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587, 589; Cambridge Water-works v. Somerville Dyeing & Bleaching Co., 14 Gray, 193; White v. Curtis, 2 Gray, 467.

Dem'urrer sustained.

(143 Mass. 248)

WENTWORTH, Adm'x, v. EASTERN R. Co. (Supreme Judicial Court of Massachusetts. Suffolk. January 6, 1887.) EVIDENCE-CUSTOMARY ACT-CONTRADICTION.

At the trial of an action of tort for personal injuries against a railroad company, where it becomes a material question whether a certain gas-burner was lighted at the time of the accident, and witnesses for the defendant have testified that on the night in question it was lighted, but it afterwards appeared that the knowledge they had as to the burner being lighted on that occasion was derived from the fact that it was always the practice to light it, it is competent for the plaintiff to show by witnesses who had visited the station after the accident that the burner was often unlighted in the evening. .

This was an action of tort to recover damages for personal injuries suffered by one Adelaide W. Lord, the plaintiff's intestate, in her life-time, resulting from the alleged negligence of the defendant. Trial in the superior court before BLODGETT, J., where the jury returned a verdict for the plaintiff, and the defendant alleged exceptions. The facts are stated in the opinion.

Solomon Lincoln, for defendant.

This cause presents the question of the admissibility of certain testimony given upon a single issue, to-wit, which of two gas-burners in the defendant's station at Chelsea was burning at the time when the plaintiff's intestate suffered injury? The inquiry was a material one, because one of the burners cast less light than the other upon the scene of the accident; and insufficient lighting of the defendant's premises was alleged to have contributed to the injury upon which the cause of action was based. It is to be observed, in the first place, that the defendant had not attempted to establish the fact that a certain burner was lit by proof of a practice to light such burner. Whatever was elicited relating to a practice was elicited on cross-examination, and the testimony offered in reply was not offered to disprove any alleged practice. It is also clear that the condition of the burner at any time other than that of the accident was immaterial, and that any testimony relating to such other time related to a collateral matter as to which contention would be inadmissible. Collins v. Dorchester, 6 Cush. 396; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Robinson v. Fitchburg & W.R. R., 7 Gray, 92; Com. v. Cain, 14 Gray, 7; Howe v. Whitehead, 130 Mass. 268; Davis v. Roby, 64 Me. 427; Sherman v. Kortright, 52 Barb. 267. A simple test may be applied thus: Could the defendant have been permitted to show in chief the condition of the burner in question at the time of the accident by showing its condition at other times ? Obviously this could not have been permitted. Therefore, in any aspect, as the defendant claims, and certainly as the case was presented, the testimony objected to was merely contradictory of an opposing witness upon an immaterial matter. The grounds of the testimony given by a witness, considered as such, are immaterial. The same test may be repeated here: Could the defendant have been allowed, under any aspect of this evidence, and especially in order to support the grounds of his witness' belief, to introduce evidence that the grounds of their belief and reasoning were correct? The defendant submits it could not. The defendant submits, therefore, that, however the testimony complained of be presented, it was testimony upon collateral matters, to which contradiction should not have been allowed. The admission of the testimony complained of was prejudicial to the defendant, because it had a material bearing upon one of the principal issues in the cause. It was, besides, testimony to which defendant could have no opportunity to reply.

F. S. Hesseltine and W. H. Hart, for plaintiff.

The single question here is as to the admissibility of evidence of the plaintiff offered and admitted in rebuttal. It appeared on cross-examination that they did not remember the night of the accident, or knew, as a distinct fact, which burner was lighted that night, but based their belief and judgment as to which one was lighted on the invariable custom, as they testified, to light that special burner. Did this custom exist? If not, the evidence of the defendant as to the amount of light at the place of the accident, as shown by tests with that special burner, was valueless. This custom was a material and not a collateral fact. It was raised by the defendant's evidence, as his witnesses did not know as a distinct fact which burner was lighted that night. The whole evidence was based on a custom, and it was open to the plaintiff to show that no such rule or universal custom existed. All of the evidence of the plaintiff's witnesses which is the subject of these exceptions was offered solely to disprove this custom; to show that, at various times, another and different burner was lighted. It could neither prejudice the defendant, nor benefit the plaintiff, to prove what burner was lighted after the accident, except as it contradicted the defendant's witnesses, and disproved the custom which is the basis of their knowledge and testimony; and this, as it was material,-made so by the evidence of the defendant,—the plaintiff had a plain legal right to do.

