ecutor was to be first taxed to be determined, and as of what date was it to be determined? And we think that it was to be determined as of May 1, 1897, in this case, and in the same manner as the amount for which other taxpayers are to be assessed is determined, namely, by the list which was carried in, or, if a list had not been carried in, then the assessors were to ascertain as nearly as practicable the particulars of the estate for which the plaintiffs were taxable, and to make an estimate thereof at its just value, according to their best information and belief. In case an executor or administrator has been assessed, the amount of such assessment determines the basis of succeeding assessments, unless he brings in a list, and, if there has been a distribution, furnishes the list required by clause 7, § 20, c. 11, Id. If he has not been assessed, there is no basis except that provided in the case of taxpayers generally, which is the list that is required to be brought in as of the 1st day of May, or, if no list is brought in, then such information as the assessors are able to obtain otherwise. And, although the language of clause 7 may be broad enough, perhaps, to include cases where a distribution has taken place before an executor or administrator has been assessed

at all, still, in the absence of any provisions by which the amount for which an executor or administrator shall be assessed in such a case is to be determined, except those relating to taxpayers generally, we think that it could not have been intended that any different rule should be applied to executors or administrators so situated from that applied in the case of other taxpayers. This view is somewhat strengthened by the nature of the amendment made by St. 1894, c. 354, § 1, to section 44, c. 11, Pub. St. In the present case the plaintiffs duly filed a list as required by the notices issued by the assessors, and afterwards, at the request of the assessors, answered all inquiries as to the nature and amount of the personal property left by the testator, and its distribution. We think that, according to the terms of the report, the entry should be: Judgment on the findings for the plaintiffs. So ordered.

1. Pub. St. c. 167, § 77, provides that the party interrogated may require that the whole of the answers to interrogatories propounded upon any one subject-matter inquired of shan be read, if a part of them is read. Held, that where, in a suit on a note, out of 20 interrogatories 12 related to the issue of the genuineness of the signature and other matters, and 8 to the consideration, defendant could not require plaintiff to read the answers to those on the issue of consideration. where the only answers

read were those on the issue of the genuineness of the signature.

2. The reading by plaintiff of the amended answer to the jury, as evidence that counsel, when he drew it, was deceived by his client,comparing it with the testimony of defendant and arguments of defendant's counsel,-is error, under Pub. St. c. 167, § 75, providing that neither the declaration, answer, nor subsequent allegation shall be deemed evidence on the trial, but allegations only whereby the party making them is bound.

3. Comments upon the amended answer, and the fact that it was filed after trial begun, cannot be made, though they are simply a statement of what had taken place in the presence of the jury.

Exceptions from superior court, Suffolk county.

Action by Lemuel E. Demelman against George D. Burton on a promissory note. From certain rulings made on the trial, defendant excepts. Exceptions sustained.

Brandeis, Dunbar & Nutter, for plaintiff. G. W. Anderson and L. M. Child, for defendant.

HAMMOND, J. The declaration was upon a note alleged to have been made by the defendant, payable to his own order, and by him indorsed to the plaintiff. The answer contained several independent defenses, one of which was a denial of the genuineness of the "signature of said note," and another

was that "there was no lawful consideration for the same." Interrogatories were filed by the plaintiff to the defendant. Of these, the first 10 related to the issue as to the genuineness of the signature, the eleventh to the writing of other parts of the note, and the twelfth to the delivery of the note, while the remaining 8 interrogatories related to the consideration. The defendant answered the first 12, but declined to answer the others unless so ordered by the court. Subsequently he answered them. At the trial the plaintiff read the first 10 interrogatories and the answers thereto. The defendant moved that the remaining interrogatories and answers be read. The plaintiff stated that he was willing to read any of the answers to the first 12, and read the eleventh, but he declined to read the answers to the last 8 interrogatories unless so ordered by the court. The court refused to order that these be read. To this refusal the defendant excepted. We think that this action of the court was correct. The practice act originally provided that "the party interrogated shall be entitled to require that the whole of the answers shall be read if any part of them shall be read." This was changed in the following year by St. 1852, c. 312, § 73, so as to read as it now stands in Pub. St. c. 167, § 77,-"The party interrogated may require that the whole of the answers upon any one subject-matter inquired of shall be read if a part of them is read." One of the issues was the genuineness of the signatures, and that was the only "subject-matter inquired of" by the first 10 interrogatories. There was no other inter

rogatory or answer upon that subject-matter. All that the defendant had said upon that was read to the jury. In Churchill v. Ricker, 109 Mass. 209, upon which the defendant relies, it was held that the "subject-matter inquired of" was not the particular fact covered by the interrogatory, "but the matter put in issue by the pleadings and thus inquired of," and that, since one subject-matter put in issue by the pleadings in the case was whether or not the defendant was negligent in leaving open and unguarded a hole in a sidewalk, all the answers of the defendant bearing upon that issue should be read, if any of them were. But this is far short of saying that, if the answers bearing upon only one issue are read, the answers upon all other issues must be read. The "subject-matter inquired of" in these first 10 interrogatories was the matter put in issue by a denial of the genuineness of the signatures, and nothing else.

