seven times between Pawtucket and Hyde Park, and said that all the passengers had paid their fares before the accident. He did not remember seeing the plaintiff. This is evidence tending to show that the plaintiff was in a proper place, and was conducting himself as careful passengers ordinarily do. Otherwise he would have been likely to attract the attention of the conductor, or of others on the train through whom the conductor would have received information of his conduct. There is a class of cases in which due care may be inferred from the absence of negligence as well as from positive acts of diligence. Mayo v. Railroad, 104 Mass. 137; Maguire v. Railroad Co., 146 Mass. 379-384, 15 N. E. 904; Mears v. Railroad, 163 Mass. 150, 39 N. E. 997; Caron v. Railroad Co., 164 Mass. 523-526, 42 N. E. 112. We are of opinion that the judge properly might infer from the evidence that the plaintiff was in the exercise of due care. The defendant excepted to the finding of the judge in regard to the damages. If we assume that this exception is open to the defendant, we are of opinion that no question of law is involved in it. The presiding justice, who tried the case without a jury, put upon a paper a memorandum which indicated his view of the facts on which his assessment of damages was founded. The only part of it to which exception is taken is to the amount allowed as compensation for the loss of ability to earn money. This the judge fixed at a sum equivalent to the present worth of an annuity of $1,500 for 10 years, computing interest at 4 per cent. The computation on this basis does not indicate that the judge thought it gave an ascertained mathematical measurement of the damages for the loss of earning capacity. It involved estimates which, at the best, were uncertain and merely approximate. Neither

the degree of future disability nor the time that it would continue could be told except as a probability, nor could the income or rate of interest that a fixed sum awarded as damages could be made to produce for a long period of years be known. If these elements could be exactly ascertained, the rest would be only a matter of computation. The objection to the method adopted is not that the judge could not find as a fact that the plaintiff's loss of earning capacity would probably be equal in the aggregate to $1,500 a year for 10 years, although it would not. be precisely the same each year, but that there was no evidence of the cost of an annuity of that amount for that length of time. The actual cost of an annuity in the market was immaterial, except as it might be evidence showing the opinion of experts as to the probable income which money will bring in the future. There was no reason to think that the plaintiff contemplated buying an annuity. A computation at a given rate of interest may be shown by experts, or may be made by the judge if he is sitting

without a jury. or by the jury if they are competent to make it. It is no objection to a finding that a computation is made without the aid of mathematical experts. So, too, the probable rate of income that a sum of money safely invested can be made to produce in the future may be estimated by a judge or jury from their general knowledge of investments and of the condition of business and the probable uses to which property can be put. Every jury in assessing damages in certain classes of actions is at liberty to consider questions of this kind on their common knowledge and without the aid of expert testimony. Whether, in most cases, sufficiently accurate data can be obtained to make such a method very helpful we need not consider. That it is a legitimate method in those cases in which the tribunal assessing damages finds facts that make it applicable we have no doubt. Exceptions overruled.

CLARKE v. BACALL.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

APPEAL FROM MUNICIPAL COURT - WRIT OF REVIEW-VACATING JUDGMENT.

1. There is no distinction, as to the right of appeal, between a petition to vacate a judgment, and for a writ of review. Both are civil actions, from which appeals from a district or police court to the superior court are allowed by St. 1893, c. 396, § 24 (Pub. St. c. 154, §§ 39, 43). These provisions are made applicable to the municipal court of Boston by St. 1894, c. 431, § 2, and are in no way changed by St. 1895, c. 234.

2. An order granting a writ of review upon a petition for the vacation of a judgment will be set aside on appeal.

Exceptions from superior court, Suffolk county; Charles Shelley, Judge.

Action by Barnabas Clarke against Charles H. Bacall. From a refusal of the superior court to rule as requested, defendant brings exceptions. Exceptions sustained.

J. W. Corcoran and W. B. Sullivan, for petitioner. A. E. Avery, for respondent.

KNOWLTON, J. This is an appeal to the superior court from a decision of the municipal court of the city of Boston denying a petition to vacate a judgment. The first exception is to the refusal of the judge to rule as follows: "This being a petition to vacate a judgment, and not a petition for a writ of review, this court has no jurisdiction over the same, and the decision of the lower court is conclusive." A petition for a writ of review is a civil action. Davenport v. Holland, 2 Cush. 1; Winch v. Hosmer, 122 Mass. 438. A petition to vacate a judgment, under our statute, is entered as a separate suit, like a petition for a writ of review, and is also, in a broad sense, a civil action. Yetten v. Conroy, 165 Mass. 238, 42 N. E. 1130. Appeals in such cases in district and police

courts are allowed by our statutes.

