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Rockwood Hoar and Geo. S. Taft, for the Commonwealth. Chas. S. Webster, J. E. Sullivan, and D. F. O'Connell, for defendant.

MORTON, J. This is an indictment for the larceny of goods alleged to be the property of one Barnet Walkowich. The specific offense charged was that described in Rev. Laws, c. 208, § 61, namely, that the defendant obtained the goods under the false color and pretense of carrying on business and dealing in the ordinary course of trade, and with intent to defraud. Walkowich was called as a witness by the government, and testified to the circumstances under which he sold and delivered the goods to the defendant, to the pretenses under which the defendant obtained them, to his unsuccessful efforts to obtain payment, and to what the defendant said. Other witnesses-upwards of a dozen in allwere then called by the government, who testified that the defendant obtained goods from them by the same pretenses as those by which he obtained goods from Walkowich, and at and during the same time, and to their efforts, also, without success, to obtain payment, and to what the defendant said. It appeared that the defendant obtained in this way about $5,000 worth of goods, for which he never paid any person anything. The defendant did not object to the testimony of Walkowich, but did object to that of the other witnesses. The court overruled the objection, and admitted the evidence, not for the purpose of showing that the defendant had committed larcenies of goods belonging to the other witnesses, but as bearing on the question of the intent with which he obtained the goods mentioned in the indictment from Walkowich. The defendant duly excepted. There was a verdict of guilty, and the case is here on the defendant's exceptions to the admission of this testimony.

We think that the testimony was rightly admitted for the purpose to which it was limited. It is to be presumed that suitable instructions were given to the jury. At any rate, the defendant does not appear to have found any fault with them. As bearing upon the intent with which the defendant obtained the goods from Walkowich, it was competent for the government to show, if it could, that the goods were obtained by the defendant pursuant to a general or common plan or scheme of fraud on his part. And for the purpose of showing such a plan or scheme, it was competent for the government to introduce testimony tending to show that at or about the same time he fraudulently obtained goods from other parties by the same or similar pretenses, which he appropriated to his own use, and for which he did not pay. The different transactions must be connected with the one in question, as parts of a general or common scheme or plan to defraud, in order to justify their admission as evidence. But when so connected the evidence of fraud which they furnish is competent, as bearing

upon the intent with which the goods were obtained in any one of the transactions embraced in the general plan or scheme. Com. v. Drew, 153 Mass. 588, 27 N. E. 593; Com. v. Robinson, 146 Mass. 571, 16 N. E. 452; Com. v. Tuckerman, 10 Gray, 173, 197. Jordan v. Osgood, 109 Mass. 457, 12 Am. Rep. 731. The fact that the evidence might also be admissible to prove the commission of other crimes did not render it incompetent for the purpose for which it was admitted. There was abundant evidence that the different transactions were parts of a common plan or scheme to defraud. Exceptions overruled.

DOHERTY v. RICE.

(182 Mass. 182)

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 30, 1902.)

PLAIN

NEGLIGENCE -STREET ACCIDENTS -
TIFF'S SERVANT-EVIDENCE-SUFFICIEN-

CY-EXCEPTIONS-WAIVER.

1. An exception not argued in the appellant's brief may be treated as waived.

2. Evidence in an action for injuries received by being run over by a team considered, and held sufficient to justify leaving with the jury the question as to whether it was defendant's servant driving the team.

3. In an action for injuries received by being run over by a team, the evidence tended to show that as plaintiff was crossing an uncrowded street the team was driven at a trot over a pile of sand and against him, and that thereupon the driver lashed his horse and drove on. Held, that there was sufficient evidence of the driver's negligence to justify its submission to the jury.

Exceptions from superior court, Worcester county; Francis A. Gaskill, Judge.

There

Action by Doherty against Rice. was a verdict for plaintiff, and defendant excepts. Exceptions overruled.

Tort to recover for injuries received by plaintiff, resulting from being run over by a team alleged to belong to the defendant, and driven by his servant or agent. Plaintiff at the time was engaged in excavating a street in Lancaster, and was struck while crossing the street on June 29th; and there was evidence that the team was driven by a white boy, who struck the horse with the reins after the plaintiff had been hit. The defendant denied that he had any one but a colored man driving his team, but one Curran testified to seeing a young boy working about defendant's store, and knew his initials were "E. M." Defendant testified on crossexamination that a boy named "Eddie Morrow" worked for him at one time, but did not work for him after June 12th.

Chas. C. Milton and Geo. A. Gaskill, for plaintiff. Arthur M. Taft and John B. Scott, for defendant.

