notes of the decedent. Two essential elements are wanting. The substitution of the new debtor for the old debtor is not shown to have been by a mutual agreement of all the parties; nor is it shown that there was an extinguishment of the old debt. Kelso v. Fleming, 104 Ind. 180, 3 N. E. 830; Manufacturing Co. v. Probasco, supra. Moreover, while the heirs might pay the debts of the estate without administration, yet they had no authority to represent the estate in any way, nor to bind the estate in any manner by any agreement. They were not the legal representatives of the estate. The facts simply show that appellee, holding a valid and legal claim consisting of two notes against Griffis' estate, took the notes of the two sons in lieu of them and surrendered the original notes to the sons. The evidence does not show that appellee agreed to accept the sons' notes in payment or satisfaction of his claim against Griffis' estate. The case comes clearly within the rule above declared in Tyner v. Stoops. The case of Parsons v. Tillman, 95 Ind. 452, cited by counsel for appellant, is not controlling here, because, in that case, a creditor, holding a firm's note and desiring to make an advancement to his daughter, surrendered his notes, and new notes were executed by the firm to the daughter at his request, and with her concurrence. This was a mutual agreement of all the parties and an extinguishment of the original indebtedness. Judgment affirmed. (181 Mass. 195) DICKINSON v. INHABITANTS OF (Supreme Judicial Court of Massachusetts. Norfolk. April 2, 1902.) TAXATION-DOMICILE EVIDENCE. In an action to recover a poll and personal property tax paid by plaintiff to B., on the ground that he was not an inhabitant of B. in May, 1899, the date of the assessment of the taxes, it appeared that he changed his residence to C. in 1890, and for some years spent the summer months at his house in C., and the rest of the year at his house in B.; that the title to the latter house was in his wife: that in 1895 or 1896 he left his house at C., and permanently lived at the house in B.; that he continued to vote in C., and intended to remain an inhabitant of C. Held, that the jury were warranted in finding that he was an inhabitant of B., and liable for the payment of the taxes; for his intention to continue to be an inhabitant of C. could not alter the legal consequences of his permanently living at B. Exceptions from superior court, Norfolk county; Wm. B. Stevens, Judge. Action by one Dickinson against the inhabitants of Brookline to recover the amount of a poll tax and a tax on personal property paid by plaintiff under protest. The only question in the case was whether the plaintiff was an inhabitant of Brookline or Cohasset. There was a verdict for defendant, and plaintiff excepted. Exceptions overruled. Walter Bates Farr and Chas. Dickinson, for plaintiff. Charles A. Williams, for defendant. HOLMES, C. J. This case comes here upon exceptions to a refusal to direct a verdict for the plaintiff. The technical answer to such a request is obvious, that the jury may not believe the plaintiff's testimony. But in this case the testimony which came wholly from the plaintiff himself, was so perfectly candid that the counsel for the defendant very properly did not rely upon a merely technical answer but argued that the plaintiff's statement at least was consistent with the verdict for the defendant, and that the refusal of the ruling was right on that ground. It is an action to recover taxes paid under protest, on the ground that the plaintiff was not an inhabitant of Brookline on May 1, 1899, the date of the assessment. The facts are simple. The plaintiff was domiciled in Boston. In or before April, 1890, he probably changed his domicil to Cohasset, and for some years spent four or five summer months in the former place and the rest of the year in Brookline. Since 1895, or 1896, he has let his Cohasset house and has permanently inhabited only the Brookline house, which seems to be the more important structure of the two, and stands in the name of the plaintiff's wife. He has continued to vote in Cohasset, and has intended, so far as consistent with the facts, to remain an inhabitant of Cohasset. Of course the argument for the plaintiff is that his domicil is presumed to continue until it is proved to have been changed, that it could be changed only by his intent and overt act, and that he expressly denied the intent. The ambiguity is in the last proposition. The plaintiff did not deny that he intended to keep on living as he had lived for the last few years, and if the jury saw fit to find, as no doubt they did, that he did intend to do so, then he did intend the facts necessary to constitute a change in domicil, and what he did not intend was simply that those facts should have their inevitable legal consequence. If a person is present with his family in a house in Brookline and intends to make his actual headquarters there for the rest of his life, and to live no more in the place of his former domicil, he cannot retain the old domicil by the simple means of intending, subject to his actual change, to retain advantages inconsistent with it. The proposition hardly needs illustration. When you intend the facts to which the law attaches a consequence, you must abide the consequence whether you intend it or not. Of course, if hereafter, upon the recurrence of this question, Mr. Dickinson is prepared to state that he never has given up his expectation of actually living in Cohasset, while that testimony would not take away the town's right to go to the jury, it may lead to a different result. Exceptions overruled. (181 Mass. 122) KELLEY v. THOMPSON. (Supreme Judicial Court of Massachusetts. Essex. March 27, 1902.) STATUTE OF FRAUDS-PAROL AGREEMENTPERFORMANCE-RECOVERY, WHEN ALLOWED. 