St. 1893, c. 396, § 24; Pub. St. c. 154, §§ 39, 43. The provisions of these statutes apply, also, to the municipal court of the city of Boston. St. 1894, c. 431, § 2. The case of Yetten v. Conroy, supra, which was decided under St. 1893, c. 396, is conclusive upon the question before us. All the considerations in favor of holding that an appeal might be taken in such a case under that statute are equally applicable to cases under St. 1895, c. 234. There is no good reason for making a distinction in this particular between a petition for a writ of review and a petition to vacate a judgment. The difference between them is in form, rather than in substance. A decision of a court refusing to vacate its own judgments or decrees may be appealed from as well as any other decision. Gale v. Nick

erson, 144 Mass. 415, 11 N. E. 714; Tucker v. Fiske, 154 Mass. 574, 28 N. E. 1051; Yetten v. Conroy, 165 Mass. 238, 42 N. E. 1130. That St. 1895, c. 234, § 2, does not permit the filing of a petition for a writ of review, or to vacate a judgment, in the supreme judicial court or superior court, when the judgment was rendered in a police, district, or municipal court, does not deprive the superior court of its appellate jurisdiction. Even under

the father bills, which were ignored, the jury was justified in finding that the father authorized the son to procure the services on his credit.

Exceptions from superior court, Middlesex county; H. Wardwell, Judge.

Action by Edwin F. Lamson against Charles F. Varnum. There was a verdict for plainExtiff, and defendant brings exceptions. ceptions overruled.

Peter A. Fay, for plaintiff. Burke, Marshall & Corbett, for defendant.

KNOWLTON, J. The only exception in this case is to the refusal of the judge to rule "that, upon all the evidence, the plaintiff was not entitled to recover." The plaintiff's claim might be established by proof either that the work done was authorized by the defendant, or that it was necessary for the health and comfort of the defendant's minor son, and that the defendant negligently failed to provide for him a dentist, or means to procure the services of a dentist, to do the work. Upon this bill of exceptions, we are not concerned with the weight of the evidence, if there was any evidence proper for the consideration of the jury. The defendant's son, a boy 19 or 20 years of age, suffer

The court ordered a writ of review to issue, and the respondent excepted to this order. This exception must be sustained.

The pe

tition is to vacate the judgment, not to issue a writ of review. Upon the finding of the court, the prayer of the petitioner should have been granted, and the judgment vacated. The statute provides that, upon vacating a judgment, "any proper proceeding may be had, as if such judgment had not been entered." St. 1895, c. 234, § 3. The order should have been that the judgment be vacated, and that an attested copy of the order be sent to the municipal court. On receipt of such a copy, the original case would stand for further proceedings in that court. The finding of the court in favor of the petitioner will stand, but the order that a writ of review be granted is set aside. Exceptions sustained.

ily, would naturally be supposed to be authorized by his father in applying to a dentist for surgical treatment. Angel v. McLellan, 16 Mass. 28. After the services were rendered, he told the plaintiff to make the charge to his father. This was a representation by him that he was authorized by his father to procure the services on his father's credit. There was evidence that, twice during the lifetime of the minor, the plaintiff sent a statement of his charge for the services to the defendant, and received no reply. Once the statement was sent by mail, postage paid, with a request printed on the corner of the envelope to return to the plaintiff if not called for within five days, and this letter did not come back to the plaintiff. It was a question of fact for the jury whether the circumstances were such that the defendant would have been likely to make some answer if the bill had been contracted without his authority. If they answered this question in the affirmative, they properly might draw an inference against the defendant. Sturtevant v. Wallack, 141 Mass. 119-123, 4 N. E. 615. They might disbelieve such parts of the defendant's testimony as tended to show that he was not liable; and, from all the circumstances of the case, they might believe that he authorized his son to procure the services on his credit, either by an express statement, or by a course of conduct which impliedly covered the transaction. Whether there was any evidence to charge him on the ground of his neglect to furnish his son the dental services that he needed, it is unnecessary to decide. Exceptions overruled.

DOON et al. v. INHABITANTS OF TOWN OF NATICK.

(Supreme Judicial Court of Massachusetts. Middlesex. May 20, 1898.)

EMINENT DOMAIN-CHANGING GRADE OF STREETLAND TAKEN FROM ABUTTING OWNER -EASEMENT TAKEN.

