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as settled that a tenant cannot recover against his landlord for personal injuries occasioned by the defective condition of the premises let, unless the landlord agrees to repair, makes the repairs, and is negligent in making them." Lathrop, J. in Galvin v. Beals, 187 Mass. 250, 252, 72 N. E. 969, and cases there cited. If these facts are established, the plaintiff's rights to maintain this action would be measured by those of her mother the tenant. Jordan v. Sullivan, 181 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.

The only evidence that these repairs, if made by the defendants' agent, were made negligently was some testimony introduced by the plaintiff that after they had been completed the leak continued in the same manner and to the same extent as before. Doubtless the jury might have inferred from the testimony that no repairs were in fact made upon the gutter, but this was not the only possible inference. We are of opinion that if the jury found that such repairs were made, they might then find that the work done was ineffectual to stop the leak at all, and in view of the apparently simple character of what was needed to be done might have inferred from this that the work was negligently done; that the carpenter who had been sent to make repairs upon the roof and gutter did his work so negligently as not to stop the leak but to leave it as bad as before. They might have inferred from the fact that the leak was as bad as before that the work was improperly done. Accordingly, for the reason that the jury might have found for the plaintiff upon this ground, if, as we think they might have done, they found that she herself was in the exercise of due care, the plaintiff's exceptions must be sustained.

3. There was no evidence that the defendants retained control of the roof and gutter; but the plaintiff asked one witness whether in houses which are let as this one was "there is any known and established usage or custom in Boston as to who shall retain control of the outside, yard, roof of the houses," and saved an exception to the exclusion of this question. The parties have treated the question as if a formal offer had been made to prove a custom by which in such cases the landlord retains control of the outside, including roof and gutters. But we think that the evidence was plainly inadmissible. It contradicts both the agreement of the parties and the rule of the law. Such a custom would be a bad one. Boruszweski v. Middlesex Mutual Assur. Co., 186 Mass. 589, 72 N. E. 250; Menage v. Rosenthal, 175 Mass. 358, 56 N. E. 579; Benson v. Gray, 154 Mass. 391, 28 N. E. 275, 13 L. R. A. 262; Hedden v. Roberts, 134 Mass. 38, 45 Am. Rep. 276. Com. v. Cooper, 130 Mass. 285. Moreover, if it were shown that the defendants did retain control of the roof and gutter, yet they could not be held liable upon

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The fact that an automobile in which defendant was riding at the time he was charged with operating it at an excessive rate of speed was registered with the Massachusetts highway commission by defendant, and in his own name, warranted a finding that he was the general owner thereof, or that he had such a special property in it as to give him control thereof, under St. 1903, p. 507, c. 473, as amended by St. 1905, p. 228, c. 311, § 2, regulating automobiles, and requiring that they shall be registered "by the owner or person in control thereof." 2. CRIMINAL LAW-AUTOMOBILES-EXCESSIVE DRIVING NATURE OF OFFENSE - MISDEMEANOR.

The offense of driving an automobile at an excessive rate of speed not being punishable by imprisonment in the state prison but by a fine, as provided by St. 1903, p. 510, c. 473, § 9, as amended by St. 1905, p. 231, c. 311, § 5, is a misdemeanor, and not a felony, as provided by Rev. Laws, c. 215, § 1.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 31.]

3. SAME-DEGREES OF OFFENSE-MISDEMEANORS-PRINCIPALS AND ACCESSORIES.

In misdemeanors there are no degrees of the offense; but all who participate in the commission thereof are principals, and may be prosecuted as such,

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 74.]

4. HIGHWAYS-ILLEGAL USE-AUTOMOBILESEXCESSIVE SPEED-PRIMA FACIE CASE.

In a prosecution for operating an automobile at an excessive rate of speed, proof that the machine, which was registered with the Massachusetts highway commission by defendant in his own name, was being run by the operator at an illegal speed while defendant was in the tonneau, established prima facie that defendant, having power to control the machine, either knew or allowed it to be illegally run, and was therefore guilty.

