defendant, and on balance due plaintiff on a real-estate transaction. There was a judgment for plaintiff. Court granted defendant's motion for new trial, on the ground of newly-discovered evidence, and plaintiff excepted and appealed. Exceptions overruled.

H. E. Warner, for plaintiff. J. H. Appleton and P. H. Cooney, for defendant.

BARKER, J. The record before us shows abundant power in the justice of the superior court to set aside the verdict, and to order a new trial. Under Pub. St. c. 153, § 6, "the courts may at any time before judgment in a civil action set aside the verdict and order a new trial for any cause for which a new trial may by law be granted." This power may be exercised by the court of its own motion, and while, in acting upon motions for a new trial made by parties to the cause, the court must conform to the rules of the court and to the settled principles of law, the pendency of a motion for a new trial made by a party to the cause does not annul or suspend the power of the court upon its own motior to set aside the verdict, and order a new trial, for any cause for which a new trial may by law be granted. So, in the present case, assuming that the court could not grant the defendant's motion to set aside the verdict because contrary to the evidence, for the reason that rule 46 had not been complied with, and that it could not grant the defendant's motion to set aside the verdict because of newly-discovered evidence, for the reasons that the evidence was not in the legal sense newly discovered or was cumulative or was in contradiction of the defendant and his other witnesses, or because the failure to produce it at the trial was not accounted for or excused, or for other like reasons, nevertheless, if, in dealing with those motions, the court became convinced that legal grounds existed for ordering a new trial, and did, for that reason alone, set the verdict aside, and order a new trial, he was justified in so doing upon his own motion; and, if he had evidence before him from which he could find facts which made a "cause for which a new trial may by law be granted," it is immaterial how he may have ruled in answer to the requests made in the hearing of the defendant's motions. A new trial may by law be granted where the court "is satisfied that, by reason of some accident, mistake, or misfortune in the conduct of the trial, a new trial is necessary to prevent a failure of justice." Greene v. Farlowe, 138 Mass. 146; Cutler v. Rice, 14 Pick. 494; De Giou v. Dover, 2 Anstr. 517; Richardson v. Fisher, 1 Bing. 145. The statements of the bill of exceptions show abundant reasons to justify the court in finding, upon the affidavits and his own knowledge of the trial, such a mistake and misfortune. It is not stated that he granted the defendant's motion, and it is the fair inference from the bill of exceptions that the prev.39N.E.no.12-51

siding justice acted independently of that motion in setting the verdict aside. Exceptions overruled.

(163 Mass. 160)

LYNCH v. RICHARDSON. (Supreme Judicial Court of Massachusetts. Middlesex. March 1, 1895.) NEGLIGENCE-LETTING VICIOUS HORSE.

1. A livery stable keeper, who knows of the viciousness of a horse he lets for hire, or who, by the exercise of reasonable care, ought to know of its viciousness, is liable for injuries resulting_therefrom to the hirer.

2. In an action against a livery stable keeper for injuries received through the letting of a vicious horse, there was evidence that the viciousness was frequently manifested; that others, who never owned the horse, knew of it; and that defendant had had the horse over a year. Held, that whether defendant knew of the horse's viciousness was for the jury.

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

Action by Ellen F. Lynch against Warren J. Richardson. Verdict for defendant, and plaintiff excepts. Exceptions sustained.

H. N. Allin, for plaintiff. B. B. Johnson, for defendant.

KNOWLTON, J. The defendant was a keeper of a livery stable, and the plaintiff's husband hired of him a horse and carriage for use by the plaintiff and other members of his family. The horse furnished under the contract was advanced in years, and there was evidence from which the jury might have found that it had long had a habit of viciously kicking and trying to run away when started for home, after having been kept out for a considerable time. There was also evidence tending to show that the plaintiff and her driver were free from fault, and in the exercise of due care. It was the duty of the defendant to furnish a horse that had no such vicious habit, and, if he knew of the existence of the habit, or if, by the exercise of reasonable care to ascertain whether the horse was suitable for the use of hirers, he ought to have known that it was dangerous, he is liable for such injuries as resulted from wrongful conduct. Horne v. Meakin, 115 Mass. 326; Copeland v. Draper, 157 Mass. 558, 32 N. E. 944. A verdict was ordered for the defendant solely on the ground that there was no evidence that he knew of the viciousness of the horse. There was no direct evidence of such knowledge, but we think there was evidence from which the jury might well have inferred that he knew the facts. The evidence would have warranted the jury in believing that the habit was of such a kind as to be frequently manifested. It was the duty of the defendant to try to inform himself in regard to the habits of horses kept in his stable for use in his business. It does not require a very long acquaintance with a horse to enable an ordinary livery stable