In abolishing a grade crossing under St. 1899, c. 428, the commissioners reported that the street should pass over the railroad tracks by bridge, and that it should be graded to the full width, and have a dressing of gravel, which might be sloped beyond the limits of the street so far as might be necessary to hold the embankment. For that purpose, the right and easement to enter upon the abutting land to construct and maintain the slopes was taken. Held, that the land so taken was taken for all the purposes of which land may be used over which a highway is located.

Exceptions from superior court, Middlesex county; Albert Mason, Judge.

Petition by James W. Doon and others against the inhabitants of the town of Natick for the assessment of damages sustained by petitioners for the taking of land for and changing the grade of a street. From a verdict for petitioners, defendants bring exceptions. Exceptions overruled.

W. B. Sprout, for petitioners. P. H. Cooney and H. C. Mulligan, for respondents.

KNOWLTON, J. In abolishing a grade crossing, under St. 1890, c. 428, the commissioners reported in regard to Cochituate street, on which the crossing was, as follows: "The location of Cochituate street remaining unchanged, said street shall pass over the railroad tracks by a suitable bridge, at a height of not less than sixteen feet in the clear above the grade of said tracks hereinbefore ordered. [Then follow requirements for the descent of the grade in each direction to the existing level, for the construction of the abutments and superstructure of the bridge, and for other details of construction.] The said Cochituate street shall be graded to its full width, and the roadway shall have a dressing of good gravel," etc. "The gravel may be sloped beyond the limits of said Cochituate street so far as may be necessary to hold the embankment, and for this purpose the right and easement to enter upon the following parcels of land, and to construct and maintain the necessary slopes thereon, is hereby taken. Said parcels are bounded and described as follows: [Here follows a description of a certain parcel of land taken, as above set forth, from the petitioners, and for which taking damages are sought to be recovered in this proceeding.]"

The question is whether the right or easement acquired by the taking was only the right to slope the filling so far as it might be necessary to hold the embankment, or the right to use the land for purposes for which

any land may be used over which a highway is located. The legislature may authorize a tribunal taking land for a public use to take a fee, or any right or easement in land, according to the requirements of the use for which it is taken. Often discretion is given to the tribunal to take such an easement as they deem necessary. See St. 1895, c. 488, § 4; Burnett v. Com., 169 Mass. 417, 48 N. E. 758. The statutes which authorize the laying out of highways and townways do not recognize the necessity or desirability of taking different kinds of easements for the construction of ordinary ways, but they provide for the location of ways over lands of private owners. A location under these statutes subjects the land to an easement for any kind of use which may be reasonably necessary for the constraction and maintenance of the way. The easement created by such a location is the only easement which county commissioners, road commissioners, or other tribunals laying out highways and town ways under general statutes can create. They may take land for a way. They cannot take land for any purpose less than for a way, whatever may be the particular kind of use to which they intend to put it. The case of Simonds v. Walker, 100 Mass. 112, is like the case at bar in its principal features. The county commissioners laid out a highway, and located it three rods wide, by metes and bounds, and added: "From stone monument number eight to stake number fourteen, all the land between the location of three rods wide and the Ashburnham road is taken for materials and slope." It was held that the land described in this last clause was within the location of the highway. It is said by Mr. Justice Hoar, giving the opinion of the court, that the commissioners "had no authority to take land beyond the limits of the location. * * Looking at the record in this view, we find that it gives a laying out and location of the whole length of the road in Fitchburg, three rods wide, and goes on to say that for a certain part of the way an additional width, defined by metes and bounds, 'is taken for materials and slope.' How 'taken'? In the only way most reasonable in which it could lawfully be taken as a part of the road which they were defining. To say that it is taken for materials and slope is only to give the reason why the road should be wider at that part than elsewhere." This case is decisive of the case at bar. The rights of commissioners taking land under St. 1890, c. 428, are the same in this particular as the rights of county commissioners in laying out highways. In Towne v. City of Newton, 167 Mass. 311, 45 N. E. 745, no such question as that in the present case was raised by the exceptions or considered by the court. Exceptions overruled.

SIMMONS v. RICHARDS.

(Supreme Judicial Court of Massachusetts. Plymouth. May 20, 1898.) EXECUTION-ARREST-FALSE RETURN-SUFFICIENCY OF EVIDENCE-REMEDY OF SURETY

ON RECOGNIZANCE.

