and the presiding judge said: “This is ad structions and not excepted to by either mitted de bene—the authority he is going party." to show later." Thereupon the witness testi The defendants now further object that fied that McNaughton stated in answer to a McNaughton could not have testified to the question as to the origin of the fire, that he facts stated by him because they were not had sent men from the defendants' factory within his personal knowledge. The question to clear the defendants' land to sow rye, and asked did not call for facts not within his in clearing the land they had started a fire knowledge, and no motion was made to strike and it had got away from them. Another out the answer on that ground. The obwitness, Rush by name, one of the two men jection cannot now be raised. See Packer v. sent by McNaughton, was allowed to testify Thomson-Houston Electric Co., 175 Mass. 496, against the objection and exception of the 56 N. E. 704. Apart from that it appears defendants that McNaughton told him to go at McNaughton went to the fire after it to plough the field of the defendants in started, and therefore the only fact testified question, and added that there were some to by him of which he could not be found by pine tops there which he told Rush and the the judge to have had personal knowledge other employé to pick up "and burn them out was the fact that the fire was set by Rush of your way.”

and the other employé. That is stated in the It is plain that the testimony was admit bill of exceptions to be the fact, and thereted under Rev. Laws, c. 175, § 66, and was

fore the defendants were not injured by the competent against the defendants if it was introduction of that evidence. In such a case shown that McNaughton had authority from the exception will not be sustained. them to give the directions in question. ley v. Somerset, 145 Mass. 326, 14 N. E. 166. Whether evidence of the directions given Exceptions overruled. should be admitted first and the authority shown later, or the evidence of the directions

(193 Mass. 30) given should be excluded until McNaughton's

CORBETT V. CRAVEN. authority was shown, was a matter to be de

(Supreme Judicial Court of Massachusetts. cided by the presiding judge in his discretion.

Hampden. Oct. 16, 1906.) It heretofore has been generally laid down

1. JUDGMENT—MATTERS CONCLUDED. that in such a case the exception will not A final decree on the merits, as between be sustained unless it appears from the bill the parties, includes everything that was litiof exceptions that the evidence was not prop

gated or might have been litigated. erly connected. Whitcher v. McLaughlin, 115

[Ed. Note.For cases in point, see vol. 30,

Cent. Dig. Judgment, $s 1104, 1132, 1241.] Mass. 167; Costello v. Crowell, 133 Mass. 352,

2. SAME-JUDGMENTS CONCLUSIVE-DISMISSwhere the earlier cases are collected.

It is more correct to say that the exception A decree, "Bill dismissed," is a final decree will not be sustained unless the fact that the

on the merits, which settles all matter involved. evidence admitted de bene had not been prop

[Ed. Note.-For cases in point, see vol. 30,

Cent. Dig. Judgment, $$ 1032, 1165.] erly connected afterwards was brought to the

3. SAME-MATTERS CONCLUDED-SCOPE OF ISattention of the court and a further ruling

SUES. on that ground asked for. The rule was so Plaintiff in equity sued as the trustee of laid down in Brady v. Finn, 162 Mass. 260, a bankrupt, alleging that the bankrupt owned 38 N. E. 506. See, also, Williams v. Clark,

all the machinery in certain described mills,

and a final decree was entered dismissing the 182 Mass. 316, 65 N. E. 419.

bill. Thereafter such plaintiff brought an action But whichever is the true statement of the for the conversion of a part of the machinery rule, the exception in question must be over

in such mills, and it appeared that the principal ruled.

matter to which the testimony at the hearing

in equity was directed was the property covered The matter was not subsequently brought by certain bills of sale given by the bankrupt to the attention of the court either by a re

to defendant. Held, that the decree in equity quest to strike out the evidence admitted de

was final and conclusive as to the title of all

the property in the mills. bene, or by a request for a ruling that there

[Ed. Note.-For cases in point, see vol. 30, was no evidence for the jury on this point. Cent. Dig. Judgment, $8 1242, 1243, 1251, 1248.]

