« ForrigeFortsett »
as settled that a tenant cannot recover that ground alone in this action, for it does against his landlord for personal injuries oc not appear but that the gutter remained in casioned by the defective condition of the as good condition as when it was let. Moynipremises let, unless the landlord agrees to han v. Allyn, 162 Mass. 270, 38 N. E. 497; repair, makes the repairs, and is negligent Quinn v. Perham, 151 Mass. 162, 23 N. E. 735. in making them.” Lathrop, J. in Galvin v. As there must be a new trial, we have Beals, 187 Mass. 250, 252, 72 N. E. 969, and passed upon all the questions raised by the cases there cited. If these facts are estab exceptions which seem likely hereafter to be lished, the plaintiff's rights to maintain this material. Tully v. Fitchburg R. R., 134 Mass. action would be measured by those of her 499, 505. mother the tenant. Jordan v. Sullivan, 181 Exceptions sustained. Mass. 348, 63 N. E. 909; O'Malley v. TwentyFive Associates, 178 Mass. 555, 60 N. E. 387; Roche v. Sawyer, 176 Mass. 71, 57 N. E. 216.
(191 Mass. 439) The only evidence that these repairs, if
COMMONWEALTH v. SHERMAN. made by the defendants' agent, were made
(Supreme Judicial Court of Massachusetts. negligently was some testimony introduced
Worcester. May 14, 1906.) by the plaintiff that after they had been
1. HIGHWAYS— AUTOMOBILES SPEED OFcompleted the leak continued in the same
FENSES-OWNERSHIP_EVIDENCE. manner and to the same extent as before. The fact that an automobile in which deDoubtless the jury might have inferred from fendant was riding at the time he was charged the testimony that no repairs were in fact
with operating it at an excessive rate of speed
was registered with the Massachusetts highway made upon the gutter, but this was not the
commission by defendant, and in his own name, only possible inference. We are of opinion warranted a finding that he was the general that if the jury found that such repairs were owner thereof, or that he had such a special made, they might then find that the work
property in it as to give him control thereof,
under St. 1903, p. 507, c. 473, as amended by done was ineffectual to stop the leak at all,
St. 1905, p. 228, c. 311, § 2, regulating automoand in view of the apparently simple charac biles, and requiring that they shall be registered ter of what was needed to be done might
"by the owner or person in control thereof." have inferred from this that the work was
2. CRIMINAL LAW-AUTOMOBILES-EXCESSIVE
DRIVING NATURE OF OFFENSE — MISDEnegligently done; that the carpenter who had
MEANOR. been sent to make repairs upon the roof and The offense of driving an automobile at gutter did his work so negligently as not an excessive rate of speed not being punishable to stop the leak but to leave it as bad as
by imprisonment in the state prison but by a
fine, as provided by St. 1903, p. 510, c. 473, § 9, before. They might have inferred from the
as amended by St. 1905, p. 231, c. 311, § 5, is a fact that the leak was as bad as before that misdemeanor, and not a felony, as provided by the work was improperly done. Accordingly, Rev. Laws, č. 215, § 1. for the reason that the jury might have found
[Ed. Note.-For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 31.] for the plaintiff upon this ground, if, as we think they might have done, they found that
3. SAME-DEGREES OF OFFENSE-MISDEMEAN
ORS-PRINCIPALS AND ACCESSORIES. she herself was in the exercise of due care, In misdemeanors there are no degrees of the plaintiff's exceptions must be sustained. the offense; but all who participate in the com3. There was no evidence that the defend
mission thereof are principals, and may be
prosecuted as such, ants retained control of the roof and gutter;
[Ed. Note.—For cases in point, see vol. 14, but the plaintiff asked one witness whether
Cent. Dig. Criminal Law, $ 74.] in houses which are let as this one was
4. HIGHWAYS-ILLEGAL USE-AUTOMOBILES“there is any known and established usage EXCESSIVE SPEED-PRIMA FACIE CASE. or custom in Boston as to who shall retain In a prosecution for operating an automocontrol of the outside, yard, roof of the
bile at an excessive rate of speed, proof that
the machine, which was registered with the houses," and saved an exception to the ex
Massachusetts highway commission by defendclusion of this question. The parties have ant in his own name, was being run by the treated the question as if a formal offer had operator at an illegal speed while defendant
was in the tonneau, established prima facie that been made to prove a custom by which in
defendant, having power to control the machine, such cases the landlord retains control of
either knew or allowed it to be illegally run, and the outside, including roof and gutters. But was therefore guilty. we think that the evidence was plainly in 5. SAME-SPEED OF AUTOMOBILES-REGULAadmissible. It contradicts both the agree
Where, in a prosecution for operating an ment of the parties and the rule of the law.
