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a trustee is chargeable, which may be left to ministrators derive their authority

orer be ascertained on scire facias, for if plaintiff property from the law, their possession is should be obliged to sue on the administration bond for failure of the trustees to pay the judg. the possession of the law, and they were not ment, it must have judgment for a sum

certain considered "debtors” of any persons who by section 56.

might be entitled to the funds so held. (Ed. Note. For other cases, see Garnishment, Barnes V. Treat, 7 Mass. 271; Brooks v. Cent. Dig. 88 315-322; Dec. Dig. Om175.]

Cook, 8 Mass. 246. When the Legislature Exceptions from Superior Court, Suffolk undertook to provide means for reaching the County ; Marcus Morton, Judge.

interest of a legatee for the payment of his Action by the Cheshire National Bank debts, it made use of the existing trustee against Charles W. Jaynes and trustees, process. Where no special provision was wherein the court granted plaintiff's motion made, presumably it was intended that this to charge the trustees on their answers and new application of the process should in the the answers to plaintiff's interrogatories for main be governed by the general principles, a sum certain, and the trustees except. Ex- and limitations existing in ordinary trustee ceptions overruled.

process; especially when the property sought Bates, Nay & Abbott, and Robt. E. Buf- was "goods, effects or credits,” due from or fum, all of Boston, and John E. Benton, of in the hands of the executor or administraKeene, N. H., for plaintiff. John G. Palfrey tor. Nevertheless it was early decided that and Francis S. Moulton, both of Boston, for the right of a legatee to a legacy (Holbrook alleged trustees.

v. Waters, 19 Pick. 354), and the interest of

an heir in a distributive share of an intesDe COURCY, J. As against the principal were subject to be attached on trustee pro

tate estate (Wheeler v. Bowen, 20 Pick, 563), defendant, Charles W. Jaynes there was trial on the merits and a finding for the would be sufficient assets to pay the same,

cess before it was ascertained that there plaintiff in the sum of $14,263.23. The de

notwithstanding the general provision of fendant was a beneficiary under the will of his father, Charles P. Jaynes one of the the trustee statute that no person should be legacies being as follows:

adjudged a trustee "by reason of any money "Also I give him my said son the sum of fifty or other thing due from him to the princithousand dollars to be paid to him in cash or pal defendant, unless it is, at the time of the securities at the market value thereof as he service of the writ on him, due absolutely may elect without interest within one year from and without depending on any contingency." the final probate and allowance of my will."

R. S. C. 109, $ 30; R. L. C. 189, § 31. And The executors were duly appointed and it is to be noted that by section 56 a spequalified in Middlesex county, November 4, cial remedy was provided for the enforce1912. This trustee writ was served on them ment of a judgment against the executor or as trustees on the following day, November administrator as trustee, by a suggestion of 5, 1912. After the rescript in May, 1916 (see waste or a suit on the administration bond. Cheshire National Bank y. Jaynes, 224 Mass.

[2] In the case at bar, however, we do not 14, 112 N. E. 500) the action against the prin- find it necessary to deal with the consideracipal defendant was continued for judgment. tions urged in the able argument of counsel Later the court granted the plaintiff's mo- for the alleged trustees, and to determine to tion to charge the trustees upon their an- what extent trustee process against execuswers and the answers to the plaintiff's in-tors is subject to the same principles and terrogatories and supplemental interrogato- limitations applicable to trustee process genries, for a sum certain, namely, the sum of erally; or to decide whether it can operate $14,263.23 and interest from February 10, only “upon a specific bequest of attachable 1914, the date of the finding, and costs. As the judge based his action on a ruling that shares which are payable in money or other

property or upon legacies or distributive the alleged trustees were chargeable by rea- attachable property upon which the officer son of the fifty thousand dollar bequest,

can levy execution." The legacy under conabove recited, we need consider only the exceptions to the ruling and refusals to rule sideration was a general legacy. The prinrelating to that legacy.

cipal debtor was entitled to $50,000. The op[1] The statute under which the plaintiff tion to choose cash or “securities at the

market value thereof,” given to him and to proceeded is as follows:

some of the other legatees, was his right "Debts. legacies, goods, effects or credits due from or in the hands of an executor or adminis- and not that of the executors. He had not trator as such may be attached in his hands by elected to take securities when the trustee the trustee process." R. L. c. 189, $ 20.

