his bond. Burgess v. Keyes, 108 Mass. 43, 45. But she did nothing of the kind. She took the shares without protest or objection, and kept them for a long time, and in point of fact they were worth their full cost. She accepted them. She did not make it known that she took them on any other terms than those upon which they were offered to her. At least she must be held to have taken them as and for as much as they were worth. Whether, by her acceptance of the shares without objection, she is precluded from afterwards saying that she took them on different terms from those upon which they were offered, or whether she, by taking them, became bound to give credit to him for their actual value at the time, or at such time as she, by reasonable diligence, could have disposed of them, in either case the result is the same. Upon the report the executor is entitled to be credited with the sum of $6,930, invested in the shares. No other question, as we understand the report, is presented for our decision. So ordered.

COMMONWEALTH v. KYNE. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 17, 1894.) CRIMINAL LAW-ADMISSIONS BY DEFENDANTKEEPING INTOXICATING LIQUORS.

1. On a prosecution for keeping intoxicating liquors with intent to sell them, it appeared that, six weeks after the time at which defendant was charged with keeping the liquors, he stated to a United States marshal, who told defendant that he had come to arrest him for selling intoxicating liquors without a United States license, that he "meant to have paid it, and would do so now." When defendant's premises were searched a jug full of whisky was found, which his wife attempted to hide, and also a number of empty jugs. Held, that such statement was competent evidence to show the intent with which the liquor was kept.

2. The exclusion of evidence on the ground that it is too remote is discretionary with the trial judge.

Exceptions from superior court, Worcester county; Elisha B. Maynard, Judge.

Michael J. Kyne was convicted of keeping intoxicating liquors with intent to unlawfully sell them, and excepts. Overruled.

The evidence showed that the defendant, with his wife and family, occupied the middle flat in a three-tenement house in Leicester, near the Worcester line; that about 9 o'clock on the evening of November 29, 1893, the officers of the town searched the premises for liquor; that while conducting the search one of the officers noticed the wife of the defendant, in the presence of the defendant, going down the stairs from the tenement occupied by the defendant, carrying something under her apron; that the officer followed her out of the house, and tried to take from her the article she was carrying; that she tried to prevent the officer, and that he finally took from her a gallon jug full of whisky; that in a building near the house

occupied by the defendant was a saloon in which was a bar or counter; that on July 23, 1893, the officer saw five men go into the saloon, and one man remain outside, talking with the defendant; that on September 19, 1893, the officer saw a crowd of men between the house occupied by the defendant and the saloon; four men were in the saloon, and the defendant was outside; that the defendant had the key of the saloon; that the building occupied by the defendant contained two other occupied tenements; that in the cellar of said building were four compartments, in one of which the officers found nine empty one-gallon jugs and five empty two-gallon jugs. One Howe, a witness called by the government, testified that upon January 15, 1894 (six weeks after the complaint was dated), he went with a United States officer to arrest the defendant for violating the United States internal revenue laws. Against the objection of the defendant, said Howe was permitted to testify as follows (upon the question of intent): "At the time we went to Kyne's house, January 15, 1894, we told him we wanted him for violating the United States revenue laws. He asked the United States deputy marshal what the complaint against him was for. The deputy replied it was for selling intoxicating liquors without having paid United States revenue tax. Kyne said: 'I meant to have paid it, and will do it now. How much will the fine be?' The marshal

the

replied, 'Probably twenty dollars.' Kyne counted out the money, and offered it to the deputy marshal, saying, 'Here is your money.' The deputy said he could not take it." The defendant excepted. The defendant asked the court to instruct the jury that upon all the evidence the defendant could not be convicted. The court declined, and the defendant excepted.

F. A. Gaskill, Dist. Atty., for the Commonwealth. Edward J. McMahon, for defendant.

KNOWLTON, J. The only exception argued relates to the admission of evidence of what the defendant said about six weeksafter the time at which he was charged with keeping intoxicating liquors with intent unlawfully to sell them. A deputy marshal of the United States went to his house, and, in reply to a question, told him he was wanted for a violation of the United States revenue laws, in selling intoxicating liquors without having paid a United States reve nue tax. He replied, "I meant to have paid it, and will do it now." He inquired how much the fine would probably be, and counted out the money, and offered to pay it. This was in the nature of an admission that he had been selling intoxicating liquors at some time before. In connection with the other evidence against him. it was competent. Although the time to which the ad-

mission related was not definitely fixed, the statement was made not very long after the time of the alleged illegal keeping, and it was within the discretion of the presiding justice to decide that it was not too remote. Com. v. Finnerty, 148 Mass. 162, 19 N. E. 215; Com. v. Neylon, 159 Mass. 541, 34 N. E. 1078; Com. v. Hurley, 158 Mass. 159, 33 N. E. 342. The term "intoxicating liquors" must be presumed to have been used in its ordinary sense, and to have referred to liquors, the sale of which without a license is unlawful. Exceptions overruled.

