j^ -^ ^ - /- Q9p- X7 4-y 7 ^^7Y^ - L7^^^ -f ^ "^ ^^^^~~~~~~~ P-A ^b~^~^ r-( w -y- -^ O^7% A DIGEST OF DECISIONS OF MUNICIPAL INTEREST OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1804-1865. PUBLISHED BY ORDER OF THE CITY COUNCIL OF BOSTON. BOSTON: J. E. FARWELL & COMPANY, PRINTERS TO THE CITY, No. 37 CONGRESS STREET. 1866. Entered according to Act of Congress, in the year 1866, by THE CITY OF BOSTON, in the Clerk's Office of the District Court of the District of Massachusetts. PR EFACE THIS digest has been prepared in accordance with the suggestion of the committee under whose supervision the last edition of the Laws and Ordinances of Boston was published, that the supplementary volume proposed by them should contain " an explanatory list... of the cases decided in the Supreme Court upon points of municipal interest." Laws and Ordinances, (ed. of 1863,) page xiv. All the published volumes of reports of the decisions of the Supreme Judicial Court of this state have been carefully examined in its preparation, from the first volume of Massachusetts Reports to the tenth volume of Allen's Reports, inclusive, and also the decisions which are to appear in the unlpublished volumes (the twelfth, fifteenth, and sixteenth) of Gray's Reports. Some unpublished decisions in the hands of Mr. Allen are also cited. In citing unpublished decisions, those volumes of reports are referred to in which the cases will probably appear. It has been thought. best to omit from this digest decisions considered to have no direct or indirect application to the affairs of the city of Boston. Among these are cases concerning the form, service and return of warrants for town meetings, concerning the creation of and alterations in school districts, and iv PREFACE. concerning controversies between towns and county commissioners as to the construction of ways. Some decisions considered to have been rendered obsolete by subsequent legislation have also been omitted. Among these are the unpublished cases concerning alien passengers in Boston, decided in 1860. JAMES C. DAVIS. BOSTON, June 1, 1866. I ND )E X. NorE — Titles which contain references to other titles only, are printed in italic capitals in this index. PAGE. ACTIONS...................................... SET-OFF. ~ ~ ~~~~~ ~.....~.......~~~ 4 ~~ TRUSTEE PROCESS............................. 5 AMUSEMENTS.............................. 5 ANNEXATION AND DIVISION OF TOWNS................... 5 APPRENTICES........................... 6..6 APPROPRIATIONS................................. 6 OF THE REMEDY IN EQUITY IN CASES OF ILLEGAL APPROPRIATIONS... 9 ASSESSORS.....S............................... 9 BONDS..................................... 9 BOUNDARIES................................... 10 BOUNTIES TO VOLUNTEERS......................... 11 BRIDGES.................................... BUILDINGS.....................................1 BURIALS AND BURIAL GROUNDS....................... 11 CARRIAGES.................................... 11 LAW OF THE ROAD...........................12 FAST DRIVING............................12 CHARTER......................................12 COLLECTORS................................. 13 COMMION AND PUBLIC SQUARES..................13 CONSTABLES.............................. 13 CONSTITUTIONAL LAW........................ ~ 13 CONTRACTS.....................................14 DISTURBANCE OF PUBLIC MEETINGS. 1................ 16 DOGS.....................................17 DOMICIL............................ 17 ELECTIONS................................. 19 QUALIFICATIONS OF ELECTORS....................... 20 OF THE REMEDY AGAINST OFFICERS FOR REFUSING VOTES, &C.....20 vi INDEX. PAGE. ElTOPPEL.....................................21 FANEUIL HALL MARKET............... 21 FAST DRIVING. See CARRIAGES. FERRIES..................................... 22 FIELD DRIVERS; POUNDS AND IMPOUNDING OF CATTLE........22 FINANCE...................................... 25 FIRE......................................... 25 FISH...............................2..........26 FLA TS............................... 26 GUNPOWDER.......................... 26 HEALTH......................................27 HOUSE OF CORRECTION AND JAILS......................28 IMPOUNDING OF CATTLE. See FIELD DRIVERS, &C. INDICTMENT................................... 30 INFORMATION.............................30 JURIES.....................~................30 LAWTV OF THE ROAD. See CARRIAGES. LICENSES.3.........................31 LORD'S DAY.......................3............. M4ARIKET-HO USES........................... 31 M~ILITIA......................................31 MILK........................................31 NUISANCES................................... 32 OFFICERS............................ 32 ORDINANCES AND BY-LAWS......................... 35 OVERSEERS OF THE POOR........................... 37 PAUPERS..................................... 38 1. WHAT CONSTITUTES A PAUPER, AND WHIO CAN ACQUIRE A SETTLEIENT 38 II. SETTLEMENT OF PAUPERS; How ACQUIRED OR LOST......... 39 (a) By Approbation, and not being warned out.............. 39 (b) By Derivation..............................40 (c) By living on a Freehold Estate, &c................... 42 (d) By having an Estate, &c., and being assessed therefor....... 43 (e) By serving as a Town Officer, or being an Ordained Minister...... 44 (f) By Incorporation or Division of Towns.................. 4 (g) By Residence and paying Taxes..................... 47 (h) How prevented by being relieved as a Pauper............. 49 (i) How lost, when once acquired...........- ~.......... 50 III. ACTIONS FOR SUPPORTING PAUPERS................. 50 (a) Against the Pauper's Kindred...................... 50 (b) By Individuals against Towns..................... 51 (c) By Towns against Individuals..................... 53 (d) By Towns against Towns...................... 53 (1) Wien and for what the Action will lie; and o' the Pleadings, Evidence, and Trial................ 53 INDEX. vii PAGE. (2) Of the Notice........8................ 8 (3) Estoppel.............................60 IV. REMOVAL OF PAUPERS......................... 61 V. PENALTY FOR BRINGING A PAUPER INTO A TOWN.......... 61 VI. LUNATIC PAUPERS AND STATE PAUPERS............ 62 PENALTIES................................. 63 POLICE.......................................64 POUNDS. See FIELD DRIVERS, &C. PRESCRIPTION................................ 65 PUBLIC BUILDINGS............................... 65 PUBLIC LANDS................................. 65 RAILROADS.................................... 66 STREET RAILWAYS......................... 69 RECONSIDERATION.9............................. 69 RECORDS..................................... 69 REPRESENTATIVES IN THE GENERAL COURT............ 70 REWARDS................................70 RIOTS...................................... 71 SCHOOLS........................... 71 SEALS......................... 74 SET-OFF. See ACTIONS. SEWERS AND DRAINS................... 75 SMOKING IN THE STREETS....... 76 SPENDTHRIFTS............................... 77 STABLES..........................77 STATE TREASURY..................77 STEAM ENGINES............77 SWINVE..................................... 77 TAXES........................................77 I. PERSONS AND PROPERTY SUBJECT TO TAXATION............ 77 II. WHERE AND TO WHOM POLLS AND PROPERTY SHALL BE ASSESSED. 80 III. MANNER AND VALIDITY OF THE ASSSESSENT........... 84 IV. COLLECTION OF TAXES..........................86 (a) Generally............................. 86 (b) By Action at Law..................... 87 (c) By Arrest.......................87 (d) By Distress and Sale; Lien on Land................ 88 V. REMEDY FOR AN ILLEGAL TAX..............:.... 91 (a) Whether by Action or Abatement............... 91 (b) Of the Action to recover back................... 92 (c) Of the Abatement........................ 93 (d) Of Actions against Assessors and others.............. 94 TREASURER...................................94 TRUSTEE PROCESS. See ACTIONS. TRUSTS............ *...........~. ~ ~ ~ ~~ ~ 95 viii INDEX. PAGE. WATER.............................. 95 WAYS.................................... 96 1. PROCEEDINGS IN LAYING OUT AND ALTERING PUBLIC WAYS..... 96 (a) Application; and Adjudication as to whether the Public Safety and Convenience require the Laying out or Alteration........ 96 (b) Location or Laying out, and Altering; Prior Notice thereof; Agreements with Land owners.................... 98 (c) Where Ways may be laid out..................... 102 II. PUBLIC WAYS BY DEDICATION, BY PRESCRIPTION AND USE, AND BY NECESSITY........ ~................. 103 (a) By Dedication...........................103 (b) By Prescription and Use................104 (c) By Necessity.........................106 III. DISCONTINUING PUBLIC WAYS; DAMAGES THEREFOR........ 106 IV. PROCEEDINGS ON AN APPLICATION FOR A JURY.......... 107 (a) Who are entitled to Damages; Waiver of Damages........107 (b) Application for a Jury, and Notice thereon.............108 (c) Proceedings before Jury; their Powers and Duties.......,.110 (d) Elements and Computation of Damages; Evidence thereof.....110 (e) Verdict, and Judgment thereon............. 1....1 4 V. REPAIRING PUBLIC WAYS; POWERS AND DUTIES OF HIGHWAY SURVEYORS................................115 VI. DEFECTS AND OBSTRUCTIONS IN WAYS.............116 (a) Liability of Towns to an Action..................116 (b) Where the Plaintiff's Negligence or other Causes concur...... 120 (c) Evidence, Trial, Damages.....................124 (d) Indictments against Towns.....................127 (e) Liability of Individuals for Obstructions; Civilly and Criminally.. 128 VII. RIGHTS OF THE PUBLIC AND OF LAND OWNERS IN THE SOIL OF PUBLIC WAYS........................... 131 VIII. LIMITS AND BOUNDARIES OF WAYS; FENCES, &C..........132 IX. RAILROAD CROSSINGS; SIDEWALKS IN TIE CITIES OF LOWELL AND CHARLESTOWN........................133 X. OF THE REMEDIES FOR IRREGULARITIES IN LAYING OUT AND COMPLETING WAYS; AND OF SOME OTHER MATTERS...........135 TABLE OF CASES...................................138 DIGEST. ACTIONS. made, may be maintained without proof of a 1. When judgment is recovered against the formal vote of the town authorizing the. acinhabitants of a city, town, parish, or school tion. Blackstone v. Taft, 4 Gray, 250 (1855). district, execution may be levied upon the 8. An action sounding in tort may be mainproperty of any inhabitant thereof, as each tained against a municipal corporation. Thayer inhabitant must be considered a party to the v. Boston, 19 Pick. 511 (1837). suit. 5 Dane Ab. 158. Riddle v. Proprietors 9. A municipal corporation may be liable of Locks and Canals, 7 Mass. 187 (1810). in an action of the case, for an act which would Brewerv. New Gloucester, 14 Mass. 216 (1817). warrant a like action against an individual, Chase v. Merrimnack Bank, 19 Pick. 564 provided that such act is done by the author(1837). Gaskill v. Dudley, 6 Met. 546 (1843). ity of the corporation, or of a branch of its 2. D. recoveredjudgment by default against government invested with jurisdiction to act a school district, in an action of contract, and for the corporation upon the subject to which levied his execution on the goods of G., an in- the particular act relates, or that after the act habitant of the district. G. sued D. in an ac- has been done, it has been ratified by the cortion of trespass, for so levying on his goods. poration by any similar act of its officers. lb. Held, that G. could not give evidence that D. 10. A city is not liable for an assault and ought not to have recovered judgment against battery committed by its police officers, even the district, by reason of a breach by him of though it was done in an attempt to enforce the contract declared on in his action. Gas- an ordinance of the city. Buttrick v. Lowell, kill v. Dudley, 6 Met. 546 (1843). I Alien, 172 (1861). 3. Arf incorporated city need not sue in the 11. The action of a city in authorizing and name of " the inhabitants of the city," but employing its solicitor to appear and defend may sue by its name of incorporation. Lowell an action brought against its police officers v. Morse, 1 Met. 473 (1840). for an assault and battery committed by them, 4. A suit by " the city of Lowell," (the cor- does not make the city liable to pay damages porate name of the plaintiffs,) on a bond given for the assault and tattery. lb. to the plaintiffs, may be maintained, although 12. A town is not liable for an injury susit appears that the plaintiffs were named in tained by reason of tle negligence of a laborer the bond "the inhabitants of the city of employed by one of its highway surveyors, to Lowell." lb. aid him in performing the duties of his office. 5. An action on a promise to the mayor and Walcott v. Swampscott, I Allen, 101 (1861). aldermen of a city to pay for a license for a 13. An action of tort lies against a city in theatrical exhibition, is rightly brought in the behalf of the owner of land through which its name of the city, the mayor and aldermen agents have unlawfullyj made a sewer. Hilbeing merely agents of the city. Boston v. dreth v. Lowell, 1 Gray, 345 (1858). Schaffer, 9 Pick. 415 (1830). 14. A town is not liable for an arrest and 6. On a bond made to the Commonwealth, imprisonment by its collector, for nonpayment "for the use of the town of N.,"no action lies of taxes, illegally included in his warrant, by the town, although the forfeitures belong and since abated, although it afterwards pays to the town by statute. Northampton v. Elwell, the collector's fees for serving the warrant, 4 Gray, 81 (1855). and the charges of.the imprisonment. Perley 7. An action on the bond of a collector of v. Georgetown, 7 Gray, 464 (1856). taxes, brought by authority of the town trea- 15. If a tax title proves invalid, the pursurer, in the name of the town to whoun it was chaser at the collector's sale cannot maintain 1 2 ACTIONS. an action against the town to recover back 22. The remedy of an owner of land for the money paid by him as the consideration' injury done to his land by the city by making of the purchase, and the expenses of defend- an excavation in a public street, and thus ing his title. Lynde v. Melrose, 10 Allen, 49 turning the water accumulated thereon into a (1865). But see St. 1862, c. 183, ~ 6. private drain running through his land, is by 16. A town, which has assumed the duties petition under the Rev. Sts. c. 25, ~ 6, (Gen. of school districts, is not liable for an injury Sts. c. 44, ~ 19,) and not by action of tort. lb. sustained by a scholar attending the public 23. No action lies against a city for a school from a dangerous excavation in the failure to keep a public sewer and cesspool in schoolhouse yard, owing to the negligence of repair, whereby waste water accumulates and the town officers. Bigelow v. Randolph, 14 flows into the cellar of a neighboring house, Gray, 541 (1860). which is not connected by a drain with the 17. A police officer is not a servant of the. public sewer. Barry v. Lowell, 8 Allen, 127; city which appoints him, in any such sense as (1864). to take away his right of action against it for 24. A citizen who furnished cattle to a an injury sustained by reason of a defective public enemy, at the request of the selectmen highway. Kimball v. Boston, 1 Allen, 417 and other citizens of the town, in compliance (1861). with the exactions of such enemy upon the 18. If the expense of keeping a bridge in town, and to prevent the execution of his repair is imposed by statute upon several threats of violence, acquired thereby no right towns and a railroad company jointly, with a of action against the town for his indemnity. provision that the municipal authorities of Hlalibuerton v. Franklfort, 14 Mass. 214 one of the towns shall have the care and (1817). superintendence of it, and shall employ all 25. An inhabitant of another state, who services necessary in the care of it, no action sustains an injury in consequence of a defect lies against said town in favor of the railroad in a highway, may bring his action against company, to recover for damages sustained the town or city bound to repair the same, in by the latter in consequence of a defect in any county in the commonwealth. Raymiond the bridge. Malden' Melrose Railroad v. v. Lowell, 6 Cush. 524 (1850). Charlestown, 8 Allen, 245 (1864). -26. A town which voluntarily pays the fees 19. County commissioners, having laid out of commissioners appointed by the legislature a highway through a town, and across two to establish the boundary line between it and channels of a stream, ordered the town to another town, under a resolve of the legislainake an embankment, several rods from the ture providing that such fees shall be paid by highway, which should turn all the waters of the towns, one half by each, cannot recover the stream into one of its channels, and pre- from the other town any part of the sum paid. vent the necessity of making more than one South Scituate v. Hanover, 9 Gray, 420 bridge in the highway. The town passed no (1857). vote and did no adt in the matter, but the 27. Money charged by a city for a wagonselectmen caused the embankmentto be made, er's license, and paid with a full knowledge and paid for'making it by an order on the of the facts, will be deemed to have been paid town treasurer. Held, that the town was not voluntarily, though paid under protest, and liable to an action by the owner of land which cannot be recovered back. Cook v. Boston, was flooded and injured in consequence of the 9 Allen, 393 (1864). making of the embankment. Anthony v. 28. Selectmen of a town may discontinue a Adams, I Met. 284 (1840). suit in equity brought by them to restrain a 20. An action of tort will not lie against a railroad corporation from unlawfully and dancity for obstructing a stream to the injury of gerously running cars on their road; although a mill, by the erection of a bridge, if the a temporary injunction has been issued; bridge is suitably constructed so as to let the and although some of the inhabitants of the water pass off with reasonable freedom, at all town move to come in and prosecute the suit. times, except in case of extraordinary freshets Mears v. Boston - 1,N. Y; Central Railroad, not occurring annually. Sprague v. Worces- 5 Gray, 371 (1855). ter, 13 Gray, 193 (1859). See Lawrence v. 29. Orders for money, made payable to Fairhaven, 5 Gray, 110; Perry v. Worcester, bearer, drawn by the selectmen of a town and 6 Gray, 544; Wheeler v. Worcester, 10 Alien. accepted by the town treasurer,without express 21. No action lies against a city for the in- authority of the town, will not render the town iury occasioned to land bounding on a public liable to an action in the name of any one other street from the accumulation of water on the than the person to whom they were issued. surface of the street, which the city has neg- Smith v. Cheshire, 13 Gray, 318 (1859). lected to drain. Flagg v. Worcester, 13 Gray, 30. A town treasurer is not liable in an ac601 (1859). tion for money had and received, to a creditor ACTIONS, 3 of the town, for merely neglecting to pay over the town appointed a committee to defend an money in his hands appropriated by the town action brought against the surveyor therefor, to the payment of the claim of such creditor, and voted to defray the expenses incurred by and ordered to be so paid by the selectmen; the committee, it was held, that the town was but the remedy of the creditor is by an action bound by such vote, and that the committee against the town. }leston v. GibSs, 23 Pick. were entitled to compensation and indemnity 205 (1839). from the town, for their expenses and services. 31. In an action brought by a town against Bancioft v. i]ynnfield, 18 Pick. 5G6 (1836). the town treasurer for money had and received 37. It is competent for the inhabitants of a by the defendant to the plaintiff's use, the town to take upon themselves the expenses of evidence tended to show that the defendant a suit against their agent or servant, in whiich had received certain sums as such treasurer, the interests of the town are directly involved. which had not been charged to him in his an- Babbitt v. Savoy, 3 Cush. 530 (1849). nual settlement, and that, therefore, a larger 38. A town having appointed a committee balance should have been credited to the town for an illegal purpose, with authority to deby him in his account. The defendant's an- fend all suits which might grow out of the swer put in issue any such liability. H eld, same, and also voted that all costs, expenses, that the whole account between the parties and trouble which the committee might incur was necessarily opened, and that the defend- in the premises, should be paid by the town; ant might show that certain taxes charged to it was held, that the town were not liable for him in the account had not been legally as- the services of the committee rendered in sessed, and that he could not legally collect effecting the purpose of their appointment; them. Adams v. Fairnsworth, 16 Gray, but were liable for services performed by them (1860.) in defending an action brought against the 32. A town is not liable to an action by the town on account thereof; Drake v. Si'ooglooa, state commissioner for the sale of liquors, for 6 Cush. 393 (1850); and were also liable for the price of liquors bought of such commis- professional services rendered by counsel emsioner on credit by the town agent appointed ployed by the committee in defence of such a under St. 1855, c. 215, ~ 5 (Gen. Sts. c. 86, ~ suit. Cushing v. Siought7on, Ib. 389. 17). aictnsfield v. Stozeham, 15 Gray, 39. The inhabitants of a school district, (1860). But see now St. 1861, c. 136, ~ 2. having passed a vote to build a sc'oolhouse, 33. Where a statute requires a demand to appointed a committee to select and purchase be made in writing on the mayor and alder- a lot of land for that purpose, and, upon a remen of a city thirty days before the commence- port of the committee, gave theml instructions nent of'a suit, an agreement in a case stated, to purchase a particular lot; tle committee that a demand was made on the city, will be accordingly purchased the lot so designated, understood to be such a demand as is required and as the only condition upon which they by the statute. Jennisonv. Roxbury, 9 Gray, could obtain a conveyance, gave the seller 32 (1857). their individual note for the purchase money; 34. In action against a town to recover for a deed was then made to the committee and work done under a contract in building a road, the other inhabitants of the district, in their the plaintiff may recover under a general corporate capacity, of the lot of land thus count the value of the work, provided it was purchased; the district subsequently rescinded done in good faith and is beneficial to the de- their votes relative to the building of the fendants, although the contract has not been schoolhouse, and the committee afterwards fully performed. Reed v. Scituate, 5 Allen, paid the note which they had given for the 120 (1862). land. In an action by the committee against 35. A city, whose charter and ordinances the district, it was held, that the plaintiffs were provide that no contract shall be binding on entitled to recover the sum so paid by them, the city, unless made by some authorized notwithstanding they had reason to suppose, agent, and within some appropriation for the before the purchase was made, that a meeting purpose, is not liable for legal services, bene- of the district would be held for the purpose ficial-to the city, performed by counsel re- of rescinding the votes under which the plaintained by a majority of the members of the tiffs were authorized to proceed, and notwithboard of aldermen, without any official action standing the rescinding of tlose votes, and the of the city council or of either branch thereof; fact that the payment was made by the plainalthough the usage of the city has been to pay tiffs subsequently thereto. Kingman v. NVorth such bills, approved by a committee of either Bridgewater, 2 Cush. 426 (1848). board, without any formal vote. Butler v. 40. A town is not bound by its corporate Charlestown, 7 Gray 12 (1856). vote, to pay the expenses of a field driver in 36. Where a drain was dug by a surveyor of defending a suit brought for taking up and highways, for the purpose of raising a legal impounding cattle running at large contrary question as to the bounds of a highway, and to law; such agreement not being within the 4 ACTIONS. scope of a town's corporate powers. Vincent of that term, even though they have leave to file v. Nantucket, 12 Cush. 103 (1853). their answer in the vacation. Walpole v. 41. On a vote of a town to indemnify their Gray, 11 Allen, (1865). selectmen against any claim for damages and 47. A citizen of a town who enlisted in the costs of a certain description which may be military service of the United States after a legally substantiated against them, the select- vote of the town to pay a monthly sum to each men may maintain an action against the town citizen thereof who should so enlist had been to recover the amount of a judgment rendered terminated, under St. 18G1, c. 222, ~ 2, by the against them for such damages and costs, and lapse of ninety days, cannot maintain any acthe fees of counsel and witnesses, and other tion against the town to recover the bounty so expenses, incurred reasonably and in good voted. Curtis v. Pembroke, 11 Allen, faith in defending the action in which the (1865), judgment was recovered, without proving that 48. If prior to St. 1861, c. 222, a town has the town had notice of the pendency of the voted that a certain sum monthly should be action. IHadsell v. Hancock, 3 Gray, 526 paid to each citizen of the town who should (1855). enlist in the military service of the state, with 42. A vote of a town to indemnify its three the intention of serving in the army of the selectmen against any claim for damages and United States, if called upon, a citizen who so costs of a certain description which may be enlisted under that vote, may, under that statlegally substantiated against them or either of ute, maintain an action against the town to them, will support a joint action against the recover such pay for a time not exceeding town by two of the selectmen, without joining ninety days from his enlistment. Grover v. the third, to recover the amount of a judg- Pembroke, 11 Allen, (1865). ment for such damages and costs recovered in 49. Receiving state aid will not prevent a an action against the two, and paid by one of soldier fiom recovering any sum to which he them, and also the reasonable expenses of de- may be entitled under the votes of the town in fending the action, paid and incurred by the which he enlisted. lb. two separately. lb. 50. A vote passed at a town meeting, ap43. An action of tort lies against a city to pointing a committee "to settle the dispute" recover damages occasioned by the obstruc- between the town and the plaintiff, was held tion, owing to negligence on the part of the not to take the plaintiff's demand out of the city, of a natural watercourse, through a cul- statute of limitations. Fiske v. Needhamn, 11 vert under a highway, although the plaintiff is Mass. 452 (1814). the owner of the land on both sides of the 51. A vote of an authorized committee of a highway. Parker v. Lowell, 11 Gray, 353 city, electing their clerk city engineer for a (1858). year from a subsequent day, duly recorded, 44. In an action against a city for damages and signed by him as their clerk, is sufficient suffered by the obstruction of a culvert for a to take his appointment out of the statute of watercourse under a highway, the judge in- frauds, although the amount of compensation structed the jury that the burden of proof was is not named in the vote. Chase v. Iowell, on the plaintiff to show that the injury sus- 7 Gray, 33 (1856). tained by him was attributable solely to the See ANNEXATION AND DivisiN OF TowNs, negligence of the defendants in omitting to - APPROPRIATIONS, 20-28; CONTRACTS; remove the obstruction, and that in the ab- I)OG, 2; ELECTIONS, 25-32; FINANCE; FE; sence of any proof of neglect or want of care FIH, 6-8; GUNPOWDE; HEALTH, 14; by~the plaintiff or a stranger, in any way con- HOUSES OF CORRECTION AND JAILS; OFFItributing to the injury or to the obstruction in ERS ORDINANCES; PAUPERS; PENALTIES; the culvert, if the defendants through negli- SCHOOLS, 24, 27, 33-37: S1 Iw S AND DRAINS; gence suffered the culvert to be obstructed, TAXES; TREASURER; WATER 2-4; WAYS. and the injury was caused by reason solely of said obstruction, the defendants would be lia- et-of ble. It was held, that the defendants had no 52. Where the official bond, given to a ground of exception. Ib. town by a collector of taxes and his sureties, 45. Inhabitants of a town are not competent is several as well as joint, and the collector to be appraisers of land upon the extent of an brings an action against the town n o a demand execution in favor of the town. Boston v. which is itself the subject of set-off, the defendTileston, 11 Mass. 468 (1814). But see Gen. ants may set off their claim on such bond for Sts. c. 122, ~ 13. money which the plaintiff has received on tax 46. If the defendants in an action brought bills committed to him for collection, and in favor of a town have filed an affidavit of which he has not accounted for nor paid over. merits at the first term, the objection that the Donelsen v. Coleraiz, 4 Met. 430 (1842). action was brought without the authority of 53. Taxes, being neither judgments nor the town cannot be taken after the expiration contracts, are not the subject of set-off under ACTIONS - ANNEXATION, ETC. OF TOWNS. 5 the provisions of the Rev. Sts. c. 96 (Gen. 3. An action on a promise to the mayor and Sts. c. 130). Peirce v. Boston, 3 Met. 520 aldermen to pay for a license, is rightly (1842). See Commolnwealth v. Phrnix Ban/c, brought in the name of the city, the mayor 11 Met. 135; Appleton v. Ilocpkins, 5 Gray, and aldermen being merely agents of the city. 533. Ib. Trustee Process. 4. It is competent to the legislature to 54. An order of a city council, upon laying grant to a city or town, power to exact the out a street, that a certain sum be paid, as payment of money as one of the conditions of damages, to a party over whose land the street granting a license for theatrical exhibitions. was laid out, does not constitute a debt due l from the city, and therefore does not make. A school for the teaching of dancing the city liable as trustee of such party, under does not require a license from the mayor and the provisions of statute regulating the trustee aldermen or selectmen, allhough admittance process. Fellows v. Duncan, 13 Met. 332 thereto is paid for on each evening. Con(1847). monwealth v. Gee, 6 Cush. 174 (1850). 55. Payment of money by a town to the prudential committee of a school district in the town, for the purpose of being paid over ANNE AND DIVISION OF to an instructor of a school for his wages, does ANNEXATION AND DIISION OF not make the committee liable in the trustee N. process as the instructor's trustee, nor dis- 1. The act for the annexation of Charlescharge the town from its liability to the in- town to Boston, (St. 1854, c. 433,) is unconstructor. Clark v. Great Barrington, 11 stitutional and wholly void; because it underPick. 260 (1831). takes to erect the territory of Charlestown, 56. A city officer, who is chosen for a year, until the next decennial census, into a represubject to be removed from office at any time, sentative district which is neither a town nor at the will of the mayor and aldermen, and acity; and contains no adequate provisions whose salary is payable quarterly, may legally to secure to the inhabitants of Charlestown make an assignment of a quarter's salary be- their rights to elect representatives and senafore the quarter expires. Brackett v. Blake, tors in the general court, and representatives 7 Met. 335 (1844). in congress. And the mayor and aldermen 57. Future wages to be earned under an of Charlestown were therefore justified in existing appointment as watchman of a city refusing to certify to the secretary of the may be assigned, by an order addressed to the Commonwealth the result of the votes of the treasurer of the city; and such an order, giv- inhabitants of Charlestown accepting said act. en in the middle of a month, for "the amount Wa'rren v. Charlestown, 2 Gray, 84 (1854). on my month's wages, when due," means the 2. Where a part of a town had been anwages of that month. Mlacomber v. Doane, nexed to and made part of a parish in another 2 Alien, 541 (1861); and see Ib. 40. town, without notice to such town or to the 58. A city cannot be charged as trustee of inhabitants of the part so annexed, and the a teacher of a public school, paid by a quar- same had been acquiesced in for nearly eighty terly salary, upon a process of foreign attach- years; it was held to be too late for this ment served in the middle of a quarter. Had- court to inquire into the constitutional authorley v. Peabody, 13 Gray, 200 (1859). ity of the legislature to make such annexa59. A county is not chargeable, in a trustee tion. Cobb v. Kingman, 15 Mass. 197 (1818). process, for compensation due to a juror and 3. When an act incorporating part of a ordered to be paid from the county treasury. town and constituting it a new town provides Williams v. Boardman, 9 Allen, 570 (1865). that all the debts due to or from the original town shall be divided between the two towns, in proportion to the state valuation, and that the poor, with which the original town was AMUSEMENTS.TT T then chargeable, together with those then reAivMUSEM~E~iNTSi. moved therefrom and afterwards returning for 1. Under St. 1821, c. 110, authorizing the support, shall be divided in the samne propormayor and aldermen of Boston to license tion, - the legal construction of such a protheatrical exhibitions, the license need not be vision is, that the debts are to be paid to or in writing. Boston v. Schaffer, 9 Pick. 415 by the original town, who may be compelled (1830). by the new town to pay over to it its propor2. Under the provision authorizing the tion of debts received, and may compel such mayor and aldermen to license theatrical ex- new town to reimburse its proportion of debts hibitions, "on such terms and conditions as paid; and that the charges of maintaining the to them may seem just and reasonable," they poor, and not their persons, are to be divided, may exact money for the license. Ib. each town having a remedy against the other 6 ANNEXATION - APPRENTICES - APPROPRIATIONS. for a reimbursement of any excess of such APPRENTICES. charges beyond its due proportion. Brewster 1. Under St. 1793, c. 59, ~ 4, (Gen. Sts. c. v. HIarwich, 4 Mass. 278 (1808). 111, ~~ 4, 5,) which provides that in certain 4. Such a provision does not affect the set- cases male children may be bound out as tlement of any of the inhabitants of either of apprentices by the overseers of the poor the towns. b.. apreties by the overseers of the poor the towns. alonI wadiiendb.o "until they come to the age of twenty-one 5. Where a town was divided, and apart of years," the overseers are not authorized to it established as a new town, after the corn- ind out a male child to serve as an appren: mencement of a suit in equity by such town tice until he shall be twenty years of age. against a railroad corporation, for a nuisance to Reidell v. Congdon, 16 Pick. 44 (1834). a public highway, which, upon the division, fell The same statute reires that in indenwithin the limits of the new town, and the act tures of apprenticeship by overseers of the for the division provided that such suit should poor, provision shall be made for instructing be assumed, and might be prosecuted to final te male children " to read, write, arrd cipher judgment, by the new town, at their expense for such other instruction, benefit and and for their benefit, but in the name of the allowance, either within or at the end of the old town; it was held, that the division did term, as to the overseers may seem fit and not operate to vacate or otherwise affect the reasonable." It was held, that an indenture, suit. Springfield v. Connecticut Rier Rail- in which the master merely covenanted to road, 4 Cush. 63 (1849). give the apprentice " the privilege of all the 6. The act incorporating a new town, cre- town schoolusually taught in the town " was ated partly from the town of B., provided that void. lb it should be entitled to a proportion of all the. An indenture of apprenticeship entered property, rights and credits of B. It was into by overseers of the poor, which does not held, that such new town was not therefore contain a provision fr the instruction of the entitled to any part of a fund arising from the minor in reading, &c. pursuant to the statutes, sale of land originally appropriated to the use is void in regard to all the parties. Butler v. of the ministry in the town of B. Harrison lbbard, 5 Pick, 250 (1828). v. Bridceton, 16 Mass. 16 (1819). v. Bridgeton, 16 Mass. 16 (1819). 4. The covenants in an indenture of ap7. Where part of a town is set off from one pricesip that the apprentice shall serve county and annexed to a tov'n in another n ship t hat the apprentice shall serve, county, by a statute which provides that "all provide for hi, are independnt; so that if taxes heretofore assessed shall be paid in the taxes heretofore assessed shall be pai inthe the apprentice, by reason of incurable illness, same manner as heretofore," and that th e becomes unable to learn his master's trade, first town " shall be holden to make the same or to perform the stipulated services, the appropriations on the territory thus set off, or to perform the stipulated services, the appropriations on the territory thus set off, master cannot of his own authority put an for roads, the current year, as though this end to the contract. Powers v. Tare, 2 Pick. act had not passed;" a highway which the 451 (1895) county commissioners of the first county, So if t apprentice steal his master's before the act of separation took effect, laid. b. out and ordered to be built by the first town, ecten o a town, o were ex must be completed by that town, and its corn- o oerseers of the poor, no persons aving otcio overseers of the poor, no persons having pletion may be enforced by said commis-been especially chosen overseers, ound out sioners, if it be proved that the town made an a child as anapprentice, by an indenture appropriation and assessed a tax for the pur- whe y designted t selves siply as pose before the act took effect; but not other- selectmen It was held, tlat the indeture wise. Norwich v. Hampden, 4 Gray, 172 was valid; and an action brought upon it by (1855). ^'( -r8 r -t'^^. )overseers of tlhe poor was sustained. Powers 8. St. 1853, c. 114, incorporating the town overses of te por was sain. of Nahant from the city of Lynn, and pro-. re, 2 Pick. 451 (1825 t 7. Where the master cut out his signature viding that it should be entitled to receive of from t indenture, by permission of one the city of Lynn its proportion of all the cor- o the seectmen, it w held, that he was property owedonly of the selectmen, it was held, that he was porate property ten owned Lnotdischarg ofthen one contract. lb. transfer or vest in Nahant the title to any real estate owned by Lynn. It gave them the right to receive their proportion of the corporate property. But when their proportion was ascertained, a conveyance would be ne- APPROPRIATIONS. cessary to pass the title to real estate. Sim-. It is doubtful whether atovn can legally mons v. Nahant, 3 Allen, 316 (1862). vote to pay for property furnished by a citizen See PAUPERS, 32, 52, 105-135, 237, 266; to a public enemy, at the request of the selectTAXES, 33, 47, 63. men, in compliance with the exactions of such enemy upon the town, and to prevent the ex APPROPRIATIONS. 7 ecution of his threats of violence. alibubr- was not such an excess of authority as to tonv. Frankfort, 14 Mass. 214 (1817). render the erection of the building and the 2. Towns have no authority, without special raising of money therefor illegal. Ib. authority from the legislature, in time of war 9. A town which acts also as a parish, may and danger of hostile invasion, to raise money raise money to repair a meeting-house as a to give additional wages to the militia and for compensation for the use of it for municipal other purposes of defence. Stetson v. iKemp- purposes, or to pay a sexton for ringing the ton., 13 Mass. 272 (1816). bell for town meetings, but such design 3. A town have no authority to vote money should appear in the vote; for primafacie for the purchase of uniforms for an artillery money to repair a meeting-house, or for the company; and will be restrained by injunc- pay of a sexton, is for parochial and not mution from paying the money, even after the nicipal purposes, and cannot be assessed on officers of the company, upon the faith of an such inhabitants as are not members of the order drawn in their favor by the selectmen parish. Woodbury v. Hamilton, 6 Pick. 101 on the town treasurer, have purchased the (1828). uniforms and deposited them in the armory, to 10. Towns have no authority to expend be there kept as the property of the town. money, or pledge their credit, to celebrate the Claflin v. ltopi7inton, 4 Gray, 502 (1855). anniversary of the surrender of Cornwallis. 