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cumstances here disclosed to the discretion | attorney for collection as you well know that of the court. Their denial manifestly was not an abuse of discretion and presents no question of law.

Decree affirmed with costs.

(225 Mass. 226)

GILL v. GIBSON.

(Supreme Judicial Court of Massachusetts. Essex. Nov. 28, 1916.)

1. LIMITATION OF ACTIONS

148(3)—RUNNING OF LIMITATIONS-NEW "PROMISE." Under Rev. Laws, c. 202, § 12, declaring that no acknowledgment or promise shall be evidence of a new or continuing contract tolling the running of limitations, unless such acknowledgment or "promise" is made by or contained in a writing signed by the party charge able, a letter written by a debtor, complaining of the placing of a note in the hands of an attorney for collection, and stating that the note would be paid with interest if possible, is only a conditional promise to pay when the maker should be able, and does not stop the running of the limitations; there being no evidence of the maker's ability to pay.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 597; Dec. Dig. 148(3).

For other definitions, see Words and Phrases, First and Second Series, Promise.]

2. LIMITATION OF ACTIONS 148(3)-RUNNING OF LIMITATIONS-NEW "PROMISE."

In such case, a letter by the maker, stating that he might be able to do something for the holder of the note, is not an unqualified "promise" within the section, which will stop the running of limitations; there being nothing to indicate that the maker had been able to make payment.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 597; Dec. Dig. 148(3).]

Exceptions from Superior Court, Essex County; James H. Sisk, Judge.

Action by Russell G. Gill against William O. Gibson. A verdict was ordered for defendant, and plaintiff excepted. Exceptions overruled.

Robt. E. Burke and Edwd. E. Crawshaw, both of Newburyport, for plaintiff. Edgar S. Taft, of Gloucester, for defendant.

RUGG, C. J. [1] This is an action upon a promissory note. The defense is the statute of limitations. The plaintiff contends in avoidance of that defense that the evidence showed a sufficient acknowledgment and promise in writing within R. L. c. 202, § 12. Reliance in support of that contention is placed upon two letters of the defendant. The one under date of June 16, 1910, was written to a third person some time before the expiration of six years from the time of the last payment on the note. Its pertinent words are:

"I have received a notice in regard to the note of $500. * Now this seems very hard to me as you well know that I should have paid the note and interest long ago if I had been able. * * It seems as if in our relations that you might give me a little better chance than to place this in the hands of an

you will get your money some day with interest if it is in any way possible for me to do it." Whatever else may be said about these words, it is plain that at most they amount only to a conditional promise to pay when the promisor is able. There is no evidence in the record that the condition has been performed by his becoming able to pay. Mitchell's Claim, L. R. 6 Ch. 822, 828; Custy v. Donlan, 159 Mass. 245, 34 N. E. 360, 38 Am. St. Rep. 419. It was no new promise within the statute. Wald v. Arnold, 168 Mass. 134, 46 N. E. 419.

[2] The defendant's letter to the plaintiff of April 8, 1915, contained these words:

"If you will send me the dates and amounts of payments, so that I can compare with my account, I think a little later as soon as things start up I may be able to do something for

you.'

This was not an unqualified acknowledgment from which a new promise may be inferred. Boynton v. Moulton, 159 Mass. 248, 34 N. E. 361; Krebs v. Olmstead, 137 Mass. 504; Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320; Weston v. Hodgkins, 136 Mass. 326.

There was nothing to indicate that the defendant had even been "able to do anything for" the plaintiff. Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320; Wenz v. Wenz, 222 Mass. 321, 110 N. E. 969. Exceptions overruled.

(225 Mass. 189)

HURNANEN v. GARDNER AUTO-
MOBILE CO.

(Supreme Judicial Court of Massachusetts. Worcester. Nov. 28, 1916.)

1. JUDGMENT 159 SETTING ASIDE DEFAULT BEfore JudgMENT AFFIDAVITS SUFFICIENCY.

Affidavits, ascribing defendant's failure to defend an action to a misunderstanding with his attorneys, held to sufficiently show a case of accident or mistake, justifying setting aside

a default before judgment.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 310, 312, 313; Dec. Dig. 159.] 2. JUDGMENT 139 SETTING ASIDE DEFAULT BEFORE JUDGMENT-POWER.

Under Rev. Laws, c. 173, § 54, the removal of defaults before judgment is explicitly intrusted to the sound discretion of the trial court.

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[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 265-268; Dec. Dig. 139.] REVIEW 3. APPEAL AND ERROR 945 DISCRETIONARY RULINGS. Ordinarily there can be no review of a court's discretionary ruling.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3811; Dec. Dig. 945.] 4. DAMAGES 224 ASSESSMENT OF DAMAGES-SETTING ASIDE.

