me. I saw enough to select the proper place. I cannot say whether it was sealed." The plaintiff, being recalled after defendant's testimony was in, testified in direct examination: "When I entered the office of the superintendent, I did not open the conversation by stating that I was a passenger on the train that had been derailed. I did not show Mr. Bissell the cut over my eye, and tell him I had a cut on my arm. He did not state to me that I was settling in full. I did not tell him that my personal injuries amounted to nothing, and that I had no claim for them. When he presented the instrument to me, he did not state that it covered everything from the beginning of the world, or released the road from all claims. I was not in his office for half an hour. I was there about fifteen minutes, at the most. I do not remember the conductor coming into the office while I was there. I do not remember that I had any conversation with Mr. Finch. Mr. Bissell was the only gentleman I had any conversation with." In cross-examination, he testified: "I testify that these statements were not made, because, if they were, I should have remembered them. I was in a dazed condition. I feel sure I should remember any of those things. It is on that ground that I am willing to testify that conversation did not take place between me and them." The defendant introduced the testimony of Charles M. Bissell and Mr. Finch, which tended to show that Charles M. Bissell, the division superintendent of the defendant, and his clerk, Charles C. Finch, were in the office when Mr. Bliss entered it; that they had been previously informed by telegram of the happening of the accident; that they had not seen Mr. Bliss before, nor did they know that he had been in the accident; that when Mr. Bliss entered the office he began the conversation with Mr. Bisseil, telling him that he had been a passenger on the train which had been derailed, and that in the accident his hat had been broken and his trousers torn; that he showed a slight cut over the eye, and referred to his arm being scratched, and glass having got into his hair and scalp; that he stated that he came to the office to make a settlement for his damages; that Mr. Bissell sent for the conductor, who came and identified Mr. Bliss as having been in the accident; that Mr. Bissell asked Mr. Bliss the amount of his claim, and that Mr. Bliss said his trousers cost $12 and his hat $5, and that he was willing to settle for $17; that Mr. Bissell then asked him about his personal injuries, and that Mr. Bliss said that they did not amount to anything, and that he made no claim for them; that they had some further conversation about the cost of his trousers and hat, and his position in the car at the time of the accident. Mr. Bissell then said that if any settlement was made it would have to include everything.-both the

loss of his trousers and hat, and the personal injuries that he might have sustained; that Mr. Bliss said his personal injuries were of such a trifling character that he did not think he was entitled to any amount for them, and that he was willing to sign a release, releasing the company from all liability from any claim whatever that he might have, upon the payment of $17; that Mr. Bissell inquired his name and address, and the name of his firm, and then drew up the receipt and release referred to in the plaintiff's testimony, copies of which are annexed to these exceptions, marked “A” and "B;" that when the papers were drawn up a seal was placed upon the release, and Mr. Bissell explained to Mr. Bliss the contents of the papers, and stated that this was a settlement in full for his clothes and for personal injuries; that it was a settlement of all claims from the beginning of the world up to the present time; that he then handed the papers to Mr. Bliss, and told him they were for him to read and to sign; that Mr. Bliss took the papers, looked them over, and seemed to read them; that Mr. Bliss then signed the papers, and that Mr. Bissell and Mr. Finch witnessed them; that Mr. Bissell then paid Mr. Bliss the $17; that neither Mr. Bliss nor Mr. Finch noticed that Mr. Bliss' arm was bandaged, or that he had any difficulty in signing the release and receipt; that Mr. Bissell did not say to him that one of the papers was a receipt for his trousers and hat, and the other a mere form; that neither Mr. Bissell nor Mr. Finch knew that Mr. Bliss had been to see a physician; that Mr. Bliss did not appear to be bewildered or dazed; that he seemed to know perfectly what he was doing; that there was nothing out of the ordinary in his conduct, or different from the conduct of ordinary people coming into the office; that Mr. Bliss, in his conversation with Mr. Bissell, gave accurate answers to the questions put to him; that he did not show the slightest sign of incoherency in his talk, and that he acted as a bright, energetic young man naturally would; that he was in the office from 20 minutes to half an hour. It was admitted that the plaintiff was paid by the defendant $17 upon his signing the release and receipt. There was evidence tending to show that the plaintiff was of sufficient mental capacity to understand and appreciate the contents of the receipt and release at the time that he was in the office of the superintendent.