automobile at a speed in excess of that preSuch a custom would be a bad one. Bor scribed by the by-laws of a town, it was agreed uszweski v. Middlesex Mutual Assur. Co., 186 that such by-laws were “duly established,” such Mass. 589, 72 N. E. 250; Menage v. Rosen
stipulation admitted that the by-laws were ad
vertised and posted as provided by St. 1905, p. thal, 175 Mass. 358, 56 N. E. 579; Benson v. 289, c. 366, § 1, and that they were made as Gray, 154 Mass. 391, 28 N. E. 275, 13 L. authorized by such act, and that the place coverR. A. 262; Hedden v. Roberts, 134 Mass. 38,
ed by them was within the thickly settled part
of the town, 45 Am. Rep. 276. Com. v. Cooper, 130 Mass. 285. Moreover, if it were shown that the Exceptions from Superior Court, Worcester defendants did retain control of the roof and County; John C. Crosby, Judge. gutter, yet they could not be held liable upon Roland H. Sherman was convicted of driving
an automobile on a public highway, at a | it). In our opinion those facts warranted rate of speed exceeding 12 miles an hour, the inference that the owner knew and aland he brings exceptions. It was agreed
It was agreed lowed his machine to be illegally run. The that the automobile in question was register case so made out is a prima facie case only. ed at the time with the Massachusetts high It may be contradicted or explained. But way commission by defendant, and in his urcontradicted and unexplained it does. in name; that defendant was in the automobile our opinion, warrant that inference and so at the time and place alleged in the com makes out a prima facie case. plaint; that it was going at a speed in .ex The agreed fact that the by-laws were cess of 12 miles per hour, and that 12 miles “duly established" admits that the by-laws per hour was the maximum speed at which were advertised and posted in compliance automobiles were allowed to go in Leicester with St. 1905, p. 289, c. 366, § 1, and that by the duly established by-laws of that town, they were made under that act (St. 1905, p. and that defendant, at the time the auto 289, c. 366); also that the place covered by mobile was being driven in excess of 12 them was within the thickly settled part miles an hour, was one of five people in of the town in question. In short, it is the vehicle; that he was not operating or an admission that they were of legal effect. driving it himself, but was seated in the Exceptions overruled. tonneau. On these facts, defendant requested the court to rule that he could not be convicted, and defendant having excepted to
(191 Mass. 461) the court's refusal so to rule, the jury re
ANDREWS v. TUTTLE-SMITH CO. et al. turned a verdict of guilty. Exceptions over (Supreme Judicial Court of Massachusetts. ruled.
Suffolk. May 15, 1906.) Geo. S. Taft, Dist. Atty., and Walter P.
1. ASSIGNMENT FOR BENEFIT OF CREDITORS
ENFORCEMENT OF TRUST. Hall, Asst. Dist. Atty., for the Common
At common law a voluntary assignment wealth. Chas. C. Johnson, for defendant, for the benefit of creditors accepted by the as
signee establishes a trust, the enforcement of LORING, J. In the opinion of a majority which may be compelled in equity by a creditor of the court these exceptions must be over
or the assignor. ruled. The fact that the automobile was
[Ed. Note.-For cases in point, see vol. 4,
Cent. Dig. Assignments for Benefit of Creditors, registered with the Massachusetts highway 88 850-852.] commission by the defendant, and in his
2. SAME--ACCOUNTING BY ASSIGNEE-PARTIES own name, warranted a finding that he was ENTITLED TO ACCOUNTING. the general owner of it or that he had a
Either a creditor or the assignor may despecial property therein which gave him con
mand an accounting by the assignee. trol thereof. Section 1, St. 1903, p. 507, C.
[Ed. Note.-For cases in point, see vol. 4,
Cent. Dig. Assignments for Benefit of Creditors, 473, amended by St. 1905, p. 228, c. 311, § 2, $$ 1105-1109.] requires that automobiles shall be registered 3. SAME -- ACTIONS - FRAUDULENT
- FRAUDULENT ADMINISby the owner or person in control thereof. TRATION.