MORTON, C. J. It was a material question at the trial whether a certain gas-burner near the rear of the defendant's station was lighted at the time of the accident to the plaintiff. Two witnesses produced by the defendant testified in direct examination that this burner was lighted at the time of the accident, but upon cross-examination they testified that they had no memory of that particular night. The fair result of their testimony, as reported, is that they knew it was lighted on that evening because the uniform practice or custom before, at, and after the time of the accident was to light this burner every night. The superior court allowed the plaintiff to show, by witnesses who had visited the station after the accident, that this burner was often unlighted in the evening. This testimony was admitted solely upon the ground that the defendant's witnesses had testified that the knowledge they had as to the burner being lighted on the night of the accident was derived from the fact that it was always the practice to light it.

It seems to us that the course of the defendant at the trial was such as to make the question whether there was such a uniform practice or custom a material one, at least to the extent that the plaintiff might be permitted to contradict the witnesses by showing that there was no such practice. The defendant introduces a witness who swears positively to an important fact. Upon full examination it turns out that he can swear to this fact only as an inference from the existence of another fact, viz., the fact of a practice always to light the gas-burner in question, which he alleges to be true. We think the plaintiff may be permitted to show that the fact of such practice, which is the source and basis of the witness' knowledge, from which he infers the main fact, does not exist and is not true, without violating the rights of the defendant. It tends to contradict the witnesses, and to show that their testimony in chief is not reliable. The extent to which the investigation as to this practice may be pursued must be largely within the discretion of the court, and we cannot say that the testimony allowed in this case was entirely irrelevant and immaterial. Exceptions overruled.

(143 Mass. 240)

SEGEE and another v. DOWNES and another. (Supreme Judicial Court of Massachusetts. Suffolk. January 6, 1887.) 1. ASSIGNMENT-SUMS AND DEMANDS FALLING DUE ON CONTRACT.

An assignment of “all sums of money and demands which, at any time between the date hereof and May 1st next, may become due to me from A, for services as subcontractor, meaning especially to transfer all sums of money falling due to me by said A. for work done by me for him in the town of W.,” is not an assignment of the contract with A. for work in W., nor of all sums that might at any time be.

come due thereunder, but only of suns earned before May 1st. 2. GARNISHMENT_CONTROVERSY BETWEEN PLAINTIFF AND CLAIMANT_AGREED STATEMENT

OF Facts.

In a controversy between the plaintiffs in trustee process and a claimant under an assignment from the defendant, merely as to the validity of the assignment, an agreed statement of facts as to the circumstances of the assignment, including the character of the claim assigned, need not be signed by the trustee. Action of contract against the defendants and trustee, Edward A. Foster, claimant. At the trial in the superior court, the presiding judge found that the claimant's claim, upon the agreed facts, was not sustained, and the trustee was charged upon his answer, and the claimant appealed. The facts are stated in the opinion.

J. H. & H. W. B.Cotton, for claimant. W. M. Stockbridge, for plaintiffs' assignees.

MORTON, C. J. The assignment from Downes to the claimant, dated March 10, 1884, purports to transfer "all claims and demands which I now have, and all which, at any time between the date hereof and the first day of May, A. D. 1884, next, I may and shall have, against Arthur F. Williams & Co., of said Boston, for all sums of money due, and for all sums of money and demands which, at any time between the date hereof and the said first day of May, A. D. 1884, next, may andshall become due to me for services as subcontractor; meaning especially to transfer all sums of money falling due to me by said Williams & Co. for work done by me for them in the town of Wellesley."