process was served on them. The lien then It is substantially a re-enactment of R. S. took effect, and held the defendant's interc. 109, $ 62. See Report of Commissioners to est in the property that might eventually revise the General Statutes. Part III, p. 209, come into the hands of the executors for note. Before the enactment of the earlier the payment of the legacy in question. Mestatute an executor could not be charged as chanics' Sav. Bank v. Waite, 150 Mass. 234, the trustee of one to whom a pecuniary leg. 22 N. E. 915. The rights secured by the at

subsequent election made by the debtor, to Exceptions from Superior Court, Essex whose rights the plaintiff had succeeded. County; George A. Sanderson, Judge. See Hoar v. Marshall, 2 Gray, 251, 254. Action by Robert Anderson by his next Whether the plaintiff could have reached friend, against the Wood Worsted Mills. the legacy by a bill to reach and apply, if Verdict directed for defendant, and plaintifr brought after an election, by the debtor to brings exceptions. Exceptions overruled. take securities instead of cash, need not now

John P. S. Mahoney and O. J. Mahoney, be considered. See Ricketson v. Merrill, 148 both of Lawrence, for plaintiff. Danl. J. Mass. 76, 19 N. E. 11; Travelers’ Ins. Co. v. Murphy, of Lawrence, for defendant. Maguire, 218 Mass. 360, 105 N. E. 1023; St. 1910, c. 531; Id. C. 171, $ 13.

CARROLL, J. The plaintiff at the time of [3] Finally, the superior court was not in his injury, September, 1911, was fifteen years error in charging the trustees with a sum old. He had attended the public schools in certain. Ordinarily it is not necessary to Lawrence, including the grammar school, specify in the judgment the amount for until he was fourteen years of age. From which a trustee is chargeable (R. L. C. 189, four to six days previous to the accident, $39); and it may be left to be ascertained he was employed by the defendant in the on scire facias. See Jarvis y. Mitchell, 99 work of pushing a bobbin truck from the Mass. 530. But here the trustees were exec-weave-room on the third floor to the elevator utors, the legacy in question was much lar- on that floor, thence to the spool-room on the ger than the plaintiff's claim; and if the sixth floor. The truck was about eight feet plaintiff should be obliged to sue on the ad- long and between three and four feet wide. ministration bond because of the failure of The elevator was ten feet in width and elev. the trustees to pay the judgment, it must en 'feet ten and one-half inches in length. have judgment for a sum certain., R. L. C. As the elevator went up and down, it auto189, § 56; Cunningham V. Hogan, 136. Mass. matically worked a gate on each floor of the 407.

building and on both sides of the elevator, It follows from what has been said that designed to prevent people from falling into the entry must be:

the well. The gate fitted into a "recess" or Exceptions overruled.

"overhang" back on the face of the wall,

about four inches wide and extending up(225 Mass. 519)

wards about two feet. Between the elevator ANDERSON v. WOOD WORSTED MILLS. platform and the entrance to the well there

was a space of one inch. While the elevator (Supreme Judicial Court of Massachusetts.

was ascending, as it neared the spinningEssex. Jan. 10, 1917.)

room, the plaintiff's heel was caught between 1. MASTER AND SERVANT Om 2190)-INJURIES the elevator and the “recess" or "overhang." -OBVIOUS DANGERS-ELEVATOR.

The judge directed a verdict for the defendA 15 year old employé who caught his foot

ant. between an elevator platform and a "recess" or "overbang" in the wall could not recover dam [1, 2] There was no evidence of negligence age, as it was not negligence to so maintain the on the defendant's part. The condition of elevator; its condition being obvious.

the elevator was open and plain to be seen. [Ed. Note.-For other cases. see Master and As was stated by Sheldon, J., in McDonald Servant, Cent. Dig. 88 613, 615; Dec. Dig. O 219(6).]

v. Dutton, 198 Mass. 398, 400, 84 N. E. 431,

435, a case very similar to the one at bar: 2. MASTER AND SERVANT 153(3)-INJURIES -WARNING SERVANT-OBVIOUS DANGERS.