keeper to form a correct opinion of his qualities. Usually he tries to ascertain as much as possible about him before becoming his owner. In the present case the evidence indicates that different persons, who never owned this horse, knew of its viciousness before the defendant bought it. It does not very definitely appear how long the defendant had it before the accident, but there is evidence tending to show that it was between one and two years. Callaghan testified "that he had known the horse about three or four years; that she was owned by Mr. Carney, and by him sold to Mr. McAuliffe, and by Mr. McAuliffe sold to the defendant; that he knew the horse, while owned by Mr. Carney, about a year and a half, and that Mr. McAuliffe owned her about six months, to the best of his knowledge and belief, before he sold her to the defendant." This evidence well warranted a finding without direct testimony that the defendant knew whether or not the horse had a vicious habit of running and kicking. Exceptions sustained.

(163 Mass. 138)

LANG v. TERRY.

(Supreme Judicial Court of Massachusetts. Bristol. March 1, 1895.)

INJURY TO EMPLOYE-HOISTING TIMBER ON BOAT -CONTRIBUTORY NEGLIGENCE.

1. Plaintiff was employed on one of defendant's barges, which was being loaded with piles from another barge lying beside it, the timbers being raised by means of a derrick operated by steam. The captain in charge of the former barge sent him forward to cover a casting on the deck, and while so engaged he was struck by a swinging pile which was being hoisted without a guide rope. No warning was given him in time to avoid the danger, and it required only a second to hoist the pile after the tackle was attached to it. Held, that it was a question for the jury whether plaintiff was negligent in failing to watch the operation of the hoisting engine so as to avoid the injury.

2. In an action for injuries received by an employé on a boat, who was struck by a timber which was being hoisted by a derrick without a guide rope, an expert in the use of derricks and the hoisting of timbers was properly allowed to say whether such a derrick, without a guide rope, was a safe one for raising timbers of that character, and to testify as to the proper way of attaching a guide rope.

Exceptions from superior court, Bristol county; Edgar J. Sherman, Judge.

Action by Charles Lang against Joseph C. | Terry for personal injuries. There was a judgment for plaintiff, and defendant excepts. Exceptions overruled.

Robert Nicholson, after having been qualifiled to the satisfaction of the court as an expert in the manner of the use of derricks, and the hoisting of timbers, particularly on barges similar to the Daisy, the boat on which plaintiff was employed, was asked, on direct examination, “whether or not, having heard the derrick described, a derrick equip ped as this was, without a guide rope, is a safe and proper derrick to raise piles of that

kind," and answered, "No, sir." Both question and answer were admitted against the defendant's objection, and to this admission the defendant's exception was duly saved. Witness then testified as to what a guide rope consisted of, and that there ought to be a hook attached to it, and that, properly, it ought to be fastened to the hook in the block, when raising a stick of timber like the pile; that the guide rope was to keep the stick from going away from where it ought to go. The same witness was also permitted to testify as follows: Question. "What would be the usual and proper way of attaching a guide rope there?" (referring to the hoisting on the Daisy.) Answer. "To take that hook, and hook right into the block, to keep the boom and fall from swinging too fast after it is raised from its bearing." To which last-quoted question and answer the defendant's objection was duly made, and exception saved.

Cummings & Higginson, for plaintiff. T. W. Proctor, for defendant.