4. If an expenditure of money was reason- Tash v. Adams, 10 Gush. 252 (1852). But see ably necessary and proper to enable towns to St. 1861, c. 165. fill the quotas of troops allotted to them re- 11. A town has no authority to appropriate spectively in the late war, it was competent money for the celebration of the Fourth of for the legislature to authorize the appropria- July. Hood v. Lynn, 1 Allen, 103 (1861). tion of money for that purpose, or to confirm Gerry v. Stozeham, Ib. 319. But see St. 1861, and make valid the doings of towns in raising c. 165. money for that object. Fowler v. Danvers, 12. A town has authority to provide for the 8 Alien. 80 (1864). support of a public clock, and to assess the 5. The legislature have power to authorize expense thereof upon the inhabitants of tle towns to raise money by taxation for the pur- town. Willard v. Newburyport, 12 Pick. 227 pose of refunding sums which have been con- (1831). tributed by individuals into a common fund 13. A town voted to raise and appropriate a for the general purpose of filling quotas of certain sum for purchasing a fire engine, protroops under calls of the President of the vided that the same amount should be raised United States during the recent war; but not by private subscription within ninety days, for the purpose of refunding sums paid by in- the engine to be located by the selectmen. A dividuals for substitutes. Freeland v. Hast- subscription was obtained for the sum reings, 10 Allen, 570 (1865). quired, but on condition that the engine should 6. The building of a theatre, a circus, or be located in a particular place designated, any other place of mere amusement, at the and in consequence the assessors declined acexpense of the town, could not be justified cepting it. Thereupon, with the consent of under the term "necessary town charges." a portion of the subscribers, but without the Nor could the inhabitants be lawfully taxed for knowledge of the others, the condition was the purpose of raising a statue or monument, erased; but one of the subscribers verbally these being matters of taste and not of neces- guaranteed to the assessors the payment of sity; unless, in populous and wealthy towns, tle whole sum; and in this form the subscripthey should be thought suitable ornaments tion was accepted, and the sum voted by the tobuildings or squares, the raising and main- town was assessed. fHeld, that there was a tenance of which are within the duty and care substantial compliance with the proviso of the of the governors or officers of such towns. vote, and, therefore, that the assessment was PARKER, C. J., in Stetson v. Kempton, 13 authorized. Torrey v. lMilbury, 21 Pick. 64 Mass. 279 (1816). (1838). 7. Cities and towns in this commonwealth, 14. A town is authorized to appropriate by virtue of their general powers, have author- money for the repair of fire engines used for the ity, in their corporate capacity, to build a purpose ofextinguishing fires therein, whether market-house, to appropriate money therefor, they belong to the town or were purchased by and to assess the same upon the inhabitants. private subscription. Alien v. Taunton, 19 Spaulding v. Lowell, 23 Pick. 71 (1839). Pick. 485 (1837). 8. Where a town built a market-house two 15. A town has authority to appropriate stories high, and appropriated the lower story money for the construction of reservoirs for for a market, which was bona fide their prin- water to supply fire engines. lardy v. Walcipal and leading object in erecting the build- thamn, 3 Met. 163 (1841). ing, it was held, that the appropriation of the 16. A town has no authority, it seems, to upper story to other subordinate purposes erect an embankment or other separate work, 8 APPROPRIATIONS. wholly detached from a road, for the purpose refusal or neglect so to do; but they have of facilitating the making, maintenance, or power to vote and grant money for the supfuture repair of the road. Anthony v. Adams, port of other town schools, for instruction in 1 Met. 286 (1840). other branches of knowledge which the revised 17. A town has no authority to raise money statutes do not require to be taught in such to aid in the construction of a road which by schools. Cushing v. NewbZluryport, 10 Met. law is to be made at the expense of the county, 508 (1845). and consequently a tax laid by the town for 24 a. A town which had raised money for the purpose of collecting the money is illegal the support of all the schools required by law, and void. Parsons v. Goshen, 11 Pick. 396 and had supported them, also raised money to (1831). support, and did support, a female high school 18. A town is authorized to indemnify its for the purpose of teaching book-keeping, officers against any liability which they may algebra, geometry, history, rhetoric, mental, incur in the bonafide discharge of their duties, moral and natural philosophy, botany, the although it turn out that they have exceeded Latin and French languages, and other higher their legal rights and authority. Bancroft v. branches of knowledge than were taught in Lynnfield, 18 Pick. 566 (1836). the grammar schools of the town. It was held, 19. A town may appropriate money to in- that this was a town school, within the meandemnify its school committee for expenses ing of the revised statutes, and that the money incurred in defending an action for an alleged for its support was legally raised by tax. lb. libel contained in a report made by them in 25. A town which had received its portion good faith, and in which judgment has been of the surplus revenue of the United States, rendered in their favor. Fuller v. Groton, 11 under St. 1837, c. 85, voted that the same Gray, 340 (1858). should be lent equally to each and every in20. In 1819 a town voted to raise a sum of habitant, that the notes of the individuals remoney for state, county, and town taxes; and ceiving the money should be taken therefor, the same was assessed, collected, and paid in payable when the state government should due proportions into the state, county, and call for the money, and that sureties should town treasuries; but in consequence of irreg- not be required on such notes. Held, that ularities in the assessors' proceedings, the such a disposition of the money would be a assessment was held to be illegal, and the as- violation of the provision of the statute that sessors, to prevent the bringing of actions towns shall apply their portions of such suragainst them by persons whose property had plus revenue, or the interest thereof, to those been distrained, refunded each a third part of public objects of expenditure, for which they the amount which had been collected by dis- might lawfully raise and appropriate money, tress, and afterwards, in 1824, the town voted and to no other purpose. Simmons v. HIanto raise a sum of money, and to direct the over, 23 Pick. 188 (1839). town treasurer to pay over, when it was col- 26. Towns have no authority to raise money lected, to the assessors, the amount which they for the purpose of abating a particular class had so refunded for the use of the town. It of taxes; and, therefore, had no right to apwas held, that without such a vote the town propriate the interest of the portion of the could not have been compelled to indemnify surplus revenue of the United States distrithe assessors. Nelson v. Milford, 7 Pick. 18 buted to them under St. 1837, c. 85, for the (1828). payment of poll-taxes. Cooley v. Granville, 21. field, also, that this vote was a promise, 10 Cush. 56 (1852). founded, so far as regarded the town tax, on 27. Certain surplus revenue of the United a valid consideration, and that it could not be States having been distributed to the several rescinded by a subsequent vote. lb. states, and the share of this commonwealtlh 22. Held, also, that in respect to the state thereof having been by St. 1837, c. 85, deand county taxes, this promise was without posited with the towns, to be applied "to those consideration. 1b. public objects of expenditure for which they 23. field, also, that the plaintiff, one of the may now lawfully-raise and appropriate monassessors, might bring his action against the ey," a town was enjoined from loaning its town to recover his third part embraced by the portion of the same to its inhabitants indi-0 promise; but that his own tax, paid by him vidually, on their personal security. Pop2- v. voluntarily, was not included in the promise, Halifax, 12 Cush. 410 (1853). and could not be recovered back. lb. 28. A town has no authority to appropriate 24. The power of towns to vote and grant money for the payment of expenses incurred money for the support of town schools is not by individuals, prior to its corporate existence restricted to the amount that is necessary to as a town, in procuring the passage of its support the schools which the Rev. Sts. c. 23, charter. Frost v. Belmont, 6 Allen, 152 (1863). ~~ 1-5, and 60, (Gen. Sts. c. 38, ~~ 1, 2, 14,) 29. A town is not responsible for the fidelity require them to support, under a penalty for of its field drivers; and is not bound by its APPROPRIATIONS - ASSESSORS - BONDS. 9 corporate vote, to pay the expenses of a field BON driver in defending a suit brought for taking BO up and impounding cattle running at large 1. A town treasurer and collector is liable contrary to law; such agreement not being on his bond for not paying over money colwithin the scope of a town's corporate powers. lected by him, although the same has been Vincent v. xanTltcket, 12 Cush. 103 (1852). stolen from him without his, fault. Hancock 30. The St. of 1863, c. 38, does not legalize v. Ilazzaird, 12 Cush, 112 (1853). a vote of the inhabitants of a town to pay 2. A bond executed to a town by its colmoney to persons who had already enlisted in lector of taxes, and placed in the hands of the the service of the United States. Fowler v. town treasurer, may be enforced against the Danvers, 8 Allen, 80 (1864). collector and his sureties, without proof of See FINaXCE; PUBLIC BUILDINGS, 1. its approval by the selectmen, or of its delivery. IWendell v. Fleming, 8 Gray, 613 (1857). Of the lRermedy in Equity in Cases of illegcl 3. Defects in the warrant and tax list comAppropiriations. mitted to a collector of taxes constitute no 31. Under St. 1847, c. 37, (Gen. Sts. c. 18, defence to an action on his bond by a town, ~ 79,) the supreme judicial court have juris- to recover money received by him for taxes, diction in equity, upon a proper case being and not paid to the town. Sandwich v. Fish, made, to compel the restoration of money, with 2 Gray, 298 (1854). interest thereon, to the treasury of a town, 4. Where a town, yearly, for four succeswhich has been taken therefrom and applied to sive years, charges a collector of taxes in acillegal purposes by officers of the town, under count with the amount of taxes intrusted to a vote of a majority of the inhabitants thereof. him for collection, and with the balance of Frost v. Belmont, 6 Allen, 152 (1863). the previous year's account, and credits him 32. This court will not restrain by injunc- with the money received from him, and with tion the collection of a town tax'; for contin- the balance carried to the next year's account, gent expenses," if it appears that the objects and no other appropriation of the sums paid for which the money is wanted were stated by him is made by either party, they will be orally at the meeting at which the vote to applied to the extinguishment of the earliest raise the money was passed; that no objection charges; and the balance of each year's acto the form of the vote was then made; that count, except the last, being thus extinthe objects for which it was raised were neces- guished, the town may recover the final sary expenditures of the town; that no appro- balance of him and his sureties in an action priation of any part of the money to any un- on his bond for the fourth year. lb. lawful purpose is intended; andthatfor many 5. When the same person is collector of years the towin has been in the habit of pass- taxes for two successive years, and pays to ing votes to raise money in that form. lFree- the town the arrears of taxes collected on the Zand v. Hccstings, 10 Allen, 570 (1865). tax list of the first year, with the money col33. An injunction will not be granted to lected on the tax list of the second year - the restrain the payment of money illegally voted town not knowing whence the money came - by a town, it the petitioners have been guilty and fails to perform the condition of his of gross laches, and knowingly have permitted official bond for the second year, his sureties others.to incur liabilities in good faith, rely- on that bond, when sued for his default, are ing on such appropriation for reimbursement. liable to the extent of the default, and are not Tash v. Adamns, 10 Cush. 252 (1852). entitled to deduct the amount so paid by him 34. A delay of ten months by inhabitants for the taxes of the first year. Colecrain v. Bell, and tax payers of a town before bringing their 9 Met. 499 (1845). bill to restrain the payment of money for ex- 6. When a collector is removed from office penses already incurred in draining a pond, within a year after the taxes are committed under a vote of the town, is such laches as to him to collect, his sureties, if sued on his will forfeit their right to equitable relief. official bond, may give evidence, for the purFeller v. Miclrose, 1 Allen, 166 (1861). pose of reducing damages, tliat te uncollected 35. A- town must be a party to a bill in taxes of certain persons on his tax list could equity to restrain its treasurer from paying not be collected, by reason of their inability out money voted for illegal purposes at legal to pay. Otherwise, if the collector was not meetings of the town. Allen v. Turner, 11 removed until after a year from the time when Gray, 436 (1858). the taxes were committed to him. Ib. See ante, 3. 7. When a collector of taxes is removed. from office, he and his sureties are liable, on his official bond, for such part of the taxes ASSESSORS. committed to him as are lost by reason of his See ELECTIONS, 32; ESTOPPEL; OFFICERS, remissness, although the uncollected taxes 80-32; TAXES. have been committed to his successor, who 2 10 BONDS - BOUNDARIES. has also given bond for the faithful discharge 17. After a collector of taxes had given of the duties of his office. lb. bond with sureties for the collection of a tax 8. If a collector of taxes, who has given of 2,572.82, it was ascertained that the tax bond to the town treasurer, instead of to the was erroneously assessed, the assessors having town, carries money, collected by him for added more than five per cent. to the amount taxes, to the treasurer, and would pay it of the tax voted, and the tax was, therefore, to him, if payment were required, and the reassessed and made to amount to the sum of treasurer thereupon agrees with him, without $ 2,490.01, and, without the knowledge of the the consent or knowledge of his sureties on sureties, the condition of the bond was altered the bond, that he may keep the money for a so as to stipulate for the faithful collection of the time, and pay his own debts with it, and he new tax. Held, that the sureties were thereby does so, the sureties are thereby discharged discharged from all liability under the bond. from their liability for the money so retained. Doane v. Eldridge, 16 Gray, (1860). Johnson v. Mills, 10 Cush. 503 (1852). 18. A bond given by a county treasurer for 9. Payments made by a collector of taxes the faithful discharge of the duties of his office, in behalf of the town, and allowed to him by is intended to protect the public from defaults the town in account, cannot be again allowed of the officer occurring during the year for him in an action by the town on his official which he was elected. Bigelow v. Bridge, 8 bond. Cheshigrev.Howland,13Gray,321(1859). Mass. 274 (1811). See Chelmsford Co. v. 10. In an action by a town on the bond of Demnarest, 7 Gray, 1; 1Middlesex Alanuf. Co. its collector of taxes, amounts paid by the v. Lawrence, 1 Allen, 339; Lexington, 4c. collector on negotiable orders drawn by the Railroad v. Elwell, 8 Allen, 371. selectmen upon him cannot be credited to the See ACTIONS, 4, 6, 7, 52; SEAL, 2, 3. defendants. Ib. 11. In such action interest is to be allowed upon the amount due from the time of a demand upon the collector. Ib. BOUNDAIE 12. A constable's bond in the city of Boston is properly made to the treasurer of the city, 1. The recent perambulation of a line beunder the present statutes. Tracy v. Good- tween two adjoining towns by the selectmen, win, 5 Allen, 409 (1862). affords strong, but not conclusive evidence, 13. Tie condition of a constable's bond, that it is the true line. Frceeman v. iKenney, which provides that " he shall faithfully per- 15 Pick. 44 (1833). form all the dutits of a constable in the service 2. Perambulations of the boundaries of of all civil processes which may be committed towns by the selectmen are no evidence against to him," is not broken by his failure to pay to the Commonwealth of the title to flats within the plaintiff in a writ money intrusted to him those towns. Commonweal/h v. Roxbury, 9 for that purpose by the defendant therein, Gray, 451 (1857). after completion of the service. Boston v. 3. Upon the division of Boston into wards, Moore, 3 Allen, 126 (1861). in 1822, a part of the boundary line of the fifth 14. The St. of 1814, c. 165, which provides ward was described, in the return of the selectthat no action shall be brought on the bond of men, as running by the river, which was a a constable given to the treasurer of the city of navigable arm of the sea. It was held, that Boston for a breach of the condition thereof, the exterior boundary of said ward did not until a judgment has first been recovered on extend into the river, beyond low-water mark. account thereof against the constable, is unre- Trull v. Wheeler, 19 Pick. 240 (1837). pealed and in full force. Calder v. Haynes, 4. A committee appointed to settle the 7 Allen, 387 (1863). boundary between two towns, in a report, 15. A bond, given to the selectmen of a which was accepted by both towns, defined a town and their successors in office, for the line by bounds, courses, and distances, and faithful performance, by the principal obligor, added, "Some deviations from the original of the duties of treasurer and collector of the or natural boundary and some exchanges of town, is not a bond required by law, and no territory are involved; and consequently it is action can be maintained thereon in the name supposed that the sanction of the legislature of the successors of the obligees. Stevens v. will be necessary to render valid the arrangeHay, 6 Cush. 229 (1850). ment agreed to." The legislature afterwards 16. A bond given by a town treasurer and passed an act declaring that the lines thus decollector of taxes, not to the town, as required fined "should constitute and be considered by Rev. Sts. c. 15, ~ 80, (Gen. Sts. c. 18, ~ 72,) the boundary lines between the said towns, but to the selectmen of the town, is valid at and the territory and jurisdiction on either common law; and the selectmen may main- side of said line as hereby established are actain an action upon it for the benefit of the cordingly confirmed to said towns respectown. Sweetser v. Hay, 2 Gray, 49 (1854). tively." Held, that neither the agreement of BOUNDARIES - BUILDINGS - CARRIAGES. 11 the towns nor the act of the legislature af- the streets, is not estopped, in an action of fected the title of the Commonwealth to the trespass against him, for i'elloving the buildseashore within one of the towns. Commmon- ing out of the street, where it has been left by wealth v. Rzoxbury, 9 Gray, 451 (1857). the owner in the course of such removal, to See ACTIONS, 26; WAYS, 144, 450-460. set up the invalidity of the license. lb. _~~____ ~See ORDINANCEs, &c. 9; PUBLIC BUILDINGS. BOUNTIES TO VOLUNTEERS. See ACTIONS, 47-49; APPROPRIATIONS, 4, 4 BURIALS AND BURIAL-GROUNDS. 5, 30; CONSTITUTIONAL LAW, 3; CONTRACTS, See H LTH, 9-14 16 25-29. BRIDGES. B G CARRIAGES. See AcTIONS18, 20; OFFrcERS, 43; SEWERS AND DRAINS, 21; WVAYS, 54-58, 63, 77, 93, 1. Under the provisions of the act of 1847, 205, 206, 270, 277, 288, 332, 350, 386, 396, 501, c. 224, (Gen. Sts. c. 19, ~ 14,) the mayor and 502.'2','2'89 aldermen of the city of Boston have authority to make regulations as to the use of omnibuses and stage-coaches, for the transportaBUILDINGS. tion of persons for hire from Roxbury to Boston, and from Boston to Roxbury, while 1. The enlarging and fitting up as a livery passing over and using the public streets of stable, in Boston, within one hundred and Boston, if, in the opinion of the mayor and seventy feet of a church, of a dwelling-house aldermen, from the character of such vehicles, which was built before the passing of St. of as to size, numbers, or mode of use, they 1810, c. 124, is an "erecting" of a livery sta- would otherwise endanger or greatly incomble within the meaning of that statute, and, mode the public generally, who have occasion while the building is used and improved as a to use such public streets; and such regulalivery stable, renders the owner or keeper tions may prescribe certain streets as the thereof liable to the penalties imposed by that route of travel for the vehicles mentioned in act. The St. of 1810, c. 124, is not repealed the same, and may provide for their exclusion by Rev. Sts. c. 58, ~ 4 (Gen. Sts. c. 88, ~ 31). from certain other streets; provided such reguHastings v. Aiken, 1 Gray, 163 (1854). lations are " necessary and expedient for the 2. The chief engineer of the fire department due regulation," within the city of Boston, of is a very proper person to commence a suit the omnibuses and other vehicles therein under St. 1835, c. 139, to insure obedience of specified. Commonwealth v. Stodder, 2 Cush. the law regulating the erection of wooden 562 (1848). buildings in the city of Boston. But such 2. But said act does not authorize the mayor suit must be brought within one year from and aldermen of Boston to require the paythe erection of the building, or no penalty ment of money to the city by persons resident can be enforced against the person erecting in Roxbury, who may set up and drive omnithe building, in such suit or in any subsequent buses and stage-coaches from Roxbury to prosecution under said statute. And the stat- Boston and b'k, for the conveyance of perute, begins to run, as to the penalty, from the sons for hire, as a tax or duty upon such vetime of the erection, and not from the time of hides, before using the same; or to pass anl the completion, of the building. Ba'rnicoat ordinance, requiring persons resident in other v. Folling, 3 Gray, 134 (1854). (But wooden towns and cities, and setting up and driving buildings erected in violation of the statute omnibuses and other vehicles from such towns may be abated at any time as common nuisan- bor cities to the city of Boston, and back to ces by the mayor and aldermen. St. 1847, c. their respective stations in such other towns 132.) and cities, for the transportation of passengers 3. Where a by-law of a city prohibits the for hire, to obtain a license therefor, (irremoving of buildings through the public streets, spective of the requirement of the payment of without a license granted by the mayor and money for the same,) from such mayor and aldermen, the board of aldermen cannot dele- aldermen. Ib. gate to the mayor alone the power to grant 3. A by-law of the city of Boston, having such licenses. Day v. Green, 4 Cush. 433 provided, in one section, that no carriage (1849). should be allowed to stand in any street more 4. The mayor of a city, who, under the au- than fifteen minutes; and in another, that at thority of an order of the board of aldermen, any theatre or place of public entertainment, which they had no power to pass, has granted where hackney carriages attendforpassengers, a license for the moving of a building through the police authorities might give directions re 12 CARRIAGES - CHARTER. specting the standing of such carriages, while cannot avoid the penalty by seasonably turnwaiting for their passengers; and the police ing to the right of the wrought part of the authorities having prescribed certain regula- road, though they leave sufficient room for tions for the standing of carriages at the Bos- the travellers whom they meet to pass with ton Museum, and, among others, that a space convenience and safety, in the use of ordinary of thirty-five feet in front of the door thereof skill and care. Comnmonwealth v. Allen, 11 should be kept open and unincumbered; it Met. 403 (1846). was held, that the driver of ahackney carriage, 11. In a complaint against a traveller for who had placed the same on the space afore- offending against this statute, it is not necessaid, and refused to remove therefrom, when sary to set forth a particular description of directed so to do by the police authorities, for the road. lb. more than fifteen minutes, was guilty of an 12. The law of the road does not apply to a offence and liable to be prosecuted only under case where one vehicle is passing along a the last and not under the first-named section. street, and another is turning into the same Conmmonwealth v. Robertson, 5 Cush. 438 street from a cross road or way intersecting (1850). it, but is applicable only where vehicles meet 4. Money charged by a city for a wagoner's or pass each other in travelling in the same license, and paid with full knowledge of the street. Lovejoy v. Dolan, 10 Cush. 495 (1852). facts, will be deemed to have been paid volun- Garrigan v. Berry, 12 Allen, (1866). tarily, though paid under protest, and cannot 13. A master is not liable, under the Rev. be recovered back. Cook v. Boston, 9 Allen, Sts. c. 51, ~ 3, (Gen. Sts. c. 77, ~ 4,) for the 393 (1864). damages sustained by any party by reason of the omission of his servant seasonably to drive Law of the Road. the master's vehicle to the right of the middle 5. St. 1820, c. 65, (Gen. Sts. c. 77, ~ 1,) the travelled part of the oiadv, wen eetestablishing the law of the road, applies to the i er vehicle Goodhe v. Dix, 2 streets in Boston. Fales v. Dearborn, I Gray 181 (184). Pick. 345 (1823). 14. Driving a sleigh without the bells re6. A person driving a vehicle across the qued by statute does not make te rive street mlust see tihat he does not; interfere liable, nor exempt the town fr'om liability, for street must see that he does not interfere.. f ewith others in the proper exercise of their injuies caused by collision with his sleigh igllt of passing. Ib. See Parker v. Adams, 12 upon a defective highway, unless his neglect nMet. 415. contributes in some degree to the accident. 7. The law of the road, Rev. Sts. c. 51, ~ 1, dder. Dnsabe, 11 Gray, 342 (1858). (Gen. Sts. c. 77, ~ 1,) extends to all places Fast Driing. appropriated, de jure or de facto, to the purpose of passing with carriages, &c., whether 15. The city of Boston have authority to they are so appropriated by public authority make a by-law prohibiting persons having the or by the general license of the owners thereof, charge of a wagon, cart, &c. from driving their expressed or implied; and such owners them- horses on a trot or gallop in the streets of the selves, while using their land as a road, must city, such by-law not being in restraint of conform to this law. Cominonwealth v. Gam- trade, but a reasonable regulation of it. Commwons, 23 Pick. 201 (1839). monwealth v. WVorcester, 3 Pick. 462 (1826). 8. By the " travelled part " O the road, in And see St. 1865, c. 31. the statute, which requires persons meeting 16. Althougl the object of such by-law be each other with carriages, &c. to turn to the to prevent passengers in the streets from beright of the middle of such part, is meant that ing endangered by fast driving, yet in a prospart which is usually wrought for travelling, ecution on the by-law it is not necessary to and not any track which may happen to be prove that any individual was actually enmade in the road by the passing of a vehicle. dangered thereby. Ib. Clark v. Coammonwealth, 4 Pick. 125 (1826). 17. Upon an indictment for a breach of such 9. But when that part of a road which is by-law, evidence of the defendant's general wrought for travelling is hidden by snow, and character asa careful driver is inadmissible. a path is beaten and travelled on the side of Ib. the wrought part, persons meeting on such 18. So of evidence of permission from the beaten and travelled path are required to mayor and aldermen of the city to drive faster drive their vehicles to the right of the middle than the by-law allows. Ib. of such path. Jaquith v. Richardson, 8 Met. 213 (1844). 10. The statute requires travellers in car- CHARTER riages, who meet in a road, seasonably to drive their carriages to the right of the middle The town of Boston became a city immeof the travelled part of the road; and they diately after adopting St. 1821, c. 110, pursu CHARTER - COMMON, ETC. - CONSTITUTIONAL LAW. l3 ant to ~ 31. Comnmontwealth v. James, 1 Pick. the town thereupon became liable to the duty 375 (1823). of supporting them as such. Ib. See APPROPRIATIONS, 28; ORDINANCES, &. 4. Nor on the ground that no provision is 4; OVERSEERS OF THE POOR, I; TAXES, 185; made for the preservation and support of the WAYS, 495. improvements when made. lb. 5. Nor on the ground that the section of the act providing that the enclosure should be forCOLLECTORS. ever appropriated to public use only as a public park and place for military parade, enSee BONDS; ELECTIONS, 8-10; ESTOPPEL; croaches upon the right of eminent domain OFFICERS 3, 3 34; TAXES. inherent in the sovereign power of the state; for this right is not superseded by the act, the word " forever," in this connection, signifying, until the provision should be altered by comCOMMON AND PUBLIC SQUARES. petent authorriy. lb. 1. All' the common lands fronting the col-. The term "undivided," applied to this lege in Cambridge were, in 1769, granted to land in the grant, does not mean that the land the town of Cambridge, to be used as a train- shall not be divided into parcels, but that it ing-field, to lie undivided and to remain for shall not e set of in severalty to individual that use forever, provided that if the town proprietors; and the enclosure of tie land in should dispose of, grant, or appropriate the three distinct parcels and the other improvesame or any part thereof to any other use, the mets and appropriations contemplated by tile whole of the premises should revert to the St. 1830, c. 6, were held not to be inconsistent with the clause in tile grant which provided grantors. By St. 1830, c. 6, certain inhabitants t the la us e i he grant which providel of Cambridge were empowered, at their own landshould l e used s a training-field expense and under the direction of two com- and should lie undivided, and tlihat if it should missioners to be appointed by the executive, e appropriated by the town to any other use, to enclose such part or parts of these lands as it l revert to te grantors; and, consethie commissioners should determine, and to quently, the consent of the town to the statlevel the surface, plant trees, and lay out walks ute, and to the improvements made by virtue within the enclosure, with the approbation of of it could not operate a forfeiture of the the selectmen of Cambridge, leaving suitable land by the town.. avenues for foot passengers to enter or pass 7. Wherever the legislature has annexed over it; the commissioners were authorized e charcter of public use to any property, to make such alterations with respect to the d U pulic would be destroyed or in direction of the roads by which the lands were terrupted by the laying out of a highway, the traversed as they should see fit; the enclosure power of the county commissioners to lay out was to be forever appropriated to public use such highway is superseded. Thus St. 1830, only, as a public park, promenade, and place c. 6, authorizing " the enclosing of a part of for military parade; and provision was made Cambridge common," superseded the power for the punishment of any person who should the county commissioners to lay out a injure or destroy the fences, &c. Said stat- highway across such enclosure. Ib. ute was held not to be unconstitutional, although there was no distinct adjudication by the legislature that the enclosure and improvement of the lands were of common con- CONSTABLES. venience and necessity. Wellingtonl, Peti- See BONDS, 12-14; DOGS, 7, 8; OFFICERS, tiomqer, 16 Pick. 87 (1834). 38, 39; TAxES, 114, 118, 166. 2. Nor is it unconstitutional on the ground that no provision is made therein for compensation for damages done to private property; for if this were a valid objection to a statute CONSTITUTIONAL LAWaffecting private property, it could have no force here, because the act refers to no prop- 1. The legislature have authority to enact erty not already appropriated to public use. that the interest which an inhabitant of a city lb. may have in a penalty for the breach of a by3. Nor on the ground that no provision is law thereof shall not disqualify him to act as made for the maintenance and repair of the a judge or juror in a prosecution to recover roads laid out by the special commissioners such penalty. Commonwealth v. Worcester, around the enclosures, in lieu of those by 3 Pick. 462 (1826). See Gen. Sts. c. 122, ~ wlich the land was originally traversed; for 13. the roads so laid out being lawful highways, 2. The property of a private individual may 14 CONSTITUTIONAL IAW - CONTRACTS. be appropriated to public use in connection bound to maintain, it was held, that the memwith measures of municipal regulation; but bers of such committee were not to be deemin such case compensation must be provided ed public agents, but were subject to the for, or the appropriation will be unconstitu- same rules in regard to personal liability on tional and void. Balcer v. Boston, 12 Pick. their contracts made for that purpose, as 194 (1831). other agents. Simonds v. llecwd, 23 Pick. 3. The legislature of the Commonwealth 120 (1839). have tihe constitutional power to levy a tax 6. It was held, also, that such committee on all the inhabitants of the Commonwealth was authorized to make contracts with third for the payment of bounties to soldiers, and persons for the construction of the bridge, the reimbursement of towns which have vol- binding the town to pay therefor, although untarily advanced such bounties without pre- the town had appropriated money for the vious legislative authority. Lowell v. Oliver, purpose of rebuilding it, and empowered the 8 Allen, 247. See Freeland v. Hastings, 10 committee to borrow, on the credit of the Allen, 570. town, such sums as might be required. Ib. See AiMUSEMIENTS, 4; ANNEXATION AND 7. Such committee having entered into a DIVISION OF TowNS, 1, 2; APPROPRIATIONS, contract, not under seal, for the building of 4, 5; COMMON AND PUBLIC SQUARES, 1-5; the bridge, in which after describing themELECTIONS, 1-6; JURIES, 12; ORDINANCES, selves as a committee of such town, "said &c. 2-6; PAUPERS, 34; PENALTIES, 8; REP- committee" agreed to pay the contractor a cerRESENTAT1VES IN THE GENERAL COURT; SEW- tain sum when the work should be completed, ERS'AND DRAINS, 14; WAYS, 499, 501, it was held, that the members of the committee were personally responsible on such contract. Ib. 8. It seems, that in an action upon such CONTRACTS.. contract, against the members of the commit1. A town, in its corporate capacity, will tee personally, the acts and declarations of the not be bound, even by the express vote of a contractor tending to show that credit was majority, to the performance of contracts or given by him to the town, are admissible in other legal duties not coming within the scope evidence. Ib. of the objects and purposes for which it is 9. A committee appointed by the vote of a incorporated. SHAW, C. J., in Anthony v. town to "let out and superintend the making" Adams, 1 Met. 286 (1840). of a new highway, which the town had been 2. A contract in this form: " We, the un- ordered by the county commissioners to make, dersigned, a committee chosen by the town contracted on behalf of the town witlh F. for of A. to finish the basement of their town- the construction thereof; and F. proceeded house, do hereby agree to pay," &c.. for the to construct so much of the highway as lie confinisling of said basement, and signed and tended he was bound to do, and declined doing sealed by the committee as " committee for anything further. It was held, that the vote the town," is not the contract of the town, but of the town conferred a special authority on of the individuals who sign it. Fullam v. the committee, which was completely execuWest Br9oo7cfield, 9 Allen, 1 (1864.) ted by the making of such contract and super3. If a town authorize a committee to bind intending the construction of the highlway; them by a contract, and the committee enter that if F. did not fulfil his contract, the power into a sealed contract, for the benefit of the and duty devolved on the town to insist upon town, which binds only themselves, the town, or waive its execution; that consequently it by subsequently revoking the authority of the was not competent for the committee, without committee and prohibiting and preventing a new authority from the town, to enter into the execution of the contract, do not render a new contract for the completion of what was themselves liable in damages to the individ- left unfinished by..; and that the town was ual with whom the contract was made. Ib. not liable for money paid by-the committee in 4. Where a contract was made in pursu- pursuance of such new contract. Keyes v. ance of a vote of a town, but before the con- WTessford, 17 Pick. 273 (1835). tract was performed the vote was rescinded, 10. In the same case it appeared that the it was held, that the person with whom the contract with F. provided for the construction contract was made was not affected by the re- of a better but more expensive road than was scission, not having had notice thereof; and prescribed by the order of the county commisqucre'e, whether notice would have made any sioners. It was held, that the reference to the difference. Allen v. Taunton, 19 Pick. 485 order of the county commissioners limited (1837). the authority of the committee; that the con5. Where a committee was chosen by a tract with F. was in excess of their authority; town to rebuild a bridge which the town was and that the second contract, to complete the CONTRACTS. 15 road, was founded in a like excess of author- made, and if the new members are excluded ity, and therefore imposed no obligation on from acting with the others by mistake or the town. lb. design of the chairman, the proceedings of 11. An agreement for the purchase of land such others will be irregular. lb. for a town, made by all the members of a 17. A major part of such committee are committee duly authorized by the town. to necessary to constitute a quorum, and the act purchase it, and put in writing and signed by of a majority of a quorum is the act of the part of the committee, on behalf and at the committee. Ib. verbal request of the committee, is the written 18. Where a parish appointed a committee agreement of the whole committee, and bind- of three to build a meeting-house, a contract ing on the town. Haven v. Lowell, 5 Met. 35 by one of the number was not binding on the (1842). parish. Kupfer v. Augusta, 12 MAass. 