If the defendant is guilty here he is guilty Under Rev. Laws, c. 173, § 4, an assignee not as owner but because the evidence war
of the interests of creditors under an assign
ment for the benefit of creditors and of the ranted the jury in finding as a fact that he residuary interest of the assignor may sue in participated in the machine's being run at his own name to enforce liability for frauduan illegal speed.
lent administration of the trust. The offense with which he stands charged
4. SAME-ACCOUNTING BY ASSIGNEE.
The right of creditors or of the assignor is a misdemeanor and not a felony. Not be
to an accounting by the assignee does not deing punishable by imprisonment in the State pend upon maladministration, but the crediprison (St. 1905, p. 231, c. 311, § 5, amending tors and assignor are entitled to an account. St. 1903, p. 510, c. 473, § 9), it is a misde
ing at reasonable periods. meanor. Rev. Laws, c. 215, § 1.
[Ed. Note.--For cases in point, see vol. 4,
Cent. Dig. Assignments for Benefit of Creditors, If it be material here, it is settled that
$$ 1105–1109.] in misdemeanors there are no degrees, but
5. SAME-MALADMINISTRATION-LIABILITY OF that all who participate in the commission Co-ASSIGNEES. of the offense are principals, and may be Where there are a number of assignees charged as such. Com. v. Macomber, 3 Mass.
one of whom is guilty of maladministration
without participation by the others, he alone 254; Com. v. Frost, 5 Mass. 53; Com. v. Drew,
may be charged with the loss, though the un3 Cush, 279; Com. v. Wallace, 108 Mass. 12. faithful act appears in a joint accounting or is
The question therefore comes down to this: shown by extrinsic evidence when the account Did the commonwealth make out a prima
is presented. facie case of participation by the defendant
[Ed. Note.-For cases in point, see vol. 4,
Cent. Dig. Assignments for Benefit of Creditors, in the machine in question being run at an $ 1113.] illegal speed, by showing that the machine
6. SAME-ACTION BY CREDITORS-PARTIES. was being run by the operator at an illegal Though some of the assignees charged with speed while the defendant was in the ton misconduct may have been unfaithful in difneau? (who was either the general owner
ferent ways, or for some of the alleged fraudu
lent acts all may not be responsible, they are of the machine or had such a special prop
all properly joined in a bill to enforce liability erty in it as gave him the right to control for maladministration,
Where one creditor of a debtor, who has made an assignment for the benefit of creditors, receives an unlawful preference in a bill by another creditor to enforce liability for fraudulent administration, the joinder of the creditor receiving the preference does not render the bill multifarious. 8. SAME-BILL-SUFFICIENCY.
In a suit by creditors of one who had made an assignment for the benefit of creditors to enforce liability for fraudulent administration of the trust, the bill alleged that there should have been equal dividends, but that a certain creditor with the concurrence of one of the assignees who at the time was the treasurer of such creditor received a sum of money and subsequently took over merchandise of great value in payment of its debt. Held, that the allegation sufficiently charged a fraudulent conversion of assets. 9. SAME.
A bill to enforce liability for fraudulent administration of an assignment for the benefit of creditors alleged that the various unlawful transactions were had under the legal advice of an attorney who was made a defendant, and that such attorney received coincidentally with the assignors the entire personal property of the debtor, and in collusion joined with a certain creditor and other assignees in a fraudulent transfer to such creditor, and that the attorney retained a substantial balance in money due the creditors. Held, that the allegations showed the attorney liable to the estate. 10. SAME.
In order for creditors under an assignment for the benefit of creditors to obtain relief from fraudulent administration of the estate by the assignees in equity they must move promptly. 11. LIMITATION OF ACTIONS — TRUSTS - REPUDIATION.
Limitation does not begin to run in favor of a trustee under an express trust until a termination or repudiation thereof.
[Ed. Note.--For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, 88 506-510.]
Case reserved from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.
Bill by one Andrews against the TuttleSmith Company and others to enforce a liability for fraudulent administration of a trust. Case reserved for full court on demurrers to the bill. Demurrers overruled.
Jesse C. Ivy, for plaintiff. Chas. S. Ensign, Jr., G. Putnam, J. L. Putnam, and W. A. Knowlton, for defendants.
