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(215 Mass. 563)

HOLDEN v. MCGILLICUDDY. (Supreme Judicial Court of Massachusetts. Franklin. Oct. 22, 1913.)

1. HIGHWAYS (§ 184*)-USE OF HIGHWAYSACTION FOR INJURY.

In an action for an injury caused by defendant's automobile colliding with plaintiff's, the illegal conduct of plaintiff in operating his automobile without a license was only evidence of negligence on his part.

[Ed. Note. For other cases. see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*] 2. EVIDENCE (§ 80*)-PRESUMPTIONS-COMMON LAW.

In the absence of evidence, the common law of Vermont will be presumed to be the same as in this state.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80.*]

3. HIGHWAYS (§ 184*)-USE OF HIGHWAYS

ACTION FOR INJURIES.

Where plaintiff, whose automobile collided with defendant's on a public highway in Vermont, was operating an unregistered automobile in violation of a statute of Vermont prohibiting the operation of unregistered automobiles, he could not recover for the injury, since he was a mere trespasser, and his own violation of a law, enacted for the particular protection of the traveling public, directly caused the injury.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]

ute law of Vermont the owner of an automobile or motor vehicle must annually, by application to the Secretary of State upon a specified blank, cause it to be registered, and that a further statute provided that "no automobile or motor vehicle shall be operated upon a public highway" unless so registered. Did the plaintiff's failure to have his automobile so registered, and the fact that without such registration he was operating it upon a public highway in Vermont, prevent him from maintaining this action?

We held in Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E.. 25, 23 L. R. A. (N. S.) 561, that under our statutes one who was operating an automobile upon our public ways without its being registered as required by those statutes was a mere trespasser upon the way, and had no greater rights against persons who were lawfully using the way than that they should not recklessly or wantonly injure him or his property.

That rule has been followed in our later cases. Feeley v. Melrose, 205 Mass. 329, 91 N. E. 306, 27 L. R. A. (N. S.) 1156, 137 Am. St. Rep. 445; Trombley v. StevensDuryea Co,, 206 Mass. 516, 518, 92 N. E. 764; Chase v. New York Central & Hudson River R. R., 208 Mass. 137, 156 et seq., 94 N. E. 377; Bourne v. Whitman, 209 Mass. Exceptions from Superior Court, Franklin 155, 172, 95 N. E. 404, 35 L. R. A. (N. S.) County; Charles U. Bell, Judge. 701; Love v. Worcester Cons. St. Ry. Co., Action by Erving M. Holden against Rich-213 Mass. 137, 99 N. E. 960; Holland v. Bosard A. McGillicuddy. Judgment for plaintiff, and defendant excepts. Exceptions sustained, and judgment directed.

Wm. A. Davenport and Harry A. Weymoth, both of Greenfield, for plaintiff. Frank J. Lawler, of Greenfield, for defendant.

SHELDON, J. This accident occurred in Vermont, and the rights of the parties are governed by the law of that state.

ton, 213 Mass. 560, 562, 100 N. E. 1009. The
Dudley Case, ubi supra, turned partly upon
the language of some of the provisions of the
statute, which, so far as the evidence at the
trial showed (and we cannot go beyond that
evidence), are not found in the statutes of
Vermont. But the decisive feature of our
decisions has been that the prohibition of
the use of unregistered automobiles upon
the public ways was intended, not merely to
create a public duty to be enforced in the
ordinary administration of the criminal law,
but to provide for the protection of travelers
upon the highways, to regulate the rights of
such travelers among themselves. So it was
said in the Dudley Case, 202 Mass. 443, 448,
89 N. E. 25, 28, 23 L. R. A. (N. S.) 561: "It
is a reasonable assumption that the Legisla-
ture intended to put these forbidden and
dangerous machines outside the pale of trav-
elers." So again in Chase v. New York
Central & Hudson River R. R., 208 Mass.
137, 158, 94 N. E. 377, 385, the court said:
"Under the decisions, the operation of the
unregistered automobile is deemed to be un-
lawful in every feature and aspect of it.
Everything in the conduct of the operator
that enters into the propulsion of the vehi-
cle is under the ban of the law. In going
along the way
the machine is an
** is guilty of
conduct which is permeated in every part by

