and preponderance of the evidence, it will be set aside, as in cases at law. Counsel for appellants insist that the decree should be reversed with such directions as to finally settle the controversy in this court. We have no power to direct a dismissal of the bill. The complainant is entitled to a trial by jury as upon an issue at law. We are satisfied, however, that the verdict is against the great weight and preponderance of the evidence, and it should have been set aside for that reason by the court below. The decree is reversed, and the cause remanded for further proceedings as to law and justice may, appertain Reversed and remanded. (180 Mass. 163) CEIVER-PLEADING-GENERAL 1. A receiver appointed in another state may not sue in his own name in Massachusetts on a contract made with the corporation of which he is receiver, where it is not shown that he is either actually or virtually an assignee of such corporation's property. 2. Where a receiver of a corporation appointed in another state sues in Massachusetts in his own name on a contract with the corporation, the burden is on him to show that he has a right to sue. 3. Where a receiver appointed in another state sues in Massachusetts, in his own name, on a contract made with the corporation of which he is receiver, a general denial interposed by defendants puts in issue his right to sue. Exceptions from superior court, Essex county; Albert Mason, Judge. Action by Charles C. Homer, as receiver of the Campbell & Zell Company, against the Barr Pumping Engine Company. From a judgment in favor of defendant, plaintiff brings exceptions. Exceptions sustained. B. E. Crowell, for plaintiff. Lougee & Rob inson, for defendant. KNOWLTON, J. The plaintiff sued as receiver of a foreign corporation, and averred in different counts of his declaration that the defendant was liable to him, as such receiver, under a contract and on account of transactions with the corporation. The answer to this part of the case is a general denial. The law in regard to the right of receivers of corporations to sue in their own names on claims due the corporation has often been considered, and the general rule in this commonwealth and in some other Jurisdictions is that a receiver has no such right that follows him beyond the jurisdiction of the tribunal that appoints him, unless he is actually or virtually an assignee of the claim which he seeks to enforce. Amy ▼. Manning, 149 Mass. 487, 21 N. E. 943; Wilson v. Welch, 157 Mass. 77, 31 N. E. 712; Buswell v. Order of Iron Hall, 161 Mass. 224, 36 N. E. 1065, 23 L. R. A. 846; Iron Co. v. Webster, 163 Mass. 134, 39 N. E. 786; Ewing v. King, 169 Mass. 97, 47 N. E. 597; Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49 L. R. A. 301; Hay. ward v. Leeson, 176 Mass. 310-324, 57 N. E. 656, 49 L. R. A. 725. In the present case there is nothing to show that the plaintiff is an assignee of the corporation's property, or that he has any authority to sue in his own name other than an appointment as receiver by the circuit court of Baltimore city, in the state of Maryland, which appointment authorized him to sue in that state, either in his own name or in the name of the corporation. The auditor found that under the law of Maryland a receiver of a corporation appointed in another state in the usual way, with a right, under the judicial decisions of the foreign state, to sue in its court in his own name, is not authorized to bring an action in his own name in Maryland. In this respect the law of that state seems to be like our own. He also decided that under our law this action could not have been maintained without substituting the corporation as plaintiff for the receiver, if the question had been properly raised by the pleadings. On the facts found we are of opinion that the action cannot be maintained in its present form. The plaintiff's declaration leaves upon himself the burden of showing that he is a receiver authorized to bring the action in our courts in his own name. In order to recover, he must prove that the defendant is now liable to him, as receiver, in such a sense that in the present form of action he is entitled to a favorable judgment from the court. The defendant's general denial puts this averment in issue, and the ruling on this part of the case should have been in favor of the defendant. We see no other error in the matters excepted to. The defendant's requests in regard to a test referred to in the contract seem to have been founded on a mistaken view of the contract. The instructions on this part of the case were correct. Exceptions sustained. (180 Mass. 157) PASCHE V. GRAHAM. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 27, 1901.) REVIEW-PREVAILING PARTY-AMENDMENT SET-OFF-COSTS. St. 1895, c. 234, §§ 19-23, relating to writs of review, provide that, where an issue of fact was joined in the original suit, the trial, on review, shall be on the same issue, except that such amendments may be allowed as would have been permissible in the original suit, and that the prevailing party shall recover costs. Judgment was had against a defendant, who, as plaintiff in review, pleaded a set-off by way of amendment, and recovered judgment thereon against the plaintiff in the original suit. Held that, though the amendment could have been filed in the original action, the new issue presented thereby was triable on the review, and therefore plaintiff in review was the prevailing party, and entitled to costs. Exceptions from superior court, Bristol county; John A. Aiken, Judge. Writ of review by John Pasche against George Graham, brought to review the judgment in a former action by defendant in review against plaintiff in review. From a judgment in favor of plaintiff, defendant brings exceptions. Exceptions overruled, and judgment affirmed. J. W. Cummings and E. Higginson, for plaintiff in review. S. W. Ashton and S. Bourke, for defendant in review. LATHROP, J. This case comes before us in a most unsatisfactory shape. The defendant in review has filed a bill of exceptions, which states merely that in the matter of the taxation of costs he excepts to the rulings of the court, and to his refusal to rule and find as requested. This bill was allowed if the defendant was entitled to exceptions. There is nothing in the bill to show what requests for rulings were made, or what were refused, or what ruling the judge made. The printed record sets forth certain so-called "requests for rulings" and the order for judgment, but there is nothing to connect these with the bill of exceptions. If, however, we consider these socalled "requests for rulings," an examination shows that they are not requests for rulings, but requests for findings of fact, without anything in the bill of exceptions to support them. There is also an appeal in the case, but the printed record does not set forth all the proceedings, and, if we were to rely upon this record alone, it would be difficult to understand the case. We have, however, examined the copy of the papers furnished the Chief Justice, and these papers, together with the printed record, show the following to be the facts: On October 24, 1898, George Graham brought an action of contract or tort against John Pasche, in the Second district court of Bristol. The declaration contained three counts; the first two in contract, and the last in tort, for the conversion of certain chattels. All the counts were alleged to be for the same cause of action. The answer was a general denial, and subsequently an amended answer was filled, specifically denying the allegations of each count. On December 16, 1898, Graham obtained judgment against Pasche in the sum of $177.91 and costs. From this judgment Pasche appealed, but did not file a bond. He, however, entered the case in the superior court, whence it was dismissed for the reason that no bond had been filed. He then filed in the district court a petition for a writ of review of the original action, on the ground that the failure to file a bond was without fault on his part. The petition was granted on February 13, 1899, and a writ of review ordered to issue. An appeal was taken to the superior court, and the order of the district court was affirmed, and the case sent back to that court. The writ issued on April 24, 1899, and on May 17, 1899, Pasche was allowed to file a declaration in set-off, in the district court, declaring on a promissory note in the sum of $452 and interest, signed by Graham, dated October 20, 1897, and payable in four months from date. The writ of review was tried in the district court, and on July 7, 1899, judgment was entered for Graham in the sum of $176.36 and costs. From this judgment Pasche appealed to the superior court. In that court, on January 5, 1900, judgment was entered for Pasche in the sum of $19.74 damages, and costs to the amount of $36.93. How the amount of damages was ascertained does not clearly appear, but we presume it is the difference between the sum found due Graham and that found due Pasche. The only question in the case is whether Pasche was entitled to costs, or, in other words, whether he was the prevailing party, within the meaning of those words in St. 1895, c. 234, § 22, which give costs to the prevailing party "unless the court in granting the review otherwise ordered." It does not appear that the court in granting the review made any order as to costs, and the qualifying terms above cited are unimportant in this case. The other sections of St. 1895, c. 234, which need to be considered in connection with section 22, are sections 19, 20, 21, 23. While there are many new provisions in St. 1895, c. 234, the sections now before us are in the same words as in Pub. St. c. 187, $$ 31-35, except a slight verbal change in section 22; and these are the same, in substance, as the provisions of Gen. St. c. 146, §§ 30-34, and Rev. St. c. 99, §§ 7-14. The latter were founded in part on St. 1788, c. 11, and St. 1817, c. 63, which was the first statute allowing an amendment in a writ of review. Sections 12-14 of the Revised Statutes (chapter 99) are new, but it is said by the commissioners in their report: "These sections are in accordance with the established practice, and are proposed mostly to prevent or remove doubts." It thus appears that we are not construing new provisions of a statute, but those which have been in force for many years. The principal contention of Graham is that, as the amendment allowing Pasche to file a claim on the promissory note dated October 20, 1897, could have been filed in the original action, a new issue was presented on the review, and could not be tried, and that the only issue was whether the original judgment was correct, and this should be determined on the pleadings in the original action, an issue of fact hav ing been joined there. In support of this view, Graham has cited the case of Hart v. Johnson, 7 Mass. 473, and there are other early Massachusetts cases to the same effect. See Dudley v. Sumner, 5 Mass. 438, 488; Perry v. Goodwin, 6 Mass. 498. But all these cases were