5. SAME-SPEED OF AUTOMOBILES-REGULATION-BY-LAWS.

Where, in a prosecution for operating an automobile at a speed in excess of that prescribed by the by-laws of a town, it was agreed that such by-laws were "duly established," such stipulation admitted that the by-laws were advertised and posted as provided by St. 1905, p. 289, c. 366, § 1, and that they were made as authorized by such act, and that the place covered by them was within the thickly settled part of the town.

Exceptions from Superior Court, Worcester County; John C. Crosby, Judge.

Roland H. Sherman was convicted of driving

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the inference that the owner knew and allowed his machine to be illegally run. The case so made out is a prima facie case only. It may be contradicted or explained. But ur contradicted and unexplained it does. in our opinion, warrant that inference and so makes out a prima facie case.

an automobile on a public highway, at a | it). In our opinion those facts warranted rate of speed exceeding 12 miles an hour, and he brings exceptions. It was agreed that the automobile in question was registered at the time with the Massachusetts highway commission by defendant, and in his name; that defendant was in the automobile at the time and place alleged in the complaint; that it was going at a speed in excess of 12 miles per hour, and that 12 miles per hour was the maximum speed at which automobiles were allowed to go in Leicester by the duly established by-laws of that town, and that defendant, at the time the automobile was being driven in excess of 12 miles an hour, was one of five people in the vehicle; that he was not operating or driving it himself, but was seated in the tonneau. On these facts, defendant requested the court to rule that he could not be convicted, and defendant having excepted to the court's refusal so to rule, the jury returned a verdict of guilty. Exceptions overruled.

Geo. S. Taft, Dist. Atty., and Walter P. Hall, Asst. Dist. Atty., for the Commonwealth. Chas. C. Johnson, for defendant.

LORING, J. In the opinion of a majority of the court these exceptions must be overruled. The fact that the automobile was registered with the Massachusetts highway commission by the defendant, and in his own name, warranted a finding that he was the general owner of it or that he had a special property therein which gave him control thereof. Section 1, St. 1903, p. 507, c. 473, amended by St. 1905, p. 228, c. 311, § 2, requires that automobiles shall be registered by the owner or person in control thereof.

If the defendant is guilty here he is guilty not as owner but because the evidence warranted the jury in finding as a fact that he participated in the machine's being run at an illegal speed.

The offense with which he stands charged is a misdemeanor and not a felony. Not being punishable by imprisonment in the State prison (St. 1905, p. 231, c. 311, § 5, amending St. 1903, p. 510, c. 473, § 9), it is a misdemeanor. Rev. Laws, c. 215, § 1.

If it be material here, it is settled that in misdemeanors there are no degrees, but that all who participate in the commission of the offense are principals, and may be charged as such. Com. v. Macomber, 3 Mass. 254; Com. v. Frost, 5 Mass. 53; Com. v. Drew, 3 Cush, 279; Com. v. Wallace, 108 Mass. 12. The question therefore comes down to this: Did the commonwealth make out a prima facie case of participation by the defendant in the machine in question being run at an illegal speed, by showing that the machine was being run by the operator at an illegal speed while the defendant was in the tonneau? (who was either the general owner of the machine or had such a special property in it as gave him the right to control

The agreed fact that the by-laws were "duly established" admits that the by-laws were advertised and posted in compliance with St. 1905, p. 289, c. 366, § 1, and that they were made under that act (St. 1905, p. 289, c. 366); also that the place covered by them was within the thickly settled part of the town in question. In short, it is an admission that they were of legal effect. Exceptions overruled.

(191 Mass. 461)

ANDREWS v. TUTTLE-SMITH CO. et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 15, 1906.)

1. ASSIGNMENT FOR BENEFIT OF CREDITORSENFORCEMENT OF TRUST.

At common law a voluntary assignment for the benefit of creditors accepted by the as signee establishes a trust, the enforcement of which may be compelled in equity by a creditor or the assignor.

