the order. An appeal to the Appellate Court, ward be superseded by the answer. That defor the First District was allowed, and Coop- cision was indorsed in Harding v. American er was admitted to bail and perfected the Glucose Co., 182 Ill. 551, 55 N. E. 577, 64 appeal. The Appellate Court affirmed the L. R. A. 738, 74 Am. St. Rep. 189, where it judgment and granted a certificate of impor- was again said that a complainant has a tance and an appeal to this court. right, before issue joined, to take depositions to substantiate the averments of his bill.

[1] Section 24 of the act in regard to evidence and depositions in civil cases provides [2] While it is admitted that a complainant that, when the testimony of any witness re- may take depositions, if he can, before issue siding or being within the state shall be nec- is joined, it is argued that he can only do so essary in any suit in chancery in this state, with the consent or concurrence of the witthe party wishing to use the same may cause ness, who may voluntarily appear or refuse the deposition of such witness to be taken to do so, at his option. The argument that before any judge, justice of the peace, clerk depositions can only be taken before issue of a court, master in chancery, or notary joined with the consent of the witness is public without a commission or filing inter- based on the decisions of Puterbaugh v. rogatories for such purpose, by giving the Smith, 131 Ill. 199, 23 N. E. 428, 19 Am. St. adverse party or his attorney the notice Rep. 30, and McIntyre v. People, 227 Ill. 26, therein prescribed. It is not denied that dep- 81 N. E. 33, which give no support to the ositions of witnesses may be taken in a claim. What was decided in those cases was chancery suit before answer is filed or issue that a court can only punish for contempt formed, and that depositions so taken are for disobedience of its own authority, and not competent evidence on the hearing. That for disobedience of a notary public, and question was determined in Doyle v. Wiley, therefore that portion of section 36 of the 15 Ill. 576, and that decision has never been act above referred to purporting to authordeparted from. Depositions had been taken ize the circuit court or a circuit judge in in a former suit between the same parties vacation to punish in a summary manner a which had been dismissed, involving the person who refuses to obey the subpoena of a same subject-matter, and they were admitted notary public is unconstitutional, as depriving in evidence by the circuit court. The deposi-a party of the right to a trial by jury. In tions were taken before any issue was formed Puterbaugh v. Smith, supra, the appellant or answer filed in the first suit, but were taken was subpoenaed by a notary public to give his on notice to the defendant. The question was deposition in a case pending before a court whether the depositions were lawfully taken in Kansas and was imprisoned by a judge of before there was any issue to which they the circuit court for disobeying the notary could apply, and it was claimed that, as there public. This court affirmed the power of was nothing yet to prove, the depositions were every court to enforce its authority in the adirrelevant. The court said that depositions ministration of justice between litigants, but de bene esse had always been known to the held that a proceeding by contempt to encourts of chancery in England, and it was force the authority of a jurisdiction different never heard that they should be treated as from that of the court enforcing it was not irrelevant, or that perjury could not be as- only unknown to common law, but that the signed on them because there was no issue court in which a contempt is committed or formed in the suit, and that, while by the whose authority is denied is the only court English chancery practice such depositions having power to punish. The court said that could not be taken without a special order Puterbaugh acted in contempt of the authorof the court, our statute above referred to ity of the notary public, but did not act in had changed the practice, and allowed a contempt of the circuit court or the judge, to party to take his depositions without any whom he owed no duty. In McIntyre v. leave or order of the court. The court con- People, supra, notice was given in a chansidered the question whether the statute dis- cery proceeding to take the deposition of the pensed with an order for taking depositions appellant before a notary public. A subin all cases, or whether the order was still poena of the notary was served on the appelrequired for taking depositions de bene esse lant, and he failed to appear, and the court, before issue formed, and the court said that on proof of such facts, found the appellant the statute was certainly designed to super- guilty and imposed a fine. This court said sede the necessity for getting an order of that the court had adjudged appellant guilty the court for taking all depositions, and there of contempt, not for any act he had done in could be no good reason for saying that it contravention of the judicial authority of the was the intention of the Legislature to dis- court, since no order of the court had been pense with the order in one case and not in made for the taking of the deposition, but another. It was held that, when a party there had been merely a disobedience of the files a bill, the statute authorizes him to take subpoena of the notary public. Under these depositions to prove its averments, that such decisions there must be an order of the court testimony is necessary, and that a complain- for taking the deposition, and a disobedience ant only takes the risk of having the costs of that order, to enable the court to punish to pay if the existing necessity should after- for contempt, and the fact that a court cannot

punish for contempt of its authority an act [ concerning some matter which he conceives merely in disobedience of the command of a notary public is of no importance.