HANSON V. LUDLOW MANUF'G CO. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 18, 1894.)

INJURY TO EMPLOYE·

DANGEROUS MACHINERY— EMPLOYER'S DUTY TO GIVE WARNING.

Plaintiff was 17 years old; had worked in a sawmill when 12 years old, and had been for two years in defendant's mill as a spare hand, and four months in the room where he was hurt, and for a day and one-half he had been sawing logs. The logs, being too long for the saw, were partially cut, and pushed back of the saw, whence plaintiff took them to finish the work on them; and, while plaintiff was removing a partially cut log the saw threw it upward, causing plaintiff's hand to come in contact with the saw. Held, that whether the tendency of the saw to throw upward any object touching it at the back was such a latent danger as defendant was required to warn plaintiff against was for the jury.

Exceptions from supreme judicial court, Hampden county.

Action by Hanson against the Ludlow Manufacturing Company for personal injuries. Judgment was rendered for defendant, and plaintiff excepts. Exceptions sustained.

J. M. Ross, for plaintiff. Gillitt & McClench, for defendant.

BARKER, J. The particular danger of which the plaintiff contends that he should have been warned arose from the fact that objects which come in contact with the rear of a circular saw when it is in operation may be suddenly and forcibly thrown upward and forward. The saw teeth, which at a given instant are just above the table at the back of the saw, have a rapid upward and forward motion, which tends to carry with them objects which they touch, and such objects may be so thrown as to fall upon the front of the saw. The plaintiff was sawing boxwood logs into blocks about one inch and a quarter thick, and some of the logs were so large that the saw would not entirely sever them. These he took from the table by moving them transversely upon it behind the saw until he could bring them forward, when, with a hatchet, he detached the partially severed block. A log which he was thus manipulating behind the saw touched it, and was thrown suddenly for

ward, carrying the plaintiff's hand, which' fell upon the saw and was hurt. While there may have been other and perhaps safer ways of doing his work, the evidence tended to show that he had but little experience in cutting the blocks, and also that this method was approved by his foreman; and we cannot, as matter of law, say that in using it the plaintiff was not in the exercise of due care. The general danger of contact with a circular saw in operation is of course obvious. But the particular danger by which the plaintiff was hurt is not one which is apparent. The saw teeth move with such velocity that they are indistinguishable. Objects which come in contact with the front of the saw in its ordinary use are not thrown upward, but by its action are held in contact with the table. The fact that objects which touch the opposite side of the saw will be affected in a different manner, and one attended with danger, although easily understood from explanation, and readily learned by experience, is not of itself plain and obvious, but is one of those obscure dangers of which an employer should give warning, if he has reason to suppose that a workman who may encounter it in his work does not know of this action of the saw, and is ignorant of this particular danger. The plaintiff was of sufficient age and experience to understand and appreciate all the obvious dangers of his work. He was 17 years and 3 months old; had carried sawdust in a Swedish sawmill when 12 years of age, and was familiar with machinery, having been employed for more than 2 years in the defendant's mills as a spare hand in the weaveroom and otherwise; and for 4 months he had worked in the room where he was hurt, much of that time sawing boards upon the table on which this saw was, and using it in sawing boards, and he had been sawing the boxwood logs for a day and a half when the accident occurred. But there was no direct evidence that his previous work had required him to move objects back of the saw, or that he had before seen such operations; and he testified that no one had told him of this particular danger, that he did not know of it, and that he was ignorant that if he hit the saw with the log as he moved it on the table behind the saw the log might be thrown, and his hand thrown off it, and be liable to fall upon the saw. He also said that he did not like to draw the log back of the saw, and that he was afraid of the saw all the time, and afraid he should be hurt. While he could not contend that he did not know that his hand would be injured by contact with the saw, nor that he was engaged in work that he did not know was more than ordinarily dangerous, there was room for the jury to find that he did not voluntarily place his hand upon the saw, and that he was ignorant, and, in the exercise of due care and forethought, might not have known that the log,

if it hit the saw, might carry his hand upon | it. If the case had been left to the jury, they might, perhaps, have well found, from all the evidence, that, notwithstanding his denial, he did know of the action of the saw upon objects touching it in the rear, or that, in the exercise of reasonable diligence, he should have known it. But it cannot be said that there was no other reasonable inference from the evidence, and it was a question for the jury whether the defendant ought to have warned him of this danger.