KNOWLTON, J. The principal exception saved in this case was to the refusal of the presiding justice to rule that there was no evidence of due care on the part of the plaintiff. At the time of the accident the plaintiff was engaged in the performance of his duty, putting some boards over an iron casting on the deck, near the bow of the boat, in accordance with the direction of the captain. He was struck by a swinging pile which was hoisted by a derrick and steam-hoisting engine for the purpose of being transferred from the steam barge to the barge on which he was working. The pile was hoisted and swung around without the use of a guide rope. It appears that he could have seen the pile before it struck him, if he had been looking for it, and he testified that he knew they were going to lift the timber when they got ready, and everybody was out of the way, but he did not suppose they were ready to start when they did. There was evidence that a warning was given him to look out, just as he was struck, but not in time to enable him to avoid the swinging timber. One witness testified that the hoisting, after the chain was fastened to the pile, occupied only about a second. We are of opinion that it was a question of fact for the jury, on the evidence, whether the plaintiff had such reason to expect the hoisting of the pile without warning, and the swinging of the pile in a dangerous way, as to require him, in the exercise of ordinary care, to watch the operation of the hoisting engine, and look out for himself. They might think that he had reason to expect that the pile would not be hoisted while he was at work over the grating, without first giving him warning, or that it would not swing in such a way as to strike him. It cannot be said, as matter of law, that in the performance of his duty, under orders from the captain, he was obliged to

anticipate such a danger, or to rely solely on his own watchfulness to guard against an injury which could only come from the negligence of others. Magee v. Railway Co., 151 Mass. 240, 23 N. E. 1102; Davis v. Railroad Co., 159 Mass. 532, 34 N. E. 1070. See, also, Thyng v. Railroad Co., 156 Mass. 13, 17, 30 N. E. 169; Maher v. Railroad Co., 158 Mass. 36, 32 N. E. 950; Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550.

The questions to the expert, and his answers, were rightly admitted in evidence. There was nothing to show that there was any dispute in regard to the way in which the derrick was equipped, or that the answers of the witness involved any matter of opinion, except upon subjects about which he could properly testify as an expert. Prendible v. Manufacturing Co., 160 Mass. 131, 35 N. E. 675; Poole v. Dean, 152 Mass. 589, 26 N. E. 406. Exceptions overruled.

(52 Ohio St. 200)

THOMAS v. MOORE.

(Supreme Court of Ohio. Dec. 18, 1894.) APPEAL BY ADMINISTRATOR-BOND-LIABILITY OF EXECUTOR FOR ATTORNEY'S FEES.

1. An appeal from the judgment of a justice of the peace, by a party described in the action as the administrator of an estate, is not perfected without an undertaking therefor, as required by section 6584 of the Revised Statutes, unless the appellant is a party to the judgment in his fiduciary capacity, and the appeal is in the interest of the trust.

2. Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay for, and receive credit for the expenditure, in the settlement of his accounts.

3. A judgment recovered against the executor or administrator on a claim for such services must be treated as a judgment against him in his individual, and not in his representative, capacity; and, to perfect an appeal taken by him therefrom, an undertaking for the appeal is necessary.

(Syllabus by the Court.)

Error to circuit court, Brown county. Action by John R. Moore, as surviving partner, against Elizabeth J. Thomas, as administratrix. There was a judgment of the justice's court for plaintiff, and defendant appealed. From an affirmance by the circuit court of a judgment of the common pleas dismissing the appeal, defendant brings error. Affirmed.

John R. Moore, as the surviving partner of the firm of McKnight & Moore, a partnership formed for the practice of the law, brought his action before a justice of the peace of Brown county against Elizabeth J. Thomas, as administratrix of the estate of David Thomas, deceased, to recover for legal services rendered the defendant by the firm. The bill of particulars states that the services were performed by the firm for the "defendant, and at her request, in various suits brought by and against her as such adminis

An

tratrix, and that McKnight died before the bringing of the suit, leaving the plaintiff the sole surviving member of the firm." itemized account of the services and their value is attached to the bill. The defendant waived process, entered her appearance, and, by consent of the parties, the case was set for trial on a particular day, when the parties appeared before the justice, and the trial took place, which resulted in a judgment for the plaintiff. The judgment is in the following form: "It is this day considered and adjudged by me that the plaintiff recover from the defendant the sum of one hundred and fifty-two ($152) debt and three dollars and five cents costs." The justice's transcript then shows that "thereupon, on the same day, came Elizabeth J. Thomas, by her attorneys, Young & McBeth, and gave written notice of appeal to common pleas court of Brown county, Ohio; and it appearing that said Elizabeth J. Thomas, as administratrix of the estate of David Thomas, deceased, has given ample bond in the probate court of Brown county, Ohio, as such administrator, no appeal bond is required." In due time, the defendant, to perfect the appeal, filed in the court of common pleas of Brown county the transcript of the docket entries of the justice, and the original papers, but gave no appeal bond; and that court, on motion of the plaintiff, dismissed the appeal, for the reason that no bond for the appeal had been given. The defendant excepted, and prosecuted error to the circuit court, where the judgment of the court of common pleas was affirmed. Error is prosecuted here to obtain the reversal of both judgments.