"The defendants had a right to assume under An employer not required to warn a 15 these circumstances that their servants riding year old servant of the danger of catching his upon this elevator would not allow their feet foot between the elevator platform and wall to go beyond the limits of the platform." where the condition is obvious.

The plaintiff was instructed by a fellow[Ed. Note. For other cases, see Master and employé when he began work, but receive Servant, Cent. Dig. § 31642; Dec. Dig.

ed no instructions "whatsoever as to the con153(3).]

struction of the elevator.” The defendant 3. MASTER AND SERVANT 265(12) INJUBIES–NEGLIGENT FELLOW SERVANT.

was not required to instruct the plaintiff That an employé was injured by the negli and warn him of the danger of getting his gence of a fellow servant operating an elevator foot caught if it projected over the limits does not show negligence on the master's part in of the platform. That'was an obvious danger retaining such fellow servant in his employ.

and must have been known to the plaintiff. (Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 891, 906; Dec. Dis. Suas tent operator was in charge of the elevator,

[3] The plaintiff contends that an incompe265(12).) 4. MASTER AND SERVANT E219(6)—INJURIES and because of the defendant's failure of du-GUARDS-OBVIOUS DANGERS.

ty in this respect, he is entitled to recover. The lack of a guard on an elevator where it is enough to say that there was no evian employé was injured is immaterial where dence to support this contention. The only such absence was obvious.

fact relied on is that of the conduct of the (Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 613, 615; Dec. Dig.

operator at the time the plaintiff was injur219(6).)

ed. Even if the operator were negligent at

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

that time, which we do not mean to intimate, in the direction of the Newton car, the Waterit is not enough to show negligence on the town car started, and as it rounded the curve part of the master in retaining him in its em to enter the barn the side of it struck her. ploy. Olsen v. Andrews, 168 Mass. 261, 47 She was familiar with the locality and knew N. E. 90; Smollett v. Ballou, 225 Mass. 197, that the Watertown car was to enter the car 114 N. E. 200.

barn and that the curve from the street to the [4] There was no error in excluding the barn was a sharp one. There was a verdict evidence offered by the plaintiff, namely, for the plaintiff. that the construction of the elevator well was In her declaration the plaintiff alleged that defective and that by placing a guard, the while transferring from the Watertown to the injury could have been prevented. The ab- Newton car, she was a passenger. The presence of such a guard was obvious. O'Con- siding judge left it to the jury to decide nor v. Whittall, 169 Mass. 563, 48 N. E. 844, whether, on the facts shown, she was such, and cases cited.

and the defendant's exception to this instrucExceptions overruled.

tion presents the only question for decision.

[1] The plaintiff when injured, was not on

the defendant's premises, nor at a station or (225 Mass. 570)

platform in use for the purpose of transferNILES v. BOSTON ELEVATED RY. CO.

ring passengers and within the control of (Supreme Judicial Court of Massachusetts. the carrier; neither was she under its direcMiddlesex. Jan. 10, 1917.)

tion and within its care. She was upon a 1. CARRIERS. Om 247(5)-CARRIERS OF PASSEN- public highway where she was exposed to GERS "PASSENGER.

In Where a street car passenger had left the dangers not caused by the defendant car and was injured while not on the railway passing from one car to the other she could premises nor at a station or platform for the go on either side of the car, she could choose purpose of transferring passengers, nor under her own way and her movements were entirethe direction or care of the carrier, but on a ly under her own guidance. While so walkpublic highway while transferring to another car, where she could bave chosen her own ing on a public highway and in transferring route, she was not as a matter of law a "pas- from one car to the other, as matter of law, senger."

she was not a passenger. [Ed. Note.-For other cases, see Carriers, Cent, Dig. $ 993; Dec. Dig. 247(5).