It is stated in the beginning of the bill of exceptions that "the evidence material to the

Exceptions from Superior Court, Hampden issues raised was as follows." Whatever

County; Loranus E. Hitchcock, Judge. might be thought to be the true construction

Action by William J. Corbett against Mi. of this bill of exceptions if this statement

chael Craven. Judgment in favor of plainstood alone, it is plain from the concluding

tiff, and defendant brings exceptions. Exstatement of the bill that the defendants did ceptions sustained. not raise the question of the sufficiency of C. T. Callahan, for plaintiff. Chas. H. McNaughton's authority. The concluding Beckwith, for defendant. statement is as follows: "The question of McNaughton's agency and authority to di KNOWLTON, C. J. This is a suit for the rect men to set fire to the brush on the lot conversion of certain machinery. The queswas submitted to the jury under proper in tion presented by the bill of exceptions is


whether the plaintiff is barred by a former by the bankrupt, he charged, "that later, in decree for the defendant in a suit in equity. the years 1883, 1885 and 1891, Michael CraThis suit was brought by the person from ven claims that the property was conveyed whom the present plaintiff took his title pen to him on the payment of certain amounts." dente lite, and the decree is binding not only In the fifth clause he charged "that the said upon the parties to it, but upon their privies. Michael Craven did not make the purchase There is no dispute that the present plain of any of the personal property above mentiff is affected by it as the plaintiff in that tioned," and that his alleged title was fraud. suit would have been if he had not parted ulent as against creditors. with his title. Sawyer v. Woodbury, 7 Gray, The defendant's answer was an admission 499-502, 66 Am. Dec. 518; Borrowscale v. "that he claims to be the owner of certain Tuttle, 5 Allen, 377; Haven v. Adams, 8 Al machinery, tools and manufacturing implelen, 363. The decree was "Bill dismissed," ments located in the New York Mills, and all which is a final decree upon the merits, that the machinery in the Bigelow Street Mills, settles forever all matters involved in the excepting,” etc., “as alleged in the third parasuit. Snell v. Dwight, 121 Mass. 348; Foote graph of plaintiff's bill, and says he became v. Gibbs, 1 Gray, 412.

the owner thereof by purchase from said If the question were, “What is the effect James Connor in the years 1883, 1885 and of the judgment in a collateral proceeding?" 1891." The other admissions of the answer the case would be different, and the answer are immaterial, and there was a denial of all would be, “Only to settle such matters as

allegations not expressly admitted. In his were actually tried and adjudicated.” But prayer for relief the plaintiff asked, among as a final disposition of the case, a judgment other things, that the title to all this personal on the merits includes everything that was

property be decreed to be in him. litigated, or that might have been litigated, Here, then, was an issue including all the in the case brought by the plaintiff before

property referred to in the present action, the court. Foye v. Patch, 132 Mass. 105–

and by a decree dismissing the bill the issue 110; Watts v. Watts, 160 Mass. 464 465, 36 N. was determined in favor of the defendant. E. 479, 32 L. R. A. 187, 39 Am. St. Rep. 509;

It now appears that the principal matter to Butrick, Petitioner, 185 Mass. 107-113, 69 N. which the testimony at the hearing in equity E. 1044. There is nothing in the decision in

was directed was the property covered by Waterhouse v. Levine, 182 Mass. 407, 65 N.

the three bills of sale given by Connor to the E. 822, adverse to this view, although some of defendant. There was other property in the language in the opinion is broader than

these mills which was not included in these the case called for. The cause of action in

bills of sale, which the defendant contends that suit was not the same as that to which

passed to him from Connor, under other the judgment in the former action related,

agreements. In regard to this the jury in but it came into existence after the former

the present action has found for the plaintiff. suit was brought. Although the two suits

But if it was included in the claim made by related to the same transaction, it was com

the bill in equity, the decree in that suit was petent to show that the last was for a cause

final and conclusive as to the title, even if of action which had lately arisen, and which

the parties omitted to distinguish the propcould not be affected by a judgment founded

erty from that described in the bills of sale. on different conditions existing previously.