BARKER, J. 1. The exception to the refusal to rule that there was no evidence that the plaintiff was in the exercise of due care

is not argued upon the defendant's brief, and we treat it as waived.

2. It is conceded that the team belonged to the defendant, and the testimony of Curran that during the month of June there was a young boy about 16 years old taking parcels from a store on the defendant's team, in connection with the description of the boy who was driving the team when it ran over the plaintiff, and the defendant's own testimony as to the boy Eddie Morrow, was sufficient evidence that the boy who was driving the team when it ran over the plaintiff was the defendant's servant to justify the court in sending that question to the jury.

3. There was also sufficient evidence of negligence on the part of the driver. The evidence tended to show that as the plaintiff was walking across the street, which was not crowded either with vehicles or foot travelers, the team, which just before had been delivering goods on the other side of the street, was driven at a trot over a pile of sand and against the plaintiff, and that thereupon the driver lashed the horse with the reins, and went off without stopping. Exceptions overruled.

(182 Mass. 170)

WARD v. CONNOR. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 30, 1902.)

MASTER AND SERVANT-NEGLIGENCE-WARNING SERVANT-CONTRIBUTORY NEGLIGENCE.

1. Where a servant, while acting in the scope of his duties, and attempting to repair machine belting, was injured by the starting of the machine, owing to the operator in charge of it not having properly fastened the lever controlling the machine, the injury was caused by the negligence of a fellow servant, and not by failure of the master to instruct plaintiff.

2. Where a servant, while attempting to repair broken machine belting by drawing the ends together over the pulleys over which it ran, was injured by the starting of the machine, owing to the operator in charge of it not having properly fastened the lever controlling the machine, the servant was wanting in due care in attempting to mend the belt in the manner in which he did, without taking any precautions to see whether the machine was liable to start.

Exceptions from superior court, Hampden county; Elisha B. Maynard, Judge.

Action by John Ward against James Con

nor.

From a judgment for defendant, plaintiff brings exceptions. Exceptions overruled. Green & Bennett, for plaintiff. C. T. Callahan, for defendant.

MORTON, J. This is an action for personal injuries. At the conclusion of the plaintiff's evidence the court directed a verdict for the defendant. The case is here on the plaintiff's exceptions to that ruling and direction. The declaration contains counts at common law and under the employer's liability statute. The counts under the statute are not insisted on. The counts at common law allege a setting to work in an unsafe place

with unsafe machinery, a failure to give suitable warning and instruction as to the danger, and the employment of incompetent servants. Only the count alleging a failure to give suitable warning and instruction is now relied on.

We think that the ruling of the court was right. The plaintiff was injured while repairing a broken belt, which was within the scope of the work which he had been set by the defendant to do. He attempted to repair the belt by drawing the ends together over the pulleys over which it ran, and in some way the machine started up, and the plaintiff, in attempting to get out of the way, threw his hand backward, and it was caught in revolving gears, causing the injury complained of. There was no defect in the machine to which the belt belonged, and it is clear, it seems to us, that if the spinner who was operating the machine had drawn back the lever, and fastened it in the place provided for it, when the machine was stopped, the accident to the plaintiff would not have happened. In other words, the accident would seem to have been the result of negligence on the part of a fellow servant, and not of failure on the part of the defendant to warn the plaintiff of the danger, or to instruct him as to the manner in which the machine operated. Further, it would seem, notwithstanding some things in the plaintiff's testimony, as though he must have been familiar with the operation of the machine, and that the risk of attempting to mend the belt in the manner in which he did was or ought to have been obvious. But if it was not, it would at least seem that he was wanting in due care in attempting to mend the belt in the manner in which he did, without taking any precautions to see whether the machine was liable to start.

Exceptions overruled.

(182 Mass. 122)

EASTMAN v. SCOTT et al. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 30, 1902.)

KICKING HORSES-PERSONAL INJURY-LIABILITY OF OWNER.

1. The owners of a horse are not liable to one kicked thereby, there being nothing from which to infer that they knew more about the habits of horses than the ordinary man in whose business their use is a mere incident, the horse having been in their possession only one and a half months, and, so far as appears, having given but a single kick, and that in its stable, under circumstances from which to say the kick was vicious is mere conjecture, and the conduct of the horse at and after the accident not being such that it can be reasonably inferred it had the vicious habit before the ac cident, or that they should be charged with knowledge of it at that time.

Exceptions from superior court, Worcester county; Francis A. Gaskill, Judge.

Action of tort by Fred A. Eastman against David A. Scott and others for injury received

1. See Animals, vol. 2, Cent. Dig. §§ 229, 265, 873

by plaintiff by being kicked by a horse owned by defendants, which he was driving. Verdict was directed for defendants. Plaintiff excepts. Exceptions overruled.

