MASSACHUSETTS. SUPREME JUDICIAL COURT. John ELIOT, Piff. in Err., v. L. J. MCCORMICK et al. proper form of remedy, that does not prevent him from maintaining a subsequent action in the proper form. Harding v. Hale, 2 Gray, 399, 400; Peters v. Ballistier, 3 Pick. 495, 505, 506, explained in Butler v. Hildreth, 5 Met. 49, 52; Nightingal v. Devisme, 5 Burr. 2589; Bigelow, Estop. 3d ed. 30, 31, and cases cited; Bigelow v. Winsor, 1. A State court cannot render a judg-1 Gray, 299, 301; Foote v. Gibbs, 1 Gray, 412, ment in personam against a person who is not a resident of the State, who does not appear in the suit, and who is not served personally with process within the State. 2. Error in a judgment rendered without personal service cannot be set up in a suit on the judgment; a plea in such suit of the invalidity of the judgment, or that the debt on which it was rendered had previously been paid, is not a waiver of the right to bring a writ of error to review the judgment. N (Suffolk-Filed February 24, 1887.) () report. Judgment reversed. Writ of error to review a judgment of the Superior Court of Suffolk County entered against plaintiff in error without previous service of process on him, he at the time being a resident of and domiciled in another State. The case was heard in the supreme court before W. Allen, J., who found the facts and reserved the question of law for the consideration of the full court. The facts sufficiently appear from the opinion. Messrs. George Putnam and Conrad Reno, for plaintiff in error: There is nothing inconsistent in the two positions or courses of conduct adopted by the plaintiff in error. In the action upon the original judgment, he contended, just as he does now by this writ of error, that the original judgment was erroneous, on the ground that the service of process was insufficient. Inconsistency is a necessary element to constitute either a waiver or an estoppel. Connihan v. Thompson, 111 Mass. 270-272; Butler v. Hildreth, 5 Met. 49; Lilley v. Adams, 108 Mass. 50. There can be no waiver, after judgment, of errors in the judgment, at least where the defendant had no actual notice of the action until after judgment, as was the fact in the case at bar. Clark v. Fowler, 5 Allen, 45, 46. The plaintiff in error merely made a mistake in the form of his remedy. Thus it appears from the report of the case between these parties (138 Mass. 379, 381) that the plaintiff in error merely adopted an improper form of remedy, namely, by plea and proof instead of by a writ of error. Mr. Justice Charles Allen, in delivering the opinion of the court in that case, said: Since the remedy by writ of error was thus open to the defendant, the defense here set up cannot avail to defeat a domestic judgment." (p. 381). See also Kittredge v. Martin, 2 New Eng. Rep. 85, 141 Mass. 410. It is well settled that where a party has been defeated on the ground that he adopted an im 413. The officer's return on the writ is defective in failing to state that the defendant, Eliot, had no last and usual place of abode within the State. The statement in the return, that the defendants are not inhabitants of this State, nor have any residences therein, is not equivalent to a return that the defendants "have no last and usual place of abode within the State," because that phrase has acquired a technical and well-defined meaning, and "includes the case of a defendant who has taken up his permanent residence elsewhere, as well as that of one who is temporarily absent from the Commonwealth. As was observed by Chief Justice Shaw, "If the defendant has ever been an inhabitant, he must have had a domicil and a place of abode within the State." Wright v. Oakley, 5 Met. 400, 402-404; Eroer v. Coffin, 1 Cush. 23, 28: Morrison v. Underwood, 5 Cush. 52, 54; Tilten v. Johnson, 6 Cush. 354, 359; Orcutt v. Ranney, 10 Cush. 183; Graves v. Cushman, 131 Mass. 359, 362. The term "residence" has no such meaning as that above given, for a person loses his residence in Massachusetts as soon as he acquires a residence elsewhere. Bulkley v. Williamstown, 3 Gray, 493, 495; Worcester v. Wilbraham, 13 Gray, 586, 590; Lee V. Boston, 2 Gray, 484, 490-493; Opinion