1. A maker, when sued on a note, cannot defend by setting up a set-off under a parol agreement within the statute of frauds, made at the time of the execution of the note, that he should be allowed a discount on milk purchased by him from the payee to be applied on the note when paid. 2. If the maker had sought to recover the set-off orally agreed upon, on the theory that the payee had obtained his money without rendering a quid pro quo, and had offered to prove that the value of the milk purchased from the payee was the sum paid, less the discount. the evidence would have been admissible to show that the money had been paid, not only for the milk, but also for another unperformed consideration, under the void agreement, and thereby enable the maker to recover in setoff on an implied agreement to refund to the extent to which the maker had not received a quid pro quo for the money paid by him. Exceptions from superior court, Essex county; Albert Mason, Judge. Action by Joseph B. Kelley against Moses W. Thompson. Judgment for plaintiff, and defendant excepts. Overruled. Wiggin & Wiggin, for plaintiff. W. S. Peters and Harry J. Cole, for defendant. LORING, J. This was an action on a note for $500, in which the defendant filed a declaration in set-off, containing a count for money had and received and one on the account annexed. The only item in the account annexed now insisted on is item 18: "To discount on milk, at 4 cents per can, $381.68." In the count for money had and received, the plaintiff seeks to recover the same amount as money received to his use. The case has been before this court before, Kelley v. Thompson, 175 Mass. 427, 56 N. E. 713. It was there decided that evidence of an oral agreement between the plaintiff and the defendant, whereby the defendant was to buy milk of the plaintiff and pay 28 cents a can therefor, and the plaintiff was to allow the defendant a discount of 4 cents a can when the note sued on was paid, should not have been admitted. The ground on which that conclusion was reached was that as a defense to the note it varied a written contract, and as an independent cause of action in set-off it was within the section of the statute of frauds which requires contracts not to be performed within a year to be in writing. It was a contract not to be performed within a year, because the note was payable two years after the date of the oral agreement, which was contemporaneous with the note. The case went back to the superior court, and on a second trial the same evidence was offered and excluded, and the defendant comes here on an exception to the ruling of the judge in refusing to admit it. The defendant now contends "the rule of law to be that where two parties have made an agreement which is invalid by reason of the statute of frauds, and one party has paid money or other valuable consideration relying upon said invalid agreement, that, if this agreement is repudiated by the party who has received the money, the party paying the money can recover the sum in an action of assumpsit for money had and received;" and cites Thompson v. Gould, 20 Pick. 134; Cook v. Doggett, 2 Allen, 439; Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318; White v. Wieland, 109 Mass. 291; Dix v. Marcy, 116 Mass. 416; Root v. Burt, 118 Mass. 521; Parker v. Tainter, 123 Mass. 185; Holbrook v. Clapp, 165 Mass. 563, 43 N. E. 508; Miller v. Roberts, 169 Mass. 134, 47 N. E. 585. But the rule established by the cases cited by the defendant is not accurately stated by him, and does not support his contention in this case. That rule is that if a plaintiff has paid money, conveyed property, or rendered services under an oral agreement within the statute of frauds, which agreement the defendant wholly refuses to perform, he can recover the money paid, or the value of the property conveyed, or of the services rendered. In that case there is a total failure of consideration, and the plaintiff can recover the value of any benefit inuring to the defendant as a result of the transaction. To the cases cited by the defendant may be added Basford v. Pearson, 9 Allen, 387, 85 Am. Dec. 764; Pulbrook v. Lawes, 1 Q. B. Div. 284; Riley v. Williams, 123 Mass. 506; Dowling v. McKenny, 124 Mass. 478; O'Grady v. O'Grady, 162 Mass. 290, 38 N. E. 196; and see Kneil v. Egleston, 140 Mass. 202, 204, 4 N. E. 573, and Holbrook v. Clapp, 165 Mass. 563-565, 43 N. E. 508. And, further, where the plaintiff has performed his agreement in whole, but the defendant has performed his agreement in part only, and a benefit inures to the defendant as a result of the transaction, the plaintiff can recover on an implied promise to the extent of that benefit. Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318; White v. Wieland, 109 Mass. 291; Dix v. Marcy, 116 Mass. 416; Miller v. Roberts, 169 Mass. 134, 47 N. E. 585. The ground of recovery in that case is that the defendant has got the plaintiff's property without having fully paid for it, or that the plaintiff has paid the defendant in advance without receiving a quid pro quo. A recovery is had on the same principles as that given to a contractor who has erected a building on the defendant's land for which he cannot recover under the contract between him and the owner of the land, and which was recently discussed at length in Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. In this case the principal defendant, in his declaration in set-off, is not seeking to recover from the plaintiff on the ground that he had not received a quid pro quo for the money paid the plaintiff. What the defendant is insisting on here is that the plaintiff has not had the discount orally agreed upon. That is what the statute of frauds says he cannot have, since the agreement was made by word of mouth only; and what the statute forbids is equally forbidden whether the defendant seeks to enforce the contract directly by suing on it or to enforce it indirectly by seeking to recover back what, if the contract had been valid, would have been an overpayment. In this case the principal defendant did not seek to recover on the broad ground that the plaintiff had got his money without having rendered a quid pro quo for it. There was no offer to prove that 28 cents a can could not be taken to be the value of a can of milk. Had he offered to prove that fact, and sought to recover the difference between the 28 cents paid by him and the true value of a can of milk, the evidence excluded would have been admissible to show that the milk was delivered and the money paid under an agreement within the statute, not for the purpose of enforcing the oral contract, either directly or indirectly, but for the purpose of showing that the money had been paid, not for the milk only, but also for another consideration, which had not been performed under an agreement which could not be enforced. Basford v. Pearson, 9 Allen, 387, 391, 85 Am. Dec. 764. Under these circumstances, if the money was paid for something other than the milk, and could not be taken to have been a payment for the milk, the defendant could recover in set-off on an implied agreement to refund to the extent to which the defendant had not had a quid pro quo for the money paid by him. It should be added that the rule established by the cases cited by the defendant is not to be resorted to as a means of getting indirectly the benefit of a trade made by word of mouth. If that were to be allowed, the door would be open to the very frauds which the statute of frauds was passed to prevent, and the statute would be rendered nugatory. The only reason for ever letting a plaintiff show the oral agreement in such a case is that, unless this were permitted, the statute would be made the instrument of perpetrating a fraud. It is a fraud for a party to receive performance, in whole or in part, of a contract within the statute of frauds, and when sued on it to set up the defense of the statute, and keep, without paying therefor, what he received under the oral contract. To prevent that fraud, evi dence of the receipt by the defendant of value under an oral agreement for which, as a matter of market value, apart from the trade made by word of mouth, he has not given a quid pro quo, is allowed, but such evidence is not competent for any other purpose. Exceptions overruled. (181 Mass. 126) HAGERTY v. TUXBURY. (Supreme Judicial Court of Massachusetts. Essex. April 1, 1902.) INTOXICATING LIQUORS-INTEREST IN SALOON -SALE-VALIDITY. Where a part owner of a saloon sold his interest therein to his partner taking a note in part payment, the fact that the sale included an interest in intoxicating liquors, and that the seller had no license to sell liquors, the license being in the name of the other, did not render the sale illegal, or constitute a defense to such note. Exceptions from superior court, Essex county; Charles U. Bell, Judge. Action by Daniel T. Hagerty against Edgar F. Tuxbury. There was a trial and verdict for plaintiff, and defendant brings exceptions. Exceptions overruled. Wm. D. Chapple, for plaintiff. Reddy & Reddy, for defendant. LORING, J. This was an action on a promissory note indorsed by the defendant for the accommodation of his brother, Frank Tuxbury, who bought from the plaintiff "his interest" in a liquor saloon, and gave this note, with others, in payment for it. We are of opinion that on the evidence the plaintiff and Frank Tuxbury are to be taken to have been partners, as they were assumed by the presiding judge to have been. The defendant asked for the following ruling: "If the whole or part of the consideration of the note was for intoxicating liquors sold by the plaintiff to maker of the note, and the plaintiff had no license to sell such intoxicating liquors, then the sale was illegal; consequently the consideration of the note was illegal, and the defendant is not liable." The court instructed the jury as follows: "For this purpose I instruct you that, if two men are interested in a saloon, one may sell out to the other without violating the liquor laws of this commonwealth, and therefore, if that is the fact, that it is not a legal defense to the note. * * I will add that element, * two parties being interested in the business, but the license being in the name of one of them only, the one selling not having the license." We are of opinion that the ruling given was correct. On that point Com. v. Pomphret, 137 Mass. 564, 50 Am. Rep. 340, is decisive. In our opinion, that