to be improper, he may refuse to answer, and in such a case the master may report to the court, and the court rules upon the question. There is no difference, in the respect suggested, between the taking of a deposition before or after issue formed, and there is no greater liability to any abuse arising from the privilege of proving the facts alleged in the bill before issue formed than there is afterward. The court had power to make the order.

[5] The power to punish for contempt is inherent in every court of justice, and necessarily includes all acts calculated to impede, embarrass, or obstruct the court in the due administration of justice, and the power is independent of statutory provisions. Clark v. People, Breese, 340, 12 Am. Dec. 177; Stuart v. People, 3 Scam. 395; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; People v. Seymour, 272 Ill. 295, 111 N. E. 1008. The judgment of the Appellate Court is affirmed. Judgment affirmed.

(225 Mass. 151)

HALL V. HENRY THAYER & CO.
HILL v. SAME.

(Supreme Judicial Court of Massachusetts.
Middlesex. Sept. 13, 1916.)

1. APPEAL AND ERROR 916(3) PRESUMP TION-PLEADING.

[3, 4] The material question in this case, therefore, is whether the circuit court had power to make the order. Under the English chancery practice, unaffected by any statute, no deposition could be taken, either de bene esse or after issue joined, without a special order of the court for that purpose. Testimony was taken by written questions put to witnesses by an officer of the court or some person duly authorized, and the practice of taking oral testimony in open court upon a hearing was unknown, except for making formal proof of exhibits to the bill or answer, and in this state, under our statute, where the court, for want of plea or answer, might render a decree pro confesso against the defendant. McClay v. Norris, 4 Gilman, 370. It was not until the act of 1849 that oral testimony was permitted on the hearing of contested cases. Necessarily courts of chancery have always had power to compel the attendance of witnesses for the purpose of taking depositions, and the power is inherent in courts of equity to enable them to perform their functions. 13 Cyc. 834. Our statute gives a complainant a right to take depositions to prove the averments of his bill before issue formed, and it cannot be supposed that the Legislature intended that he must procure the consent of the witness, and did not intend to confer upon him any right, but really to confer upon the witness the privilege to determine whether the complainant could prove his bill or not. Necessarily, if complainant has the right, there must be power in the court to enforce the right, and there is no ground for distinction, in the exercise of the power between a case where testimony is necessary after issue is formed or before. To deny such power would render a court impotent and deny the power to secure testimony in any case or at any stage of any case. The statute permits the taking of depositions either before or after issue is formed, but, if a witness refuses to appear and testify, an order is necessary to enable the court to punish the witness for contempt, whether the deposition is taken before issue formed or upon a reference to the master after issue. It is argued that the court ought not to have power to make an order before the regular reference to the master, because the master would have no power to rule upon the admissibility of evidence, and the complainant might be examined, without any limitation, concerning his private business affairs. tracted to repair. That is equally true under a reference after issue is formed, and, while a master may refuse to put to a witness a question having no relation to the issue, he cannot compel an answer upon his ruling that the evidence is admissible. If a witness is interrogated

In an action for the death of plaintiff's intestate, killed while at work on defendant's water tank, which his employer had contracted to repair, where the declaration was not demurred to, it will be assumed, though not alleged, that the intestate left either a widow and children, or a widow and next of kin for whose sole benefit damages were given, under Rev. Laws, c. 171, § 2, for the death of one not in defendant's employment, caused by the negligence of a person or corporation.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3702; Dec. Dig. 916(3); Pleading, Cent. Dig. § 1375.] 2. MASTER AND SERVANT 351-WORKMEN'S COMPENSATION ACT-ACTION FOR DAMAGESELECTION.