Smith Company, the assignees who accepted the trust were vested with the title to all is corporate property, which they were to marshal and administer for the benefit of such creditors as should accept in writing their provisions. While the bill alleges that the second was made in substitution for the first there was but one trust created by both assignments, although one of the assignees named in the second instrument is omitted from the first. By mesne conveyances the plaintiff has acquired all the title and interest of the creditors, who also are alleged to have duly become parties as required, as well as the residuary interest of the corporation, and therefore he is clothed with the right of each to demand and receive from the defendant assignees a full accounting. If by the established procedure of a court of equity such a bill cannot be maintained unless brought in the name of his vendors or assignors yet by Rev. Laws, c. 173, § 4, the right to sue in his own name has been unrestrictedly conferred. Walker V. Brooks, 123 Mass. 241; Gilman v. Producer's Controlling Co., 180 Mass. 319, 62 N. E. 267. Upon referring to the allegations of the bill in substance they set forth the creation of the trust, its acceptance by all of the assignees, their unfaithful administration, either jointly or severally, . in permitting a large portion of the assigned property to be wrongfully appropriated by the Hood Rubber Company, one of the creditors, and the retention of a balance in their possession for which they refuse either to account, or to distribute under the terms of the assignments. An accounting, however, properly may be demanded, and an account must be rendered, even if these allegations had been omitted, as this right does not rest upon maladministration, but is based upon the ground that the beneficiaries, which here are composed of creditors, and the debtors are entitled at reasonable periods to be accurately informed as to the administration and disposition of the trust estate. Walker v. Symonds, 3 Swanst. 44, 58; Hardwicke v. Vernon, 14 Ves. Jr. 505, 510; Maverick Congregational Society v. Lovejoy, 6 Allen, 183, 189; Howe v. Morse, 174 Mass. 491, 55 N. E. 213. Ordinarily this is furnished by an interlocutory or final account, showing in detail the marshaling and distribution of the property. Hayes v. Hall, 188 Mass. 510, 74 N. E. 935. If there are a number of trustees, of whom one has failed in his duty without participation by his co-trustees, in the delinquency, he alone may be chargeable with the loss, although the unfaithful act may appear either in the joint accounting, or be shown by extrinsic evidence when the account is presented for settlement and allowance. Hayes v. Hall, 188 Mass., at page 514, 74 N. E., at page 936, and authorities cited. The alleged wrongful act of Hood as an assignee in joining with the Hood Rubber Company in an illegitimate diversion of the property if not participated
BRALEY, J. At common law a voluntary assignment by a debtor of his property for the benefit of creditors when accepted by the assignee establishes a trust, the enforcement of which may be compelled in equity by a creditor or the assignor, either of whom also may demand and is entitled to an accounting by the assignee of his administration of the assets. New England Bank v. Lewis, 8 Pick. 113, 118; Pingree v. Comstock, 18 Pick. 46; Noyes y. West, 3 Cush. 423; Bouve v. Cottle, 143 Mass. 310, 9 N. E. 654; Hudson v. J. B. Parker Machine Co., 173 Mass. 242, 53 N. E. 867; Cook v. Sawyer, 188 Mass. 163, 165, 74 N. E. 356. By assignments duly executed, and delivered by the defendant, the Tuttle
in by either of his associates, would alone ed as provided in the assignments. Such an render him accountable for any loss suffered arrangement perpetrated a fraud upon the by the creditors, or the debtor, but a separate other creditors equally as gross, as if the bill for this purpose would be unnecessary, debtor had procured their written assent, as an accounting for this disbursement falls after first obtaining the signature of this dein with, and forms a part of the whole scheme fendant under an agreement, that the asof winding up, and of distribution alleged to signees subsequently would make the payment have been adopted. That the assignees who in money, and the transfer of merchandise, are charged with misconduct may have been which they are alleged to have done, and unfaithful in different ways, or that for some comes within the principle of Partridge v. of the alleged fraudulent acts all may not be Messer, 14 Gray, 180, 181. In such a case if responsible does not render the investigation the debtor himself had furnished the conof their independent conduct so complicated sideration he could have recovered it back, that distinct and irrelevant issues must be and so here as the value of the property contried to the confusion of the principal inquiry, verted whether consisting of money or chatand at great expense or inconvenience to the tels might be recovered by the assignees, the several parties. Cadigan v. Brown, 120 Mass. plaintiff may compel restitution in the pres493, 495; Sanborn v. Dwinell, 135 Mass. 236. ent suit. Trull v. Trull, ubi supra. There is but one inquiry, namely, the proper During their incumbency, and in the variadministration of the estate, in which all ous unlawful transactions described in the have participated, and the advantage which a bill, the assignees are alleged to have acted