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income does not affect the public character of, R. A. 160, 25 Am. St. Rep. 651), the mainthe baths so as to render the city liable for the tenance of a city hall solely for public uses torts of its officers in connection therewith.

(Kelley v. Boston, 186 Mass. 165, 71 N. E. [Ed. Note.-For other cases, see Municipal 299, 66 L. R. A. 429), of shade trees (Donohue Corporations, Cent. Dig. 88 1575, 1576; Dec. Dig. 747(4).]

v. Newburyport, 211 Mass. 561, 98 N. E. 1081,

Ann. Cas. 1913B, 742), of a house of industry Appeal from Superior Court, Essex Coun- (Curran v. Boston, 151 Mass. 505, 24 N. E. ty; W. F. Dans, Judge.

781, 8 L. R. A. 243, 21 Am. St. Rep. 465), of Separate actions by Mary A. Bolster, Al- a public park (Holleran v. Boston, 176 Mass. vina Balletta, and Margaret Jones, as admin- 75, 57 N. E. 220), in the printing of commitistratrices, and John J. McCann, Peter Pin- tee reports (Howland v. Maynard, 159 Mass. to, and Michael Thornton, as administrators, 434, 34 N. E. 515, 21 L. R. A. 500, 38 Am. St. against the City of Lawrence. Judgments Rep. 445). Nor is it answerable for the acts for defendant on demurrer to the declara- of police officers (Buttrick v. Lowell, 1 Allen, tions, and plaintiffs appeal. Affirmed. 172, 79 Am. Dec. 721), highway surveyors

(Dupuis v. Fall River, 223 Mass. 73, 111 N. W. S. Peters, H. J. Cole, F. H. Magison, E. 706; Smith v. Gloucester, 201 Mass. 329, and W. F. Barrett, all of Haverhill, for ap 87 N. E. 626), road commissioners (McManus pellants. D. J. Murphy, of Lawrence, for

v. Weston, 164 Mass. 263, 41 N. E. 301, 31 appellee.

L. R. A. 174), members of the fire depart

ment (Hafford v. New Bedford, 16 Gray, 297; RUGG, C. J. The allegations in the sever- Pettingell v. Chelsea, 161 Mass. 368, 37 N. E. al counts of the plaintiff's declaration, so 380, 24 L. R. A, 426; Workman v. New York, far as now material, are in substance that 179 U. S. 552, 580, 21 Sup. Ct. 212, 45 L. Ed. the defendant city maintained and operated 314), assessors (Rossire v. Boston, 4 Allen, a bathhouse established by it on the shore of 57; Hathaway v. Everett, 205 Mass. 246, 91 the Merrimac river, whereby the plaintiff's N. E. 296, 137 Am. St. Rep. 436), selectmen intestate, who had resorted to the bath house (Cushing v. Bedford, 125 Mass. 526; Pinkerfor the enjoyment of the facilities there af- ton v. Randolph, 200 Mass. 24, 85 N. E. 892), forded, while in the exercise of due care, boards of aldermen (Child v. Boston, 4 Allen was mortally injured by the giving way of 41, 51, 81 Am. Dec. 680), the city government the structure and its approaches, resulting (Griggs V. Foote, 4 Allen, 195), licensing from the negligence of the defendant and its boards (McGinnis v. Medway, 176 Mass. 67, servants. The bathhouse was maintained 57 N. E. 210), tax collectors (Alger v. Easton, under R. L. c. 25, 8820, 21. Thereby the 119 Mass. 77), constable and deputy collector defendant was authorized to purchase or of taxes (Dunbar v. Boston, 112 Mass. 75), lease land and erect or repair a building "for overseers of the poor (New Bedford v. Taunpublic baths" and to “make open bathing ton, 9 Allen, 207), servants in the discharge places" and to "provide instruction in swim- of fire works (Tindley v. Salem, 137 Mass. ming" and also to “establish rates for the 171, 50 Am. Rep. 289), those in charge of use of such baths." There is no averment celebrations, playgrounds, and public amusethat the defendant made any charge for the ments (Kerr v. Brookline, 208 Mass. 190, 94 use of the bathhouse. The argument before N. E. 257, 34 L. R. A. [N. S.) 464; Higginson us proceeded upon the assumption that no V. Treas. of Boston, 212 Mass. 583, 588, 99 charge was made, and that the bathhouse N. E. 523, 42 L. R. A. (N. S.) 215), boards of was established and maintained for the free health (Barry v. Smith, 191 Mass. 78, 88, 91, use of the public. The case must be consider-77 N. E. 1099, 5 L. R. A. [N. S.) 1028, ed on that footing.