Dr. George L. Walton, a physician, was called by the plaintiff, and his testimony tended to show that he was an expert.

The plaintiff's counsel asked him the following question: "Now, assuming that the plaintiff had received this nervous shock which he has testified to, in the manner which he has testified, what would you say in regard to its effect upon his physical and mental condition; its probable or possible effect.—

immediate effect?" To this question the defendant objected. The court, Dr. Walton having heard the plaintiff testify, allowed the question, and the defendant excepted. The witness answered: "The effects might vary more or less. I could not say, in a given case, what would occur. It might have very little or no effect on a man, or might have the effect of temporarily startling him,-anywhere from there to throwing him into an hysterical condition, throwing him into a condition of nervous prostration, and affecting his mind so that he would be quite irresponsible, and do all sorts of foolish things; might vary anywhere between these two things." It was admitted that, several months before the trial, true copies of the receipt and release signed by the plaintiff were shown to the plaintiff's counsel, and were thoroughly examined by him. On the second day of the trial, the plaintiff's counsel tendered to Samuel Hoar, who was trying the case as counsel for the defendant, $20 in gold, which was not accepted by the defendant's counsel; he stating that he was not agent of the defendant for any such purpose. Before the arguments, the plaintiff's counsel stated to the jury that they might deduct the said $17 and interest from any sum they might find for the plaintiff.

The defendant requested the court to instruct the jury as follows: "(1) If, at the time that the plaintiff signed the release and receipt, he was of sufficient mental capacity to understand and appreciate them, if he read them, and if he had capacity to read and write at that time, he cannot recover in this action. (2) As the plaintiff has kept the money paid him upon his signing the receipt and release until the present time, he cannot now recover in this action." These requests for instruction the court refused to give, and the defendant excepted. The court ruled and instructed the jury that the tender of the $20 in gold, made to the defendant's counsel, was a proper and sufficient tender of the money paid by the defendant to the plaintiff, to which ruling the defendant excepted. The court ruled that if, at the time that the plaintiff signed the release and receipt, he was of sufficient mental capacity to understand and appreciate them, if he read them, and if he had capacity to read and write at that time, he could not recover in this action, unless he was prevented from reading them, or induced not to read them, by the fraud of the defendant or its agent Bissell. To this instruction the defendant excepted.

A. Hemenway and T. H. Williams, for plaintiff. Samuel Hoar, for defendant.

ALLEN, J. 1. The objection to the question to Dr. Walton is placed on the ground that the question ought to have been limited to the probable effect of the injury upon the plaintiff, and that the question which was

allowed to be put went too far, in asking as to its possible effect. As bearing upon the alleged fraud of the defendant's agent in procuring the release and receipt, it is obvious that the mental condition of the plaintiff was important to be considered. If his mind was clear and strong, he was more likely to understand what he was doing, and less likely to be imposed upon. He had himself testified that he was "rattled-dazed"-at the fime. A witness for the defendant had testified that the plaintiff did not appear to be so, and there was other evidence in defense tending in the same way. There being this conflict of evidence as to his actual condition, it was certainly competent for the court, in its discretion, to admit the testimony of an expert that his mind might be dazed or confused as the result of such an accident as he had described, even though the testimony did not go so far as to show that this result was probable.