185 12. Where an agreement, made for the (1815). purchase of land for a town, by a committee 19. If a person contracts with a town " to of the town, is invalid, such agreement is rat- erect a meeting-house on a place to be desigified and confirmed by a subsequent vote of nated by a committee," and a place is so the town, authorizing the committee to com- designated, and the town afterwards disagrees plete the purchase of the land by them bar- to the designation and gives notice to the congained and contracted for. Ib. tractor, but not until he has made some of 13. Where an individual made a contract the window frames and carried materials to in writing to build two drains for a city, in a the ground pointed out, although this is a thorough, skilful, and workmanlike manner, beginning to execute the contract, it is not a satisfactory to the committee of the board of beginning to erect the meeting-house, and the aldermen having the same in charge; to ex- town may disagree to the first designation at ecute the work under the general direction any time before the ground shall be prepared and superintendence of the committee; and for erecting the frame of the house,they indemto cause the work to be carried forward and nifying the contractor for any extra labor and finished with as much rapidity as could rea- expense occasioned by their fluctuating prosonably and beneficially be attained: it was ceedings. Damon v. G-ranby, 2 Pick. 345 held, that such general direction and super- (1824). intendence were not limited to the quality of 20. The contract of a committee of a town, the materials, and the manner of doing the under their own seals, cannot be declared on work, but also extended to the time of doing as the deed of the town, but it may be evithe same; as to which, the committee, acting dence of a contract made by the town. lb. with an honest and just regard to the interests 21. A vote of a town appointing a comof the city, and not arbitrarily, capriciously mittee to appropriate money for constructing and unreasonably towards the other party, a road which is by law to be made at'the exwere exclusively authorized to judge. Chap- pense of the county, is an illegal and void man v. Lowell, 4 Cusl. 378 (1849). act; and a contract for constructing it entered 14. The inhabitants of a town having voted into by such committee in behalf of the town, to build a town-house according to a plan and will not be binding upon the town. Parsons specifications agreed upon, and appointed a v. Goshen, 11 Pick. 396 (1831). committee to contract for and superintend 22. Under St. 1786, c. 81, ~ 4, which prothe erection of the same, " with power to vided that when the sum appropriated and make any slight alteration in the plan which assessed for the repair of the highways in the should in their wisdom be deemed just and limits of any particular surveyor should be proper; " it was held, that whether the author- insufficient for that purpose, it should be lawity given to the committee to make such ful for him " with the consent of the selectslight alterations would justify them in em- men" to make additional expenditures, to be ploying an architect to draw plans for the repaid out of the townl treasury, a ratification purpose, was a question for the jury. Upjohn by the selectmen after the expenditures have v. Taunton, 6 Cush. 310 (1850). been made, will bind the —town to repay the 15. A committee chosen by a town "to surveyor. Emerson v. Newbury, 13 Pick. procure a master builder and superintend the 377 (1832). building of a meeting-house for the town," 23. A contract made with the brother of a with authority to borrow money if necessary, female pauper by a committee appointed by a have power to make contracts for the buiid- town "to negotiate the case " of that pauper, ing, where no special committee is appointed and signed by the committee in their own for that purpose. Damon v. Granby, 2 Pick. names, the terms of which are that the brother 345 (1824). shall pay the town a certain sum annually 16. A town has power to increase the num- during the life of the pauper, and release all ber of such committee after the contract is claim to a certain fund in the hands of another 16 CONTRACTS DISTURBANCE OF MEETINGS. relation for her support, and the town shall derstanding that we are liable at any moment support her and save him harmless from all to be ordered into active service under the litigation with lis brothers in relation to such government of the United States," and is support, which contract is afterwards acted drilled for several days under proper authorupon by the brother and the town, is valid, ity, and shortly afterwards enlists in the miland binds the town, though not expressly itary service of the United States, he may unratified by them. Palmer v. Ferry, 6 Gray, der that statute maintain an action against the 420 (1856). town to recover such pay for a time not ex24. If the inhabitants of a town have author- ceeding ninety days from his enlistment, and ized their treasurer to borrow a certain sum also for the time spent in drilling. Jones v. of money for a specific purpose, and to give Scituate, 11 Allen, (1865). his note as treasurer therefor, and he has ex- 28. An enlisted soldier can maintain no acercised this authority, they are not liable tion against a town to recover money for a upon a note given by him in their name for uniform, under a vote of the town appointing money subsequently borrowed by him and a committee "to expend for each enlisted converted to his own use, although he as- soldier, a sum of money not exceeding ten sumed to be acting under the authority con- dollars, for a uniform." Ib. ferred upon him, and the lender supposed 29. An enlisted soldier can maintain no acthat he was doing so. Lowell Savings Bank tion against a town to recover bounty money, v. Winchester, 8 Allen, 109 (1864). See under a vote of the town appropriating a Benoit v. Conway, 10 Allen, 528. certain monthly sum during a certain time, 25. The St. of 1863, c. 38, ratifying con- to each citizen who should enlist for the war, tracts of towns to pay bounties to soldiers, " to be paid in such manner and to such perdoes not operate to revive a contract which sons as the selectmen shall deem expedient." had become extinct under St. 1861, c. 222. Williams v. Plymouth, 11 Allen, (1865). Gorover v. Pembroke, 11 Allen, (1865). 30. A proposal was received from the plain26. A town passed a vote "that all men tiff by the superintendent of public lands of belonging to the town, enlisting into the ser- Boston for the purchase for $ 600 of a tract of vice of the United States, and who shall be land belonging to the city. A sub-committee accepted and mustered into the service of the of the land commissioners subsequently resame, shall receive a bounty from the town ported favorably upon this proposal to the full of one hundred and twenty-five dollars," and board, who thereupon passed the following at the same meeting passed another vote vote: " That we recommend on the part of " that, shall the full quota required of the the board of land commissioners the sale and town be enlisted and accepted as aforesaid, transfer by quitclaim deed, for the sum of an additional sum of seventy-five dollars $ 600 cash, of all the right, title and interest shall be paid each man thus enlisting, but the city of Boston may have in and to the lot," should there be a failure in making up the &c. to the plaintiff. This vote was sent to the full quota of nine months' men, then those mayor for his approval, and he approved the enlisting and being accepted and mustered as same about four months afterwards; but no aforesaid shall receive only the sum of one further action was taken by the land commishundred and twenty-five dollars each." After sioners. Held, that there was no contract the lapse of nearly four months the quota was between the plaintiff and the city which could not filled, and, a draft having been ordered, be enforced in equity,, and that the vote of the the town chose an agent, who filled the quota land commissioners did not import a contract, by recruits from abroad. IHeld, that an in- though approved by the mayor, but was only habitant of the town who enlisted under the an authority to the proper officers to execute above votes was entitled to only one hundred a deed, which was to constitute the contract and twenty-five dollars. Bishop v. Rochester, when executed and delivered. Dunham v. 11 Allen, (1865). Boston, 12 Allen, (1866). 27. If, prior to St. 1861, c. 222, a town had See ACTIONS; FISH, 4, 6, 7; OFFICERS, 7, voted to pay to each volunteer soldier raised 9, 10, 14-16; ORDINANCES, -&C. 9; PAUPERS, or being an inhabitant therein, and mustered 197, 238; REWARDS; SCHOOLS, 33,34; TAXES, into the service of the United States for the 79; TREASIURER; WAYS, 48-53. defence of the government, a certain sum per month, and also " that each volunteer soldier belonging to this town be allowed one dollar per day for each and every day he is drilled DISTURBANCE OF PUBLIC MEETunder proper authority," and an inhabitant in INGS. pursuance thereof signs a paper enrolling himself with others into a company of volun- 1. Disorderly behavior in a town meeting teer militia for five years, "with the full un- is an indictable offence at common law. DISTURBANCE OF MEETINGS - DOGS - DOI ICIL. 17 CommzonweaUlt v. Ifozey, 16 Mass. 385 (1820). mieaning of Gen. Sts. e. 88, ~ 58; and a conAnd see Gen. Sts. c. 165, ~ 23. stable who under such circumstances calls 2. As the law has not defined what shall be him away and shoots hinm while he is upon deemed an interruption and disturbance, it his owner's land, and then enters upon such must be decided as a question of fact in each land and pursues him for the purpose of particular case. It must be wilful and de- shooting him again, is liable in damages signed, an act not done through accident or therefor. iicAnzeany v. JeweCt, 10 Allen, 151 mistake. Commonwealth v.'ortler, 1 Gray, (1865). But see Sts. 1864, c. 299, ~ 7; 1865, 480 (1854). c. 197, ~ 4. 3. The disturbance of a meeting of citizens 8. St. 1858, c. 139, does not authorize a assembled for the discussion of the subject person, in order to destroy a dog not regisof temperance is an offence punishable under tered, &c. to enter the owner's house without it. 1849, c. 59 (Gen. Sts. c. 165, ~ 23). Ib. his leave. Bishop v. Pahay, 15 Gray,(1860). 9. A by-law of a town, made under llev. Sts. c. 58, ~ 10, (Gen. Sts. c. 88, ~ 67,) concerning the licensing, regulating and restrainDOGS. ing of dogs going at large within the town, 1. Under Gen. Sts. c. 88, ~ 64, one who suf- will be construed to apply only to dogs owned fers loss by reason of the worrying, maiming or ept in te ton, alt h in its ters it or killing of his horse by dogs is, upon proof applies to " any peson permitting Iis dog to thereof, entitled to an order from the select- go at age witin the town;" and if it is othmen of the town wherein the damage is clone, ernise valid, it nay be enfo ced against the upon the treasurer of the town, for the amount owner or keeper of a dog witlin the town. of his loss, to be paid from the fund created Commonwealth v. Dow, 10 Met. 38 (1S45). by taxes on dogs according to the 4provisions 10. Te sme section in a n o ton of that statute; and if the selectmen refuse to imposed a penalty of $ 10 on any pieson perdraw such order, upon proof of the facts, a mitting his dog to go at lage in the town, writ of mandacztus will be granted, ordering unless tle clog sloul le licensec1 to go at them to do so. Osborne v Lenox, 2 Allen, 207 lage cl shol e cllr with the name (1861 ). of the owner or keeper and the word "licensed" 2. No action lies against a town under St. distinctly marked thereon; and the further 1859, c. 225, in favor of the owner of sheep penalty of $10, if said dog should wear a colwho have been killed by dogs therein, to re- wit t a license. It w hel tt acover ~the value of the sheep. Gh1enery v. IIol- though the latter part of the section might be cover the value of the sheep. Chenery v. Hioi- n den, 16 Gray, (1860). repugnantto 1-ev. Sts. c. 58, ~ 12, (Sts. 1864, 3. No'liahility is created. by St. 1859, c. 225, c. 299, ~ 1; 1865, c. 197, ~ 1,) and therefore on the part of towns, for the omission ne ct void, yet that the former part was valid; and or refusal of the selectmen to perform the tat t penalty thereby imposed was recovduties imposed on them by the provisions of erable of a person who permitted his dog to that acft, and none exists at common law. Ib. go at large without being licensed. Ib. 4. A complaint on St. 1859, c. 225,, 11. The penalties imposed by the by-laws charging the defendant with keeping a dog in of the ton of New Befor i relation to violation of the provisions of that act, nee(l dogs, ayR be recoverel by complaint before not allege that he is the owner of the dog. tle police court of that to'l. I. Jones v. Commonuweal-h, 15 Gray, (1860). Jones v. Co7mmonweazulenth, 15 Gray, (1860). 12. Under Gen. Sts. c. 88, ~~ 52, 55, 56, 5. A by-law of the city of Lowell, which one who purcllses an unlicensed dog after provides generally that thle owners of dogs the 30th of April in any year is not subject to shall not suffer them to go at large in the city a penalty for the omission to cause him to be or to escape from their master's premises, registered, numbered, described and licensed, without being safely muzzled, is valid, and until the 30th of April in the next year. Conmay be enforced against all persons who are nonwealtf v. Brimblecom, 4 Allen; 584 inhabitanhts of Lowell. tCjmou3zmealSthv. Chase, ^(1862). But see now St.: 1864, c. 299, ~ 1, 6 Cush. 248 (1850). 2 6. A dog is " going at large" in a town, if he be loose and following the person who has charge of him, through the streets of the IL. town, at such a distance that lie cannot exer- 1. Every person must have a domicil somecise a control over the dog, which will pre- where. Abington v. Noroth Bridgewatcr, 23 vent his doing mischief. Commonwealth v. Pick. 170 (1840). Dou,, 10 Met. 382 (1845). 2. A person can have only one domicil, for 7. A dog at play with his owner's son upon one purpose, at one and the same time. lb. his owner's land, is not " at large " within the 3. Where the boundary line between the 1 8 DMI ICIL. towns of R. and N. B. passed through a dwell- tending to remain there permanently, but ing-house so that the portion of the house with the intention of not returning to his which was in N. B. was sufficient in itself to former home, and does not so return, he loses constitute a habitation, while the portion in his domicil in the former town. jead v. R. was not sufficient for that purpose, it was Boxborough, 11 Cush. 362 (1853). held, that a person, by occupying such house, 11. The fact that such person was taxed in acquired a domicil in N. B. lb. the town to which he has removed, is not 4. It seems, that if, in such case, the line competent evidence to showv-that he did not had divided the house more equally, the fact continue to be taxable in the town of his forthat the occupant had habitually slept in that mer residence. Ib. part which was in N. B. would be a prepon- 12. A citizen of this commonwealth, rederating circumstance to show that he was moving with his family to another state, and domiciled in that town, and, in the absence of retaining no dwelling-place in this commonother evidence, would be decisive of the ques- wealth, though retaining his place of business tion. Ib. here, and intending to retain his domicil 5. Where a dwelling-house is so divided by here, and to return at some future indefinite the boundary line between two towns, as to period of time, has no domicil in this comnleave that portion of the house in which the monwealth. Holmes v. Greene, 7 Gray, 299 occupant mainly and substantially performs (1856). those offices which constitute his home, (such 13. A student of a college does not change as sleeping, sitting, eating and receiving visi- his domicil by his occasional residence at the tors,) in one town, lie is a citizen of that town, college. Granby v. Amherst, 7 Mlass. 1 and has no right to elect to reside and be (1810). taxed for his personal property in the other 14. A seafaring man, having lands occupied town. Chenery v. Walthan, 8 Cush. 327 by himself, his servants or hired people, al(1851). though frequently absent on long voyages, 6. Whether a person removing from one has always been considered as having his retown to another intends to change his resi- sidence on his lands, and as not losing his dence is a question of fact and not of law. domicil by following his profession. PARFitchburg v. Winchendon, 4 Cush. 190 (1849). soNs, C. J. Ib. See also Abington v. Bostonn, See Chicopee v. Whately, 6 Alien, 508. 4 Mass. 312. 7. A domicil, being once fixed, will con- 15. The domicil of a person non compos tinue, notwithstanding the absence of the mentis and under guardianship, may be changparty, till a new domicil is acquired. Tenni- ed by the direction, and with the consent of son v. Ilal2good, 10 Pick. 77 (1827). the guardian, express or implied. l]olyokev. 8. The intention to abandon a domicil, and Hascins, 5 Pick. 20 (1827). actual residence at another place, if not ac- 16. A person non compos, born in the companied with the intention of remaining county of Suffolk, removed, upon the death there permanently, or at least for an indefi- of her father, into the county of Middlesex, nite time, will not produce a change of dom- where she lived in her brother's family many icil. lb. years, and until her death, being for the last 9. It is difficult to give an exact definition years of her life under a guardian who proof habitancy. In general terms, one may be vided for her support, whose residence was in designated as an inhabitant of that place which Suffolk county. field, that her domicil at constitutes the principal seat of his residence, the time of her death was in Middlesex county. of his business, pursuits, connections, attach- lb. ments, and of his political and municipal re- 17. Evidence that the selectmen of a town lations. It is manifest, therefore, that it em- decided that a person taxed there was an braces the fact of residence at a place, with inhabitant, and put his name on the voting the intent to regard it and make it one's home. list, is not admissible for the purpose of showThe act and intent must concur, and the in- ing that his domicil was in that town, without tent may be inferred from declarations and showing that they did it at his request. Fistc conduct. In a case of much doubt the mere v. Chester, 8 Gray, 506 (1857). declaration of the party, made in good faith, 18. In an action to try the question whether of his election to make one place, rather than the plaintiff, who had left the country with his another, his home, may be sufficient to turn family, was liable afterwards to be taxed as an the scale. But the question is one of fact for inhabitant of the place of his former resithe jury, to be determined from all the cir- dence, a letter from him to his agent in that cumstances of the case. SHAW, C. J., in Ly- place, expressing his intention to remain man v. Fiskce, 17 Pick. 234 (1835). abroad permanently, is admissible in evidence, 10. If an inhabitant of a town removes to if written before he knew that a tax had been another town in this commonwealth, not in- assessed upon him, though written after the DOMICIL-ELECTIONS. 19 assessment. Otherwise, it seems, as to such court is elected into the senate or' the counletters written after he knew that he was taxed. cil the vacancy may be supplied by a new Thorndike v. Boston, I Met. 242 (1840). election by the town which he represented. 19. A man's declarations as to the place of 02pinion of the Jutstices, 3 Pick. 517 (1826). his residence, and his designation thereof in 3. The constitution does not admit of an his will, are competent evidence after Iis adjournment of the second meeting for the death, upon the question of his donicil, at a choice of representatives, which it provides time shortly after the making of the declara- may be held on the fourth Monday of N ovemtions and of the will. Wilson v. Terry, 9 ber, (Amendments, Art. 15,) to a day beyond Allen, 214 (1864). sucllfourth Monday. Opinion of the Justices, 20. A citizen, having lived many years at 23 Pick. 547 (1840). Waltham in the county of Middlesex, pur- 4. The polls of aliens may, within the inchased and furnished a house in Boston, and tent of the constitution, be ratable polls, when afterwards with his family continued to spend they are made liable by the legislature to be his summers at his house in Waltham, where taxed. Opinion of the Justices, 7 Mass. 523 he continued to pay his taxes, and spent his (1811). See Gen. Sts. c. 11, ~ 1. winters at his house in Boston, and died while 5. Ratable polls of aliens may constitutionso residing in Boston. It was held that he allybe included in estimating the number of was an inhabitant of Waltham, and that his ratable polls, in order to determie the numwill might be admitted to probate in the county ber of representatives any town may be enof Middlesex. Icacrvard College v. Gore, 5 titled to elect. Ib. Pick. 369 (1827).. 6. Printed votes are written votes, within 21. A person having a family domiciled in the meaning of the provision in the constitua town in this commonwealth was occasion- tion that'"every member of the house of ally absent in another town engaged in his representatives shall be chosen by written duties as clerk of courts and making arrange- votes." Ilensshaw v. Foster, 9 Pick. 312 ments for the removal of his family, and sub- (1830). See Gen. Sts. c. 3, ~ 7, cl. 20. sequently removed his family to such other 7. Mandamus lies to county commissioners town. It was held that his domicil did not to compel them to certify that the petitioner change until the removal of his family. Wil- for the writ had a majority of the votes for liams v. Whiting, 11 Mass. 424 (1814). county treasurer, although another candidate 22. The mere facts, that a student, who has has been by them declared to be county a domicil in one town, resides at a public in- treasurer, and is in possession of the office. stitution in another town, for the sole purpose Ellis v. Bristol, 2 Gray, 370 (1854). of obtaining an education, and that he has his 8. St. 1822, c. 104, ~ 2, requiring a colmeans of support from another place, do not lector of taxes to return to the selectmen constitute a test of his right to vote and his annually, fifteen days before the first Monday liability to be taxed in the latter town. He in March, a list of persons from whom he obtains this right and incurs this liability only shall have received payment of a state or by a change of domicil; and the question, county tax, intended that the return should whether he has changed his domicil, is to be not be made more than fifteen days before decided by all the circumstances of the case. such Monday. Claflin v. Cheney, 4 Pick. Opinion of the Justices, 5 Met. 587 (1843). 118 (1826). See now Gen. Sts. c. 6, ~ 3. 23. The rule that a domicil once acquired 9. The St. of 1822, c. 104, (Gen. Sts. c. 6, is presumed to continue until a subsequent ~ 3,) requiring each collector of taxes to rechange is shown applies to questions as to the turn annually to the selectmen of his town settlement of a pauper. Chicopeev. TWhately, lists of the persons fiom whom he shall have 6 Allen, 508 (1863). received payment of a state or county tax, See vELECTIONS, 17-19; PAUPE RS,157-159K, intends that the list shall remain with the 272; TcAXESc,.61-78, 136-; - a138. selectmen for their use, and not be taken,AXEbl-~,' -i naway again by the collector. Adams v. loutlton, 7 Pick. 286 (1828). 10. It is not necessary that such list should ~ELECTIONS. ~ be delivered to the selectmen at a meeting of the board; a delivery to one of them is suffi1. A town having a right to send one or' cient. Ib. more representatives to the general court, 11. It is competent for selectmen, though can constitutionally and legally vote not to not their duty, to add the name of a legal send a representative; and such vote will be voter to the voting list, after the voting combinding on a minority of voters, dissenting mences; but they cannot, during such time, therefrom, in such town. Opinion of the hold a regular meeting for the correction of Justices, 15 Mass. 537 (1815). the list. Waite v. Woodward, 10 Cush. 143 2. If a representative in the general| (1852). 20 ELECTIONS. 12. Selectmen have authority, even after election, although such tax was illegally asthe opening of a town meeting, to strike from sessed upon him. Hfumphrey v. Kingman, the list of voters the name of a person who is 5 Met. 162 (1842). not a legal voter. Humphrey v. Kingmzan, 21. Though a tax which is assessed upon 5 Met. 162 (1842). one person, is paid for him by another, with13. It is a' misdemeanor, at the common out his previous authority, yet if he recognizes law, for a citizen vho is a legal voter, at a the act, and repays or promises to repay the town meeting, to give more than one vote for amount, on the ground that such person acted a municipal officer, at.one time of balloting. as his agent, lie thereby acquires the same Cozmmonwealth v. Silsbee, 9 Mass. 417 (1812). right to vote as if he had paid the tax with 14. It is no objection to an election, that his own hand. lb. illegal votes were received, or legal votes 22. Persons who have the requisite qualifirejected, unless the majority is therel;y cations as to age and residence, but who have changed. Blandford v. Gibbs, 2, Cush. 39 been, for two entire years, exempted from (1848). Christ Church v. Pope, 8 Gray, 140 taxation by town assessors, either by being (1857). omitted to be assessed, or by abatement of 15. It is not a valid objection to an election, the tax, as being unable by reason of age, that illegal votes were received, if they did infirmiity or poverty to contribute towards the notchangethe majority. Sudbury v. Stears, public charges, are not entitled to vote for 21 Pick. 148 (1838). governor, lieutenant-governor, senators and 16. Several illegal voters having been per- representatives, under the third article of the mitted to vote at a parish meeting. in the amendments to the constitution. Opinion election of officers, many of the legal voters of the Justices, 11 Pick. 538 (1832). protested against the proceeding and wit- 23. Persons who have the requisite qualifidrew without voting; but the persons de- cations as to residence, but-who have been elared to be elected having received the votes exempted from taxation, on account of their of a majority of the legal voters who remained poverty, during the two years previous to the and voted, it was held, that they were duly election at which they may claim a right to elected. Ib. vole, are not entitled to vote for governor, See OFFICERS 22, 23; REPRESENTATIVES lieutenant-governor, senators and represenIN TiHE GE-NERALr COURT. tatives, under the third article of the amendments to the constitution. p0inion of the Qualifications of Electors. Jstices, 5 Met. 591 (1844). 24. Persons who reside on lands purchased 17. A person having his permanent home by or ceded to the United States for navy in one town, and being legally qualified to yards, forts and arsenals, where there is no vote in such town at the election of public other reservation of jurisdiction to the state officers, is not disqualified by a temporary than that of a right to serve civil and criminal absence in another town, and having been process on such lands, do not acquire by there admitted to vote. Lincoln v. Ilapgood, residing on such lands any elective franchise 11 Mass. 350 (1814). as inhabitants of the towns in which the lands 18. The mere facts, that a student, who are situated. Opinion of the Justices, I Met. has a domicil in one town, resides at a public 580 (1841). Commzonwealth v. Clary, 8 Mass. institution in another town, for the sole pur- 77 (1811). See Mitchell v. Tibbetts, 17 Pick. pose of obtaining an education, and that he 298. has his means of support from another place, See DOMICIL. do not constitute a test of his right to vote and his liability to be taxed in the latter town. Of the Remedy against Officers for refusing He obtains this right and incurs this liability otes, c. only by a change of domicil; and the question whether he has changed his domicil is to be 25. An action lies against selectmen for redecided by all the circumstances of the case. fusing to receive the vote ofa-quliified elector, Opinion of the Justices, 5 Met. 587 (1843). or for omitting to- put his name on the list of 19. A student in the theological institution voters, although not chargeable with malice. at Andover, being of age, and making that Lincoln v. Hapgood, 11 Mass. 350 (1814). town his home, and having no residence else- Blanchard v. Stearns, 5 Met. 298 (1842). where, is entitled to vote in that town. Put- But see Gen. Sts. c. 6, ~ 11. nam v. Johnson, 10 Mass. 488 (1813). 26. But in order to.maintain such action, 20. Payment of a state or county tax, within it must be shown that the plaintiff furnished two years next preceding the election of the defendants with sufficient evidence of his governor, &c., by one who is in other respects having the legal qualifications of a voter, and a qualified voter, entitles him to vote at such requested them to insert his name on the list ELECTIONS - ESTOPPEL - FANEUIL HALL MARKET. 21 of voters, before the defendants refused to the plaintiffmay prove his own statements rereceive his vote, or omitted to insert his name lating to his residence, made to the selectmen on such list. Blanchard v. Stearns, 5 Met. before offering his vote, not under oath, for 298 (1842). the purpose of furnishing to them evidence of 27. A voter who is challenged at the polls, his having the legal qualifications of a voter; cannot maintain an action against selectmen and he may testify to his own intention in for refusing to receive his vote, if they do not leaving the town for a prolonged absence, act wilfully or maliciously, but under a mis- previously to the time of the acts complained take into which they are led by his conduct, of. Lombard v. Oliver, 7 Allen, 155 (1863). which was likely to mislead them into a 32. An action cannot be maintained against belief that he had abandoned his claim to a assessors by an individual who is liable to right to vote. Humphrey v. Kinagman, 5 taxation, for their omission to tax him, whereMet. 162 (1842). by he loses his right to vote at an election, 28. The remedy of one whose name is unless it be shown affirmatively that they erased from the voting list by the selectmen omitted to tax him wilfully, purposely, or with before the voting commences, and whose vote, design to deprive him of his vote; or unless when offered, is refused by them, is an action they had actual knowledge of his liability to against them for erasing his name, and not an taxation, so plain and obvious that a sinister action for refusing his vote, Harrisv. Whit- purpose and wilful omission to tax him, in comb, 4 Gray, 433 (1855). pursuance of such purpose, may be reason29. In an action against the selectmen of a ably inferred by a jury. Grfin v. Rising, 11 town for refusing to receive the plaintiff's vote, Met. 339 (1846). it appeared that at the election in question a selectman, stationed in front of a table, upon which a box was placed for the reception of the votes, took the votes as they were pre- ESTOPPEL. sented, in his hand,.and when the names of A city is not estopped fro climin land the voters were found on the check list, de- h t owns, by te wrongful at of ts swhich it owns, by the wrongful act of its asposited the votes in the box; that when the sessors in taxing it to a person who had no P^ ^ ^ ^^ ^ ^ ^ sessors in taxing it to a person who had no plaintiff came to vote, the selectan offered to title to or possession of the same, or by a coltake the vote in his hand, as he had previously lector's sale for non-payment of such tax done in every instance, but the plaintif Rossire v. Boston, 4 Allen, 57 (1862). demanded the box which was on the table, in order that he might deposit his vote therein See PAUERS, 304-315. himself; that the selectman declined complying with such demand, but reached towards him another box, which had been used on former occasions for the reception of votes, and that FANEUIL HALL MARKET. the plaintiff refused to put his vote therein. It 1. A by-law of the city of Boston, providwas held,that the box so presented to the plain- ing that no inhabitant of the city or of any tiff was the ballot box, within the meaning of town in the vicinity thereof, not offering for Rev. Sts. c. 4, ~ 4, which- provide that no vote sale the produce of his own farm, &c., shall shall be received "unless deposited (' pre- without permission of the clerk of Faneuil sented for deposit; Gen. Sts. c. 7, ~ 12) in Hall Market, be suffered to occupy any stand the ballot box by the owner in person;" and, for the purpose of vending commodities, in consequently, that in the absence of any certain streets which by the by-law are a part malicious design to deprive the plaintiff of of the market, was held to be a salutary police his rights, this was not an unlawful refusal to regulation, and not void as making a distincreceive his vote. Gates v. Neal, 23 Pick. tion between the inhabitants of the city and 308 (1839). its vicinity and those of distant towns, nor as 30. No action lies against the selectmen of being uncertain, nor as being -in restraint of a town for refusing to put upon the list of trade. Nightingale,.Petitioner, 11 Pick. 168 voters therein the name, and rejecting the (1831). But see ts. 1859, c. 211; 1860, c. vote, of one who was not a legal voter, al- 152. though the proof produced by him to them 2. The city government had an undoubted was sufficient to establish, prima facie, his right to prohibit the occupation of a stand in right to vote; and they may prove at the trial the streets by any one, or by any one not havthat in fact he was not a legal voter. Lombard ing a license or permission for that purpose v. Oliver, 3 Allen, 1 (1861). from the clerk of the market. WILuE, J. Ib. 31. In an action against the selectmen of a 171. But see Sts. 1859, c. 211; 1860, c. 152. town for refusing to put the plaintiff's name 3. A by-law of the city of Boston, passed upon the list of voters, and rejecting his vote, for the regulation of Faneuil IHall Market, 22 FANEUIL HALL MARE ET -FIELD DRIVERS, ETC. was valid, which pro-ided that'i no inhabitant exceptions, to the mayor and aldermen of of said city, nor any inhabitant of any town Boston, the power of licensing ferries within or city, whose dwelling-house is less than the territorial limits of Boston was vested in twenty miles distant from said market, shall, the mayor and aldermen, it not being a power at any time, without the permission of the in which a trial by jury can be required, and clerk of said market, occupy any stand therein, so not within tie exceptions. Ib. with cart, wagon, sleigh or otherwise, for the 5. If a ferry claimed by the city of Boston purpose of vending any articles within the as owners, be leased by the city, through the limits of said market, unless he shall, before agency of the mayor and aldermen, with covselling or offering to sell such articles, satisfy enants for the exclusive enjoyment of such the said clerk, when requested, that all the franchise, such covenants will not restrain said articles are tie produce of his own farm, the mayor and aldermen from exercising the or of some farm not more than three miles power vested in them by statute, to license distant from his dwelling-house." Common- another ferry over the same waters, if it be wealth v. Rice, 9 Met. 253 (1845). But see Sts. required by the public convenience and ne1859, c. 211; 1860, c. 152. cessity; but if the city be the owner of an 4. It is a violation of said by-law, for an exclusive franchise in the ferry, the lessees inhabitant of Boston to occupy a stand within would hold it notwithstanding any license to the limits of the market, and there offer for others. lb. sale articles which are the property of a per- 6. Where a petition presented to the mayor son residing more than twenty miles from the and aldermen of Boston for a license to set market, as the agent of such person, and by his up a ferry was referred to a committee, and a direction, without satisfying the clerk of the report was made in favor of licensing the pemarket, when requested, that the articles are titioners, and subsequently a hearing of the the produce of such inhabitant's own farm, or persons interested was had before the whole of some farm not more than three miles dis- board, and the petition was granted, it was tant from his dwelling-house. Ib. held, that it was immaterial whether the report 5. A stand may be occupied within the was agreed to by the committee or not. lb. meaning of said by-law, by a person's having 7. Upon a petition for a writ of certiorari a box within the limits of the market, contain- to quash the proceedings of the mayor and ing articles for sale, and offering them for aldermen in licensing a ferry, it was held, that sale. lb. the court would not review the decision of the 6. Said by-law does not require that the mayor and aldermen upon the question of clerk of the market, before entering a corn- public convenience and necessity, the reguplaint for violation of the regulations of the larity of their proceedings only being open to market, should have the direction of the mayor examination under such process. lb. and aldermen to make such comBlaint. lb. 8. On a petition for a certiorari to quash the proceedings of the mayor and aldermen of Boston in licensing a ferry " between Noddle's Island and other parts of the city of FERRIES. Boston," it was held, that the license was not 1. Where a petition for a license to set up a void for its generality and uncertainty, in not ferry was presented to the mayor and alder- defining more particularly the termini of the men of Boston, and, upon a hearing of the ferry. Ib. parties interested, the petition was granted, 9. It seems that a right of ferry ay exist it was held, that these proceedings were of a separately from the ownership of the soil at iudicial nature, and therefore might be re-t terminiofthe ferry. Ib. moved to this court by certiorari. Fay, Petitioner, 15 Pick. 243 (1834). 2. But where, in a petition for a certiorari, such ferry was claimed by the proprietors of FIELD DRIVERS3 POUNDS AND IMan ancient ferry as appurtenant thereto, it was POU DING OF CATTLE. held, that it was not competent for the court 1. A pound-keeper may lawfully impound under this summary process, to try the con- beasts which have been distrained damage flicting titles of the parties to such franchise. feascnt, in a yard furnished and used by the lb. town as a town pound, if the town have fur3. The court of sessions, previously to its nished and used no otiler place as a pound, abolition, was authorized to establish ferries although the inhabitants of the town have over navigable rivers and arms of the sea. lb. passed no vote concerning the same, and 4. Under St. 1821, c. 109, ~ 11, abolishing taken no action at any town meeting for the the court of sessions in the county of Suffolk, purpose of establishing it as a pound. Anand transferring its authority, with certain thony v. Anthony, 6 Allen, 408 (1863). FIELD DRIVERS; POUNDS AND IMPOUNDING OF CATTLE. 23 2. A vote of a town to restrain cattle fromr remedy. Wild v. Skinner, 23 Pick. 251 going at large within the limits of the town, (1840). is binding on persons not inhabitants, whose 9. The field driver, in such case, is not cattle are found*so going at large. Gilmore bound, under Rev. Sts. c. 113, ~ 6, (Gen. v. Holt, 4 Pick, 258 (1827). Sts. c. 25, ~ 27,) to leave with the pound3. Cattle in a highway, not actually under keeper a memorandum stating the cause of the efficient control of a keeper, are " going impounding and the damage demanded, this at large in the highways, and not under the being requisite only where the cattle have care of a keeper," within the meaning of the been impounded damage feasant. 1b. Pic7Rev. Sts. c. 19, ~ 22, and may be taken up ard v. HIouwe, 12 Met. 198 (1846). and impounded by a field driver; although 10. A pound-keeper, who receives and imthey have been entrusted by their owner to a pounds beasts going at large, and refuses to servant, with other cattle, to be driven to deliver them to the owner, on demand, unless pasture, and have only left the drove a mile his fees and those of the field driver are paid, before reaching the pasture, and turned into is not liable therefor in an action of replevin. a different road, also leading to the pasture, Folger v. Hinckley, 5 Cush. 263 (1850). over which they have sometimes been driven, 11. An inhabitant of a town taking up and there remain feeding, and the servant cattle found going at large within the town returns in less than an hour to the place contrary to a vote of the inhabitants, may where he lost them. Bruce v. White, 4 Gray, impound them in his private close. Gilmore 345 (1855).' v. Ilol, 4 Pick. 258 (1827). 