of the Justices, 5 Met. 589. Hence the officer's return that the defendant had no residence within the State, although true in fact, was insufficient in law to confer jurisdiction upon the superior court over the action; and if the superior court had no jurisdiction over the action, it had no authority to order further notice to the defendant, and its judgment upon default was erroneous. Graves v. Cushman, 131 Mass. 359, 362. Admitting, however, for the sake of argument, that the officer's return is equivalent to a return that the defendant had no last and usual place of abode within the State, yet if that return be false, it may be contradicted by parol evidence, and the judgment reversed by writ of error. Tilden v. Johnson, 6 Cush. 354, 358, 359; Smith v. Randall, 1 Allen, 456, 459; James v. Townsend, 104 Mass. 367; Brewer v. Holmes, 1 Met. 288. It appears by the "report" that the plaintiff in error was born and lived in Boston until 1856, at which time he was twenty-eight years of age, when he removed to Iowa. The original action was brought on October 21, 1863, within seven years after his departure. He therefore had a last and usual place of abode within the State, and, as no summons was left there for him, the judgment rendered against him upon his involuntary default, without any appearance by or for him, is erroneous and reversible on writ of error. Tilden v. Johnson, 6 Cush. 354; Wright v. Oakley, 5 Met. 400, 403; Graves v. Cushman, | Mere publication of process does not give the 131 Mass. 359, 362. defendant fair opportunity to be heard in his own defense. The defendants in error will not deny that the case of Tilden v. Johnson is conclusive against them, unless the statute under which that case was decided (Rev. Stat. chap, 90, § 45) was changed by the Gen. Stat. chap. 123, 25, by the introduction of the words "known to the officer." For the following reasons the plaintiff in error submits that no change was made which affects the case at bar: The commissioners' report to the General Statutes fails to show any intention to change the law of Tilden v. Johnson. Their note to Gen. Stat. chap. 90, 25, shows that the only change contemplated by them was to make this section apply "to cases of defendants who cannot be found, and whose residences are un-1 known, whether absent from the State or not." Comrs. Rep. Gen. Stat. chap. 123, p. 148, notes Rev. Stat. chap. 90, § 45, applied only to cases of defendants who were "out of the State at the time of the service of the summons," and did not apply when they were in the State at that time. The presumption is therefore in favor of the view that no change of the law was intended or made by the General Statutes,- because the case of Tilden v. Johnson has been cited and commented upon with approval in no less than six decisions of this court, subsequent to the passage of the General Statutes, and not one of them has entertained the slightest intimation that the law, as declared in that case, was changed by Gen. Stat. chap. 123, § 25 (Smith v. Randall, 1 Allen, 456, 459; Commonwealth v. Weymouth, 2 Allen, 144, 146; Cahoon v. Harlow, 7 Allen, 151, 152; Safford v. Clark, 105 Mass. 389, 390; Graves v. Cushman, 131 Mass. 359, 362; McCormick v. Fiske, 138 Mass. 379, 381); because the Legislature, by the use of the words "known to the officer," in Gen. Stat. chap. 123, § 25, intended to make the statute law expressly accord with the judicial decision in Tilden v. Johnson, rather than to make any change in the law of that decision. In Tilden v. Johnson the court held that the officer's authority extended no further than to certify that the defendant had no last and usual place of abode within the State, known to the officer, and that an absolute return that the defendant had no last and usual place of abode within the State was not conclusive, so as to preclude the defendant from showing that he had such an abode, in order to reverse the judgment. Pennoyer v. Neff, 95 U. S. 714, 726 (Bk. 24, L. ed. 565); Murdock v. Phillips Academy, 12 Pick. 244, 266; Skipwith v. Hill, 2 Mass. 35. A State Legislature has no constitutional authority to enact that a judgment, such as the one complained