1. The evidence was sufficient to warrant a finding of a prior arrest, in an action against a deputy sheriff for making a false return on an execution, where there was testimony that defendant went to the house of the judgment debtor, in the evening, said he had an execution for his arrest, showed it to him, asked him what he was going to do, said he would have to take him to jail, and told him he had an assistant whom he could leave with him that night; that they went together to the police station, at the request of such debtor, who informed the sergeant and the chief of police, in defendant's presence, that he was under arrest, which was not contradicted by defendant; and that defendant finally let him go, on assurances that he would come to defendant's office the next morning,-as the jury might infer therefrom that defendant intended to take him into his custody, and had him within his power, and voluntarily discharged him after he had submitted to the arrest.

2. In an action by the surety on the recognizance given by a judgment debtor on his arrest on execution, against the officer for making a false return on such execution, on the ground that there had been a prior arrest thereon, and that, therefore, the arrest in question was illegal, though such illegality was not apparent on the face of the record, it was proper to submit such issue to the jury, as defendant's return of arrest was conclusive as to the parties and privies, and plaintiff could not defend against such recognizance, in the action thereon, by contradicting such return.

Report from superior court, Plymouth county; Henry K. Braley, Judge.

Action by one Simmons against one Richards, a deputy sheriff, for making a false return on an execution against one Underwood and others in favor of one Kellogg. Plaintiff, after Underwood's arrest on the execution, had become surety on the recognizance given by Underwood; and, on the latter's being defaulted, Kellogg recovered judgment on the recognizance in the sum of $563.21, whereupon this action was brought. In the superior court, before Henry K. Braley, J., the jury returned a verdict of $563.21 for plaintiff, and the court reported the case to the supreme judicial court. Judgment on verdict.

Hosea Kingman and D. E. Damon, for plaintiff. Marcellus Coggan and E. S. Page, for defendant.

ALLEN. J. An arrest may be made without actually touching the person. It is enough if the party is within the power of the officer, and submits to the arrest. Mowry v. Chase, 100 Mass. 79, 85. The evidence in the present case was sufficient to warrant the finding of an arrest on June 14th. There was testimony that the defendant went to Underwood's house in the evening, said he had an execution for his arrest, showed it to him, asked him what he was going to do, said he would have to take him to jail, told

him that he had an assistant in attendance whom he could leave with him that night; that the defendant, with his assistant, went with Underwood, by the latter's request, to Station No. 2, where Underwood, in defendant's presence, told the sergeant, and afterwards the chief of police, that he was under arrest, which was not contradicted by the defendant; and, finally, that the defendant let him go upon assurances that he would come to defendant's office the next morning. Without detailing further testimony, the jury might find from the above that the defendant intended to take Underwood into his custody, and had him within his power; that Underwood submitted to the arrest; and that the defendant voluntarily discharged him. If that was so done, the defendant had no authority to arrest Underwood again on the same execution, and the arrest on June 27th was illegal. This is conceded by the defendant. Houghton v. Wilson, 10 Gray, 365. If the second arrest was illegal, the recognizance would be invalid, provided the facts showing the illegality appeared of record; and in such case the surety upon the recognizance might have maintained his defense, when sued upon it. Smith v. Bean, 130 Mass. 298. But no facts appear of record showing that the second arrest was illegal. The officer's return upon the execution set forth only the arrest of June 27th. Assuming that there had been an arrest on June 14th, this was a false return. This also is conceded by the defendant. Brinley v. Allen, 3 Mass. 561; Bean v. Parker, 17 Mass. 591, 601.

Nevertheless, the defendant contends that he is not liable to the plaintiff, though he might have been to the judgment creditor or to Underwood. The situation was thus: The defendant took Underwood before the district court by virtue of an execution upon which he returned an arrest. So far as the papers showed, everything was in due form, and the arrest was legal. Thereupon Underwood entered into the recognizance, with the present plaintiff as surety. Moreover, if it is material, there was evidence tending to show that the present plaintiff was not then aware of the prior arrest. Under this state of things, when suit was brought on the recognizance after Underwood had made default thereon, neither Underwood nor the present plaintiff, in defense, could be allowed to contradict the defendant's return of an arrest on June 27th. As to parties and privies, the return was conclusive. Lowery v. Caldwell, 139 Mass. 88, 28 N. E. 451, and cases there cited; Sawyer v. Harmon, 136 Mass. 414; Stewart v. Griswold, 134 Mass. 391; Baker v. Baker, 125 Mass. 7; Pullen v. Haynes, 11 Gray, 207; Lang v. Bunker, 1 Allen, 256. In applying this familiar rule, it was held in Bean v. Parker, 17 Mass. 591, that bail, being sued, cannot deny the arrest of the principal, if the officer has returned such an arrest; and in Winchell v. Stiles, 15

Mass. 230, that bail, being sued, cannot be allowed to show that the judgment debtor did not avoid, but might have been found, the officer having returned non est inventus on the execution.

