acts of the plaintiffs. There was conflicting evidence upon all these points. The court found, in accordance with requests of the plaintiffs, that the defendant was the owner of the greenhouse and whatever of its contents was covered by a certain mortgage, by the foreclosure of which the defendant acquired title. This mortgage was dated May 29, 1901, and was foreclosed by sale at public auction on January 7, 1907. No request was presented nor finding made as to the title to the plants in the greenhouse at the time of the delivery of the coal. Although the mortgage covered the plants then in the greenhouse and future acquired property, it also contained a reservation to the mortgagor of the right to sell flowers and plants in the ordinary course of trade, and there was no evidence that the mortgagee ever took possession under his mortgage of the property acquired after its delivery. It was necessary for him to do this at least in order that title to such property might pass to a purchaser at the foreclosure sale. Wasserman v. McDonnell, 190 Mass. 326, 76 N. E. 959. There was no evidence as to whether any of the plants included in the mortgage remained at the time of the sale, but there was plenary evidence that flowers and plants had been sold since the date of the mortgage. There was no testimony contradicting that given by two witnesses, that no plants were included in the foreclosure sale. It was therefore impossible to make the finding of fact or ruling of law requested by the plaintiffs that defendant accepted or received any benefit from the acts of the plaintiffs, and was indebted for the items of the plaintiffs' account. Even if all the contents of the greenhouse had been owned by the defendant, it would not follow as matter of law that he would be bound to pay for coal ordered by one in possession, not as his agent, but in some independent capacity. Upon all the other matters of fact as to which rulings were requested there was abundant evidence warranting findings by the court adverse to the contentions of the plaintiffs, and such findings cannot be disturbed. Bailey v. Marden, 193 Mass. 277, 79 N. E. 257. The requests which the plaintiff styled “as matters of law" were based upon aspects of the evidence, which the court was not bound to believe, and obviously did not believe. Therefore they were properly refused. Exceptions overruled.

(197 Mass. 46)

SOEBEL v. BOSTON ELEVATED RY. CO. (two cases).

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 1, 1908.)

1. TRIAL-INSTRUCTIONS-BURDEN OF PROOF. The court, in explaining the term "burden of proof." charged that the jury could not find in accordance with a particular contention unless it was "proved it was so," and defined the quoted words to mean a balance of proof in favor of that theory, and that plaintiff was re

Where, on an application for new trial for newly discovered evidence, the court declined to consider hearsay evidence as a matter of law, an exception to the ruling presented for review on appeal the question whether hearsay affidavits could be considered on the hearing of a motion for a new trial for newly discovered evidence in any event.

3. NEW TRIAL-NEWLY DISCOVERED EVIDENCE -HEARSAY AFFIDAVITS.

Where a witness was a nonresident and refused to make an affidavit to newly discovered evidence in support of an application for a new trial, the court erred in refusing to consider a hearsay affidavit as to statements made by such witness and the evidence that could be procured from her; no better evidence being obtainable. Exceptions from Superior Court, Suffolk County; Charles U. Bell, Judge.

Action by Celia Soebel against the Boston Elevated Railway Company for injuries sustained by her while attempting to alight from one of the defendant's cars on which she was a passenger by the sudden starting of the car, and by Adam Soebel, her husband, against the same defendant for loss of serv ices, etc., of his wife resulting from the same injury. The female plaintiff had a verdict for $9,375, and the husband for $1,533. From an order granting defendant's motion for a new trial unless the female plaintiff remitted from her verdict $3,375 and the husband remitted $500 from his verdict, and denying such motions if the remittiturs were made, defendant brings exceptions. Sustained.

Walter A. Buie and John F. Cusick, for plaintiffs. Sanford H. E. Freund and Wm. G. Thompson, for defendant.

KNOWLTON, C. J. The defendant has filed two bills of exceptions, one founded on instructions to the jury at the trial, and the other on a ruling of the judge at a hearing of certain motions of the defendant for a new trial. The only question argued upon the first bill relates to the judge's instructions upon the burden of proof. The instructions on this point were quite full, given in part in the original charge, and in part after a question had been raised at its close by the defendant's counsel. In explaining the term "burden of proof," the judge said that the jury could not find in accordance with a particular contention, unless it was "proved it was so." He added: "By 'proved that it was so' I mean a balance of proof in favor of that theory. * The plaintiff must make his side heavier, stronger, in favor of the proposition, to your minds, than that of the defendant, because if your minds remain balanced, you will have to give a verdict for the defendant." In another place he said: "Such damages as are proved by a fair pre

ponderance of the evidence, she is entitled to recover for, and those which she has not so proved, she is not entitled to recover for." There was considerable of explanation and elaboration, some of which, taken alone, was not expressed in the most felicitous terms; but we think the jury must have understood the law on this subject, the general statement of which was correct. The use of the word "probable", in different parts of these instructions was not such as to call for a new trial under the criticism of the charge contained in Haskins v. Haskins, 9 Gray, 390. These exceptions must be overruled.