The power to remove defaults before judgment under Rev. Laws, c. 173, § 54, necessarily involves the power to set aside an assessment of damages made by a jury after the default.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 529: Dec. Dig. 224.]

5. DAMAGES 224-JUDGMENT 151-SET- | entered by his firm in other cases returnable TING ASIDE DEFAULT BEFORE JUDGMENT PROCEDURE.

A motion to set aside a default before judgment and an assesment of damages made by a jury is not governed by the procedure governing a motion for new trial and setting aside a verdict.

[Ed. Note.-For other cases, see Damages, Cent. Dig. 8 529; Dec. Dig. 224; Judgment, Cent. Dig. §§ 296-298, 727, 730; Dec. Dig. 151.]

at the same time as the plaintiff's action. There were other affidavits tending to show that the defendant has a substantial defense to the plaintiff's cause of action. The plaintiff filed no counter affidavits. After a hearing, the judge allowed the motion of the defendant to take off the default, set aside the assessment of damages, and granted leave upon terms to the defendant to enter an ap

Report from Superior Court, Worcester pearance and to plead to the merits. County; Henry A. King, Judge.

Action by Frank Hurnanen, administrator, against the Gardner Automobile Company. From an order removing a default before judgment and setting aside an assessment of damages, the plaintiff appeals and excepts to allowance of motion. Case reported. Affirmed and remanded for further proceedings.

J. G. Annala, of Fitchburg, for plaintiff. Jos. P. Carney and Herbt. W. Blake, both of Gardner, for defendant.

It is provided by R. L. c. 173, § 54, that: "Courts may, for good cause shown, extend the time for entering an appearance, and may, in their discretion and upon terms, take off a default at any time before judgment."

These words are plain and explicit. They confer upon courts in broad terms complete power to remove a default whenever in the exercise of judicial discretion a default ought to be removed.

The affidavits set forth facts sufficient to show that the failure of the defendant to appear was due to accident and mistake. Since according to the other affidavits the defendant had a defense to the plaintiff's cause of action, manifest justice requires that the case should be tried on its merits and that the plaintiff should not recover a judgment against the defendant based wholly upon a default and a one sided trial in the absence of the defendant.

Whether a default shall be removed or not rests, according to the express words of the statute, upon sound judicial discretion. In ordinary cases there can be no review of the action of a court founded upon the exercise of discretion. Edwards v. Willey, 218 Mass. 363, 365, 105 N. E. 986, and cases cited; Mass. Bonding & Ins. Co. v. Peloquin, 225 Mass. 30, 113 N. E. 574. The removal of the default in the case at bar appears upon the face of the record to have been necessary in order to prevent the entry of judgment against one who had had no opportunity to be heard. The facts set forth in the affidavits showed a sufficiently "good cause" to warrant the court in extending to fifteen days after the entry of the order the time within which an appearance might be entered by the defendant.

RUGG, C. J. [1-3] The only question presented by this report is whether the superior court judge had power to remove a default and permit the case to be tried on its merits. The action is in tort for injuries alleged to have been sustained through the negligence of the defendant in operating an automobile. Service of the writ was made duly on the defendant. The defendant did not appear in response to the summons and later was defaulted. A jury was impanelled and by it the damages sustained by the plaintiff were assessed. Thereafter and before judgment, a motion was filed in behalf of the defendant, alleging that the default had been entered against it through mistake and misunderstanding in failing to file an appearance, and that there was a complete defense to the plaintiff's cause of action. This motion was supported by affidavits tending to show that the defendant's property had been attached on the writ, which had been dissolved by the giving of a bond under the advice of the defendant's attorneys; that the defendant's president supposed the information given to the defendant's attorneys in connection with the execution of such bond was enough to insure a defense being made, and he failed to place the summons in their hands and did not remember that he had been asked for it; that the member of the firm of attorneys consulted by the defendant in respect to the bond asked that the summons be sent to his [5] The motion to remove the default and office for attention according to the custom set aside the assessment of damages was in of his office by the clerk having in charge the no proper sense a motion for a new trial. matter of appearances, and he supposed that There had been no contested trial. The prothis had been done (although in fact it had ceedings as to motions for a new trial and the not been done) and thought that appearance setting aside of a verdict, as those terms are had been made and answer filed until the day used in statutes and rules of court, have no after the assessment of the plaintiff's dam-relation to a motion like the present, which ages by the jury, and that appearances were is simply to remove a default with such in

[4] The power to remove a default at any time before judgment involves of necessity the power to set aside all proceedings subsequent to the default, including an assessment of damages by a jury. The court was fully warranted in setting aside the assessment of damages.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MASS.DEC.111-115 N.E.-43

cidental relief as is essential in order to signal being given him to do so. The result give effect to the main remedy.