Young & McBeth, for plaintiff in error.

WILLIAMS, J. (after stating the facts). The single question for adjudication in this case is whether an undertaking was necessary to perfect the appeal taken by the defendant from the judgment of the justice of the peace. The Justices' Code requires, in all cases of appeal, that the appellant shall enter into an undertaking with sureties, to be approved by the justice, conditioned for the prompt prosecution of the appeal and the satisfaction of the judgment rendered by the appellate court. Rev. St. § 6584. Section 5228 provides that "a party in any trust capacity, who has given bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal." This section, however, in view of all of its provisions, seems applicable only to appeals from the court of common pleas to the circuit court. But section 6408 contains the general provision that "when the person appealing from any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed

Pac. 880.

Besides,

the obligation upon which the judgment was rendered was the personal obligation of the defendant, and created no liability against the estate. The general rule is that, when the cause of action upon which a personal representative is sued arises in the lifetime of his decedent, or afterwards upon an obligation of the deceased, the liability is that of the estate, and the representative is bound only so far as assets come to his hands applicable to its satisfaction; but, upon contracts made by the personal representative, though for services and expenses necessary in the due execution of his trust, he is individually liable, for he is without authority to bind the estate by his promise.

In the case of Austin v. Munro, 47 N. Y. 360, 366, it is said: "The rule must be regarded as well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold and delivered, or other consideration .moving between the promisee and the executors as promisors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the services rendered or goods or property furnished or other consideration moving from the promisee are such that the executors could properly have paid for the same from the assets, and been allowed for the expenditure in the settlement of their accounts. The principle is that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator." This doctrine is well established. Woerner, Adm'n, § 356; Williams, Ex'rs, p. 1776; Waldsmith v. Waldsmith, 2 Ohio, 156; Howard v. Powers, 6 Ohio, 92; Taylor v. Mygatt, 26 Conn. 184; Luscomb v. Ballard, 5 Gray, 403; Wait v. Holt, 58 N. H. 467; In re Page's Estate, 57

In a class of cases where the personal representative has received money or property belonging to another person, and used it in the payment of the decedent's debts, or otherwise for the benefit of the estate, as where he collected rents which belonged to the widow or heirs, and administered them as assets, and other cases of like character, it has been held that the person entitled to the money or property may, at his election, look to the estate, and charge the representative in his trust capacity, or resort to his individual liability. Conger v. Atwood, 28 Ohio St. 134, is a case of that kind, and other cases of the same kind are cited in the opinion of the court in that case. These cases recognize the general rule as we have stated it, and may be regarded as creating an exception to it, involving another principle, analogous to the right of the owner to follow the fund into which his money or property has been converted. But a claim for professional services rendered under employment by the personal representative does not appear to be within the exception. While it is undoubtedly the right, and in most cases the duty, of such representatives to employ counsel to advise and assist them in the performance of their official duties, it cannot be determined that the services rendered by the counsel, or their value, constitute a part of the fund in the hands of the representative, however important and valuable those services may have been in collecting the assets or resisting unjust claims against them. The law contemplates that the representative will himself pay the value of such services, and be reimbursed, by receiving credit for the amount paid, in the settlement of his accounts. Such items constitute a part of the expenses of administration, which, together with the funeral expenses, take precedence, under our statute, of all other demands. Rev. St. § 6090. In that way the estate may be interested in the amount allowed and paid for counsel fees, but it is not interested in a judgment for them recovered against the representative; for, although the judgment is conclusive against the defendant, it has not that effect against the estate or those beneficially interested in it. Any one interested in the estate may appear in the court having in charge the settlement of the administration account, and oppose the allowance of any credit claimed for counsel fees paid, on the ground that the services were unnecessary, or became necessary from the wrongful act or neglect of the representative, or that the amount paid was unreasonable. "The rule is, that the administrator can be allowed credit only for counsel fees which he has actually paid, and no more than is reasonable compensation for the services rendered to the estate, no matter what the administrator may have actually paid or contracted to pay; and

