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Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by the Cheshire National Bank against Charles W. Jaynes and trustees, wherein the court granted plaintiff's motion to charge the trustees on their answers and the answers to plaintiff's interrogatories for a sum certain, and the trustees except. Exceptions overruled.

Bates, Nay & Abbott, and Robt. E. Buffum, all of Boston, and John E. Benton, of Keene, N. H., for plaintiff. John G. Palfrey and Francis S. Moulton, both of Boston, for

alleged trustees.

De COURCY, J. As against the principal defendant, Charles W. Jaynes there was a trial on the merits and a finding for the plaintiff in the sum of $14,263.23. The defendant was a beneficiary under the will of his father, Charles P. Jaynes one of the legacies being as follows:

"Also I give him my said son the sum of fifty thousand dollars to be paid to him in cash or securities at the market value thereof as he may elect without interest within one year from the final probate and allowance of my will."

ministrators derive their authority over property from the law, their possession is the possession of the law, and they were not considered "debtors" of any persons who might be entitled to the funds so held. Barnes v. Treat, 7 Mass. 271; Brooks v. Cook, 8 Mass. 246. When the Legislature undertook to provide means for reaching the interest of a legatee for the payment of his debts, it made use of the existing trustee process. Where no special provision was made, presumably it was intended that this new application of the process should in the main be governed by the general principles, and limitations existing in ordinary trustee process; especially when the property sought was "goods, effects or credits," due from or in the hands of the executor or administrator. Nevertheless it was early decided that the right of a legatee to a legacy (Holbrook

v. Waters, 19 Pick. 354), and the interest of
an heir in a distributive share of an intes-
were subject to be attached on trustee pro-
tate estate (Wheeler v. Bowen, 20 Pick. 563),

would be sufficient assets to pay the same,
cess before it was ascertained that there
notwithstanding the general provision of
the trustee statute that no person should be
adjudged a trustee "by reason of any money
or other thing due from him to the princi-
pal defendant, unless it is, at the time of the
service of the writ on him, due absolutely
and without depending on any contingency."
R. S. c. 109, § 30; R. L. c. 189, § 31.
it is to be noted that by section 56 a spe-
cial remedy was provided for the enforce-
ment of a judgment against the executor or
administrator as trustee, by a suggestion of
waste or a suit on the administration bond.

And

The executors were duly appointed and qualified in Middlesex county, November 4, 1912. This trustee writ was served on them as trustees on the following day, November 5, 1912. After the rescript in May, 1916 (see Cheshire National Bank v. 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, above recited, we need consider only the exceptions to the ruling and refusals to rule relating to that legacy.

[1] The statute under which the plaintiff proceeded is as follows:

"Debts, legacies, goods, effects or credits due from or in the hands of an executor or administrator as such may be attached in his hands by the trustee process." R. L. c. 189, § 20.

It is substantially a re-enactment of R. S. c. 109, § 62. See Report of Commissioners to revise the General Statutes. Part III, p. 209, note. Before the enactment of the earlier statute an executor could not be charged as the trustee of one to whom a pecuniary leg

can levy execution." The legacy under consideration was a general legacy. The principal debtor was entitled to $50,000. The option to choose cash or "securities at the

market value thereof," given to him and to some of the other legatees, was his right and not that of the executors. He had not elected to take securities when the trustee process was served on them. The lien then took effect, and held the defendant's interest in the property that might eventually come into the hands of the executors for the payment of the legacy in question. Mechanics' Sav. Bank v. Waite, 150 Mass. 234, 22 N. E. 915. The rights secured by the at

subsequent election made by the debtor, to whose rights the plaintiff had succeeded. See Hoar v. Marshall, 2 Gray, 251, 254. Whether the plaintiff could have reached the legacy by a bill to reach and apply, if brought after an election, by the debtor to take securities instead of cash, need not now be considered. See Ricketson v. Merrill, 148 Mass. 76, 19 N. E. 11; Travelers' Ins. Co. v. Maguire, 218 Mass. 360, 105 N. E. 1023; St. 1910, c. 531; Id. c. 171, § 13.

