and March, 1908." He refused to find that Smith should be allowed this sum.

J. M. Marshall, for the defendants.

W. A. Pew, Jr., for the plaintiff.

SHELDON, J. The questions now raised relate only to the schooner Agnes V. Gleason and to the mortgage upon her.

1. The attempted foreclosure having been avoided as fraudulent, the defendants must be treated as assignees of the mortgage. Having been in possession and control of the vessel, they must be charged with the net amounts which they have received as her earnings, or which by the exercise of due diligence they ought to have received. White v. Brown, 2 Cush. 412. Mills v. Day, 206 Mass. 530. They have been charged only with what they actually received. Of this they have no right to complain.

2. They contend however that from these earnings there should be made certain deductions which have not been allowed to them. As to the first of these items, the sum of $308.41, for the outfit furnished to the crew of the vessel on her last trip, the defendants since the argument was made in this court have waived their exceptions.

The second of these items is the sum of $160.67, alleged to have been paid to the captain. It is charged in the account produced by the defendants as "commission on stock." The defendant B. A. Smith testified on cross-examination that this was the "captain's commission, percentage paid the captain, his wages for running the vessel." But it already had appeared that the captain and crew were to have for their pay fourfifths of the value of the catch that should be made; and there is in the testimony no further explanation of this item. It was not shown on what sum the commission was reckoned, or that there was any agreement or any custom that this allowance should be given. We may surmise facts which would justify such an expenditure, or even make it necessary; but we cannot discover either in the facts reported, or in the evidence, ground for more than a surmise. The master was unable to find on the evidence what this commission was. The court is in the same position. This item was properly disallowed.

The master found that a fair compensation for the services of the defendant B. A. Smith would be $500, but ruled that noth

ing should be allowed to him. The plaintiff contends that this ruling was right because the foreclosure by which the defendants gained their title was fraudulent, and they ought not to be allowed to profit by their wrongdoing. But in the opinion of the majority of the court the avoidance of the foreclosure does away with all the effects of the fraud which has been found. It was conceded at the argument that the defendants as mortgagees were entitled to the possession of the vessel. It was their duty, so far as might be, to put her to a profitable use; and we already have seen that if they had not done so they would have been responsible for whatever profits should have been realized. Smith's services have been valuable. The master has found that the earnings of the vessel have been unusually large, and her voyages very successful. The plaintiff now takes the benefit of the valuable services which have produced this advantageous result. Both upon principle and authority he should be charged with their fair value. Adams v. Brown, 7 Cush. 220. Gerrish v. Black, 104 Mass. 400. Waterman v. Curtis, 26 Conn. 241.

The master properly refused to set off against the amount for which the defendants were found liable upon the accounting their independent demands for insurance premiums paid by them for the mortgagor. Some of these premiums were for insurance upon another vessel; none of them constituted any part of the mortgage debt, or were paid under any authority contained in the mortgage, or in the performance of any of its terms. They were wholly independent matters. Mayhew v. Martha's Vineyard National Bank, 203 Mass. 511, 515.

3. The master's findings as to the justified by the evidence before him. plainly wrong.

value of the vessel were Certainly they were not

4. Interest was properly computed in the decree which was entered by the single justice.

It is unnecessary to consider the defendants' exceptions in detail. All that have been argued are covered by what has been said. The decree appealed from must be modified so as to sustain the defendants' thirteenth exception to the master's report, and to reduce the amount found in favor of the plaintiff by the sum of $500, and so modified must be affirmed.

So ordered.

ROSA G. BOYLE vs. BOSTON ELEVATED RAILWAY COMPANY.

Suffolk. November 16, 1910.

February 28, 1911.

Present: KNOWLTON, C. J., MORTON, LORING, SHELDON, & RUGG, JJ. Evidence, Papers produced on call of adverse party. Negligence. Street Railway. The rule, which has prevailed in this Commonwealth, that, if at a trial a paper is called for and is inspected after having been produced by the adverse party, it can be used as evidence by the party producing it, does not make such a paper evidence for the party calling for it and inspecting it, and it cannot be put in evidence by that party unless it is otherwise admissible.

At the trial of an action against a corporation operating a street railway, for personal injuries sustained when the plaintiff was a passenger on a car of the defendant, which left the rails upon a disused railroad bridge, went down a bank a distance of seven feet and turned over on its side, the conductor of the car testified that as the car left the bridge and began to go down grade he "observed a grating sound and immediately the car tipped . . . took an unusual tilt and settled on its side," and it went off the bank "immediately." From another portion of the testimony of the same witness the defendant's counsel contended that the conductor made the statement that in his opinion the cause of the accident was oscillation. It was said, that a jury would be warranted in finding that the conductor would not have stated that in his opinion the cause of the accident was oscillation if he had heard the grating sound to which he testified.