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Assignments for Benefit of Creditors, §§ 850-852.]

2. SAME-ACCOUNTING BY ASSIGNEE-PARTIES ENTITLED TO ACCOUNTING.

Either a creditor or the assignor may demand an accounting by the assignee.

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Assignments for Benefit of Creditors, §§ 1105-1109.]

3. SAME ACTIONS - FRAUDULENT ADMINISTRATION.

Under Rev. Laws, c. 173, § 4, an assignee of the interests of creditors under an assignment for the benefit of creditors and of the residuary interest of the assignor may sue in his own name to enforce liability for fraudulent administration of the trust.

4. SAME-ACCOUNTING BY ASSIGNEE.

The right of creditors or of the assignor to an accounting by the assignee does not depend upon maladministration, but the creditors and assignor are entitled to an accounting at reasonable periods.

[Ed. Note.--For cases in point, see vol. 4, Cent. Dig. Assignments for Benefit of Creditors, §§ 1105-1109.]

5. SAME-MALADMINISTRATION-LIABILITY OF

Co-ASSIGNEES.

Where there are a number of assignees one of whom is guilty of maladministration without participation by the others, he alone may be charged with the loss, though the unfaithful act appears in a joint accounting or is shown by extrinsic evidence when the account is presented.

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Assignments for Benefit of Creditors, § 1113.]

6. SAME-ACTION BY CREDITORS-PARTIES. Though some of the assignees charged with misconduct may have been unfaithful in different ways, or for some of the alleged fraudulent acts all may not be responsible, they are all properly joined in a bill to enforce liability for maladministration.

7. EQUITY-BILL-MULTIFARIOUSNESS.

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, §§ 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.

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 v. 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

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, 125 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

in by either of his associates, would alone render him accountable for any loss suffered by the creditors, or the debtor, but a separate bill for this purpose would be unnecessary, as an accounting for this disbursement falls in with, and forms a part of the whole scheme of winding up, and of distribution alleged to have been adopted. That the assignees who are charged with misconduct may have been unfaithful in different ways, or that for some of the alleged fraudulent acts all may not be responsible does not render the investigation of their independent conduct so complicated that distinct and irrelevant issues must be tried to the confusion of the principal inquiry, and at great expense or inconvenience to the several parties. Cadigan v. Brown, 120 Mass. Cadigan v. Brown, 120 Mass. 493, 495; Sanborn v. Dwinell, 135 Mass. 236. There is but one inquiry, namely, the proper administration of the estate, in which all have participated, and the advantage which a court of equity has in such an investigation over a court of law is that multiplicity of suits can be prevented, and the liability of each defendant, who is connected with and involved in the principal inquiry may be adjusted by appropriate decree or decrees in the same suit, and the joinder of all participating parties thus becomes necessary for the purpose of affording complete relief. Bliss v. Parks, 175 Mass. 539, 543, 56 N. E. 566; Lenz v. Prescott, 144 Mass. 505, 11 N. E. 923; Dunphy v. Traveller Newspaper Ass'n, 146 Mass. 495, 499, 16 N. E. 426; Von Arnim v. American Tube Works, 188 Mass. 515, 520, 74 N. E. 680. It is true that if a creditor has received an unlawful payment the assignee, or assignees, who either directly or knowingly permitted such a misappropriation would be chargeable with the amount, and then must look to the creditor for reimbursement, yet there is no practical difficulty in making such a creditor a party to a bill which while seeking to charge the assignees also seeks reimbursement from the debtor, so that if the spoilation is established, and the creditor is liable to restore the property, or its value, both purposes can be accomplished in one suit, thus preventing circuity of action, and accordingly the joinder of the Hood Rubber Company as a party defendant does not render the bill multifarious. Ward v. Lewis, 4 Pick. 518; New England Bank v. Lewis, ubi supra; Bliss v. Parks, ubi supra; Trull v. Trull, 13 Allen, 407; Loring v. Brodie, 134 Mass. 453. The allegation as to this defendant is that under assignments which conferred equal participation by way of dividends upon all assenting creditors, the corporation, being such creditor, with the concurrence of one of the assignees, who at the time also was its treasurer, received a large money payment, and subsequently with the assent of the other assignees took over merchandise of great value in payment of its debt. These averments sufficiently charged a fraudulent conversion of assets in which it participated that should have been ratably distribut