In accordance with the terms of the report, the order removing default and setting aside the plaintiff's assessment of damages is affirmed and the case is remanded to the superior court for further proceedings according to law.

So ordered.

(225 Mass. 197)

SMOLLETT v. BALLOŲ.

(Supreme Judicial Court of Massachusetts. Norfolk. Nov. 28, 1916.)

1. MASTER AND SERVANT 265(12) INJURIES TO SERVANT-NEGLIGENT FELLOW SERVANT-NEGLIGENCE-BURDEN OF PROOF.

In a servant's action for injuries caused by negligence of a fellow servant on the issue of negligence of defendant in employing an incompetent servant, the burden was on plaintiff to prove that the fellow servant was incompetent, that defendant knew, or ought to have known, that he was incompetent, and that the accident was caused by his incompetence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 891, 906; Dec. Dig. ~ 265(12).]

2. MASTER AND SERVANT

279(4)—INJURIES TO SERVANT-SUFFICIENCY OF EVIDENCE.

In a servant's action for injuries caused by an alleged incompetent fellow servant, evidence held insufficient to warrant a finding that the fellow servant was drunk at the time of the accident.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 978; Dec. Dig. 279(4).]

Report from Superior Court, Norfolk County.

Action by George F. Smollett against John C. Ballou. On report from the superior court. Judgment on verdict for defendant. Wm. Flaherty and Walter J. O'Malley, Jr., both of Boston, for plaintiff. Dickson & Knowles, of Boston, for defendant.

LORING, J. The plaintiff seeks in this action to recover for personal injuries suffered by him under the following circumstances: He was employed by the defendant in his business of quarrying stone. At the time in question he was at work with another man in making fast the lines of a derrick boom to a block of granite weighing some three tons. This was done by inserting the "dogs" in holes made for the purpose. These "dogs" had to be held in position by the man making the derrick line fast to the stone until the slack of the line had been taken up by the hoisting engine and the "dogs" had caught so as to hold. When the plaintiff and the man working with him had placed the "dogs" in the holes and were holding them (as they had to do in the method of proceeding stated above) the engineer who was running the derrick put on the power more quickly than usual and perhaps without any

was that this block of granite not being directly under the derrick boom swung "in the direction in which it must go in order to balance its center" struck the plaintiff (who apparently was standing in its path in place of behind it) and caused the injuries here complained of.

At the trial the plaintiff elected to go to the jury on the fourth count in which he declared on the negligence of the defendant in employing an incompetent servant, namely, the engineer who operated the derrick, one Norrie by name.

[1] Under the count of the declaration on which the plaintiff elected to go to the jury the burden was upon him to prove that Norrie was incompetent; that the defendant knew or ought to have known that he was incompetent; and that the accident was caused by his incompetence.

[2] The only evidence of incompetence on the part of Norrie (the engineer) was that he was a drinking man and at times had been under the influence of liquor while at work. The plaintiff took the stand in his own behalf and testified "that on the day of the accident he was unable to state whether Norrie had been drinking or not." The only other witness put on the stand by the plaintiff testified that on the day of the accident "he [Norrie] looked all right. That is he looked all right from where I was the day of the accident;" that on the day of the accident he had seen no "appearance" of Norrie being drunk because he was not near enough to him; "I wasn't in the engine house at all that day;" and in answer to the question "And you haven't the remotest idea whether he was very sober or very drunk that day?" he answered "The day of the accident? No."

The plaintiff has sought to avoid his failure to prove by direct evidence that Norrie was drunk at the time here in question by contending that the jury were warranted in finding from the circumstances of the accident that he was drunk then. In that connection he has relied upon the case of McPhee v. Scully, 163 Mass. 216, 39 N. E. 1007. There is nothing in his contention and there is nothing in that case which supports it. The entry must be

Judgment on the verdict.

(225 Mass. 183)

FOSTER v. FOSTER. (Supreme Judicial Court of Massachusetts. Dukes. Nov. 28, 1916.)

1. DIVORCE 109 - GROunds - BurdeN OF PROOF.

In an action for divorce on the ground of desertion, the burden is on the libelant to satisfy the court that the libelee voluntarily and without justification left him with the intention of not returning, that her refusal to cohabit with him continued for three consecutive years next prior to the filing of the libel, and that he did

not consent to the original separation or its | libelant to satisfy the court that the libelee continuance. voluntarily and without justification left [Ed. Note. For other cases, see Divorce, him with the intention of not returning; Cent. Dig. §§ 354-364; Dec. Dig. 109.] that her refusal to cohabit with him con2. DIVORCE ~37(7)—GrouNDS-DESERTION-tinued for three consecutive years next prior CONSENT. Separation by mutual consent does not to the filing of the libel; and that he did constitute desertion and is not ground for di- not consent to the original separation or to its continuance. Separation by mutual con

vorce.

