an action, and the statement of a ground of defence in an answer or
demurrer must be held to be binding on the defendant, at any rate until
the attorney is shown to have acted without authority. DeMontague v.
Bacharach, 128.

Objection on Pleadings must be made at Trial.

Objection on pleadings not pointed out in lower court cannot be made first
on argument of exception to refusal to rule for excepting party, see
PRACTICE, CIVIL, 30.

PLEADING, CRIMINAL.

Indictment.

Requisites of indictment for larceny by embezzlement under R. L. c. 208,
§ 26, see LARCENY, 1, 2.

Variance.

In an indictment for larceny by embezzlement an allegation that the money
embezzled belonged to a person named is supported by proof that the
person named was the master of a fishing vessel, of which the defendant
was purser for the crew, and as master had a special property in the
money within the meaning of R. L. c. 219, § 9, being accountable for it to
the owner of the vessel and the crew. Commonwealth v. McDonald, 581.

PLEDGE.

1. A bank lending money on a note signed by a trustee as such and accept-
ing as security a transfer of shares of stock belonging to the trust, if it
has notice from the form of the stock certificate that the shares are held
in trust, is put upon inquiry and takes the risk of the trustee having no
authority to pledge the stock as collateral. Tuttle v. First National Bank
of Greenfield, 533.

2. A bank which has lent money on the note of a trustee secured by a
pledge of trust property after having notice of the trust, if it turns out
that the instrument of trust gives the trustee no power to pledge the trust
property, not only has no legal title to the property against the benefici-
aries of the trust or a new trustee, but has no remedy in equity against
the principal or income of the trust estate. Ibid.

Trustee with power to invest and change investments has no implied au-
thority to pledge trust property for purposes of trust, see TRUst, 2.
Bona fide purchaser of note obtained by fraud takes also good title to
mortgage and mortgage note delivered to him as security for it although
the mortgage note may not be negotiable, see BILLs and Notes, 11.

POOR DEBTOR.

If a poor debtor, who is charged with fraud under R. L. c. 168, § 17, cl. 2,
and who has entered into a recognizance for his appearance for examina-
tion, voluntarily makes default by failing to appear at the time and place
appointed for the hearing, under §§ 52 and 55 of the same chapter he has

forfeited the benefit of the proceedings under the provisions of the chapter,
and there is a breach of his recognizance. Radovsky v. Sperling, 202.

POWER.

Power to sell real estate given by will to executor where it is attached to the
office and not personal passes to administrator with will annexed, see
EXECUTOR AND ADMINISTRATOR, 2.

Direction in will to executor to wind up estate and divide net proceeds held
to create power coupled with a trust to sell real estate, and after paying
debts and legacies to distribute proceeds, see Devise and Legacy, 1.
Devise to distribute principal on death of beneficiary for life to those who
would be entitled to receive it were it given to the beneficiary for life
absolutely held not to create power of appointment in him, see DEVISE
AND LEGACY, 4.

PRACTICE, CIVIL.

Filing Petition with Selectmen of Town.

Sufficiency of certain filing of petition for damages with selectmen, see DAM-
AGES, 7.

Parties.

1. On a petition to enforce a mechanic's lien, where the original respondent
as the owner of the real estate has filed a bond with sureties to dissolve
the lien, and later has died intestate, and, the time for presenting claims
against his estate having passed, his administrator has filed a final account
by which it has appeared that there were no assets and has died, the pro-
ceeding being in the nature of a proceeding in rem and the liability on the
bond representing the res, if the petitioner cannot procure the appointment
of an administrator de bonis non of the estate of the original respondent,
the principal on the bond, he may proceed against the sureties alone, the
administrator, although a proper party, not being a necessary party to the
proceeding. Holmes v. Humphreys, 513.

Defendants cannot be sued jointly where liability differs in character, see
JOINT TORTFEASORS.

Agreed Statement of Facts.

2. Where a case is submitted on an agreed statement of facts with the
power to draw inferences, a finding of the court below on a matter of fact
is conclusive unless the facts agreed show it to be erroneous as a matter of
law. Bullock v. Haverhill & Boston Dispatch Co. 91.