the burden is on him to prove the necessity and value of the services." Woerner, Adm'n, § 515. And see Wait v. Holt, 58 N. H. 467. So that a judgment against the representative, for such services, establishes nothing against the estate he represents or the persons interested in it; and an appeal by him from the judgment is not an appeal in the interest of the trust, but in his individual interest. In some instances it may seem unjust to hold the personal representative liable beyond the amount for which he receives credit in the settlement of his accounts, and we see no reason why he may not, by agreement with his counsel, limit his liability to such sum; but, in the absence of a stipulation of that kind, he may be compelled to pay the judgment recovered against him, notwithstanding it exceeds the credit he receives. It follows that the judgment recovered against the defendant must be treated as a judgment against her in her individual, and not in her representative, capacity; and therefore an undertaking was necessary to perfect her appeal, and, for want of it, the appeal was properly dismissed. Judgment affirmed.

(52 Ohio St. 242)

HENDERSON v. JAMES, Warden. (Supreme Court of Ohio. Feb. 5, 1895.) CONVICTS-ESCAPE-SENTENCE-APPEAL-HABEAS CORPUS.

1. An escaped convict, who is convicted and sentenced to the penitentiary for another crime, may, at the expiration of the latter sentence, be held to serve out the remainder of his first sentence.

2. A final order of discharge on habeas corpus may be reviewed and reversed on error, by a higher court.

3. In such case the order of discharge may be stayed by the higher court, under section 6725, Rev. St., without fixing any terms other than the stay of the execution of the order. (Syllabus by the Court.)

Scott, without being recognized as David Henderson by the warden. After he had been there some time, registered and working as Scott, the deputy warden recognized him as being David Henderson, but no action was taken by the warden or any one else upon such recognition, and the prisoner served out his sentence as Carrol Scott, and was discharged July 14, 1894. The warden, having learned that Scott was Henderson, detained him as the escaped Henderson, and duly registered him as the returned convict, and put him to work to serve out his unexpired sentence. Thereupon David Henderson filed his petition for a writ of habeas corpus, the warden made due return, and the plaintiff replied. The reply is, in effect, that, within a week after he was received at the penitentiary as Scott, he was recognized as the escaped convict Henderson by the deputy warden, who was then, in the absence of the warden, in charge of the prison. To this reply the warden demurred, which demurrer was overruled, by the court of common pleas of Franklin county; and, on hearing the case, the prisoner was ordered to be discharged. Exceptions were taken by counsel for the warden, and on hearing the case in the circuit court, on petition in error, the judgment of the court of common pleas discharging the prisoner was reversed, and the prisoner remanded to the custody of the warden, to serve out his unexpired sentence. Thereupon Mr. Henderson filed his petition in error in this court to reverse the judgment of the circuit court, and for the affirmance of the judgment of the common pleas.

George B. Okey and James A. Allen, for plaintiff in error. J. K. Richards, Atty. Gen., for defendant in error.

*

BURKET, J. (after stating the facts). The latter part of section 7325, Rev. St., provides that, "if any convict escape from the penitentiary, no part of the time such convict is absent shall be counted as a part of the time for which such convict was sentenced." The plaintiff in error claims that, as his sentence in Cuyahoga county was not made to begin in the future, his im

of the court of common pleas discharging the prisoner, relator brings error. Affirmed.

On September 18, 1879, the plaintiff in error, David Henderson, was received at the penitentiary to serve a five-year sentence from Warren county. On October 12, 1881, after serving a little over two years of that sentence, he escaped, and was at large until March 16, 1891, when he was received at the penitentiary under the name of Carrol Scott, on a five-years sentence from Cuyahoga county; but nothing was known by the Cuyahoga county court as to the prisoner's real name being David Henderson, nor as to his former sentence, nor as to his escape. When he reached the penitentiary, he was received and put to work as Carrol

once upon his arrival at the penitentiary, and that, by virtue of the above section, his imprisonment under the Warren county sentence again began to run immediately upon his return to the penitentiary, so that both sentences were being served at the same time, and that, upon the expiration of the longer sentence, he was entitled to his discharge from both sentences. There was no attempt to invoke the doctrine of cumulative sentences, and the prisoner was sentenced to five years without knowledge on part of the court that he was an escaped convict. As we have no statute authorizing cumulative sentences for crime, it would seem at first blush that such sentences should not be permitted in this state; but