Since the plaintiff could not defend against the recognizance by contradicting the defendant's return of an arrest, he was injured by that return if it was false; and it was therefore proper to submit the case to the jury. Brinley v. Allen, 3 Mass. 561; Whitaker v. Sumner, 7 Pick. 551; Sexton v. Nevers, 20 Pick. 451, 454. According to the terms of the report, the entry must be, judgment on the verdict.

DRURY et al. v. MOORS et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

CHATTEL MORTGAGES-DELIVERY OF PROPERTY.

Iron kept in a yard, under lock and key, was mortgaged to defendant, who permitted it to remain in the same place. The key was left in the possession of mortgagor. Held not a delivery of the goods to, and retention by, the mortgagee, as required by St. 1883, c. 73, § 2.

Report from superior court, Suffolk county; John Hopkins, Judge.

Action by William H. Drury and others against Joseph B. Moors and others. A verdict was directed for plaintiffs in the superior court, and the case reported to the supreme judicial court. Judgment on the verdict.

S. L. Whipple and Jeremiah Smith, Jr., for plaintiffs. R. M. Morse, for defendants.

HOLMES, J. This is an action by assignees in insolvency to recover the value of certain goods converted by the defendant to his own use. The goods in question were mortgaged or pledged to the defendant by one Houdlette, in the manner and course of dealing described in Moors v. Reading, 167 Mass. 322, 45 N. E. 760; and the question here, as there, is whether the mortgaged property was delivered to, and retained by, Moors. St. 1883, c. 72, § 2.

It is argued that this case may be distinguished from the former one, because there the goods were only a part of the goods in Houdlette's warehouse, and were mingled with Houdlette's own through Moors' neglect or permission, and also because they formed a principal part of Houdlette's stock in trade, etc., whereas in the case at bar the iron was in a yard where heavy goods were kept, under lock and key, and sufficiently identified. The yard was at some distance from the warehouse, and was separated from it by streets and buildings. But, in our opinion, if there are differences between this case and the former one they are unfavorable to the defendant. It is questionable whether there is any evidence of delivery, which seems to have been proved in the former case. See Moors v. Reading, 167 Mass. 322,

324, 45 N. E. 760, and Parry v. Libbey, 166 Mass. 112, 44 N. E. 124. And whereas it might have been argued in the former case that the large liberty allowed Houdlette in the way of selling the mortgaged goods, the mixture with Houdlette's own, and the influx and efflux to and from the mortgaged stock, were only evidence warranting a finding that Moors did not retain possession, rather than indicia requiring a ruling, as matter of law, that he did not, here there are the additional facts that the goods were under lock and key in Houdlette's private inclosure, and that the only key known, so far as appears, was in Houdlette's possession. The testimony is that the key was kept in Houdlette's office, over the desk of Garrett, the bookkeeper whom Moors had made his agent to keep possession of the property; but it nowhere is suggested that he held this key adversely to Houdlette, or that he had any such relation to it that he could have sued for it if it had been carried off. The essential facts relied on in the former decision were true in the present case, and in addition there was a present, exclusive control of the goods by Houdlette.

Judgment on the verdict.

1. Where a contract made by an agent is authorized or ratified by his principal, evidence of the conversation between the agent and the other party to the contract, in which the contract was consummated, is competent in an action to enforce the contract.

2. Oral evidence of a contract for the sale of horses for a definite sum as to those that had been seen by the vendee, and subject to adjustment as to a number which he had not seen. does not contradict a written receipt of the vendor to the vendee for a sum of money "as a loan, and horses to be considered as security when delivered unless sale is made."

3. Pub. St. c. 169, § 22, providing that, before a party producing a witness may prove that he has made at other times statements inconsistent with his testimony, he must be asked whether he has made such statements on a certain occasion, does not apply to witnesses introduced for the purpose of contradicting witnesses brought by the other side.

4. In an action to recover the purchase price of horses delivered to the defendant, the statute of frauds is satisfied by evidence of delivery and acceptance.

Exceptions from superior court, Middlesex county; H. K. Braley, Judge.

Action by Horatio N. Allin against Charles Whittemore and a cross action by Whittemore against Allin. Judgment for Allin in both actions, and Whittemore brings exceptions. Overruled.