4. A field driver took up a pair of oxen, at 12. A private person who distrains and imlarge in the highway without a keeper, and pounds cattle damage feasant, but does not drove them into his private yard, which was leave with the pound-keeper a written account near by, and then went to the house of their of the damage sustained, in pursuance of St. owner, which was at a distance of a third of a 1788, c. 65, ~ 3, (Gen. Sts. c. 25, ~ 27,) mile, and notified him that if he did not take- becomes a trespasser ab initio; for a statute them they would be driven to the pound. authority must be strictly pursued. Bassit The owner refusing to take care of them, the v. Glover, 1 Dane Ab. 137 (1799). See field driver thereupon drove them to the Sherman v. Braman, 13 Met. 407. pound and impounded them. Ileld, that the 13. A private individual who impounds a cattle were lawfully impounded, although the beast taken damagefeasant,in a town pound, is statute requires that beasts taken up by a not liable for any injury which such beast may field driver " shall be forthwith impounded." receive from cattle confined in the same Dean v. Lindsey, 16 Gray, (1860). pound. Brightman v. Grinnell, 9 Pick. 14 5. The act of a field driver is not neces- (1829). sarily unlawful, although in taking an animal 14. It is the duty of a party impounding to the pound he drives it first upon the owner's cattle to feed and water them as often as is premises. Parker v. Jones, 1 Allen, 270 required according to the usage of the country (1861). and of good husbandry. Where therefore a 6. The owner of lands adjoining a highway, field driver, in warm weather, took up milch who owns to the centre thereof, may depasture cows unlawfully going at large in the highway, his land in the highway; but he is bound, and drove them to a town pound, and there like all other persons, to prevent his cattle restrained them from 7 o'clock in the morning from going at large therein, without being un- to 5 o'clock in the afternoon, without giving der the care of a keeper. Ib. them food or water, it was held that he was a 7. A person who finds cattle at large in trespasser ab initio. Adams v. Adams, 13 the highway, not under the care of a keeper, Pick. 384 (1832). and drives them along the highway until he 15. An application for a warrant of apfinds a field driver, is not a keeper, within praisement under the statutes relating to the the meaning of the Rev. Sts. c. 19, ~ 22, (Gen. impounding of cattle, need not be in writing. Sts. c. 25, ~ 21,) and the field driver may law- Gilmore v. Holt, 4 Pick. 258 (1827). fully receive and impound them. Bruce v. 16. Under the Rev. Sts. c. 113, ~~ 11, 12, White, 4 Gray, 345 (1855). (Gen. Sts. c. 25, ~~ 32, 33,) providing that 8. Under Rev. Sts. c. 19, ~ 22, (Gen. Sts. where appraisers are appointed to determine c. 25, ~ 21,) requiring field drivers to take up the amount due from the owner of an inmand impound, at any time, cattle going at pounded beast for damages, &c., and the sum large in the highway without a keeper, a field found to be due by them is not forthwith paid, driver is authorized to impound cattle so the person impounding may cause the beast going at large on Sunday, the action of debt to be sold by auction, first advertising the to which the owner is subjected by the statute sale by posting up a notice thereof twenty-. in such cases, being merely a cumulative four hours beforehand, it was held, that where 24 FIELD DRIVERS; POUNDS AND IMPOUNDING OF CATTLE. a beast impounded by a field driver was sold driver to the owner of beasts impounded for twenty minutes before the expiration of going at large in the highway, which states that twenty-four hours from the time when the the beasts "were running at large, and were appraisement was completed, the sale was trespassing upon the premises of other indiinvalid, and the field driver a trespasser ab viduals," does not state a sufficient cause of initio, although more than twenty-four hours impounding, as required by Rev. Sts. c. 113, had elapsed from the time of posting up the ~ 8 (Gen. Sts. c. 25, ~ 29). Sanderson v. advertisement; and that it was immaterial, Lawrence, 2 Gray, 178 (1854). in such case, whether any actual injury had 23. A written notice, posted up and pubbeen sustained by the owner of the beast in lished in a newspaper by a field driver who consequence of this neglect of duty on the has impounded beasts going at large in a part of the field driver or not. Smith v. Gates, public highway, which states that the beasts 21 Pick. 55 (1838). were " going at large, and without a keeper," 17. The statute intends that the owner of sets forth a sufficient cause of impounding, the beast impounded shall have an opportunity under Rev. Sts. c. 113, ~ 9 (Gen. Sts. c. 25, to pay the appraised damages and charges ~ 30). Cleverly v. Towle, 3 Allen, 39 (1861). before the posting up of an advertisement for 24. A field driver who lawfully impounds the sale of the beast. Ib. sheep running at large contrary to law, and 18. When the owner of cattle, that are im- duly posts a notice thereof, is not liable to the pounded by a field driver for going at large owner of the beasts, as a trespasser ab initio, contrary to law, commences an action of re- althought he fails either to restore the sheep plevin against the field driver within twenty- or to sell them according to law, through the four hours after they are impounded, he waives default of the pound-keeper or other person, the notice which the Rev. Sts. c. 113, ~ 8, or from the insufficiency of the pound; the (Gen. Sts. c. 25, ~ 29,) require the field driver animals being lawfully in the pound-keeper's to give him, and cannot rely, in support of his custody. Coffin v. Vincent, 12 Cush. 98 (1853). action, on the want of such notice. TWild v. 25. Actual knowledge, by the owner of Skinner, 23 Pick. 251 (1840). Field v. Jacobs, beasts impounded, of the impounding thereof, 12 Met. 118 (1846). is not equivalent to the written notice required 19. The notice which the person who im- by the Rev. Sts. c. 113, ~ 8 (Gen. Sts. c. 25, pounds beasts is required by statute to give to ~ 29). Cofin v. Field, 7 Cush. 355 (1851). the owner of them, within twenty-four hours, 26. The. owner of beasts impounded does need not state the hour of the day when they not waive the right to maintain trespass against were impounded. And proof that notice was the field drivers by whom the beasts were left in the hands of one of the owner's family, taken and impounded, on the ground of'irregat his dwelling-house, is sufficient to authorize ularities or omissions in their proceedings, a jury to find that it was left at his place of by paying the fees of the field driver and abode. The field driver's name may be signed pound-keeper; nor by declaring to a third to such notice by another person, if it be done person, after the commencement of the action, at the field driver's request. Piccar^d v. Howe, that he should require the defendants to prove 12 Met. 198 (1846). that the place where they took the beasts was 20. In an action of replevin brought against a public highway. lb. a field driver by the owner of cattle impounded 27. In an action against a field driver, who by him for going at large, the defendant may had impounded sheep for running at large show in evidence not only that he gave the contrary to law, an instruction to the jury, plaintiff the notice required by Rev. Sts. c. that, if they were satisfied that the notice of 113, ~ 8, but also that he posted notices ac- the impounding was posted up within twentycording to the provisions of ~ 9 (Gen. Sts. c. four hours in some public place by the de25, ~~ 29, 30). But the plaintiff cannot give fendant, containing a description of the sheep evidence that the cattle were not suitably pro- and a statement of the time, place, and cause vided for, or were ill treated in the pound. lb. of impounding, they might find a verdict 21. A notice given by a field driver to the for the defendant, sufficiently imports that the owner of cattle, that they are impounded for burden of proof is upon the defendant to show going at large on the public highway, is prima that the notice posted up contained a statefacie evidence that they were so ait large, and ment of some particular specific cause, known puts on the owner the burden of proving the to the law, for which the beasts were taken contrary. A turnpike is a public highway, up; especially if more specific instructions on within the meaning of the provision of statute this point are not requested by the plaintiff at which requires field drivers to take up and the trial. Coffin v. Vincent, 12 Cush. 98 (1853). impound cattle going at large in the public 28. A field driver took up a horse going at highway. lb. large in the highway without a keeper, and 22. A notice in writing, given by a field drove him, without unnecessary delay, to the FIELD DRIVERS, ETC. — FINANCE - FIRE. 25 pound-keeper's house, and there left him in FINANCE. the barn, directing the pound-keeper's wife to 1. Votes by the inhabitants of a town intell her husband, on his return, to put the t tig tir treasurer "to consolidate the horse in the pound, which the pound-keeper, town debt for ten years, provided the money on his return, did, but the next day took the can be obtained at five and a half per cent.," horse out of the pound and put him back in and authorizing him I' to borrow such sums as his barn, without the field driver's knowledge shall be necessary for the use of the town, or consent. It was held, that the owner of under the direction of the selectmen," and tie horse could not maintain replevin against also "to borrow twenty-five thousand dolltrs the field driver. Byron v. Crijppen, 4 Gray, of the Mount Vernon Bank, at five and one 312 (1855). a half per cent. interest, and that the same be 29. In an action for taking and carrying appropriated under the direction of the selectaway certain sheep, a portion of which had len to the liquidation of the present tovwn been impounded by the defendants as field debt," do not authorize the treasurer to emdrivers, the plaintiff is not restricted to dam- ploy a broker in their behalf to negotiate the ages for the sheep impounded, by reason of loan, or render them liable to pay for the an agreement made between the parties that, services of a broker employed by him to "to avoid another suit, the plaintiff may offer borrow the money for them. Btterfield v. evidence of the manner of driving the sheep, Melch se, 6 Allen, 187 (1863). and the improper and injurious treatment of 2. A mandamus will not be granted on the them after impounding." Folger v. Fields, petition of the selectmen of a town (especially 12 Cush. 93 (1853). if not expressly authorized by vote of the 30. The action of replevin, given by Rev. town) to compel the town treasurer to pay Sts. c. 113, ~ 17, (Gen. Sts. c. 143, ~ 1,) to one the amount of an order drawn by them upon whose beasts are unlawfully restrained or im- him in payment of a debt of the town. Lexpounded, does not exclude all other remedies ington v. Muiliken, 7 Gray, 280 (1856). at common law; trespass will still lie. Cof- See PRPRIIN; TRFA. fin v. Field, 7 Cush. 355 (1851). 31. A cow which was found damage feasant.upon a mowing field, was driven by the owner of the field into the road, and there deliverec into the custody of a field driver, who drove her to his barn and there confined her, the 1. The provision in the Rev. Sts. c. 18, ~ 7, owner of the field assisting him, and notifying (Gen. Sts. c. 24, ~ 5,) that when the pulling him that he claimed remuneration for the down of a building, by the direction of firedamage done. It was held, that this was a wards, shall be the means of stopping a fire, legal impounding, under St. 1788, c. 65, ~ 3 the owner of such building shall be entitled (Gen. Sts. c. 25, ~ 26). Pierce v. Josselyn, to recover reasonable compensation therefor 17 Pick. 415 (1835). from the town, does not apply to a building 32. After a cow legally impounded had which is pulled down by such order, after it been rescued, the owner of the cow met the is so far burnt, that it is impossible to save it persons by whom she had been released, from destruction by fire. Taylor v. Plymouth, while they were engaged in driving her 8 Met. 462 (1844). towards his house, and, with full knowledge 2. Independently of the statute, the pulling of the facts, aided them in so driving her. down of a building in a city or compact town, It was held, that he was liable under St. 1788, in time of fire, is justified upon the great c. 65, ~ 6, (Gen. Sts. c. 25, ~ 36,) for a breach doctrine of public safety, when it is necessary. of the pound. lb. But the town is responsible by force of the 33. Upon an indictment for pound-breach, statute only, and such responsibility is limited the illegality of the distress cannot be shown to the cases specially contemplated. SHAW, in the defence. Commonwealth v. Beale, 5 -C.J. lb. Pick. 514 (1827). See Melody v. Reab, 4 3. Three general directors appointed by the Mass. 471 (1808); Gen. Sts. c. 25, ~ 37. firewards of Nantucket having by law "the 34. If one take cattle from the lawful general direction of adll the operations at custody of a field driver, when he is driving fires" could not lawfully authorize one of them to the pound, this is a rescue, although their number to exercise, an urgent cases, the they are never out of view of the field driver, power of the whole board. Coffin v. Nanand are finally yielded to him andimpounded. tucket, 5 Cush. 269 (1850). Vinton v. Vinton, 17 Mass. 342 (1821). 4. A person who has no legal title to a See Jeick v rk 10 Alen 54 house, but mierely a parol contract for a deed See ri v o, 10 llen,. when he shall have paid the purchase money, See APPROPRIATIONS, 29. is' not an "owner" thereof, before the full 4 26 FIRE -F-ISH - FLATS -GUNPOWDER. amount is paid, so as to allow him to maintain Where two towns adjoin a river, the citizens an action, under Rev. Sts. c. 18, ~ 7, (Gen. of each may take the fish swimming in the Sts. c. 24, ~ 5,) against a town, for the de- tide waters. Ib. struction of such house in order to prevent the 4. A town in its corporate capacity, has no further spreading of a fire. Ruggls v. Nan- authority to transfer the right of taking oystuc7cet, 11 Cush. 433 (1853). ters within its limits, and any contract made 5. To maintain such action the owner by a town for that purpose, is void. Dill v. must show affirmatively and clearly that the Warehanm, 7 Met. 438 (1844). destruction of his house was ordered by three 5. The Commonwealth, in a grant of a tract firewards, and not merely that they agreed of land, granted also the privilege of taking generally that some houses should be demol- fish, to be held in conmmon among the grantees ished, and that the plaintiffs house was and other settlers. Afterwards the inhabitants selected by one of them. lb. on the land granted, having become a town, 6. Under Gen. Sts. c. 24, ~ 5, one fireward were authorized by law to appoint a committee has no more authority, acting alone, than any to regulate the fishery within the town, and a other person, to direct the destruction of a penalty was imposed on any person, except house to prevent the spreading of a conflagra- such committee or those authorized by them, tion, although it may be impossible for the who should take any fish. It was leld, that other firewards, or the other officers named an owner of land adjoining the river was subin the statute, to get to the place where the ject to the penalty, although he and those occasion for action upon the subject arises. under whom he claimed, had used to take fish Parsons v. Pettingell, 11 Allen, (1866) there before the grant of the Commonwealth. 7. If a fireward, without authority of law Nickerson v. Brackett, 10 Mass. 212 (1813). or the owner's consent, destroys property in 6. Three adjoining towns on a river were order to prevent the spreading of a conflagra- authorized by statute to sell the right and tion, he is liable to the owner for such regulate the times, &c. of taking fish within property of the owner as might have been those towns. Two of the towns, for a valusaved if the fireward had not interfered, and able consideration, released to the third the for no more. In case of an extensive con- right to the fishery in that town. It was held, fiagration, property may be so situated in tlat the third town might lawfully dispose of respect to the fire, although not actually on the fishery within its limits, and mainaiin an fire, as materially to affect its value. lb. action, separately from the other two towns, 8. The St. of 1817, c. 171, ~ 10, which im- against the hirer, for the agreed price. Weaposes a penalty on " any person who shall tertown v. White, 13 Mass. 477 (1816). smoke, or have in his possession, any lighted 7. A town sold to C. a privilege of fishing pipe or cigar, in any street, lane or passage- in a river, with the condition that they would way" in Boston, applies to all open ways, not sell any further privilege; they did howused as such, although they may not be legally ever afterwards sell another privilege toqD. established as public ways. Coemmonwealth It was held, that the town could not maintain v. Thompson, 12 Met. 231 (1847). an action against C. for the purchase money, See APPROPRIATIONS, 14, 15; REWARDS. although the sale to D. was void, and although C. joined D. in carrying on the fishery under D.'s license. Taunton v. Caswell, 4 Pick. 275 (1826). 8. In an action by a town to recover the FISH. price of a right of fishing, sold by them under 1. A town has not, by the principles of the the authority derived from a statute, it is not common law, a right of property in a fishery necessary to set forth in the declaration their within its limits. Randolph v. Braintree, 4 authority to make the sale. I. Mass. 315 (1808). 2. Towns adjoining on, or extending across, a navigable river, may own the soil of the flats or even of the channel, if a grant has been FLATS. obtained from the government; but the prop- See BOUNDARIES, 2, 4; FISH, 2; INerty in the fish and also in the tide waters is FORMATION; TAXES, 17; WAYs, 62. in the public. Cool'dge v. Williams, 4 Mass. __ 140 (1808). 3. But by the common law, towns may appropriate the fish, if not appropriated by the U OWD legislature. If no appropriation be made of 1. The board of engineers of the fire dethe fish, any citizen may take them, so that partment of the city of Boston, to whose use he does not trespass upon the land of others. the penalties incurred by violation of Sts. GUNPOWDER - HEALTH. 27 1833, c. 151, and 1837, c. 99, (regulating the 9. Since the statute of 1849, c. 211, ~ 7, storage,&c. of gunpowder in Boston,) are made (Gen. Sts. c. 26, ~ 50,) which provides that to enure,(except when any one of theni shall be " all fines and forfeitures incurred under the examined as a witness in the prosecution,) general laws, or the special laws applicable cannot authorize any person to sue for those to any town or city, or the ordinances, by-laws penalties. ColZburn v. Swett, I Met. 232 (1840). and regulations of any town or city, relating 2. It seems, that the only mode of enforc- to health, shall enure to the use of such town ing the penalties imposed by those statutes, is or city, and may be recovered by complaint, by indictment, or suit in the name of the in the name of the treasurer," such fines and Commonwealth. lb. forfeitures are recoverable only by complaint,______ in the name of the treasurer of the city or town and in no other manner. Com-monweakhb v. PFahey, 5 Cush. 408 (1850). (Under Gen. 1. Under Gen. Sts. c. 26, ~ 52, the select- Sts. c. 19, ~ 15, either the city treasurer or men of a town, acting as a board of health, the chief of police may prosecute for such may by a general order forbid the exercise of fines and forfeitures.) an offensive trade or employment therein, 10. The ordinances and by-laws of the city without first giving notice to those who at the of Boston concerning burying-grounds and time are engaged in carrying on the same. the burying of the dead, are regulations reBelcher v. Farrar, 8 Allen, 325 (1864). lating to health within St. 1849, c. 211, ~ 7. 2. The party erecting or continuing a public.(Gen. Sts. c. 26, ~ 50). lb. nuisance may be prosecuted by indictment; 11. The St. of 1832, c. 150, entitled "an and a part of the judgment may be, that it be act in addition to an act authorizing the town prostrated and removed. SHAw, C. J., in of Charlestown to establish a board of health," ameas v. New England TVorsted Co. 11 Met. authorized the selectmen of Charlestown to 572 (1846). - appoint and locate the places where the dead 3. In order to amount to a nuisance, it is may be buried in that town, to establish the not necessary that there should be a corrup- police of the burying-grounds, to make regution of the atmosphere such as to be danger- lations for funerals and the interment of the ous to health; it is sufficient that the effluvia dead, to appoint all necessary officers to are offensive to the senses and render habita- tcarry the same into effect, and to prescribe tions uncomfortable. SHaw, C. J. Ib. penalties for the violation of such regulations. 4. It is not only the right but the duty of The fourth section of a by-law made by the the city government of Boston, so far as they selectmen provided that no person should may be able, to remove any nuisance which without leave in writing signed by a majority may endanger the health of the citizens. of the selectmen, bring into the town any Baker v. Boston, 12 Pick. 184 (1831). dead body, or convey through any of the 5. And they have necessarily the power of streets any dead body so brought into the deciding in what manner this shall be done, town; or bury any dead body so brought into and their decision is conclusive, unless they the town on any part' of his own premises or transcend the powers conferred on them by elsewhere within the town. It was held, that the city chatter. b,. the first part of this section of the by-law 6. Police regulations to direct the use of being unauthorized by the statute and void, private property so as to prevent its being (which was conceded,) the whole of the secpernicious to the citizens at large, are not tion was consequently void. Austin v. void, although they may in some measure llMurray, 16 Pick. 121 (1834). interfere with private rights without providing 12. It was held, also, that the latter part of for compensation. Ib. the section was not a regulation but a prohi7. The property of a private individual may bition, and therefore void; and if it were not be appropriated to public use in connection a prohibition, yet that except when applied to with measures of municipal regulation; but a populous part of the town it was unreasonin such case, compensation must be provided able and on that account. void. Rb. for, or the appropriation will be unconstitu- 13. The third section of the by-law ordains tional and void. lb. that no person shall exercise the office of 8. Carrying on an offensive trade for funeral undertaker within the limits of the twenty years in a place remote from buildings town, unless he shall have been first appointed and public roads does not entitle the owner and licensed by the selectmen It was held, to continue it in the same place after houses that this section did not apply to a person have been built and roads laid out in the who without a license buried dead bodies neighborhood, to the occupants of and travel- brought into the town contrary to the fourth lers upon which it is a nuisance. Common- section; or if it was intended more effectually wealth, v. LUpton, 6 Gray, 473 (L856). to enforce the prohibition in the fourth sec 28 HEALTH - HOUSES OF CORRECTION AND JAILS. tion, and was to be taken in connection with board of health, after passing a general order, that section, then it was void. Ib. under Gen. Sts. c. 26, ~ 52, forbidding the ex14. A tax payer in a town cannot maintain ercise of an offensive trade or employment an action against the town for his proportion therein, without first giving notice to those of the expenses of the burial of persons not who at the time were engaged in carrypaupers, paid by the town out of the money ing on the same, and after giving notice of the raised by town taxes. Withington V. liar- passage of such order to a person so employed, yard, 8 Cush. 66 (1851). subsequently, and before the expiration of 15. A by-law of the city of Boston, pro- the three days allowed by ~ 56 for an appeal hibiting any person not duly licensed there- therefrom, gave notice to such person of the for by the mayor and aldermen, from remov- presentation of a petition to them, praying for ing house dirt and offal from the city, was the passage of a similar order upon him, apheld not to be in restraint of trade, but to be pointing a time and place for a hearing, with a valid by-law, and binding upon a stranger the intention of preventing him from availing coming into the city. Vandine, Petitioner, himself of his right of appeal from the order 6 Pick. 187 (1828). which they have already passed,and heis there16. It was criminal to dig up and remove by so prevented, and thereby loses his right of a dead body, at common law. Commonwealth appeal, this court will not enforce the order v. Cooley, 10 Pick. 36 (1830). of the board of health by a process in equity. 17. The removal of a dead body is not an And if the selectmen have done this without offence within the meaning of St. of 1830, c. an intention to mislead him, or to deprive him 57, (Gen. Sts. c. 165, ~ 37,) unless done with of his right of appeal, but lie and his counsel the intent to use or dispose of the body for have been actually mistaken in regard to his the purpose of dissection, and in an indict- right of appeal from the order, and he has ment under that statute such an intent must lost his appeal by reason of this mistake, and be averred. Commonwealthv. Slack, 19 Pick. the consequences to him will be serious, this 304 (1837). court in its discretion may and will refuse to 18. Where a town incurs expenses, under enforce the order. Ib. the provisions of St. 1837, c. 244, ~ 1, (Gen. Sts. c. 26, ~ 16,) on account of paupers having a legal settlement in another town, the former is bound to give reasonable notice to the latter, before commencing an action for HOUSES OF CORRECTION AND JAILS. such expenses, and tile selectmen of the respective towns are proper officers to give and See Sts. 1864, c. 270; 186, c. 117. receive such notice. Springfield v. Worces- 1. Upon an appeal by a jailer to the court ter, 2 Cush. 52 (1848). of common pleas under St. 1846, c. 1I, ~ 3, 19. On the 5th of May, 1846, a poor person, (Gen. Sts. c. 178, ~ 23,) from a decision of the having a legal settlement in W., fell ill of the county commissioners fixing his compensasmallpox in S., and was there relieved, in tion, the amount to be allowed him is within pursuance of the provisions of St. 1837, c. the discretion of that court, and not subject to 244, ~ 1, (Gen. Sts. c. 26, ~ 16,) and the se- revision or exceptions. Adams v. Ilampilden, lectmen of S., on the 25th of the same month, 13 Gray, 439 (1859). gave notice of the pauper's sickness and of 2. Where county commissioners have fixed the expenses incurred on his account, to the the salary of a jailer and keeper of a house of selectmen of W.; it was held, that such notice correction, under St. 1859, c. 249, ~ 2, (Gen. was reasonable and sufficient. lb. Sts. c. 178, ~ 22,) and such jailer and keeper, 20. If the selectmen of a town, acting as a deeming the salary so fixed inadequate, has board of health, have brought a bill in equity petitioned the superior court under St. 1859, to restrain the exercise of an offensive trade c. 249, ~ 3, (Gen. Sts. c. 178, ~ 23,) to fix his or employment which they have prohibited, salary, this court will not, during the penunder Gen. Sts. c. 26, ~ 52, this court have dency of such petition, granta writ of mandapower to allow an amendment thereof, by sub- mus requiring the salary fixed by tlie county stituting the inhabitants of the town as plain- commissioners to be paid to such jailer and tiffs, after the term of office of tlhe selectmen keeper out of the county treasury. Adams has ceased. Winthrop v. Farrar, 11 Alien, v. Hampden, 16 Gray, (1860). (1865). 3. The St. of 1787, c. 54, ~ 1, was peremp21. An order by the selectmen of a town, tory on the court of sessions in eacl county acting as a board of health, forbidding the ex- to erect or provide a house of correction, and ercise of an offensive trade or employment mandamus lay from this court to compel therein, need not be served by an officer. lb. them to do it. Commonwealth v. llaapden, 22. If the selectmen of a town, acting as a 2 Pick. 414 (1824). See Gen. Sts. c. 178, ~ 6. HOUSES OF CORRECTION AND JAILS. 29 4. The repeal of the law which directed mitted, to provide materials for their emthat the surplus proceeds of the labor of con- ployment, and to keep accounts thereof, as victs in houses of correction should be paid required by St. 1802, c. 22, was no defence to to them on their discharge, took away the an action by the master of a house of correcauthority to pay the proceeds of labor done tion against a town. lb. before the repeal to those who were not dis- 11. VWhere theaccounts of the master of a charged until after the repeal. W1ilZiams v. house of correction had been allowed by the Mliddlesex, 4 Met. 76 (1842). court of sessions, and one of the towns charged 5. When an insane person, who is not able in them appeared by counsel and contested to pay for his own support, is confined in a their allowance, the only notice to the town house of correction, the town in which lie has of the claim having' been given at the court; a settlement is liable for his support in such it was held, in an action by the master af.gainst house, under St. 1836, c. 223, (Gen. Sts. c. the town, to recover the compensation allowed 74, ~ 6,) if he liave no parent, nmaster or kin- by the court of sessions, that the want of nodred, liable by law to support him. TVatson tice to the town afforded no defence to tlhe v. ChclaZestownsc, 5 Met. 54 (1842). action; but that tlie record of the court of 6. Where an alien woman, having a nurs- sessions was not conclusive as to tle liability ing infant, whichl stood in need of imlmediate of the town, which coulld manke in tlie action relief, was comnlitted to a jail or louse of cor- any defence to which it mighlt be legally enrection, it was held, that such infant was not titled. Ib. within the provisions of any of the statutes 12. Under the Rev. Sts. c. 143, ~ 15. 1G, providing for the support of convicts and per- (Gen. Sts. c. 178, ~~ 57-59,) whlich provide sons confined on criminal prosecutions. Tcat- tlhat the expense of suppor'ting a pauper in tile son v. Cambrgidge, 18 Pick. 470 (1836). house of correction " may be recovered of'the 7. If the town in which the house of cor- town whierein he shall liave his law ful settlerection is situated, atfter due notice and re- ment," the town in which lie has a settlement quest by the master thereof, refuse to assume at the timr when such expense is incurred, is the support of such infant, the master may liable therefor, although he gains a settlement recover from the town tle expenses incurred in anotler town before the account of such by him on account of such infant, for cloth- expense is audited and certified by the overing, medicine, &c., but not for any articles of seers of such house. Boston v. Amessbzlry, 4 food and nourishment furnished to the mother Met. 278 (1842). in consequence of her having an infant at the 13. Tie persons and corporations that are bretst, different from, and in addition to, what made conditionally liable by the said statutes, he was required to furnish to other inmates of for the support of persons commiltted to a the house of correction. Ib. house of correction, cannot be 1eld( to pay for 8. Persons committed to a house of correc- such support, unless the account thereof bie tion under St. 1787, c. 54, as rogues, common audited and certified by the overseers of such vagabonds, common beggars, or other idle, house, within the time prescribed by those disorderly or lewd persons, arc there main- statutes. Ib. tained, not as paupers, but as criminals, and 14. Where a auper was confined in a house previously to the passing of St. 1826, c. 142, of correction, from December, 1836 to April, the keeper of such house, in order to recover 1837, and the account of the expense of his of the towns where such persons have their support was not audited and certified by tlie settlements, the expenses incurred for their overseers until January,1839, it was ield,tlhat support, must have made a demand in writing the town in which he had his settlement was in accordance with the requirements of St. not liable for such support. lb. 1802, c. 22, ~ 2. Boslto v. TWlestfourd, 12 Pick. 15. The St.1834, c.151, ~ 10,(Gen.Sts.c.178, 16 (1831). ~~ 57-59,) provides that whenever any sum 9. The master of a house of correction, shall be due for the care and expense of supunder Sts. 1802, c. 22, ~ 2, and 1826, c. 142, portinganypersoncommitted toahouseofcorafter his accounts had been allowed and certi- rection,it maybe recovered of such person,&c., fied by the court of sessions, might maintain or of the town wherein he is lawfully settled,if an action for the compensation allowed by such person, town, &c. shall neglect to pay such such court, for keeping, supporting, and em- sum for the space of fourteen days after the ploying any person duly committed to the same shall have been demanded in writing of house, against the town inwhliich such person him or them respectively, or of one of the was legally settled, if lie had no estate and no selectmen, &c. It was held, that the word kindred li:ble by law to support him. 1Wade " demand " does not mean a personal presenv. Salem, 7 Pick. 333 (1828). tation of the account for immediate payment, 10. The neglect of the court of sessions to and that a letter from the master to the selectestablish rules to govern the persons com- men of the town would be sufficient to answer 30 HOUSES OF CORRECTION AND JAILS - JURIES. the requisitions of the statute. Robbins v. IMPOUNDING OF CATTLE. }Teston, 20 Pick. 112 (1838). See FIEL DRIVERS, &C. 16. The demand upon the selectmen of the town may be made by a person specially authorized by the master to make the same and INDICTMENT. to receive the money, but in such case the tment a selectmen, being public agents, are entitled to 1. ere, pnndiit an nd ains be furnished, at the time of the demand, with a to the latu e of tle town wrs altel ed b y the evidence of the authority of the agent. I. tle legislature, the court refused to quasl tle 17. Where, in an action instituted under init t for tlat cs. Commoweah v. Sts. 1824, c. 28, ~ 3; 1834, c. 151, ~ 10; and Phlisbcg, 10 Mass. 78 (1813). Rlev. Sts,.. 143, ~ 16, to recover expenses 2. A town may be indicted as " the town of D.," and need not be described as " tule inincurred fur the support of a prisoner in the habitants of the town of D." Commonw eal /h house of correction in Boston, it appeared Deantso, 16 Mass. 141 (1819) that the demand of payment, which is a prerequisite to the institution of such an action, See JURIES, 10; WAYS, 14, 23, 38, 60, 391was made by a person deriving his authority 396, 400, 417-429. neither from the city nor from the master of the house of correction, but solely from the overseers of the house of correction, it was INFORIMATION. held, that such demand was insufficient. An information on Rev. Sts. c. 108, (Gen. Boston v. Testoot, 22 Pick. 211 (1839). See Sts. c. 141,) against a town, does not admit Gen. Sts. c. 178, ~~57-59. its title in fee in flats sought to be recovered, 18. A town in which a convict, who is cor- by describing them as situated in that town. mitted to a house of correction, has a settle- Comtonlcwealmh v. ]oxb.zbLy, 9 Gray, 451 ment, is not liable, by any statute, to pay the (1857). expense of supporting him in asuchl house, unless he be committed by virtufetf the fifth or sixth section of c. 143 of the revised JURIES. statutes (Gen. Sts. c. 161, ~ 21; c. I65, ~ 28). 1. Quakers are capable of servino as grlrnd Boston v. Dedhamr, 8 Met. 513 (1844). j v.S, Mass. jurors. uCom,2n2onecaltl v. S&>'ift~, 9 I~fass. 19. When a debtor imprisoned on rnesne 107 (1810) process claims support as a pauper, and his ict ill not be set aile on te creditor, upon being required by the jailer to grolld that one of the jurors was more than advance the money necessary for the support sixty-five years old, and that this fact was not of tie prisoner or to give security for his sup- knon to the party objecting before the verport, neglects to do so for twenty-four hours iet a returned; for persons of that age are after demand, it is the duty of the jailer to not absolutely disqualified from serving as disclharge the prisoner forthwlith. Worcester jurors by 11ev. Sts. c. 95, ~ 2, (Gen. Sts. c. v. Se/ess/inger, 16 Gray, (1860). I132, ~ 2,) but are only exempted from serving 20. An action to recover for expenses in- at their own election, and made liable to excurred in the support of a debtor imprisoned ception, by eitler party, when the jury is emon mesne process in a county jail, cannot be plaelled. Munxoe v. L'riguamt, 19 Pick. maintained by the county against the creditor, 3G6 (1837) if the creditor has not been notified that the 3. Attorneys at law, though retired from debtor claims support as a pauper, or if the practice, are eemlted fiom serving as jurors. creditor, having been required to advance thle Sset's case, 20 Pick. (183). money necessary for his support, or give 4. One ihaving served as a juror in the security for his support, neglects to do so. lb. courts of the United States vithin three years 21. A prisoner confined in a house of cor- is not liable to be returned as a juror in the rection under sentence of court, and while state courts. Swa-'s cse 16 Mass. 220 there put into solitary confinement forrefrac- (1819). tory conduct, in accordance with rules estab- 5. A person is not liable to serve as a lished for such cases, cannot maintain an traverse juror who has served as agrand juror action against the master thereof for neglect within three years, although it is a little more to provide for him sufficient food, clothing than three years since le was drawn as such. and fires, if ie is kept in one of the usual Brown's case, 8 Pick. 504 (1829). cells, and there is no evidence of express 6 Service on a sheriffs jury aithin three malice, or of such gross negligence as to years is not the service contemplated in the authorize the inference of malice. Williams statute, and does not exempt a person from v. Adams, 3 Alien, 171 (1861). serving as grand or traverse juror in a court. See PAUPERS, 7. Brewer v. Tyringham, 14 Pick. 196 (1833). JURIES - LICENSES - MILITIA- MILK. 31 7. A member of the legislature is entitled LICENSES. to be excused from serving on a jury while A A the legislature is in session. Commonwealth AS,; A S E ES; ID v. Tralton, 17 Pick. 403 (1835). Gen. Sts. 3, 4 CARRIGR S, 2; FERRIES; OrIC. 132, ~ 2. 8. A minister of the Methodist Episcopal Church, who belongs to the "local connec- OD'S tion," and whose duty it is to preach when called upon to churches within a convenient See FIELD DRIVERS, &c. 8, 9; WAYS, 242, distance'from his residence, is a "settled 264, 281, 389, 390. minister " within the meaning of the statute exempting certain persons from serving as jurors. (Gen. Sts. c. 132, ~ 2.) Common-USES. wealth v. Buzzell, 16 Pick. 153 (1834). 9. A list of persons to serve as jurors was See APPROPRIATIONS, 7, 8; FANUEIL HALL prepared and laid before a town by its select- MARKET. men. The town voted that said list be not accepted, and also voted to elect a list by nomination. Thereupon several persons, - MILITIA.' part of whom were on the list prepared by the APPROPRIATIONS 2 3 CONTRACTS 27; selectmen, and part not on that list, were RIOTS. nominated and declared chosen. Ield, that these persons were legally elected as jurors! Page v. Danvers, 7 Met. 326 (1843). MIL 10. It is no sufficient exception to an indictment for an offence, to which the law an- 1. A complaint by H. F., inspector of milk nexes a fine for the use of the town where the in the city of Boston, alleging that the deoffence is committed, that the foreman of the fendant, being a dealer in milk, and being regrand jury who found. the indictment is a corded as a dealer in milk in the books of said taxable inhabitant of such town. Common- H..F., sold adulterated milk, in violation of wealth v. Ryan, 5 Mass. 90 (1809). See Gen. the provisions of Gen Sts. c. 49, ~ 151, does Sts. c. 122, ~ 13; c. 132, ~ 30. not sufficiently allege that he was recorded in 11. The legislature have authority to enact the books of the inspector as a dealer in milk. that the interest which aln inhabitant of a city Commnonwealth v-. O'Donnell, 1 Allen, 593 may have in apenalty for the breach of a by- (1861). See now St. 1864, c. 122, ~ 4. law thereof, shall not disqualify him to act as 2. A complaint for selling adulterated milk a juror in a prosecution to recover such pen- in violation of the provisions of Gen. Sts. c. alty. Comnmonwealth v. Wlorcester, 3 Pick. 49, ~ 151, which, after alleging the official 462 (1826). See Gen. Sts. c. 122, ~ 13; c. character of the inspector, and that he kept 132, ~ 30. an office and books as required by the statute, 12. Rev. Sts. c. 95, ~ 28, (Gen. Sts c. 132, charges that the defendant, being a dealer in ~ 30,) which provides that "in indictments milk, and being recorded as a dealer in milk and penal actions for the recovery of any sum " in the books of said inspector," did sell, &c., of money or other thing forfeited, it shall not does not sufficiently show that he was recorded be a cause of challenge to any juror that he is in any such books as the statute requires the liable to pay taxes in any county or town which inspector to keep. Commnonwecalth v. IlcCXarmay be benefited by such recovery," is no vio- on, 2 Allen, 157 (1861). See now St. 1860, lation of art. 29 of the Declaration of Rights, c. 122, ~ 4. securing to every citizen "the right to be 3. An indictment which alleges that the detried by judges as free, impartial, and indepen- fendant "did unlawfully keep, offer for sale dent as the lot of humanity will admit." and sell" adulterated milk, charges but one Commonwealth v. Reed, 1 Gray, 472 (1854). offence. Commonwealth v. Nichols, 10 Allen, See also Gen. Sts. c. 122, ~ 13. 