The bill of exceptions is not very clear respecting the use made of the amended answer in the closing argument of the plaintiff's counsel. The real defense relied upon at the trial was that set up in the amended answer, namely, that the consideration for the note in suit was an agreement on the part of the plaintiff to prove against the estate of the defendant in insolvency certain prior notes held by the plaintiff and indorsed by the defendant, and to vote for the latter's discharge. In the course of the trial the evidence was conflicting as to whether the note was signed and delivered at the Traders' Bank, as claimed by the defendant, or at the plaintiff's office, as claimed by the plaintiff, and whether at the time of the delivery of the note the defendant, as claimed by him, was ignorant that such an agreement was illegal, or, as claimed by the plaintiff, knew that such an agreement was illegal. In his closing argument to the jury the counsel for the defendant virtually admitted that his client was wrong "as to where the note was signed," and, continuing, said that, "if the defendant had testified that the note was signed in the plaintiff's office on February 15th, he [the defendant] would have had a better case and a less troublesome case, and that he [counsel] wished the testimony had been the other way on this point, so far as his duty as attorney was concerned, and argued that even if the conversation before the bank took place on February 7th, and the note was signed in the plaintiff's office on the 15th, this was immaterial." Counsel for the plaintiff, in his closing argument, claimed that a "radical change of position by counsel during the progress of a trial, as to material facts, indicated that his client had deceived him as to the facts, and that there had been such a change of position by counsel for the defendant in the present case; and, in support of this contention, counsel for the plaintiff compared the amended answer, the opening to the jury of counsel for

the defendant, and the direct testimony of the defendant and the witness Hutchinson, on the one hand (in all of which it was stated that the note was given before the defendant was advised of the illegality of the alleged agreement, and that as soon as he was so advised he repudiated that agreement), with the closing argument of counsel for the defendant, on the other hand. In the course of this argument, counsel for the plaintiff proceeded to read the amended answer, to which counsel for the defendant objected. The court overruled the objection, and permitted counsel for the plaintiff to read the answer, to which ruling the defendant duly excepted." While this statement is somewhat indefinite, still we construe the record to mean that the plaintiff's counsel read the amended answer, not simply to indicate the issue raised thereby, but also as evidence that the counsel, when he drew it, was deceived by his client; for he "compared" the allegations of the amended answer with the position of counsel at the close, and he made that comparison in support of the argument he was urging, and in connection with certain other things upon which he relied as evidence in support of his argument. And we are confirmed in that view by the following statement in the plaintiff's brief: "It must be particularly observed that this comment did not in any way treat the answer as evidence, or attribute it to the defendant. On the contrary, it was treated as a pleading, merely, and attributed solely to counsel, who had drawn and filed it in the presence of the jury. The entire comment was upon the attitude of counsel, and his shift of position." And we are still further confirmed in this view by the following language in the charge of the court: "The pleadings are generally drawn by the attor neys in the case, and their clients are not parties to that; and therefore, usually, the parties to the pleadings are not responsible for them, and they are not to be treated as evidence against them, except so far as they authorize them and direct them and have knowledge of them." There would seem to be no reason thus to charge the jury as to the pleadings in a case on trial unless the intent was to allow the jury to use the allegations of the answer as evidence according as they should find that the defendant did or did not know what they were. Pub. St. c. 167, § 75, is as follows: "Neither the declaration, answer, nor a subsequent allegation, shall be deemed evidence on the trial, but allegations only whereby the party making them is bound." See, also, St. 1851, c. 233, § 112; St. 1852, c. 312, § 75. In Walcott v. Kimball, 13 Allen, 460, the history of the legislation upon this statute is given, and it was there said that not only is it improper to use the answer as evidence, but that. since it is not evidence, counsel should not con ment upon it as such in the closing argument. In Phillips v. Smith, 110 Mass. 61,