The language of the bill is plainly inclusive We are, therefore, brought to the question

of it, and there is nothing in the answer which has been most discussed, namely,

that limits the issue tendered by the plaintiff whether the suit in equity included the pres

in the statement of his claim and of the ent cause of action. The plaintiff in equity

defendant's adverse claim. The jury should was the trustee of one Connor, a bankrupt,

have been instructed in accordance with the and he averred in the third clause of his

contention of the defendant, bill “that the said bankrupt owns and has

Exceptions sustained.
located, in the brick building at No. 649
Main street in said Holyoke called the New
York Mills, all the machinery, tools and man-

(193 Mass. 127) ufacturing implements located in said mills,

HANNAN V. AMERICAN STEEL & WIRE and all machinery in the mills situated at the

CO. OF NEW JERSEY. corner of Cabot and Bigelow streets in said

(Supreme Judicial Court of Massachusetts. Holyoke, called the Bigelow Street Mills of

Worcester. Oct. 17, 1906.) the Holyoke Water Power Company, of great

1. MASTER AND SERVANT-INJURY TO SERVANT value, and all of which property is claimed to

-CONTRIBUTORY NEGLIGENCE QUESTION be owned by Michael Craven of Springfield FOR JURY. in said county.” Then followed an exception An employé, operating a wire-drawing maof certain machinery which is immaterial to

chine, found it necessary to stop it, and to do so

he stepped on the treadle, and the bolt which this case. The present suit is to recover for attached the treadle to the leader's broke, ina conversion of a part of the machinery in juring him. While standing on the treadle, he these mills. In the fourth clause, after an

used all the exertion he possessed to put down averment in regard to the purchase “of all

the treadle and stop the machine. He jumped

up and down on it to force it down. He weighed of the above described personal property" about 150 pounds. Held, that he was not as

a matter of law guilty of contributory negli stopping the machine, and we cannot say as gence.

matter of law that the plaintiff used unusual 2. SAME-DEFECTIVE APPLIANCES—EVIDENCE

or unreasonable force in his attempt. SUFFICIENCY. Proof that a machine broke, injuring an

question was for the jury. employé while operating it in a reasonable way The difficult question is whether there was and for the use for which it was intended, is evidence enough to warrant a finding of negevidence that the machine was defective.

ligence on the part of the defendant. The [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $ 955.]

fact that the bolt broke in the manner de

scribed from the use for which it was in3. SAME-NEGLIGENCE-QUESTION FOR JURY. In an action by an employé for injuries

tended (provided the jury found that the received while attempting to stop a machine plaintiff was using the machine in a reasonhe was operating, evidence examined, and held

able way) was evidence that it was defective to require the submission to the jury of the questions whether the break in the machine was

and unsafe. The defendant was charged with due to its defective condition, and whether the

the duty to exercise reasonable care to keep defect might and should have been discovered its machinery in a safe condition for use. by the employer by proper inspection.

The machine had been used 14 years. There [Ed. Note.--For cases in point, see vol. 31,

is no evidence as to when this belt was Cent. Dig. Master and Servant, $$ 1016, 1017.)

put in, or whether it was ever inspected. Exceptions from Superior Court, Worcester There was evidence that there was an old County; Edwd. P. Pierce, Judge.

flaw at the point of breakage, but as to the Action in tort by John F. Hannan against nature of the flaw the evidence was somethe American Steel & Wire Company of New what vague and conflicting. One Hickey, Jersey for injuries sustained by reason of the called by the plaintiff, testified that he "saw alleged negligence of defendant. The court the ends that were broken.