case went one step beyond Com. v. Smith, 102 Mass. 144. In the earlier case there was nothing more than a partition of liquor owned in common; but we do not think that the later case was intended to be confined to the case of a club, where each member on paying for a drink was merely appropriating to himself his share of liquor owned in common, but in unascertained proportions, in pursuance of a previous arrangement between the members, but was intended to apply to all sales by a club to its members of liquor owned in common by the club. And this view of the opinion is confirmed by St. 1881, c. 226 (Pub. St. c. 100, § 45), providing that, in towns in which the inhabitants vote that licenses shall not be granted, "all buildings, places or tenements therein, used by clubs for the purpose of selling, distributing or dispensing to their members or others, intoxicating liquors, shall be deemed common nuisances." Exceptions overruled. (181 Mass. 138) WHITMAN v. BOSTON EL. RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. April 2, 1902.) STREET RAILWAYS-COLLISION-EVIDENCEJUDGMENT OF PARTY INJUREDQUESTIONS FOR JURY. Plaintiff, iu a covered wagon, drove out of a cross street on to a street on which there was a double-track railway. As his horse's head was over the first rail, he saw a car approaching about 200 feet distant. He was driving but little faster than a walk, and continued on without quickening the pace. The motorman turned off the power, and applied the brakes, but the car struck the wagon. Held, that the question of his negligence did not depend on his judgment as to whether there was a chance to cross the track, and evidence thereof was properly excluded. Exceptions from superior court, Suffolk county; John H. Hardy, Judge. Action by Morris Whitman against the Boston Elevated Railway Company. There was a verdict for defendant, and plaintiff brings exceptions. Exceptions overruled. Geo. F. Williams and Jas. A. Halloran, for plaintiff. M. F. Dickinson and W. B. Farr, for defendant. HOLMES, C. J. Whether the plaintiff was negligent or not did not depend upon the plaintiff's judgment but upon that of the jury, whose duty it was to decide whether he showed the caution which a man of ordinary prudence would observe. Therefore from that point of view the excluded evidence was immaterial. Com. v. Pierce, 138 Mass. 165, 176, 52 Am. Rep. 264. The question excluded did not seek to bring out a portion of the surrounding facts which could not be stated adequately in detail and which therefore needed to be summed up in some general phrase, as often happens. The external situation sufficiently appeared. Again there was no question as to what the plaintiff knew about the situation. The only material fact that we can think of that possibly might have been conveyed by the plaintiff's answer is that he did not get himself. run down on purpose. But it does not appear that the defendant charged him with intentionally bringing about the accident, or that the question had any such matter in view. If it was thought necessary to deny intention, a question easily could have been framed that would have been free from objection. Unless it was argued that the plaintiff did intend to get himself run down, his own judgment of the facts sufficiently appeared by what he did. He was allowed to testify that he formed a judgment. See Railway Co. v. Miller, 8 Tex. Civ. App. 241, 246, 27 S. W. 905. Exceptions overruled. (181 Mass. 178) HARRINGTON v. DOUGLAS (four cases). (Supreme Judicial Court of Massachusetts. Middlesex. April 2, 1902.) STRUCTIONS. FALSE REPRESENTATIONS-INDUCEMENT-INWhere plaintiffs contended that they were induced to rent defendant's premises by reason of false representations, and the general effect of the court's charge on that subject was that if plaintiffs relied on their own knowledge, and not on the representations, they as sumed the risk of the occupation, it was not error to fail to instruct that, for plaintiffs to recover, it was sufficient that the false representations formed one of the inducements, and not the sole inducement. Exceptions from superior court, Middlesex county; John H. Hardy, Judge. Actions by Robert A. Harrington against one Douglas. These were four actions brought to recover damages arising from the alleged defective condition and draining of a house owned by the defendant. The plaintiff, Robert A. Harrington, was a tenant of the defendant. It was alleged that the condition of the drainage and plumbing in the house at 22 Austin street, Cambridge, was such that the sewer backed up and overflowed in a water closet, causing the premises to become unsanitary and unhealthy. There was a verdict for defendant in each case, and plaintiff excepted. Exceptions overruled. William P. Hale, for plaintiff. E. J. Jose and Hamilton & Eaton, for defendant. HAMMOND, J. The first and second rulings requested, although not given in the exact language of the requests, were given in substance, and that was enough. The only remaining exception relates to the question of inducement. One of the contentions of the plaintiffs was that Hancock, the agent of the defendant, made certain false representations concerning the sanitary condition of the tenement, by which the tenant Harrington was induced to hire it. The evidence as to whether such representations were made was conflicting, but would warrant a finding that they were made, and that the tenant, relying upon