[1, 2] Under our decisions the illegal conduct of the plaintiff in operating his machine without a license to do so was merely evidence of negligence on his part. But on the whole evidence the jury have found, not only that he was in the exercise of due care, but also that this illegal conduct did not contribute to the injury sued for. Under our common law, therefore, it was not a bar to his recovery. Holland v. Boston, 213 Mass. 560, 100 N. E. 1009; Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701; Moran v. Dickinson, 204 Mass. 559, 90 N. E. 1150. There was no evidence as to the law of Vermont upon this question, and its common law is presumed to be the same as ours. Hazen v. Mathews, 184 Mass. 388, 68 N. E. 838; Gordon v. Knott, 199 Mass. 173, 179, 85 N. E. 184, 19 L. R. A. (N. S.) 762. The plaintiff's recovery cannot be de-outlaw. The operator feated upon this ground.

[3] But it was undisputed that by the stat- his disobedience of law, and which directly

He is [3. RAILROADS (§ 328*)-CROSSING ACCIDENTS And this -LOOKING AND LISTENING.

contributes to the injury. within the words of the statute." language was quoted and the rule reaffirmed in Bourne v. Whitman, 209 Mass. 155, 172, 95 N. E. 404, 408, 35 L. R. A. (N. S.) 701. It is to be regretted that we have not fuller evidence of the law of Vermoi. upon this question. But applying what we regard as the general rules of the common law, we can only conclude that the Vermont statute, like our own, was enacted, not only as a police regulation to govern the conduct of all persons in the state, but for the particular protection of travellers upon the highways, to guard them against the dangers that might arise from the operation of improper machines to which the state would not grant the privilege of registration, and to afford them means of redress in case of injury by enabling them readily to ascertain the name and address of the owner of an automobile from which they might suffer injury. The plaintiff by running his machine upon the public way violated the law which had been enacted for the protection of the defendant and others who should be lawfully using the way; and it was this violation of law which directly caused the accident. The case resembles in principle Seaboard Air Line Ry. v. Chapman, 4 Ga. App. 706, 62 S. E. 488. There was no evidence that the defendant had acted recklessly or wantonly. That hardly has been contended.

A verdict should have been ordered for the defendant. Accordingly his exceptions must be sustained.

Under the terms of the bill, as shown by the statements made by the judge at the trial, the authority given by St. 1909, c. 236, should be exercised and judgment di

rected for the defendant.

So ordered.

(216 Mass. 5)

MORRISSEY v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Franklin. Oct. 22, 1913.)

1. RAILROADS (§ 327*)-CROSSING ACCIDENTCARE REQUIRED.

It is the duty of one driving over a dangerous grade crossing, at which a signalman is placed, to use his senses to see whether a train approaches, and failure to do so would bar recovery for his death, where the train which struck him gave the statutory signals.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. § 327.*] 2. RAILROADS (§ 350*)-CROSSING ACCIDENTS -CONTRIBUTORY NEGLIGENCE.

While one driving across a dangerous railroad crossing could rely to some extent upon the fact that he was not warned by the railroad flagman upon approaching the crossing, failure to receive such warning would not, as a matter of law, excuse him from exercising care for his own protection.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]

need not look for a train, where his vision of One crossing a railroad grade crossing approaching trains would be obscured, so that he could not see them, and need not listen, if the conditions would make it useless to listen. Cent. Dig. §§ 1057-1070: Dec. Dig. § 328.*] [Ed. Note.-For other cases, see Railroads, Exceptions from Superior Court, Franklin County; Loranus E. Hitchcock, Judge.