decided under St. 1786, c. 66; which, following earlier colonial laws, gave a review, as a matter of right, at any time within two years, to any person aggrieved by a judgment, provided there had been only one verdict against him. This act, however, provided, "and there shall be no further pleadings." This act was repealed by St. 1817, c. S5, and by St. 1817, c. 63, "any amendment of the original writ, record or proceedings" was allowed. Section 19 of the statute of 1895 (chapter 234), re-enacting the law which has been in force since the Revised Statutes, while it provides, "if an issue of fact was joined in the original suit, the case shall be tried on the review upor the same issue," clearly allows the pleadings to be amended, and further provides: "and if a different issue is joined in consequence of such amendments, the cause shall be tried upon such new issue." We find nothing in the case of Foster v. Plummer, 3 Cush. 381 or in that of Todd v. Barton, 117 Mass. 291, which sustains the contention of the counsel for Graham that, because the declaration in set-off upon the promissory note could have been filed in the original action, therefore the pleadings in that action could not be amended on a writ of review. The point decided in Foster v. Plummer was that a discharge in insolvency obtained by the original defendant after the issuing of a writ of review, in pursuance of proceedings begun since the rendition of the original judgment against him, was not available in defense. It was said by Chief Justice Shaw, after referring to the statute allowing amendments: "But we think such new pleadings and evidence must be confined to cases where such amendments and evidence would have been allowed in the original suit." It was further said that a release of the original judgment might stand on a different footing, but that a discharge under the insolvent law did not extinguish the judgment, but only barred the remedy by action. The point decided in Todd v. Barton was that if a suggestion of bankruptcy and a motion for a continuance was made in the original action, and the continuance refused, it was in the discretion of the court to grant a writ of review. Under the rule laid down by Chief Justice Shaw, above cited, the court had power to allow Pasche to file an amendment of the pleadings in the original action, and he stands in the same position as if he had, in the original action, filed a declaration in setoff. This being so, he is clearly the prevailing party, and is entitled to his costs. Williams v. Williams, 133 Mass. 587. See, also, Williams v. Hodge, 11 Metc. 266; New ilaven & Northampton Co. v. Inhabitants of Northampton, 102 Mass. 116, 122, per Gray, J. The result is that the exceptions must be overruled, and the judgment of the superior court affirmed. So ordered. (180 Mass. 141) McNARY et al. v. BLACKBURN. (Supreme Judicial Court of Massachusetts. Essex. Nov. 26, 1901.) INTOXICATING LIQUORS-INJURIES RESULTING FROM SALE-LIABILITY OF SELLER-PROXIMATE CAUSE-LOSS OF SUPPORT. 1. Where plaintiffs' son purchased three glasses of whisky and a bottle of liquor of defendant between 12 m. and 1 p. m., and was ejected from a train about 3 p. m., and injured by reeling against a passing engine as he was attempting to walk along the track, the intoxication was the proximate cause of the injury, so as to make defendant liable, under Pub. St. c. 100, § 21, providing that any per son whose means of support is impaired "in have a consequence" of intoxication shall right of action against the person selling the liquor. 2. Where plaintiffs' son had sent money at various times to be used for the support of the household, plaintiffs were entitled to recover, under Pub. St. c. 100, § 21, giving a right of action against the seller of intoxicants to any one whose means of support was impaired by the use of such intoxicants, though plaintiffs had no legal right to require their son to contribute to the support of the family. 3. In an action under Pub. St. c. 100, § 21, giving any person injured in person or means of support as a consequence of intoxication a right of action against the person furnishing the liquor causing such intoxication, an instruction that the intoxication must be the necessary result of the sale of liquor was properly refused. Exceptions from superior court, Essex coun ty; Albert Mason, Judge. Action by one McNary and others against one Blackburn. From a judgment in favor of plaintiffs, defendant brings exceptions Exceptions overruled. HOLMES, C. J. This is an action brought under Pub. St. c. 100, § 21, by the parents of Dennis McNary, for an injury in their means of support in consequence of his intoxication, alleging it to have been caused by the defendant. The case is here on exceptions to the judge's refusal to make certain rulings requested. Two of these were, in substance, that the plaintiffs had no right or legal claim to support from their son, and that the injury was too remote, and that therefore the actlon could not be maintained; a third that the plaintiffs could not recover without proving their poverty and dependence upon their son. There was also an exception, not much pressed, to the omission of the word "necessary" from a ruling requested that the plaintiffs could not recover unless the intoxication caused in whole or in part by liquor sold to Dennis McNary by the defendant was the natural, necessary and proximate cause of his injury. No question was raised as to the Joinder of the father and mother as plaintiffs. There was