there was an amended declaration, upon which the cause was tried before a jury. This was different from the first declaration. The original declaration was read to the jury by the defendant, and commented upon in argument as contradictory of the plaintiff's testimony and additional declaration; and it was held by this court that the original declaration "could not be used or commented upon in evidence," and the plaintiff's exception was sustained. The case of Taft v. Fiske, 140 Mass. 250, 5 N. E. 621, closely resembles the case at bar. There the defendant, in offering certain evidence in support of one ground of defense, was met by the objection that that ground of defense was not open to him under his answer, whereupon he sought and obtained permission to file an additional answer, and he filed it during the trial. "The plaintiff's counsel, in closing, argued that the filing of this amendment during the trial showed that the defense so pleaded was a 'put-up' defense, not relied on when the original answer was filed; that its filing during the trial should 'be taken into account; that not one word was said about all this in the original answer'; that the fact that this defense was not set up until the trial was partly through was to be considered,'-with other arguments of a similar nature." The defendant asked the court to rule "that the fact that the defendant amended her pleadings during the trial, setting up an additional or more specific defense, was not a subject of comment, and that 'the fact of such amendment should not influence or affect their judgment upon the facts of the case.'" The judge declined to give it, and the defendant's exceptions were sustained. Devens, J., in giving the opinion, says that: "The plaintiff concedes that the contents of an answer are not the subject of comment, but contends that the fact of its filing may be. This is to draw too nice a distinction. The fact of its filing was perfectly unimportant in the case at bar, except as connected with the contents of the amended answer." And the decision proceeds to show the reasons for the rule, which it is unnecessary here to repeat. In the case at bar it was legitimate for the plaintiff to argue that the defendant had deceived his own counsel as to the facts, and in support of such a position to contrast the opening argument of the counsel for the defendant, and the testimony of the defendant and Hutchinson as to such facts, on the one hand, with the closing argument of the same counsel on the other hand. In so doing he was dealing with the evidence and the conduct of the counsel. But he had no right to comment upon the amended answer or the allegations contained therein, nor upon the fact that it was filed after the trial was begun, nor upon the time of its filing, as having any bearing whatever upon the argument he was making. Nor is it material that the plaintiff was stating only what had taken place in the pres

ence of the jury. The jury, in their deliberation, have no right to consider evidence which is inadmissible, even if they have heard it; nor does the fact that the amended answer was filed in their presence warrant them in considering it, unless otherwise they would be so warranted. In this case the defendant would have been entitled to a ruling that the jury should not consider the allegations of the answer, or the circumstances under which it was filed, as evidence of anything. Taft v. Fiske, 140 Mass. 250, 5 N. E. 621. The use made of the answer, we think, was not proper; and, while it is not stated in the record that the defendant objected to the argument, still it is plain enough that the objection was to the reading of the answer as a part of the evidence, upon which was based the argument that the defendant's counsel had been deceived by his client. We think that the exception to the reading of the answer for this purpose must be sustained. See the cases above cited.

It is unnecessary to consider the other exceptions, as there must be a new trial. Exceptions sustained.

(176 Mass. 391)

EMERSON v. PAINE et al. (Supreme Judicial Court of Massachusetts. Middlesex. June 20, 1900.) EXECUTORS AND ADMINISTRATORS - CLAIMS AGAINST INSOLVENT ESTATE COL LATERAL NOTE-PROOF.

A note given as collateral security for an indorsement on another note may be proved against the insolvent estate of the deceased maker, though the indorsed note was proved by the holder in full against such estate.

Appeal from supreme judicial court, Middlesex county.

Action by one Emerson against, one Paine and another, as executors of the insolvent estate of one Perkins, deceased, to prove a claim on a note. From a finding for defendants, plaintiff appeals. Reversed.

Charles H. Tyler and Owen D. Young, for appellant. G. S. Littlefield and H. R. Skinner, for appellees.

LATHROP, J. Both parties in this case have assumed that the note discounted by the Newton Bank was a renewal of the original note discounted by the Watertown Bank. Assuming it to be such, the only question is whether Emerson, the indorser, having a promissory note given to him as collateral security by Perkins, the maker, and which, by agreement, was to apply to all renewals of the original note, can prove his claim against the insolvent estate of Perkins, who has deceased; the Newton Bank having proved the note discounted by it against said estate in full. We see no reason why the claim cannot be proved. There is nothing in Pub. St. c. 137, relating to the insolvent estates of deceased persons, or in our decisions, to prevent it. The note was given for a valuable

consideration, namely, the lending by Emerson of the credit of his name to Perkins. An action upon it could have been maintained by the holder against the maker in the lifetime of the latter. Hapgood v. Wellington, 136 Mass. 217. And it follows that it may be proved against his estate. Moseley v. Ames, 5 Allen, 163; Bank v. Jefferson, 138 Mass. 111. Emerson does not seek to prove his claim as an indorser, nor does he ask the probate court for an order, under Pub. St. c. 137, §§ 28-30, as the holder of a contingent claim, and the case, therefore, does not come within Cummings v. Thompson, 7 Metc. 132, and French v. Hayward, 16 Gray, 512. Finding reversed.