of, shall be binding in personam against the defendant. A valid judgment in personam in a State court can only be recovered after personal service of process upon the defendant within the State, or after his voluntary appearance, because jurisdiction over his person can only be acquired in those two ways. Pennoyer v. Neƒƒ, 95 U. S. 714, 721, 722, 730– 733 (Bk. 24, L. ed. 565); Eastman v. Dearborn, New Eng. Rep. 166, 63 N. H. 364; Graham v. Spencer, 14 Fed. Rep. 603, 606; Abbott v. Sheppard, 44 Mo. 273, 274; Easterly v. Goodwin, 35 Conn. 273, 277; Hall v. Williams, 6 Pick. 232, 242; Gilman v. Gilman, 126 Mass. 26, 28; Salem v. Eastern R. R. Co. 98 Mass. 431, 448, 449; St. Clair v. Cox, 106 U. S. 350, 353 (Bk. 27. L. ed. 222); Cooley, Const. Lim. pp. 403, 404, and cases cited; Empire v. Darlington, 101 U. S. 87, 92 (Bk. 25, L. ed. 878); Smith v. Wod folk, 115 U. S. 143, 149 (Bk. 29, L. ed. 357); Pana v. Bowler, 107 U. S. 529, 545 (Bk. 27, L. ed. 428); Brooklyn v. Ins. Co. 99 U. S. 362, 370 (Bk. 25, L. ed. 416); Woodward v. Tremere, 6 Pick. 354; Boyd v. Urquhart, 1 Sprague, 423; Phelps v. Brewer, 9 Cush. 390, 397; Cooper v. Reynolds, 10 Wall. 308, 316, 317 (77 U. S. bk. 19, L. ed. 932); Galpin v. Page, 18 Wall. 350, 366, 368, 369 (85 U. S. bk. 21, L. ed. 959); Harkness v. Hyde, 98 U. S. 476, 478 (Bk. 25, L. ed. 238); Galpin v. Page, 3 Sawyer, 93, 116; Oakley v. Aspinwall, 4 Comst. 514, 520, 521. There are a few exceptions to the general rule above stated. Divorce proceedings in which the object is to determine the personal status of a resident plaintiff with respect to a nonresident defendant. Pennoyer v. Neff and St. Clair v. Cox, supra. Where service upon an agent has been assented to in advance, or there is a law of the State requiring a nonresident who does business within the State to appoint an agent upon whom service may be made. Gillespie v. Commercial Mut. Marine Ins. Co. 12 Gray, 201; Fennoyer v. Neff, supra; Vallee v. Dumergue, 4 Welsb. H. & G. 290; Lafayette Ins. Co. v. French, 18 How. 404 (59 U. S. bk. 15, L. ed. 451); St. Clair v. Cox, supra. The judgment is erroneous because no valid In the above cases a valid judgment may be judgment in personam can be entered against rendered against a nonresident without pera person out of the jurisdiction of the court, un-sonal service or voluntary appearance. less he has been personally served with process, "Due process of law" requires an actual seizor has voluntarily appeared in the action. Any ure of defendant's property, if goods, or a levy statutes which purport to give validity to such of the writ of attachment upon it, if realty, judgments are in so far unconstitutional and at the commencement of the proceedings; in void. order that a valid judgment may be rendered even against the specific property so attached, where there is neither personal service of process upon the nonresident defendant within the State, nor a voluntary appearance by him. The reason assigned is that the law proceeds upon the theory that property is always in the possession of its owner, in person or by agent, and therefore that its seizure will give him notice of the claim and an opportunity to appear Pennoyer v. Neff, 95 U. S. 714, 732, 733 (Bk. 24, L. ed. 565); Eastman v. Dearborn, 1 New Eng. Rep. 166; 63 N. H. 364; Salem v. Eastern R. R. Co. 98 Mass. 431, 447; Commonwealth v. Cambridge, 4 Mass. 627; Galpin v. Page, 18 Wall. 350, 368, 369 (85 U. S. bk. 21, L. ed. 959); Lafayette Ins. Co. v. French, 18 How. 404 (59 U. S. bk. 15, L. ed. 451);, Ham v. Po lice Board, 2 New Eng. Rep. 642. and defend. Without personal service or voluntary appearance and without a seizure or levy, the court acquires no jurisdiction over the person or over the property of the defendant. Notice of some kind is required. Cooper v. Reynolds, 10 Wall. 308, 317-319 (77 U. S. bk. 19, L. ed. 932); Pennoyer v. Neff, 95 U. S. 714, 726-728, 733 (Bk. 24, L. ed. 565); Windsor v. Mc Veigh, 93 U. S. 274, 279 (Bk. 23, L. ed. 915); Galpin v. Page, 3 Saw. 93, 125; Thompson v. Whitman, 18 Wall. 457 (85 U. S. bk. 21, L. ed. 897): Webster v. Reid, 11 How. 437, 459, 460 (52 U. S. bk. 13, L. ed. 761); Oswald v. Kampmann, 28 Fed. Rep. 36; Palmer