holder to have kept their stock, under the circumstances. But the legal effect of the transaction as regarded the right of the stockholder to keep his stock and take the dividend was, it seems to us, as we have stated it. Davis v. Jackson, 152 Mass. 58, 25 N. E. 21, 23 Am. St. Rep. 801. The transferring of the assets to trustees for special reasons, to be converted into cash for the payment of the dividend, and the payment of a dividend of 200 per cent. through Morgan & Co. concurrently with the payment for the stock by them, do not give to the transaction, it seems to us, the character for which the remainder-men contend, or make the dividend any the less a dividend of income. We have assumed that if the real transaction was as contended, and if the dividend was made and paid as part of the consideration for the transfer of the stock, the contention that it was principal, and not income, would be sound. If the case stood differently it might deserve consideration whether that would be so, and whether a part of it, at least, should not be regarded as income. It is not necessary, however, to consider that question now. There remains the question whether the assets that were distributed can or should be regarded in whole or in part as capital. They consisted of cash and coal on hand, bills and accounts receivable, less bills and accounts payable, all loans to others, including a railroad bond and mortgage of $176,225, and all stocks and bonds of corporations and others, except $3,000,000 of the Erie & Wyoming Railroad Company bonds in the treasury available as working capital, and were carried on the books of the company principally under these accounts: A profit and loss account, an insurance account, and a coal-land renewable fund account. The funds represented by these accounts were mingled together, and were used for investment and for loans at interest. Deducting the $3,000,000 of railroad bonds left in the treasury as working capital, there was not enough to make up the amount that was distributed, and the balance consisted of cash on hand and coal and the net amount of the bills and accounts receivable. There is nothing to show that the directors were not justified in regarding the cash on hand, the coal, and the net amount of bills and accounts receivable as profits or income in the strictest sense of those words. For aught that appears they were the proceeds of the capital employed in the current business remaining after the payment of all bills and accounts payable. It is conceded that the money inIcluded in the three accounts referred to was originally profits, but it is contended that it had become a part of the permanent capital. It is no doubt true that profits do not of necessity always remain such, and that they may be converted into permanent capital without any formal action or declaration on the part of the corporation or its direct ors. Minot v. Paine, 99 Mass. 101, 96 Am. Dec. 705. But they do not become capital by mere accumulation and accretion, except in special cases, and under special charter provisions (Sugden v. Alsbury [1800] 45 Ch. Div. 237; Sun Mut. Ins. Co. v. City of New York, 8 N. Y. 241; Insurance Co. v. Jenkins, 16 N. Y. 424), nor by the mere lapse of time, though that may be the practical effect in cases where, in consequence thereof, it be comes difficult or impossible to distinguish them from capital. So long as their identity is preserved, we do not see why the directors may not regard them as profits and treat them accordingly. Leland v. Hayden, 102 Mass. 542. In order to become capital they should be applied, we think, in some effectual way to a permanent increase of the property which is used in the business of the corporation. They may be set aside as matter of bookkeeping for such a use, but until actually appropriated to that purpose they remain, it seems to us, profits, and the corporation and its directors may deal with them as such. If they are used for the purpose of increasing the capital by the issue of new shares, or if they are applied to the construction or repair of permanent works, this constitutes an effectual capitalization of them. Minot v. Paine, supra. Rand v. Hubbell, 115 Mass. 461, 15 Am. Rep. 121; D'Ooge v. Leeds, 176 Mass. 558, 57 N. E. 1025; Gibbons v. Mahon, 136 U. S. 549, 10 Sup. Ct. 1057, 34 L. Ed. 525. On the other hand, if they are used in the business of the corporation as floating capital, as it is termed, or are invested in stocks and securities, so as to yield an income which goes into the general income, we think that such a use must be regarded as temporary in its nature, and liable to be terminated by the directors at any time when they see fit, either by a permanent investment and withdrawal for the purposes of capital or by a distribution amongst the stockholders by way of dividend; and if terminated in the latter way we think that the dividend so declared must be regarded as a dividend of income or profits, and not of capital. Whether, if accumulated profits are once devoted to permanent capital purposes, they can be set free and distributed as income amongst the stockholders by the paying in of an equal amount as capital, as seems to be intimated by Lord Watson in Bouch v. Sproule (1887) 12 App. Cas. 385, 402, 403, and as argued by the life tenants, it is not now necessary to consider or decide. In the present case, as already observed, the directors in the vote