Action by William H. Morrissey, administrator, against the Boston & Maine Railroad. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Frank J. Lawler, of Greenfield, for plaintiff. Dana Malone and Chas. N. Stoddard, both of Greenfield, for defendant.

SHELDON, J. The defendant contends that a verdict should have been ordered in its favor.

[1, 2] It is settled that a grade crossing like the one at which the plaintiff's intestate was killed is a highly dangerous place; and it was the duty of the intestate in driving over it to make a reasonable use of his senses to ascertain whether a train was about to pass, and a failure to do this would constitute negligence on his part such as to prevent a recovery by him or by his administrator for an injury or for his death, where, as here, the statutory signals were given from the approaching train. Rogers v. Boston & M. R. R., 187 Mass. 217, 219, 72 N. E. 945. But there was evidence that his view was so obstructed by cars and trains upon other tracks of the defendant that the train which struck him could not be seen until he was almost upon the crossing; that

there was much noise about there, so that

the coming train or its signals could not be heard; and that the defendant's flagman whose duty it was to guard this crossing had his attention engaged elsewhere, and gave no warning to the intestate until the latter was close upon the track and could not avoid being struck. Under these circumstances, the question of the intestate's due care was for the jury. He could rely to some extent upon the fact that as he approached the crossing he had no warning from the flagman to whom the defendant had intrusted the duty of giving reasonable warning to travelers. It could be found that his senses of sight and hearing gave and could give him no information of the impending danger. These circumstances could not excuse him from the duty of exercising diligence for his own protection; but they were matters to be considered by the jury. As it was put by Rugg, J., in Fitzhugh v. Boston & Maine R. R., 195 Mass. 202, 204, 80 N. E. 792, 793, it could be found that the intestate, "for a reasonable distance before reaching the crossing, was on the lookout for the train and depended upon his own sight and hearing, his watch for the flagman, and the

action of his horse,

to advise him, 2. MASTER AND SERVANT (§ 262*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. Assumption of risk must be pleaded by the master.

if he was in danger, and he received no warning through any of these channels, until it was too late."

[3] Here, as in that case, "it cannot be said, therefore, as matter of law, that [he] was not in the exercise of due care." The admitted physical surroundings, the time and atmospheric conditions here were not, as they were in Allen v. Boston & Maine R. R., 197 Mass. 298, 301, 83 N. E. 863, such as to show ample opportunity for the intestate to know that a train was near in time to protect himself from danger. And as was said by Rugg, J., in that case (197 Mass. 302, 83 N. E. 864): "A traveler is not obliged to look where sight is so obscured as to afford him no intelligence, nor to listen if conditions are such that there can be no hearing, because under these circumstances he can

an gain nothing thereby." To the same effect see Santore v. New York Central & Hudson R. R. R., 203 Mass. 437, 444, 89 N. E. 619. The intestate could not, as the driver in Lundergan v. New York Central & Hudson R. R. R., 203 Mass. 460, 465, 89 N. E. 625, could, look and listen in such a way or at such a place as to discover seasonably the oncoming train. There is of course no inflexible rule that a traveler always must stop, look and listen before passing over a grade crossing, although it is also true that "he cannot alone rely upon the railroad and its employés to do their duty, but must actually exercise his own faculties of sight and hearing and common sense to care for himself." Hamblin v. New York, New Haven & Hartford R. R., 195 Mass. 555, 557, 81 N. E. 258. But although the evidence was not strong in favor of the plaintiff, we cannot say that it did not present a question for the jury. See, also, Craig v. New York, New Haven & Hartford R. R., 118 Mass. 431; Randall v. Connecticut River R. R., 132 Mass. 269; Robbins v. Fitchburg R. R., 161 Mass. 145, 36 N. E. 752. There was evidence that the accident was

due to the negligence of the defendant's servants. There has been no argument to the contrary.

It follows that the defendant's first and second requests for instructions could not have been given. No other question has been argued in its behalf.

Exceptions overruled.

(215 Mass. 574)

OSWALD v. DONAHUE. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 22, 1913.)