[Ed. Note.-For other cases. see Divorce, Cent. sent does not constitute desertion. R. L. c. Dig. § 113; Dec. Dig. 37(7).] 152, 1; Lea v. Lea, 8 Allen, 418; Ford v. 3. DIVORCE 133(3)—Grounds-DesertioN | Ford, 143 Mass. 577, 10 N. E. 474; Bradley v. -SUFFICIENCY OF EVIDENCE.

Where a husband, on his return home after absence, found the house closed, made little effort to find his wife, and thereafter visited the house to procure his clothes, at which time his wife gave him his clothes and told him to get out and not return, held, that evidence of his acquiescence in her declaration that she would not live with him, and his failure for three years afterwards to seek a reconciliation, supported a finding against libelant on the issue of desertion of the wife.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. 448; Dec. Dig. 133(3).]

Exceptions from Superior Court, Dukes County; Frederick Lawton, Judge.

Libel for divorce by John Foster against Annie L. Foster. Decree for libelee and libelant brings exceptions. Exceptions overruled. B. T. Hillman, of Edgartown, and Henry E. Cottle, of Brookfield, for libelant. Dexter B. Pattison, of Boston, for libelee.

DE COURCY, J. The libelant assented to the statement of the evidence which was made by the trial judge and was as follows: "I understand that the evidence of desertion is substantially as follows: That in May, June or July of 1909, after the libelant had been away to get a yacht and had brought his yacht around to this town, Edgartown, he went to his home, the house which was owned jointly by him and his wife; that the house was locked and the key which, by agreement between them should have been hung in the woodshed, was not there; that he went and spent the night, the first night, upon the yacht; that afterwards he made several visits to the house, either on that day or the following days; that each time he found the door locked and the key not hanging in its customary place; that there came a time within a few days of his first visit to the house, after his return with the yacht, when he and his wife and a cousin of his wife named Manuel Silva went to the house together; that before going in, when she got to the house, she forbade his going in with her and he remained outside. She went into the house and came out bringing some of his clothes which she gave to him saying, 'Now get out of my sight; I never want to see you again; I will never live with you again.' Immediately following the words quoted, the wife went toward her sister's house and the man toward the water-front, and they have never since lived together, and neither party has since asked the other to live with him or her."

The court then said:

"Upon the foregoing facts, I am not satisfied that the libelee deserted the libelant, and therefore shall dismiss the libel."

[1-3] The only question before us is whether the judge erred in refusing to rule, as requested, that the libelant was entitled to a decree of divorce. The burden was on the

The

Bradley, 160 Mass. 258, 35 N. E. 482. judge found that the allegation of desertion was not in fact proved. Even assuming that he credited the testimony of the libelant, he well may have inferred from his conduct that the separation was not against the will of the husband but was with his consent. There were facts indicating such consent; among others, his lack of effort to find his wife when he found the house closed; his visit with her to the house, apparently to get his clothes; his acquiescence in her excited declaration that she would not live with him; and his failure for three years afterwards, to ask his wife to come back or to make any attempt to effect a reconciliation. We cannot say as matter of law that the judge was wrong in finding that a case of desertion was not made out. Having so found, he could not give the ruling requested. Exceptions overruled.

(225 Mass. 159)

O'CONNELL v. CITY OF WORCESTER. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 28, 1916.)

1. ASSIGNMENTS 137-ACTIONS-EVIDENCE Evidence held sufficient to warrant finding that an order drawn on city treasurer to pay money deposited with liquor license application to claimant if the liquor license should be refused, was intended to operate as an assignment subject to the contingency of granting the liquor license.

[Ed. Note. For other cases, see Assignments, Cent. Dig. § 234; Dec. Dig. 137.] 2. ASSIGNMENTS

88-MODE AND SUFFICIENCY-WRITTEN ORDERS.

An order, given as security for a present indebtedness, operates as an assignment. [Ed. Note.-For other cases, see Assignments, Cent. Dig. §§ 135, 136; Dec. Dig. 88.] 3. ASSIGNMENTS

137-ACTIONS-EVIDENCE.

Evidence held sufficient to support a finding that order on city treasurer, drawn by applicant for liquor license to pay the amount of the license deposit to the person from whom the applicant had borrowed the money if the license should not be granted, was given as security for a present indebtedness.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. § 234; Dec. Dig. 137.]