2. The defendant contends that there was no sufficient evidence to be submitted to the jury of fraud on the part of its agent in procuring the release and receipt. The evidence in favor of the plaintiff on this point was, in substance, that in the accident he had received a shock which had finally resulted in serious damage to him; that he bore marks of the direct injury upon his face; that while he was in this condition, about an hour and a half after the accident, in the office of the defendant's superintendent, the defendant's agent prepared the two papers for him to sign, and passed the release to him, saying, "This is merely a form," and said the second paper was merely a receipt for the trousers and hat; that both of these statements were false; and that he signed both papers without reading them, or knowing their contents. The witnesses for the defense gave a full account of what took place at this interview, with particulars which the plaintiff denied to be true, or denied having any remembrance of. The defendant's agent testified that nothing was allowed by way of payment for personal injuries, and that no claim was made for such injuries. Upon this evidence, it might be argued in behalf of the plaintiff that he supposed he was receiving payment merely for the injuries to his clothing, but did not understand that he was cutting himself off from a claim for personal injuries; that, if he was in fact rattled or dazed in mind, the defendant's agent would probably have observed it; and that the insertion of the words, "also injury to person," in the receipt for the damages to his clothing, and the taking of the release of all claims whatever in consideration of the payment of $17, and in view of the declarations of the defendant's agent to the plaintiff, tended to show fraud. The weight of argument and evidence was for the jury. All that we need say is that the conclusion of the jury was warranted. Freedley v. French, 154 Mass. 339, 28 N. E. 272; Peaslee v. Peaslee,

147 Mass. 171, 180, 17 N. E. 506; O'Donnell v. Clinton, 145 Mass. 461, 14 N. E. 747; Trambly v. Ricard, 130 Mass. 259.

3. The defendant further contends that the plaintiff cannot maintain this action, because, before bringing it, he failed to restore to the defendant the money which the de fendant had paid to him for the damage to his hat and trousers. It is plain that the plaintiff's release and receipt do not of themselves stand in the way of his maintaining the action, because, so far as they relate to his personal injury, they must now be assumed to have been obtained from him by fraud. Rosenberg v. Doe, 148 Mass. 560, 20 N. E. 176; Id., 146 Mass. 191, 15 N. E. 510; O'Donnell v. Clinton, 145 Mass. 461, 14 N. E. 747; Squires v. Amherst, 145 Mass. 192, 13 N. E. 609; Mullen v. Railroad Co., 127 Mass. 86; Smith v. Holyoke, 112 Mass. 517. The release and receipt are to be read as if they did not purport to discharge any claim he might have for personal injury, and by reason of the fraud the case is free from any question of the admissibility of parol evidence to vary or control the writing. But the objection is that the retention of the money precludes him. It is true, under our decisions, that the injury to the plaintiff's person and to his clothing furnished but one cause of action, and that a recovery of judgment by him for the injury to his clothing would have barred a subsequent action for his personal injury. Doran v. Cohen, 147 Mass. 342, 17 N. E. 647; Knowlton v. Railroad Co., 147 Mass. 606, 18 N. E. 580; Sullivan v. Baxter, 150 Mass. 261, 22 N. E. 895; McCaffrey v. Carter, 125 Mass. 330; Folsom v. Clemence, 119 Mass. 473; Goodrich v. Yale, 8 Allen, 454; Trask v. Railroad Co., 2 Allen, 331; Bennett v. Hood, 1 Allen, 47. In this respect the law, as established here, differs from that of England, upon which the plaintiff relied in argument. Brunsden v. Humphrey, 14 Q. B. Div. 141; Colliery Co. v. Mitchell, 11 App. Cas. 127, 144, per Lord Bramwell; McDougall v. Knight, 25 Q. B. Div. 1, 8. In the present case, however, the plaintiff recovered no judgment, and has brought no prior action for the injury to his clothing; and the question which we have to determine is whether, before bringing this action, he was bound to return the $17 received for the injury to his clothing, and whether the action is defeated by the omission so to return it. The defendant contends that accepting payment for a part of the injury which he sustained, and retaining the money, debar the plaintiff from maintaining an action for the other part of the injury, just as the recovery of a judgment for one part of the injury would debar him. But there are good reasons for holding the contrary doctrine. If one sues to recover for an injury, he may