1. MASTER AND SERVANT (§ 278*) — INJURIES TO SERVANT-ACTIONS-NEGLIGENCE.

In a personal injury action by a servant, evidence held sufficient to warrant a finding of the master's negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]

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In a personal injury action by a minor servant, injured at a mangle in a laundry, the danger from the irregular running of the maquestion whether plaintiff comprehended the chine, never having worked at a mangle before, and voluntarily assumed the risk, held for the jury.

288.*]

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 6. MASTER AND SERVANT (§ 289*)-INJURIES TO SERVANT-JURY QUESTION.

In a personal injury action by a servant, the question of her freedom from contributory negligence held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

Exceptions from Superior Court, Worcester County.

Action by Gertrude Oswald against Daniel J. Donahue. Verdict for plaintiff, and defendant excepted. Exceptions overruled.

David I. Walsh and Thos. L. Walsh, both of Fitchburg, for plaintiff. Philip J. O'Connell and John P. Halnon, both of Worcester,

for defendant.

DE COURCY, J. In the course of her employment in the defendant's laundry, and while she was at work on a steam ironing machine known as a mangle, the plaintiff sustained severe injuries by reason of her hand being drawn in between the rolls; and she brought this action to recover damages therefor. The declaration contains counts both at common law and under the employer's liability act, but it is conceded by the plaintiff that the case was submitted to the jury on One of these was the common law counts. for alleged failure properly to instruct and qualify the plaintiff for her duty before putting her to work on a dangerous machine with which she was not acquainted, the other for negligent failure to provide the plaintiff with suitable machinery with which she could

(216 Mass. 30)

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 22, 1913.)

perform her duty without being exposed to unnecessary dangers, and to maintain the NELSON THEATRE CO. v. NELSON et al. same in suitable condition and repair. There was a verdict for the plaintiff; and the case is here on the defendant's exception to the judge's refusal to rule that on all the evidence the plaintiff could not recover.

[1] 1. It is virtually conceded that there was evidence for the jury on the issue of the defendant's negligence. He had just moved into his new location on Harding street, and there was testimony that the mangle was working irregularly, first running fast and then slow; that the driving belt was moving from one pulley to the other; that there was unusual speed and vibration of the machinery until the pulley on the main shaft was changed after the accident, and that no instructions were given to the plaintiff as to how she was to do her work in safety. This, and other like testimony, if believed, would warrant a finding of negligence.

[2-5] 2. The defense of assumption of risk is not set up in the answer and consequently is not open to the defendant. Leary v. William G. Webber Co., 210 Mass. 68, 96 N. E. 136. Aside from the question of pleading, the defendant has the burden of proving this affirmative defense; and where, as here, the danger comes into existence after the contract of employment, this issue generally is one of fact for the jury. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537; Griffin v. Joseph Ross Corporation, 204 Mass. 477, 90 N. E. 926. That the plaintiff knew the machine was running fast or irregularly is not decisive, especially in view of the fact that she never before had worked on a mangle, and was injured when she had been working on this machine only an hour and a half. It was for the jury on all the evidence to decide whether the plaintiff fully comprehended the danger to which she was exposed and voluntarily assumed the risk. Glass v. Hazen Confectionery Co., 211 Mass. 99, 97 N. E. 627.

[6] 3. It could not be ruled as matter of law that the plaintiff was not in the exercise of due care. She was 17 years of age, with no experience in working on a steam mangle. Although aware that the machine was running somewhat irregularly, she recognized nothing unusual in that, as she was ignorant of the ordinary and proper operation of such a machine. She was working in the presence and under the direction of Miss Coakley, who had been intrusted with the duty of instructing her, and was doing her work in the way she was shown. Without further reciting the evidence in detail, we think that the question whether her conduct measured up to the standard of a person of ordinary prudence was one of fact for the

1. APPEAL AND ERROR ($ 1078*)-WAIVER OF ERROR IN APPELLATE COURT.

Errors not argued in the appellate court will be considered waived.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]