199 (1865). See ACTIONS, 59; WAYS, 156-169, 214-227. In support of such indictment, one who i s,;Y,,. in a great many instances has used a lactometer for the purpose of testing the quality and purity of milk, may testify to the result of an LTAW OF TH"E ROAD. experiment made by him with the same lactometer upon the milk in question, although See CARRIAGES, 5-14. no evidence is offered as to the character of the instrument. lb. 5. A person may be convicted of selling 32 MILK - NUISANCES - OFFICERS. adulterated milk, under St. 1864, c. 122, ~ 4, thority to act for the corporation on the subalthough he did not know it to be adulterated; ject to which they relate, or that they were and an averment in the indictment that he had adopted and ratified by the corporation. such knowledge may be rejected as surplus- Thayer v. Boston, 19 Pick. 511 (1837). age. Commnonwealth v. lFarren, 9 Allen, 489 2. A town is authorized to indemnify its (1864). Commonwealth v. Waite, 11 Allen, officers against any liability which they mnay (1865). incur in the bona fide discharge of tleir duties, 6. It is not necessary in such an indict- although it turn out that they have exceeded ment to aver that the milk was cow's milk. their legal rights and authority. Bancroft v. Ib. Lynnfield, 18 Pick. 566 (1836). 7. An indictment alleging a sale of adulter- 3. Towns have the power to bind themselves ated milk to a woman is not defeated by by a vote to indemnify their officers and agents proof that she was married, and was acting as against liabilities incurred in the bona fide agent for her husband, if the seller had no no- discharge of their duties. And the officers tice, express or implied, of these facts. Corn- or agents are not required to give the town monueanth v. dFarren, 9 Allen, 489 (1864). notice of the pendency of suits against them 8. An indictment under St. 1 864, c. 122, ~ on such liabilities, in order to recover of the 4, which charges that the defendant sold a town their reasonable costs and expenses incertain quantity of "'adulterated milk, to curred in good faith in defending such suits. which a large quantity, that is to say, four Iiadsell v. flancoc7c, 3 Gray, 526 (1855). quarts, of water had been added," is not bad 4. If, after a vote by a town not to defend for duplicity. Ib. an action brought against it, the selectmen 9.'o action lies to recover the price of nevertheless make a defence, they are bound milk sold by the can, at wholesale, in cans to indemnify the town against the costs of the n,-t sealed according to St. 1859, c. 206, ~ 4, defence. Emerson v. Newbury, 13 Pick. 377 (Gen. Sts. c. 49, ~ 150,) although the state (1832). sealer refused to seal them for the statute 5. Town officers must be inhalitants of the price. Mliller v. Post, 1 Allen, 431 (1861). town in which they are chosen, and they cease 10. St. 1864, c. 122, ~ 4, is not unconstitu- to be officers when they cease to be intional, although it authorizes the conviction habitants. Barre v. GreenVwich, 1 Pick. 129 of a person who had sold adulterated milk, not (1822). See Gen. Sts. c. 18, ~ 41. knowing it to be adulterated. It is the prov- 6. In St. 1785, c. 75, ~ 4, (Gen. Sts. c. 18, ince of the legislature to decide what provis- ~ 43,) respecting vacancies in town offices, ions are reasonable on the subject. Cor- the word "removal" means a removal from monwealth v. Waite, 11 Allen, (1865). town. Ib. 11. On the trial of an indictment for selling 7. The appointment by a city council, for a adulterated milk, the certificate of an analy- definite time, of a city officer entitled to com-.zer as to the quality of the milk sold by the pensation for his services, if accepted by him, defendant was admitted in evidence against constitutes a contract between him and the the defendant's objection. The analyzer then city, which cannot be changed by a subsequent personally testified to the same facts stated in ordinance of the city and vote of the city the certificate. It was held, that the testi- council, without his consent. Chase v. Lowell, mony of the analyzer destroyed all objections 7 Gray, 33 (1856). to the admissibility of his certificate. Ib. 8. The mayor of a city, whose charter provides that he " shall be the chief executive officer of the city; " that " it shall be his duty to be vigilant in causing tlie.laws and regulaNUISANCES. tions of the city to be enforced;" and that See HEALTH; RAILROADS, 17, 18, 22; SEw- "the executive power. of said city generally ERS AND DRAINS, 18; STEAM ENGINES; and the administration of the police shall be WAYSm, s5, 74, 397-429, 438. vested in and may be exercised by the mayor and aldermen as fully as if the same were herein speciallyenumerated," may lawfully remove atn.,awning erected in violation of an OFFICKERS. ordinance of the city, after a vote of the board 1. As a general rule, a municipal corpora- of aldermen authorizing and instructing him tion is not responsible for the unauthorized "to proceed forthwith to remove all wood anad unlawful acts of its officers, though done awnings now standing in said city in violation colore offcii; it must further appear that the of law," although a street commissioner has officers were expressly authorized by the cor- been appointed, with the powers and duties of poration to do the acts, or that they were a surveyor of highways. Pedric7k v. Bailey, done bonafide in pursuance of a general au- 12 Gray, 161 (1858). OFFICERS. 3,3 9. The mayor of a city has no authority hy matter to thf selectmen, it was held, that tle VIrtue of his office to employ counsel in behalf selectmen were authorized to determine not of tle city, unless such authority is expressly only whether the clock should be repaired, conferred upon him by the city charter or but also what repairs should be made, and that ordinances. Fletcher v. Lowell, 15 Gray, they were not restricted to inconsideralle re(1860). pairs, such as had previously from time to 10. Upon a petition for a jury to assess time been made. W;illard v. VNeubutryport, 12 damages against a city for laying out a bridge Pick. 227 (1831). as a highway, the city council voted that it be 16. Selectmen have no authority, by virtue " referred to tile mayor, with power to employ of their office merely, to make a contract in such counsel as may be deemed expedient." behalf of a town for the hiring of a building ileld, that this vote did not authorize the for the purpose of holding town meetings in mayor to employ counsel to obtain the pass- it. Goff v. Rehoboth, 12 Met. 26 (1846). age through the legislature of an act relating 17. An information in the nature of a quo to the bridge, which might diminish the peti- warecanto does not lie against an officer electtioner's claim for damages against the city. ed for one year only, because it would be imlb. possible to decide the question before the 11. If, under a charter authorizing the same, expiration of the term, when the mischief a city ordinance is passed which prohibits tile complained of would have ceased Comsmonobstruction of any street for the purpose of wealth v. Atheasin, 3 Mass. 285 (1807). building, " without first obtaining a written 18. Where a minister of a town or parish license from the mayor and aldermen, or some is seised of any lands in the right of the town person authorized by them," and complying or parish, during a vacancy in the offce the with such reasonable conditions as they may town or parish is entitled to the custody of impose, the mayor alone has no authority to the same, and may enter and take the profits grant a license to obstruct a street for the pur- until there be a successor. B'tunswick v. Dunpose of building, or to impose conditions niog, 7 lMass. 445 (1811). therefor; and an agreement, made in consid- 19. A surveyor of highways sustaining eration of such license from the mayor alone, damage from a defect in Ihe highway within to indemnify the city against damages that his district, which arises from his own neglect, may arise in consequence thereof, is without has no remedy against the town for such danmconsideration and void. Lowell v. Simpson, age. WTood v. Waeterville, 5 Mass. 294 (1809). 10 Allen, 88 (1865). 20. A truant officer, appointed under Gen. 12. Where a by-law of a city prohibits the Sts. c. 42, ~ 5, does not hold over after the moving of buildings through the public streets, expiration of his year, although no other has without a license granted by the mayor and been appointed in his place. Hluse v. Lowell, aldermen, the board of aldermen cannot del- 10 Allen, 149 (1865). egate to the mayor alone the power to grant 21. It is no justification of a slander pubsuch licenses. Day v. Green, 4 Cush. 433 lished of a town officer, relative to his official (1849). conduct and while in the exercise of his offce, 13. The mayor of a city, who, under the that the slanderer was a legal voter in the authority of an order of the board of alder- town, and so one of tie constituents of such men, which they had no power to pass, has officer. Dodds v. IHezy, 9 Mass. 262 (1812). granted a license for the moving of a building 22. Where a selectman, acting in his official through tlie streets, is not estopped, in an capacity, at a town meeting, during an elecaction of trespass against him, for removing lion, said in good f.(ith, and in the belief that the building out of the street, where it hlas thle words were true, "B. (the plaintiff) has been left by the owner in the course of such put in two votes," it was held, that an action removal, to set up the invalidity of the license. of slander could not be maintained for the Ib. words so spoken. Bradley v. IHeath, 12 Pick. 14. ~Where a town appointed three persons, 163 (1831). who were not inhabitants, to designate a place 23. It was also held, in an action against such for building a meeting-house, it was held, that selectman for speaking such words, that he a designation by two only was insufficient, might prove, under the general issue, the occathey being agents or commissioners and not sion of uttering tile words, and that the plaintechnically a committee; but that if they had tiff's own conduct was such as induced him to all concurred, the town might nevertheless believe the imputation was true. lb. reject a designation made by them. Damoib 24. The assessors of a town having made v. Gqacnby, 2 Pick. 345 (1824). an application to the town to reimburse them 15. Where, upon the question whether a for expenses incurred in an action brought town would make the necessary repairs upon against them for having made false answers una town clock, a vote was passed to refer the der oath in a former action brought against 341- OFFICERS. them as assessors, and such application being voted. Moody v. lJ'ew'bilyport, 3 Met. 431 under consideration at a meeting of the town, (1841). g tax payer who states in the course of debate 32. Assessors are entitled to the statute upon the application that the defendants have compensation of one dollar, a day, (one dollar perjured themselves, is not liable to an action and fifty cents a day; Gen. Sts. c. 11, ~ 52,) for slander for making such statement, in the for every day they are employed as such, alabsence of malice, and may testify, in an ac- though it exceeds the sum which the town may tion brought against him for speaking such have voted as their compensation. And if the words, concerning his motives in speaking sum thus voted exceeds the statute compenthem, his belief in their truth, and as to the sation, they are en.titled to such sum; but absence of malice or ill will towards the they are not entitled to such sum and also to plaintiff. Smith v. Higgins, 16 Gray, the.statute compensation, unless it appears (1860). from the terms of the vote of the town that 25. Where the oath of office is administered the sum voted was intended to be in addition to a town officer in open town meeting, by a to said statute compensation. Ib. justice of the peace, in presence of the town 33. The provision of statute, that when any clerk, the clerk's record of the fact is compe- person, committed to jail for non-payment of tent evidence of the fact of the administration taxes, shall be discharged by taking the poor of the oath. Briggs v. ~Murdock, 13 Pick. 305 debtors' oath, " the collector shall be liable to (1832). pay the tax, with the charges of imprisonment, 26. The clerk of a city or town is the proper unless he shall have committed the party certifying officer to authenticate copies of the within one year after the tax was committed votes, ordinances, and by-laws thereof; and to him to collect," (Gen. Sts. c. 12, ~ 16,) such copies so authenticated are admissible does not render the collector liable to pay for in evidence, when purporting to be duly at- the support of the person so committed, while tested, without any verification of the clerk's in jail. Townsend v. Walcutt, 3 Met. 152 signature. Commnonwealth v. Chase, 6 Cush. (1841). 248 (1850). 34. A collector of city taxes is "a public 27. One who was formerly a town clerk, officer" within the first section of the United but is no longer in the office, cannot amend a States bankrupt act of 1841; and a debt which town record made by him when town clerk. he owes the city in consequence of a defalcaHartwell v. Littleton, 13 Pick. 229 (1833). tion in his office of collector, is a fiduciary 28. It is competent for a town clerk to debt. Morse v. Lowell, 7 Met. 152 (1843). amend a record made by him when in office 35. A committee appointed by a town to under a former election, such amendment be- audit the accounts of the overseers of the ing consistent with truth. Welles v. Battelle, poor, and to demand and receive from them 11 Mass. 477 (1814). the books of account belonging to the town, 29. If the clerk of a school district wrong- held by the overseers in their official capacfully certifies to the assessors of the town that ity, have no such property in the books as will at a legal meeting of the district it was voted authorize them to apply in their own names to raise a sum of money, and the assessors for a mandamus to compel the surrender of thereupon assess the same, a person arrested the books. Bates v. Plymouth, 14 Gray, 163 for not paying the tax cannot maintain an ac- (1859). tion against the clerk, the injury being but a 36. A city officer, who is chosen for a year, remote consequence of his act. Taft v. Met- subject to be removed from office at any time, calf, 11 Pick. 456 (1831). See Allen v. Met- at the will of the mayor and aldermen, and calf, 17 Pick. 208. whose salary is payable quarterly, may legally 30. Where the defendants in an action jus- make an assignment of a quarter's salary betified as assessors, and showed by the records fore the quarter expires. Brac7cett v. Blake, of the town that they were duly elected at a 7 Met. 335 (1844). town meeting legally warned, it was held, that 37. Future wages to be- earned under an they were not bound to go behind the records existing appointment as watchman of a city and show that the meeting was in fact legally may be assigned, by an order addressed to the warned. Thayer v. Stearns, I Pick. 109 treasurer of the city; and such an order, (1822). See Gilmore v. IIolt,,4 Pick. 258. given in the middle of a month, "for the 31. Where a town votes that its assessors amount on my month's wages, when due," shall be allowed a certain gross sum for their means the wages of that month. Macoinber v. services during the year, they are not enti- Doane, 2 Allen, 541 (1861); and see Ib. 40. tied by the Rev. Sts. c. 7, ~ 45, to one dollar 38. A constable's return of his service of a day, (one dollar and fifty cents a day; Gen. an order'f notice issued by a city council unSts. c. 11, ~ 52,) in addition to the sum thus der an ordinance of the city is competent ev OFFICERS —ORDINANCES AND BY-LA&WS 35 idence, supported by his testimony that he has thejury on that question is inadmissible. Cosnno doubt of its truth, although he has no rec- isonwealth v. ITorcester, 3 Pick. 462 (1826). ollection of the fact of service. H'ildreth v. 2. The provision of statute that in prosecuLowell, 11 Gray, 345 (1858). tions on the by-laws of Boston it shall not be 39. Marshals appointed under a city ordi- necessary to set forth the by-law at large in nance wlhrich directs that they shall also be ap- the complaint, is not unconstitutional as conpointed constables, and that nmarshals shall ferring an exclusive privilege. (Gen. Sts. c. pay over to the city the fees received by them 171, ~ 16.) Ib. in criminal cases or in the service of the city, 3. The mayor and aldermen of Boston have and shall have salaries in full for all their ser- no power to suspend a by-law of the city, nor vices, are liable for such fees received by them to authorize a violation of it. Ib. as constables. TWorcesters v. ITalkelr, 9 Gray, 4. St. of 1817, c. 50, providing that prose78 (1857). cutions on the by-lawsvof Boston may be in 40. A city ordinance giving to police offi- the nan-e of the Commonwealth, is not repealed cers a fixed salary, and requiring them to pay ty the act by which the town of Boston was over to the city the fees received by them as incorporated as a city. Ib. Nor is it unconwitnesses, or for penalties in criminal cases, stitutional, notwithstanding that in prosecuor for service of any criminal process, or for tions in that form the defendant is not allowed any services in behalf of the city, is not con- costs on acquittal. lb. Gocddcdrcd, Petitrary to public policy. Ib. tionzer, 16 Pick. 504 (1835). 41. A mandanmus will not be granted on the 5. A by-law of a city is binding upon stranpetition of the selectmen of a town, (especi- gers coming within the territorial limits of ally if not expressly authorized by a vote of the city. V2tandine, Petitioner, 6 Pick. 187 the town,) to compel the town treasurer to pay (1828). And see Gen. Sts. c. 18, ~ 15. the amount of an order drawn by them upon 6. It is no objection to a statute directing him in payment of a debt of the town. Lex- as to the manner of prosecuting offences ington v. itizlliken, 7 Gray, 280 (1856). against ordinances of the city of Boston, that 42. Under the city ordinances of Lowell, its operation is confined to that city. Comprescribing the duties of the city solicitor, lie rmonuwealth v.'WorT)cester, 3 Pick. 462 (1826). is entitled to recover against the city for ser- 7. A complaint for a breach of a by-law of vices rendered by virtue of his office, without Boston, concluding " against the form of the special employment, as assistant counsel, in by-laws, &c. in such case made and provithe preparation and trial of a case of flowing ded," is not sufficient without concluding also land in which the city was one of numerous " against the form of the statute," &c. Conzcomplainants, and for services in drafting ex- Inmoniealthc v. Gay, 5 Pick. 44 (1827). But ceptions and reports of cases; but not for ex- see Gen. Sts. c. 172, ~ 19. amining records, and making a report of the 8. Cities and towns had power, even before business of his office to the city council. Cav- the St. of 1857, c. 82, (Gen. Sts. c. 45, ~ 10,) erly v. Lo'ell, 1 Alien, 289 (1861). to make by-laws to prohibit permitting cattle 43. A city, whose officers, in repairing a to go at large or stop to feed on any highway. bridge over a river, though acting in the hon- Commzonwecalth v. Bean, 11 Gray, 52 (1859). est exercise of their discretion, narrow tle 9. I;f under acharter authorizing the same, space for the passage of the water, so as in a city ordinance is passed which prohibits the times of freshet to set it back upon a mill, are obstruction of any street for the purpose of liable for the injury thus occasioned, in an building, "without first obtaining a written action of tort, even if the owner of the mill was license from the mayor and aldermen, or some a menmbr of the committee of the city council person authorized by them," and complying on whose report the alteration was made. with sucli reasonable conditions as they may Perry v. TWorceste-, 6 Gray, 544 (1856). impose, the mayor alone hlas no authority to See ACTIONS; APPROPRItATloNS, 1C9-23, 29;: ^grant a license to obstruct astreet for the purBOXDS-; CONTRACTS; DOGS, 3; ESTOPPEL;- Po(se of building, or to impose conditions FINANCE; F IRE, 3, 5-7; GUN-POWaDEIa On- tlerefor; and an agreement, made in considDINANCES, F&C. 3; PAUP57aRS, 99-102, 273 D 274, eration of such license from the mayor alone, 328; POLNICE; RAOLROADS, 10: RECORns, 5, to indemnify the city against damages that -RaEWTARDS, 3-5, 8, 10, 11: tIOTS; SCHOOLS; may arise in consequence thereof, is without TAXES TEAS E consideration and void. Lowell v. Sirerlsoa, SPENDTHRIFTS; TAXES; TREASURER; WxAYS. 1 ~ 8 ~ 10 Allen, 88 (1865). 10. An ordinance of a'city, providing that no person shall maintain an awning before his ORDINANCES AND BY-LAWS. door, without the consent of the mayor and 1. Whether a by-law be reasonable or not aldermen, is reasonable; and an awning is for the court to determine, and evidence to erected without such consent is an unlawful 36 ORIDINANCES AND BY-LAWS. obstruction. Pedsqick v. Bailey, 12 Gray, 161 16. The third section of the by-law ordains (1858). that no person slall esercise the office of 11. A by-law of a city requiring the owners funeral undertaker within the limits of the or occupants of houses bordering on streets town, unless he shall have been first appointed to clear the snow from the sidewalks adjoin- and licensed by the selectmen. It was held, ing their respective houses and lands, is not that this section did not apply to a persoi strictly speaking a by-law levying a tax; and who, without a license, buried dead bodies inasmuch as the burden created by it is im- brought into the town contrary to the fourth posed on a numerous class, and upon all per- section; or if it was intended more effectually sons equally who come witlin the description to enforce the prohibition in the fourth secof such class, and as they commonly derive a tion, and was to be taken in connection with peculiar benefit from the duty required, and that section, then it was void. Ib. are peculiarly able.to perform it with the 17. A by-law of a town, forbidding the sale promptness which the good of the commu- therein by any person, without a license, of nity demands, the by-law is not partial and " strong beer, ale, or any other intoxicating unequal within the sense of the provision in liquor, in a less quantity than twenty-eight the constitution, that assessments, rates, and gallons, and that delivered and carried away taxes, imposed and levied on the inhabitants all at one time," is invalid. Commonwealcih of the Commonwealth shall be proportional v. Turner-, 1 Cush. 493 (1848). and reasonable; but such by-law is reason- 18. A city ordinance, providing that no able. Goddardc, Petitioner, 16 Pick. 504 person shall permit any swine under his care (1835). And see now Gen. Sts. c. 45, ~ 9. to go upon any sidewalk in the city, or other12. Such a by-law is not invalid on account wise occupy, obstruct, injure or incumber any of a part of the city peculiarly situated such sidewalk, so as to interfere with the conbeing expressly exempted from its operation. venient use of the same by all passengers, is 1b. within an authority conferred by the charter 13. The making and regulation of streets to make all such salutary and needful by-laws in the city of Boston is provided for exclu- as towns by the laws of the Commonwealth sively by special statutes; consequently, a by- lave power to make. Commnonwealth v. law of Boston, containing a provision for re- CGrtis, 9 Allen, 266 (1864). moving snow in the streets, differing from the 19. It is the duty of a person who volunprovision in the general statute of 1786, c. 81, tarily drives swine through the streets of a concerning the laying out and regulation of city in which such an ordinance has been highways, is not repugnant to this statute. Ib. passed, to prevent them at all hazards from 14. The selectmen of Charlestown were doing the acts therein mentioned; and if he authorized by St. 1832, c. 150, to appoint and fails to do so, he may be convicted of a violalocate the places where the dead may be tion of the ordinance. Ib. buried in that town, to establish the police of 20. A complaint for the violation of such the burying-grounds, to make regulations for ordinance, which alleges that the defendant, funerals and the interment of the dead, to ap- on a day named, "unlawfully did permit a point all necessary officers to carry the same large number of swine, to wit, thirty swine, into effect, and to prescribe penalties for the under the care of him the said defendant, to violation of such regulations. The fourth go upon and injure the sidewalks on certain section of a by-law made by the selectmen public streets in the city of C., to wit, the ordained that no person should, without leave sidewalks in Harvard Square and North in writing signed by a majority of the select- Avenue," contains a sufficient averment that men, bring into the town any dead body, or the sidewalks named are a part of a highway; convey through any of the streets any dead and is not bad for duplicity on the grouud body so brought into the town; or bury any that it charges more than one offence; nor on. dead body so brought into the town, on any the ground that the offence is alleged to have part of his own premises or elsewhere within been committed on more than one street, if it the town. It was held, that the first part of appears that IHarvard Square and JNorth this section of tile by-law being unauthorized Avenue were one continuous street. lb. by the statute and void, (x:hich was conceded,) 21. In support of such a complaint, evidence the whole of the section was-consequently may be introduced of different acts of different void. Austin v. JIvi ay, 16 Pick. 121 (1834). swine, in going upon and injuring different 15. It was held, also, that tle latter part of parts of the sidewalks. lb. the section was not a regulation but a prohi- 22. Under a city ordinance which prohibits bition, and therefore void; and if it were not permitting any cattle to go at large or "stop a prohibition, yet that, except when applied to to feed " on any highway, a complaint which a populous part of the town, it was unreason- avers that the defendant suffered two cows able and on that account void. Ib. "to stop and feed" on certain highways, is ORDINANCES AND BY-LAWS - OVERSEERS OF THE POOR. 37 bad, even after verdict. Comnzonwealth v. only on their own seisin within thirty years Bean,, 14 Gray, 52 (1859). next before the coniencellient of the action. 23. Where a by-law of a city prohibits the lb. moving of buildings through the public street 3. Where overseers of tile poor, upon the without a license granted by the mayor and decease of a pauper, take poosession of his aldermen, the board of aldermen cannot effects, pursuant to St. 1t17, c 1G3, ~ 6, (Gen. delegate to the mayor alone the power to Sts. c. 70, ~ 21,) and (:diliinistialtion is not grant such licenses. Dcy v. Green, 4 Cush. taken out witlin thirty days from his decease, 433 (1849). they may sell so much of tlle property as 24. A city ordinance giving to police offi- shall be necessary to repay tile ex-qenses incers a fixed salary, and requiring them to curred for such pauper, notwithstanlding the pay over to tie city tie fees received by tlemi appointment of an adninistrlator before the as witnesses, or for penalties in criminal cases, sale takes place. ]ciynes v. Wells, 6 Pick. or for service of any criminal process, or for 462 (1828). any services in behalf of tile city, is not con- 4. In an action by tie administrator of a trary to public policy. Worcester v. WTalcer, pauper against tlie overseers, to recover the 9 Gray, 78 (1857). value of articles fairly sold by auction pursu25. A city ordinance having provided that, ant to that statute, and purchased by one of previous to an assessment of the expenses of the overseers himself, the sale was held to be building a sidewalk on the abutters, the city valid. Ib. auditor should give notice in writing to each 5. A pauper having a settlement in a town person reported to him as liable to be assessed, in this commonwealth, cannot lawfully be carof his intention to make an assessment, ap- ried by the overseers, against his will, to a pointing a time and place at which all persons place without tie Commonwealth, to be there might appear and be heard in relation to the supported. Westfield v. Southlwick, 17 Pick. assessment; it was held, that the giving of 68 (1835). such notice was a condition precedent to the 6. If the municipal authorities of a town validity of the assessment, which was not have provided supplies for distribution among complied with by notifying all the abutters, those out of the almshouse who need relief, except one, of the time and place at which upon orders of the overseers of the poor, and they might be heard, and afterwards notifying have given notice thereof to the overseers, the the remaining abutter of a different time and latter have no authority to contract debts in place, at which he might be heard. Lowell behalf of the town for the support of the v. Wentworth, 6 Cush. 221 (1850). poor; and one who, having knowledge of the 26. A city ordinance prohibiting the sale of facts, furnishes supplies to persons settled any timber brought into the city for sale, in such town upon orders of the overseers, witho.ut a survey, does not apply to timber cannot maintain an action against the town to delivered there to be used for a specific pur- recover for the same. Ireland v. Newburypose under a special contract made elsewhere. port, 8 Allen, 73 (1864). Briggs v. A Life Boat, 7 Allen, 287 (1863). 7. The admission of overseers of the poor, See CARRIAGES, 1-3, 15-18; CONSTITU- in a binding-outindenture, thatacertain pauTIONAL LAW, 1; 1DOGS, 5, 9-11; *FANEUIL per is chargeable to their town, and their acts HALL MARKET; HEALTHI, 9-13, 15; OFFI- in paying bills to other towns for his support, CERS, 7-10, 38, 39, 42; PENALTIES; SEWERS are not admiissible in evidence against the AND DRAINS, 8-13, 15; TAXES, 185; WATER, town in a litigation growing out of subse6; WAYS, 40, 288, 293, 294, 412, 471-474. quent acts, for tie pulpose of showing that he and his descendants have their settlemnent therein. In performing these duties, they act OVERSEERS OF THE POOR. as public officers, and not as agents of the 1. In the year 1772 the overseers of the poor ton. ew Bedfod v. T non 9 Allen, of Boston were incorporated by the legisla- 207 (164). An see PAUPERS 238. ture. The act of 1822, chancing the town 8. A committee appointed by a town to audit the accounts of -the overseers of the poor, of Boston to a city, continued this corpora- di t acounts of te ovesee of the poor, tion, and did not dissolve or suspend it. Bos- an to andreceivefrom themthe books of account belonging to the town, held ton v. Seanrs, 22 Pick. 122 (1839). 2. It was held, also, that the overseers of the by the overseers in their official capacity, have poor of Boston were by their incorporation no such property in the books as will author. constituted an aggregate corporation, with ize them to apply in their own names for a perpetual and continued succession; that a nandamus to con pel tIe surrender of the grant to them of real estate would have car- books. Bes v. Pyoth, 1 Gy 13 ried a fee without being to their successors; (1859). and that, in a writ of right, they could count See APPRENTICES; PAUPErs, 38 PAUPERS, I. PAUPERS. cover the amount of expenses incurred by the plaintiff town in relieving a person whose I. WHAT CONSTITUTES A PAUPER, AND O settlement was in the defendant town, the fact CAN ACQUIRE A SETTLEMENT.. that such person might by going a short disII. SETTLEMENT OF PAUPERS; How AC- tance have obtained of his debtor as much QUIRED OR LOST. money as was expended for his relief, was (a) By Approbation, and not being warned held not to be conclusive evidence that he +out., was not a pauper. Sturbridgev. Holland, 11 () By Derivation. Pick. 459 (1831). See Paris v. Hliram, 12 (c) By living on a Freehold Estate, &c. Mass. 22; Goland v. 3Nedford, 1 Allen, (d) By having an Estate, &c., and being 23(post,268). assessed therefor. 4. A revolutionary pensioner, who was very (e) By serving as a Town Officer, or being old and infirm, and had no property other than an Ordained Minister. his wearing apparel and his pension, which (f) By Incorporation or Division of Towns. was 96 a year, was held to be a pauper in (g) By Residence and.paying Taxes. the case of fiske v.Lincoln, 19 Pick.473(1837). (h) How prevented by being relieved as a 5. Persons who reside on lands purchased Pauper. by or ceded to the United States for navy (i) How lost, when once acquired. yards, forts, and arsenals, where there is no other reservation of jurisdiction to the state III. ACTIONS FOR SUPPORTING PAUPERS. than that of a right to serve civil and criminal (ac) Against the Pauper's Kindred. process on such lands, do not gain a settlement (b) By Individuals against Towns. in the towns in which the lands are situated, (c) By Towns against Individuals. for themselves or their children, by residence (cd) By Towns against Towns. for any length of time on such lands. Opinion of the Justices, 1 Met. 580 (1841). (1) When and for what the Action will 6. Indians, residing within the limits of a lie; and of the Pleadings, Evidence, and town, and being under the guardianship of Trial. persons appointed by the government, have (2) Of the Notice. no legal settlement in such town. Andover (3) Estoppel. v. Canton, 13 Mass. 547 (1816). IV. REMOVAL OFPAUPERS. 7. Persons confined as convicts in houses IV. REMOVAL O IAUPERS. of correction are supported as paupers. Wood V. PENALTY FOR BRINGING A PAUPER INTO A v. Burlington, I Met. 493 (1840). See TOWN. Opinion of the Justices, I Met. 572. VI. LUNATIC PAUPERS AND STATE PAUPERS. 8. A pauper cannot gain a settlement in his own right in the same town in which lie derives a settlement from his father. Salem I. AWHAT CONSTITUTES A PAUPER, AND WHO V. Ipswich, 10 Cush. 517 (1852). CAN ACQUIRE A SETTLEMENT. f9. A British soldier was made a prisoner of war by our army in 1777, and was never 1. The word "pauper" has long been un- exchanged, but, not being confined, volunderstood to designate persons receiving aid tarily continued his residence in this commonand assistance from the public, for themselves wealth until 1824. It was held, that he was a or their families, under the provisions made by citizen, and capable of gaining a settlement law for the support and maintenance of the in this commonwealth. Cucmmington v. poor. Opinion of the Justices, 11 Pick. 540 Springfield, 2 Pick. 394 (1824). (1832). 10. So ofone born in England, who deserted 2. Where a person who had been supported from the British army under General Burby his town as a pauper, had bodily health goyne during the Revolution, and who had reand strength, though of small mental capacity, sided in this commonwealth from that time and was able to earn more than enough to until 1824. Phipps's case, 2 Pick. 394, note support himself, and had found an employer, (1824). it was held, that he was no longer a pauper; 11. Every person is a pauper who receives and consequently, where the town made a relief at the public expense, and such as is contract with the plaintiffs, that they. should provided by law for persons standing in need take care of all the paupers belonging of immediate relief. SHAW, C. J., in Charlesto the town, and be entitled to their services, town v. Groveland, 15 Gray, (1860), cited it was held, that they were not entitled to the 6 Allen, 587. services of the person above described. Vil- 12. Where a bond has been given by one son v. Brooks, 14 Pick. 341 (1833). individual to another for the support of a 3. In an action between two towns to re- poor person, and the indemnity of the obligee, PAUPERS, I. II. 39 who was chargeable for such support, the by being warned to leave within one year town of the pauper's lawful settlement is not after he came to reside there, pursuant to thereby discharged from the obligation to Prov. Sts. 4. W. & M c. 13, and 12 & 13 maintain such pauper. TWatsonv. Cambridge, Will. III. c. 10, it be proved merely that 15 Mass. 286 (1818). such a warrant was issued, served, and returned, it cannot be presumed, in the absence of all other evidence on the subject, that the return on such warrant certified that lie was II. SETTLEMIENT OF PAUPERS; How AC- warned within one year after he came to QUIRED OR LOST. reside in such town. Franklin v. Dedham, See Sts. 1865, c. 230; 1866, c. 288. 18 Pick. 544 (1836). 20. Where a stranger was received and (a) By Approbation, as not being warnued entertained by an inhabitant of a town, preout. vious to April 10, 1767, and his residence Sts. 1692, c: 15; 1701, c. 13; 1767, c. 3; there was designedly concealed, so that the 1789, c. 14. Gen. Sts. c. 69, ~ 1, cl. 8. town officers had no opportunity to warn hini 13. A warning of a pauper "and his family" to depart, it was held, that he did not gain a under Prov. St. 4 W. & M. c. 13, ~ 9, is settlement. Newbury v. Ilarvard, 6 Pick. 1 sufficient to prevent the wife and children (1827). of the pauper from gaining a settlement. 21. A vote of a town between 1767 and Shirley v. Watertown, 3 Mass. 322 (1807). 1789, by which J. S. and others were "con14. If a person, before the Prov. St. of 7 stituted" one of the school districts of the Geo. III. c. 3, had been duly warned to town, is no evidence of such approbation by depart from a town, so as to prevent his ac- the town of his dwelling there as was required quiring a settlement in such town, and after by the Prov. St. of 7 Geo. III. c. 3, to give the warning, removed froim the town without him a settlement in the town. Amherst v. an intention of returning, continuing absent Shelburne, 13 Gray, 341 (1859). long enough to gain a new settlement, and 22. Between the years 1767 and 1789 there afterwards'came back and dwelt in the town was no mode of acquiring a new settlement, he had been warned to leave, he must have but by approbation of the inhabitants of the been again warned within a year from his town into which the person might remove. return; or he would have gained a settlement. PARKER, C. J., in Andover v. Cazntbn, 13 Mass. Chelsea v. Malden, 4 Mass. 131 (1808). 550 (1816). 15. A warning under the Prov. St. of 4 23. Under Prov. St. 7 Geo. III. c. 3, ~ 4, a W. & M. c. 13, to avoid the gaining of a person coming into a town to reside could settlement by a pauper, was without effect not gain a settlement by an implied " approbaunless, either in the warrant or the return tion by the town of his dwelling there." Thus thereof, the length of time was stated that the acceptance by a town of a list of jurymen, the party warned had resided in the town. as revised by the selectmen, which contained lamvilton v. Ipswich, 10 Mass. 506 (1813). the name of a person who had come into such 16. A warrant which merely stated that the town to reside, is not such an " approbation" pauper had "lately come to reside" in the as is required by that statute. Orange v. town, did not specify with sufficient distinct- Sudbury, 10 Pick. 22 (1830). ness the length of time that he had resided 24. According to the statute of 1751, for there. Middleborough v. Plympton, 19 Pick. correcting the calendar, a person born on 489 (1837). April 4, 1745, old style, would not come 17. A warning was held not to be proved of age until April 15, 1766, new style; conseby a record of the court of sessions, stating quently, he could not gain a settlement in a that " the selectmen of U. were allowed to town by a year's residence without being enter their caution against C., whom they warned out, there being less than —a year refuse to admit as an inhabitant, he having between the time of his coming of age and been duly warned, as by a warrant, &c. and re- the 10th day of April, 1767, after which day turn thereon, on file, appears," although it was (by Prov. St. 7 Geo. III.) a settlement could shown that the warrant and return were lost; not be gained by mere residence without such act of the court of sessions being merely being warned out. Dangers v. Boston, 10 ministerial. Sutton v. Uxbridge, 2 Pick. Pick. 513 (1830). 436 (1824). 25. After the provincial act of 7 Geo. III. 18. Whether such record would have been c. 3, and before St. 1789, c. 14, no settlement sufficient evidence, if it had set forth particu- by a residence without being warned out larly the necessary facts, qucere. lb. could be gained except by the approbation of 19. If, in order to show that a person was the town at a general meeting. Granby v. prevented from gaining a settlement in a town Amherst, 7 Mass. 1 (1810). 40 PAUPERS, II. 26. The provisions of St. 4 W. & M. c. 13, 1845, c. 222, (Gen. Sts. c. 107, ~ 2,) providand St. 1789, c. 14, which required the warn- ing that the validity of a marriage shall not be ing of persons out of a town, to prevent their questioned in the trial of a collateral issue, on acquiring a settlement, did not apply to mi- account of the insanity or idiocy of either nors, although illegitimate. Somerset v. party. That statute applies to marriages exDighton, 12 Mass. 383 (1815). isting at the time of its passage. lb. 27. A male pauper, being married while under age, was not thereby so emancipated as eima Chile. to acquire a settlement by a year's residenceate without being warned out, under Sts. 4 W. & 35. The children of a woman who marries M. c. 13, and 12 & 13 Will. III. c. 10. CTaun- a pauper follow his settlement. Goshen v. ton v. Plymouth, 15 Mass. 203 (1818). Richmond, 4 Allen, 458 (1862). 28. A child born to one who had been 36. Upon a father's gaining a new settlewarned to depart the town, under St. 4 W. ment, a child who is of age, voluntarily liv& M. c. 13, gained a settlement in such ing with him, does not thereby gain such town by a year's residence, after coming of new settlement. Springfield v. Wilbraham, age, without being warned to depart. Berk- 4 Mass. 493 (1808). ley v. Somerset, 16 MasS. 454 (1820). 