v. McCormick, 28 Fed. Rep. 541; Haggerty v. Ward, 25 Tex. 144; Ward v. Lathrop, 4 Tex. 180, 181; Thompson v. Allen, 4 Stew. & P. 184, 190, 191. In the case of intangible property, such as stocks in a railroad company, an actual seizure is not necessary to give the court jurisdiction over such property. "Seizure of such stocks may be made by giving notice of seizure to the president or vice-president of the railroad company," because" a corporation holds its stock, as a quasi trustee, for its stockholders." This is true, at least, with respect to proceedings strictly in rem, as to confiscate stocks of a rebel. Miller v. United States, 11 Wall. 268, 297 (78 U. S. bk. 20, L. ed. 135). In trustee process also, notice to the trustee is equivalent to an actual seizure, and will give the court jurisdiction over the "goods, effects, and credits" of the principal defendant, in the hands and possession of the trustee. Cooper v. Reynolds, supra; Miller v. United States, supra; Bissell v. Briggs, 9 Mass. 462, 468, 469; Gardner v. Barker, 12 Mass. 36. The three preceding propositions show that "due process of law" requires an actual seizure or some act of equivalent import, in order to give the court jurisdiction over the property, where the only service of process was by publication. See particularly: Pennoyer v. Neff, 95 U. S. 714, 727 (Bk. 24, L. ed. 565); Cooper v. Reynolds, supra; Miller v. United States, supra. The court acquires jurisdiction over the defendant's person by service or voluntary appearance; and jurisdiction over his person necessarily includes jurisdiction over his property. Such attachment is ineffectual, as against the defendant himself, for the purpose of conferring jurisdiction upon the court, where the defendant was neither personally served nor voluntarily appeared. Tilden v. Johnson, 6 Cush. 354; Peabody v. Hamilton, 106 Mass. 217, 222; Wilbur v. Ripley, 124 Mass. 468. There are a few exceptions to the general rule above stated, requiring seizure or levy. | mer v. McCormick, Id. 541; Battle v. Carter, 44 Tex. 485; Schwinger v. Hickok, 53 N. Y. 280; Lawrence v. Fellows, Walker (Mich.), 468; Pennoyer v. Neff, supra; Felch v. Hooper, 119 Mass. 52; Hart v. Sansom, 110 U. S. 151, 155 (Bk. 28, L. ed. 101). 2. Partition. 3. Eminent domain. Pennoyer v. Neff, supra. Messrs. Robert D. Smith and Melville M. Weston, for defendants in error: The plaintiff's right to bring a writ of error was waived by his proceedings in the second action, brought by these defendants in the superior court upon the judgment, the reversal of which is now sought, which action is reported under the name of McCormick v. Fiske, 138 Mass. 379. It is well settled that a defendant may waive the right to bring a writ of error-as by submitting his case to the judgment of the court on agreed facts or a case stated. Johnson v. Shed, 21 Pick. 225; Fay v. Hayden, 7 Gray, 41. The plaintiff in error, by answering to the merits of said action, by permitting the same to remain in court for a year and a half without moving for a continuance to enable himself to bring a writ of error to reverse the judgment upon which said action was founded, by going to trial upon the merits without objection and taking the chances of a verdict in his favor, and by reason of the other facts stated in the first plea, has, under the decisions of the court in analogous cases, waived his right to bring a writ of error to reverse said judgment. Clark v. Flint, 22 Pick. 231; Butler v. Hildreth, 5 Met. 49; Sylvester v. Mayo, 1 Cush. 308; Turner v. Twing, 9 Cush. 512; Seagrave v. Erickson, 11 Cush. 89; Clark v. Montague, 1 Gray, 446; Burnett v. Smith, 4 Gray, 50; Wilmarth v. Knight, 7 Gray, 294; Campbell v. New Eng. M. L. Ins. Co. 98 Mass. 381, 400; Merriam v. Woodcock, 104 Mass. 326; Henderson v. Staniford, 105 Mass. 504; Norris v. Munroe, 128 Mass. 386; Boston & Albany R. Co. v. Pearson, 128 Mass. 445; Morse v. Dayton, Id. 451; Cobb v. Rice, 130 Mass. 231; Osgood v. Lynn, Id. 335; Fay v. Duggan, 135 Mass. 242; Williams v. Kimball, Id. 413; Morrison v. Morrison, 136 Mass. 310; Parker v. Nickerson, 137 Mass. 487, 492; Rowe v. Canney, 139 Mass. 41; Duckworth v. Diggles, Id. 51; Daniels v. Lowell, Id. 56; Quinn v. Middlesex Electric Light Co. 1 New Eng. Rep. 103, 140 Mass. 109. There is nothing in the language of the opinion in McCormick v. Fiske, supra, which indicates that a writ of error is any longer open to this plaintiff. It is there said that a writ of error might have been brought and a stay of proceedings applied for before the trial; and the necessary implication is that it is now too late do this. Hawes v. Hathaway, 14 Mass. 233. The officer's return, properly construed, sufficiently states that Eliot had no last and usual place of abode within the Commonwealth, known to the officer. 