One of the two motions for a new trial was on the ground of newly discovered evidence. In support of this motion affidavits of different witnesses were filed, setting forth what other persons had said, showing their knowledge of important facts which were not known to the defendant and were not introduced at the trial. One of these persons, from whom very important statements were presented in this way, was out of the state, and it appeared that an affidavit could not be obtained from her. At the hearing the plaintiffs requested that these affidavits be excluded from consideration. In his memorandum accompanying the statement of his decision not to grant the motion, the judge said: "I decline to receive or consider hearsay statements on either side." The defendant excepted to this as a ruling, and its bill of exceptions, which was allowed by the judge, contains this statement: "Which ruling was made as a matter of law and not of discretion." We understand, therefore, that, in dealing with these motions, the judge ruled as matter of law that he could not receive or consider any affidavits, so far as they were statements of hearsay. He also refused to hear oral testimony upon the motions. He found that the defendant was not chargeable with want of diligence in procuring the testimony disclosed in its affidavits. We therefore must consider the question whether, at a hearing upon a motion for a new trial on the ground of newly discovered evidence, the moving party is precluded, under all circumstances, from using any affidavits to show the existence of such evidence, other than those of the witnesses themselves who would give the testimony if the new trial was granted.

It is to be noticed at the outset that the primary question before the judge in such a case is not what the truth is, as to the matter to which the newly discovered evidence is directed, but whether there is such evidence. A secondary question is whether it is reliable and important. As a practical consideration, we all know that persons who can give important testimony often will not volunteer it, and sometimes decline to give it in any form unless they are forced to. They cannot be compelled to make affidavits, and often the only practicable way of informing a court of the existence of such evi

dence is by an affidavit of some one to whom they have made oral disclosures. Where the judge declines to hear oral testimony upon the motion, and especially where, as in this case, the witness is out of the commonwealth and declines to make an affidavit, the only practicable way of presenting the fact as to such evidence is by an affidavit which is in part hearsay.

Under rule 31 of the superior court, as construed in Borely v. Allison, 181 Mass. 246, 63 N. E 260, a hearing cannot be obtained on such a motion without a verification of it by affidavit. For such a purpose, an affidavit of the party that he has discovered the evidence, setting forth what it is, and that a credible witness says he has knowledge of the facts as set forth, ought to be enough, if it is shown that the affidavits of the witnesses who know the facts cannot be obtained with reasonable effort. Courts have often refused to grant new trials upon affidavits of what persons have told the affiant about the facts, on the ground that they did not show that the evidence would be of sufficient importance to warrant an order for a new trial. Sheppard v. Sheppard, 10 N. J. Law, 250-254; Jenny Lind Co. v. Bower, 11 Cal. 194, 199; Shumway v. Fowler, 4 Johns. (N. Y.) 425; Cardell v. Lawton, 16 Vt. 606; Atkinson v. Saltsman, 3 Ind. App. 139, 29 N. E. 435. But the better doctrine is that, while the party ought not to be permitted to prevail unless he furnished the most convincing evidence that he can readily command, affidavits founded on hearsay should be received on a question of this kind if no better ones can be obtained. Dunbar v. Hollinshead, 10 Wis. 505, 508, 509; Smith v. Cushing, 18 Wis. 295; McLeod v. Shelby Mfg. & Imp. Co., 108 Ala. 81-83, 19 South. 326; Reed v. Staton, 3 Hayw. (Tenn.) 159-164, 9 Am. Dec. 740; White v. Wallen, 17 Ga. 106. Upon the hearing of a motion under this rule of the court, an affidavit of the witness himself, who knows the facts, should be presented if possible. But if the affidavit of what the witness said about it is to be received as a verification of the statement of the motion, for the purpose of entitling the mover to a hearing, it is illogical to say that it could not be received nor considered upon the hearing itself, when better evidence cannot be obtained, and when the fundamental question is not as to the truth of the new evidence, but as to the existence of it. In Lansky v. West End St. Ry. Co., 173 Mass. 20, 53 N. E. 129, it was decided that an affidavit of hearsay of this kind is competent, not merely as a foundation for a motion for continuance, but as a ground for action by the court at the hearing. The principle embodied in this case is decisive of the case at bar. Ex necessitate, in a case of this kind such affidavits should be received and given such weight as they are entitled to.