3. Upon an agreed statement of facts in which no power to draw inferences
is given the judgment must be for the defendant unless the facts stated
show a liability to the plaintiff as matter of law. Boston v. Brooks, 286.
4. The rule in regard to drawing no inferences on an agreed statement of
facts unless the power to do so is given has no application to a statement
of agreed facts submitted as evidence. Souther v. Gloucester, 552.
5. An erroneous ruling upon a question of law, made by a judge hearing a
case upon an agreed statement of facts which gives no power to draw in-

ferences of fact, if it is not material to the decision of the judge furnishes
no ground for a reversal of the judgment. Haverhill v. Marlborough, 150.
6. A party aggrieved by a ruling of law, made by a judge upon an agreed
statement of facts which gives no power to draw inferences of fact, has
the right to allege exceptions under R. L. c. 173, § 106, but where such
exceptions can present no questions which are not open on an appeal from
a judgment on the agreed facts, the resort to exceptions is bad practice
because wholly useless. Ibid.

Auditor's Report.

7. Where a rule to an auditor provides that his findings of fact shall be
final, a motion to recommit his report is a proper method of raising ques-
tions as to the correctness of his rulings upon the admission or exclusion
of evidence. If in such a case the trial judge refuses to recommit the report,
and it appears that the questions of evidence were of such a nature as to
have had an effect upon the auditor's findings, and the judge in refusing
to recommit the report has given no reason for his refusal which shows it
to have been made as a matter of discretion, this court will assume that
the refusal was equivalent to a ruling that there was no error of the audi-
tor in dealing with the questions of evidence, and will pass upon the cor-
rectness of that ruling. Tripp v. Macomber, 109.

Conduct of Trial.

8. It is not within the discretionary power of a presiding judge at a jury
trial to exclude material evidence because he thinks that evidence already
has been introduced sufficient, if believed, to establish the fact to be proved.
Perkins v. Rice, 28.

General Verdict.

9. After a general verdict for the defendant in an action of tort, an excep-
tion of the plaintiff to the exclusion of evidence will be sustained if the
rejected evidence was material on any of the issues submitted to the jury,
as the verdict may have been rendered on the issue on which the evidence
was offered. Perkins v. Rice, 28.

10. In an action for personal injuries by a workman against his employer,
with counts both under the employers' liability act and at common law, if
the plaintiff on the evidence is entitled to recover at common law as well
as under the act, but the judge states that he shall submit the case to the
jury only under the statute and in his charge does not specify how he
leaves it to them and does not mention the limit of damages, under the
practice which has grown up in this Commonwealth the defendant's
counsel has the right to assume that the case is going to the jury only on
the counts under the statute, and if the jury find generally for the plaintiff
in a sum in excess of $4,000, the plaintiff can be made to relinquish his
damages in excess of that sum or be compelled to try his case again, al-
though the defendant in excepting to the ruling of the judge that the
plaintiff was entitled to go to the jury under the employers' liability act
did not ask the judge to order a verdict for the defendant on the common
law counts, and although the plaintiff was entitled to go to the jury on all

Practice, Civil (continued).

the counts and to recover at common law as well as under the statute.
Lynch v. M. T. Stevens & Sons Co. 397.

Special Verdict.