Under Workmen's Compensation Act (St. 1911, c. 751, pt. 3, § 15, as amended by St. 1913, c. 448, § 1), providing that if death results from an injury for which some person other than the subscriber is liable, the employé may proceed against such person for damages, or against the association for compensation, but not against both, the widow of a deceased employé of a contractor, who was a subscriber to an association, after the insurer had been decreed to pay compensation for a period of 300 weeks, could not maintain an action for her own benefit, on the ground of the alleged negligence of the defendant, limita-whose water tank deceased's employer had con

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 351.]

389-INJURY-AC

3. MASTER AND SERVANT
TION BY INSURER-STATUTES.

Under the further provision of said section, enabling the association or insurer to sue a wrongdoer not a subscriber, either in the name

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of the employé or in its own name, and Rev. [ Claude L. Allen and Raymond T. Parke, Laws, c. 171, § 2, providing that actions for both of Boston, for plaintiffs. Sawyer, death shall be brought in the name of "executors or administrators of the deceased," the insurer may prosecute an action in the name of the widow and administratrix of a deceased employé for its own benefit; the better practice being to state in the writ that the action is brought in the name of the administratrix for the benefit of the insurer, though this is not necessary, as the defendant in any event would be protected from double liability.

In an action for the death of plaintiff's intestate. the employé of a contractor killed while [2-5] We assume from the report that the at work on defendant's water tank, the testimo-administratrices are respectively the widows ny of plaintiff's expert and of an expert machinist and contractor that the foundations of a tank were not originally "a good form of construction" was admissible.

of the deceased employees. It is also stated that the parties agreed that Shaw was a subscriber and the insurance company has been [Ed. Note.-For other cases, see Evidence, ordered under the Workmen's Compensation Cent. Dig. §§ 2317, 2318; Dec. Dig. 513(2).]| Act to pay compensation to the widow for 6. MASTER AND SERVANT 404-ACTION-EV-a period of three hundred weeks from the IDENCE-AWARD.

Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

action was brought in the name of the ad-
ministratrix for the benefit of the insurer,
but this was not necessary. The defendant
in any event would be fully protected from
double liability. Kelly v. Greany, 216 Mass.
296, 103 N. E. 779; St. Albans Granite Co.
v. Elwell & Co., 88 Vt. 479, 482, 92 Atl. 974.
The insurer being entitled to maintain the
actions in the names of the plaintiffs, we
come to the issue whether there was any evi-
dence for the jury of the defendant's negli-
gence. To recite the evidence in detail would
serve no useful purpose. The tank was sit-
uated on the roof of the defendant's build-
ing and the jury would have been warranted
in finding that the uprights supporting the
tank rested on brick piers, and that from the
vibration caused by operation of the de-
fendant's machinery and also from age and
exposure to the weather, the uprights and
struts or braces by which the uprights were
connected had become so corroded and weak-
ened as to cause the tank to sway in the
wind, whereby the structure had become
weakened. And that while the decedents
were at work adjusting and bolting on new
braces and struts, using proper appliances and
exercising ordinary care and mechanical skill,
the piers suddenly gave way, carrying in their
collapse part of the outer wall, the tank
plunged down and they were thrown to the
ground and killed. A further finding on the
testimony of the plaintiffs' expert and of
Shaw, a machinist and contractor of experi-
ence, whose testimony was clearly admissible,
would have been justified, that the founda-
tions previously described were not original-
ly "a good form of construction" to support
a tank of its capacity, and that from the
lapse of time the structure had become un-
safe and dangerous when subjected to the
strain or leverage necessarily required in
making the repairs. Jellow v. Fore River
Ship Building Co., 201 Mass. 464, 466, 87 N.
E. 906; Hopperman v. Fore River Ship
Building Co., 214 Mass. 33, 100 N. E. 1023.
The jury also could have found further that
if the defendant, the owner of the building,
knowing that repairs were to be made, had
exercised reasonable diligence, these defec-
tive conditions upon proper investigation
could have been discovered, but in so far as
appears, without making any examination or
taking any preliminary precautions, it invit-
ed the decedents even if they were the em-
ployees of an independent contractor to come
upon the premises, where as the result shows
the jury could find they were exposed to dan-
gers which to them were not obvious or ap-defense, is not to be commended.
parent upon reasonable observation. It is set-
tled that under such circumstances the owner
of the premises can be held responsible in
damages. Carleton v. Franconia Iron & Steel
Co., 99 Mass. 216; Curtis v. Kiley, 153 Mass.
123, 26 N. E. 421; Wagner v. Boston Elev. Ry.,
188 Mass. 437, 439, 74 N. E. 919, and cases
cited; Garland v. Townsend, 217 Mass. 297,
300, 104 N. E. 731, and cases cited. It is also