This exception must be sustained, and the defendant given a further hearing upon the

motion. The relation of the witness to the transaction in which she is said to have taken the principal part and her statement that she would not give her testimony without payment of five thousand dollars may lead the judge to think the evidence of little importance; or in connection with the other newly discovered evidence he may think it valuable. This branch of the case is for him alone. But it was his duty to receive and consider the affidavits. Exceptions sustained.

(197 Mass. 28)

HEFFERNAN v. FALL RIVER IRON
WORKS CO.

(Supreme Judicial Court of Massachusetts. Bristol. Dec. 31, 1907.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-EMPLOYMENT-QUESTION FOR JURY.

In an action against an alleged master for injuries received in cleaning a certain machine, whether plaintiff was in the employment of defendant at the time of the accident held for the jury.

2. SAME.

In an action by a servant for injuries received in cleaning certain machinery, whether plaintiff exercised due care, whether he assumed the risk, whether the risk was an obvious one, and whether defendant was negligent in failing to warn or instruct him of the danger, held for the jury.

Exceptions from Superior Court, Bristol County; Wm. F. Dana, Judge.

Action by William Heffernan against the Fall River Iron Works Company. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

J. W. Cummings and C. R. Cummings, for plaintiff. Richard P. Borden, for. defendant.

MORTON, J. At the close of the evidence a verdict was directed for the defendant on Its motion, and the plaintiff excepted. The question is whether there was any evidence warranting a verdict for the plaintiff. We think that there was.

The plaintiff was hired to work as a laborer for the defendant by one Allen whose sole or principal duty, it could have been found, was that of superintendence. Allen set the plaintiff to work at first at cleaning pieces of machinery and about a week later set him to work at cleaning the cylinders of cards which were being set up in the mill by one Leigh under a contract between him and the defendant. This contract bound the defendant to furnish "usual laborer's assistance" in fitting up the cards but there was nothing to show that the plaintiff knew, or at least the evidence would have warranted a finding that he did not know that he was working for any one except the defendant and had never consented or contracted to work for Leigh. It is possible, perhaps, that his consent could have been implied from the nature of the work which he was hired by the defendant to do. But the question whether he

was at the time of the accident in the employment of the defendant or of Leigh was one of fact to be determined by the jury upon all of the evidence. In order to constitute the plaintiff the servant of Leigh there must have been such a change in his relations to the defendant that the defendant had ceased for the time being to have any direction over or control of him, and Leigh had become responsible for the discharge of those duties which a master owes to his servant in respect to matters affecting his safety. Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Coughlan v. Cambridge, 166 Mass. 268, 44 N. E. 218. There was nothing in the contract between the defendant and Leigh necessarily inconsistent with the plaintiff's continuing in the defendant's employment. The defendant was to furnish laborers to assist Leigh in setting up the cards but there was nothing in that arrangement which necessarily operated to transfer the laborers so furnished from the employment of the defendant to that of Leigh while they were so engaged. As already observed the question in whose employment the plaintiff was at the time of the acIcident was one of fact for the jury.

There was also evidence, we think, warranting a finding of due care on the part of the plaintiff and of negligence on the part of the defendant in failing to warn or instruct him of the danger when he was set to work on the card on which he was injured. That card differed from the cards on which he had been working in having the "licker-in," as it is termed, in position. This was a small cylinder covered with teeth, and revolving in an opposite direction from that in which the main cylinder revolved, and was from one to two inches from the main cylinder. The cylinder had to be cleaned while in motion and the method of cleaning it with the "licker-in" in position was different from that of cleaning it when the "licker-in" was not in position. The cylinder when in motion revolved towards the plaintiff. The "licker-in" was covered with paper and the plaintiff testified that he did not know what it was. In attempting to clean the cylinder as he had been instructed to do, the stick which the plaintiff was using slipped, and his hand went down between the "licker-in" and the cylinder, setting the "licker-in" in motion, causing the injuries complained of.