Wm. C. Mellish, for plaintiff. Herbert Parker, C. C. Milton, and Daniel F. Gay, for defendants.

no

BARKER, J. We think there was sufficient evidence that up to the time of the accident the horse had a vicious habit of kicking, or that the defendants knew, or ought to have known, that it had such a habit. There is nothing from which to infer that they knew more about the habits of horses than the ordinary man in whose business the use of horses is a mere incident. The animal had been in their possession but a month and a half, and had, so far as appears, never given but a single kick, and that in its stable, and under circumstances from which to say that the kick was vicious is merely conjecture. These facts distinguish the case from that of Lynch v. Richardson, 163 Mass. 160, 39 N. E. 801, 47 Am. St. Rep. 444. Assuming that the fact of the single kick in the stable was known to the defendants, it was not enough to require the submission of the case to the jury. Nor can it reasonably be inferred from the conduct of the horse at the time of the accident and on subsequent occasions that it had the vicious habit before the accident, nor that the defendants should be charged with knowledge at that time. This view of the evidence makes it immaterial whether the plaintiff was hurt in the course of his employment or while using the horse for his own convenience merely.

Exceptions overruled.

(198 Ill. 413)

SEIDSCHLAG v. TOWN OF ANTIOCH. (Supreme Court of Illinois. Oct. 25, 1902.) HIGHWAYS-OBSTRUCTION-PENALTY-APPEAL -FREEHOLD.

1. Proceedings for a penalty for obstruction of a highway by a fence does not involve a freehold, and the supreme court cannot entertain an appeal taken directly to it.

Appeal from circuit court, Lake county; Chas. H. Donnelly, Judge.

Proceedings by the town of Antioch against August Seidschlag for a penalty for obstructing a highway by the construction of a fence thereon. From a judgment of the circuit court affirming a judgment for the town, Seidschlag appeals. Dismissed.

Coon & Orvis and Frank S. Lenert, for appellant. C. T. Heydecker and Whitney, Upton & Whitney, for appellee.

BOGGS, J. The appellant was summoned in a proceeding instituted by the appellee town before a justice of the peace, under the

1. See Courts, vol. 13, Cent. Dig. § 564.

provisions of section 74 of chapter 121, en titled "Roads" (Hurd's Rev. St. 1899, p. 1481). to answer for the violation of the provisions of section 71 of the chapter, for an alleged obstruction of a public highway. The cause was heard before the justice of the peace, and the appellant was adjudged guilty, and sentenced to pay a fine of $5. He perfected an appeal to the circuit court of Lake county, and in that court, upon a trial, was again adjudged guilty, and was assessed to pay a fine of $3. This is an appeal attempted to be taken to this court from the judgment entered in the circuit court, on the ground the controversy involves a freehold.

In Herman v. Commissioners, 197 Ill. 94, 64 N. E. 337, we held that a justice of the peace was lacking in jurisdiction and power to render a judgment which could in any manner affect the right of any party to an estate of freehold; that the circuit court, in a cause brought before it by an appeal from a judgment entered by a justice of the peace, could exercise no greater jurisdiction and power than that possessed by the justice of the peace; and hence that a freehold could not be regarded as involved in an action, such as the one at bar, instituted before a justice of the peace. Following the doctrine of that case, it must be held that this court is without jurisdiction to entertain this appeal.

Appeal dismissed.

(198 Ill. 318)

PEORIA & P. U. RY. CO. v. PEOPLE ex rel. KNUPP, County Collector. (Supreme Court of Illinois. Oct. 25, 1902.) TAXATION-CONSTITUTIONAL LIMIT-ADDITIONAL TAX-AUTHORITY OF COUNTY OFFICIALS-ELECTION.

1. Const. 1870, art. 9, § 8, limits the power of county authorities to levying taxes to 75 cents on each $100 of the valuation of property assessed, unless a greater rate is authorized by vote of the people; and Hurd's Rev. St. 1899, c. 34, § 27. provides that such vote shall be only after an order entered of record by the county board setting forth "substantially the amount of such excess required." A resolution of a county board recited that the county indebtedness was "about $100,000," and that an additional tax should be levied "until a sufficient amount is raised to meet the indebtedness." Held, that the power conferred by a vote thereunder was exhausted by levies for three years producing $115,000, and a further levy could not be had, though it appeared that the indebtedness was $132,000; that amount not being substantially the amount recited in the resolution.