court of equity has in such an investigation under the legal advice of the defendant over a court of law is that multiplicity of Knowlton. An allegation of this nature with suits can be prevented, and the liability of nothing further would be insufficient to make each defendant, who is connected with and in an attorney at law responsible to third parties volved in the principal inquiry may be ad for the fraudulent acts of his clients, who justed by appropriate decree or decrees in the merely consulted him as to the law applicasame suit, and the joinder of all participat ble to an intended course of action. Hoosac ing parties thus becomes necessary for the Tunnel Dock & Elevator Co. v. O'Brien, 137 purpose of affording complete relief. Bliss Mass. 424, 427, 50 Am. Rep. 323. The plainv. Parks, 175 Mass. 539, 543, 56 N. E. 566; Lenz tiff, however, further avers that the defendv. Prescott, 144 Mass. 505, 11 N. E. 923; ant actually received coincidently with the Dunphy v. Traveller Newspaper Ass'n, 146 assignees the entire assets of the debtor so Mass. 495, 499, 16 N. E. 426; Von Arnim v. far as it consisted of personal property, and American Tube Works, 188 Mass. 515, 520, actively and in collusion joined with Hood 74 N. E. 680. It is true that if a creditor and his associates in the payment and transhas received an unlawful payment the as fer to the Hood Rubber Company, and also signee, or assignees, who either directly or has received and now retains a substantial knowingly permitted such a misappropria balance in money due to the creditors, and tion would be chargeable with the amount, hence to the plaintiff, which he not only holds and then must look to the creditor for reim
jointly with them, but also likewise refuses bursement, yet there is no practical difficulty to account for or to pay over. By his dein making such a creditor a party to a bill murrer he admits these allegations to be which while seeking to charge the assignees true, and therefore comes within the principle also seeks reimbursement from the debtor, so that persons who participate in the frauduthat if the spoilation is established, and the lent conversion of property in their possescreditor is liable to restore the property, or sion, knowing at the time that it has been deits value, both purposes can be accomplished livered upon a trust, or holding trust funds in one suit, thus preventing circuity of ac for which they refuse to account, are action, and accordingly the joinder of the Hood countable in equity in each instance to those Rubber Company as a party defendant does for whose benefit the estate or fund should not render the bill multifarious. Ward v. have been administered, and may be joined Lewis, 4 Pick. 518; New England Bank v. with others similarly liable where such misLewis, ubi supra; Bliss v. Parks, ubi supra ; appropriation and misconduct consists of a Trull v. Trull, 13 Allen, 407; Loring v. Bro series of wrongful acts in which all have die, 134 Mass. 453. The allegation as to taken part although perhaps in unequal de this defendant is that under assignments gree. Le Breton v. Pierce, 2 Allen, 8, 12; which conferred equal participation by way Chesterfield Mfg. Co. v. Dehon, 5 Pick, 7, 10, of dividends upon all assenting creditors, the 16 Am. Dec. 367; Otis v. Otis, 167 Mass. corporation, being such creditor, with the con 245, 247, 45 N. E. 737. If with knowledge of currence of one of the assignees, who at the this misconduct by the several participants, time also was its treasurer, received a large or with such indifference to their rights as money payment, and subsequently with the to permit superior equities to intervene, the assent of the other assignees took over mer creditors and their debtor, in whose place the chandise of great value in payment of its debt. plaintiff stands, failed to move promptly in These averments sufficiently charged a fraud- the assertion of their respective rights either ulent conversion of assets in which it partici or both might have been barred by the time pated that should have been ratably distribut elapsing since the alleged unlawful acts tran
spired, but the bill was brought well within BRALEY, J. By Pub. St. c. 191, 81, unthe general statute of limitations relating to der which the certificate of lien was filed, the commencement of actions at law, as well and the proceedings for its enforcement beas within the general rule of practice en gun, it was provided that any person to forced by a court of equity which always re whom a debt is due "for labor performed or quires the exercise of reasonable diligence by furnished
in the erection plaintiffs if they are to obtain relief. Cook of a building
upon land by reason v. Sawyer, ubi supra; Sunter V. Sunter
of an agreement with or by the consent of (Mass.) 77 N. E. 497. Besides, this defense is the owner of such building
* unavailing when interposed by the assignees,
a person having authority from, or rightas these demurrers were trustees under an
fully acting for such owner," shall have a express trust, which is alleged neither to
lien upon the building and the interest of have been repudiated, or terminated, and un the owner in the land for labor performed til one or the other event occurred the statute and furnished. To create a valid lien for of limitations did not begin to run in their labor, therefore, it is not obligatory that favor. Potter v. Kimball, 186 Mass. 120, 71 the work shall be manually performed by N. E. 308.