4. ASSIGNMENTS 88-REQUISITES AND VALIDITY-POSSIBILITIES AND CONTINGENCIES.

An assignment as security for a present indebtedness may be qualified by a condition, contingency, or limitation depending upon the happening of a future event, and nevertheless

be a valid assignment.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 135, 136; Dec. Dig. 88.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. ASSIGNMENTS 73 MODE AND SUFFI-
CIENCY POSSIBILITIES AND CONTINGENCIES.
An order on a city treasurer, drawn by
applicant for liquor license to pay amount of
liquor license deposited to the person from
whom applicant borrowed the amount, if the li-
cense should be refused, held a completed trans-
action, by which the title to the fund passed to
the claimant subject to be divested only in the
event the liquor license was granted, and was
not a mere executory agreement of transfer.
[Ed. Note. For other cases, see Assignments,
Cent. Dig. §§ 139-142; Dec. Dig. 73.]
6. BANKRUPTCY 159 PREFERENCES AND
TRANSFER BY BANKRUPT.

An insolvent debtor, before being adjudicated as bankrupt, may deal with his property as he chooses, so long as he does not give a preference to any creditor or impair the value of his estate.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 247, 248, 262, 268-281; Dec. Dig. 159.]

7. BANKRUPTCY ERENCES.

163-ASSIGNMENTS-PREF

Where an insolvent debtor executed an assignment as security for the loan of money to be used as a deposit in applying for a liquor license, the assignment was not invalid as an unlawful preference, where the assignor subsequently became bankrupt.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248; Dec. Dig. 163.]

Exceptions from Superior Court, Worcester County; C. T. Callahan, Judge.

Action by Charles J. O'Connell, trustee, against the City of Worcester, James Hanley Brewing Company, claimant. From a decree for claimant, plaintiff brings exceptions. Exceptions overruled.

John H. Meagher, Emil Zaeder, Chas. J. O'Connell, and Chas. F. Boyle, all of Worcester, for plaintiff. John P. Halnon, of Worcester, for claimant.

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[2-5] The finding was warranted that the order was given as security for a present indebtedness. An order given as security for a present indebtedness operates as an assignment. Tripp v. Brownell, 12 Cush. 376; Lannan v. Smith, 7 Gray, 150; Macomber v. Doane, 2 Allen, 541. The order in question amounted to a present appropriation of the entire fund in the hands of the treasurer, subject only to the contingency that it might CROSBY, J. This is an action brought be retained by him in payment for the liqby the plaintiff as trustee in bankruptcy of uor license. The judge was warranted in William J. Courtney and Fred J. Courtney, finding that the money deposited with the for the benefit of the bankrupt estate. The city treasurer was the property of the claimclaimant contends that it is entitled to the ant. Providence Brewing Co. v. Maxwell, 222 fund in question by virtue of an order and an Mass. 123, 109 N. E. 816. An assignment is assignment, each of which is dated March not the less an assignment of a present in27, 1914. The case was tried before a judge debtedness even if it is qualified by some of the superior court, who made certain find-condition, contingency or limitation depending ings of fact and found for the claimant in upon the happening of a future event. Gibson the sum of $1,000, the amount of the fund. v. Cooke, 20 Pick. 15, 32 Am. Dec. 194; ParkThe judge found that on March 27, 1914, hurst v. Dickerson, 21 Pick. 307; Bourne v. the Courtneys, as copartners, made ap- Cabot, 3 Metc. 305; Tripp v. Brownell, ubi plication for a license of the first class to supra; Butterick Lumber Co. v. Collins, 202 sell intoxicating liquors in the defendant Mass. 413, 422, 89 N. E. 138; Holmes v. city; that with their application they de- Evans, 129 N. Y. 140, 145, 29 N. E. 233; posited with Harry C. Smith, the city treas- 5 Corpus Juris, 910, and notes. The order urer, a check for $1,000 payable to his order was not an executory agreement merely to and signed by the claimant; that the ap‐ transfer the money deposited but was a complicants being without funds, borrowed from pleted transaction, by which, for a valuable the claimant the amount so deposited. The consideration, the title to the entire fund check was sent by the claimant to Henry L. passed to the claimant, subject to be divested Parker, an attorney at law in Worcester, only in the event of a liquor license being who represented both the claimant and the granted to the Courtneys. Courtneys in this matter; "thereupon Parker delivered to the treasurer the check and took his receipt acknowledging the receipt of one

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[6, 7] While the court finds that at the time the loan was made the Courtneys were insolvent and that the claimant was aware of

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