evidence of the following facts: The defendant was engaged in the illegal sale of intoxicating liquors. On June 12, 1897, between 12 m. and 1 p. m., Dennis McNary got from him at his bar three glasses of whisky and a bottle of liquor. On leaving, McNary showed signs of intoxication. At about three he took the train from Gloucester to Manchester, then being obviously intoxicated. At about eleven minutes past three he was put off the train lawfully at West Gloucester. He started to walk by the track to Manchester, in spite of the efforts of the station agent to prevent him, and was struck a few minutes later by a following train. When the engineer of that train first saw him he was by the side of the track, but as the train came up with him he reeled against the cylinder of the engine and his arm was made permanently useless. The plaintiffs live in Nova Scotia. The father made his living by fishing in a small boat. There were nine children, Dennis being the second, and the oldest son. At the time of the accident he was twenty-five or twenty-six years old. Until 1895 he had lived with the plaintiffs, fishing like his father, and had given them all his earnings. Then he came to Massachusetts, and since then he had sent money to his parents at different times,-in all, according to his mother's statement, about one hundred and seventy dollars. She testified that sometimes she sent for money and he responded. The money was used for support in the household. From the time of his injury until 1889, McNary made nothing. Then he returned to Nova Scotia, set up a small grocery store, making a dollar, sometimes two dollars, a week, boarding with his parents and paying what he could, from half a dollar to two dollars a week. It was not argued that the statute does not confer rights upon nonresident aliens, and therefore we do not discuss the point. The statute is not the same as the one considered in Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 79 Am. St. Rep. 309, and some of the reasoning in that case would not apply to this, but there are other arguments for its universal application and we do not mean to intimate a doubt. We simply assume what the defendant did not dispute. It was not argued either that an injury in the plaintiffs' means of support because of the disabling of the intoxicated person is not within the statute. An injury so caused was assumed, rightly we have no doubt, to be within the section cited in Colburn v. Spencer, 177 Mass. 473, 59 N. E. 78. See Moran v. Goodwin, 130 Mass. 158, 39 Am. Rep. 443. Colburn v. Spencer arose upon an accident like the present, and disposes also of the ruling asked that the sale of liquor was not the proximate | cause of the injury. See further Schroder v. Crawford, 94 Ill. 357, 34 Am. Rep. 236; Meyer v. Butterbrodt, 146 II. 131, 34 N. E. 152; McMahon v. Dumas, 96 Mich. 467, 56 N. W. 13; Davies v. McKnight, 146 Pa. 610, 23 Atl. 320; Cornelius v. Hultman, 44 Neb. 441, 62 N. W. 891. We do not suppose that it would be argued that a fit of intoxication beginning or considerably fortified between twelve and one could not be found to continue until a few minutes after three. No point is made of the fact that McNary, after leaving the defendant, got another bottle of liquor elsewhere. What he did with it does not appear, and the statute imposes the liability if the intoxication was caused in part by the defendant. If the intoxication was the natural and proximate cause of the injury, in the words of the instruction, it was in one sense the necessary cause of it. If the insertion of the word "necessary" in the request meant that the result must be one which ought to have been foreseen as necessary, at the time of the sale, it unduly restricted the words of the statute. The statute imposes the liability for an injury "in consequence" of the intoxication. If we assume that those words are limited to such a connection of consequence as is recognized by the common law, men are held liable every day in tort for the natural and proximate results of their wrongs, although the particular result could not have been foreseen specifically as necessary at the time of the act. See Eddy v. Courtright, 91 Mich. 264, 268, 51 N. W. 887; Brockway v. Patterson, 72 Mich. 122, 126, 40 N. W. 192, 1 L. R. A. 708; Dunlap v. Wagner, 85 Ind. 529, 44 Am. Rep. 42; Roth v. Eppy, 80 Ill. 283. It is not necessary to consider how the case would have stood if the railroad company had been found to blame. As to whether an injury to the plaintiffs' means of support was made out, it is manifest from the facts which we have stated that the plaintiffs were in very humble circumstances, and it might be inferred from the mother's sometimes sending to her son for money that they actually needed his help. The jury were warranted in finding, and, indeed we have no doubt, that what the son sent, little as it was, not only went for support but was needed for it. The help of their son, in other words, was one of the plaintiffs' means of support, and it was taken away. This statute, even more clearly than the one construed in Mulhall v. Fallon, 176 Mass. 266, 267, 57 N. E. 386, 79 Am. St. Rep. 309, applies to a case of partial dependence, and we are of opinion that it gives a remedy to parents injured in their actual means of support by the loss of help from a child, without regard to their having a legal right to the help. Eddy v. Courtright, 91 Mich. 264, 268, 51 N. W. 887. See Moran v. Goodwin, 130 Mass. 158, 39 Am. Rep. 443; Daly v. Iron Co., 155 Mass. 1, 29 N. E. 507. The judge when he refused to rule that the plaintiffs must prove their poverty and dependence read the statute to the jury and showed by what he said that he understood the request to mean, as probably it was intended to mean and as it now is argued, that the plaintiffs must make out a legal right. He left no doubt that they could recover only the direct loss of means of support. See Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386; McMahon v. Sankey, 133 Ill. 636, 24 N. E. 1027. Exceptions overruled. (180 Mass. 155) RAY v. DE BUTTS et al. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 26, 1901.) TOWNS-ANNUAL MEETING-ACCEPTANCE OF STATUTE. Under St. 1901, c. 78, relating to the police and fire departments in towns, and providing that such statute may be accepted at any annual town meeting, where a town is divided into precincts the acceptance must be had at the meeting authorized by St. 1894, c. 132, and St. 1898, c. 548, § 349, subsequent to the annual election at which the general business of the town is transacted, and not at the precinct meetings. Exceptions from superior court, Suffolk county. Action by one Ray against De Butts and others. From a judgment for defendants, plaintiff brings exceptions. Overruled. D. F. Kimball and H. R. Bailey, for petitioner. S. R. Cutler, H. W. James, R. W. Nason, and T. W. Proctor, for respondents. HAMMOND, J. The only question raised in this case is whether the acceptance by the town of Revers of St. 1901, c. 78, at the first part of the annual town meeting of the present year, was a legal acceptance. The town had been divided into voting precincts. The earlier statutes, authorizing the establishment of such precincts in towns, provided that they should be used for holding all meetings "for the choice of officers elective by the people except town officers." St. 1886, c. 264, § 1; St. 1890, c. 423, § 72; St. 1893, c. 417, § 101. Meetings for the transaction of the general business of the town, including the choice of town officers, were not affected, but remained as before. But by St. 1894, c. 132, a further change was made, so that any town which had adopted the system of precinct voting as theretofore authorized might use the system for the annual choice of its town officers, and for voting upon the question of granting licenses for the sale of intoxicating liquors, and all other matters to be considered at the annual town meeting were to be brought before the town meeting to be held within 30 days after the date of the annual election. The time and place of holding this subsequent meeting were to be named in the warrant, and the election, subsequent meeting, and its adjournments were to be regarded as parts of the annual town meeting. See, also, St. 1898, c. 548, § 349, where these provisions have been subsequently re-enacted. It is plain that the question of the acceptance of St. 1901, c. 78, could not be decided at the precinct meetings unless these statutes have been modified. There is no express modification, but it is argued by the petitioner that, since the whole matter was within the power of the legislature, it may be inferred that there was an implied modification of these prior statutes as to precinct voting, and that when the legislature said that this statute might be accepted at any annual town meeting the vote on the question might be taken either at the first part or the second part of the meeting, as might be thought by the voters to be most convenient. The suggestion does not seem to us sound, since the prior statutes classify the business of the town meeting, and designate what kind of business shall be done at each part thereof, and, in the absence of any necessary implication to the contrary, the reasonable conclusion would be that when, in any subsequent statute, any question is submitted to the voters of the town, it should take its place under that classification. Moreover, it is to be observed that the statute under consideration makes quite a material change with reference to the appointment of members of the regular or permanent police and fire departments and their tenure of office, and it is fair to presume that upon such a question there might be considerable discussion which could not take place at the precinct meetings. In view of the universal usage as to the transaction of the business of a town in a general town meeting, it is not to be assumed that the legislature in submitting this question to the voters intended to deprive them of the usual right to an interchange of views in the usual way in a general meeting. Exceptions overruled. (168 N. Y. 512) CUTTER v. GUDEBROD BROS. CO. (Court of Appeals of New York. Nov. 26, 1901.) APPELLATE DIVISION-REVIEW-FINDINGS OF FACT. Where the grounds on which a case was decided were stated in the decision filed by the trial justice, the appellate division, modifying the judgment entered thereon, cannot incorporate findings of fact and conclusions of law into its order on the ground that findings of fact should have been made (Code Civ. Proc. § 1022), authorizing only the trial court or a referee to formulate a decision upon the is sues. Appeal from supreme court, appellate division, Second department. Action by John D. Cutter against Gudebrod Bros. Company. From a judgment of the ap pellate division (61 N. Y. Supp. 225) modifying, and affirming as modified, a judgment for plaintiff at the special term, both parties appeal. Affirmed. Robert B. Honeyman, for plaintiff. G. H. Crawford, for defendant. |