There was evidence tending to show that the plaintiff was cleaning the cylinder in the manner in which he had been told to clean it, so far as any instruction at all had been given to him, and we do not see, therefore, how it could be ruled as matter of law that he was not in the exercise of due care. Nor do we see how it could be said as matter of law that he assumed the risk. According to his testimony he did not know or appreciate the danger, and unless he did, he could not be said to have assumed it. How much weight his testimony was entitled to was, of course, for the jury to say. And it was also, we

think, for the jury to say whether, taking all of the circumstances into account, the risk was an obvious one. Whether the risk was an obvious one would depend largely it seems to us, on the degree of credibility to which in the opinion of a jury the plaintiff's statements in regard to his knowledge or ignorance respecting the "licker-in" might be entitled. If he knew what a "licker-in" was and how it operated, and that there was one in position on the card on which he was working, then, we think, that the risk that if the stick slipped his hand might go down between the "licker-in" and the revolving cylinder was an obvious one. But if he did not know these things, then we do not see how it could be said that the risk was an obvious

one.

The remaining question relates to the defendant's negligence. There was testimony tending to show that when Allen set the plaintiff to work on the card on which he was injured he gave him no warning or instructions as to the manner of doing the work or as to the danger. The only instructions which were given to the plaintiff were given to him by one Shoules, who, the testimony tended to show, was in the employ of Leigh, but to whom, the testimony also tended to show, Allen had delegated the duty of instruction, and who thereby became, for that purpose, the servant of the defendant. The question whether any instructions were needed, and, if so, whether those which were given were sufficient was for the jury and should have been submitted to them. Exceptions sustained.

(197 Mass. 99)

DYER v. CITY OF MELROSE. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 1, 1908.)

TAXATION-EXEMPTION-MONEY FROM SALARY OF FEDERAL OFFICE.

Money which one has in the bank is not exempt from taxation because it was derived from his salary as a federal officer; it losing its identity as salary when it has been paid to him and come into his possession.

Appeal from Superior Court, Middlesex County.

Action by N. Mayo Dyer against the city of Melrose to recover back taxes assessed on money in bank received by plaintiff as salary as rear admiral in the United States navy. Judgment for defendant, and plaintiff appeals. Affirmed.

Chester M. Pratt and Wm. Harold Hitchcock, for appellant. Claude L. Allen, for appellee.

KNOWLTON, C. J. We do not find it necessary to consider whether the plaintiff has chosen a proper remedy, for, if we assume this in his favor, we are of opinion that he cannot recover. The property said to have been taxed illegally was money on deposit in

two national banks. The ground on which the plaintiff claims for it an exemption from taxation is that it was derived from his salary as a rear admiral in the navy of the United States. He was a resident of the city of Melrose, and was properly taxable there on all his personal property that was not exempt from taxation. He relies upon the decision in Dobbins v. Commissioners of Erie County, 16 Pet. (U. S.) 435, 10 L. Ed. 1022, in which it was held that a state cannot lay a tax upon an office under the government of the United States, nor upon any means or instruments used solely for the maintenance of the federal government or the performance of any of its functions. The principle on which the case was decided has been reaffirmed repeatedly and held to apply to taxation of state officers by the federal government. Collector v. Day, 11 Wall. (U. S.) 113, 20 L. Ed. 122. It precludes taxation by either government of the salary or emoluments of an officer of the other; but it has never been held, under a general provision for the taxation of the property of individual owners, to prevent the taxation of money or other property merely because it was derived from an official salary that had been received and held for use by the officer. The reason of the decision does not go far enough to warrant following the money after it has become a part of the general estate of the owner, and has lost its distinctive character as a part of the governmental machinery, which it has up to the time when it passes into the general control of the officer. In Railroad Company v. Peniston, 18 Wall. (U. S.) 5, 21 L. Ed. 787, the doctrine is stated as follows: "It is, therefore, manifest that exemption of federal agencies from state taxation is dependent, not upon the nature of the agencies, or upon the mode of their constitution, or upon the fact that they are agents; but upon the effect of the taxation. that is, upon the question whether the taxation does in truth deprive them of power to serve the government as they were intended to serve it, or does hinder the efficient exercise of their power. A tax upon their property has no such necessary effect. It leaves them free to discharge the duties they have undertaker to perform."

When the salary has been paid by the government to one of its officers and has come into his possession, it loses its identity as salary, and becomes money, effects or credits which are liable to taxation under the general law. It is within the principle which was applied, under the statute exempting pensions from a liability for debts, in Kellogg v. Waite, 12 Allen, 529, Spelman v. Aldrich, 126 Mass. 113, and Tully v. Tully, 159 Mass. 91, 34 N. E. 79. See, also, Hibernia Savings & Loan Society v. San Francisco, 200 U. S. 310, 26 Sup. Ct. 265, 50 L. Ed. 495; Blake v. Bolte, 10 Misc. Rep. 333, 31 N. Y. Supp. 124; Melcher v. Boston, 9 Metc. 73.

Any other rule would enable one to hold

property free from liability to contribution towards the support of the state government, merely because he obtained it as a compensation for services rendered to the federal government.