37. A woman of twenty-one years of age 29. Where one, before the 10th of April, and upwards does notfollow or have the set1767, had hired a house, but before the re- tlement of her father, which is acquired by moval of his family into it had gone abroad, him in a town in this commonwealth after and in his absence his family removed into it, she reaches that age; although she continues and were not warned to depart within twelve to be a member of his family, and he then, for months from such removal, he gained a settle- the frst time, acquires a settlement in this ment in the town in which such house was sit- commonwealth. Shirley v. Lancaster, 6 Aluated. lardwick v. Raynham, 14 Mass. 362 len, 31(1863). (1817). 38. The widowed mother of a female pau(b) By Derivation. per became possessed of an estate sufficient Sts. 1789, c. 14; 1793, c. 34. Rev Sts. c. to confer a settlement from three years' pos45. Gen.Re Sts. c. 69. session; but,before the three years had passed, the daughter was married to an alien; and, al].arried Women. though she continued to reside in her mother's family until after the expiration of the 30. A marriage of a man having a legal three years, it was held, that she derived no settlement within the Commonwealth gives settlement from her mother. Charlestown v. such settlement to the wife, whether the mar- Boston, 13 Mass. 469 (1816). riage was solemnized within or without the 39. The settlement of one who is non cowComnonwealth. Dalton v. Bernardston, 9 pos mentis, and has not estate sufficient to Mass. 201 (1812). give him a settlement in virtue thereof, fol31. A female does not change the place of lows and changes with the settlement of his her lawful settlement by going through the father, as well after his coming of age as beform of a marriage with a person non compos fore. Upton v. Northbridge, 15 Mass. 237 mentis. Middleborough v. Rochester, 12 Mass. (1818). 363 (1815). 40. But it is otherwise if he become nton 32. A man and a woman having their set- compos mentis after he becomes of age. Bucktlements in the same town, intermarried, and land v. Charlemont, 3 Pick. 173 (1825). the town being afterwards divided into two 41. And incipientinsanity does notincapactowns, it was held, that the wife took the set- itate one from gaining a settlement of his tlement of her husband in one of the two own. lb. towns, although but for the marriage her set- 42. Legitimate children cannot derive a tlementwould have been in the other. North settlement from their mother, unless their Bridgewater v. East Bridgewater, 13 Pick. father has no settlement within the Common303 (1833). wealth. Amherst v. Shelburne, 13 Gray, 341 33. In an action to recover expenses incur- (1859). red in support of a pauper, against a town in 43. A legitimate child having a settlement which his settlement is sought to be estab- by its father cannot acquire the settlement of lished by reason of a marriage, it cannot be its mother. Scituate v. Hanover, 7 Pick. 140 shown in defence that the marriage was inval- (1828). id by reason of the insanity of one of the par- 44. A minor child, having the settlement of ties. Goshem v. Richmond, 4 Allen, 458 its deceased father, does not lose it and ac(1862). quire the settlement of its mother, on her 34. The legislature had power to pass St. gaining a new settlement by a second mar PAUPERS, II. 41 riage. WcalpoZe v. Jlfarblehead, 8 Cush. 528 does not change with that of its mother. Boyls(1851). ton v. Princeton, 13 Mass. 381 (1816). 45. A husband, having a settlement in this 54. Under the provincial act of 7 Geo. III. state, after a divorce a vinculo for adultery c. 3, illegitimate children acquired no settlecommitted by him, removed to another state, ment by birth, but had the settlement of their where he married and had children, while his mother. Newton v. Braintree, 14 Mass. 382 former wife was still living. It was held, that (1817). such marriage being permitted by the laws of 55. An illegitimate child, born after April that state, the children were legitimate, and 10, 1767, and before the passage of St. 1789, that they had their father's settlement. West c. 14, has the settlement of his mother at the Camnbridge v. Lexington, 1 Pick. 506 (1823). time of his birth, if she then had any. Black46. Minor children, having the settlement stone v. Seekonk, 8 Cush. 75 (1851). of their mother, do not, at the common law, 56. If the parents of illegitimate children acquire a new settlement gained by her mar- intermarry, and the father acknowledges the riage, although they remove with her to the children as his, they are, by St. 1853, c. 253, place of such new settlement. Freetown v. (Gen. Sts. c. 91, ~ 4,) made legitimate to all Taunton, 16 Mass. 52 (1819). But see Gen. intents and purposes, and thereupon take the Sts. c. 69, ~ 1, cl. 2. settlement of the father. iMonson v. Palmer, 8 47. Legitimate children under age, having Allen, 551 (1864). the settlement of their mother, acquire the new settlement which she gains by another Slaves. marriage. Plymouth v. Freetown, I Pick. 197 57. Until the ratification of the constitution (1822). of this commonwealth, in 1780, the settlement 48. Where a minor, deriving his settlement of a slave always followed that of his master, from his mother, resided in another state, em- and he could not acquire a settlement in his ployed in learning a trade, and the mother own right. WFinchendon v. Hatfield, 4 Mass. acquired a new settlement in this common- 123 (1808). Dighton v. Freetoun, Ib. 539. wealth by a second marriage, before he came Stockbridge v. TVest Stockbridge, 12 Mass. 399 of age, it was held, that his settlement fol- (1815). Edgartownv. Tisblry, 10 Cush. 410 lowed that of his mother. Great Barrington (1852). v. Tyringhaam, 18 Pick. 264 (1836). 58. Slaves were not within the provincial 49. It seems, that the circumstance that the statutes relating to the warning of persons in minor was not bound as an apprentice by in- order to prevent their gaining a settlement, or denture, is not material in such case. lb. relating to the gaining a settlement by resi50. The settlement of a widow, acquired by dence. Winchendon v. Iatfield, 4 Mass. 123 her after the death of her husband, is commu- (1808). nicated to her infant children. Dedham v. 59. But when manumitted, they could acNVatick, 16 Mass. 135 (1819). quire a settlement in their own right. Ib. 60. After manumission, a slave retained the Illegitimate Children. settlement of his master until another was 51. Under St. 1789, c. 14, ~ 3, the settle- gained. Dighton v. Freetown, 4 Mass. 539 ment of an illegitimate child followed that of (1808). his mother, and changed with it. Petersham 61. A slave, as the personal property of his v. Dana, 12 Mass. 428 (1815). master, became upon his master's decease the 52. A man and a woman having their settle- property of his master's executor or adminisments in the same town intermarried, and the trator, and acquired the settlement of such town being afterwards divided into two towns, executor, &c. Ib. it was held, that the wife took the settlement 62. But if one purchased the use of a slave of her husband in one of the two towns, al- from his owner, the slave did not acquire the though but for the marriage her settlement settlement of the hirer, although he lived ten would liave been in the other; and that the years in his service. Stockbridge v. West Stocksettlement of her illegitimate child, born be- bridge, 12 Mass. 399 (1815). fore the marriage and before St. 1793, c. 34, 63. Children born.free of slave parents dewhich had acquired no settlement in its own rived no settlement either from their parents right, changed with and followed the settle- or the masters of their parents. Andover v. ment of its mother. North Bqidgewater v. Canton, 13 Mass. 547 (1816). Lanesborough East Bridgewater, 13 Pick. 303 (1833). v. Westfield, 16 Mass. 74 (1819). 53. But under St. 1793, c. 34, ~ 2, (Gen. 64. Where, before the revolution, the posSts. c. 69, ~ 1,) cl. 3, an illegitimate child has session of a slave had been transferred to a the settlement of its mother at the time of its grandchild of the owner, the declarations of birth, and retains it until it gains a new settle- the parties to such transfer at the time were ment by some act of its own. Its settlement held to be part of the res gestee, and so admis 42 PAUPERS, II. sible evidence in a suit respecting the slave. eurtesy initiate in land held by his wife to Ml3ilford v. Bellingham, 16 Mass. 108 (1819). her sole and separate use, under St. 1845, c. 65. Although the mother of a child born 208, does not gain a settlement by living in Massachusetts in 1772 was then a slave, thereon three years successively. Leverett v. and her settlement followed that of her mas- Deerfield, 6 Allen, 431 (1863). ter, yet the child was born free, and derived 74. A husband who for three years succesno settlement from her mother. A slave sively occupies land assigned to his wife as could not communicate a settlement. Ed- dower, obtains asettlement by virtue thereof. gartown v. Tisbury, 10 Cush. 408 (1852). Canton v. Dorchester, 8 Cush. 525 (i851). But see Leverett v. Deerfield, 6 Allen, 431. (c) By living on a Freehold Estate, &c. 75. A person under guardianship as a spendthrift gained a settlement by living three Sts. 1789, c. 14; 1793, c. 34; 1821, c. 94. years successively on an estate of inheritance Rev. Sts. c. 45, ~ 1; Gen. Sts. c. 69, ~ 1, or freehold, purchased with his money and Fourth clause. conveyed by deed to him, although it was pur66. A citizen of the United States, living chased by his guardian without the sanction three years in any town within this state, on of the probate court. Hopkintonl v..Upton, land conveyed to him by a warranty deed, 3 Met. 165 (1841). gains a settlement in such town, although his 76. An estate of freehold or inheritance in grantor had in fact no title to the land. Boyls- trust may give a settlement to the cestui que ton, v. Clinton, 1 Gray, 619 (1854). trust. Orleansv. Chatham, 2 Pick, 29 (1823). 67. It is not necessary to prove that the Scituate v. Hanover, 16 Pick. 222 (1834). deed was recorded, under which land was Randolph v. Norton, 16 Gray, (1860). held, in order to establish a settlement under 77. A person occupying an estate in a town Sts. 1789, c. 14, ~ 1, and 1793, c. 34. Bel- for three years, having a bond for a deed chertown v. Dudley, 6 Allen, 477 (1863). thereof, with permission granted in said bond 68. One may gain a settlement by reason of to take the rents and profits to his own use, an estate of which lie appears by record and gains a settlement, by reason thereof, in such. possession to be the lawful owner, although town. Randolph v. Norton, 16 Gray, his title may be defeasible. Conway v. D)er- (1860). field, 11 Mass. 327 (1814). 78. The occupation of an estate of free69. In order to gain a settlement in a town hold by the grantor, after a conveyance by having an estate of freehold or inheritance thereof which is fraudulent and void as against therein, it is sufficient if the person is seised creditors, is not sufficient to give him a settleby an apparently good title, and no present ment, although he has a bond for reconveyright of entry is outstanding in any other per- ance from the grantee. Canton v. Dorchester, son. Br ewsterv. Dennis, 21 Pick. 233 (1838). 8 (Hush. 525 (1851). 70. Thus, where one having bargained ver- 79. A mortgagor, occupying the mortgaged bally for a piece of land and paid therefor, en- estate by leave of a lessee for years of the tered upon and occupied it for twenty years, mortgagee, who has entered for condition without having ever received a deed or any broken, has no estate of inheritance or freeother writing respecting it from the original hold in the premises, and cannot, by such ocowner; it was held, that, at the expiratio of cupation, acquire a settlement in the fourth that period of time, le had gained an estate of method. Oakharn v. Rutland, 4 Cush. 172 freehold within the meaning of the statute. (1849). lb. 80. A settlement may be acquired by own71. A person does not gain a settlement by ing an estate of freehold or inheritance, and living upon land three years successively as residing thereon for three years successively, the tenant of one who has a life estate there- although the land be under mortgage, during in; although such person is entitled to come the whole time, for its full value. Mount into possession of the land on the termination Washington v. Clarksburgh, 19 Pick. 294 of such life estate. The statutes refer to such (1837). an estate as a person has a right to occupy, and 81. A settlement may be acquired in a town not to an estate in expectancy, where there is by a residence in a part thereof which is a preceding estate of freehold in some other within the actual jurisdiction of the Commonperson. Ipswich v. Topsfield, 5 Met. 350 wealth, although within the rightful jurisdic(1842). tion of another state, which afterwards obtains 72. It was held, under St. 1789, c. 14, that the actual jurisdiction, on the establishment of one might gain a settlement by virtue of being the boundary line. Somerset v. Rehoboth, 6 seised of a freehold estate in right of his wife. Cush. 320 (1850). Windham v. Portland, 4 Mass. 384 (1808). 82. A settlement in a town is not acquired 73. One who has an estate as tenant by the by living undisturbed thirteen years in a PAUPERS, II. 43 house built by mistake upon the land of an- have been introduced into the valuation of other, adjacent to land of the builder, under estates made by the assessors, and shall have Rev. Sts. c. 45, (Gen. Sts. c. 69,) ~ 1, cl. 4, been valued, the principal at ~ 60,(now 200,) which provide that a settlement may be gained or the interest at ~ 3 12s.,(now $ 12,) and he in a town by having an estate of inheritance shall have been actually assessed for the same; or freehold therein, and living on the same it not being sufficient that he has had estate three years successively. Wellfleet v. Truro, 5 liable to taxation in the town, and was able to Allen, 137 (1862). pay taxes, for that period of time. Ionson v. 83. A person does not acquire a settlement Chester, 22 Pick. 385 (1839). in a town under Rev. Sts. c. 45, (Gen. Sts. c. 90. The several requisites prescribed for 69,) ~ 1, el. 4, by living therein undisturbed gaining a settlement in the fifth mode are infor three years in a house built by mistake dispensable, and if either of them is omitted, upon the land of another, adjacent to his own it is fatal to the acquirement of a settlement. land, and having outbuildings upon his own MoRTON, J. Ib. 390. land. Wellfleet v. Truro, 9 Allen, 137 (1864). 91. A settlement is gained in the fifth mode 84. In gaining a settlement by taking the prescribed in the statute by possession of an profits for three, years of an estate in dower, estate valued at two hundred dollars, and being the time in which they are taken between the assessed for the same five years successively, assignment of the dower by commissioners, whether the taxes so assessed be paid or not. and the ratification thereof by the judge of Westbrook v. Gorham, 15 Mass. 160 (1818). probate, is to be reckoned as a part of the 92. One holding an estate of the requisite three years. Mlansfield v. Pembroke, 5 Pick. value under a lease for four years, and after449 (1827). wards a year by sufferance, and being assessed 85. When a person having an estate in therefor for the five years, does not thereby freehold leased the land for a year in satisfac- acquire a settlement. Tem2pleton v. Sterling, tion of an execution, he was considered, with 15 Mass. 253 (1818). reference to the gaining of a settlement, as 93. The provision that a person shall gain taking the rents and profits during the year. lb. a settlement in a town by " having an estate, 86. In order to give a citizen of the United the principal of which shall be set at $200, or States, twenty-one years of age, a settlement the income at $12, in the valuation of estates, under St. 1793, c. 34, ~ 2, cl. 4, by having a and being assessed for the same for the space freehold " of the clear yearly income of three of five years successively," applies to personal pounds, and taking the rents and profits thereof estate as well as to real. Boston v. Dedhavl, 4 three years successively," it is' not necessary Met. 178 (1842). that he should have actually taken and re- 94. A citizen cannot acquire a settlement ceived that sum yearly free of all charges. in the town in which he dwells and has his Pelharm v. Middleborough, 4 Gray, 57 (1855). home, by having an estate therein of the re87. If one who had an estate yielding an quired value, as tenant at sufferance or tenant income of the requisite amount to give him a at will, and being assessed therefor for five settlement, mortgaged the estate to secure a successive years. Solthbridge v. Tlarrea, 11 sum, the interest of which, being deducted Cash. 292 (1853). Dover v. Brighton, 2 Gray, from the annual income, reduced the income 482 (1854). below the required amount, he could gain no 95. The person must reside in the town the settlement, under St. 1793, c. 34, ~ 2, cl. 4, by whole of the five.yekrs for which he is asreason of the estate. Groton v. Boxborough, sessed; in other words, he miust reside there 6 Mass. 50 (1809). Conway v. Deerfietd, 11 five fullyears, commencing on the first of May. Mass. 327 (1814). Southborougl/ v. lfarlborough, 24 Pick. 166 88. To gain a settlement in the fourth (1833). method described in St. 1793, c. 34, ~ 2, a 96. Proof that a citizen, in the town in citizen must dwell in the town the same three which he dwelt and had his home, occupied years that lie held therein an estate of the and was assessed five successive years for prescribed value. Boston v. WVells, 14 Mass. real estate of sufficient yalue, not owned by 384 (1817). him, but of which he had a lease by indenture for one of those years, is not sufficient evi(d) By having an Estate, &c., and being dence of his having acquired a settlement in assessed therefor. that town, in the fifth mode in St. 1793, c. 34, St. 1793, c. 34, ~ 2; Rev. Sts. c. 45, ~ 1; and Rev. Sts. c. 45, (Gen. Sts. c. 69,) to exGen. Sts. c. 69, ~ 1, Fifth clause. empt another town in which he had previ89. A person cannot gain a settlement in a ously had his settlement, from liability for town under the fifth mode in St. 1793, c. 34, his support. Dover v. Brighto, 2 Gray, 482 (Rev. Sts. c. 45, ~ 1; Gen. Sts. c. 69, ~ 1,) (1854). unless for five successive years his estate shall 97. Proof that a citizen, in the town in 44 PAUPERS, 11, which he dwelt and had his home, ws as- mentfor alimited time,as for a year. Bellingsessed five successive years for estate, real ham v. West Boylston, 4 Cush. 553 (1849). and personal, of which lie was "possessed 104. By the present usages of the Baptist on the first day of May," the income of which denomination, a minister can only be settled was set by the assessors at not less than twelve by the concurrent act of the church and socidollars, and that he had an estate in fee in ety. The act of the society, however, need said real estate during the last two of said not appear by a formal recorded vote; but if years, does not raise a presumption that he the church has formally voted to settle the had so much as an estate for years in the real minister, the concurrence of the society may estate during any of the other years, and is be shown by records recdgnizing him as filling not therefore such evidence of his having ac- that place, coupled with proof that he actually quired a settlement in that town, under St. performed the duties thereof. Leicester v. 1793, c. 34, ~ 2, or Rev. Sts. c. 45, (Gen. Sts. Fitchburg, 7 Alien, 90 (1863). c. 69,) ~ 1, cl. 5, as will exempt another town, in which his father had a settlement, from li- (f) By Incorporation or Division of Towns. ability for his support. Boylston v. Groton, 4 Gray, 282 (1855). 4 Gray, 282 (1855G). St. 1793, c. 34, ~ 2; Rev. Sts. c. 45, ~ 1; 98. When it is shown, in a suit against a Ge. Sts. c. 69, ~ 1, Ninth and Tenth clauses. town for the support of a pauper, that his per- 105. When an old town is divided into two sonal property was set, in the valuation of towns, all the inhabitants at the time of the the estates of the town, at the required sum, incorporation having settlelnents there become and that he was assessed for the same for settled in the towns, respectively, within the five successive years, such town cannot avail limits of which they lived at the time of the itself of the objection that there was not, in the incorporation. West Springfield v. Granille, valuation, any such schedule or description of 4 Mass. 486 (1808). Westport v. Dartmouth, the property as is directed by statute. Bos- 10 Mass. 342 (1813). ton v. Dedham, 4 Met. 178 (1842). 106. An inhabitant of a town, living in a part of it which, by an act of incorporation, is (e) By serving as av Town Officer, or being an formed into a new town, and not having a setOrdained Minister. tlement in the old town, gains none by such St. 1793, c. 34, ~ 2; R1ev. Sts. c. 45, ~ 1; incorporation. West Sprwilgjield v. (Granville, Gen. Sts. c. 69, ~ 1, Sixth and Seventh 4 M s. 4 (1808) clauses. 107. When part of an existing town is detached and annexed to another existing town, 99. To gain a settlement in the sixth mode the inhabitants of such part, having a settlein St. 1793, c. 34, (Gen. Sts.. c69,) a person ment in the town from which they are detached, must dwell in a town the whole year in which acquire bysuch annexation a settlement in the lie serves as a town officer. Barre v. Green- town to which they are annexed. Gr'oton v. wich, 1 Pick. 129 (1822). Shirley, 7 Mass. L56 (1810). 100. If a person chosen into the office of 108. Where a part of a town was incorpoconstable is compulsorily removed from the rated as a new town, a pauper having a pretown within the year, as by being committed vious settlement in the old town, and whose to prison in another town, so that he is not place of residence at the time of the incorable to discharge the duties of his office, he poration could not be ascertained, was held to gains no settlement by virtue of such choice.. be chargeable to the old town. Westp2ort v. Paris v. Hiram, 12 Mass. 262 (1815). Dartmouth, 10 Mass. 341 (1813). 101. The year inlended by the statute in that - 109. Before St. 1793, c. 34, (Gen. Sts. c. 69,) case is a municipal year, or from one election when a new town was formed of part of an to another. Ib. existing one, the settlement of persons absent 102. A collector of taxes for a school dis- at the time of the incorporation of the new trict is a collector of taxes for the purpose of town continued in the old town, thoug'h their gaining a settlement in a town. Belgrade v. former dwelling was in that patrt of Which such Sidney, 15 Mass. 523 (1819). new town was formed. Wind/iam v. Portland, 103. Where a minister, who has been reg- 4 Mass. 384-(1808). Bath v. Bowudoit, Ib. 452. ularly ordained in one town, is afterwards 110. When an unincorporated place is made settled in another, as a pastor, w;ith the full a town by incorporation, the inhabitants gain character, rights and duties of a pastor, but a settlement therein, and of course lose any without any new ordination or ceremony of former settlement they may have had. Bath induction, he will by such settlement as a v. Bowdoin, 4 Mass. 452 (1808). B'uckfield v. minister, acquire a settlement as a pauper Gorham, 6 Mass. 445 (1810). in the latter town; and it is immaterial 111. Before the passage of St. 1793, c. 34, whether or not he was settled under an engage- (Gen. Sts.'c. 69,) a citizen who dwelt and had PAUPERS, li. 45 his home in an unincorporated place, when 118. A pauper had a derivative settlement it was incorporated into a district or town, in a part of the town of A. which was annexed gained a legal settlement in the district or to the town of B.; but being of age, and out town, by force of the act of incorporation; of the Commonwealth,at the time of such anthat statute having merely affirmed, in this nexation, his settlement continued in A. particular, a preexisting rule of law. Sutton Afterwards the town of C. was incorporated, v. Orange, 6 Met. 484 (1843). and contained within its limits the tract of 112. Where parts of differenttowns, together land in right of which the settlement was with unincorporated territory, are incorpora- held. In the act incorporating C., it was proted into a district, a citizen dwelling and hav- vided that persons who liad gained a settleing his home in sucl unincorporated territory, ment in the part of B. which by the act was gains a legal settlement in such district, by Imade a part of C., and who should thereafter force of the act of incorporation, in the same need support, should be supported by C. manner as if such district had been wholly This latter town was held liable for the supcomposed of territory previously unincorpo- port of the pauper. Great Barrington v. rated. Ib.. Lancaster, 14 Mass. 253 (1817). 113. A pauper whose settlement in a town 119. One cannot affect his settlement by was acquired in a part which was afterwards removing from one part to another part of incorporated into a new town, but whose home the same town. Therefore, where, upon the at the time of the division was in the other incorporation of a new town from parts of part, was held not to have a settlement in the several old ones, it was provided by the act new town. Seitton v. Dana, 4 Pick. 117 (1826). of incorporation that the new town should be 114. Incorporating a district into a town held to support such paupers as had gained a made no alteration in regard to the settlement settlement in any of those parts of the old of persons residing in the territory. Walpole towns which formed the new one; it was held, v. I-oplcinton, 4 Pick. 357 (1826). that the new town was not liable for the sup115. Under St. 1794, c. 34, (Gen. Sts. c. port of paupers who derived their settlement 69,) upon the division of a town, a person from an ancestor who lived in a part of one having a legal settlement therein, but not re- of -the old towns forming the new one, but siding therein at the time of such division, who had before acquired a settlement by resiacquired a settlement in that town in which dence in another part of the same old town. his last dwelling-place in the original town Princeton v. West Boylston, 15 Mass. 257 happened to fall upon such division. Lexintg- (1818). ton v. Burlingtton, 19 Pick. 426 (1837). 120. The act incorporating the town of A. 11(6. But where a special statute set off an from part of the town of B., provided that A. individual, with his family and real estate, should receive and support four tenths of the from one town, and annexed them to another, poor persons then chargeable to B. D. S., it was held, that the settlement in the former one of the said poor persons, whose settletown of another person, not then residing ment in B. was not derived from his residence therein, but whose last residence therein was on that part of its territory which was formed upon the land set off, was not transferred to into A., was, with his wife and children, asthe town to which such land was annexed. lb. signed to and received and supported by A., 117. Where a new town, A., was incorpo- in accordance with an agreement made rated out of part of an old town, B., and the between the two towns pursuant to said act. act of incorporation provided that A. should It was held, that D. S. did not thereby acquire pay to B. a sum of money as a consideration a settlement in A.; and that his children, for being exempted from any expense on ac- born after the agreement, were not chargeable count of paupers belonging to B. previous to to that town. West Boylston v. Boylston, 15 the incorporation, except such as might there- Mass. 261 (1818). after be returned as paupers from some other 121. Where a new town was created of town, who were born in or formerly were in- parts of several towns, and it Was provided habitants of that part of B. which constituted that the new town slhould support all such A.; it was held, that the paupers returned to persons as before had been, then were, or B. not born in A. for whose support A. must thereafter might be, inhabitants of those parts pay, were those who, when they removed to of the former towns then incorporated into other towns, removed from the part of B. such new town, and were or might become forming A., and not such as might have once chargeable, and who had not a settlement lived in that part of B., not having been born elsewhere; it was held, that the new town there, but before they dwelt in another town, was not chargeable with the support of pauremoved to and lived in the other part of B., pers who, at the time of the incorporation, and removed thence to other towns. Salem v. were supported by one of the old towns upon IHamilton, 4 Mass. 676 (1808). the territory forming part of the new town, 46 PAUPERS9 II. but whose settlement was derived from own- belonged; but were authorized at their pleasing and occupying real estate in another part ure afterwards to transfer themselves and of the old town. Southbridge v. Charlton, 15 their estates to the new town. A., an inhabMass. 248 (1818). itant thus situated, sold his estate to B., and 122. The agreement of towns cannot affect removed elsewhere. B. afterwards availed the settlement of their inhabitants. There- himself of the privilege, and became with the fore, where a part of a town was about to be estate he had so purchased, a part of the new incorporated into a new town, and it was town. It was held, that the settlement of A. agreed that those who should afterwards was not thereby affected. Lancaster v. Sutbecome chargeable as paupers, should be ton, 16 Mass. 112 (1819). supported by the town from whose territory 127. A person having a settlement on the they derived their settlement, it was held, that part of Bridgewater which remains Bridgethe old town was still liable to others for the water, removed into the part which is now support of one whose settlement was derived East Bridgewater, and would have gained a froml the territory composing the new town, settlement there by owning a freehold, if that but who was not an inhabitant at the time of part had then been a separate town. It was the incorporation. Westborough v. Franklin, held, that his settlement was still in Bridge15 Mass. 254 (1818).. water, under St. 1823, c. 31, incorporating 123. On the separation of East Sudbury East Bridgewater, which provides that all from Sudbury, an agreement was made persons who may hereafter become chargebetween the two towns" that all paupers who able as paupers to Bridgewater or East had gained a settlement in the old town before Bridgewater, shall be considered as belonging the division should be supported in the town to that town on the territory of which they in which they gained their habitancy." It had their settlement at the time of passing the was held, that a pauper who was born within act. East Bridgewater v. Bridgewater, 2 the limits of East Sudbury had not acquired Pick. 572 (1824). See Bridgewater v. West a new settlement by changing his residence Bridgewater, 9 Pick. 55. within the town to the territory which re- 128. By St. 1819, c. 147, by which a part mained in the old town on the separation. of the town of P. was incorporated as a new Sudbery v. East Sudbury, cited 15 Mass. town by the name of H., it is enacted that 260 (1815), " the poor now supported by the town of P., 124. By an act incorporating a town from and all such who may hereafter be returned for part of an old one, it was provided that the support in virtue of having acquired a settletwo towns should bear their proportionable ment in said town, shall be supported in the part of the expense of supporting the poor town of P. or H., as they shall have acquired that were at that time relieved by the elder their settlement within the territorial limits of town. Afterwards the two towns made an agree- either town as described in this act." It was ment that if any person should thereafter be held, that this provision did not apply to a returned as a pauper, having a right to a person not then a pauper, who had then acsupport from the elder town, the new town quired a settlement in the territory set off as should be bound to support him, if his last the town of P., but whose dwelling-place was residence had been in that territory which within the territory set off as the town of H., constituted the new town. It was held, that but that such person, upon the incorporation the agreement was not binding on the new of H1., acquired a settlement in that town. town, and it was not obliged to support a pau- Hanson v. Pembroke, 16 Pick. 197 (1834). per so situated. Norton v. Mansfield, 16 129. An act incorporating a part of a town Mass. 48 (1819). into a separate town, provided that any per125. In an act incorporating a town, which son who might have gained an habitancy provided that certain remonstrants against the within the part thus incorporated, and who incorporation, who lived within the limits of should thereafter need to be supported as a the new town, should remain with their fami- poor person, should be supported by the new lies to the old town, upon their leaving their town. Ield, that a pauper who had g;ained names in the secretary's office within two a settlement. oin that part of the territory years, it was held, that the privilege thus which continued to be the old town, but had granted was personal to the remonstrants, and removed into the other part before it was indid not remain to their descendants. Dil- corporated as the new town, retained his setlingham v. Burgis, 16 Mass. 58 (1819). tlement in the old town. New Braintqee v. 126. A new town was formed of parts of sev- Boylston, 24 Pick. 164 (1833). eral old towns. Sundry inhabitants within the 130. Parts of different towns formed into a limits of the new town were, with their estates new town, with a provisidn that the new and the heirs and assigns of such estates, tore- town should support all the poor who had main to the towns to which they had before their legal settlement in either of the towns P'AUPERS, II. 47 from which it was formed, and who had re- of the town which continued to be Ipswich. moved therefrom, and whose dwelling-place Salem v. Ipswich, 10 Cush. 517 (1852). or home was, before such removal, within 135. Under St. 1850, c. 62, which divides the limits of the new town. Held, that this the town of Bradford, and incorporates a provision did not include those poor who had portion thereof into the new town of Groveremoved from the limits of the new town into land, and which provides that " the paupers another part of the same old town, and from now supported by the town of Bradford, and thence into another town; but included those all such as may hereafter require support, in only whose last dwelling-place or home, pre- virtue of having acquired a settlement in said vious to such removal, was within the limits town, shall be supported by the town within of the new town. Sutton v. Dana, 1 Met. 383 the territorial linits of wlich they may have (1840). acquired a settlement," the inhabitants of 131. Parts of different towns were formed Groveland are bound to support all paupers into a district, by an act of incorporation who have a settlement within the territorial which contained a provision that the inhabi- limits of that town, whether such settlement tants of the district should " provide for the is derivative, or has been acquired by their support of all the poor who were inhabitants own act. North, Andover v. Groveland, 1 within the district before the passing of the Allen, 75 (18i1). act, and shall be brought back for maintenance hereafter." Held, that the act was limited to See ANNETION AND DIVISION OF TOWNS, those individuals who were before inhabitants 4' within the district, and might be brought back, (g) By Residence and paying Taxes. and did not include their descendants. S. 1, c. c,varc? v. Boxboroul~gh, 4 Met. 570 (1842). St. 1793, c. 34, ~ 2; Rev. Sts. c. 45, ~ 1; yard v. Boxborough,.4 Met. 570 (1842). Gen. Sts. c. 69, ~ 1, Twelfth clause. 132. St. 1842, c. 5, annexing parts of two other towns to the town of Dana, having pro- 136. A citizen, having taxable property, vided that if persons who had theretofore and being able to pay the taxes assessed upon gained a legal settlement in said annexed him, gains a settlement in a town by dwelling territory, should come to want and stand in there for ten years together, and half that need of relief and support, they should be time paying state and town taxes, although relieved and supported by said town of Dana, he is omitted in the county tax. Wrentham in the same manner as if they had gained a v. Attleborough, 5 Mass. 430 (1809). settlement in that town; it was held, that the * 136a. In order to gain a settlement under town of Dana was bound to support, from the the twelfth clause, a person must have resided time the statute was passed, the persons who in the town ten years together, and if he has had gained or derived, in the way mentioned been absent for three months during the in said section, a legal settlement in said term, with the intention not to return, he annexed territory, and who might stand in does not gain a settlement. Billerica v. need of relief since the statute was passed, Chelmsford, 10 Mass. 394 (1813). though they had come to want and been 137. One residing in a town more than ten relieved as paupers before" it was passed. years, paying taxes for more than five of Dana v. Hiardwick, 10 Met. 208 (1845). them for a small piece of land, which the 133. The third section of St. 1811, c. 133, owner of it permitted him to occupy at a for dividing the town of Rehoboth, and es- small rent for one year, and which he contablishing the town of Seekonk, which pro- tinnued to occupy for the other years without vided that one half of the paupers for which any express contract, being too poor to pay the town of Rehoboth was chargeable, includ- the rent in full, was held to have acquired a ing such as had removed therefrom, if law- settlement in tlhe town. Sudbury v. Stow, fully returned there for support, should be 13 Mass. 462 (1816). delivered over to the overseers of the poor of 138. A person having removed to this the new town, to be there supported, did not state from Vermont, resided in a town in change, as to the settlement of the paupers this state for ten years, and paid taxes there referred to in such act, the general law during more than five of those years. It was relating to the settlement of the inhabitants held, that he acquired a settlement in such of a town, upon a division thereof. West- town, although he left his wife and children borough v. Rehoboth, 4 Cush. 185 (1849). upon his farm in Vermont, and occasionally 134. The incorporation of the town of visited them there, and once remained there Essex from a part of the town of Ipswich, with them five or six months, during the ten does not exempt the latter town from the years. Cambridge v. Charlestowun, 13 Mass. support of a pauper who had a settlement in 501 (1816). Ipswich at tha- time, and resided in that part 139. The payment of highway taxes for 48 PAUPEIRS, It. five years, by labor, with the requisite resi- vote of the town. S/ihewsizury v. &SZem, 19 dence of ten years, gave a settlement under Pick. 389 (1837). St. 1793, c. 31, no other taxes being assessed 148, The mere neglect of the officers of a upon tle person during those years. Andover town to enforce the payment of a tax which v. Chctmsford, 16 Mass. 236 (1819). might by due diligence have been collected, 140. A citizen dwelling in a town ten years, will not have the same operation as an actual and having taxable property five of those payment, towards giving the person assessed years, does not gain a settlement in the twelfth a settlement in the twelfth mode prescribed by mode mentioned in St. 1793, c. 34, (Gen. Sts. St. 1793, c. 34, ~ 2, (Gen. Sts. c. 69, ~ 1,) viz: c. 69,) if the assessors, for a sufficient reason, residing in a town ten years togetier and payomit to tax him. nReading v. Tewksbunry, 2 ing taxes five of them. Robbins v. Townseund, Pick. 535 (1824). 20 Pick. 345 (1838). 141. Where a person lived in a town nine 149. A person, although he has no settlcyears and four months, and then absconded ment within the Commonwealth, does not and never returned, but his wife remained acquire a settlement in a town by residing there eight months longer, itwas held, that he there ten years together, and paying taxes for had not resided there ten years actually or five of those years, if he receives aid as a constructively, and so had not gained a settle- pauper, from such town, before the expiration ment in tile twelfth mode in St. 1793, c. 34. of the ten years. WiVest N/ewbuory v. B)adford, Athol v. lTTatertown, 7 Pick. 42 (1828). 3 Met. 428 (1841). And see post, 160-171. 