There may be cases where there is evi. For other definitions, see words and Phrases, dence to show that the carrier assumes to First and Second Series, Passenger.]

direct the movements of persons while up2. STREET RAILROADS 93(1)-INJURIES TO on the highway, or where such a duty rests PEDESTRIANS-NEGLIGENCE-LIABILITY. upon it and where the facts justify the find

If a street railway is guilty of negligence ing that although upon the highway, they and thereby strikes a pedestrian with one of its cars, it is liable, but cannot be held to the are in the care of the carrier and the relahigh degree of care required of a carrier toward tion of passenger and carrier exists. But its passengers.

there are no such facts in the case at bar. [Ed. Note.-For other cases, see Street Railroads. Cent. Dig. $$ 195, 198–200; Dec. Dig. 488, 105 N. E. 436, the passenger was injured

In Wakeley v. Boston Elev. Ry., 217 Mass. Om93(1).]

while in the act of alighting from a car, by Exceptions from Superior Court, Middle- stepping into a depression. In Powers . sex County; Frederick Lawton, Judge. Old Colony St. Ry., 201 Mass. 66, 87 N. E.

Action by Francis D. Niles against the 192, the running of the defendant's cars was Boston Elevated Railway Company. On de- interrupted by the abolition of a grade crossfendant's exception to the giving of an in- ing, and it was necessary for the passengers struction, Exceptions sustained.

to leave the cars and go around the obstruo F. H. Stevens, of Boston, for plaintiff. tion on foot, to take other cars in order to Francis J. Carney, of Boston, for defendant. continue their travel. The defendant prepar

ed a way over adjoining land for its patrons CARROLL, J. The plaintiff was a passen- to pass. It pointed out this way to them and ger on one of the defendant's cars in Water- invited them to use it, and by so doing, astown, intending to go to Newton. This car, sumed an obligation to provide reasonably hereafter referred to as the Watertown for their safety; it was held that the quescar, went no farther than the car barn, Galen tion of the defendant's care was for the jury. Street, Watertown, and it was necessary for In the case of Gurley v. Springfield St. Ry., her to change there in order to enter the 206 Mass. 534, 92 N. E. 714, the plaintiff was Newton car, which was about three car- upon the defendant's premises when injured. lengths farther on in a direct line. When In Tompkins v. Boston Elev. Ry., 201 Mass. the Watertown car stopped at the car barn, 114, 87 N. E. 488. 20 L. R. A. (N. S.) 1063, the conductor said. “All change here. All 131 Am. St. Rep. 392. The plaintiff stepped change. All change for Newton." The pas- from the front vestibule of a crowded surface sengers then alighted, the plaintiff being the car to permit other passengers to alight, and last one in the car, and leaving at the rear was injured by the car starting when he had end. While she was walking on Galen Street one foot on the step "and was putting up the

other foot." It was there held he was a 610, that in appeals from decrees of propassenger.

bate courts : All of these cases are to be distinguished "The objections to the decree appealed from from the case before us: In none of them must be filed in this court simultaneously with was the injured person a traveler on a pub- must disclose the issue to be tried, being in

the entry of the appeal, that these objections lic street. In the case at bar there was no the nature of an assignment of errors, and that assumption of the duty of directing the move the jurisdiction of the court to try the case on ments of passengers, nor was there any hold the appeal depends upon compliance with the

conditions imposed by the statute. R. L. C. ing itself out as a carrier of passengers in' 162, g 10.*** Lineban v. Linehan, 223 Mass. protecting the safety of those who were 297, 111 N. E. 901. travelling from one car to the other.

To the same effect is Bartlett v. Slater, [2] If the defendant was guilty of negli- 183 Mass. 152, 66 N. E. 631, where the subgence, it was, of course, liable to the plainject is discussed fully. It may not be inaptiff; but it cannot be held to that high de propriate to add that there is nothing on the gree of care required of a carrier towards its face of the papers to indicate want of jurispassengers. See Duchemin v. Boston Elev. diction in the probate court. It follows that Ry., 186 Mass. 353, 71 N. E. 780, 66 L R. A. there was no jurisdiction in the Supreme 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603. Judicial Court to consider the appeal. The plaintiff cannot recover under her

Decree dismissing appeal affirmed. present declaration. The question of a proper amendment is for the Superior Court to

(225 Mass. 531) pass on.

GILLESPIE V. BOPP. Exceptions sustained.

(Supreme Judicial Court of Massachusetts

Suffolk. Jan. 8, 1917.) (225 Mass. 438) HALL V. BOYNTON.

ASSAULT AND BATTERY 26TORT ACTION

BURDEN OF PROOF-SELF-DEFENSE. (Supreme Judicial Court of Massachusetts. Defendant in tort action for assault and Essex. Jan. 5, 1917.)

battery has the burden of proving his allegation

that he acted in self-defense. APPEAL AND ERROR 362(1) - PROCEEDINGS FOR APPEAL_OBJECTIONS TO DECREE.