1. Where the defendant has by express contract created a lien against certain specific prop-to erty, as by mortgage, or vendor's lien for unpaid purchase money, or by contract to convey at a specific time. In all these cases no seizure or levy is necessary in order to obtain a valid judgment against such property of a nonresident by publication merely, because the defendant has presumptive notice of suit, by knowledge of facts which might reasonably lead him to expect suit. Compare Gen. Stat. chap. 123, § 25; Pub. Stat. chap. 161, § 31; and Gen. Stat. chap. 126, § 6; Pub. Stat. chap. 164, § 6. The statute has been changed since the deOswald v. Kampmann, 28 Fed. Rep. 36; Pal-cision in Tilden v. Johnson,6 Cush. 354–359, and a judgment is not now erroneous if the defend- | erty without due process of law." The Suant in fact had a last and usual place of abode within the Commonwealth, unless it was also "known to the officer" serving the writ. Gen. Stat. chap. 123, § 25. Under Gen. Stat. chap. 123, § 32, real estate liable to execution might be attached on mesne process. By Gen. Stat. chap 103, § 1, lands of a debtor in remainder might be taken on execution. It appears by the will of Eliot's father, quoted in the report, that at the date of the writ, he was the owner of a vested remainder in real estate situated in Suffolk County. The attachment returned by the officer was therefore valid and effectual. Pierce v. Lee, 9 Gray, 42; Blanchard v. Blanchard, 1 Allen, 223. Morton, Ch. J., delivered the opinion of the court: This is a writ of error to reverse a judgment rendered in the superior court. In the original suit, the officer returns that he attached real estate belonging to the defendant, Eliot, and that "the within-named defendants not being inhabitants of this State, not having any residences therein, and not finding them in my precinct, nor any agent, tenant, or attorney of theirs, known to me as such, I could make no further service of this writ." The statutes provide that when there is a separate summons to be served after an attachment, it shall be served by delivering the summons to the defendant, or, if not served personally, "shall be left at his last and usual place of abode if he has any within the State, known to the officer, and if he has none, it shall be left with his tenant, agent, or attorney, if he has any within the State, known to the officer. If he has no such last and usual place of abode, and no tenant, agent, or attorney, no service on him shall be required except as is provided in the three following sections." The two following sections relate to cases where there are several defendants, one of whom is within the State, and to real actions, and do not apply to the case at bar. The third following section provides that in all cases where the defendant is out of the State, or his place of residence is not known to the officer, and no personal service is made on him, he shall be entitled to such further notice by publication or otherwise as the court may order. Gen. Stat. chap. 123, §§ 23, 24, chap. 126, § 6; Pub. Stat. chap. 161, §§ 29-34; chap. 164, § 6. It may be doubted, whether, if we give full effect to our statutes, the return of the officer is sufficient to give jurisdiction to the court, as it does not state that the defendant had no last and usual place of abode known to the officer. The defendant, Eliot, had in fact a last and usual place of abode in this State, although at the time of the service he was resident and domiciled in another State. But we need not consider this question, as