[3] Finally, the superior court was not in error in charging the trustees with a sum certain. Ordinarily it is not necessary to specify in the judgment the amount for which a trustee is chargeable (R. L. c. 189, 39); and it may be left to be ascertained on scire facias. See Jarvis v. Mitchell, 99 Mass. 530. But here the trustees were executors, the legacy in question was much larger than the plaintiff's claim; and if the plaintiff should be obliged to sue on the administration bond because of the failure of the trustees to pay the judgment, it must have judgment for a sum certain. R. L. C. 189, 56; Cunningham v. Hogan, 136 Mass. 407.

Exceptions from Superior Court, Essex County; George A. Sanderson, Judge.

Action by Robert Anderson by his next friend, against the Wood Worsted Mills. Verdict directed for defendant, and plaintiff brings exceptions. Exceptions overruled.

John P. S. Mahoney and C. J. Mahoney, both of Lawrence, for plaintiff. Danl. J. Murphy, of Lawrence, for defendant.

CARROLL, J. The plaintiff at the time of his injury, September, 1911, was fifteen years old. He had attended the public schools in Lawrence, including the grammar school, until he was fourteen years of age. From four to six days previous to the accident, he was employed by the defendant in the work of pushing a bobbin truck from the weave-room on the third floor to the elevator on that floor, thence to the spool-room on the sixth floor. The truck was about eight feet long and between three and four feet wide. The elevator was ten feet in width and eleven feet ten and one-half inches in length. As the elevator went up and down, it automatically worked a gate on each floor of the 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: Exceptions overruled.

(225 Mass. 519)

ANDERSON v. WOOD WORSTED MILLS. (Supreme Judicial Court of Massachusetts. Essex. Jan. 10, 1917.)

1. MASTER AND SERVANT ~219(6)—INJURIES -OBVIOUS DANGERS-ELEVATOR.

A 15 year old employé who caught his foot between an elevator platform and a "recess" or "overhang" in the wall could not recover damage, as it was not negligence to so maintain the elevator; its condition being obvious.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 613, 615; Dec. Dig. 219(6).]

2. MASTER AND SERVANT

153(3)-INJURIES -WARNING SERVANT-OBVIOUS DANGERS. An employer is not required to warn a 15 year old servant of the danger of catching his foot between the elevator platform and wall where the condition is obvious.

the well. The gate fitted into a "recess" or "overhang" back on the face of the wall, about four inches wide and extending upwards about two feet. Between the elevator

platform and the entrance to the well there was a space of one inch. While the elevator was ascending, as it neared the spinningroom, the plaintiff's heel was caught between the elevator and the "recess" or "overhang." The judge directed a verdict for the defendant.

[1, 2] There was no evidence of negligence on the defendant's part. The condition of the elevator was open and plain to be seen. As was stated by Sheldon, J., in McDonald v. Dutton, 198 Mass. 398, 400, 84 N. E. 434, 435, a case very similar to the one at bar:

"The defendants had a right to assume under these circumstances that their servants riding upon this elevator would not allow their feet to go beyond the limits of the platform."

The plaintiff was instructed by a fellow[Ed. Note.-For other cases, see Master and employé when he began work, but receivServant, Cent. Dig. § 3162; Dec. Dig. ed no instructions "whatsoever as to the con153(3).]

INJU

3. MASTER AND SERVANT 265(12) RIES-NEGLIGENT FELLOW SERVANT. That an employé was injured by the negligence of a fellow servant operating an elevator does not show negligence on the master's part in retaining such fellow servant in his employ. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 891, 906; Dec. Dig. 265(12).]

4. MASTER AND SERVANT 219(6)-INJURIES -GUARDS-OBVIOUS DANGERS.

The lack of a guard on an elevator where an employé was injured is immaterial where such absence was obvious.

struction of the elevator." The defendant was not required to instruct the plaintiff and warn him of the danger of getting his foot caught if it projected over the limits of the platform. That was an obvious danger and must have been known to the plaintiff.

[3] The plaintiff contends that an incompetent operator was in charge of the elevator, and because of the defendant's failure of duty in this respect, he is entitled to recover. It is enough to say that there was no evidence to support this contention. The only 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 in 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 part of the master in retaining him in its employ. Olsen v. Andrews, 168 Mass. 261, 47 N. E. 90; Smollett v. Ballou, 225 Mass. 197, 114 N. E. 200.