declaring the dividend described the assets that were distributed as "representing accumulated and undivided profits of the company." We see no reason to doubt that that was a true description of them, and that the dividend was intended to be, and was, a dividend of them as profits, and that the directors had a right to make it as such. Furthermore, it is agreed, if that is material, that the capital was not impaired by the distribu tion, but the assets remained several times greater than the original capital after the dividend. The result is that, whether we adopt the rule for which the life tenants contend, that cash dividends are to be regarded as income, however large, except where upon its face the transaction shows that the dividend should be treated as a dividend of capital, or whether we consider the facts that have been argued in regard to the origin and history of the assets which furnished the dividend, we are of opinion that the dividend was a dividend of income, and not of capital or principal, and that the life tenants are entitled to it. Decree accordingly. (181 Mass. 416) DRISCOLL v. TOWLE. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1902.) MASTER AND SERVANT-INJURIES TO THIRD PERSON-EMPLOYMENT OF SERVANT -PROOF OF RELATION. Defendant was engaged in a general teaming business, owned the horse and wagon driven by K., employed K. to drive the same, and paid him his wages. Defendant contracted with another company to do its hauling, and K. reported each morning with the horse and wagon at the office of the company, and was thereafter engaged in carrying out the orders of that company's foreman. K. had exclusive management of the horse and wagon, chose his unharnessed the own route, harnessed and horse, and at night returned it to defendant's stables. Held, in an action for injuries to a person in the street by being struck by such horse and wagon while driven by K. in performing an order of such company, that the evidence was sufficient to authorize a finding that K. was the servant of defendant, and not of the company. Exceptions from superior court, Suffolk county; Elisha B. Maynard, Judge. Action by Patrick Driscoll against George H. Towle. Judgment for defendant, and plaintiff brings exceptions. Sustained. I. R. Clark, for plaintiff. Dickson & Knowles and Wm. B. Sprout, for defendant. HOLMES, C. J. This is an action for personal injuries caused by the plaintiff's being struck in the street by a horse or wagon driven by one Keenan. At the trial the judge directed a verdict for the defendant, and the plaintiff excepted. The only question is whether there was any evidence that Keenan was the defendant's servant. The defendant "was engaged in general teaming business in Boston." He owned the horse and wagon, and employed Keenan and paid him his wages. Keenan's only contract of employment was with him. For some time, however, Keenan had been carrying property for the Boston Electric Light Company, under some arrangement between the latter and the defendant. The general course of business, or at least that adopted on the day of the accident, was this: Early in the morning Keenan took the horse and wagon from the defendant's stables and reported to the Electric Light Company. An employé of that company would give him his orders as to what to do and where to go, and he spent the day in carrying those orders out. Sometimes he would help pull up arms on the poles, or pull up machinery, and the like. In driving, if he was directed to drive fast, he would drive fast, and if told that he had time enough, he would take his time, but he chose his own route and had exclusive management of his horse. At night he returned to the defendant's stables. He harnessed and unharnessed the horse, and fed it at noon. At the moment of the accident he was going to get some arms in pursuance of an order from the foreman of the Electric Light Company. We are of opinion that these facts are at least evidence that Keenan was the defendant's servant. It is true, of course, that a person admitted to be in the general employment of one may be lent to another, with his own consent (Railroad Co. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986), in such a way as to become the servant of that other for the occasion or for the time. Many cases have been decided on this ground. They generally depend upon the nature of the contract or arrangement, express or implied, between the general master and the third person. Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267; Coughlan v. City of Cambridge, 166 Mass. 268, 277, 278, 44 N. E. 218; Samuelian v. Machine Co., 168 Mass. 12, 46 N. E. 98; Donovan v. Construction Syndicate [1893] 1 Q. B. 629; Rourke v. Colliery Co., 2 C. P. Div. 205; Higgins v. Telegraph Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St. Rep. 537. But the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person's servant. More than that is necessary to take him out of the relation established by the only contract which he has made and to make him a voluntary subject of a new sovereign, -as the master sometimes was called in the old books. Dutton v. Bank (Mass. April, 1902) 62 N. E. 405. In this case the contract between the defendant and the Electric Light Company was not stated in terms, but it fairly could have been found to have been an ordinary contract by the defendant to do his regular business by his servants in the common