Ann. Cas. 817), other health officers (Har[1] The general principles of law by which rington v. Worcester, 186 Mass. 594, 598, claims for liability in tort against cities and 72 N. E. 326), collectors of refuse (Johnson towns must be determined are well establish- v. Somerville, 195 Mass. 370, 81 N. E. 268, ed. The municipality, in the absence of spe- 10 L. R. A. (N. S.) 715), gatemen or drawcial statute imposing liability, is not liable, tenders (148 Mass. 544, Hawes v. Milton, for the tortious acts of its officers and serv. 213 Mass. 446, 100 N. E. 665), transit and ants in connection with the gratuitous per- subway commissioners (Mahoney V. Boston, formance of strictly public functions, impos- 171 Mass. 427, 50 N. E. 939), and officers ed by mandate of the Legislature or under-charged with enforcement of statutes as to taken voluntarily by its permission, from the removal of wires and electric appliances which is derived no special corporate advan- from streets (Postal Telegraph Cable Co. v. tage, no pecuniary profit, and no enforced Worcester, 202 Mass. 320, 88 N. E. 777). contribution from individuals particularly [2] On the other hand a municipality is benefited by way of compensation for use or answerable for the acts of its servants or assessment for betterments. A city or town agents in the conduct of functions volunis not liable, therefore, for negligent or tarily undertaken for its own profit and comtortious acts in the conduct of schools (Hillmercial in character, or to protect its corv. Boston, 122 Mass. 344, 23 Am. Rep. 332), porate interests in its own way. Thus it is the construction of schoolhouses (Howard v. liable for the acts of agents specially selected Worcester, 153 Mass. 426, 27 N. E. 11, 12 L. and deputed to repair highways to the ex