them, was thereby induced to hire the premises. The objection made by the plaintiffs to the charge to the jury is that they were instructed that, in order to recover, these representations must have been the sole inducement to the contract of hiring. Such an instruction, as is justly remarked by the counsel for the plaintiffs, would be in conflict with one of the elementary and most familiar principles of the law of deceit, and one would therefore hardly expect such an instruction to be given. While one or two sentences in the charge, considered apart from their setting, might give some ground for the contention that such an instruction was given, yet upon a consideration of the charge as a whole we think it manifest that no such thing was in the mind of the judge, and that the effect of the whole charge was to leave it to the jury, so far as material to this point, to find for the plaintiffs, if the representations formed one of the induce ments. It is to be noted that it does not appear from the bill of exceptions that among the requests for instructions submitted by the plaintiffs at the close of the evidence there was anything relating to this point. It appears, however, that at the conclusion of the charge the counsel for the plaintiffs saved an exception to the instructions of the court as to the representations alleged to have been made by the agent, Hancock, pointing out that the law does not require such representations to be the sole inducement, as laid down by the court, but only one of the inducements, which led the plaintiffs to take the house; and that the judge declined to change his instructions. He probably declined to change his instructions because he did not accede to the interpretation placed upon them in this respect by the counsel for the plaintiffs. He had in fact touched upon the matter of the inducement several times, and he was endeavoring to distinguish between an inducement based upon the representations of Hancock and an inducement based upon their own knowledge; and the whole general effect of the charge upon this point was to say, in substance, that, if the plaintiffs chose to rely upon their own knowledge, then they assumed the risk of the occupation of the premises, and, although the representations may have been made, yet the plaintiffs would not be entitled to recover if they relied upon their own knowledge, and not upon the representations. Exceptions overruled. (181 Mass. 202) CRONIN v. FITCHBURG & L. ST. RY. CO. Where, in an action for personal injuries, plaintiff called a physician as a witness, who testified that he had made examination of plaintiff at the request of his counsel, for the purpose of testifying for plaintiff, it was not error to permit the witness to testify to statements made to him by the plaintiff, at the time of such examination, with reference to his bodily condition, such testimony being admissible as the grounds and reasons for an opinion to be given in evidence by the witness. Exceptions from superior court, Suffolk county; Daniel W. Bond, Judge. Action by John F. Cronin against the Fitchburg & Leominster Street Railway Company. Judgment for plaintiff, and defendant excepts. Exceptions overruled. At the trial, a physician, called as a witness for plaintiff, testified that he had made two examinations of plaintiff, at the request of plaintiff's counsel, for the purpose of testifying for plaintiff, and, against the objection of defendant, witness testified to statements made to him by the plaintiff at the time of such examinations, regarding his bodily condition. Jas. E. Cotter, for plaintiff. C. F. Baker, Walter P. Hall, and Wellington Wells, for defendant. BARKER, J. It is plain that the statement by a party to a cause of his bodily and nervous symptoms, made long after the occurrence of the accident to which he attributes them, and for purposes connected with the preparation for trial of a suit in which his condition of health is material, and not made to a physician for the purpose of obtaining advice or treatment, are not admissible in evidence in his own favor as proof of the truth of the matters stated. It is equally plain that every person admitted as an expert to testify to his opinion may state on his testimony the grounds and reasons for that opinion, and that the party calling the expert may put in evidence those grounds and reasons in the direct examination of the expert, and before calling upon him to give his opinion to the jury. The statement of these rules as to the examination of witnesses called as experts, made by Chief Justice Bigelow in Barber v. Merriam, 11 Allen, 322, 324, has since the decision of that case been considered as law in this commonwealth, and has governed trials. So well established is this doctrine that the expert, upon direct examination, and before giving his opinion in evidence, may testify to the matters which form the grounds and reasons of that opinion, that in Koplan v. Gaslight Co., 177 Mass. 15, 21, 58 N. E. 183, this court overruled, without discussion, an exception to testimony so given, and which, save as showing the grounds of the opinion about to be given by the witness, would have been inadmissible. In the present case there is no doubt that the statements of the plaintiff were hearsay, and of that particularly dangerous and objectionable type,-declarations of an interested party, made after suit brought, and for the very purpose of prepar |