* The directed a verdict for defendant, and plaintiff piece appeared to me a little flaw like, a bit brings exceptions. Sustained.

rusty where it broke. The rest appeared J. W. Sheehan, for plaintiff. Frank B.

pretty fresh. One part looked fresh and Smith, T. H. Gage, Jr., and Frank F. Dresser,

one part looked rusty. About a quarter of an for defendant.

inch as near as I can figure it. Part of it

looked fresh and part of its looked as though HAMMOND, J. The plaintiff, who was an

not a fresh break. The part that looked as experienced workman and had worked on

though it was not a fresh break was the midthis machine 14 years, testified that "in roll

dle of the break. With reference to the ciring when wire is rolled hot, the wire gets

cumference it was the middle of the bolt. twisted sometimes, and then sometimes a

Where it broke there was a piece that was kink comes in the wire and I have to step

rusty that was broken before. I could not on the treadle to stop the machine. If I

very well tell where it was with regard to do not stop the machine,

the kink

the outside circumference of the bolt." When would go as far as the die, and when it

asked whether this would come next to the gets to the die of course will break and won't

surface or inside the surface he answered, go through, and sometimes it will injure the

"Inside of it," and when asked if it came to die" so that repairs have to be made. As to

the surface he said, “Yes, it came up all right the circumstances of the accident he testified there, the rusty part. It extended a quarter as follows: "This kink was coming towards

of an inch from the surface." the die and I (saw] * * the wire com

One Burns, also called by the plaintiff, ing off the reel, and I stepped on the treadle

testified: "I could see of course that the bolt to stop the machine.

To save the was kind of rusty where the break was, what wire I stepped on the treadle to stop the ma

you would call a flaw. This was right where

it broke. chine, and I got on both feet using all the

* * I couldn't say with reexertion I was possessed of to put down the

gard to the circumference of the end of the treadle, but the treadle usually went down bolt whether it was in the surface or in from like a spring board, but this time the bolt the surface. I couldn't say how deep it was. which attached the treadle to the leaders

Should say it came pretty close to broke, and I came on both heels on the floor. it [the surface].” The “old and rusty piece” I came down on the floor unexpected

was "inside where the break was. You might ly, using all the exertion I could to stop the say almost to the surface. You could see machine." On cross-examination he testified, a rusty place.” “Did not notice" "whether “I stepped on the treadle first with one foot

the rust extended to the surface." and then brought up the other and stepped The plaintiff testified on his first examinaon it.

I had to put on one foot before I tion that a few minutes after the accident could put on the other. I then had to jump

he showed the bolt to Watson the foreman up and down to force it down. I weigh and “called his attention to the flaw on both probably a hundred and fifty-five pounds. sides of the bolt,” and, upon being recalled While I was jumping the treadle broke.” after the other witnesses had left the stand,

It is argued by the defendant that the said that the flaw was “located on the surplaintiff was careless in subjecting the trea face, extending from the surface in * dle to such a violent and unusual strain as he should say about an eighth of an inch, describes. But there was a necessity for

very nearly half around the sur




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 V. 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


Under Rev. Laws, c. 135, $8 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 devisees 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.

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.


Rev. Laws, C. 167, S80, 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, sce vol. 24, Cent. Dig. Garnishment, § 148.]

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

Appeal from Superior Court, Worcester 189, § 2. It is contrary to the letter, as well County.

as the spirit of the statute, to permit a court Action by Augustus Daniels against Henry to obtain jurisdiction of parties in trustee A. Clarke. Plaintiff appeals from a judg process under the mask of a special precept, ment discharging trustees summoned by spe which it cannot acquire directly at the time cial precept for attachment by trustee pro the action is instituted. As the supplementcess. Affirmed.

ary process in this action was not returnable J. M. Cochran, for appellant. Jos, Bennett,

in a county in which either or both of the for appellee.

trustees dwelt or had his usual place of busi

ness, the motion to dismiss was well founded. RUGG, J. This is an action of contract

Hooper V. Jellison, 22 Pick. 250; Lewis v. commenced in the superior court for the coun

Denny, 4 Cush. 588.. ty of Worcester. The plaintiff is described

Judgment affirmed. as of Southbridge in the county of Worcester, and the defendant as of Boston in the coun

(193 Mass. 1) ty of Suffolk. While the action was pending

CUTTING V. INHABITANTS OF SIIELthe plaintiff filed a motion, representing that

BURNE (two cases). no attachment was made of property of the

(Supreme Judicial Court of Massachusetts. defendant upon the original writ, and alleg