way. In all probability it was nothing more. Of course in such cases the party who employs the contractor indicates the work to be done and in that sense controls the servant, as he would control the contractor if he were present. But the person who receives such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employed is his act. Of course the chances are that some orders will be given which are not strictly within the contract of the master. That is to be expected from the relative positions of the servant and the other party. If the latter has something that he wants done and sees a working man at hand, he is likely to ask him to do it, and if it is within the penumbra of his business the servant is likely to obey. While he thus goes outside his master's undertaking and his own contract with his master, he ceases to represent him (Brown v. Engineering Co., 166 Mass. 75, 43 N. E. 1118, 32 L. R. A. 605, 55 Am. St. Rep. 382), and he may make the other liable for his acts (Kimball v. Cushman, 103 Mass. 194, 4 Am. Rep. 528), but he does not on that account become the servant of his master's contractee for all purposes, or when he returns to the work which his master agreed to perform. The fact that Keenan sometimes gave help outside of loading or unloading his wagon could not be more than evidence, if it is that, of an arrangement giving the company more than ordinary control over him. At the most it was for the consideration of the jury and did not justify directing a verdict for the defendant as matter of law. Preston V. Knight, 120 Mass. 5; Jones v. Scullard [1898] 2 Q. B. 565. In cases like the present, there is a general consensus of authority that, although a driver may be ordered by those who have dealt with his master to go to this place or that, to take his or that burden, to hurry or to take his time, nevertheless in respect to the manner of his driving and the control of his horse he remains subject to no orders but those of the man who pays him. Therefore he can make no one else liable if he negligently runs a person down in the street. Huff v. Ford, 126 Mass. 24, 30 Am. Rep. 645; Reagan v. Casey, 160 Mass. 374, 379, 36 N. E. 58; Jones v. Mayor, etc., 14 L. R. Q. B. Div. 890; Waldock v. Winfield [1901] 2 K. B. 596; Quarman v. Burnett, 6 Mees. & W. 499; Laugher v. Pointer, 5 Barn. & C. 547, 558; Murray v. Dwight, 161 N. Y. 301, 55 N. E. 901, 48 L. R. A. 673; Lewis v. Railroad Co., 162 N. Y. 52, 66, 56 N. E. 548; Railroad Co. v. Steinbrenner, 47 N. J. Law, 161, 54 Am. Rep. 126; Joslin v. Ice Co., 50 Mich. 516, 15 N. W. 887, 45 Am. Rep. 54; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652. Exceptions sustained. (181 Mass. 437) LYMAN V. NATIONAL BANK OF THE (Supreme Judicial Court of Massachusetts. Where an executor borrows money of a bank for the estate, and pledges stocks and bonds as security therefor, such securities cannot be recovered back by an administrator de bonis non without payment of the loan, though the executor drew out the money on a check payable to his own order, and appropriated it to his own use. Case reserved from supreme judicial court, Suffolk county; James M. Morton, Judge. Bill by Anson M. Lyman, administrator de bonis non under the will of Isaac N. Tucker, deceased, against the National Bank of the Republic. Reserved for consideration of full court. Bill dismissed. Anson M. Lyman, in pro. per. Charles M. Reed, for defendant HOLMES, C. J. This is a bill brought by the administrator de bonis non of the will of Isaac N. Tucker, to compel the surrender of certain stock and bonds alleged to have been pledged unlawfully by the former executrix of the same will. The advance for which the pledge was given was made by the bank in good faith and placed to the credit of the estate. Afterward it was drawn out by the executrix upon a check to her own order. The money was applied to her private use, but this was without the privity of the defendant. The form of the check gave no notice of her intent to misapply the fund and imposed no duties on the bank. Some stress is laid on the statement in the agreed facts that the son of the executrix "applied in her name" for the loan, but the loan necessarily was made to her and it is plain that the president of the bank understood that it was for the benefit of the estate, or, according to popular phraseology, that it was made to the estate. The bill is based on a general allegation of illegality, and the only question necessary to be considered under either the bill or the evidence is the general one whether an executor has power to pledge the assets of the estate. This power is so fully established as an incident of his absolute control over the property that it is not necessary to do more than to cite a few of the cases. Carter v. Bank, 71 Me. 448, 36 Am. Rep. 338; Smith v. Ayer, 101 U. S. 320, 326, 25 L. Ed. 955; Scott v. Tyler, 2 Dickens, 712, 725; McLeod v. Drummond, 17 Ves. 152, 154; Russell v. Plaice, 18 Beav. 21, 26; Earl Vane v. Rigden, 5 Ch. App. 663, 668, 670; 1 Williams, Ex'rs (9th Ed.) 802, 803. Of course the contract of borrowing can bind the executor only personally in the first instance, but that is due to the fact that the estate as such is not a person and that the executor cannot contract otherwise. Durkin v. Langley, 167 Mass. 577, It is said that the defendant was charged with notice of the contents of the will. If this be so, there is nothing in the will to cut down the power of the executrix. This property was part of the residue, and although the will provided that after the death of the executrix the residue should be held upon certain trusts, that fact did not limit her official authority. She did not act by virtue of her interest in the fund or as trustee, but under her prior and paramount title as executrix. Whether the gift of the testator's business enlarged her powers need not be considered. As we are of opinion that the plaintiff has no case on the merits, it is unnecessary to discuss anything else. Bill dismissed. (181 Mass. 377) KEITH V. MARCUS et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1902.) ATTORNEY AND CLIENT-ACTION FOR FEESNEGLIGENCE OF ATTORNEY-EVIDENCE-DECLARATIONS. 