unless as a matter of law the car house was not subject to a mechanic's lien. The judge found in favor of the petitioner, ruled that the car house was subject to a mechanic's lien and that the lien should be established, and reported the case for the consideration of the full court.

By the great weight of authority a mechanic's lien does not attach to public property unless the statute creating the lien expressly so provides. The broad language of the general lien act is construed as impliedly exempting property needed for the proper administration of government from seizure by creditors, on the ground of public policy or because the lien could not be enforced by the methods provided. Lessard v. Revere, 171 Mass. 294. Staples v. Somerville, 176 Mass. 237. Young v. Falmouth, 183 Mass. 80. Ann. Cas. 1914 C 102 note. See now St. 1915, c. 292, § 5, expressly exempting “any land, building or structure thereon owned by the Commonwealth, or by a county, city, town, water district or fire district."

The property of quasi public corporations, such as railroads, is expressly made subject to mechanics' liens by the statutes of some jurisdictions. And the general mechanics' lien laws have been held applicable to the property of such corporations in many of the States, although there is a considerable conflict among the decisions. See cases collected in notes, 7 Ann. Cas. 269, and Ann. Cas. 1913 C 95. In the present case it is enough to say that assuming, without deciding, that our statute should be construed as impliedly exempting from mechanics' liens property of a street railway company, the exemption should not extend to property which is not essential to the performance of the corporation's public duties. See 27 Cyc. 27; 20 Am. & Eng. Encyc. of Law (2d ed.) 296; Huntley Manuf. Co. v. Michigan Central Railroad, 76 Ill. App. 387; Pittsburg Testing Laboratory, Ltd. v. Milwaukee Electric Railway & Light Co. 110 Wis. 633; Guest v. Merion Water Co. 142 Penn. St. 610; Buncombe County Commissioners v. Tommey, 115 U. S. 122; National Foundry & Pipe Works, Ltd. v. Oconto City Water Supply Co. 113 Fed. Rep. 793, 801.

The auditor has found that the car barn was not essential to the operation of the respondent's street railway. We cannot say as matter of law that this finding was not warranted. The company

had car barns at three other places when the contract was made. Apparently it could have rebuilt on the site of the destroyed barn, or have provided shelter for all its cars on land adjacent to the other car houses, instead of purchasing the present lot half a mile east of the old site. During the nine months that intervened between the burning of the old barn and the occupancy of the one in question, the respondent maintained its regular schedule, and the operation of its cars was interfered with only to the extent that the men had to report at temporary quarters and to do some necessary work on the cars out of doors. The heavy repairs always had been done at the Wellesley Hills car house. The fact that the action of the respondent's officers in erecting the new building was reasonable and economical is not enough to exempt this property from liability for the benefits it has received from the labor furnished by the plaintiff.

The Legislature in some instances has given a direct personal action against the public service corporation to persons furnishing labor or materials upon its property. For instance, one to whom a debt is due for labor performed or for materials furnished and actually used in constructing a railroad or a street railway under a contract with a third person, may have such a right of action. St. 1906, c. 463, Part II, § 218; Part III, § 117. The respondent's argument that this last statute should be construed as excluding the petitioner's right to a lien has no force. Assuming that he comes within the terms of Part III, § 117, he is expressly denied the benefit of the act by § 118, which provides: "A person who has contracted to construct the whole or a specified part of such street railway shall not have such right of action." See Lessard v. Revere, 171 Mass. 294, 295; Friedman v. County of Hampden, 204 Mass. 494, 507.

In our opinion the car house was subject to a mechanic's lien. Courtemanche v. Blackstone Valley Street Railway, 170 Mass. 50. Woodruff v. Hovey, 91 Maine, 116. In accordance with the report, a lien is to be established in favor of the petitioner in the sum of $10,029.44 with interest at six per cent from July 28, 1908; and it is

So ordered.

MARY J. HICKEY vs. ELIZABETH L. HICKEY & others.

Middlesex. February 26, 1917.- February 28, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

Practice, Civil, Matters outside record before this court.

A copy of a will printed in a brief of counsel at an argument before this court, which is no part of the record, cannot be considered by the court.

PETITION, filed in the Superior Court on September 17, 1915, by the alleged owner as a tenant in common of one undivided half of a parcel of land on Butterfield Street in Lowell against her alleged co-tenant in common for partition.

The respondents filed answers.

The case was heard by Hamilton, J., who made the following order:

"In the above action I find upon due consideration and hearing that, upon the issues raised by the petition and answers, the petitioner is entitled to have partition for one half of the estate as claimed in said petition and do order that partition be made accordingly."