ed as provided in the assignments. Such an arrangement perpetrated a fraud upon the other creditors equally as gross, as if the debtor had procured their written assent, after first obtaining the signature of this defendant under an agreement, that the assignees subsequently would make the payment in money, and the transfer of merchandise, which they are alleged to have done, and comes within the principle of Partridge v. Messer, 14 Gray, 180, 181. In such a case if the debtor himself had furnished the consideration he could have recovered it back, and so here as the value of the property converted whether consisting of money or chattels might be recovered by the assignees, the plaintiff may compel restitution in the present suit. Trull v. Trull, ubi supra.

During their incumbency, and in the various unlawful transactions described in the bill, the assignees are alleged to have acted under the legal advice of the defendant Knowlton. An allegation of this nature with nothing further would be insufficient to make an attorney at law responsible to third parties for the fraudulent acts of his clients, who merely consulted him as to the law applicable to an intended course of action. Hoosac Tunnel Dock & Elevator Co. v. O'Brien, 137 Mass. 424, 427, 50 Am. Rep. 323. The plaintiff, however, further avers that the defendant actually received coincidently with the assignees the entire assets of the debtor so far as it consisted of personal property, and actively and in collusion joined with Hood and his associates in the payment and transfer to the Hood Rubber Company, and also has received and now retains a substantial balance in money due to the creditors, and hence to the plaintiff, which he not only holds jointly with them, but also likewise refuses to account for or to pay over. By his demurrer he admits these allegations to be true, and therefore comes within the principle that persons who participate in the fraudulent conversion of property in their possession, knowing at the time that it has been delivered upon a trust, or holding trust funds for which they refuse to account, are accountable in equity in each instance to those for whose benefit the estate or fund should have been administered, and may be joined with others similarly liable where such misappropriation and misconduct consists of a series of wrongful acts in which all have taken part although perhaps in unequal degree. Le Breton v. Pierce, 2 Allen, 8, 12; Chesterfield Mfg. Co. v. Dehon, 5 Pick. 7, 10, 16 Am. Dec. 367; Otis v. Otis, 167 Mass. 245, 247, 45 N. E. 737. If with knowledge of this misconduct by the several participants, or with such indifference to their rights as to permit superior equities to intervene, the creditors and their debtor, in whose place the plaintiff stands, failed to move promptly in the assertion of their respective rights either or both might have been barred by the time elapsing since the alleged unlawful acts tran

spired, but the bill was brought well within the general statute of limitations relating to the commencement of actions at law, as well as within the general rule of practice enforced by a court of equity which always requires the exercise of reasonable diligence by plaintiffs if they are to obtain relief. Cook v. Sawyer, ubi supra; Sunter v. Sunter (Mass.) 77 N. E. 497. Besides, this defense is unavailing when interposed by the assignees, as these demurrers were trustees under an express trust, which is alleged neither to have been repudiated, or terminated, and until one or the other event occurred the statute of limitations did not begin to run in their favor. Potter v. Kimball, 186 Mass. 120, 71 N. E. 308.

From this examination of the frame of the bill it follows that as a case is stated for equitable relief against the defendants, who have demurred, and the suit having been seasonably instituted, their demurrers are not well taken, and must be overruled.

Decree accordingly.

(191 Mass. 458)

WERA v. BOWERMAN.