2. APPEAL AND ERROR (§ 134*)-DECISIONS APPEALABLE-INTERLOCUTORY JUDGMENTS— ENTRY.

Though a docket entry showing the overruling of a demurrer merely recited, "Demurrer overruled," and there was no formal interlocutory judgment, nevertheless an appeal may, under Rev. Laws, c. 159, §§ 25-27, providing for appeals from interlocutory decrees, be taken from the order.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 898; Dec. Dig. § 134.*] 3. LANDLORD AND TENANT (§ 76*)—WAIVER OF CONDITIONS IN LEASE.

Where a landlord accepted rent as it accrued, though knowing of an assignment to plaintiff, he waived the condition against assigning the lease or underletting.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 225-230; Dec. Dig. § 76.*]

4. LANDLORD AND TENANT (§ 132*)—RIGHT TO INJUNCTIONS.

right to insist upon the covenant in his lease Where a landlord, who has waived the against assignment or underletting, continually right to insist upon the covenant in his lease trespasses on the premises, plaintiff has a remedy by injunction, because the right to postribunal as well as in a court of law, and it will session can be adjudicated in the equitable save him from a multiplicity of suits.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 460–464, 467-469, 1198; Dec. Dig. § 132.*]

5. LANDLORD AND TENANT (§ 132*)—UNLAWFUL RE-ENTRY BY LANDLORD-MEASURE OF DAMAGES.

Where a landlord illegally entered upon the premises and destroyed the tenant's moving picture business, the tenant's measure of damages is not confined to the difference between the actual value of the leasehold which should have been enjoyed and the rent reserved, but includes loss of profits which must be deemed the direct result of the landlord's conduct.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-469, 1198; Dec. Dig. § 132.*]

6. EVIDENCE (§ 533*)-OPINION EVIDENCEEXPERT TESTIMONY-DISCRETION OF COURT. In a suit by the lessee of a moving picture theater to restrain his lessor from trespassing on the premises and for damages for past trespasses, the admission of opinion evidence by persons well acquainted with the moving picture business in the locality, as to the amount of profits probably lost, is not an abuse of dis

cretion.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. § 533.*]

7. DAMAGES (§ 176*)-ADMISSIBILITY OF EviDENCE-LOSS OF PROFITS.

jury. Rivers v. Richards, 213 Mass. 515, 100 damages was sought for the lessor's past tresIn a suit by a tenant, where recovery of passes, which temporarily destroyed plaintiff's business, evidence of the previous gross income

N. E. 745.

Exceptions overruled.

and net earnings of the business was admis- | 276. In Ross v. New England Ins. Co., it sible.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 461, 468, 471, 493; Dec. Dig. 8 176.*] 8. ABATEMENT AND REVIVAL (§ 55*)-EXECUTORS AND ADMINISTRATORS (§§ 453, 454*)DEATH OF DEFENDANT - TRESPASS-JUDG

MENT.

Under the direct provisions of Rev. Laws, c. 171, § 1, an action for damages to real or personal property survives against the tortfeasor's administrator, and if in such action a judgment for the damages is had against a tort feasor's executor, it must be several, and not jointly with his codefendant, and execution for damages must, under the direct provisions of chapter 172, 87, issue only against the goods and chattels of the decedent.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 255-260, 267, 271278, 282, 285, 292, 293; Dec. Dig. § 55;* Executors and Administrators, Cent. Dig. §§ 1884 1928; Dec. Dig. §§ 453, 454.*]

Appeal from Superior Court, Hampden County; John C. Crosby, Judge.

Suit by the Nelson Theatre Company against George D. Nelson and others. From a decree for plaintiff, defendants appeal. Modified and affirmed.