[Ed. Note.-For other cases, see Assault and Where no reasons for the appeal or objec-Battery. Cent. Dig. $ 36;

Dec. Dig. am 26.j tions to a decree appointing a trustee of the real estate of a nonresident were filed with the County; Lloyd E. White, Judge.

Exceptions from Superior Court, Suffolk appeal as required by Rev. Laws, C. 162, 8 10, the Supreme Judicial Court acquires no ju Action by James Gillespie, by his next risdiction.

friend, against Louis Bopp, Jr. On defend[Ed. Note.-For other cases, see Appeal and ant's exceptions to an instruction and verError, Cent. Dig. SS 1960, 3282-3284; Dec. Dig. 362(1).]

dict for plaintiff. Exceptions overruled. Appeal from Supreme Judicial Court, Es

Frost & Breath, of Boston, for plaintiff. sex County.

Samuel R. Cutler and Harry W. James, both Petition by Dwight Hall for appointment

of Boston, for defendant. as trustee of the real estate under the will of a nonresident. From a decree granting

CARROLL, J. This is an action of tort prayer of the petition, Eben Moody Boynton for assault and battery. The defendant exappealed. Decree dismissing appeal afirmed. cepted to that part of the judge's charge

where he instructed the jury that the burden Eben Moody Boynton, of Boston, pro se.

was upon the defendant “to prove the right Berry & Bucknam, of Boston, for appellee.

to use force; that is, to prove to you that RUGG, C. J. Dwight Hall brought a peti- this in self-defense.” There was a verdict

he was set upon by a crowd and that he did tion in the probate court for the county of

for the plaintiff. Essex, alleging that he was trustee by appointment of a court of competent jurisdic- acted in self-defense, and the judge correctly

It was for the defendant to show that he tion of the state of New Hampshire, under ruled that the burden of proving his justifithe will of John C. Hastings, who deceased a cation for the assault was upon him. As was resident of that state, and that there was real estate in Essex county belonging to the expressed by Dewey, J., in St. John v. Eastestate of the decedent, and praying for his ern Ry. Co., 1 Allen, 544: appointment as trustee of the real estate in tion of trespass for an assault upon the per

“The general rule certainly is that, in an acthis commonwealth. A decree granting the son, the plaintiff having established the allegaprayer of the petition was entered.

tions in his declaration as to the assault and E. Moody Boynton filed notice of his claim beating, any excuse or justification therefor

is to be shown by the defendants." Hathaway v. of an appeal from this decree. But no rea- | Hatchard, 160 Mass. 296, 35 N. E. 857; Mountsons for the appeal or objections to the de- ford v. Cunard S. S. Co., 202 Mass. 345, 346, cree were filed. It was decided in Codwise v. 88 N. E. 782. Livermore, 194 Mass. 445, 446, 80 N. E. 609, Exceptions overruled.

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

(225 Mass. 500)

“The main purpose of these provisions of the AMERICAN SECURITY & TRUST CO. et al. practice act was to substitute, in place of the V. BROOKS.

tedious, expensive and complex process of a

bill of discovery on the equity side of the court, (Supreme Judicial Court of Massachusetts. an easy, cheap, and simple mode of interrogating Suffolk. Jan. 5, 1917.)

an adverse party, as incident to and part of the

proceedings in the cause in which the discovery 1. DISCOVERY Owl-IN EQUITY-STATUTORY was sought." REMEDY-EXCLUSIVENESS. The statutory provisions authorizing a par

(1) The statutory provisions authorizing ty to interrogate the adverse party have not a party to interrogate the adverse party have taken away the jurisdiction of a court of equity not taken away the jurisdiction of the court to entertain bills of discovery.

to entertain bills of discovery Post & Co. [Ed. Note. For other cases, see Discovery, v. Toledo, Cincinnati & St. Louis R. R., 144 Cent. Dig. $ 1; Dec. Dig. 1.]

Mass. 341, 11 N. E. 540, 59 Am. Rep. 80. 2. DISCOVERY 4-IN EQUITY-NECESSITY OF PENDING ACTION.