This is not an assignment of the contract with Williams & Co., nor of all sums that might at any time become due under the contract. Keefe v. Flynn, 116 Mass. 563. To give it this construction would entirely disregard the essential part of the assignment, which transfers only such sums as might be due on or before the first day of May, 1884. It cannot, by any fair construction, be held to include any sums earned by Downes after May 1, 1884. It is ditficult to understand what the parties to it intended. By the contract with Williams & Co., Downes was to build a road in Wellesley, and to have it completed on or before April 1, 1884; and for building and completing the road Williams & Co. were “to pay the sum of $1,100.” The contract fixes no time for paying this sum, and therefore it would not strictly be due and payable until the work was completed. The contract also provides that, if Downes failed to coniply with the contract, the other party might complete the road, and deduct the expenses thereof from the sum named in the contract. It is not improbable, though it does not appear, that there was a parol agreement or understanding that Williams & Co. would pay Downes, from time to time as the work progressed, portions of the contract price, and that the assignment was intended to transfer all that Downes should earn before the first of May. But, if we could adopt this view, it would not help the claimant. It appears that Downes continued to work on the road until the first day of June, when he abandoned the work, and Williams & Co. proceeded and finished it at an expense of $128.06. Deducting this sum from the balance of the $1,100 which remained due to Downes, and Williams & Co. have now in their hands the sum of $365.64 as the final balance due under the contract. But there is nothing to show that this was not all earned by Downes after the first day of May. In other words, the claimant fails to show that any part of this balance was earned by or due to Downes on or before May 1, 1884. We are not able to give any construction to the assignment by which the claimant can hold the balance now in the hands of the trustees, and are therefore of opinion that the superior court rightfully found that his claim is not sustained.

The claimant now contends that the statement of facts signed by him and the assignees ought to be discharged, because it is not signed by the trustees, and he relies upon the case of Massachusetts Nat. Bank v. Bullock, 120 Mass. 86. We think that case and the case at bar different. In that case the plaintiff and the claimant signed a statement of facts, made, not merely for the purpose of determining whether the claimant could maintain his claim, but for the general purpose of determining whether the trustee should be charged or discharged on his answer. It undertook, without reference to the trustee's answer, to set forth all the facts upon which the court were to determine the question whether the trustees should be charged, and it was held that the trustees were interested, and should join in the agreed statement of fact. But in the case at bar the only purpose of the statement of facts was to determine the collateral question whether the claimant had a valid assignment of the funds in the hands of the trustee,—a question in which the trustee has no interest. The court used it only for this purpose, and, having found that the claimant's claim was not sustained upon the facts which he had agreed to, proceeded to consider the question whether the trustee should be charged upon his answer.

It was not necessary that, under such circumstances, the statement of facts should be signed by the trustee, who had no right to be heard upon the question of the validity of the claimant's claim.

The proceedings of the superior court were correct, and its finding against the claimant must be affirmed. Judgment affirmed.

(143 Mass. 226)

MARVEL V. BABBITT and another, Trustee. (PAUL, Claimant.)

(Supreme Judicial Court of Massachusetts. Bristol. January 6, 1887.) GARNISHMENT-PROCEEDS OF SALE OF LAND BY ADMINISTRATOR IN HANDS or COUNSEL.

In an action against one who is an administrator, the plaintiff cannot hold by trustee process the proceeds of a sale of real estate by the defendant as administrator, and in the hands of his counsel the alleged trustee through whom the business was transacted. Contract on a promissory note. Hearing in the superior court before , STAPLES, J., without a jury. It appeared that there was $252 in the hands of the supposed trustee; the same being proceeds of sale of the real estate made by the defendant as administrator of the estate of Edward Babbitt, deceased, intestate, for payment of the debt of said intestate under due license of the probate court. The supposed trustee acted as counsel and attorney for the defendant in procuring said license and in superintending said sale, and, through said employment, said money came to be paid into his hands by the purchasers of such sale. The facts and the order of the court appear in the opinion.

L. E. White, for claimant.

The claimant, as administrator de bonis non of the estate of Edward Babbitt, deceased, seeks, under Pub. St. c. 183, § 35, to hold the funds in the hands of the supposed trustee. It became the duty of the claimant, in execution of his trust, either by bringing suit directly against the supposed trustee, or by appearing as claimant in this case, to collect the fund in question, and a failure to do so would render him liable in an action on his bond. Pub. St. c. 133, § 2. He could collect what was due the first administrator in his own name. Sullivan v. Holker, 15 Mass. 374. The first administrator's possession was merely en autre droit until the debts were paid.