We do not discuss the question whether a breach of the defendant's duty to use due care to furnish safe machinery was shown, as the principles of law to be applied upon that branch of the case are well settled, and the evidence at a new trial is not likely to be identical with that now stated. tions sustained.

Excep

COMMONWEALTH v. REED. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1894.)

INTOXICATING LIQUORS CRIMINAL ProceedingPREVIOUS JUDGMENT ON SEIZURE-EVIDENCE.

1. Where intoxicating liquor is seized, and a person not named in the complaint appears and claims title thereto, a judgment ordering a return of the liquor to the claimant is not conclusive as to the intent with which it was kept by him.

2. A person is guilty of keeping a building for the unlawful sale of liquor who knowingly permits another person to keep liquor therein for such purpose, though he himself does not intend to make any sales.

Exceptions from superior court, Worcester county; Elisha B. Maynard, Judge.

Samuel Reed was convicted of keeping a building for the illegal sale of liquor, and excepts. Overruled.

On the trial it appeared by the record of the first district court of Northern Worcester, which was admitted without objection, that upon complaint made to said court on the 31st day of December, 1892, certain liquors therein named were on the 18th day of June, and are still, kept by the defendant and one Ellen N. Spencer upon the premises alleged in this complaint to be illegally kept by the defendant, Reed. A warrant issued. That, under the warrant issued on this complaint, 11⁄2 quarts of whisky in two bottles were found and seized upon said premises. That notice duly issued to Samuel Reed and Ellen N. Spencer and all other persons claiming an interest in said liquors to appear and show cause why said liquors should not be forfeited. Said notice was returned to court on the return day of said notice. That Webster Kendall appeared by counsel, and claimed the said liquors. That on the 18th day of January, 1893, a hearing was had, and the court found that the said liquors were the property of said Kendall, and ordered their return to him, which on the 19th of said January was done.

The Attorney General, for the Commonwealth. Warren H. Atwood and James A. Stiles, for defendant.

ALLEN, J. The judgment in the seizure case determined conclusively against the commonwealth that the liquors were not kept or deposited by the defendant and intended for sale by him contrary to law, and that Kendall was the owner thereof. But there was no determination and no trial of the question whether Kendall kept them with an intent to sell them in violation of law. Kendall was not named in the complaint. No charge was made against him. He appeared, as authorized by statute, to defend his title to his property. The person believed to be the owner, possessor, or keeper of the liquors, intending to sell the same contrary to law, must be particularly set out, by special designation, both in the complaint and in the warrant; and the offense must be fully, plainly, and substantially described in both. Pub. St. c. 100, §§ 30, 32. Any other person claiming an interest in the liquors and vessels seized may appear, and make his claim verbally or in writing, and a record of his appearance is to be made, and he is admitted as a party on the trial, becomes liable to costs if he fails, and has a right of appeal. Id. §§ 37, 40, 41. Nevertheless, though he thus becomes a party for some purposes, there is no complaint or charge against him, except indirectly, that the property which he claims is kept or deposited with unlawful intent by somebody else. The proceedings are in their nature criminal, and no charge of crime is made against him, and no criminal charge can be tried without a complaint in writing. Fisher v. McGirr, 1 Gray, 1, 29, 35, 42, 43. In Com. v. Intoxicating Liquors, 122 Mass. 8, it was said that the claimant who appears becomes a party as defendant in the prosecution, who is to answer the charges in the complaint. The language of the court referred to a claimant who was charged in the complaint as being the keeper of the liquors, and is not fully applicable to a claimant who is not named in the complaint.

The judgment in the seizure case is conclusive against the government only as to those facts which were necessarily involved therein. Burlen v. Shannon, 99 Mass. 200; Sly v. Hunt, 159 Mass. 151, 153, 34 N. E. 187; Com. v. Ellis, 160 Mass. 165, 35 N. E. 773. Kendall's intention, whether lawful or unlawful, was not in controversy. The question of his title was the only one tried, as to him. This being found in his favor, he was entitled to have his property delivered to him, unless it was kept by Reed with unlawful intent. If the complainants wished to charge Kendall with keeping it with an unlawful intent, they should have made that averment in a formal way, in a new complaint. On the trial of a complaint against intoxicating liquors, no judgment of forfeiture can be rendered unless it is proved that the liquors

seized, or some part thereof, were owned or kept or deposited by the person charged in the complaint. An illegal intention on the part of any other person is not charged or put in issue, and cannot be tried; but if such other person appears as claimant, and maintains his claim successfully, it tends to nega. tive the charge in the complaint. It is consistent with the former judgment that Kendall may have intended to sell the liquors unlawfully in the defendant's tenement; and, under the instructions of the court, the jury have found that the defendant was guilty of keeping his tenement for the illegal sale or keeping of liquors. This finding was warranted by proof that he kept his tenement for the purpose of having it used by Kendall for the illegal keeping and sale of liquor, although he did not intend to make any sale himself. Com. v. Lynch, 160 Mass. 298, 35 N. E. 854. The court, therefore, was right in refusing to give the ruling requested. Exceptions overruled.