1. Declarations by a United States district judge as to what occurred in certain proceedings in his court cannot be shown in evidence against a party, though present when the declarations were made, if they were not made under such circumstances that the silence of the party could be treated as an admission. 2. Where defendants under arrest on execution appear with their counsel before a court having jurisdiction to grant a writ of habeas corpus, and the judgment creditor also appears, and the cause is treated by all parties as being formally within the jurisdiction of the judge, who states that defendant should be released, the agreement by counsel for defendant that the record should show that the court ordered defendant's release is not such negligence on his part, affecting defendant's claim for false arrest, as can be recouped by defendant in an action by the attorney for fees. 3. Where defendants in an action for attor ney's fees attempt to recover damages for the negligence of the attorney in advising and bringing an action for false arrest, they have the burden of showing the negligence of the attorney, and that the arrest for which the action was brought did not create such cause of action. 4. Evidence of money expended by a client in the conduct of a suit is not admissible in recoupment in an action by his attorney for fees, in the absence of evidence that the attorney negligently brought the suit, without good reason to believe that it could be maintained. Exceptions from superior court, Suffolk county; John H. Hardy, Judge. Action by J. W. Keith against Alfred A. Marcus and another for attorney's fees, in which defendants seek to recoup damages for the negligence of the plaintiff as attorney. Judgment for plaintiff, and defendants bring exceptions. Exceptions overruled. J. G. Holt, for plaintiff. Edward H. Savary, for defendants. KNOWLTON, J. The first question to be considered is whether there was error in excluding testimony of a conversation between Judge Brown, of the United States district court, and Mr. Thompson, in reference to what occurred 20 days before, when the defendants were released from arrest. The occurrences of that earlier date could not be shown by subsequent declarations, even though the declarant was a judge of a court. The fact that the plaintiff was present when the alleged declarations were made does not render them competent, for they were not made to the plaintiff, and they do not appear to have been made under such circumstances that his silence can be treated as an admission. The defendants excepted to the ruling that there was no evidence to go to the jury on the claim for recoupment set up in the answer. This claim was put on two grounds: First. That the defendants were injured by the plaintiff's negligence in agreeing with the opposing counsel to a statement in a form for a record to be entered, and which subsequently was entered in the United States district court. The statement was in these words, at the end of the record, "and thereafterwards ordered their release therefrom." The only witnesses who testified to the facts to which these words relate were the plaintiff and one of the defendants. The plaintiff's account of what occurred was as follows: The defendants, being under arrest upon an execution for costs, were, at his request, taken before Judge Brown, from whom he asked for a writ of habeas corpus to obtain their release. The attorney for the creditor having come in, there was a hearing before the judge; and at the close of the arguments the judge, addressing the creditor's attorney, said, "Mr. Thompson, are you willing that I should treat this matter as though there had been a formal petition filed for habeas corpus?" Mr. Thompson said, "Yes," and Judge Brown said, "Very well; then I am of opinion that the men should be released." The present plaintiff then said to the defendants, "You can go," and they left the court room. The defendants' testimony was that they saw Judge Brown, and, just as has been stated before, he was of opinion that, if they were not released, he should issue an order of release, and, after conference between Mr. Thompson and Mr. Worrall, the arresting officer, they were told that they might go. The contention of the defendants is that the plaintiff was negligent in agreeing that the record might show that the judge ordered their release. But we are of opinion that the evidence would not warrant a finding of negligence on this account. The whole evidence indicates that the parties at the time treated the case as formally within the jurisdiction of the judge, and treated his statement as equivalent to a formal order. The record