clusion of those public officers provided by powers the cities and towns, which vote to the law, on the ground that it is protecting adopt its provisions, "to establish rates for by quasi private instrumentalities its pecun- the use of such baths," and thus possibly to lary interest growing out of statutory liabil. i derive a revenue or profit from the undertakity for defects in highways. Butman v. ing. But, as has been pointed out, there is Newton, 179 Mass. 1, 60 N. E. 401, 88 Am. no allegation that there has been any rate St. Rep. 349; Waldron v. Haverhill, 143 charged in the case at bar. The simple posMass. 582, 10 N. E. 481. It is liable on the sibility that a charge might have been made same ground, for agencies used in lighting is not enough to transform that which in its streets. Dickinson v. Boston, 188 Mass. 595, main features as actually conducted is a 75' N. E. 68, 1 L. R. A. (N. S.) 664; Sullivan purely public duty rendered for the common v. Holyoke, 135 Mass. 273. So, also, it is lia- good into a quasi commercial adventure. ble for negligence in the management of its [5] In this respect the case is indistinwater department (Hand v. Brookline, 126 guishable in principle from city hospitals Mass. 324; Lynch v. Springfield, 174 Mass. maintained, not infrequently under special 430, 54 N. E. 871; Johnson v. Worcester, 172 statute, for the performance of a duty asMass. 122, 51 N. E. 519), in the operation of sumed for the benefit of the public. Alits sewer system (O'Brien v. Worcester, 172 though such institutions may receive pay Mass. 348, 52 N. E. 385; Allen v. Boston, 159 patients their public character is not lost Mass. 324, 34 N. E. 519, 38 Am. St. Rep. 423), thereby and no liability attaches to the muin running a ferry boat (Davies v. Boston, nicipality arising from negligence of those in 190 Mass. 194, 76 N. E. 663), in the letting charge. Benton v. Boston City Hospital, 140 of a public hall for profit (Little v. Holyoke, Mass. 13, 1 N. E. 836, 54 Am. Rep. 436. The 177 Mass. 114, 58 N. E. 170, 52 L. R. A. 417; case at bar is somewhat similar to that Oliver v. Worcester, 102 Mass. 489, 499, 3 Am. where a city has been exonerated from reRep. 485), in managing a farm, partly for the sponsibility for negligence in the care of its support of its poor, partly for the mainte-city hall, although housed in it rent free nance of its highway department, and partly were the commercial, revenue yielding defor the production of income (Neff v. Welles- partments of water, sewer and ferries. Kelley, 148 Mass. 487, 20 N. E. 111, 2 L. R. A. ley v. Boston, 186 Màss. 165, 71 N. E. 299, 66 500), in the operation of a stone crusher for LR. A. 429. It is not unlike the cases profit (Duggan v. Peabody, 187 Mass. 349, 73 where a slight revenue is obtained from the N. E. 206; Collins v. Greenfield, 172 Mass.labor performed at a public workhouse (Cur78, 51 N. E. 454), and in the maintenance of ran v. Boston, 151 Mass. 505, 24 N. E. 781, electric and gas lighting plants, for the use 8 L. R. A. 243, 21 Am. St. Rep. 465), a charge of which rates are charged (O'Donnell v. No. sufficient to cover the bare cost of removal of Attleborough, 212 Mass. 243, 98 N. E. 1084). steam engine ashes is collected in connection

[3] The difficulty lies not in the statement with the gratuitous removal of all ashes from of the governing principles of law, but in dwelling houses (Haley v. Boston, 191 Mass. their application to particular facts. The 291, 77 N. E. 888, 5 L. R. A. (N. S.) 1005), or underlying test is whether the act is for the a rental is received for the use of the tunnel common good of all without the element of and subways in Boston (Mahoney v. Boston, special corporate benefit or pecuniary profit. 171 Mass. 427, 50 N. E. 939), in each of which If it is, there is no liability, if it is not, there it has been held that the comparatively inmay be liability. That it may be undertaken significant element of income received did voluntarily and not under compulsion of not affect the dominating public character of statute is not of consequence. Tindley v. the enterprise, and did not render the city Salem, 137 Mass. 171, 50 Am. Rep. 289. liable for the torts of public officers and sery

[4] The maintenance of free public baths ants in performing such public duty. upon the bank of a river is in its essence a A similar conclusion was reached, as to public benefit. It is manifestly in the in- liability for negligence in the operation of a terests of the public health that the people bath house maintained by public authority, in have abundant facilities for cleanliness. Op-McGraw v. District of Columbia, 3 App. Cas. portunity for swimming under sanitary con- D. C. 405, 25 L. R. A. 691, although it does ditions and under the protection and with the not appear directly in that case that there instruction of public officers tends toward the was authority to make any charge. amusement of the people as well as their It follows that for the acts set forth in the healthful and athletic exercise. It belongs plaintiff's declaration the defendant is not to the same class of public service as munici- liable on the broad ground recognized in most pal playgrounds and swimming pools for jurisdictions that in the establisbment and small children. It is a kind of social ad- maintenance of purely public instrumentalvantage which the commonwealth long has ities devoted to the common good, as is a provided at Nantasket and Revere beaches bathhouse under the circumstances here dison a considerable scale. It is in its intrinsic closed, it acted as an agency of government characteristics a project for the general good in the performance of duties assumed solely of all the public.

for the benefit of the public. See Donohue v. The only doubtful aspect of the case arises Newburyport, 211 Mass. 561, 565, 98 N. E.

surance.