As the funds remained in specie, they passed to the administrator de bonis non. Weeks v. Gibbs, 9 Mass. 73; Dawes v. Boylston, 9 Mass. 353. Appearing as claimant

in this suit is a proper remedy. Pub. St. c. 183, § 35; Randall v. Way, 111 Mass. 506; Mortland v. Little, 137 Mass. 339. See Coburn v. Ansart, 3 Mass. 319, and note distinction, (decided in 1807;) Long v. Long, 1 Danv. Abr. 206; Tarbell v. Jewett, 129 Mass. 457. See, also, Farr v. Newman, 4 Durn. & E. 621, and Gaskell v. Marshall, 1 Moody & R. 132; Stevens v. Goodell, 3 Metc. 38.

F. S. Hall, for plaintiff.

There were funds in the hands of the trustee subject to attachment. Coburn v. Ansart, 3 Mass. 319; Drake, Attachm. (6th Ed.) § 496; Kellogg v. Waite, 12 Allen, 529; Randall v. Way, 111 Mass. 506. The character of the indebtedness was that of a chose in action,-an immediate liability from the trustee to the defendant. See Maxwell v. McGee, 12 Cush. 137; Cook v. Holbrook, 6 Allen, 572. The administrator de bonis non does not succeed to the funds in question as a matter of right. They have been changed in specie. 2 Williams, Ex’r, (6th Amer. Ed.) 983, 986; Weeks v. Gibbs, 9 Mass. 74; Wiggin v. Swett, 6 Metc. 194; Toller, Ex’rs, 450, note. The position of the funds in question is regulated by the statute. Pub. St. c. 134, § 1. The remedy, if any, is upon the bond. Baylies v. Chace, 1 Pick. 230; Bennett v. Overing, 16 Gray, 268; Hannum v. Day, 105 Mass. 38. There is no trust fund here disclosed. If there is a trust, it must relate back to the realty. 2 Perry, Trusts, § 837. Finally, the trustee process is a broad and liberal act. It is a well-settled rule of construction that, where the exceptions in the statute are enumerated, the court will not enlarge or limit its meaning.

HOLMES, J. This is an action against Edward H. Babbitt personally, in which the plaintiff seeks to hold by trustee process the proceeds of a sale of real estate by Babbitt as administrator, which are now in the hands of his counsel. Babbitt has been removed from the office of administrator, and the fund is claimed by the administrator de bonis non. The court below ordered the trustee discharged, and awarded the fund to the claimant. We are of opinion that this was the proper course. Courts of common law, as well as of equity, have long recognized that assets of an estate, including money, so long as the fund can be identified, in the hands of an executor or administrator, are held by him en autre droit, and quasi in trust. Pub. St. c. 156, § 32; Weeks v. Gibbs, 9 Mass. 74; Dawes v. Boylston, Id. 337, 352; Stevens v. Goodell, 3 Metc. 34; Howard v. Jemmet, 3 Burr. 1369, note; Farr v. Newman, 4 Term R. 621, 648; McLeod v. Drummond, 17 Ves. 152, 168; Wilson v. Moore, 1 Mylne & K. 126, 337; Kinderley v. Jervis, 22 Beav. 1-3. It follows that, when an administrator is removed, the administrator de bonis non is entitled to receive the assets in specie, (Stevens v. Goodell, ubi supra; Pub. St. c. 156, S$ 14, 15; Collins v. Collins, 140 Mass. 502, 505;) and the proceeds of real estate sold are to be considered as assets, (Pub. St. c. 134, § 1.)

In this case the fund is identified; for, even if Babbitt's counsel had made himself a simple debtor to Babbitt, the administrator, by depositing the proceeds in his own private bank-account, according to the prevalent loose practice, (see Vail v. Durant, 7 Allen, 408,) still the proceeds were the consideration of the debt, and thus could be traced, and therefore, as between the administrator and the administrator de bonis non, belonged to the latter. It does not appear, however, that the alleged trustee had not kept the fund distinct.

The fallacy in the plaintiff's argument lies in the tacit assumption that an administrator becomes quasi a debtor to the estate for all moneys coming to his hands, and that, therefore, the specific moneys or proceeds of a sale belong to him, whereas, in modern times, at least, his duty is to keep the funds distinct from his own; and, if he does so, he will not be absolutely and personally bound as a debtor, but will be discharged if the funds are lost without his fault. See Pub. St. c. 156, § 32.

See Pub. St. c. 156, § 32. It is true that, where the person

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