well be held to include in his action all that he is entitled to sue for, in respect to that cause of action. But if one is making a settlement, the same reasons do not apply, and if he cannot make a full settlement he may make a partial one, and thus eliminate one element out of the controversy. If, for example, there is an insurance on real and personal property, and a fire occurs, destroying all of the property insured, or if a fire set by sparks from a locomotive engine, or other wrongful act, spreads, and canses damage to real and personal property, or to different buildings of the same owner, the parties, undoubtedly, may settle the claim as to one piece of property, leaving it open as to the others; and in such case a payment for so much as has been agreed on certainly would not debar the owner from re covering what he is entitled to in respect to the rest. Now, if such was the oral agreement of settlement as to a part of the loss, but the owner was, by fraud, led to sign a receipt for his whole claim, and if he afterwards sues for that part of his loss which he has not been paid for, and is able to set aside and avoid the terms of his receipt by reason of the fraud, there is no good reason why the payment for his loss upon one piece of his property should debar him from recovering for the loss upon the rest, even though he retains the money so paid to him. Why should he pay it back, when it represents only the sum agreed on for his compensation for that portion of his loss which he no longer seeks to recover for? So here. The plaintiff must now be deemed to have received the $17 for the injury to his clothing alone. This much was adjusted between the parties, and paid for. The plaintiff, although he included a claim for damage to clothing in his declaration, does not now seek to recover for that loss, or to avoid the settlement which he says he actually made with the defendant's agent. On the other hand, he stands to and affirms all that was included in the settlement actually made. If it was understood at the time that the payment was received only for the injury to his clothing, and that no claim for personal injury was settled for or released, and if the release and receipt were by fraud SO phrased as to cover that claim also, and if they are avoidable by reason of the fraud. so far as the claim for personal injury is concerned, the plaintiff was under no obligation to return the money received by him for the injury to his clothing before bringing his action for the personal injury. Muller v. Railroad Co., 127 Mass. 86; Smith v. Holyoke, 112 Mass. 517; Bartlett v. Drake, 100 Mass. 174; Walker v. Swasey, 2 Allen, 312; Roberts v. Railway Co., 1 Fost. & F. 460, cited with approval in Lee v. Railway Co., L. R. 6 Ch. 527, 537. Exceptions overruled.

FOSTER v. LEACH et al. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 9, 1894.) PLEADING-JOINT AND SEPARATE CAUSES-INDORSERS.

1. An objection that a declaration should not have counted against defendants jointly, but separately, is "an issue of law," to be raised only by demurrer, under Pub. St. c. 167, §§ 11,

12.

2. A declaration against indorsers of a note, alleging separate contracts of indorsement, does not allege a joint liability in the concluding averment that they owe plaintiff the amount of said note.

3. Where a declaration on a note against a husband and wife alleges that the husband indorsed it to the wife, who indorsed it to plaintiff, and the proof shows that the wife never owned the note, but merely added her name as indorser, or pro forma, the court is not bound to rule that the husband's transfer to his wife was void, and that plaintiff cannot against him.

recover

Exceptions from superior court, Middlesex county; Hammond, Judge.

Action by Foster against H. W. Leach and Anna F. Leach on a promissory note. Verdict for plaintiff against each defendant. Defendants except. Exceptions overruled.

This was an action of contract against H. W. Leach and Anna F. Leach, the declaration alleging that the Nantucket Electric Light Company made a promissory note to the order of H. W. Leach, who indorsed it to Anna F. Leach, who indorsed it to plaintiff, who was the owner and holder of it; that payment had been demanded and refused, and notice given; and that defendants owed the plaintiff the amount of the note, with interest. In the superior court, before Hammond, J., the jury found for the plaintiff against each defendant, and the latter excepted. The facts are in the opinion. Henry W. B. Cotton, for plaintiff. W. C. Coggswell, for defendants.