The demurrer to the plaintiff's declaration to rule that the value of the insured buildwas sustained rightly and judgment in favor ings destroyed, and the damage by fire, were of the defendant is

determined by the award, and these facts Affirmed.

were res judicata. The offer and the request

of the defendant were refused. (225 Mass. 538)

The jury found the damages to the plainDAY V. BOSTON & M. R. R.

tiff's property was $2,600 ; that the amount of (Supreme Judicial Court of Massachusetts. | insurance received by the plaintiff, less preMiddlesex. Jan. 8, 1917.)

miums paid and expenses, was $1,507.50. 1. EVIDENCE Cw113(13)-VALUE OF PROPERTY They returned a verdict for the plaintiff for DESTROYED BY FIRE-INSURANCE AWARD. $1,092.50.

Under St. 1906, c. 463, pt. 2, § 247, making The judge was right in denying the defendrailroads liable for fires set by sparks and giv ant's offer of proof and in refusing its reing them the benefit of insurance held by the injured owner, an insurance arbitration award quests for rulings. paid the property owner was not admissible in [1] The plaintiff's rights against the insuraction against road to show value of property ance company were under the contract of indestroyed.

Her rights against the defendant [Ed. Note.--For_other cases, see Evidence, Cent. Dig. $ 279; Dec. Dig. eww113(13).]

were by force of the statute. In the proceed2. RAILROADS 483-FIRES-DAMAGES.

ings before the arbitrators to recover the loss Under St. 1906, c. 463, pt. 2, & 247, the rail- under the policy, the defendant was not a road's liability to the owner is not limited to party and it was not bound by their decision. the amount of the insurance paid the owner. While the award is conclusive against the

[Ed. Note. For other cases, see Railroads, plaintiff and the insurer and their privies, it Cent. Dig. $$ 1737-1739; Dec. Dig. 483.]

could not be used in the action against the Exceptions from Superior Court, Middlesex railroad company by either the plaintiff or County ; Loranus E. Hitchcock, Judge. defendant, for the purpose of establishing the

Action by Eva J. Day against the Boston value of the premises destroyed. Its sole use & Maine Railroad. Judgment for plaintiff, was, under the statute, for the purpose of and defendant brings exceptions. Exceptions showing the amount of the insurance awardoverruled.

ed the plaintiff. See Edwards v. Stevens, 1 Clarence A. Barnes and Raymond P. Del: R. R., 3 Allen, 18, 80 Am. Dec. 49; Prentiss v.

Allen, 315; Todd v. Old Colony & Fall River linger, both of Boston, for plaintiff. Trull & Wier and J. M. O'Donoghue, all of Lowell, Willamette Towing Co., 49 Or. 204, 89 Pac.

Wood, 132 Mass. 486; Multnomah County v. for defendant.

389.

[2] Under the St. 1906, C. 463, pt. 2, § 247, CARROLL, J. This is an action under St. the railroad is, in effect an insurer against 1906, c. 463, pt. 2, § 247, which makes a rail- fire from its locomotives and must fully inroad company liable for damage to property demnify the owner for the value of the propby fire from its locomotive engines and gives erty destroyed. Wall v. Platt, 169 Mass. 398, to the corporation the benefit of any insur. 48 N, E. 270 ; Hammond v. N. Y., N. H. & H. ance effected upon the property by the owner, R. R., 211 Mass. 549, 98 N. E. 582. And alless the cost of premium and expense of re though the damages are to be reduced by the covery.

ipsurance received, the damages sustained “The money received as insurance shall be deducted from the damages, if recovered before

are not determined by the amount of insurthey are assessed; and if not so recovered, the ance, nor the sum received by the insured. policy of insurance shall be assigned to the cor. In fact, the statute expressly provides if inporation which is held liable in damages, and surance is received, it is to be deducted from it may maintain an action thereon."

