sample and the defendant falsely represented that the tires exhibited were a fair sample of the entire lot.

Exceptions overruled.

JULIUS CURLIANIS vs. PATRICK J. REID & another.

Norfolk. January 17, 1917. - March 1, 1917.

Present: RUGG, C. J., LORING, BRALEY, DE COURCY, & CROSBY, JJ.

Conversion. Waiver.

In an action for the alleged conversion of a horse belonging to the plaintiff, which he entrusted to the defendant to sell for a certain price, the defendant agreeing to make no charge for board in consideration of the plaintiff's agreement to let him use the horse in his business, there was evidence that the plaintiff had made many demands for the return of the horse without obtaining it and that at all times he had insisted on such return, and the presiding judge refused to rule at the request of the defendant that there had been a waiver by the plaintiff of his demand for the return of the horse. Held, that the refusal of the judge was right.

TORT for the alleged conversion of a horse belonging to the plaintiff, with originally a count in contract, which was waived by the plaintiff at the trial. Writ dated September 23, 1912.

In the Superior Court the case was tried before King, J. At the close of the evidence, which is described in the opinion, the defendants asked the judge to rule that there had been a waiver of the demand by the plaintiff for the return of the horse. The judge refused so to rule, and the defendants excepted to the refusal.

The judge instructed the jury that there was evidence of repeated demands for the return of the horse made by the plaintiff; that it was for the jury to say on all the evidence whether or not there had been a waiver of demand; whether the February, 1912, interview between the parties was before February 10, which was the date of the alleged sale at Worcester, or on February 20; and whether the plaintiff at any interview in February had waived his demand; that, if the jury were satisfied on all the evidence that the defendants had practised deception or had resorted to misrepresentation or untruthful statements in meeting the demands made by the plaintiff for the return of the horse, there could be no waiver

based upon any assent, implied or expressed, resulting from such deception or misrepresentation. There was no exception to any part of the judge's charge.

The jury returned a verdict for the plaintiff in the sum of $378.50; and the defendants alleged exceptions.

The case was submitted on briefs.

J. G. Bryer, for the defendants.

J. F. O'Connell, D. T. O'Connell & J. E. O'Connell, for the plaintiff.

CROSBY, J. This is an action for conversion. There was evidence to show that the plaintiff purchased a horse at a sheriff's sale on May 23, 1911, and that on the same day the horse was brought by the plaintiff to the premises of his brother-in-law, the defendant Preskenis, who agreed that he might be kept there; that afterwards on the same day the defendant Reid stated to the plaintiff that the horse was worth at least $350, that he thought he could effect a sale at that price, and that if the plaintiff would consent to his taking the horse to his (Reid's) stable and using him in his business, he would effect a sale and make no charge for board; and that the plaintiff assented to this arrangment. There was also evidence that Preskenis was in the employ of Reid and that both defendants acted together in the control of the horse.

The plaintiff testified that he made repeated demands upon each of the defendants between May 23, 1911, and February 20, 1912, for the return of the horse, but did not succeed in obtaining possession of his property. That such demands were so made does not seem to have been disputed by the defendants, each of whom testified that the horse was sold by Reid for $125 with the knowledge and assent of the plaintiff.

At the close of the evidence the defendants requested the judge to rule that there had been a waiver by the plaintiff of the demand for the return of the horse. The judge refused so to rule, and the defendants excepted.

This ruling properly could not have been given upon the evidence. Whether there was a waiver by the plaintiff of previous demands was a question for the jury, and as no exception was taken to the charge, it is to be assumed that the question was submitted with appropriate instructions. There was ample evidence that the plaintiff made many demands for the return of his property

without obtaining it, and that he at all times insisted upon such return and never waived his rights under the demands so made. Exceptions overruled.

CHARLES F. SMITH vs. JOSEPH MILLER & others.

Suffolk. January 18, 1917. — March 1, 1917.

Present: RUGG, C. J., LORING, BRALEY, DE COURCY, & CROSBY, JJ.

Bankruptcy. Practice, Civil, Exceptions, Entry of judgment.

Where in an action at law against three defendants one of the defendants gave a bond to dissolve an attachment made on the writ and afterwards was adjudicated a bankrupt and filed a suggestion of bankruptcy and moved for a continuance of the action so far as it related to him, a judge of the Superior Court, before whom the case was tried without a jury, denied the motion for a continuance, made a finding for the plaintiff against all the defendants and ordered a stay of execution against the bankrupt defendant; and it was held that under § 11 a of the bankruptcy act of 1898 the judge had discretionary power to deny the motion for a continuance made after the adjudication in bankruptcy, and therefore that the bankrupt was not entitled as of right to a continuance of the action after he was adjudicated a bankrupt.