ALLEN, J. 1. The defendants' first objection was "that the plaintiff could not maintain his action upon the declaration, as it did not set out any joint promise of the defendants;" in other words, that a separate count was required for each defendant. This objection, if valid, (which we do not decide,) could only be taken by demurrer seasonably filed. Pub. St. c. 167, §§ 11, 12; Super. Ct. Rule 14; Downs v. Hawley, 112 Mass. 237.

2. The second objection was that the declaration alleged a joint liability of the defendants, and that it appeared on inspection of the note that their contracts were several, and that therefore the note did not support the declaration, and was incompetent. The declaration, however, alleges separate contracts of indorsement by the two defendants, and the concluding averment-that they "owe the plaintiff the amount of said note”—– may be taken distributively. Those words merely show a legal conclusion from what

has gone before, and are not to be taken as setting forth a joint contract. Hawes v. Ryder, 100 Mass. 216; Oliver v. Gold Co., 11 Allen, 283.

3. The next objection was taken by the defendant Harry W. Leach, who asked the court to rule that, upon the evidence, the plaintiff could not recover against him on the declaration; and in support of this request he contended that, under the declaration, he was in the same legal position as that of the maker of a note payable to the order of his wife, and by her indorsed to the plaintiff. The averment of the declaration is that "said H. W. Leach indorsed the same to A. F. Leach, and said A. F. Leach indorsed the same to the plaintiff." The argument is that, as H. W. Leach and Anna F. Leach were husband and wife, the indorsement was vold, and the plaintiff's title invalid. There is no doubt of the general rule that a husband cannot make a good note to his wife, or indorse one to her for the purpose of giving her a title to it. Clark v. Patterson, 158 Mass. 388, 33 N. E. 589. But it was held in Slawson v. Loring, 5 Allen, 340, that where the names of a husband' and wife appeared as successive indorsers, and it was shown that her indorsement was with his assent and under his direction, the indorsee took a good title. The authority of that decision has not been overthrown, though it has been limited to the special facts which there appeared. Gay v. Kingsley, 11 Allen, 345; Roby v. Phelon, 118 Mass. 541. In the present case the question arises in consequence of the form of the declaration, which avers an indorsement by the husband to the wife. The copy of the note annexed to the declaration shows that his indorsement was in blank. If the averment had been that each defendant indorsed the note to the plaintiff, or indorsed it in blank, the objection taken would not be open, (1 Chit. Pl. *75, note; Byles, Bills, *156,) and this averment would more nearly correspond to the facts as proved. An amendment to that effect might have been allowed, or might be allowed now, but we think it unnecessary. She never owned the note. Her participation in the transaction was for the purpose of adding her name as an indorser, which might be done, (Binney v. Bank, 150 Mass. 574, 23 N. E. 380,) and perhaps for the purpose of making a merely formal transfer of the title through her, which might also be done, (Slawson v. Loring, supra.) The court was not bound to rule that the plaintiff could not recover against the husband, upon all the evidence, and upon the declaration as it stood.

4. The last objection was taken by the defendant Anna F. Leach, who asked a ruling that upon all the evidence a verdict should be rendered in her favor, and also that there was no sufficient evidence of consideration to bind her. These rulings were rightly refused. The evidence of consideration was

ample. Binney v. Bank, 150 Mass. 574, 23 N. E. 380. The objection taken by her husband was not open to her, she being the last indorser. Kenworthy v. Sawyer, 125 Mass. 28. Bank v. Butler, 157 Mass. 548, 32 N. E. 909. Exceptions overruled.

WEBBER v. CITY OF CHICAGO.1 (Supreme Court of Illinois. Jan. 16, 1894.) MUNICIPAL CORPORATION - LICENSE ORDINANCE — CONSTRUCTION-HORSE RACING.

1. An ordinance which stated that its object was to provide for licensing and taxing "all public exhibitions for gain" declared that a certain license fee should be paid by circuses, menageries. caravans, variety and minstrel shows, athletic, ball, or similar games of sport, "and all other exhibitions, performances, and entertainments not here enumerated," given in an inclosure. Held, that the ordinance included horse races given in a fenced inclosure, to which spectators were admitted for pay.