the damages, thus giving the railroad comThe buildings of the plaintiff were destroy- | pany the benefit of any insurance, so far as ed by fire from one of the defendant's loco is adequate, to compensate for the loss. Lymotives. All of these buildings, with the ex ons v. B. & L, R. R., 181 Mass. 551, 64 N. E. ception of a tool house, were insured against 404. The plaintiff, therefore, could not be fire in the sum of $1,900. The plaintiff and prevented from recovering her actual dam. the insurer could not agree on the amount of ages, deducting therefrom the amount of inthe loss sustained, and under the terms of surance received, and the judge was right in the policy the question was submitted to arbi- refusing the defendant's requests. The railtrators, who found the amount of loss to be road company was not a party to the award $1,830, which sum was paid to the plaintiff. nor privy to the parties; and the amount of At the trial the award of the arbitrators was the plaintiff's damages and the value of the in evidence, the court limiting its use to property destroyed were not res judicata by showing the amount of insurance secured by reason of the award of the arbitrators, Mcthe plaintiff, the defendant offering the award Carthy y. Wood Lumber Co., 219 Mass. 566, as evidence of the value of the buildings de 107 N. E. 439. stroyed. The defendant also asked the judge Exceptions overruled.

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

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DENCE.

(225 Mass. 574)

cusation. There was evidence to show the AKESON V. DOIDGE.

constancy of her accusation: her own state(Supreme Judicial Court of Massachusetts. ment that she continued to accuse the defend. Middlesex. Jan. 10, 1917.)

ant during her travail, as well as the evi1. BASTARDS 58 PROCEEDINGS Evidence of those who heard her, was clearly DENCE.

admissible. Murphy v. Spence, 9 Gray, 399; Under Rev. Laws, c. 82, $ 16, expressly pro- Reed v. Haskins, 116 Mass. 198; Scott v. viding that the accusation of the mother in the time of travail may be permitted in evidence to Donovan, 153 Mass. 378, 26 N. E. 871. corroborate her testimony, if she accuses the The complainant was permitted to testify, same man of being the father of her child at subject to the defendants exception, that in the examination under section 1, and in her | November, 1911, in the presence of Dr. travail, provided she continues constant in such accusation, the statement of prosecutrix herself Morse and her mother (the defendant not that she continued to accuse defendant during being present), when she found she was preg. her travail, as well as the evidence of those nant, she charged him (the defendant) with who heard her, was admissible in a bastardy being the father of her unborn child. This proceeding; there being

evidence to show the evidence was not admissible. It did not come constancy of her accusation. [Ed. Note.-For other cases,

see Bastards, within the terms of the statute, nor was It Cent. Dig. 88 157-160; Dec. Dig. 58.) admissible at common law. Burns v. Donog. 2. BASTARDS C 58 PROCEEDINGS Evi- hue, 185 Mass. 71, 69 N. E. 1060, does not

support the contention of the complainant on In bastardy proceeding, testimony by prose; this point. In that case the complainant was cutrix that in the presence of her mother and another, the defendant not being present and asked if, from the first, she accused the de before making her complaint provided for in fendant of being the father of her child; Rev. Laws, c. 82, 8 1, she charged defendant and she answered in the affirmative. Her with paternity of her unborn child, was inadmissible, being mere hearsay, and not within the mother was asked if she had ever heard her terms of section 16, as to admissibility of accu- daughter accuse any other person of being sations by prosecutrix after making accusation the father of the child; and she said she had before magistrate, etc.

pot. This evidence was admitted as tending [Ed. Note. For other cases, see_Bastards, to show constancy by the complainant, and Cent. Dig. 88 157-160; Dec. Dig. Om58.)

the words "from the first” were held to refer Exceptions from Superior Court, Middle-to the accusation before the magistrate, unsex County; John F. Brown, Judge.