2. That the notice by the county clerk and the proposition as printed on the ballots stated that the question was "for an additional tax, until a sufficient amount is raised to meet the indebtedness of the county," did not enlarge the powers of the board; the resolution being the measure of their authority.

Appeal from Peoria county court; Robt. H. Lovett, Judge.

Application by the people, on the relation of one Knupp, county collector, for a judg ment and order of sale of the property of the

Peoria & Pekin Union Railway Company. From a judgment as prayed, the company appeals. Reversed.

Stevens, Horton & Abbott, for appellant. Wm. V. Tefft, State's Atty. (Edwin Hedrick, of counsel), for appellee.

BOGGS, J. County taxes were levied and extended on the books of the county collector of Peoria county against all property assessed for taxation in the year 1900 at the rate of 100 cents upon each $100 of the assessed value thereof. Section 8 of article 9 of the constitution of 1870 limits the power of county authorities to assess taxes for county purposes (except for indebtedness existing at the time of the adoption of the constitution), in the aggregate, to 75 cents on each $100 of the valuation of the property assessed for taxation, unless authorized by a vote of the people of the county to levy a greater rate of taxation. The levy thus made for the year 1900 resulted in the extension of taxes against the property of the appellant company in the said Peoria county in the amount of $1,027.26 in excess of the amount which would have been required to be paid by an assessment of taxes at the rate limited by the constitution in the absence of a vote of the people. The appellant company paid the taxes assessed against its property, save as to this amount of $1,027.26; and to the application of the county collector of the said county, filed in the county court of Peoria county, for a judgment and order of sale of the property belonging to it for said sum so remaining unpaid, the appellant company filed its objection, in substance, that said excess in the rate of county tax in said county for the said year was not for the purpose of paying any indebtedness which existed at the time of the adoption of the constitution, nor was the assessment of such excess authorized by a vote of the people of the county. A hearing of the objection resulted in the rendition of a judgment and order of sale of the property of the appellant company as prayed in the application of the county collector. This is an appeal to reverse the judgment.

It was stipulated by the parties that the levy in dispute had not been ordered for the purpose of paying any indebtedness existing at the time of the adoption of the constitution. The contention in behalf of the people, upon the relation of the county collector, was and is that the levy in excess of the rate permitted by the constitution was authorized by a vote of the people of the county. The statute providing for the submission of a question of that character to the people (Hurd's Rev. St. 1899, c. 34, § 27) is as follows: "Whenever the county board shall deem it necessary to assess taxes, the aggregate of which shall exceed the rate of seventy-five cents per $100 valuation of the property of the county, except when such excess is to be used for the payment of indebtedness

existing at the adoption of the constitution, the county board may, by an order entered of record, set forth substantially the amount of such excess required, and the purpose for which the same will be required, and if for the payment of interest or principal, or both, upon bonds, shall in a general way designate the bonds and specify the number of years such excess will be required to be levied, and provide for the submission of the question of assessing the additional rate required to a vote of the people of the county at the next election for county officers after the adoption of the resolution; and it shall be the duty of the county clerk in his election notice to give notice of such submission. The votes therefor shall be, 'For additional tax,' and those against shall be, 'Against additional tax.' The votes shall be canvassed and returned the same as those for county officers, and if a majority of the votes cast upon the question are 'For additional tax,' then the county board shall have power to cause such additional tax to be levied and collected in accordance with the terms of such resolution, and the money so collected shall be kept as a separate fund and disbursed only for the purposes for which the same was raised: provided, any surplus that may remain after the payment of all demands against said fund may be used for other purposes." It was further stipulated between the parties that at the September, 1896, meeting of the supervisors of said county, the following resolution was adopted: "Whereas, the levy of seven and one-half mills on the one dollar, as provided by statute, has failed to produce an amount sufficient to pay the expenses of the county board: and whereas, the floating debt of the county has been increased each year, until it now amounts, with the bills audited at this session of the board, to about the sum of $100,000, therefore, resolved, that the county clerk be instructed to give the proper notice that the question of levying an additional tax of not to exceed two and one-half mills on the dollar per annum, until a sufficient amount is raised to meet the indebtedness of the county, will be submitted, to be voted upon at the coming November election, and that he cause to be printed on the ballots to be used at the said election the words: 'For additional tax levy, not to exceed two and one-half mills.' 'Against additional tax levy, not to exceed two and one-half mills.'" It was further stipulated that in pursuance of the last-mentioned resolution the county clerk gave notice of the election in the words following: "The question of levying an additional tax of not to exceed two and one-half mills on the dollar per annum, until a sufficient amount is raised to meet the indebtedness of the county, will be submitted." It was further stipulated that in conformity with the said notice there was printed on each ballot at the November election, 1896, the following: "To levy an additional tax of not to exceed two and one-half