(Supreme Judicial Court of Massachusetts. Berkshire. May 15, 1906.)

1. MECHANICS' LIENS-RIGHT TO LIEN-PERFORMANCE OF LABOR-STATUTES.

Pub. St. c. 191, § 1, provides for a mechanic's lien for labor performed or furnished for the erection of a building on land by reason of an agreement, with or by the consent of the owner of such building or of a person having authority from or rightfully acting for such owner. Held, to create a valid lien under such section, it was not necessary that the work should be manually performed by the petitioner, but that the statute was satisfied if the labor was "furnished" by him in the sense that it was performed by his employés.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, §§ 43, 119.] 2. SAME EVIDENCE.

On a petition to enforce a mechanic's lien, evidence that petitioner had furnished labor on respondent's building according to a contract alleged, and within the time prescribed by statute had filed his certificate of lien, and that the labor had been furnished with the knowledge and consent of repondent, was admissible, notwithstanding it was agreed that petitioner himself did no labor on the building within 30 days prior to the filing of the lien.

Exceptions from Superior Court, Berkshire County; Elisha B. Maynard, Judge.

Petition by Louis N. Wera against Samuel W. Bowerman to enforce a mechanic's lien, claimed by petitioner for work and labor performed and furnished in the erection of the Hotel Wendell, on the premises described in the petition, in Pittsfield. It was agreed that the petitioner did no labor on the building himself within 30 days prior to the filing of the lien, whereupon the court ruled that petitioner was not entitled to a lien, and he brings exceptions. Sustained.

Geo. A. Prediger, for petitioner. E. T. Slocum and E. M. Wood, for defendant.

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of a building

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BRALEY, J. By Pub. St. c. 191, § 1, under which the certificate of lien was filed, and the proceedings for its enforcement begun, it was provided that any person to whom a debt is due "for labor performed or furnished in the erection ** upon land by reason of an agreement with or by the consent of the owner of such building * or of a person having authority from, or rightfully acting for such owner," shall have a lien upon the building and the interest of the owner in the land for labor performed and furnished. To create a valid lien for labor, therefore, it is not obligatory that the work shall be manually performed by the petitioner, but the statute is satisfied, and it is sufficient if the labor has been furnished by him in the sense that the work has been done by his employés. Monaghan v. Goddard, 173 Mass. 468, 53 N. E. 895; Scannell v. Hub Brewing Co., 178 Mass. 288, 59 N. E. 628. It, indeed, was held in Parker 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 person actually performing the work, but that decision was made under St. 1855, p. 826, c. 431, § 1, by which a lien for labor was thus restricted. But by Gen. St. 1860, c. 150, § 1, re-enacted in Pub. St. 1882, c. 191, § 1, this right was extended to include labor furnished as well as performed. See Getschell v. Moran, 124 Mass. 404, 408.

For the purpose of the hearing of a motion filed by the petitioner to have issues framed for a jury, the parties agreed upon certain facts, among which was the statement that "petitioner himself did no labor upon the building within thirty days prior to the filing of the lien," and upon this motion being overruled the case then went to trial before the court upon the merits. To establish his lien the petitioner then offered to prove in addition to the agreed facts that he had furnished labor on the respondent's building according to the contract as set forth in the first item of his account, and within the time prescribed by the statute had duly filed his certificate of lien, and that the labor had been furnished with the knowledge and consent of the respondent, but the evidence was excluded, and the petitioner apparently was confined to the agreed statement of facts. This evidence, however, was competent, and when taken in connection with the agreed facts would have been ample to sustain the petition. Scannell v. Hub Brewing Co., ubi supra; Vickery v. Richardson, 189 Mass. 53, 75 N. E. 136. The court thereupon ruled that the petition could not be maintained "because the petitioner had not performed any labor personally within said 30 days, and that the petitioner has no lien for labor furnished by him, and done by his servants or employés within 30 days prior to the time of the filing of his lien." Plainly this ruling

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