[4] There was no error in excluding the evidence offered by the plaintiff, namely, that the construction of the elevator well was defective and that by placing a guard, the injury could have been prevented. The absence of such a guard was obvious. O'Connor v. Whittall, 169 Mass. 563, 48 N. E. 844, and cases cited.

Exceptions overruled.

(225 Mass. 570)

NILES v. BOSTON ELEVATED RY. CO.
(Supreme Judicial Court of Massachusetts.
Middlesex. Jan. 10, 1917.)

1. CARRIERS ~247(5)—CARRIERS OF PASSEN-
GERS "PASSENGER."
Where a street car passenger had left the
car and was injured while not on the railway
premises nor at a station or platform for the
purpose of transferring passengers, nor under
the direction or care of the carrier, but on a
public highway while transferring to another
car, where she could have chosen her own
route, she was not as a matter of law a "pas-
senger."

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 993; Dec. Dig. 247(5).

For other definitions, see words and Phrases, First and Second Series, Passenger.]

2. STREET RAILROADS 93(1)-INJURIES TO

PEDESTRIANS-NEGLIGENCE-LIABILITY.

If a street railway is guilty of negligence and thereby strikes a pedestrian with one of its cars, it is liable, but cannot be held to the high degree of care required of a carrier toward its passengers.

[Ed. Note.-For other cases, see Street Railroads. Cent. Dig. §§ 195, 198-200; Dec. Dig. 93(1).]

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

Action by Francis D. Niles against the Boston Elevated Railway Company. On defendant's exception to the giving of an instruction. Exceptions sustained.

F. H. Stevens, of Boston, for plaintiff. Francis J. Carney, of Boston, for defendant.

town car started, and as it rounded the curve to enter the barn the side of it struck her. She was familiar with the locality and knew that the Watertown car was to enter the car barn and that the curve from the street to the barn was a sharp one. There was a verdict for the plaintiff.

In her declaration the plaintiff alleged that while transferring from the Watertown to the Newton car, she was a passenger. The presiding judge left it to the jury to decide whether, on the facts shown, she was such, and the defendant's exception to this instruction presents the only question for decision.

[1] The plaintiff when injured, was not on the defendant's premises. nor at a station or platform in use for the purpose of transferring passengers and within the control of the carrier; neither was she under its direction and within its care. She was upon a public highway where she was exposed to dangers not caused by the defendant. passing from one car to the other she could go on either side of the car, she could choose her own way and her movements were entirely under her own guidance. While so walking on a public highway and in transferring from one car to the other, as matter of law, she was not a passenger.

In

There may be cases where there is evidence to show that the carrier assumes to direct the movements of persons while upon the highway, or where such a duty rests upon it and where the facts justify the finding that although upon the highway, they are in the care of the carrier and the relation of passenger and carrier exists. But there are no such facts in the case at bar.

In Wakeley v. Boston Elev. Ry., 217 Mass. 488, 105 N. E. 436, the passenger was injured while in the act of alighting from a car, by stepping into a depression. In Powers v.

Old Colony St. Ry., 201 Mass. 66, 87 N. E. 192, the running of the defendant's cars was interrupted by the abolition of a grade crossing, and it was necessary for the passengers to leave the cars and go around the obstruction on foot, to take other cars in order to continue their travel. The defendant prepared 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 Street, Watertown, and it was necessary for her to change there in order to enter the Newton car, which was about three carlengths farther on in a direct line. When the Watertown car stopped at the car barn, the conductor said. "All change here. All change. All change for Newton." The passengers then alighted, the plaintiff being the last one in the car, and leaving at the rear end. While she was walking on Galen Street

tion of the defendant's care was for the jury. In the case of Gurley v. Springfield St. Ry., 206 Mass. 534, 92 N. E. 714, the plaintiff was upon the defendant's premises when injured. In Tompkins v. Boston Elev. Ry., 201 Mass. 114, 87 N. E. 488. 20 L. R. A. (N. S.) 1063, 131 Am. St. Rep. 392. The plaintiff stepped from the front vestibule of a crowded surface car to permit other passengers to alight, and was injured by the car starting when he had 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 from the case before us: In none of them was the injured person a traveler on a public street. In the case at bar there was no assumption of the duty of directing the movements of passengers, nor was there any holding itself out as a carrier of passengers in' protecting the safety of those who were travelling from one car to the other.