SAWYER et al. v. LEVY et al. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 18, 1894.) INSOLVENCY-NONRESIDENT DEBTOR-PReferen

CES.

1. Insolvency proceedings cannot be taken against a nonresident debtor.

2. A preference given by an insolvent debtor to a bona fide creditor cannot be avoided by an attaching creditor.

Exceptions from supreme judicial court, Hampden county.

Action by Joseph Sawyer and others against Abraham Levy and others. Judgment was rendered in favor of defendants, and plaintiffs except. Exceptions overruled.

Gillett & McClench, for plaintiffs. T. M. Brown, for adverse claimant Slater.

ALLEN, J. The assignment by the defendants to Slater was no doubt a preference which might be avoided by assignees in insolvency if the defendants were subject to our insolvent laws. Pub. St. c. 157, § 96. But no proceedings in insolvency could be taken against them by reason of their nonresidence. A preference given by an insolyent debtor to a bona fide creditor cannot be avoided by an attaching creditor, whether the form of preference which is adopted is a general assignment for the benefit of such creditors as should assent thereto, or an assignment for the benefit of certain specified creditors, or an assignment directly to a single creditor; otherwise it would simply amount to giving a preference to the attaching creditor, instead of to the creditor or creditors selected by the debtor. This has often been adjudged. National Mechanics' & Traders' Bank v. Eagle Sugar Refinery, 109 Mass. 38; Banfield v. Whipple, 14 Allen, 13; Train v. Kendall, 137 Mass. 366; Bank v. Smith, 133 Mass. 26. Exceptions overruled.

1. Testator gave to his wife all his personal and real estate, "to have and to hold for her use and benefit during her natural life, with the right to dispose of the same by gift or will at her decease," and directed that, if she died without a will or any conveyance of said estate, then it should be divided, etc. Held, that the wife took only a life estate, with a power of disposition, and not an estate in fee.

2. Questions as to the admission of evidence by an auditor cannot be raised by objec tions to the auditor's report at the trial, and afterwards filed, but only by motion to recommit the report for amendment before trial.

Exceptions from superior court, Berkshire county; Albert Mason, Judge.

Action by A. Chalkley Collins, administrator with the will annexed of Norman Kellogg, deceased, against Theodore C. Wickwire, administrator of the estate of Caroline M. Kellogg, deceased. There was a judgment overruling exceptions to an auditor's report, and a finding for plaintiff. Defendant excepts. Exceptions overruled. A. Chalkley Collins and Frank H. Cande, for plaintiff. E. M. Wood and F. H. Wright, for defendant.

KNOWLTON, J. The fundamental question in this case is whether the plaintiff's intestate, Caroline M. Kellogg, took an absolute estate in fee simple in the property given her in the first clause of the will of her husband, Norman Kellogg, or whether she had only a life estate with a power of disposition. The language of the material part of the will is as follows: "First. I give and devise to my beloved wife, Caroline Mason, all my personal and real estate, to have and to hold for her use and her benefit during her natural life, with the right to dispose of the same by gift or will at her decease. Second. I direct that should she decease without will or testament or any actual conveyance to others of the right of said estate at her decease, that then the real estate or its value shall be divided as follows, namely," etc. The defendant invokes the wellestablished principle that where a will gives an absolute ownership of property, with full power of disposition, a limitation over is void, because it is inconsistent with the absolute title given to the first devisee. Ide v. Ide, 5 Mass. 500; Burbank v. Whitney, 24 Pick. 146; Gifford v. Choate, 100 Mass. 343; Perry v. Cross, 132 Mass. 454; Kelley v. Meins, 135 Mass. 235; Ramsdell v. Ramsdell, 21 Me. 293; Jackson v. Bull, 10 Johns. 18, Trustees, etc., v. Kellogg, 16 N. Y. 83; Van Horne v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771. On the other hand, in this state, and generally elsewhere, this principle is held not to be applicable where the will purports to give only a life estate to the first

