contributory negligence, but must be considered by the jury with the other testimony bearing on that issue.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Highways, § 537.]

3. SAME--DRIVING BLIND Horse.

A traveler on a public highway was injured in consequence of the want of a sufficient railing on a bridge forming a part of the highway. The traveler drove a blind horse at the time of the accident. Held, that the question as to how far the blindness of the horse contributed to the accident must be determined in connection with the evidence that, notwithstanding this infirmity, it could be used with safety. 4. SAME-SKILL IN DRIVING HORSE.

The degree of skill with which a horse is being driven, or which may be required under certain conditions, is a question for the jury, in an action for injuries caused by a defect in the highway.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, § 537.]

5. BRIDGES-INJURIES FROM

DEFECTS-CONTRIBUTORY NEGLIGENCE DRIVING BLIND HORSE.

In an action for injuries received by a traveler in consequence of a defective highway, it appeared that the traveler drove, in the daytime, with the reins in one hand, at a slow trot, a blind horse. The horse was gentle and unaccustomed to stumble. The accident occurred while driving over a narrow bridge without suitable railings. Held, that the traveler was not guilty of contributory negligence as a matter of law.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Bridges, § 120.]

Exceptions from Superior Court, Franklin County; John A. Aiken, Judge.

Actions of tort by Rosa B. Cutting against the inhabitants of Shelburne, and by Edward