[2] A bill for discovery cannot be maintainA bill for discovery cannot be maintained if ed if it is not incidental to any relief which it is not incidental to any relief which the the court has the right to grant, Brown v. court has the right to grant, but it may be Corey, 191 Mass. 189, 77 N. E. 838, although brought in aid of a suit which the plaintiff intends to bring as well as where the suit has al- it may be brought in aid of a suit which the ready been commenced, if it discloses a cause plaintiff intends to bring as well as where the of action.

suit has already been commenced, if the bill [Ed. Note. For other cases, see Discovery, discloses a cause of action. Cent. Dig. & 5; Dec. Dig. 4.]

The right to discovery in equity originally 3. DISCOVERY OM 15 IN EQUITY SUIT existed only where there was a cause of acAGAINST STRANGER TO CAUSE.

Where the discovery was apparently sought tion in which the defendant named in the because the parties could not agree upon the bill was a party, and wherein it appeared compensation which the defendant was to res that the plaintiff had a cause of action and ceive for making a collection and the defendant appears to be a stranger to any contemplated that discovery was necessary to enable the litigation between the plaintiff or those from party seeking discovery to prosecute or de whom it is stated in defendant's letter that an fend his rights. alleged claim is due, although defendant may

[3] It is a general rule that a bill for disbe a witness, the letter merely reciting that there is a claim against a third person which covery will not lie against one who is not the defendant thinks he can collect, a bill for a party to the contemplated litigation but discovery cannot be maintained.

is a stranger to it, or who is only a witness. (Ed._Note.-For other cases, see Discovery, Post & Co. v. Toledo, etc., R. R., supra. Kelly Cent. Dig. $ 16; Dec. Dig. 15.]

V. Morrison, 176 Mass. 531, 536, 57 N. E. 4. DISCOVERY 15 COSTS STATUTE EFFECTS.

1018. Queen of Portugal v. Glyn, 7 Cl. & Fin. Rev. Laws, c. 203, § 13, allowing costs to 466. defendants in suits seeking discovery only and The general rule that discovery will not lie not a decree, although a decree is prayed for, if against a person who has no interest in the the court is satisfied that the prayer is frivolous and mere, pretense, was not intended to change litigation and who could be called as a witthe rule in equity that a bill of discovery will ness, is subject to some exceptions. Accordnot lie against strangers to the contemplated ingly it has been held that in suits against litigation,

corporations its members and officers may [Ed. Note. For other cases, see Discovery, be compelled to make disclosure of such Cent. Dig. & 16; Dec. Dig. 15.]

facts within their knowledge as the corporaAppeal from Superior Court, Suffolk tion, if a natural person could have been com. County.

pelled to disclose. In the case of Queen of Bill for discovery by the American Securi- Portugal v. Glyn, 7 Cl. & Fin. 466, which ty & Trust Company and others against was a bill for discovery, it was said at page James I. Brooks. From a decree sustaining a 488: demurrer to the bill, the plaintifs appeal. "The cases of officers of corporations stand on Affirmed.

principles entirely peculiar to themselves, and

have obviously no application to the present Peabody, Arnold, Batchelder & Luther, of case.” Wright v. Dame, 1 Metc. 237; Post & Boston, for appellants. Wm. M. Noble, of Co. v. Toledo, etc., R. R., supra. Boston, for appellee.

Perhaps also persons who act as agents

may be required under certain circumstances CROSBY, J. This is a bill in equity in to disclose facts concerning litigation in which the plaintiff seeks discovery only from which their principals are parties. the defendant. There is no doubt of the

The rule is stated in Post & Co. v. Toledo, jurisdiction of the court to entertain bills for etc., R. R., supra, as follows: discovery, although the usefulness of such covery from persons who sustain no other rela

"It is clear that courts do not compel dis. bills has, to a great extent, been taken away tion to the contemplated litigation, or to the by statutes authorizing interrogatories to subject of the suit than that of witnesses, and the adverse party and compelling such party it is also clear that a bill for discovery can.

not be used to enable the plaintiff to fish for to testify at the trial. In Wilson v. Webber, linformation of any causes of action he may have 2 Gray, 558, at 561, it was said by Bigelow, J.: against other persons than the defendants."

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