ENCY.

1. Under St. 1887, c. 270, § 1, providing that a railroad company shall be liable for injuries caused by the negligence of an employé "in charge or control of a switch," a railroad company was liable for negligence of a tower man, whose duty it was to move switches by levers in a tower on signals from the men on the tracks below, in throwing a different switch than directed by a signal, causing an approaching train to run on a wrong track, and collide with a switchman who gave the signal.

2. Where a switchman signaled a tower man, who controlled the manual throwing of all the switches in a railroad yard, to throw a certain switch, and the tower man threw a wrong switch, causing an approaching train to run against the signal man, it was error to direct a verdict for the defendant, though the ground was covered with snow, and a snowstorm was raging, and the signal man failed to go to the foot of the tower, and clear away the snow and ice covering a dwarf switch, which would have shown him that his signal was not obeyed.

3. Where a switchman signaled a tower man, who had manual control of the switches in a railroad yard, to throw a certain switch, and the tower man threw a wrong switch, causing the train to run against the switchman, it was competent to show, in an action for deatů caused thereby, that the train was running faster than was usual for trains at that place, as bearing upon the exercise of due care by deceased.

4. Where a switchman gave a signal by a lantern and shouting the number of the switch to a man in a tower having manual control of the switches in a railway yard, and the tower man threw a wrong switch, causing an approaching train to run against the switchman, it was error to admit the evidence of a nonexpert witness as to how far the switchman's voice could have been heard, the accident having occurred in the midst of a heavy snowstorm, as the jury could judge of the fact from the circumstances.

5. A simple notice to a railroad company, in an action for injuries caused by a negligent throwing of switches by a tower man, to produce its book of rules, was insufficient to warrant the introduction of secondary evidence of the existence of a rule governing the throwing of switches by tower men.

6. In an action, by a mother, as administra

trix of her deceased son, against a railroad, for the negligent killing of decedent, where there was evidence tending to show that the deceased paid all his wages to his mother, which she needed in addition to what her husband could furnish, the question as to whether the mother was dependent on the son for support should have been submitted to the jury.

Exceptions from superior court, Suffolk county; Charles S. Lilley, Judge.

Action by Margaret Welch, administratrix of Richard Welch, deceased, against New York, New Haven & Hartford Railroad Company, for death of intestate. Judgment in favor of defendant, and plaintiff excepts. Exceptions sustained.

S. A. Fuller and G. W. Anderson, for plaintiff. J. H. Benton and Chas. F. Choats, Jr., for defendant.

KNOWLTON, J. The principal questions in this case are whether there was evidence of negligence on the part of the defendant or of any of its servants, and whether there was evidence of due care on the part of the plaintiff's intestate. We think it plain that the tower man, whose duty it was to move the switch, was a person "in charge or control of a switch," within the meaning of St. 1887, c. 270, § 1. Even if another person gave him directions, or exercised supervision over him in such a way as to be in charge of the switch in a broad sense, so that the railroad company might be liable for his negligence in giving or failing to give proper directions, we are of opinion that, situated in the tower as he was, having complete manual control of the switch after receiving signals and orders from one below, his control and charge for the time were of a kind contemplated by the framers of the statute. There was testimony that Welch, the plaintiff's intestate, had a green light, which was used to signal the tower man and the train men, and that the signal for track No. 1 was simply to hold it up. A witness testified that he saw Welch give the signal for track No. 1 to the tower man by holding up his lantern and shouting "On one!" and that he saw the tower man throw up his hand as a signal that he heard. Then, instead of setting the switch for track No. 1, the tower man switched the train on "three house" track. The action of the tower man in throwing up his hand, was an indication that he understood the signal that had been given him, and his further action in moving the switch was equivalent to a representation that he had received the signal, and understood it. The testimony of the witness tended to show that by the motion of his lantern Welch gave the recognized signal for track No. 1, and that he added a shout to the same effect. The jury might have found that the tower man was negligent in acting at all if he did not see and understand the signal, or in setting the switches wrongly if he did understand it. They might have found that the signal was given in such a way that it was negligence in him not to understand it

