The allegations in one count of the declaration were not conclusive evidence against the plaintiff upon the trial of the other. Gen. Sts. c. 129, § 72. Lyons v. Ward, 124 Mass. 364.
The effect of the auditor’s general finding as prima facie evidence might be overcome by the particular facts and the evidence stated in his report and warranting a different conclusion. Commonwealth v. Cambridge, 4 Met. 35. Taunton Iron Co. v. Richmond, 8 Met. 434, 436. Peru Co. v. Whipple Manuf. Co. 109 Mass. 464, 466.
The admission of the questions put upon cross-examination was within the discretion of the presiding judge, and not a subject of exception. In the courts of this Commonwealth, a witness, called by one party for any purpose, may be cross-examined by the other party upon the whole case. Moody v. Rowell, 17 Pick. 490. Beal v. Nichols, 2 Gray, 262.
The defendant’s counsel was not heard upon the motion for double costs, because, under the Gen. Sts. c. 112, § 13, and the similar provision of the Rev. Sts. c. 81, § 31, authorizing this court to award double costs “ if it appears that the exceptions are frivolous, immaterial, or intended for delay,” the question whether that fact appears has always been determined by the court from the bill of exceptions, without other evidence, or argument by either party.
In the present case, the exceptions appear to the court to be frivolous, and are therefore
Overruled, with double costs.