2. Under Rev. St. 1893, c. 24, art. 5, § 1, subd. 41, which authorizes city councils to license and tax "theatricals and other exhibitions, shows and amusements," a city may license and tax horse races held in inclosures.

3. Where an ordinance divides amusements into different classes, for the purpose of licensing them, the objections that the ordinance is invalid because the classification is ambiguous, and because it authorizes the mayor to decide in which class an entertainment may belong, cannot be raised in a suit to enforce the ordinance in regard to an amusement, regarding the classification of which there is no uncertainty.

Appeal from appellate court, first district; E. F. Dunne, Judge.

Proceeding by the city of Chicago against F. B. Webber to punish him for violation of an ordinance. Defendant was convicted, and he appeals. Affirmed.

Knight & Brown, (Lyman Trumbull, of counsel,) for appellant. Adolf Kraus and Sigmund Zeisler, for appellee.

BAILEY, J. F. B. Webber was prosecuted and convicted before a justice of the peace for running a place of amusement at Garfield Park, in the city of Chicago, by selling tickets to horse races without first obtaining a license for the sale of the same, in violation of an ordinance of the city. On appeal to the criminal court of Cook county a trial was had de novo before the court, a jury being waived; and at such trial the defendant was found guilty, and sentenced to pay a fine of $50 and costs. This judgment was affirmed by the appellate court on appeal, and the record is now brought to this court on appeal from the judgment of affirm

ance.

The evidence shows that at the time of the commission of the offense charged in the complaint the grounds of the Garfield Park Club, a corporation, were inclosed by a tight board fence, about nine feet high, and extending from Madison street to Harrison

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

street, a distance of about three-quarters of a mile, and were about one-quarter of a mile in width, and contained a one-mile race course. At the time horse racing was, and for a considerable time prior thereto had been, carried on within these grounds; the public being admitted thereto by tickets, which were sold at a fixed price. Webber, at the time he was arrested, was in the employ of the club, and was engaged in selling tickets of admission to the grounds and race course, and receiving the price therefor. It was admitted at the trial that neither he nor the club had at the time any license, as required by the ordinance. The ordinance of the city of Chicago providing for licensing and taxing amusements, etc., as amended December 12, 1881, provides, among other things, as follows: "907. For the purpose of providing for the licensing and taxing of theatricals, shows, amusements and all public exhibitions for gain, in a just and equitable manner, the same are hereby divided into four classes, which shall be known as the first, second, third, and fourth, as follows: (1) All entertainments of a dramatic or operatic character, including lectures, public readings and recitations, and exhibitions of paintings or statuary, shall belong to and be known as entertainments of the first class. (2) Concerts, or other musical entertainments, panoramas, performances of any feats of jugglery, sleight of hand or necromancy, and exhibitions of any natural or artificial curiosities, shall belong to and be known as entertainments of the second class. (3) Circuses, menageries, caravans, side-shows and concerts, minstrel or musical entertainments given under a covering of canvas, exhibitions of monsters or of freaks of nature, variety and minstrel shows, athletic, ball, or similar games of sport, and all other exhibitions, performances and entertainments not here enumerated, given in a building, hall or under canvas, or other cover, or within any enclosure, shall belong to and be known as entertainments of the third class. (4) All street shows, exhibitions and devices, such as bird shows, galvanic batteries, lifting machines, blowing and striking machines, and all other exhibitions and performances or de vices for the trial of strength, given, performed, or had upon or along the street or public grounds of the city of Chicago, and all exhibitions or shows not included in the three foregoing classes, shall belong to and be known as entertainments or exhibitions of the fourth class. 908. No person or persons within the limits of the city shall give any of the entertainments mentioned in this chapter, for gain, without a license for that purpose, first had and obtained from the mayor, under the seal of the city, under a penalty of not less than fifty dollars and not exceeding two hundred dollars, for each and every violation of this section: provided, that for musical parties or concerts, and exhibitious of paintings, or statuary, given by citizens of