taker, with merely a power of disposition of the remainder as a separate interest. In such a case, if the power is executed, the property passes under the original will, through the execution of the power, to the person designated; and, if it is not executed, it remains to be affected by the other provisions of the will, or to pass as undevised estate of the testator. Welsh v. Woodbury, 144 Mass. 542, 11 N. E. 762; Chase v. Ladd, 153 Mass. 126, 26 N. E. 429; Kent v. Morrison, 153 Mass. 137, 26 N. E. 427; Kelley v. Meins, 135 Mass. 231; Joslin v. Rhoades, 150 Mass. 301, 23 N. E. 42; Kuhn v. Webster, 12 Gray, 3; Burleigh v. Clough, 52 N. H. 267; Ramsdell v. Ramsdell, 21 Me. 293. In a case of this kind it is often difficult to discover the intention of the testator, and the case now before us is by no means clear. The terms of the limitation of the wife's estate, "to have and to hold for her use and her benefit during her natural life," describe an estate which terminates at her death; and the words which follow, "with the right to dispose of the same by gift or will at her decease," are appropriate to create a mere power of appointment or designation, as distinguished from an ownership. There is nothing in any other part of the will which calls for a different construction of this language. The second clause refers to the "right of said estate at her decease" as an interest or estate by itself, and directs the disposition to be made of it in case the widow should decease without executing her power to dispose of it by will or by gift in her lifetime. Considering all the language together, we are of opinion that the superior court rightly ruled that the will gave her merely a life estate with a power of disposition.

The defendant presented at the trial, and afterwards filed, a writing entitled "Defendant's Objections to Auditor's Report," which begins as follows: "The defendant objects to the allowance of the report of the auditor for the following reasons." Then follows a statement of two reasons, both of which rest solely upon the alleged incompetency of evidence admitted at the hearing before the auditor. The auditor's report was introduced, but no motion was at any time made to recommit it, and no requests were made for rulings in regard to the effect to be given to any of the evidence reported, or to any of the statements contained in it. The auditor found for the plaintiff, and the defendant excepted to the refusal to sustain his objections to the report, and to a ruling that the auditor's report was sufficient to support a finding for the plaintiff. The questions in regard to the admission of evidence by the auditor cannot be raised by the defendant in this way. These objections should have been raised by a motion to recommit the report for amendment before the trial. Kendall v. May, 10 Allen, 59; Fair v. Insurance Co., 112 Mass. 320; Briggs v. Gilman, 127

Mass. 530; Eagan v. Luby, 133 Mass. 543. So far as questions of law were apparent on the face of the report, and were founded on facts or evidence reported by the auditor, the defendant might have asked for rulings in regard to them, and the court might have ruled in regard to the effect to be given to different parts of the report. But as was said by Chief Justice Gray in Briggs v. Gilman, 127 Mass. 530: "An objection to a portion of the evidence upon which the auditor has based his conclusions cannot be taken as matter of right except by a motion to recommit the report to the auditor before the trial. To allow such an objection to be taken for the first time at the trial, as a ground for rejecting the whole report, and proceeding to trial without it, would defeat the purpose of the statute." Exceptions overruled.

HUBBARD v. BOSTON & A. R. CO. (Supreme Judicial Court of Massachusetts. Oct. 17, 1894.)

RAILROAD COMPANY · LIABILITY FOR DEATH AT CROSSING-CONTRIBUTORY NEGLIGENCE.

1. The evidence showed that deceased was going north on a highway which met defendant's track at an angle of 40 degrees; that in this angle, on the west of the highway, and south of the tracks, and extending to within nine feet thereof, was a ledge of rock, shutting off from the highway all view of the tracks to the west until near the crossing; that deceased stopped his horses until a freight train passed, and then started to cross, at the time standing in his wagon, looking to the west, and listening for a train; and that he was struck by an express train from the west, which he could not see and did not hear. Held, that it was a question for the jury whether deceased was negligent.

2. Where a crossing is exceptionally dangerous, owing to the fact that the highway is shut off from a view of the tracks, and the highway is much used, the jury may find the railroad company negligent in not providing a gate and a flagman.

Exceptions from superior court, Berkshire county; J. B. Richardson, Judge.

Action by Caroline M. Hubbard, executrix, against the Boston & Albany Railroad Company, to recover damages for injuries causing the death of William L. Hubbard. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

A. J. Waterman and John F. Noxon, for plaintiff. M. Wilcox and C. E. Hibbard, for defendant.

KNOWLTON, J. This bill of exceptions presents two questions: First, whether there was evidence that the plaintiff's testator was in the exercise of due care; secondly, whether there was evidence of negligence on the part of the defendant in failing to provide a gate or a flagman at the crossing to warn travelers of the approach of trains. The place where the accident happened was exceedingly dangerous. The railroad at that