TORT for personal injuries sustained by the plaintiff on August 31, 1904, when she was a passenger on an electric street car of the defendant, which was derailed upon a disused railroad bridge on Dorchester Street, in that part of Boston called South Boston, at a place where that street was being widened and its grade lowered, went down a bank a distance of seven feet and turned over on its side. Writ dated December 27, 1904.

At the trial in the Superior Court before Harris, J., the jury returned a verdict for the plaintiff in the sum of $11,800. The defendant alleged exceptions, all of which except the one considered in the opinion have been made immaterial by the decision of this court sustaining that exception.

W. G. Thompson, (G. E. Kimball with him,) for the defendant. W. Flaherty, for the plaintiff.

LORING, J. We are of opinion that the exception must be sustained which was taken to the admission in evidence of a typewritten statement of an examination of the motorman and conductor of the car here in question. This examination was made by one Shea, who was employed in the defendant's claim department, a few days after the accident.

Just before the end of the direct examination of the motorman (who was called as a witness by the defendant), this statement of Shea's examination and the accident report made by the same two employees were marked for identification. At the end of the motorman's examination the counsel for the plaintiff asked for the "report," by which he must be taken to have meant the accident report. The counsel for the defendant objected to giving it to him then, saying that he had not a right to read it until he cross-examined, and the presiding judge said to the counsel for the plaintiff that he had no right to it unless it went in evidence. Thereupon a colloquy ensued, the meaning of which is not altogether clear. But as we construe it the counsel for the defendant said that if the report which the counsel for the plaintiff called for was to be put in evidence he would produce "the whole paper." Then the counsel for the plaintiff said that he would like the "reports and all the rest of them.” Thereupon the defendant's counsel handed the plaintiff's counsel the accident report and the typewritten statement of the examination conducted by Shea. Later the counsel for the plaintiff began to read the Shea statement to the jury and, the defendant's counsel objecting, the presiding judge ruled that if a paper is called for and used "as a basis for cross-examination it goes in." To this ruling the defendant took an exception. The counsel for the plaintiff then had the conductor recalled to the witness stand and proceeded to read from the typewritten statement of Shea's examination this question as a question put by Shea to the conductor at the time Shea examined him as to the accident: "The cause of the accident in your opinion was what?" He also began to read the conductor's answer to it, when the defendant's counsel objected on the ground that it was "mere theorizing." The counsel for the plaintiff stated that he proposed" to contradict his [the conductor's] statement by showing [that] he made a different statement." The defendant's counsel said that as to fact he had no objection, but that the conductor's theories were not competent. The presiding judge then made this ruling: "I think so far, he has not made any statement that tends to contradict anything he has said here. It is competent on that ground." To this the defendant excepted. The Shea statement then was admitted in evidence under the defend

ant's exception and was read to the jury and was sent with them into the jury room.

The Shea statement was signed by Leach, the conductor, but not by Ridge the motorman. So far as Leach's statements there set forth contradicted the testimony given by Leach on the witness stand, it was competent as a written statement signed by Leach which contradicted his testimony and the defendant's counsel did not object to so much of the Shea statement being admitted in evidence. But, so far as the Shea statement contradicted Ridge, it was not competent because it never had been adopted by Ridge as his statement.

It is now contended by the plaintiff's counsel that the Shea statement was produced by the defendant upon the promise of the plaintiff to put it in evidence. While the bill of exceptions on this point is not entirely clear, we do not on the whole so construe it. And we are confirmed in this by the fact that when it was admitted in evidence it was not admitted by the presiding judge on that ground.

It is stated in Clark v. Fletcher, 1 Allen, 53, and Long v. Drew, 114 Mass. 77, on the authority of 1 Greenl. Ev. § 563, that if a paper is called for by one party and is inspected by him it becomes evidence for both parties at the trial. We assume that the ruling of the presiding judge was made on the authority of that statement. But that statement of Professor Greenleaf does not mean that a party can make a paper (not otherwise competent as evidence) competent evidence in his own behalf by calling for it and inspecting it on its being produced on his call. All that is meant by that statement is that if one party calls for a paper and inspects it, it is thereby made evidence in favor but not against the party who produces it. When Professor Greenleaf said that if it is produced and inspected it becomes evidence for both parties he had in mind the case of a paper which was evidence against the party producing it, and speaking of such a case he said that if the paper is called for and inspected it becomes evidence for both parties. As we have said, there is no basis for the contention that if a paper is not competent as evidence a party can make it so by calling for it and inspecting it.

The English rule on which Clark v. Fletcher, 1 Allen, 53,