Al

correctly. His turning the switch in such a way as to send the train on the wrong track was the direct cause of the accident, and we are of opinion that there was evidence for the jury on this part of the plaintiff's case. though Welch was a switchman whose station was at the switches just southerly of the place where he was killed, we do not understand from the evidence that it was his duty to be all the time just at these switches, but only in such close proximity to them as to be able to receive and give signals, and to do the other duties connected with his position. There was a brakeman's house near by, which was intended for his use, and we see nothing to indicate that there was any failure on his part to do his duty properly, or any lack of care up to the time that he came out of the brakeman's house and stepped upon the track where he was struck by the train. It does not appear that it was any part of his duty, when the tower man turned his switch, to examine the dwarf switch signals, which stood a foot or a foot and a half above the ground, to see if the tower man had turned the switch rightly. The evidence was that at the time of the accident these signals were so covered with snow and ice that it was very difficult, if not impossible, to read them. Of course, if at any time he saw a dwarf signal which showed that the tower man had made a mistake, he would endeavor to correct the mistake. A terrible snowstorm was then raging, which some of the witnesses said was the worst of the season. We are of opinion that it was a question of fact for the jury whether, under the circumstances, it was his duty to go to the dwarf signals, and clean off the snow and ice, to see if the tower man had made a mistake. It seems that he was in the performance of his duty in walking away from the brakeman's house across and along the tracks to a place where he could readily receive and give signals, or do anything else that ought to be done while the cars were being put in their intended position, although he was not then going towards the switches. Unless he was negligent in not looking at the approaching cars, and discovering that they were on the wrong track, in time to escape them, there seems to be nothing to control the natural inference from his conduct that he was in the exercise of due care. If the train had been on the track where he had every reason to believe that it was coming, he could not have been injured. With the arrangement of cars on the other tracks as he had just seen them, it was impossible for a train to come on the track where he was walking while the train for which he had given the signal was being switched to track No. 1. He had every reason to suppose that he was in a place of perfect safety. Nothing but the failure of the tower man properly to execute the order which had just been given him could expose him to danger in the place where he was walking between "three house" track and the cattle track. The jury might well find that

a man in the exercise of ordinary care, who had just given a signal to a tower man to send back a train of cars on track No. 1, and who had received from the tower man a response, in acknowledgment of the signal, and who knew that no other train could come upon the "three house" track or the cattle track while the train was being switched upon track No. 1, would think it safe to walk between these two tracks in the belief that the train was being switched in accordance with the signal. In connection with the other facts, the inclemency of the weather was a circumstance of some importance. We think there was evidence of due care on the part of the plaintiff's intestate which should have been submitted to the jury. Upon the question whether Welch was in the exercise of due care, we are of opinion that it was competent for the plaintiff to show that the train was coming much faster than the usual and ordinary rate of speed for cars which are being shifted at that place.

There was no error in the exclusion of the opinion of the witness as to how far Welch's voice could be heard in the storm. The witness was not an expert, and upon a full statement of the conditions the jury could judge whether Welch could have been heard by the tower man.

The judge might well hold that the notice given to the defendant to produce its written rules was insufficient to justify the introduction of secondary evidence.

Although it does not clearly appear how far, if at all, the plaintiff was dependent upon her son for support, there was evidence that for a long time he had given her all his wages, and there was testimony from which the jury might have found that she needed the money to obtain the necessaries of life, beyond that which her husband could furnish, and that she was dependent on this son for support, within the meaning of the statute. See Houlihan v. Railroad Co., 164 Mass. 555, 42 N. E. 108; Daly v. Iron Co., 155 Mass. 1-5, 29 N. E. 507; McCarthy v. Supreme Lodge, 153 Mass. 314, 26 N. E. 866, 11 L. R. A. 144. Exceptions sustained.

(176 Mass. 369)

EAVES V. ATLANTIC NOVELTY MFG. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1900.) MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE OF SUPERINTENDENT. Plaintiff operated a machine in defendant's factory, and while so employed was ordered by the superintendent to start the machine. The superintendent had reason to know that plaintiff might understand the order as a command to see if the machine was all right, by resuming work. She so understood it, and was justified in such understanding. While starting the machine, in the exercise of due care, plaintiff's hand was thrown from its usual place by the unusual shaking of the machine and injured. Held that, under the circumstances, the order of the superintendent was negligent, and plaintiff might recover.