"The objections to the decree appealed from must be filed in this court simultaneously with must disclose the issue to be tried, being in the entry of the appeal, that these objections the nature of an assignment of errors, and that the jurisdiction of the court to try the case on the appeal depends upon compliance with the conditions imposed by the statute. R. L. c. 162, § 10." Linehan v. Linehan, 223 Mass. 297, 111 N. E. 901.

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 plain- ject 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 passengers. See Duchemin v. Boston Elev. Ry., 186 Mass. 353, 71 N. E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603.

The plaintiff cannot recover under her present declaration. The question of a proper amendment is for the Superior Court to pass on.

Exceptions sustained.

(225 Mass. 438)

HALL V. BOYNTON.

(Supreme Judicial Court of Massachusetts. Essex. Jan. 5, 1917.)

APPEAL AND ERROR 362(1) PROCEEDINGS FOR APPEAL OBJECTIONS TO DECREE.

Where no reasons for the appeal or objections to a decree appointing a trustee of the real estate of a nonresident were filed with the appeal as required by Rev. Laws, c. 162, § 10, the Supreme Judicial Court acquires no jurisdiction.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1960, 3282-3284; Dec. Dig. 362 (1).]

Appeal from Supreme Judicial Court, Essex County.

Petition by Dwight Hall for appointment as trustee of the real estate under the will of a nonresident. From a decree granting prayer of the petition, Eben Moody Boynton appealed. Decree dismissing appeal affirmed. Eben Moody Boynton, of Boston, pro se. Berry & Bucknam, of Boston, for appellee.

RUGG, C. J. Dwight Hall brought a petition in the probate court for the county of Essex, alleging that he was trustee by appointment of a court of competent jurisdiction of the state of New Hampshire, under the will of John C. Hastings, who deceased a resident of that state, and that there was

real estate in Essex county belonging to the estate of the decedent, and praying for his appointment as trustee of the real estate in this commonwealth. A decree granting the prayer of the petition was entered.

E. Moody Boynton filed notice of his claim of an appeal from this decree. But no reasons for the appeal or objections to the decree were filed. It was decided in Codwise v. Livermore, 194 Mass. 445, 446, 80 N. E. 609,

face of the papers to indicate want of jurisdiction in the probate court. It follows that there was no jurisdiction in the Supreme Judicial Court to consider the appeal Decree dismissing appeal affirmed.

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CARROLL, J. This is an action of tort for assault and battery. The defendant excepted to that part of the judge's charge where he instructed the jury that the burden was upon the defendant "to prove the right to use force; that is, to prove to you that he was set upon by a crowd and that he did this in self-defense." There was a verdict for the plaintiff.

It was for the defendant to show that he

acted in self-defense, and the judge correctly ruled that the burden of proving his justification for the assault was upon him. As was expressed by Dewey, J., in St. John v. Eastern Ry. Co., 1 Allen, 544:

tion of trespass for an assault upon the per"The general rule certainly is that, in an acson, the plaintiff having established the allegations in his declaration as to the assault and is to be shown by the defendants." Hathaway v. beating, any excuse or justification therefor Hatchard, 160 Mass. 296, 35 N. E. 857: Mountford v. Cunard S. S. Co., 202 Mass. 345, 346, 88 N. E. 782.

Exceptions overruled.

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

(225 Mass. 500)

AMERICAN SECURITY & TRUST CO. et al. practice act was to substitute, in place of the

V. BROOKS.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 5, 1917.)

1. DISCOVERY 1-IN EQUITY-STATUTORY

REMEDY-EXCLUSIVENESS.

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

[Ed. Note.-For other cases, see Discovery, Cent. Dig. § 1; Dec. Dig. 1.]