Judgment for the defendant.

(197 Mass. 39)

POOL v. BERGMAN.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 1, 1908.)

PLEADING-BILL OF PARTICULARS.

Where, in an action for assault, the time of which was not stated in the declaration, plaintiff, on motion, filed a specification fixing the time "on or about" November 29th, which permitted proof of an act committed on that day, or on some other day about that time, the court may not, on defendant's motion, strike out the words "or about," when plaintiff states that he expects to prove that the assault occurred on a day other than November 29th; but plaintiff should, if a more definite specification is desired, be permitted or required to file one, and this, though at a prior trial, under the original specification, plaintiff's evidence tended to show the assault was on the day specified.

Exceptions from Superior Court, Suffolk County; Robert O. Harris, Judge.

Action by Blanche M. Pool, per pro ami, against Joseph L. Bergman. Verdict was ordered for defendant, and plaintiff excepted. Exceptions sustained.

J. J. Walsh, T. P. Riley, and John F. Lynch, for plaintiff. Charles W. Bartlett and William B. Sullivan, for defendant.

KNOWLTON, C. J. This is an action of tort for an assault and battery. The declaration does not state the time and place of the assault. The defendant moved that the plaintiff file specifications in these particulars. Less than two weeks afterwards, without any order of court on the motion, the plaintiff | filed a specification as follows: "And the plaintiff says that the assault declared on by the plaintiff occurred at Boston in the county of Suffolk aforesaid, on or about Friday, November 29, 1901." The defendant's answer was a general denial. On these pleadings the parties went to trial in October, 1904, and the jury disagreed. At a second trial, which began on October 10, 1906, at the close of the plaintiff's opening the defendant moved that the words "or about" be stricken out of the specification filed by the plaintiff. The plaintiff objected to the allowance of the motion on various grounds, one of which was that he "did not rely on proving the act as of November 29, 1901, but expected to prove that it occurred on another date." The motion was allowed and the plaintiff excepted.

A motion of the plaintiff, made nearly a year before, to amend her specification by stating the time of the assault as between November 6 and December 6, 1901, had been denied by another judge. After the allowance of the motion to strike out the words "or about," the plaintiff made, in succession, dif

ferent motions to amend the specifications, one by stating the act as having occurred between November 11 and November 27, 1901, another by fixing the time as between November 15 and November 27, 1901, excluding Saturdays and Sundays, and another as either on Friday, November 22, 1901, or Friday, November 29, 1901, and another on Friday, November 22, 1901. Each of these motions was denied on hearing, and to the order upon each the plaintiff excepted.

The plaintiff offered evidence to prove her case in all particulars except as to the date November 29, 1901, and said that she could not prove that the assault was committed on that day. Thereupon a verdict for the de fendant was ordered, and the plaintiff excepted.

When the averments of a declaration are too general to give the defendant reasonable information of the particular facts on which the plaintiff relies as a part of his general statement of a cause of action, specifications are ordered on the defendant's motion. Sometimes it is difficult or impossible for the plaintiff to state the time or place with exactness, and it becomes a question for the exercise of judicial discretion to determine how far he should be required to go in narrowing the statement of his case, for the protection or convenience of the defendant. The rights and interests of the parties and the difficulties and exigencies of the preparation of the plaintiff's case and of the defendant's defense are to be considered, and such orders are to be made as will promote justice. Blaisdell v. Gladwin, 4 Cush, 373-376; Com. v. Snelling, 15 Pick. 321, 331, 333; Wheelock v. Barney, 27 Ind. 462; Moshein v. Pawn (City Ct.) 18 N. Y. Supp. 166. The specifications under which this case was first tried and the second trial was begun did not limit the plaintiff to a single day in her proof of the time of the assault, but permitted proof of an act committed on November 29th, or on some other day about that time. District Township of Sidney v. Des Moines Insurance Company, 75 Iowa, 647, 36 N. W. 902. If the defendant needed a more definite specification, he might move for an order requiring it, and if the judge thought the motion reasonable he might allow it. Instead of this, he made a motion that the plaintiff's specification previously filed should be changed to a specification of a time designated by himself, which the plaintiff said was inconsistent with the facts of the case that she desired to present. The plaintiff was not permitted to file a more definite specification according to her understanding of the facts but the defendant was permitted to make a specification for her, which she said was incorrect. This was equivalent to an order forbidding the plaintiff to present the case relied upon and stated in her declaration, and in the specification previously filed. If the plaintiff's case was prosecuted honestly and in good faith, this was a denial of justice, and was not within