was made up in that way, presumably with the approval of the court, and we are of opinion that the plaintiff cannot be deemed guilty of negligence in agreeing that the release was under an order of the court. As to the defendants' contention that there was negligence in advising the bringing of suits against Thompson, there is nothing in the bill of exceptions to show the grounds on which the suits were brought, except that they were founded on the arrest. For all that appears, there may have been good grounds for bringing them, and these defendants may yet recover large damages in them. From some of the language used at the trial in reference to them, we may conjecture that they were not well founded, but we cannot go beyond conjecture. The burden was on the defendants to prove negligence on the part of the plaintiff in bringing them. Arrests are often so made as to create a liability in damages. If there was nothing in the arrest of these defendants to create such a liability, the defendants have failed to prove the fact, and we cannot assume it. In the absence of evidence that the suits were negligently brought, without good reason to believe that they could be maintained, the evidence of money paid by the defendants to third persons on account of them was rightly excluded. Everything offered which bore upon the value of the services charged for by the plaintiff was submitted to the jury. We understand that the rulings of the court as to negligence relate only to the matters set out in the amendment to the defendants' answer, namely, to negligence in consenting to the form of the record, and negligence in bringing the suits. Exceptions overruled. (181 Mass. 542) In re BENJAMIN et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1902.) DENIAL OF LEAVE TO AMEND-DISCRETION. The allowance of an amendment at the last moment in foreclosure proceedings is a matter of judicial discretion, and the denial of leave to so amend is not ground for exceptions. Petition by Benjamin and others to prove exceptions; petitioner having alleged exceptions to a decision of the justice of the superior court, who denied his motion to file an amendment in mortgage foreclosure proceedings. Dismissed. E. H. Savary, for petitioner. PER CURIAM. The allowance of the amendment was a matter of discretion. Nothing appears, except that leave to amend was asked at the last moment, and was denied. This is not ground for exception. Petition dismissed. (181 Mass. 424) MEANEY V. KEHOE (two cases). (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1902.) PARTIES-PLAINTIFF-ACTION FOR INJURY TO PROPERTY - EXTENT OF INTEREST - PART OWNERSHIP-VARIANCE-NONJOINDER-TIME FOR MAKING OBJECTION-SUFFICIENCY OF EVIDENCE. 1. In an action for injuries to person and property caused by a collision of two wagons, defendant testified that as he was driving slowly plaintiff approached him driving a fast horse at a wicked rate of speed, and ran into him without his fault. Plaintiff admitted that he had been racing, but testified that he was driving slowly on the right side of the road when he met defendant, who was driving at a gallop on the wrong side, and that plaintiff tried to turn out of the way, but did not suc ceed. Held, that the case was clearly and solely for the jury. 2. In an action for injury to personal property, an objection on account of the failure to join as a party plaintiff one who has a joint interest with plaintiff in the property cannot be made after the evidence is in. 3. By analogy to Pub. St. c. 214, § 14, pro-, viding that in the prosecution of crimes relating to personal property it is sufficient to prove that the person alleged to be the owner of the property has only a part ownership therein, in an action for injury to personal property failure to prove plaintiff's sole ownership of the property is not a fatal variance under a general allegation of injury to "plaintiff's property," but such allegation is sustained by proof of any interest sufficient to support an action. Exceptions from superior court, Suffolk county: Wm. B. Stevens, Judge. Actions by John Meaney and Joseph Meaney against John P. Kehoe. Judgments in favor of plaintiffs, and defendant brings exceptions. Exceptions overruled. Wm. H. Brown, for plaintiff. Benj. B. Dewing and Arthur Berenson, for defendants. HOLMES, C. J. These are actions for injuries to person and property caused by a collision between two wagons. According to the defendant's testimony the plaintiffs, who were driving a fast horse returning from Revere Beach, and who admitted that they had been racing, came down upon him at a wicked rate of speed and ran into him without his fault, as he was driving slowly homeward from his place of business,-a liquor saloon. The plaintiffs on the other hand testified that they were driving slowly when they saw the defendant coming toward them at a gallop, and that thereupon they drove their wagon as close to their side of the way as they could but did not succeed in escaping the defendant. The case was as clearly and solely a case for the jury as it is possible to imagine, and we are at a loss to conceive why it should have been brought here. When the evidence was all in, the defendant objected that the plaintiff could not recover under the declaration unless he was the sole owner of the horse and vehicle. It seems that the two plaintiffs owned the horse and wagon in common, but each declared sepa |