Chas. G. Gardner and Ralph W. Stoddard, both of Springfield, for appellants. J. B. Carroll, W. H. McClintock, and J. F. Jennings, all of Springfield, for appellee.

now

is said, "Under our * * practice, an order in equity, granting or refusing a motion for issues to a jury, is subject to revision on appeal;" and in Stockbridge Iron Company v. Hudson Iron Co., the order overruling motions for issues is referred to It is stated in the headnote to Parker v. in the opinion "as an interlocutory decree." It is stated in the headnote to Parker v. Flagg, 127 Mass. 28, that "under the Gen. Sts. c. 113, §§ 6, 8, 10, 11, an order which merely sustains a demurrer to a bill in equity, without more, is an interlocutory and not a final decree." The provisions of the General Statutes governing appeals from interlocutory orders or decrees are found in R. L. c. 159, §§ 25, 26, 27, and in Burnett v. Com., 169 Mass. 417, 48 N. E. 758. In Cawley v. Jean, 189 Mass. 220, 227, 75 N. E. 614, where these sections are construed, no distinction as to the right of appeal is made between an interlocutory order and an interlocutory decree, and in Harrell V. Sonnabend, 191 Mass. 310, 311, 77 N. E. 764, Hammond, J., says, "The order overruling the demurrer was an interlocutory decree." We have not been unmindful of our decision in Merrill v. Beckwith, 168 Mass. 72, 46 N. E. 400, holding that under a rescript directing the bill to be dismissed the plaintiff until the decree had been entered could amend his bill into an action at law. But as explained in Lakin v. Lawrence, 195 Mass. 27, 28, 80 N. E. 578, the rescript of the full court of "Bill dismissed," was not a decree, but merely an order for a decree to be entered by a single justice.

BRALEY, J. [1, 2] The denial of the defendants' anomalous motion to dismiss the amended or substitute bill because it did not state a case for equitable relief, and the overruling of their objections to the allowance of the amended bill, which was purely discretionary with the presiding judge, not having been argued require no further comment. But as the substantial grounds of the motion were embodied in the demurrer the disposition of which is shown only by the docket entry, "Demurrer overruled," the first question is whether the defendants' appeal which appears to have been seasonably taken is properly before us. The better and more satisfactory practice would have been to enter an interlocutory decree, but the decision of "Demurrer overruled" is the final judgment of the presiding judge duly entered upon the docket. If an appeal does not lie upon the record, the defendants upon whom rested no duty to prepare a decree are remediless, as the defenses raised by the demurrer are not set forth in the answer. Thompson v. Goulding, 5 Allen, 81, 84, 85; Saltman v. Nesson, 201 Mass. 534, 539, 540, 88 N. E. 3. Appeals from the denial by a single justice of motions to frame issues for a jury have been entertained where no interlocutory decree apparently had been entered. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Ross v. New England Ins. Co., 120 Mass. 113, 115; Ginn v. Almy, 212 Mass. 486, 494, 99 N. E.

[3, 4] But if the appeal is properly before us the demurrers cannot be sustained. By acceptance of the rent as it accrued the defendant Nelson, who knew of and assented to the mesne assignments from the original lessee under which the plaintiff claimed the leasehold waived the condition imposed by the covenant against assigning the lease or underletting, and his repeated entrance thereon, and forcible interference with the plaintiff's possession was unlawful. O'Keefe v. Kennedy, 3 Cush. 325; Milkman v. Ordway, 106 Mass. 232, 259; Skally v. Shute, 132 Mass. 367; King v. Bird, 148 Mass. 572, 20 N. E. 196; International Trust Co. v. Schumann, 158 Mass. 287, 291, 33 N. E. 509; Roth v. Adams, 185 Mass. 341, 344, 70 N. E. 445. The remedy by an action at law in damages for these persistent trespasses alleged to have been participated in by the codefendant to which Nelson subsequently had leased the premises is not complete. If injunctive relief cannot be obtained to restrain the continuous assertion of a right of reentry where upon the averments of the bill such right does not exist, the plaintiff is subjected to vexatious litigation and must resort to multiplicity of actions. The right to possession can be determined in equity as

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