The respondent James A. Hickey appealed.

In the brief of the appealing respondent he undertook to found an argument on the provisions of the will of Walter Hickey, late of Lowell, under whom all the parties claimed title, and a copy of this will was printed in his brief which did not appear anywhere in the record.

The case was submitted on briefs.

J. A. Hickey, respondent, pro se.

L. T. Trull & F. N. Wier, for the petitioner.

BY THE COURT. The record in this case consists of a petition for partition of land, an answer by the appellant and another answer by two other respondents, an order for partition made by the Superior Court judge, and an appeal. No question of law whatever is raised by the appeal.

The copy of a will printed in the appellant's brief is no part of the record and cannot be considered.

Order for partition affirmed.

HARRY YORRA vs. CHARLES J. LYNCH.

SAME vs. EDWARD C. DONNELLY.

Suffolk. October 19, 20, 1916. — March 1, 1917.

Present: RUGG, C. J., LORING, BRALEY, PIERCE, & CARROLL, JJ.

Nuisance. Landlord and Tenant. Negligence, Of one controlling real estate. Party Wall. Evidence, Presumptions and burden of proof.

If a minor son of the tenant of a tenement in a building on a city street is leaning out of a window in his father's tenement and is struck on the head by a piece of old galvanized iron that formed a part of the capping of a party wall of the building, he can maintain an action against the owner of the building in control of the party wall for his injuries thus sustained.

One who has hired the exclusive right to use the roof of a building for bill posting and general advertising and has agreed "to keep the roof in repair" is under no obligation to repair the capping of a party wall of the building which is not a part of the roof.

On the question whether a party wall of a building is under the control of the owner of the building, if it appears that the adjoining building is one story lower, it must be inferred in the absence of other evidence that the wall was built by the owner of the higher building or some predecessor in title of that owner and remained in his control.

A minor son of the tenant of a tenement in a building on a city street, who is leaning out of a window of his father's tenement, has the same right not to be struck on the head by a piece of metal falling from the building that a traveller on the adjoining sidewalk has.

TWO ACTIONS OF TORT, both by a minor by his next friend, for personal injuries sustained by the plaintiff on September 27, 1914, when he was leaning out of an open window in the tenement let to his father in the building numbered 155 on Leverett Street in Boston, by being struck on the left side of his head by a piece of metal that had become detached from some part of the building, the first action being against the owner of the building and the second action against the tenant of the roof of the building. Writs dated respectively November 18, 1914, and August 2, 1915.

In the Superior Court the cases were tried together before Fessenden, J. The evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant in each action, and at the request of all the parties

reported the cases for determination by this court, with the stipulation that, if the ordering of the verdicts was right, final judgment should be entered for each defendant, and that, if one case should have been submitted to the jury, and the other not, then final judgment in the sum of $400 should be entered for the plaintiff in the case which should have been submitted to the jury and final judgment should be entered for the defendant in the other If both cases should have been submitted to the jury, then final judgment in the sum of $200 was to be entered for the plaintiff in each case.

case.

H. Silverman, for the plaintiff.

C. L. Allen, (B. H. McKinley with him,) for the defendant Lynch.

E. C. Stone, for the defendant Donnelly.

LORING, J. The decision in Green v. Carigianis, 217 Mass. 1, is decisive of the main issue in the case at bar. In Green v. Carigianis, it was decided that the plaintiff made out a case by showing that while passing along the sidewalk he was struck by a slate which fell from the roof of a building in the occupation and control of the defendant. In the case at bar there was evidence that the plaintiff, while leaning out of a second story window of a building owned by and in the control of the defendant Lynch, was struck by a part of the capping of the party wall; that the building was owned by Lynch and was let by him in tenements; that the second story was let to and occupied by the plaintiff's father (apparently as a subtenant) and that the plaintiff was a member of his father's family; that the capping which fell on the plaintiff was a piece of old galvanized iron that had been exposed to the elements for some three or four years, which was the average life of such material; and that it came from some part of the party wall within ten feet back from the front of the building.

1. Lynch's first contention is that if either defendant is liable it is not he but Donnelly. This contention is founded on the fact that Lynch had let to Donnelly the exclusive right to use the roof foribill posting and general advertising and upon the further fact that in this connection Donnelly had agreed "to keep the roof in repair" and so had become the person who was liable (if either was liable) within the doctrine of Wixon v. Bruce, 187 Mass. 232.