2. DISCOVERY 4-IN EQUITY-NECESSITY OF PENDING ACTION.

A bill for discovery cannot be maintained if it is not incidental to any relief which the court has the right to grant, but it may be brought in aid of a suit which the plaintiff intends to bring as well as where the suit has already been commenced, if it discloses a cause of action.

[Ed. Note.-For other cases, see Discovery, Cent. Dig. 5; Dec. Dig. 4.]

SUIT

3. DISCOVERY 15 IN EQUITY AGAINST STRANGER TO CAUSE. Where the discovery was apparently sought because the parties could not agree upon the compensation which the defendant was to receive for making a collection and the defendant appears to be a stranger to any contemplated litigation between the plaintiff or those from whom it is stated in defendant's letter that an alleged claim is due, although defendant may be a witness, the letter merely reciting that there is a claim against a third person which the defendant thinks he can collect, a bill for discovery cannot be maintained.

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[Ed. Note. For other cases, see Discovery, Cent. Dig. § 16; Dec. Dig. 15.] 4. DISCOVERY 15 COSTS EFFECTS. Rev. Laws, c. 203, § 13, allowing costs to defendants in suits seeking discovery only and not a decree, although a decree is prayed for, if the court is satisfied that the prayer is frivolous and mere pretense, was not intended to change the rule in equity that a bill of discovery will not lie against strangers to the contemplated litigation.

"The main purpose of these provisions of the tedious, expensive and complex process of a bill of discovery on the equity side of the court, an easy, cheap, and simple mode of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought."

[1] The statutory provisions authorizing a party to interrogate the adverse party have not taken away the jurisdiction of the court to entertain bills of discovery. Post & Co. v. Toledo, Cincinnati & St. Louis R. R., 144 Mass. 341, 11 N. E. 540, 59 Am. Rep. 80.

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

The right to discovery in equity originally existed only where there was a cause of action in which the defendant named in the bill was a party, and wherein it appeared that the plaintiff had a cause of action and that discovery was necessary to enable the party seeking discovery to prosecute or defend his rights.

[3] It is a general rule that a bill for discovery will not lie against one who is not a party to the contemplated litigation but is a stranger to it, or who is only a witness. Post & Co. v. Toledo, etc., R. R., supra. Kelly v. Morrison, 176 Mass. 531, 536, 57 N. E. 1018. Queen of Portugal v. Glyn, 7 Cl. & Fin. 466.

The general rule that discovery will not lie against a person who has no interest in the litigation and who could be called as a witness, is subject to some exceptions. Accordingly it has been held that in suits against 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.

Appeal from Superior County.

15.]

Court,

facts within their knowledge as the corporaSuffolk tion, if a natural person could have been compelled to disclose. In the case of Queen of Portugal v. Glyn, 7 Cl. & Fin. 466, which was a bill for discovery, it was said at page 488:

Bill for discovery by the American Security & Trust Company and others against James I. Brooks. From a decree sustaining a demurrer to the bill, the plaintiffs appeal. Affirmed.

Peabody, Arnold, Batchelder & Luther, of Boston, for appellants. Wm. M. Noble, of Boston, for appellee.

CROSBY, J. This is a bill in equity in which the plaintiff seeks discovery only from the defendant. There is no doubt of the jurisdiction of the court to entertain bills for discovery, although the usefulness of such bills has, to a great extent, been taken away by statutes authorizing interrogatories to the adverse party and compelling such party to testify at the trial. In Wilson v. Webber, 2 Gray, 558, at 561, it was said by Bigelow, J.:

"The cases of officers of corporations stand on principles entirely peculiar to themselves, and have obviously no application to the present case." Wright v. Dame, 1 Metc. 237; Post & Co. v. Toledo, etc., R. R., supra.

Perhaps also persons who act as agents may be required under certain circumstances to disclose facts concerning litigation in which their principals are parties.

The rule is stated in Post & Co. v. Toledo, etc., R. R., supra, as follows:

covery from persons who sustain no other rela"It is clear that courts do not compel distion to the contemplated litigation, or to the subject of the suit than that of witnesses, and it is also clear that a bill for discovery cannot be used to enable the plaintiff to fish for information of any causes of action he may have against other persons than the defendants."

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