142. Labor performed. by an individual in 150. Or if he is supplied by the town in repairing highways to the amount of a high- which he has a settlement, with money to aid way tax irregularly and informally assessed him in supporting his helpless children. Tcaunupon himn, would have no effect towards giv- ton v. ihliddlebos'ough, 12 Met. 35 (1846). ing him a settlement. Southampton v. East- 151. A person does not acquire a settlement hampton, 8 Pick. 380 (1829). by residing in a town for ten years together 14-3. Where the assessors assessed more and paying all taxes assessed upon him for than five per cent.over and above the sum five years within that time, if during that time committed to them to assess, it was held, that the town has paid for his support wlhile conthe tax was not "duly assessed," within the fined in its workhouse, on conviction for a meaning of the statute relative to gaining a criminal offence. TWocester v. Auburn, 4 Allen, settlement. Charlemoont v. Conway, 8 Pick. 574 (1862). See post, 160-171. 408 (1829). 152. A person does not gain a settlement by 144. But the town cannot setup this defect, residing in a town for ten years together, and to defeat a settlement, where so long a time possessing real and personal estate, if the llas elapsed since the payment of the tax that assessors omit to tax him; though such omisno claim for reimbursement could be sus- sion is not on account of his infirmity or tained. lb. poverty, or by mistake, but in order to prevent 145. On the question between two towns his acquiring a settlement; evidence, therewhether a pauper has acquired a settlement in fore, that a person, who has resided in a one of them by a residence there of ten years town ten years together, possessed such estate, and payment of all taxes for any five years and that the assessors thus omitted to tax him, within that period, the fact that a higlway is not admiisible in proof of his having gained tax assessed on him one year was not includ- a settlement in such a town. Berlin v.Bolton, ed in his tax bill of the ensuing year, raises 10 Met. 115 (1845). a presumption that it was paid; but this pre- 153. In an action brought by one town against sumption may be rebutted by evidence to the another for the support of a pauper and his contrary. Attleborozugh v. Middleborough, 10 family, evidence that the pauper left his former Pick. 378 (1830). home and came to the defendant town with the 146. The burden of proof as to the fact of intention of removing his family.there as soon payment of such highway tax is upon the as practicable, that he boarded and worked party alleging that a settlement was acquired there for ten years, and paid taxes there five in the mode above mentioned. lb. years of the ten, and that, a year after he came, 147. In order to gain a settlement in a town his family removed there, and continued to reunder tle twelfth mode prescribed by St. 1793, side with him for the rest of the ten. years, c. 34, ~ 2, (Gen. Sts. c. 69, ~ 1,) a person after which they all removed to the plaintiff must pay all the taxes duly assessed upon him town, is sufficient to warrant a finding by the for five out of the ten years of his residence jury that the pauper had gained a settlement in such town; iand it is not sufficient if he for himself and family in the defendant town. pays a part only of such taxes, and is dis- Fitchburg v. Winchenzdon, 4 Cush. 190 (1849). charged from the payment of the residue by a 154. In order to prove a settlement in the PAUPERS, II. 49 twelfth mode provided by statute, by a resi- (h) How prevented by being relieved as a dence and the payment of taxes in the town: Pauper. where the settlement was alleged to be, an 160. A person does not acquire a settlement original document preserved amongst the rec- in a town by residing therein for ten years ords of the town, and purporting to be an and paying taxes during five of those years, assessment of taxes for the year 1798, was if before the expiration of the ten years he produced in evidence, from which it appeared became poor, and was relieved by the overha.t taxes to the amount of $3.03 were as- seers of the poor of the town of his former sessed in that year upon the individual in settlement. East Sudbury v. Waltham, 13 question for his poll and estate; and it also Mass. 460 (1816). appeared in evidence that the entry of these 161. A person does not acquire a legal taxes on the bill of assessment had been eras- settlement by residing in a town ten years ed by having a line drawn through it, and that together and paying taxes for any five of the collector for the year 1798 had been al- those ten years, if within that time he is comlowed a credit with the treasurer of the town mitted to jail, and while there applies for and for a discount of said taxes; it was held, that receives relief as a pauper from the jailer. whether the production of the bill of assess- East Sudbury v. Sudbusry, 12 Pick. 1 (1831). ment raised any presumption of the payment 162. Where one resided in a town for ten of the taxes so assessed or not, the circum- years together, and paid all taxes assessed stances stated above were competent evidence upon him for five of those years, it was held, to prove that the taxes in question were not that he acquired a settlement therein, notin fact paid. Boston v. TWeymouth, 4 Cush. withstanding his wife was, at the same time, 538 (1849). receiving support as a pauper from another 155. The assessment of a tax on real estate town in which she resided, it not appearing to the occupant, and the payment of the same that she was so supported at his request or by him, not as of his own estate, but in right with his knowledge, or that he was ever of another, are a sufficient assessment and applied to for payment of the expenses thereof, payment of a tax, within the twelfth mode or that he was unable to pay them. Berkeley provided by statute, for acquiring a settle- v. Tacunton, 19 Pick. 480 (1837). ment as a pauper in the town where the occu- 163. A person will not acquire a settlement pant resides. Randolph v. Easton, 4 Cush. by living three years successively on land in 557 (1849). which he has an estate of freehold or inheri156. Insanity, incurring after a person has tance, if in the course of that period he receive *become an inhabitant of a town, will not pre- relief as a pauper. Brew-ster v. Dennis, 21 vent his acquiring a settlement by living Pick. 233 (1838). Oakham v. Satton, 13 therein ten years consecutively. C]hicopee Met. 192 (1847). v. Whately, 6 Allen, 508 (1863). 164. A person could not acquire a settle157. The rule that a domicil once acquired ment in a town by a residence of ten years is presumed to continue until a subsequent therein and paying taxes five years of the ten, change is shown, applies to cases of settle- if during that time he applied to the overseers ment. lb. of the town for aid, and they supplied his 158. Absence from a town, without a defi- wants, although he afterwards paid for the nite purpose at all events to return to it as a supplies, and although he had no settlement home,will not interrupt the residence requisite in the Commonwealth. WIest Newbury v. to a settlement under the twelfth clause, Bradford, 3 Met. 428 (1841), overruling on until a new domicil is acquired elsewhere. this point Alount Washington v. Clarcsburgh, Worcester v. Wilbraham, 13 Gray, 586 (1859). 19 Pick. 294 (1837). 159. A citizen of this state resided in.165. A parent does not gain a settlement Lenox with his family from May, 1823, till the in a town by residing therein ten years tosummer of 1828, when he left Lenox for a gether, and paying all taxes assessed on him temporary purpose and remained absent,with- for five of those years, if, during such resiout any intention of changing his residence, dence, he is supplied by the town in which until the latter part of May, 1829, when he he has a settlement, with money to aid him returned, and thereafter resided in Lenox in supporting his helpless children. Tauanton until May, 1838, paying taxes assessed upon v. Middleborough, 12 Met. 35 (1846). him therein yearly from 1831 to 1838. His 166. A person who has a settlement within wife and children had been left by him in the Commonwealth does not acquire a new Lenox during his absence, but before his settlement by residing in a town ten years toreturn removed therefrom without his consent gether, and paying taxes for five of those or knowledge. Ield, that he gained a settle- years, if his wife is committed to a state lunament in Lenox in the twelfth mode. Lee v. tic hospital upon his complaint or by his conLenox, 16 Gray, (1860). sent, and receives aid from the Common 50 PAUPERS, II. III. wealth as a state pauper, before the expiration there had a son born, who afterwards came of the ten years. Charlestown v. Groveland, into this state and had children, it was held, 15 Gray, (1860). that these children had a settlement in this 167. A citizen of the United States, not state, derived from their great-grandfather. having a settlementwithin the Commonwealth, Townsend v. Billerica, 10 Mass. 411 (1813). does not gain a settlement in a town by hav- 175. A person does not lose or gain a seting a freehold estate therein, and living on tlement by reason of his changing his domigil such estate three years successively, if before from one place to another in the same towS. the expiration of the three years his wife is Dalton v. Ilinsdale, 6 Mass. 501 (1810). committed to a state lunatic hospital, and is Princeton v. iVest Boylston, 15 Mass.' 260 there supported by the Commonwealth as a (1818). pauper, although he did not request or consent 176. A person having a settlement in a to her commitment,if he knew of such commit- town in Massachusetts, but living in Maine at ment. Woodward v. Worcester, 15 Gray, the time of its separation from Massachusetts, (1860). did not by the separation lose her former set168. Support granted to a person as a pan- tlement. Middleborough v. Clark, 2 Pick. per by the overseers of the poor of the town 28 (1823). in which he has a settlement, will prevent 177. Since the repeal of St. 1789, c. 14, by his acquiring a settlement in another town in St. 1793, c. 34, a settlement in any town in which he resides, although the act of the over- this commonwealth i.s not lost by the acquisiseers, in granting such support, be not ratified tion of a settlement in another state, while by the town of whose poor they are over- the St. of 1789 was in force. WVilbraham v. seers. Oalchan v. Sutton, 13 Met. 192 (1847). Sturbridge, 6 Cush. 61 (1850). 169. A man does not obtain a settlement, 178. The rule that a domicil once acquired under Rev. Sts. c. 45, (Gen. Sts. c. 69,) ~ 1, is presumed to continue until a subsequent cl. 4, in a town where he owns a freehold, if change is shown, applies to cases of settlebefore he has lived therein for three years ment. Chicopee v. Whately, 6 Allen, 508 successively he is committed to a state luna- (1863). tic hospital and there supported as a pauper; although his family continue to reside on his III. ACTIONS FOR SUPPORTING PAUPERS. land for the residue of the three years. Choate () gainst the Pauper's indrd. v. Rochester, 13 Gray, 92 (1859). 170. A person does not acquire a settlement St. 1793, c. 59. Rev. Sts. c. 46. Gen. Sts. by residing in a town for ten years together C. 70. and paying all taxes assessed upon him for 179. The kindred of a pauper cannot be five years within that time, if during that time called upon to contribute to his support exthe town has paid for his support while con- cept by the overseers of the poor of the town fined in its workhouse, on conviction for a of his legal settlement or by others of his kincriminal offence. Worcester v. Auburn, 4 dred. Salemnv. Andover, 3 Mass. 436 (1807). Allen, 574 (1862). 180. The only remedy for a town other 171. It is the reception of needed support than that wherein he is settled, which has proor aid, furnished by the public, which prevents vided for a pauper, is by an action against a person from gaining a settlement, although the town where he has his settlement. Ib. that support may not ultimately be at the ex- 181. The terms " such poor person," and pense of the public. Ib. " such pauper" in Rev. Sts. c. 46, ~~ 5, 6, (Gen. Sts. c. 70, ~~ 4, 5,) include all poor (i) How lost when once acquired. and indigent persons, standing in need of re172. A settlement gained in another state lief. lutcehings v. Thompson, 10 Cush. 238 does not annul a previous settlement in a (1852). town within this state. Canton v. Bentley, 182. The kindred by affinity of any poor 11 Mass. 441 (1814). Wilbraham v. Stur- person cannot maintain a complaint under bridge, 6 Cush. 61 (1850). Rev. Sts. c. 4&, ~ 6; (Gen. Sts. c. 70, ~ 5,) 173. A wife does not lose her settlement, against the father of such poor person, for the derived from her husband, by means of a di- expenses of his relief and support. The term vorce, except for a cause which shows the "any kindred" extends only to kindred by marriage to have beenvoid. Dalton v. Bern- consanguinity. Farr' v. Flood, 11 Cush. 24 ardston, 9 Mass. 201 (1812). See Middle- (1853). borough v. Rochester, 12 Mass. 363. 183. The word " kindred" includes only 174. A settlement is not lost until another blood relations. A husband is not of kin to is gained within the state; therefore, where a his wife, nor she to him. BrooAfield v. Allen, pauper, having a settlement derived from his 6 Allen, 586 (1863). father, removed into New Hampshire, and 184. Upon a complaint to compel kindred PAUPERS, III. 51 of a poor person to contribute towards his an action for the amount allowed by- that support, the superior court have power, under court for the support of a pauper duly comGen. Sts. c. 70, ~ 11, to award costs, and mitted to the house, against the town of the no appeal lies from their decision. South pauper's settlement, and want of notice to the Reading v. Hutchinson, 10 Allen, 68 (1865). town of the claim afforded no defence to the action. Wade v. Salem, 7 Pick. 333 (1828). (b) By Individuals against Towns. 194. The expense incurred on account of an Sts. 1793, c. 59; 1826, c. 142; 14, c. 151. infant nursing at the breast of a woman comRev. Sts. c. 46. Gen. Sts. c. 70 ~ 16. mitted to a house of correction may be recovRev. Sts. c. 46. Gen. Sts. c.ered of the town where the house of correc185. Under St. 1793, c. 59, ~ 13, an action tion is situated, after notice and request, but against the town of a pauper's legal settle- not the expense of extra articles of food furment, for supplies furnished the pauper, could nished to the mother, because of her having an not be sustained unless the plaintiff was an infant at the breast. Watson v. Cambri'dge, inhabitant of such town. Mitchell v. Corrville, 18 Pick. 470 (1836). 12 Mass. 332 (1815). But the provisions of 195. Under St. 1831, c. 151, ~ 10, authorthis statute were changed by Rev. Sts. c. 46, izing keepers of houses of correction to bring ~ 18 (Gen. Sts. c. 70, ~ 16). Underwood v. actions in certain cases for the support of conScituzate, 7 Met. 214 (1843). victs against the towns of the convicts' settle186. A surgeon, who has performed a ment, a personal presentation of an account difficult and necessary operation on a pauper, was held not to be necessary, but a letter not resident in the town of his settlement, fiom the keeper or some one authorized by without the request of the overseers of the him, to the selectmen of the town, making a poor of such town, has no right of action demand, was sufficient. Evidence of the autherefor against such town. Mjiller v. Somer- thority of the agent should be furnished to set, 14 Mass. 396 (1817). the selectmen at the time of the demand. 187. Nor can a surgeon recover for such Robbins v. WTeston, 20 Pick. 112 (1838). services from the town where the pauper 196. But a demand made under the authorresided, the services having been performed ity solely of the overseers of the house of corwithout notice -ind request made to the over- rection in Boston,was held to be insufficient,alseers of the poor of such town. Kittredge v. though afterwards ratified by the board of alNewbuiry, 14 Mass. 448 (1817). dermen. Boston v. Teston,22 Pick. 211 (1839). 188. Where an inhabitant of a town incurs 197. If a person agrees with a town to board an expense for the relief of a pauper, for a pauper for a year at the rate of a dollar a which the town is liable after notice and week, and the pauper dies within the year, so request to the overseers of such town, such that the contract cannot be fulfilled, such pernotice and request need not be in writing. son is entitled to recover, on an iimplied TWatson v. Cambridge, 15 Mass. 286 (1818). promise, for the part of the contract actually 189. An action against the town for the performed, but he cannot recover for the reimbursement of such expense is not limited whole year. Willington, v. West Boylston, to two years after the notice. lb. 4 Pick. 101 (1826). 190. Under St. 1793, c. 59, a town in which 198. If a pauper is ill treated or insufficia prison was situated was liable to the jailer ently provided for by an individual who ltas for the support of a pauper confined in prison agreed with the town to support him, another for debt, whether he had a legal settlement individual will not have a right to support him in any other place or not, after due applica- without notice to the town, so that it may retion to the overseers. Cargill v. Wiscasset, form the abuse or make other provision for 2 Mass. 517 (1807). Doggett v. Dedham, Ib. the pauper. Worden v. Leyden, 10 Pick. 24 564 (1805). (1830). 191. So where the pauper was confined for 199 Theplaintiff,beingthe guardian of a pernot obe ing the order of tile court in provid- son whose legal settlement was in the town of ing for the maintenance of a bastard child, of L.,and whiowas incapable of labor, and had no whichl lie had been adjudged to be the father. property except a small-pension, informed the Sayiward v. Alfred, 5 Mass. 244 (1809). overseers of the poor of the town of two suc192. Otherwise, where the pauper had been cessive years that he was running a risk, as committed to prison for a crime against the lie was obliged to-become responsible for the Comnonwealth. Adams v. Wiscasset, 5 board of his ward, and that when he received Mass. 828 (1809). the pension it took about one half of it to pay 193. Under Sts. 1802, c. 22, ~ 2, and 1826, arrearages due for the board, and tlat the c. 142, the master of a house of correction, town must take the risk. The ward died, after his accounts had been allowed and cer- wlen all the property belonging to him had tified by the court of sessions, might maintain been exllhausted and further expenses had been a~5 ~~2 PPAUPERS, III. necessarily incurred by the guardian. It was until provision shall be mace by them," apheld, that the ward was in need of relief, and plies only to expense incurred in the support that the plaintiff was entitled to recover of the of a pauper found or residing in the town. town for the expenses incurred by him for Smith v. Coleraine, 9 Met. 492 (1845). the ward subsequently to notice and request. 205. A. agreed with the town of C. to supFiske v. Lincoln, 19 Pick. 473 (1837). port two of its paupers, for one year, for a 200. As the relation of guardian and ward certain sum, and removed them into an adjoinsubsisted between the plaintiff and the pauper, ing town, where they were supported during the objection that the plaintiff was not obliged the year at his charge in the family of their to relieve the pauper because the latter was son-in-law. At the end of the year the town not living with him but with another inhabi- agreed with B. to support its paupers for one tant of the town, was held to be inapplicable. year at a certain sum. The said two paupers b1. afterwards remained in the adjoining town, in 201. Where the plaintiff made a contract the family of their son-in-law, who was requestwith the father of a female child to take her ed by A. to support them, at his charge, until into his family, and for her services to main- they should be removed to the town of C. A. tain her in sickness and in health during the also gave notice to the overseers of the town of pleasure of the parties, and afterwards, when C. that said paupers were on his hands, and she had become ill, gave notice of the fact to requested the overseers to provide for them. the overseers of the poor, and requested as- No provision was made for said paupers by sistance from the town for her support, it was the overseers, and they were supported by held, that as he had not given the father notice their son-in-law at A.'s charge. Held, that of his wish to put an end to the contract, it the town of C. was not bound to pay to A. the continued in force, and he had no right of ac- expense incurred by him after the first year, tion against the town for supporting the child, for the relief of these paupers. lb. Peters v. TVestbolrough, 20 Pick. 506 (1838). 206. In an action against a town, by one of 202. Since the Rev. Sts. c. 46, ~ 18, a per- the inhabitants thereof, to recover for the son, though not an inhabitant of the town support of a pauper therein, the plaintiff where apauper falls into distress, may recover cannot prevail, unless he has given to the of such town any expense necessarily incurred overseers of the poor of the town the notice by him for the relief of the pauper in said town, required by statute, and it is not enough to after notice and request made to the overseers show that the overseers had actual knowledge of the poor of the town, and their neglect to that the pauper was at the plaintiff's house provide for the pauper. Underwood v. Scit- and supported by him. Iallker v. Southbridge, uate, 7 Met. 214 (1843). 4 Cush. 199 (1849). 203. A physician, an inhabitant of the town 207. The notice and request to overseers of of H., immediately after attending upon a per- the poor, after which a town is made liable by son in the town of S., to whom he had been the statute to an individual for expense incalled, and who had received a wound, and was curred by him in the support of a pauper, are proper subject of relief by that town, gave conditions precedent to such liability. Such notice to one of the overseers of the poor of request must be an intelligible call on the said town, that said person needed and would overseers to take charge of the pauper at the naed surgical assistance, but did not wish to expense of the town, and must be made by be considered a pauper. He also requested the individual himself claiming to recover, or said overseer to inform him whether the town by his agent or messenger. Williams v. Brainof S. would pay him for the services which tree, 6 Cush. 399 (1850). ble had rendered and which it would be neces- 208. Where the plaintiff had been rendering sary to render. The overseers of the poor of assistance gratuitously in the family of her S. took no order on this notice and request, married daughter for some weeks, as nurse and neglected to make any provision for said and housekeeper, and continued her services person. Held, that this notice and request there after all the members of the family had were sufficient to entitle the physician to re- become ill of the small pox, and stood in need cover from the town of S. compensation for of relief as paupers, but requested another iis services in attending upon said person person " to call on the overseers of the poor until he was cured. Ib. for more help, or a person to take care of said 204. The provision in the Rev. Sts. c. 46, ~ paupers instead of herself, for she could not 18, (Gen. Sts. c. 70, ~ 16,) that " every town stand it any longer; "in an action against the shall be held to pay any expense which shall town to recover for services subsequently be necessarily incurred, for the relief of a rendered, it was left to the jury as a question pauper, by any person who is not liable by of fact, to find whether the plaintiff intended, law for his support, after notice and request by such message, to give notice to the overmade to the overseers of the said town, and seers that she should thereafter render her PAUPERS, II. 53 services on the credit of the town, or only per is to take it after his death, if he was at that the farnliy needed further assistance in the time of his death actually chargeable to addition to her services, which she should the town. lb. See Gen. Sts. c. 70, ~ 21; continne to render without compensation. It Haynes v. Welles, 6 Pick. 462. was held, that the plaintiff had no ground of 215. One who, being in need of immediate exception to this ruling. lb. relief and support, has received the same from 209. Where a state pauper, for whose sup- the town of his lawful settlement, is not, in port provision is made in one town, volun- the absence of fraud, liable to an action by the tarily and without any cause of complaint, town therefor, although he was possessed of leaves the place of such support and goes into property at the time. Stow v. Sawyer, 3 Alanother town where he is not in any need of len, 515 (1862). immediate relief, and is there supported by an 216. If the overseers of tle poor relieve individual, the latter acquires no cause of ac- the wants of a wife whose husband has a legal tion thereby against the last-mentioned town. settlement in another town, an action lies at Shearer v. Shelburne, 10 Cush. 3 (1852). the common law for the town whose overseers 210. If the municipal authorities of a town furnished the relief, against the husband, nothave provided supplies for distribution among withstanding the statute remedy against the those out of the almshouse who need relief, town of his settlement. Hanover v. Trner', upon orders of the overseers of the poor, and 14 Mass. 227 (1817). See Brookfield v. Alhave given notice thereof to the overseers, the len, 6 Allen, 585. latter have no authority to contract debts in 217. A town may maintain an action behalf of the town for the support of the poor; against an individual for supplies furnished to and one who, having knowledge of the facts, his wife and children, if they stood in need of furnishes supplies to persons settled in such support as paupers, but not otherwise. New town, upon orders of the overseers, cannot Bedford v. Chace, 5 Gray, 28 (1855). maintain an action against the town to recover 218. A town, which supports a wife neglected for the same. But if he furnishes supplies by her husband and standing in need of relief, upon such orders to persons settled elsewhere, may recover of the husband the amount neche may recover from the town the amount ac- essary for her support as a pauper, but not tually received by it, on account of such for further supplies suitable to her condition supplies, from the towns which were liable to in life, but not necessary for a pauper. lionsupport the persons who were relieved there- son v. WT'illiamns, 6 Gray, 416 (1856). by. Irelazd v. Newbzuryport, 8 Allen, 73 219. A contract made with the brother of a (1864). female pauper by a committee appointed by a 211. Under Gen. Sts. c. 70, ~ 16, an indi- town "to negotiate the case" of that pauper, vidual cannot recover of the town where a and signed by the committee in their own pauper has his settlement for necessary relief names, the terms of which are, that the brother furnished to the pauper in another town, al- shall pay the town a certain sum annually though the former town has made provision, during the life of the pauper, and release all which proves inadequate, for the pauper's sup- claim to a certain fund in the hands of anport in the latter town. lawes v. Hanson, other relation for her support, and the town 9 Allen, 134 (1864). shall support her and save him harmless from See H-IOUSES OF CORRECTION AND JAILS. all litigation with his brothers in relation to such support, which contract is afterwards (c) By Towns against Individuals. acted upon by the brother and the town, is St. 1817, c. 186, ~ 5. valid, and binds the town, though not ex-. i, c i,. pressly ratified by them. Palmer v. Ferry, 212. Prior to St. 1817, c. 186, a pauper 6 Gray, 420 (18 6). was not liable to an action by the town wherein he had his lawful settlement, for any (d) ]By Towns against Towns. moneys paid for his relief as a pauper. Deer (1) When nd for what the Action willlie; Isle v. Eaton, 12 Mass 327 (1815). Medford (1) Wt t t t e v. Learned, 16 Mass. 215 (1819). d o the Pleadizgs, Evideice and Tria. 213. St. 1817, c. 186, was repealed when 220. A town which voluntarily maintains the revised statutes took effect, and since the a pauper having a settlement in another town, passage of the revised statutes a person re- cannot recover compensation therefor of such lieved as a pauper, whether he has or has not other town, except by virtue of provisions of property, is not liable to an action by the statute, or on an express promise. Dcaton v. town to recover compensation for such relief. Hinsdale, 6 Mass. 501 (1810). Groveland v. Mledford, 1 Allen, 23 (1861). 221. In an action by one town against 214. The only claim a town now has upon another, under St. 1793, c. 59, ~ 9, the decthe property of a person supported as a pan- laration must aver the settlement of the 54 PAUPERS, III. pauper, and notice to the defendant town sum, paid without notice to such other town. within three months from the commencement Southbridge v. Charlton, 15 Mass. 248 of the expense. Salem v. Andover, 3 Mass. (1818). But see Gen. Sts. c. 70, ~ 14. 436 (1807). Wrenthan v. Attleborough, 5 231. To entitle a town which has supported Mass. 434 (1809). a pauper belonging to another town, to recover 222. Such action will not lie if notice has an indemnification, it is not necessary that the not been given to the defendant town until pauper be actually resident in the town at the more than three months after the supplies time of giving notice to the town in which he have ceased to be furnished; but whether this has his legal settlement. It is sufficient that limitation extends to the expenses of the re- he was then supported at the expense of the moval or burial of the pauper, qucere. Bath town so giving the notice. Marlborongh v. v. Fi'eeport, 5 Mass. 325 (1809). Rutland, II Mass. 483 (1814). See 12 Pick. 6; 223. Where notice was given of a pauper's 1 Gray, 515. becoming chargeable in March, 1811, and 232. When a pauper falls into distress in a again in October, 1812, and an action was corn- place other than that of his settlement, he is menced in May, 1813, the defendant town was to be relieved; and it does not lie with the held liable only for the expenses incurred town of his settlement to object, in an action during three months preceding the last notice. against them for his support, that he was able, Townsend v. Billerica, 10 Mass. 411 (1813). but unwilling, to provide for himself. Paris See 23 Pick. 158. v..liram, 12 Mass. 262 (1815). 224. No action lies in behalf of another 233. Where an inhabitant of the town of A., town against the town of a pauper's settlement after a refusal by the overseers, had himself for any expenses incurred more than two supported a pauper having his lawful settleyears before the commencement of the action. ment in B., and afterwards recovered satisfacReadfield v. Dresden, 12 Mass. 316 (1815). tion therefor of the town of A., it was held, 225. The notice to the town of a pauper's that A. could not maintain an action against settlement respecting supplies furnished to the B., although such satisfaction was recovered pauper by another town must have been given within two years, the original expense having within two years before the commencement of been incurred more than two years before the an action by the latter town against the former commencement of the action. Readfield v. to recover for such supplies, in order to main- Dresden, 12 Mass. 316 (1815). tain such action, no judgment having been 234. Where an individual in a town gave recovered in any former action concerning the notice to the overseers of the poor that he pauper's settlement between the same parties. was supporting a pauper, and that he should Needhar v. Newton, 12 Mass. 452 (1815). look to the town for his pay, and the overseers 226. Expenses incurred in the support of a thereupon gave notice to the town where the pauper, although within three months prior to pauper had his settlement, that he had become giving the notice required by the statute, can- chargeable, it was held, that the first town, not be recovered if they arose more than two though they had not paid such individual, years before the commencement of the action, might maintain an action against the other Hlarwich v. Hallowell, 14 Mass. 184 (1817). town for the support of the pauper. Westfield 227. Although the same plaintiffs have, in a v. Southwick, 17 Pick. 68 (1835). former action, recovered from the same de- 235. If a town relieves, as a pauper, a perfenidants expenses incurred for the support of son imprisoned in a jail therein, it is no dethe same pauper. And the notice given before fence to an action to recover compensation the former action does not make a new notice therefor against the town of the pauper's setunnecessary. Hallowell v. IHarwich, 14 Mass. tlement, that the pauper was unlawfully com186 (1817). See 23 Pick. 159. mitted to the jail. Taunton v. Westport, 12 228. The limitation of two years, within Mass. 355 (1815). which the action must be brought, should be 236. A town is not liable to another town computed from the delivery of the notice, and for the support of an alien married to a woman not from its date. Uxabridge v. Seekonk, 10 having a legal settlement in the defendant Pick. 150 (1830). town. Cambridge v. Charlestown, 13 Mass. 229. In an action by a town for the support of 501 (1816). a pauper, a charge for the expense and trouble 237. By an act incorporating a town from of the overseers in providing for the abode part of an old one, it was provided that the two and support of the pauper cannot be recovered. towns should bear their proportionate part of Conway v. Deeifield, 11 Mass. 327 (1814). supporting the poor, which were at that time 230. A town which has supported paupers relieved by the elder town. Afterwards the properly chargeable to another town ought to two towns made an agreement that if any perbe fully indemnified for all the expense prop- son should thereafter be returned as a pauper, erly incurred, but not for an extravagant having a right to a support from the elder PAUPERS, III. 55 town, the new town should be bound to sup- 245. In an action brought by the town of port him, if his last residence had been in that W. against the town of 0. for expenses interritory which constituted the new town. It curred in the support of a pauper, on the was held, that the agreement was not binding question whether the pauper derived a settleon the new town, and that it was not bound to ment in 0. from his grandfather through his support a pauper thus situated. Norton v. father, it was held, that copies of a deed exeMlansfield, 16 Mass. 48 (1819). cuted by the grandfather in 1754, in which he 238. Notwithstanding the proviso in St. was described as being of 0., and of his last 1793, c. 59, ~ 9, (Gen. Sts. c. 70, ~ 12,) an ac- will, made in 1758, in which he was described tion will lie against a town after two years, as " now resident in 0.," were admissible evupon a verbal express promise of the over- idence to prove that the grandfather gained a seers of the poor to pay the expenses incur- settlement in 0. under Prov. St. 12 & 13 red in supporting a pauper legally chargeable Will. III. c. 10. Ward v. Oxford, 8 Pick. to the town; such a promise being barred 476 (1829). only by the general statute of limitations. 264. Held, also, that evidence proving that Belfast v. Leominster, 1 Pick. 123 (1822). the grandfather, for a long time before 1754, 239. The obligation imposed on a town by had a settlement in the town of S., and that statute to support paupers is a good consider- afterwards, for years previous to 1784, the ation for an express promise. Ib. father of the pauper was supported as a pau240. A pauper, for whose support provision per by S., was admissible to rebut the prewas made in the town of W., in which she sumption arising from the description of the had a settlement, went into the adjoining grandfather in the will and deed. Ib. town of N. S., and there expenses were in- 247. In an action between two towns to recurved for her support, although the pauper cover the amount of expenses incurred by the herself, the person with whom she there re- plaintiff town in relieving a person whose setsided, and the inhabitants of N. S., all knew tlement was in the defendant town, the fact that that a place was provided for her in W., to such person might, by going a short distance, which she was able to walk without difficulty. have obtained of his debtor as much money as iHeld, that N. S. could not recover of W. for was expended'for his relief, was held not to these expenses. New Salemn v. Wendell, 2 be conclusive evidence that he was not a pauPick. 341 (1824). per. Sturbridge v. Iolland, 11 Pick. 459 241. Upon a question whether a deceased (1831). person had a settlement, his declaration that 248. But if he was not a pauper, evidence he had no deed, but a writing to give him a is admissible to show that he was in distress, deed, of certain land, was admitted to rebut under such circumstances as to require imthe presumption arising from long possession mediate aid from the plaintiffs. Ib. by himself and his grantee, that he was seised 249. Where a pauper whose legal settleof an estate in freehold. West Cambridge v. ment was in the town of S. was relieved by Lexington, 2 Pick. 536 (1824). the overseers of the poor of the town of C., 242. Where a pauper, after an action and upon notice the expenses were reimbursed brought by one town against another to re- by the overseers of the poor of the town of E. cover expenses incurred in his support, con- S., upon the supposition that his legal settletinues chargeable to the plaintiffs, to sustain ment was in E. S., it was held, that the town an action for the new expenses, brought pend- of E. S. could not maintain an action for reing the first, a new notice is required. MTal- payment against the town of S. East Sudpole v. Hopkin7ton, 4 Pick. 358 (1827). bury v. Sudbury, 12 Pick. 1 (1831). 243. Wlether a town can at any time set 250. Under St. 1793, c. 59, ~ 9, (Gen. Sts. up their own illegal proceedings or those of c. 70, ~ 12,) whereby a town furnishing suptheir officers, in the assessment of a tax, after port to a pauper may be entitled under certhe tax has been paid, to defeat a settlement tain circumstances to recover against the gained thereby, qucere. But where so long a town in which the pauper has his settlement, time had elapsed since the payment of the for expenses incurred -within a period of tax that no claim for reimbursement could be three months before, and two years after, sustained, it was held, that they could not. notice of the pauper's having become chargeCharlemont v. Conway, 8 Pick. 408 (1830). able, it is immaterial whether the support has 244. Where the assessors assessed more been continuous or only occasional. Attlethan five per cent. over and above the sum borough v. Mansfield, 15 Pick. 19 (1833). committed to them to assess, it was held, that 251. In an action by one town against anthe tax was not duly assessed, within the other to recover expensesincurred in the supmeaning of St. 1793, c. 34, relative to gaining port of a pauper, it was held, that a notificaa settlement (Gen. Sts. c. 69, ~ 1, cl. 12). tion addressed to the pauper by an inhabitant lb. of a third town, warning him to attend a dis 56 PAUPERS, III. trict school meeting therein, was competent town for the support of a pauper, that his perfor the purpose of proving that the pauper re- sonal property was set, in the valuation of the sided at that time in such third town, it being estates of the town, at the sum mentioned in testified by such inhabitant that he delivered St. 1793, c. 34, and Rev. Sts. c. 45, (Gen. the notification to the pauper. West Boyls- Sts. c. 69, ~ 1, cl. 5,) and that he was assessed ton v. Sterling, 17 Pick. 126 (1835). for the same for five successive years, such 252. In an action between two towns, it town cannot avail itself of the objection that appeared that paupers having their settlement there was not in the valuation any schedule or in the defendant town received support and description of the property as directed by medical attendance in the plaintiff town, and statute. Boston v. Dedham, 4 Met. 178 within thirty days after notice of that fact (1842). from the plaintiffs, the defendants made a con- 256. Under the Rev. Sts. c. 143, ~~ 15, 16, tract with a person living in the plaintiff town, (Gen. Sts. c. 178, ~~ 57, 58,) which provide at whose house the paupers were, to keep that the expense of supporting a pauper in a them at the defendants' expense, and made house of correction "may be recovered of the provision for medical attendance; which the town wherein he shall have his lawful settledefendants made known immediately to one ment," the town in which he has a settlement of the overseers and one of the selectmen of when such expense is incurred, is liable therethe plaintiff town, and offered to settle with for, although he gains a settlement in another them for the relief already furnished; where- town before such expense is audited and cerupon the overseer and selectman made out a tified by the overseers of such house. Boston bill, charging the defendants at the rate of one v. Amnesbtry, 4 Met. 278 (1842). dollar a week for each of the paupers, and an 257. The persons and corporations that are item for the funeral expenses of one of them, made conditionally liable by Rev. Sts. c. 143, and the overseer receipted it and received the ~~ 15, 16, (Gen. Sts. c. 178, ~~ 57, 58,) for the amount of it from the defendants. The pan- support of persons committed to a house of pers not being afterwards removed by the de- correction, cannot be held to pay for such fendants before the expiration of the thirty support, unless the account thereof be audited days, the plaintiffs brought an action to re- and certified by the overseers of such house cover the full amount of the expenses incur- within the time prescribed by those statutes. red by them; but it was held, that the settle- lb. ment made by the parties was a bar to the 258. Where a pauper was confined in a plaintiffs' claim. Medway v. Milford, 21 house of correction from December, 1836 to Pick. 349 (1838). April,1837, and the account of the expense of 253. On the question of a pauper's settle- his support was not audited and certified by' ment, which depended on the settlement of an the overseers until January, 1839, it was held, ancestor acquired by his dwelling in a house that the town in which he had his settlement on or near the boundary line between two was not liable for such support. Ib. towns,which house was pulled down a long time 259. A town in which a convict who is ago, it was held, that the declarations of aged committed to a house of correction, has a setpersons, since deceased, who lived in its vicin- tlement, is not liable by any statute to pay the ity, made while it was occupied by the ances- expense of supporting him iu such house, tor, were admissible to show the position of unless he be committed by virtue of the fifth the house in relation to the dividing line be- or sixth section of c. 143 of the revised stattween the two towns. Abington v. North tutes (Gen. Sts. c. 161, ~ 21; c. 165, ~ 28). Bridgewater, 23 Pick. 170 (1840). Boston v. Dedham, 8 Met. 513 (1844). 