Franklin. Oct. 16, 1906.) ing that there were funds due to the defend

1. HIGIIWAYS — SAFETY ERECTION OF RAILant from S. D. Loring of Newton, in the county

INGS. of Middlesex, and Homer Loring of Brookline, To make a highway safe for travelers, railin the county of Norfolk, doing business as S.

ings are required in cases of bridges, embankD. Loring & Son at Boston, in the county of

ments, or causeways forming a part of the high

way, and where excavations, deep water, etc., Suffolk. Upon this motion a special precept are so near to the line of public travel as to issued, directing the attachment of funds in expose travelers to unusual hazards. the hands of S. D. Loring & Son by trustee

[Ed. Note.-For cases in point, see vol. 25,

Cent. Dig. Highways, § 486.] process. Within the time allowed for appearance to the special precept, said Lorings


TRAVELER --- CONTRIBUTORY NEGLIGENCE appeared, and moved to dismiss the special

KNOWLEDGE OF DANGER. precept, on the ground that neither of the Proof that a traveler on a public highway, trustees lived or had his usual place of busi

injured by a defect therein, knew of the defect ness in Worcester county. Upon this motion

and could have observed the danger, is not con

clusive proof of contributory negligence, but judgment was rendered for the trustees must be considered by the jury with the other against the plaintiff, from which the plain testimony bearing on that issue. tiff appealed.

(Ed. Note. For cases in point, see vol. 25, The special precept was issued by virtue

Cent. Dig. Highways, $ 537.) of the authority conferred by Rev. Laws, c.

3. SAME-DRIVING BLIND HORSE. 167, § 80, which, so far as material to this

A traveler on a public highway was injured

in consequence of the want of a sufficient railcause, provides that "at any time during the ing on a bridge forming a part of the highway. pendency of an action,

The traveler drove a blind horse at the time of commencement of which an arrest or attach

the accident. Held, that the question as to how

far the blindness of the horse contributed to ment is authorized by law, the court *

the accident must be determined in connection * may * * order such arrest of the de with the evidence that notwithstanding this fendant or such attachment of his property

infirmity, it could be used with safety. by the trustee process, or otherwise, to se


The degree of skill with which a horse is the judgment * * which the

being driven, or which may be required under plaintiff may obtain in said cause.

certain conditions, is a question for the jury, Such

attachment shall be subject in an action for injuries caused by a defect in to all the provisions of law relative to

the highway. attachment upon mesne process, so

[Ed. Note. For cases in point, see vol. 25,

Cent. Dig. Highways, $ 537.) far as applicable." This language plainly

5. BRIDGES-INJURIES FROM DEFECTS-CONpermits an attachment to be made during the

TRIBUTORY NEGLIGENCE DRIVING BLIND pendency of an action only of a like kind as HORSE. the law authorized to be made at its com

In an action for injuries received by a mencement. The word "such" wherever it

traveler in consequence of a defective highway,

it appeared that the traveler drove, in the dayoccurs in this section can have no force or

time, with the reins in one hand, at a slow effect unless it refers to the "arrest or at trot, a blind horse. The horse was gentle and tachment” first mentioned in the same sec

unaccustomed to stumble. The accident occurtion; and the scope of the words as there

red while driving over a narrow bridge without

suitable railings. Held, that the traveler was used is clearly limited to what the law au not guilty of contributory negligence as a matthorized at the "commencement of the ac ter of law. tion. But the only attachment by trustee [Ed. Note.--For cases in point, see vol. 8, process which can legally be made at the Cent. Dig. Bridges, $ 120.] commencement of a suit in the superior Exceptions from Superior Court, Franklin court is upon a writ returnable in the county County ; John A. Aiken, Judge. where one or all of the trustees dwell or have Actions of tort by Rosa B. Cutting against their usual place of business. Rev. Laws, c. I the inhabitants of Shelburne, and by Edward


upon the

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