there is a more broad and fundamental ground which is decisive of this case. The fourteenth article of amendment to the Constitution of the United States provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or prop preme Court of the United States has held in recent decisions that, under this provision, it is not competent for a State court to render a judgment in personam against a person who is not a resident of the State, who does not appear in the suit, and who is not served personally with process within the State. It is held that where property of a nonresident defendant is found within the State, the State court may attach it on the writ, and may proceed to a judg ment so far as to apply the property to the debt; but if there is no appearance of the defendant, and no personal service on him, a judgment rendered against him personally is void and has no effect beyond the property attached; and no suit can be maintained on such a judgment, either in the same or in any other court. Pennoyer v. Neff, 95 U. S. 714 [Bk. 24, L. ed. 565]; Freeman v. Alderson, 119 U. S. 185 [Bk. 30, L. ed. 372]. As the question before us de pends upon the construction of a provision of the federal constitution, our decision, if against the exemption or privilege claimed under that provision, would be subject to be re-examined by the Supreme Court of the United States upon a writ of error. Fleming v. Clark, 12 AIlen, 191. These decisions modify the application and effect of our statutes and overrule the adjudications of this court so far as they hold that a judgment in personam can be rendered against a nonresident defendant without any other service than attaching his property or leaving a summons at his last and usual place of abode within the State, followed by such publication of notice as is ordered by the court. It follows that the judgment in question cannot be sustained as a judgment in personam. Although there was an attachment of property on the writ, it has long since been dissolved, and no property is now held by it. We are, for these reasons, of opinion that the judgment must be reversed. But the defendant in error contends that the plaintiff has waived his right to a writ of error. The facts upon which he relies are, that he brought a suit upon his judgment, in which suit personal service of the writ was made upon the plaintiff in error; that he appeared in that suit, and set up his answer that the judgment was erroneous because there was no sufficient service upon him; and also that, before the judg ment was obtained, he had paid in full the debt upon which it was founded. The court ruled that error in the original judgment could not be set up in this suit upon the judgment; and upon exceptions this court sustained this ruling, upon the ground that the defendant's remedy, if any, was by writ of error. MeCormick v. Fiske, 138 Mass. 379. Upon the other issue presented, the superior court refused to permit the defendant to go to the jury. This was not a waiver of his right to bring a writ of error to reverse the former judgment. Pleading the invalidity of the judgment is not an abandonment of his claim that it is invalid. On the contrary, he insists upon and attempts to avail himself of it in that suit. He could not do this because he had mistaken his remedy. So applying to the superior court for leave to show that the claim on which the judgment was based had been paid and extinguished before it was rendered, followed by a refusal of the court to permit this, was not a waiver of his right to bring a writ of review. Under the statute the court might grant or refuse such leave in its discretion. Pub. Stat. chap. 167, § 81. The court, in its discretion, for reasons which we can not inquire into, refused to allow him to make this defense. He was thus deprived of the right to try the question of the validity of the judgment. His actions in that suit and in this are not inconsistent. On the contrary, they are all consistent parts of an attempt to show the invalidity of, and to reverse, a judgment obtained in his absence and without his knowledge. They show that he persistently insisted upon his rights, and not that he waived them. claimed