plain that if the jury reached these conclu-
sions there was no contractual assumption of
risk and whether the intestates exercised due
care or voluntarily assumed the risk were
questions of fact. The case of Archer v. El-
dredge, 204 Mass. 325, 90 N. E. 525, is plain-
ly distinguishable.

[6] What has been said disposes of the defendant's exceptions to the conclusion of evidence of the amount of the awards, and to the admission of the opinion evidence introduced by the plaintiffs. It furthermore may be remarked, in connection with the defendant's offer of proof of the proceedings before the Industrial Accident Board, that it has failed to point out the relevancy of the award as affecting in an action of tort either the defendant's liability or the measure of damages.

[7] The answer of Shaw to the question "Did you consider from your experience as a machinist with this class of work that the old braces were unsafe?" "No, I didn't think that," not having harmed the defendant, need not be further considered. The remaining exceptions to the admission of evidence in so far as argued either fall within the same class of harmless error, if error there was, or the evidence was plainly competent on the question of the defendant's liability. The cases should have been submitted to the jury, and in accordance with the terms of the report judgment for the plaintiff in the stipulated amount is to be entered in each case. So ordered.

(225 Mass. 3) BROCKLEHURST & POTTER CO. v. MARSCH. READ et al. v. SAME. McLEAN v. SAME.

(Supreme Judicial Court of Massachusetts. Worcester. Sept. 14, 1916.)

1. ACTION 48(1) JOINDER OF COUNTS STATUTE.

Under Rev. Laws, c. 173, § 6, relating to joinder of counts for tort and on contract, on averment that they are the same cause of action the joinder of a count for damages for false and contract, and a count for money had and refraudulent representations, a count for breach of ceived by defendant to the plaintiff's use, all alleged to be for one and the same cause of action, was permissible.

[Ed. Note.-For other cases, see Action, Cent. Dig. 88 471, 490; Dec. Dig. 48(1); Contracts, Cent. Dig. § 1619.]

2. PLEADING
FENSE.

67-FORM-ANTICIPATING DE

Although not obnoxious to a demurrer, the pleading in an action at law, anticipating a

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 139; Dec. Dig. 67.] 3. FRAUD 47-ACTION FOR DAMAGES-SUFFICIENCY OF DECLARATION.

A count in tort, alleging that defendant was a general railroad contractor; that plaintiff had a subcontract; that the railroad, in violation of thereon; that thereupon plaintiff and defendant its contract with defendant, stopped all work entered into a written contract to adjust their rights; that plaintiff, in consideration of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

payment of a sum less than its pro rata share, | 9. DAMAGES 117-FRAUD released defendant from all liability on account URE-CONTRACT OR TORT.

59(1)—MEAS

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 285, 286, 288; Dec. Dig. 117.] 10. CONTRACTS 327(1)—ACTION FOR BREACH -CONDITION PRECEDENT-RETURN OF MONEY RECEIVED.

of work done by it; that defendant promised to The measure of damages to which the plainpresent to the railroad all claims for damages to tiff could be entitled, whether in tort or in conthe plaintiff and to himself, and to collect and ad-tract, upon defendant's false misrepresentation just them, and, if the railroad settled, to pay to as to the amount payable to plaintiff under a plaintiff its pro rata share of the amount recov- written contract was the same, and was the difered, after consideration of the work performed, ference between the amount actually received by including plant, etc.; that, if plaintiff and de- plaintiff and that to which it was entitled. fendant could not agree, final distribution should be made by three arbitrators, to be composed of defendant and two disinterested members, one appointed by a committee representing all the subcontractors, and the other to be appointed by defendant and the other arbitrator; and that defendant settled all claims with the railroad, and fraudulently represented to plaintiff that the net amount received by him was less than the amount actually received and that the expenses were greater than the actual expenses, whereby plaintiff was damaged-was good as against a demurrer, since the amount stipulated to be paid and the amount actually received by defendant and his expenses, etc., were ascertainable, and presented no difficulty to an assessment of dam

ages.