Where upon exceptions, taken by a defendant at the trial of an action of law in the Superior Court, which were argued before this court, the plaintiff prevails and the exceptions are overruled, this court cannot grant a motion of the plaintiff, made in the full court at the time of the argument upon the exceptions, that judgment be entered in his favor as of a certain date when such judgment would have been entered if the exceptions had not been filed, because such a motion should be made in the Superior Court where the action is pending.

CONTRACT against three defendants upon a judgment obtained against them in a previous action. Writ dated June 10, 1916.

In the Superior Court the case was tried before Hamilton, J., without a jury. The material facts and the course of proceedings in regard to the defendant Fishbein, who gave a bond with sureties to dissolve an attachment and afterwards was adjudicated a bankrupt, are stated in the opinion. The judge denied the motion of that defendant for a continuance as there stated. He found for the plaintiff against all the defendants in the sum of $154.43, and ordered a stay of execution as against the defendant Fishbein. That defendant alleged exceptions.

The case was submitted on briefs.

Section 11 a of the bankruptcy act of 1898 is as follows: "A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined."

M. Jacobs & R. F. Albert, for the defendant Fishbein.

C. F. Smith, pro se.

CROSBY, J. This is an action upon a judgment; the writ is dated June 10, 1916. The defendant Fishbein gave a bond with sureties to dissolve an attachment made upon the writ and afterwards, on August 24, 1916, was adjudicated bankrupt.

The case was heard upon the merits by a judge of the Superior Court, sitting without a jury. At that hearing Fishbein filed a suggestion of bankruptcy, together with a duly certified copy of the adjudication, and also presented a motion for a continuance of the action, so far as it related to him, to await further proceedings in the bankruptcy court. After a hearing, this motion was denied; a finding was made in favor of the plaintiff against all the defendants, and a stay of execution was ordered as against the defendant Fishbein. To the ruling denying the motion for a continuance, Fishbein excepted, and this exception raises the only question presented.

The bankruptcy act (U. S. St. 1898, c. 541, § 11) requires a stay of an action pending upon a claim to which a discharge would be a bar, until after an adjudication or the dismissal of the petition; but whether such an action is to be further stayed after an adjudication of bankruptcy, is to be determined by the trial judge in the exercise of his discretion.

In construing § 11 of the bankruptcy act, which deals with this question, this court said in the case of Rosenthal v. Nove, 175 Mass. 559, at page 563, "we hold that the court in which a suit against a bankrupt is pending is not, after the adjudication of bankruptcy, bound to stay proceedings further therein, while it may do so if, and to such an extent as, justice may require. The action is not absolutely barred, and the court has power to proceed to

judgment." Feigenspan v. McDonnell, 201 Mass. 341. Rogers v. Abbot, 206 Mass. 270. Parker v. Murphy, 215 Mass. 72. In re Maaget, 173 Fed. Rep. 232.

The discretion vested in the trial court by § 11 of the bankruptcy act does not depend upon the question whether an attachment was made in the pending action within, or more than four months before the filing of the petition in bankruptcy, or whether any attachment has been made. It follows that the defendant was not entitled as of right to a continuance of the action after he was adjudicated a bankrupt.

The plaintiff asks that judgment be entered in his favor as of November 6, 1916, the date when such judgment would have been entered if exceptions had not been filed. This request cannot be granted. It should be made by motion in the Superior Court where the case is pending.

Exceptions overruled.

ELDON F. TRIPP vs. GEORGE H. H. ALLEN.

Bristol. October 24, 1916. March 2, 1917.

Present: RUGG, C. J., LORING, BRALEY, PIERCE, & CARROLL, JJ.

Practice, Civil, Exceptions. Motor Vehicle. Negligence.

At the trial of an action for personal injuries sustained by being run down by a motor car owned and operated by the defendant when the plaintiff was travelling on foot on a public highway, the presiding judge in his charge to the jury read to them a clause of St. 1909, c. 534, § 22, and told them that, if the defendant was under the influence of liquor at the time of the accident, he was violating a penal law and that the violation of such a law which contributed to the injury was of itself evidence of negligence. The defendant's counsel then asked the judge to tell the jury that there was no evidence that the defendant was under the influence of liquor. The judge replied that there was such evidence and that on the evidence the jury could find that the defendant being under the influence of liquor had contributed to the accident. To this part of the charge the defendant excepted. At the argument of the exceptions before this court the defendant's counsel did not argue that there was no evidence that the defendant was under the influence of liquor but took the ground that the judge erred in reading the penal statute to the jury and thus distracting their attention from the merits of the issue on trial. Held, without intimating that the ground of exception urged by the defendant's counsel was well taken, that the contention