der R. L. C. 82, § 1. "Such accusation," in R. Bastardy proceeding by Alice H. Akeson L. C. 82, § 16, refers to the accusation before against John J. Doidge. Defendant was the magistrate, and if constant in accusing found guilty, and excepts. Exceptions sus- the same man after this time the statute tained.

makes her accusation in time of travail eviW. Adams and D. C. Ahern, both of South dence to corroborate her testimony. In the Framingham, for complainant. J. W. & T. case at bar the evidence objected to was a F. McAnarney, of Boston, for defendant.

self-serving declaration made in the absence

of the defendant, it was made on November CARROLL, J. The complainant accused 20, 1911, prior to her examination of Decemthe defendant of being the father of her ber 18, 1911, before the magistrate, and not child born March 22, 1912.

in the time of her travail. For the reason

The complaint in the First district court of Southern Mid- that this evidence of her statements on Nodlesex was made on December 18, 1911, and vember 20, 1911, was erroneously admitted, in October, 1915, in the superior court, the the exceptions must be sustained.

So ordered. defendant was found guilty.

The complainant was a witness and testified that the defendant was the father of

(226 Mass. 58) her child. Subject to the defendant's excep- REGAN V. JOHN L KELLY CONTRACT. tion, she stated that on the 22d of March,

ING CO. 1912, in the time of her travail, after her

(Supreme Judicial Court of Massachusetts. labor pains began und before the birth of

Suffolk. Jan. 8, 1917.) the child, she accused the defendant of be

1. MUNICIPAL CORPORATIONS 705(2) ing the father. The doctor, her mother and STREETS—RIGHT OF WAY-USE, Miss Allen, who were present, corroborated If the driver of an automobile truck, going her, the defendant excepting to their evi- in the same direction as a street car, suddenly

turns in front of it and without warning atdence.

tempts to cross the track, and a collision re[1, 2] The statute, R. L. C. 82, § 16, ex- sults, he is negligent. pressly provides that the accusation of the

[Ed. Note.-For other cases, see Municipal mother in the time of travail may be per- Corporations, Cent. Dig. $ 1515; Dec. Dig. mitted in evidence to corroborate her tes

70512).] timony, if she accuses the same man of be 2. MUNICIPAL CORPORATIONS C705(2) ing the father of her child at the examination

STREETS-RIGHT OF WAY-USE.

If a driver of an automobile truck in crossunder R. L. C. 82, § 1, and in her travail. ing a street from an alleyway gave no signal provided she continues constant in such ac- l after leaving the alley and continued at the

same rate of speed without attempting to avoid the truck, going in the same direction as the an approaching street car, he was negligent. [Ed. Note. For other cases, see Municipal out warning attempted to cross the tracks,

car, suddenly turned in front of it, and withCorporations, Cent. Dig. § 1515; Dec. Dig. Om705(2).]

the Jury could have found him to have been 3. MASTER AND SERVANT Om 302(2)—SCOPE OF negligent. Or, if crossing Washington street EMPLOYMENT-EVIDENCE.

from the alleyway, he gave no signal after Where on the day of an accident a truck leaving it, continued at the same rate of speed, driver was directed by the superintendent to dump a load in a lot back of some houses on and made no attempt to avoid the car, it could an alleyway, and on returning from such er- also have been found that he was careless. rand and on his way to the garage he struck a

[3] The work of asphalting Union Park street car, there was sufficient evidence that be street from Harrison avenue to Washington was acting within the scope of his employment.

[Ed. Note. For other cases, see Master and street was going on, and the truck was used Servant, Cent. Dig. 88 1218, '1219; Dec. Dig. in carting material to this place from a 302(2).]

crusher on Columbia road. On the day of Exceptions from Superior Court, Suffolk the accident, the driver was directed by the County; George A. Sanderson, Judge. superintendent to dump the last load that

Action by Agnes egan gainst the John day in a vacant lot back of some houses on L. Kelly Contracting Company. On defend this alleyway. He was returning from there ant's exceptions to an order overruling mo- and was on his way to the garage when the tion for a directed verdict in its favor. Ex-collision took place. This was sufficient eviceptions overruled.

dence that the driver was acting within the Francis J. Harrigan, John J. O'Hare, and 224 Mass. 319, 112 N. E. 1007.

scope of his employment. Robinson v. Doe, Chas. Toye, all of Boston, for plaintiff. Albin

Exceptions overruled. L. Richards, of Boston, for defendant.