[Ed. Note.-For other cases, see Fraud, Cent.

Dig. 42; Dec. Dig. 47.]

4. ARBITRATION AND AWARD 9- PAYMENT

OF MONEY-CONDITION PRECEDENT.

In such contract the stipulation as to arbitration was not a condition precedent to a right to recover upon the contract, but was distinct and severable from the agreement to pay a pro rata share of the amount received by the defendant.

[Ed. Note.-For other cases, see Arbitration and Award, Cent. Dig. § 30; Dec. Dig. 9.] 5. ARBITRATION AND AWARD 27-QUALIFI

CATION OF ARBITRATORS-INTEREST.

Arbitration implies the exercise of the judicial function, and an arbitrator ought to be free from prejudice and able to maintain a fair attitude of mind toward the subject of the controversy; and it is contrary to natural right and fundamental principles of the common law for one to be an arbitrator to settle the amount of his own liability.

[Ed. Note.-For other cases, see Arbitration and Award, Cent. Dig. §§ 137-140; Dec. Dig. mm 27.]

7. ARBITRATION AND AWARD 9 CONDITION PRECEDENT-RIGHT OF ACTION.

Defendant, a party to a written contract to present and collect plaintiff's claims against a third party, together with other claims, and to pay over to plaintiff a pro rata share, could not contest his liability by reason of a failure of an arbitration provided by the contract, where his own wrongful acts had rendered the arbitration impossible.

The general rule is that, when one undertakes to avoid the effect of his contract, he must restore what he has received under it before he can bring any action; but such rule was not applicable in an action of tort for damages for false and fraudulent representations as to the amount payable to the plaintiff under the terms of a contract, where the amount paid to plaintiff on the contract was conceded to be due from the defendant, so that plaintiff was retaining only its own, whichever party might prevail.

Cent. Dig. 88 1563-1570; Dec. 'Dig.

[Ed. Note.-For other cases, see Contracts,

327(1).j

11. PLEADING 193(1) COMMON COUNT

BILL OF PARTICULARS.

that, if one of the common counts is used, the Under Rev. Laws, c. 173, § 12, declaring plaintiff shall file a bill of particulars with his writ when it is entered, and section 16, declaring that demurrer may be filed because the count does not state a legal cause of action, a common count for money had and received, without a bill of particulars, was bad on demurrer.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 425, 428, 430, 437, 443; Dec. Dig. 193(1).]

12. PLEADING 225(1)

MENT.

DEFECTS

AMEND

Such defect was purely formal, and leave to amend by filing a bill of particulars would ordinarily be allowed.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 575-578, 580-583; Dec. Dig. 225(1).]

13. ASSIGNMENTS 24(3)-RIGHT OF ACTION -DECEIT.

A right of action for damages arising out of representing the amount due under a written defendant's deceit in fraudulently and falsely contract was not assignable.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. § 46; Dec. Dig. 24(3).]

Report from Superior Court, Worcester County; John D. McLaughlin, Judge.

Three actions at law, by the Brocklehurst & Potter Company, by A. C. Read and others, and by William McLean, against John Marsch, reported by a judge of the superior court for the determination of the correctness of his orders overruling defendant's demurrers to the several declarations. In accordance with the terms of the report, demurrer in the Brocklehurst & Potter Company case and in the Read case overruled as to the first and second counts, and defendant required to answer as to such counts, and demurrer to third count sustained; and in the McLean case, demurrer sustained as to the first and third counts, and overruled to a second count, as [Ed. Note.-For other cases, see Arbitration to which the defendant must answer, and and Award, Cent.Dig. §§ 42-52; Dec.Dig. 9.] judgment to be entered for the defendant as

[Ed. Note.-For other cases, see Arbitration and Award, Cent. Dig. § 30; Dec. Dig. 9.] 8. ARBITRATION AND AWARD 9 MENT-BAR OF ACTION.

AGREE

A provision for arbitration as to the amount payable to the plaintiff under a written contract of the parties, not made the condition precedent to the plaintiff's right to sue, would not be sustained as a bar to an action.