BENEDICT BENSON vs. FRANK E. HALL.

BRALEY, J. This is an action of contract to recover a balance alleged to be due for remodelling a barn into a dwelling house. The declaration contains two counts, one upon the contract, and the other upon an account annexed, while the answer was a general denial. At the trial in the Superior Court, before the late Mr. Justice Maynard and a jury, there was evidence that the work was performed in compliance with a set of specifications, which had been signed by the defendant, but not by the plaintiff. It was contended by the defendant, that although he had signed, yet his signature was intended only as an assent for the convenience of the plaintiff, to enable him to purchase lumber. He then introduced another set of specifications, under which it was contended the work should have been done, accompanied by testimony that the plaintiff agreed to perform the work as required by this set. In support of his contention that the first set should control, the plaintiff then was permitted, subject to exception, to show that the defendant had taken this set to a co-operative bank for the purpose of raising a mortgage. But there is nothing in this exception, as it was plainly competent for either party to put in evidence the admissions by conduct of the other relating to the different sets, as forming a part of the testimony, upon which the jury were to decide between these conflicting contentions. The jury having returned a verdict for the plaintiff, the defendant filed a motion for a new trial, during the pendency of which the presiding judge died, and it came on to be heard before the Chief Justice, by whom it was denied. At the hearing, the defendant asked the Chief Justice to rule, that the verdict should be set aside and a new trial ordered, because of the death of the judge before whom the case had been tried. The refusal to give this ruling, presents the question raised by the second exception. It is the defendant's argument, that

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only the judge who presided could act, and that his decease operated as an allowance of the motion. But while the defendant had asked for a review of the trial, and the judge to whom he applied was prevented by death from taking judicial action, the tribunal of which he was a member survived. The discretionary power of the court had been invoked, and if the great advantage which the parties would have derived from being heard by the judge who presided at the trial had been irretrievably lost, yet the defendant did not withdraw his motion, and, until it had been disposed of, the plaintiff could not obtain judgment. In this situation it was open to either party to make application for a hearing to the court whose members severally were clothed with the same powers, and who possessed the absolute right to hear and determine all matters which remained undecided in the case. It was, therefore, within their discretion, as it had been in his, either to grant or to refuse a second trial. Wamesit Power Co. v. Lowell & Andover Railroad, 130 Mass. 455, 457. People v. McConnell, 155 Ill. 192. Life & Fire Int. Co. v. Wilson, 8 Pet. 291, 303.

Exceptions overruled.

E. J. Parker, for the defendant.

J. D. Mackey, for the plaintiff, was not called upon.