11. If a presiding judge after the return of a verdict questions the jury as
to the grounds on which the verdict was rendered the answers of the
jury have the effect of special findings. Ellis v. Block, 408.
12. In an action of contract against the members of a firm on an alleged
contract to employ the plaintiff for a certain purpose at a compensation
named, the plaintiff testified to a conversation between himself and one
of the defendants which the plaintiff contended constituted an oral con-
tract. The defendant who took part in the conversation testified that it
consisted of a proposition made by the plaintiff to which he returned an
evasive answer. Certain letters written by the same defendant were in-
troduced by the plaintiff which he contended made a binding contract if
the oral conversation did not. The defendants contended that if the
agreement was oral it was not to be performed within a year, so that the
action was barred by the statute of frauds. The presiding judge instructed
the jury that if the conversation was a mere proposition on the part of the
plaintiff it was for the jury to say whether the defendants accepted the
proposition by the letters. This was erroneous, as the letters were not
susceptible of such a construction. The jury returned a verdict for the
plaintiff, and in answer to a question by the judge stated that they had
considered the statute of frauds and also the liability of the firm for the
acts of the partner. The plaintiff contended that the special findings con-
tained in this answer cured the error of law in the instruction of the judge
in regard to the effect of the letters, as the questions of the statute of
frauds and of ratification arose only in case the contract was an oral one
made before the letters were written. Held, that the special findings in
the answer of the jury did not cure the error, as the findings could not be
extended beyond the statement that the statute of frauds and ratification
had been considered, and did not show that the verdict might not be
founded on an acceptance of an oral proposition by the letters. Ibid.

Decree.

13. If an order made by a single justice of this court affirming a decree of
the Probate Court is entered as a decree while exceptions to rulings of the
single justice are pending, this in legal effect is not a decree but only an
order for a decree, and if the rescript sent down by the full court contains
an order "Decree affirmed", this refers to the decree of the Probate Court
which is the only one in existence in the case, and to complete the record
a decree must be made by a single justice of this court affirming the decree
of the Probate Court, and remanding the case to the Probate Court for
further proceedings. Tyndale v. Stanwood, 531.

Petition to vacate Judgment.

14. It is error to grant a petition to vacate a judgment under R. L. c. 193,
§ 15, when the petitioner has not given the bond required by § 17 of that

chapter, unless the case comes under the exception provided for by § 18.
Davis v. National Life Ins. Co. 468.

Appeal.

Attorney general may authorize attorney to take appeal on behalf of Com-
monwealth, see ATTORNEY GENERAL.

New Trial.

15. Under Rule 31 of the Superior Court a judge of that court properly can
hear a motion for a new trial on affidavits with or without oral testi-
mony to support them. Manning v. Boston Elevated Railway, 496.
16. The decision of a trial judge in the proper exercise of his discretion on
a motion for a new trial, that one of the jurors who returned the verdict
was not of good moral character and was disqualified, and the granting of
a new trial on this ground, are not subject to revision by this court. Ibid.
17. On a motion for a new trial on the ground that one of the jurors re-
turning the verdict had been convicted of a scandalous crime and was not
of good moral character and that this was unknown to the party making
the motion or his attorney until after the verdict, if it appears that in a
period of several years there were eight criminal cases against the juror
in the Superior Court in most of which he had been convicted and
sentenced to imprisonment, and that in a period of twenty-three years
there had been twenty-eight criminal prosecutions against him in the
municipal court of the city in which he lived, in all of which he had been
convicted and in many of which he had been sentenced to imprisonment,
and that the latest sentence was imposed less than thirteen months before
the trial, it is a proper exercise of judicial discretion for the presiding
judge to find that the juror is not of good moral character and is disquali-
fied, and to grant a new trial on this ground. Ibid.

18. On a motion for a new trial on the ground of the disqualification of a
juror, if the affidavits aver that the disqualification was unknown to the
party making the motion or his attorney before the juror was called,
sworn or served, it may be found by the presiding judge in his discretion
that neither the moving party nor his attorney was at fault in not making
an objection to the juror before the verdict without its being shown that
either of them made inquiry or investigation in regard to the juror before
the trial. Ibid.

19. On a motion by a street railway company, against which a verdict for
personal injuries has been returned, for a new trial on the ground that one
of the jurors rendering the verdict had been convicted of a scandalous
crime and was not of good moral character, the facts, that this juror
worked as a laborer upon the streets and in the yard of the railway company
and that a witness in the case was at one time the foreman under whom
he worked, do not show neglect on the part of the railway company or its
attorney in failing to know the character of the juror before the trial.
Ibid.

No exception lies to refusal to make ruling of law at hearing on motion for
new trial on question raised at trial, see post, 29.