CARROLL, J. The plaintiff, while a pas

(225 Mass. 432) senger riding on the front seat of an open CHESHIRE NAT. BANK v. JAYNES et al. street car, was injured when the car collided (Supreme Judicial Court of Massachusetts. with a motor truck belonging to the defend

Suffolk. Jan. 4, 1917.) ant. The jury found for the plaintiff. The 1. GARNISHMENT Om 61-EXECUTORS AND ADdefendant claimed there was no evidence MINISTRATORS-CHARACTER OF POSSESSION. that it was negligent nor that the driver of As executors and administrators derive their the truck was acting within the scope of his authority over property from the law, their

possession is the possession of the law. employment, and moved that a verdict be di

(Ed. Note.-For other cases, see Garnishment, rected in its favor. The motion was over- Cent. Dig. $ 119; Dec. Dig. Om 61.] ruled and the defendant excepted.

2. GARNISHMENT Om 36-INTEREST OF LEGATEE [1, 2] About 5 o'clock in the afternoon of -LIABILITY TO TRUSTEE PROCESS-STATUTE. June 12, 1913, on Washington street near Un- legacies, goods, effects, or credits due from or

Rev. Laws, c. 189, $ 20, provides that debts, ion Park street, the plaintiff was injured, in the hands of an executor or administrator as on a North Station car which she had taken such may be attached in his hands by the trusat Upham's corner. She testified that, when tee process. The will of defendant's father gave

him "the sum of $50,000, to be paid to him, in she first saw the truck, it was on her right, cash or securities at the market value thereof, "just outside of those irons that hold the L as he may elect, without interest, within one road up," "coming the same way the car did,” year from the final probate and allowance of

my will." Trustee writ was served on the ex"just going to cross the street.” “I am not ecutors of the will, and the court granted plainsure but it came right in front of the car.” | tiff's motion to charge them for a sum certain, "The front part of the truck was right out- basing his action on a ruling that they were side of that (the supporting irons) and it was the lien of the trustee process took effect and

chargeable by reason of the bequest. Heid, that in that position when I saw it making for held the defendant's interest in the property the track.” On this evidence the jury could that might eventually come into the hands of find that the driver of the truck, moving in the executors for the payment of the legacy in

question, and that the rights secured by the atthe same direction as the car, turned at this tachment could not be defeated or affected by a point and crossed the track. This evidence subsequent election made by the debtor to whose was contradicted in part by the driver of the rights plaintiff succeeded. truck who testified that he came from an Cent. Dig. 88 63-65; Dec. Dig. Em36.]

(Ed. Note.-For other cases, see Garnishment, alleyway leading from Washington street,

3. GARNISHMENT 175—TRUSTEE PROCESS went directly across the street and did not

AGAINST EXECUTORS-CHARGING EXECU. move alongside of the car in the same direc

TORS WITH SUMS CERTAIN-STATUTE. tion. He blew his horn as he approached the

Where defendant's father left him $50,000 street, but gave no further signal; and al- in cash or securities, as he might elect, to be

paid within a year, which was more than plainthough there was nothing to obstruct the tiff's debt, and plaintiff served trustee process view, he saw the car for the first time when on the father's executors under Rev. Laws, c. his wheels were upon the track, and he then 189, § 20, the superior court properly charged made no effort to change the rate of speed Laws, c. 189. $ 39, it is ordinarily unnecessary

the trustees with a sum certain, though, by Rev. at which he was moving. If the driver of I to specify in the judgment the amount for which

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

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