in this action*), he should not vary the evidence, as to the case of the plaintiff, from that contained in the former bill of exceptions in this case (and which appears in substance in the opinion of Devens, J., in the report of this case in 1 New Eng. Rep. 210, 140 Mass. 150), except to offer evidence that the plaintiff's deposition contained a statement that by his last contract he was to have a certain sum per day while learning, and more after he was learned; and also to offer evidence of a witness that all the other floors of the factory, excepting the one where he received his injury, were provided at the elevator opening with self-closing hatches, and that at the opening where the plaintiff fell, it was so dark, by reason of the construction of the mill, that it could not be seen or discovered until reached. Plaintiff also stated that he would prove that, upon the floor in question, there were no appliances, required by statute, and that the defendant was in violation of the statute in that respect. The court then ruled the plaintiff could not recover, upon the ground that he was not in the exercise of due care; and directed a verdict for defendant; and the plaintiff alleged exceptions. Messrs. George M. Stearns and William H. Brooks, for plaintiff: The court below ruled that plaintiff's intestate could not recover because "he was not in No other question the exercise of due care.' arises in this case than the correctness of that ruling. Under the second count, and in all cases under statutes, like this, previous knowledge of the defect and danger and appreciation of them, and attempts to avoid or pass by the same, are not conclusive of want of due or over such defects, knowing and thinking of care. Mahoney v. Metropolitan R. R. Co. 104 Mass. 73; Dewire v. Bailey, 131 Mass. 171; Snow v. Provincetown, 120 Mass. 580; Gilbert v. Boston, 139 Mass. 313. That he proceeded in the dark is not conclusive against him. Fox v. Sackett, 10 Allen. 535. Under the Dog Law the same rule prevails as to care. Munn v. Reed, 4 Allen, 431. The man being on foot, and master of his acts, even if he did not use all his senses, such as feeling with his feet, is not to be conclusive 1. The rule requiring the plaintiff in an action for negligence to show that at the time of the injury complained of he was in the exercise of due care is the same in actions brought under a statute and at common law, unless the stat-ly held negligent. ute otherwise provides. 2. In an action to recover for injuries from falling into an opening to an elevator not properly guarded,-Held, that the evidence shows that the plaintiff was not in the exercise of proper care. (HampshireFiled February 23, 1887.) ON plaintiff's exceptions. Overruled. Action of tort to recover damages for injuries to an employee, alleged to have been caused by negligence of defendant in not providing a safe place for carrying on business. At the trial of this case in the superior court before Barker, J., counsel for the plaintiff stated in his opening that he did not claim under the first count of his declaration, and that under the count under the statute (under which he Williams v. Grealy, 112 Mass. 79; Shapsleigh v. Wyman, 134 Mass. 118; Warren v. Fitchburg R. R. Co. 8 Allen, 227; Chaffee v. Boston & L. R. R. Co. 104 Mass. 108; Bowser v. Wellington, 120 Mass. 391. *The count under the statute, upon which plaintiff relied, was as follows: "The plaintiff says the defendant was the owner, lessee, or occupant of a manufacturing establishment in South Hadley, in which was a certain elevator and well-hole, to which, on several floors, were openings; and said openings were not protected by good and sufficient trap doors, or self-closing hatches and safety hatches, or such other safeguards as the inspectors named in chap. 104, 8 14, of the Pub. Stat., might direct, or by any safeguard referred to in said chapter; and the plaintiff was an employee of the defendant company, and while at work for said company, in the proper discharge of his duty, fell into said opening and well-hole, and suffered great damage and injury by reason of the violation by the defendant of the statute above referred to." |