mills on the dollar per annum, until a sufficient amount is raised to meet the indebtedness of the county: 'Yes.' 'No.'" It was further stipulated that the total vote cast at the said November, 1896, election was 19,898 votes; that, out of such total vote, 2,438 voted "Yes" on said question, and 2,162 voted "No." It appeared that, acting under the authority of the election set forth in the stipulation, county taxes were levied and collected on all of the property assessed for taxation in the county of Peoria for the years 1897, 1898, and 1899 at the rate of 100 cents on each $100 of the assessed value of such property, and that the amount collected by such levies and assessments during such years, in excess of that which would have been produced by a levy of 75 cents on each $100, amounted, in the aggregate, to the sum of $115,848.56.

The appellant company insists that as the aggregate of the taxes in excess of 75 cents on each $100 which had during the years 1897, 1898, and 1899 been collected by the county of Peoria under the authority of the resolution of the county board, and the vote of the people adopting the same, exceeded the sum mentioned in the resolution authorizing the vote, all power to act under the said resolution and the said vote had been exhausted prior to the levy of taxes made for the year 1900, and that therefore the levy for the year 1900 objected to by them was in contravention of the constitutional provision limiting the power of county boards in the matter of levying and assessing taxes. The position of the appellee is that the indebtedness of the county of Peoria at the time the resolution was passed by the county board amounted to more than $132,000, and that the election conferred power to levy taxes in excess of the constitutional limitation until a sufficient amount should thereby be collected to meet and discharge the entire county indebtedness then existing.

In the case of Peoria & P. U. Ry. Co. v. People, 183 Ill. 19, 55 N. E. 714, this court was called upon to determine as to the power of the county board of said county of Peoria to levy taxes for county purposes for the year 1898 in excess of the rate fixed by the constitution, by virtue of the same resolution of the board of supervisors and the same election which is here relied upon to authorize the levy here objected to by the appellant company. We there said (page 25, 183 Ill., page 716, 55 N. E.): "The question is not now presented as to whether a greater sum than $100,000 can be raised, even though the indebtedness existing at the time of the vote amounted to $113,196. On that question we refrain from expressing an opinion." It should be observed that the indebtedness of the county at the adoption of the resolution by the board was then stipulated to be about $113,000. We there held, however, that it was not essential that the resolution of the board calling the election should specify the

number of years during which such excess in the rate should be levied, when the indebtedness to be paid by such excess was other than the interest or principal of bonds issued by the county. If the purpose of the levy at the excessive rate is to provide funds for the payment of the interest or principal of bonded indebtedness of the county, the statute expressly provides that the resolution shall "specify the number of years such excess will be required to be levied." We there held, also, that the statutory requirements were satisfied if the order of the board set forth "substantially the amount and purpose of the excess," and that the preamble and resolution of the board are both part of one and the same order, and that "these set out in an ample manner all the statute requires, viz., a substantial statement of the amount of the indebtedness, to wit, $100,000." A valid order for an election may specify the number of years during which the excessive rate shall be levied, or may, as we said in the former case, accomplish the same purpose by setting forth substantially the amount to be levied by virtue of the vote of the people. It is indispensable to a good and valid order of the board that it should disclose to the voters either the length of time the levies at the excessive rate shall continue, or the amount which is to be raised by such excess in the rate of taxation. If, as in this instance, the mode of setting forth the amount to be raised is adopted, the authority of the county board to levy such excess rate must be held to be restricted to the production of substantially the amount named in the resolution. The language of the preamble of the resolution, which, as we have held before, may be resorted to as a part of the order, discloses that the purpose of the election was to authorize the excess in the rate of taxation in order to discharge the indebtedness of the county in "about the sum of $100,000." In the decision of the prior case between the same parties we accepted the word "about" as the equivalent of the word "substantial," which was employed in framing the statute under which the election was called and held. In 1 Cycl. Law & Proc. 196, 197, it is said: "The use of the word 'about' gives a margin for a moderate excess in or diminution of the quantity mentioned, and negatives the idea that exact precision is intended. It imports that the actual quantity is a near approximation to that mentioned, and, when the context limits and restrains its meaning, does not materially impair the certainty of a description."

In determining the meaning of any grant of power to levy taxes, it is the universal rule that strict construction shall be given to that which is relied upon to confer the power, and that the construction shall be liberal in all that tends to the protection of the taxpayer. Cooley, Tax'n, 209-215. One hundred and thirty-two thousand dollars cannot be said to be a near approximation to $100,000, nor can an excess of $32,000 be said to be

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