the petitioner, but the statute is satisfied, From this examination of the frame of the
and it is sufficient if the labor has been furbill it follows that as a case is stated for
nished by him in the sense that the work has equitable relief against the defendants, who
been done by his employés. Monaghan v. have demurred, and the suit having been sea
Goddard, 173 Mass. 468, 53 N. E. 895; Scansonably instituted, their demurrers are not
nell v. Hub Brewing Co., 178 Mass. 288, 59 well taken, and must be overruled.
N. E. 628. It, indeed, was held in Parker Decree accordingly.
v. Bell, 7 Gray, 429, upon which the respondent relies for a contrary doctrine, that a lien
could be established only in favor of the (191 Mass. 458)
person actually performing the work, but WERA V. BOWERMAN.
that decision was made under St. 1855, p. (Supreme Judicial Court of Massachusetts.
826, C. 431, § 1, by which a lien for labor Berkshire. May 15, 1906.)
was thus restricted. But by Gen. St. 1860, C. 1. MECHANICS' LIENS-RIGHT TO LIEN-PER
150, $ 1, re-enacted in Pub. St. 1882, c. 191, FORMANCE OF LABOR-STATUTES. Pub. St. c. 191, § 1, provides for a me
§ 1, this right was extended to include labor chanic's lien for labor performed or furnished furnished as well as performed. See Getfor the erection of a building on land by reason schell v. Moran, 124 Mass. 404, 408. of an agreement, with or by the consent of the owner of such building or of a person hav
For the purpose of the hearing of a motion ing authority from or rightfully acting for such filed by the petitioner to have issues framed owner. Held, to create a valid lien under such
for a jury, the parties agreed upon certain section, it was not necessary that the work should be manually performed by the petitioner,
facts, among which was the statement that but that the statute was satisfied if the labor
"petitioner himself did no labor upon the was "furnished” by him in the sense that it was building within thirty days prior to the filing performed by his employés.
of the lien,” and upon this motion being [Ed. Note.—For cases in point, see vol. 34,
overruled the case then went to trial before Cent. Dig. Mechanics' Liens, SS 43, 119.]
the court upon the merits. To establish his 2. SAME-EVIDENCE. On a petition to enforce a mechanic's lien,
lien the petitioner then offered to prove in evidence that petitioner had furnished labor on addition to the agreed facts that he had furrespondent's building according to a contract nished labor on the respondent's building acalleged, and within the time prescribed by statute had filed his certificate of lien, and that
cording to the contract as set forth in the the labor had been furnished with the knowl
first item of his account, and within the time edge and consent of repondent, was admissible, prescribed by the statute had duly filed his notwithstanding it was agreed that petitioner
certificate of lien, and that the labor had been himself did no labor on the building within 30 days prior to the filing of the lien.
furnished with the knowledge and consent
of the respondent, but the evidence was exExceptions from Superior Court, Berkshire cluded, and the petitioner apparently was County; Elisha B. Maynard, Judge.
confined to the agreed statement of facts. Petition by Louis N. Wera against Samuel This evidence, however, was competent, and W. Bowerman to enforce a mechanic's lien,
when taken in connection with the agreed claimed by petitioner for work and labor
facts would have been ample to sustain the performed and furnished in the erection of petition. Scannell v. Hub Brewing Co., ubi the Hotel Wendell, on the premises described
supra; Vickery v. Richardson, 189 Mass. 53, in the petition, in Pittsfield. It was agreed
75 N. E. 136. The court thereupon ruled that the petitioner did no labor on the
that the petition could not be maintained building himself within 30 days prior to the "because the petitioner had not performed filing of the lien, whereupon the court ruled
any labor personally within said 30 days, that petitioner was not en'itled to a lien,
and that the petitioner has no lien for labor and he brings exceptions. Sustained.
furnished by him, and done by his servants Geo. A. Prediger, for petitioner. E. T. or employés within 30 days prior to the time Slocum and E. M. Wood, for deiendant. of the filing of his lien." Plainly this ruling