254. In an action by one town against an- 260. When a town, on receiving notice that other for the support of a pauper, who was one of its paupers is supported in another the illegitimate son of a married woman, the town, replies to the notice by denying that his plaintiff town having proved her settlement to settlement is in the town, and neither removes have been originally in the defendant town, it him nor makes any provision for his support, was held, that the burden of proof was on the it is liable, without any new- notice, for the defendant town, to show that the husband had expenses incurred, by the other town for his a settlement in some other town in the Com- support, after the notice as well as before, monwealth, and so that her settlement was until suit brought. Topsfield v. Middleton, 8 changed by her marriage, and-not on the Met. 564 (1844). plaintiffs to prove that the husband either had 261. The town of D., on receiving notice his settlement in the defendant town or had from the town of P., that certain paupers, no settlement in the Commonwealth. (PUT- whose settlement P. alleged to be in D., were NAMs, J. dissenting.) Randolph v, Easton, 23 supported in P., immediately paid the expense Pick. 242 (1840). that had been incurred by P. for their support, 255. Where itis shown, in a suit against a removed part of the paupers to D., and made PAUPERS, III. 57 provision for the support of the others in P. Middlehorough, without proving that such for the term of about forty days. Within two settlement was not gained by a residence months from the time of receiving said notice within the limits of Lakeville. NcI Bedfo-'rd from P., the overseers of the poor of D. re- v. llHiddleboroZugh, 16 Gray, (1860). And plied to that notice, denying that D. was liable see ffingham v. South7 Scituate, 7 Gray, 230, to support said paupers, and refusing to pay 231. P. for any further support of them. HIeld, 268. The town of a pauper's settlement is that the town of P. could not maintain an not liable to another town in which the pauper action against the town of D. for the subse- becomes furiously insane and fails into disquent support of said paupers, without first tress, for the expenses of his removal to an giving 1). a new notice. Palmer v. Dana, 9 asylum for the insane in another state, and Met. 587 (1815). for his support and medical attendance there, 262. In an action against a town to recover even though a removal to some asyllum be for the support of a pauper whose settlement necessary to the comfort and relief of the was once in that town, the burden of proving pauper, and as a matter of economy and huthat he afterwards acquired a settlement in mahity. Deeefield v. Greenfield, 1 Gray, 514: another town, is on the defendants. Oalcham (1854). v. Sultto, 13 Met. 192 (1847). 269. Under Rev. Sts. c. 46, ~ 13, (Gen. Sts. 263. In an action for the support of a pau- c. 70, ~ 12,) a town which has furnished relief per, whose settlement is proved to have once to a person found therein and standing in need been in the town defending, the burden of of immediate relief may recover tie expenses proving that he has since acquired a new set- thereof from the town of his settlement, altlement by residing for the space of ten years though sufficient provision mn-y have been together in another town, is upon the defend- made for his general support by his father's ant town. WYorcester v. Wilbqaham, 13 Gray, will. Grovectld v. Mledford, 1 Allen, 23 586 (1859). (1861). 264. Grants of land are admissible in evi- 270. A town which has paid money for the dence as circumstances tending to show that support of a criminal in its workhouse c:mnnot the grantee, at their respective dates, dwelt in maintain an action to recover the same from that part cf the town in which the land was. the town where he had his settlement. WorlHighlam? v. South Scituate, 7 Gray, 229 cester v. Atlburn, 4 Allen, 574 (1862). (1856). 271. In an action to recover for expenses 265. In an indenture of partition of lands incurred in support of a pauper, against a in 1744 among the heirs of one deceased in town in which his settlement is sought to be 1742, a description of one parcel as " fifty- established by reason of a marriage existing nine acres of land lying in S., being part of before the passage of St. 1845, c. 222, (Gen. the homestead of the said deceased," is no Sts. c. 107, ~ 2,) it cannot be shown in defence evidence of his having had a dwelling in S. in tlat the marriage was invalid by reason of the 1695. Ib. insanity of one of the parties. Gosl7en v. 266. A description, in a town record, of land Richmond, 4 Allen, 458 (1862). laid out in 1696, as " adjoining to the fence of 272. If a person whose settlement is in disC.'s home pasture," is admissible against a pute is proved to have removed from one town town subsequently created out of part of that to another, a new trial will not be granted on town, to prove that C. then dwelt in that part account of the admission of evidence, for the of the town in which the land was. lb. purpose of proving his domicil in the latter 267. By St. 1853, c. 338, ~ 3, dividing the town, that he came to the latter town and said town of Middleborough, and incorporating a that he had sold out at the former town, and part of it into a new town called Lakeville, it had come down and wanted to go to work; is provided that the said towns " shall here- provided no special request was made for an after be respectively liable for the support of instruction to the jury that his declaration was all such persons, who now are relieved, or not of itself competent evidence of- the fact hereafter may be relieved, as paupers, whose of his selling out in the former town. Mol7settlement was gained by, or derived from a sot, v. Palmer, 8 Allen, 551 (1864). residence within their respective limits." In 273. The admission of an overseer of the an action against the town of Middleborough poor, in giving directions for a pauper's relief to recover for expenses incurred in the sup- to one who has the care of the town's poor, port of a pauper, it was held, that the burden that the pauper has a settlement in the town, of proof was on the plaintiff to show that the derived from an ancestor, is not competent pauper gained a settlement in Middleborough evidence against the town in an action subsefrom a residence within its present limits; and quently brought against it by another town for that it was not sufficient to show that the another cause, in which the settlement of anpauper had a settl*nent in the old town of other pauper, which depends upon the settle 58 PAUPERS, 111, ment of that ancestor, is in controversy. 281. A notice from the overseers of one Darvtmnouth v. Lalcevile, 7 Allen, 284 (1863). town to those of another that "the family of 274. The admission ofoverseers ofthe poor, J. S." has become chargeable, was held to be in a binding-out indenture, that a certain pau- too general; but the answer of the other town per is chargeable to their town, and their acts denying the settlement, but taking no excepin paying bills to other towns for his support, tion to the deficiency of the notice, it was held, are not admissible in evidence against the that the objection was waived. Emnbden v. town in a litigation growing out of subsequent Augusta, 12 Mass. 307 (1815). acts, for the purpose of showing that he and 282. A town sent a notice to another town his descendants have their settlement tlerein. that "A. B. and his family" had become In performring tlese duties, they act as public chargeable, and had their lawful settlement officers, and not as agents of the town. New in such other town. An answer was returned Bedford v. TaunZio, 9 Allen, 207 (1864). that A. B. had no such settlement, no objec-'See HOUSES OF CORRECTION AND JAILS. tion being taken to the sufficiency of the notice as to the family. It was held, that such (2) Of the Notice. objection was waived. Shutesbulry v. Oxford, 275. Notice from one town to another, to 16 Mass. 102 (1819). obtain the removal of a pauper or a reim- 283. All objections to the sufficiency of a bursement of the expenses of a pauper's sup- notice to charge a town with the support of a port, is sufficient, if it be given to one of the pauper are waived by returning an answer overseers of the town on which the claim is simply denying all liability on the ground that made; but it must be in writing, and signed the pauper has no settlement in the town. by a major part of tlhe overseers of the town Paris v. FHiram, 12 Mass. 267 (1815). Corngiving the notice, or perhaps by an agent duly monwealth v. Dracut, 8 Gray, 455 (1857). authorized by the town. Dalton v. Jlinsdale, 284. The overseers of the poor of 0. sent 6 Mass. 501 (1810). the following notice to. those of S.: "A. E. 276. A notice was held to be sufficient which and wife and three children, who have their stated that the pauper had her settlement in legal settlement in your town, is now chargethe defendant town; that she was, at the time able to this town. This is therefore to notify of the notice, resident in the plaintiff town; you to remove said paupers," &c. The overthat she required support, and that it had been seers of S. answered, "We acknowledge the afforded to her by the plaintiff's overseers; receipt of your letter, &c., stating that A. E. and that the same was charged to the defend- is in your town on expense, &c. We are satisant town; and requested her removal. Qein- fled that he has not gained a settlement in our cy v. Brclait/'ee, 5 Mass. 86 (1809). town. We therefore shall not pay any ex277. It is unnecessary that the notice should pense for hiis support." It was held, that the state the facts vwhich would show a legal settle- notice was sufficiently certain as to all the mient of the pauper in the defendant town, or paupers; but if insufficient, that the objection the l:Lanuer in which the settlement was ob- was waived by the answer. Orange v. Sudtainled. lb. Northfield v. Taunton, 4 Met. bry, 10 Pick. 22 (1830). 437 (1842). 285. A notice by the overseers of the town 278. A notice to a town to be charged with of A. to those of the town of B. tllat expenses the support of a pauper, signed by one over- had been incurred for the support of " 0. S., seer of tlie poor, by order of all the overseers, widow of G. S., who was an inhabitant of B." is sufficient. TWestminster v. Bernardston, was- held to be sufficient, and the meaning of 8 Mass. 104 (1811). And see 4 Mass. 275. tlese words was h1-ld to be, that the widow 279. Under the Rev. Sts. c. 46, ~ 19, (Gen. was an inhabitant of B. Uxbridge v. SecSts. c. 70, ~ 17,) a notification, signed by kon7c, 10 Pick. 150 (1830). "J. D., chairman of the board of overseers 286. Notice to the town of a pauper's settleof the poor" of a town, and sent to the over- ment that such pauper has beconle chargeable seers of the poor of another town, requesting in another town, is not notice that his wife them to renmove a pauper, is sufficient, if and children have-also become chargeable. otherwise in due form. Northfield v. Taun- Andover v Canton, 13 Mass. 547 (1816). ton, 4 Met. 433 (1842). 287. A letter from the overseers of the 280. Although a notification, given by over- poor of one town to those of another, to seers of the poor, stating that A. and his wife obtain a reimbursement of the expenses of and four children have become chargeable, supporting a pauper, was received and an&c., is defective, if A. have more than four swered. A mistake in this letter was corchildren in his family, yet if such notification rected in a second letter, which was received be answered, without objection to its gener- but not answered, referring to tile first. It ality, that objection is thereby waived. Ib. was held, that the second, which by itself was Commonwealth v. Dracut, 8 Gray, 455 (1857). an insufficient notice, light be taken in con PAUPERS, III. 59 neetion with the first, so as to constitute a 296. A notice sent by mail, the postage sufficient notice from the time when the being unpaid, was held not to be sufficient; second was received. Shelburnev. Rochester, although it reached the post office of the 1 Pick. 470 (1823). defendant town, and was there refused. Gro288. A notice respecting a pauper whose ton v. Lancaster, 16 Mass. 110 (1819). Clhristian name was Sally, calling her " Sarah 297. Where a notice to overseers was deor Sally," was held to be sufficient. Ib. livered to and received by one of them while 289. A notice that "E. S. and her three attending to his duties as a member of the legchildren " have become chargeable, sle islature, at a distance from his town, the dehaving four, was held to be too general as to livery was held sufficient. Walpole v. flopthe children, but sufficient as to E. S. Wal- 7.intion, 4 Pick. 358 (1827). poZe v. Hopkinton, 4 Pick. 358 (1827) 298. When, in consequence of notice to the 290. P. Baxter, a pauper, known in the overseers of the town of a pauper's settlement, town of L. by the name of P. La Barron, was they provide for him; if the pauper afterwards called, in a notice from that town to the town receives aid from the same town which gave of N., P. Labern, and the overseers of the the notice, a new notice is necessary in order poor of N., after ascertaining what person to charge the town of his settlement. Sidney was intended, returned an answer that P. v. Augusta, 12 Mass. 316 (1815). Labern had not a settlement in N. Held, 299. Where a pauper, after an action that the notice was insufficient. Lanes- brought by one town against another, to borough v. New Ashford, 5 Pick. 190 (1827). recover expenses incurred in his support, 291. A notice by overseers of the poor that continues chargeable to the plaintiffs, to susexpenses had been incurred for the support tain an action for the new expenses, brought of "the child of Miss H. WV., the daughter of pending the first, a new notice is required. T. W., who are inhabitants of the town of WValpole v. Ilopkinton, 4 Pick. 358 (1827). W.," was held to be sufficient to sustain an 300. If the town furnishing the supplies action against such town. Ware v. TWiliams- sue for them, it cannot again, without a new town, 8 Pick. 388 (1829). notice, recover for any expenses incurred 292. In an action by one town against after the commencement of the first action. another, to recover expenses incurred in the.iallowell v. l'arwich, 14 Mass. 186 (1817). support of a pauper, a notice signed by A. 301. The town of D., on receiving notice and B. as selectmen, they being overseers of from the town of P., that certain paupers, tlhe poor by virtue of their office of selectmen, whose settlement P. alleged to be in D., were was held sufficient. Ashby v. Luneniltrg, 8 supported in P., immediately paid the expense Pick. 563 (1830). that had been incurred by P. for their support, 293. A written notification as follows, " To removed part of the paupers to D., and made the overseers of the poor of the city of N. - provision for the support of the others in P. Gentlemen - Mrs. A. B. and three children, fdr the term of about forty days. Within two whose legal settlement is in your city, but months from the time of receiving said notice now residing in L., being in needy circum- froni P., the overseers of the poor of D. restances, has applied to this board for relief, plied thereto, denying that D. was liable to which we have granted and charged to your support said paupers, and refusing to pay P. city, and shall continue so to do until you for any further support of them. It was held, remove or otherwise provide for their support. that P. could not maintain an action against In behalf of the overseers of the poor of the D. for the subsequent support of said paupers, city of L. - C. D. Secretary," is sufficient, without first giving D. a new notice. Palmer under Gen. Sts. c. 70, ~ 17. Lynn v. New- v. Dana, 9 Met. 587 (1845). buryport, 5 Allen, 545 (1'63). 302. Where a town incurs expenses, under 294. Where notice was given in March, St. 1837, c 244, ~ 1, (Gen. Sts. c. 26, ~ 16,) 1811, of a pcauper's becoming chargeable, and on account of paupers having a legal settleagain in October, 1812, and an action was ment in another town, the former is bound to commenced in May, 1813, the defendant town give reasonable notice to the latter before comnwas held liable only for the expenses incurred meneing an action for such expenses, and the within three months before the last notice. selectmen of the respective towns are proper Townsend v. Billerica, 10 Mass. 411 (1813). officers to give and receive such notice. 295. A notice by the overseers of the poor Springfield v. Worcester, 2 Cush. 52 (1848). of one town to those of another that a person 303. On the 5th of May 1846, a poor person has become chargeable as a pauper, given having a legal settlement in W., fell ill of the within three morths after the expenses were small pox in S., and was there relieved in purpaid, but not within three months after they suance of the provisions of St. 1837, c. 244, ~ were incurred, is insufficient. East Sudbury 1, (Gen. Sts. c. 26, ~ 16,) and the selectmen v. Sudbury, 12 Pick. 1 (1831). of S. on the 25th of the same month gave no 60 PAUPERS, III. tice of the pat)per's sickness and of the expen- against them; the court refused to set aside ses incurred on his account to the selectmen the verdict f6r the purpose of permitting the of W..; it was held, that such notice was rea- defendants to pay the money found due by sonable and sufficient. lb. the verdict, and thus prevent a judgment, See HOusEs OF CORRECTION AND JAILS. which would bar them upon the question of settlement, as to any after expenses. Greene (3) Estopel2. v..3o'znouth, 7 Mass. 467 (1811). e(^ 11~l ~ 311. It is not a bar to an action by the town 304. If a town is duly notified under St. of A. against the town of B. to recover the 1793, c. 59, ~ 12, (Gen. Sts. c. 70, ~ 17,) and expenses of supporting a pauper, that the requested to remove a pauper, and if its over- plaintiffs had given notice to the town of C. seers have neglected for two months after the and claimed payment of the same sums; and notice and request to make any objection such notice not being answered according to thereto or to remove the pauper, the town is the statute, had recovered judgment therefor barred from contesting with the town giving against the town of C. Braintree v. liingthe notice the settlement of the pauper. Top2s- ham, 17 Mass. 432 (1821). hamn v. IIarpswell, 1 Mass. 518 (1805). And 312. Where the town of E., upon re'ceiving from showing that the pauper was of sufficient a notice that a person had become chargeable ability to support himself. Freeport v. Edge- in another town as a pauper, replied thereto cvrmbe, Ib. 459. denying its liability for his support, but no 305. Even although the pauper may have action was commenced thereon, and before in fact no settlement in any town within the the expiration of two years a second notice Commonwealth. Westminster v. Be'rnardston, was received in relation to the same pauper, 8 Mass. 104 (1811). to whichno reply was made within two months, 306. A town which voluntarily pays the ex- it was held, that the town of E. was not espenses incurred by another town for the sup- topped, by its neglect to make an earlier port of a pauper, on notice and without objec- reply, from contesting the settlement of the tion, is not thereby estopped from denying the pauper, in an action against it founded upon settlement of the pauper in an action brought the second notice. McL'shp72ee v. Edgartown, by the same town to recover for subsequent 23 Pick. 156 (1839). expenses incurred for the pauper. Leicester 313. An erroneous statement, made by the v. Rehoboth, 4 Mass. 180 (1808). Bridgewater overseers of the poor of the town of A., in a v. Dartmo!,th, lb. 273. Needham v. Newton, notification sent by them to the town of B., 12 Mass. 454 (1815). respecting the means by which a pauper 307. A voluntary payment by a town of a therein mentioned acquired a settlement in B., demand for the support of a pauper, after suit does not estop the town of A., in a suit brought, does not estop the town to contest against the town of B., to recover for the the settlement of such pauper's mother in support of such pauper, to show that he acanother suit brought by the same plaintiffs to quired a settlement in B. by different means recover for her support. Edgartown v. Tis- from those which were stated in the notificabu'ry, 10 Cush. 408 (1852). tion, unless that statement was made with a 308. A notice from one town to another, design to mislead. Nortohfielc v. Taunton, 4 claiming reimbursement for the expense of Met. 433 (1842). supporting a pauper, given pending an action 314. If a notification be sent by the overfor the recovery of such expense, or after its seers of the poor of a town which has incurred final decision, although unanswered, operates expense for the relief of a pauper found no estoppel on the town notified, to deny the therein, to the overseers of the poor of the settlement of the pauper with them. Newton town where his settlement is supposed to be, v. Randolph, 16 Mass. 426.(1820). requesting his removal, the answer, by Gen. 309. If the town notified returns within two Sts. c. 70, ~ 18, must be signed by some one nlonths a written answer, signed by one of its of the overseers; and, if it is not so signed, selectmen, who is also overseer of the poor, their town will be barred from contesting the denying the settlement of the pauper, it is not question of his settlement, although the pauestopped from afterwards disputing the settle- per is not actually removed there; and the ment. Bridgewater v. Dart'mouth, 4 Mass. answer will not be sufficient, if signed merely 273 (1808). by another person with whom the town has 310. Where, in an action against the town contracted for the support of its paupers for of A., for expenses incurred by the town of that year. Petersham v. Coleraine, 9 Alien, B. in the support of a pauper, it appeared that 91 (1864). the pauper's settlement was not in A., but 315. Overseers to whom such an answer is that the defendants were estopped from deny- sent do not waive the defect by sending a reing the settlement, and a verdict was given ply to the overseers of the other town, under PAUPERS, III. IV. V. 61 the belief that the answer came from one of 323; The provision in the Rev. Sts. c. 46, them, or by subsequently sending a new noti- ~ 15, (Gen. Sts. c. 70, ~ 14,) that " when any fiuation to them for the removal of tile same person shall be supported by a town, other pauper. Ib. than that in which he has his settlement, the town that is liable for his support shall not, in any case, be required to pay tierefor more IV. REuMOVAL OF PAUPERS. than at the rate of one dollar a week, provided 316. Under St. 1793, c. 59, ~ 10, a pauper is the town that is liable for the support of the not removable unless actually chargeable, or pauper shall cause hi to be removed, itin likely to become so, from one or the other of thirty cays frol tle time of receiving legal the causes mentioned in the statute. ]Walpole de n a to t c o r va the causes Imenltioned in the statute. Talpole notice that such support has beenll ifurnished,'," v. West Ccambridge, 8 Mass. 276 (1811). oes ot apply to the case of tle removal of 317. In a complaint, and also in an adjudica- a puper after his decease, thouh before is a uper iaf. Webster v. Uxbeidge, 13 Mget. 1his tion, for the removal of a pauper under that v Met. 19 statute, it was necessary to state the cause of (1847). the likelihood of his becoming chargeable. b. 324. n mputing the thirty days within 318. Thle alleged pacuper shouldc be sum- which a town liable for the support of a paumoned to appear at the examination before the pe, is required y Rev. Sts c. 46, ~ 15, (Gen. magistrate. But the pauper only can avail Sts. c. 70, ~ 14,) to remove him fromi the town himself of an omission to summon himi, and in which he.las received support, in order to neither of the towns contesting his settlemenlt exempt tle forle frol liability tlierefor at a can take advantage of such omission. Sh,9'ley 6 can take advantage of sucl omission. Shirley greatter rate than one dollar a week, the day v. 12eeo2zebur~g, 11 Mass. 379 (1814). on which notice is received that the support v. Lunenbury, 11 Mass. -079 (1814). has been furnished is to be excluded. Seekonk 319. An adjudication that a person is "the lis been funised is to be luded. Seeo proper poor" of a town is equivalent to an Reoboti, 8 Cush. 371 (1851). adjudication that he has his lawful settlement in such town. Ib. V. PENA LTY FOR BRINGING A PAUPER INTO 320. Under St. 1821, c. 94, ~ 3, (Gen. Sts. TY FOR BNGING A PAUPE INTO c. 70, ~ 14,) the removal of the pauper is a A condition precedent, which must be strictly 325. The offence intended to be punished performed; so that where a pauper, while ler by St 1793, c. 59, ~ 15, was that of bringing town was making preparations for her re- a poor person into a town, with intent to leave moval, removed of her own accord, it was him there, a charge and burden upon such held, that the town was liable for the reason- town; and one cannot be held liable under able expenses incurred for her support, al- that statute unless such intent is shown. though they exceeded one dollar a week. Greenfield v. Ceushman,, 16 Mass. 393 (1820). WT're v. - Wilbraham, 4 Pick. 45 (1826). Deerield v. Delano, I Pick. 465 (1823). 321. The actual removal of a pauper by the 326. An overseer of the poor does not intown in whicl he has a settlement, within cur the penalty by endeavoring to avoid a tlhirty days after legal notice of relief being clharge upon his town by aiding a pauper on furnished to him by another town, is a condi- his journey to a town in another state, altion precedent, which must be strictly per- though an agent of such overseer, deviating formed, in order to exempt the former town from his instructions, leaves the pauper in an (under St. 1821, c. 94; Gen. Sts. c. 70, ~ 14) adjoining town with a view to subject tlat from a greater expense than one dollar per town to expense. Deesfield v. Delano, 1 Pick. week; so that where such town, having, witlin 465 (1823). the thirty days, prepared to remove the pauper, 327. One does not incur the penalty by but, fincing him too ill to be removed with bringing a pauper from another state to a town safety, provided for his further relief and sup- in this state in which he has a settlement. port in tle place where he thenwas,bya contract Canton v. Bentley, 11 Mass. 441 (1814). Midwitli an individual, it was held, that the other lleborocugh v. Clarqk, 2 Pick. 28 (1823). town was nevertheless entitled to recover the 328. In an action by the town of S. to rewhole amount of its expenses reasonably in- cover a penalty for bringi-ng into and leaving curred on account of the pauper. Seekonk v. in the town a poor and indigent female, she not Attleborottgh, 7 Pick. 155 (1828). being lawfully settled therein, with intent to 322. A pauper having a settlement in a town charge the town with her support, (Gen. Sts. in this commonwealth, cannot lawfully be car- c. 70, ~ 20,) the defendant justified under an ried ly the overseers of the poor, against his order from the overseers of the poor of the will, to a place without the Commonwealth, to town of C., which recited that her lawful sethe tlere supported. Westfield v. Southwick, 17 tlement was in S. and that she was actually a Pick. 68 (1835). See Deerfield v. Greeefield, charge to C., and directed him, as constable, 1 Gray, 514. to remove her to S. It was held, that it was 62 PAUPERS, V. VI. not necessary that the order should recite years previous to the commencement of the such acts and proceedings on the part of action, or more than three months previous to the overseers as would warrant themr in issu- notice to the defendant town. lb. ing the drder, and that the defendant was not 334. The town of a pauper's settlement is bound to go behind the order and show that not liable to another town, in which the pauthe overseers had complied with the requisi- per becomes furiously insane and falls into tions of the law. Sturbridge v. Winslow, 21 distress, for the expenses of his removal to an Pick. 83 (1838). asylum for the insane in another state, and 329. It seems, that an action for the penalty for his support and medical attendance there, in such case should be brought in the name of even though a removal to some asylum be necthe Commonwealth. lb. essary for the comfort and relief of the pauper, and as a matter of economy and humanity. Dee-;field v. Greenfield, 1 Gray, 514 (1854). 335. The whole amount paid to the treasVI. LUNATIC PAUPERS AND STATE PAUPERS. urer of a state lunatic hospital by the town in Lunatic Paupers. which a lunatic pauper, having a settlement within the Commonweath, resided at the time 330. After the passage of St. 1834, c. 150, of his commitment, for his expenses at the hosthe treasurer of a state lunatic hospital could pital within six years before such payment, not maintain an action under St. 1797, c. 62, may be recovered of the town of his settle~ 3, or St. 1832, c. 163, ~ 4, against the town ment, by giving notice thereof within three from which the pauper was committed to the months, and commencing an action within two hospital,for his support therein previous to the years, after such payment; although part of passage of St. 1834, c. 150. Foster v. Wor- tile amount had once been paid by the Conmcester, 16 Pick. 71 (1834). monwealth to the hospital, on the supposition 331. Where an insane person, who is not that the lunatic had no settlement within the able to pay for his own support, is confined in Commonwealth, and since re-allowed by the a house of correction, under St. 1836, c. 223, hospital to the Commonwealth. Andover v. (Gen. Sts. c 74,) the town in which he has a Easthampton, 5 Gray, 390 (1855). Worcester settlement is liable for his support in such v. Sterling, Ib 393, note. house, if lie have no parent, master, or kin- 336. If money paid by the Commonwealth dred, liable by law to maintain him. TWatson for the support of a lunatic at a state lunatic v. Charlestoowa, 5 Met. 54 (1842). See Gen. hospital, on the mistaken supposition that he Sts. c. 74, ~ 6. had no settlement within the Commonwealth, 332. Under St. 1834, c. 150, (Gen. Sts. c. is retained by the Commonwealth,on discovery 73,) requiring the town in which a pauper lu- of the mistake, out of money due to the hosnatic resides at the time of his commitment to a pital, the treasurer of the hospital may recover state lunatic hospital to pay the expense of from the town in which the lunatic resided at supporting him while there, and giving to such the time of his commitment, unless the detown a remedy over against the town in which fendants prove that he had no settlement in such lunatic has a legal settlement, notice of the Commonwealth, for such support during the expense incurred,given by the former town the six years previous to the commencement to the latter within three months after the of the action. and for that only. Jeanison v. hospital had demanded payment, was held to Roxbiury, 9 Gray, 32 (1857). be seasonable notice to render the latter town 337. The amount paid by a town for the liable to the fornmer, if any notice is necessary, support at a state lunatic hospital of an insane the commitment having been made by a judge pauper committed by the judge of probate of probate. Worcester v. Milford, 18 Pick. may be recovered from the town of the pau379 (1836). per's settlement, within two years after the 332 a. A town whose overseers of the poor payment, although more than two years after send a lunatic pauper to a state lunatic hospital notice. Amnherst v. Shelburne, 11 Gray, 107 without any adjudication by any court or mag- (1858). istrate, may nevertheless recover their pay- 338. Notice by one town to another of a ments for his support, of the town of his legal claim made by the treasurer of a state lunatic settlement, under St. 1841, c. 77 (Gen. Sts. c. hospital for the past and future support of a 73, ~ 25). Such a sending is a "commlitment" pauper, is sufficient to support an action for ofthle pauperwithinthe meaningof thatstatute. the past expenses, (though not actually paid Cammington v. Wareham, 9 Cush. 585 (1852). until more than three months after,) but not 333. In an action for such expenses, by the for expenses of tile support of the pauper after town committing such lunatic pauper, against such notice. lb. the town of his settlement, no recovery can 339. In an action by the treasurer of a state be had for expenses incurred more than two lunatic hospital against a town, to recover the PAUPERS, VI. PENALTIES. 63 expenses of the support of a lunatic pauper, a vote was accepted by a vote of the town, are general verdict and judgmeht for the defend- not conclusive evidence against the defendant in a similar action between the same par- ants, but maybeshown to have been erroneous. ties, to which the defendant answered, among Commonwealth v. Cambridge, 4 Met. 35 other defences, that the pauper had no settle- (1842). q ment within the Commonwealth, is conclusive 346. A town, in stating an account with the evidence that the pauper had no such settle- Commonwealth as to the support of state paument during the period of furnishing the pers, is bound to credit the value of the pausupplies sued for in the former action, if that pers' labor only, and not any share of the question was submitted to the jury in that case. profits, if there be any, which the town derives Jennison v. West Springfield, 13 Gray, 544 from their labor. Ib. (1859). 347. Where a state pauper, for whose sup340. If a married woman has been commit- port provision is made in one town, voluntarily ted as a lunatic to a state lunatic hospital, by and without any cause of complaint, leaves the order of a judge of probate, the town of her place of such support and goes into another settlement may maintain an action against her town where he is not in any need of immediate husband to recover sums which it has been relief, and is there supported by an individual, obliged to pay for her support there, although the latter acquires no cause of action thereby he is in destitute circumstances. Brooefield v. against the last-mentioned town, under Rev. Allen, 6 Allen, 585 (1863). Sts. c. 46, ~ 18 (Gen. Sts. c. 70, ~ 16). Shearer v. Shelburnae, 10 Cush. 3 (1852). State Paupers. 348. The Coimmonwealth cannot recover of 341. A town is not bound to support an alien the town of a pauper's settlement, under St. married to a woman having her legal settle- 1855, c. 445, ~ 4, (Gen. Sts. c. 71, ~ 49,) the ment in such town. The town furnishing re- expenses of supporting the pauper at a state lief to such alien is entitled to be reimbursed allshouse more than three months next before by the Commonwealth. Cambridge v. Charles- notice tereof to the town. Commonwealt v. town, 13 Mass. 501 (1816). See Gen. Sts. c. Dracut, 8 Gray, 455 (1857). 71, ~~ 43, 44; Sts. 1861, c. 94; 1866, c. 234. 39. St. 1855, c. 445, (Gen. Sts. c. 71, ~ 342. A town has undoubtedly a right to the 49,) giving a remedy to the Commonwealth services of a state pauper residing therein, to against towns for the support of " any pauper aid in his support. WIilson v. Chzrch, 1 Pick. who shall become an inmate of the state alms26 (1822). Commornwecalth v. Canmbr-idge, 20 houses," includes the support, since the statPick. 272 (1838). ute took effect, of paupers who became inmates 343. The provision in St. 1823, c. 21, (Rev. of oe of the state alhoes before its psSts. c. 46, ~ 30,) that no male person over the sae. 1. age of twelve years and under the age of sixty 50. No action could be maintained under years, while of competent health to labor,St. 1846, c. 88, for the sull ort of state paushould be entitled to support as a state pau- prs committed to a workhouse, until the per, was designed to prohibit the support of county commissioners had settled and allowed persons at the public expense, who were of the accounts of the keeper of such workhouse. competent health and capacity to support South Danvers v. ssex, 1 Allen, 25 (1861). themselves. It was not intended to apply to such as, though able to perform some labor, yet were not able to perform enough for their entire support. Commonwealth v. Carmbridge, PENALTIES. 20 Pick. 267 (1838). 1. An action of debt qui tam for a pen344. Under Sts. 1830, c. 120, (Rev. Sts. c. alty may be brought against several joint 46, ~~ 31, 32,) if the earnings collectively of offenders. Boltelle v. Nourse, 4 Mass. 431 all the state paupers supported by a town, (1808). Burnham v. TVebster, 5 Mass. 266 (luring any year, together with the stated al- (1809). lowance made by the Commonwealth for each 2. In informations on penal statutes, for of them, did not exceed the expenses collec- forfeitures incurred by malfeasancde, against tively of supporting them all during the year, several, some of the defendants mlay be conthe town was entitled to the whole of such victed of the whole or of part of the offence earnings and allowances. lb. charged, although others of the defendants 345. In a suit by the Commonwealth against are acquitted. PARSONS, C. J., in Hill v. Daa town, to recover back money overpaid for vis, 4 Mass. 140 (1808). the support of state paupers, the accounts of 3. In a qui tam action for the penalty inthe agent of the town respecting those pau- flicted by St. 1788, c. 65, for a rescous of pers, although examined by a committee, who cattle distrained, the defendant might show reported that they were correct, and whose in evidence the illegality of the distress. 6-1 PElNALTIES - POLICE. elfcody v. Reab, 4 Mass. 471 (1808). But see by statute. Colburn v. SVstt, 1 Met. 232 Commonwealth v. Beale, 5 Pick. 514; Gen. (1840). Sts. c. 25, ~ 37. 13. The board of engineers of the fire de4. Where a statute gives a qzui tarn action partment of the city of Boston, to whose use for a penalty, several persons cannot join to- the penalties incurred by violation of Sts. gether in the suit as informers. Vinton v. 1833, c. 151, and 1837, c. 99, (regulating the TWelsh, 9 Pick. 87 (1829). storage, &c., of gunpowder in Boston,) are 5. WVhere a statute inflicts a penalty, partly made to enure, (except when any one of them to the use of the Commonwealth, and partly shall be examined as a witness in the proseto the use of an informer, the Commonwealth cution,) cannot authorize any person to sue may sue for the whole, no informer having for those penalties. Ib. commenced a qui tCam action therefor. Ilow- 14. Since St. 1837, c. 99, and the repeal of ard v. Colmemouccalh, 13 Mass. 221 (1816). the fourth section of St. 1833, c. 151, it seems, 6. An action may be sustained in this com- that the only mode of enforcing the penalties monwealth upon a judgment recovered in a imposed by those statutes, is by indictment, qui tam action in another state. IHealy v. or suit in the name of the Colmmonwealth. Root, 11 Pick. 389 (1831). lb. 7. Where an act not before subject to pun- 15. Formerly in an action qui tac the isihnent is declared penal, or is subjected to declaration must conclude with " centra forany specific penalty or forfeiture, by a statute, main statti," or something equivalent, and and a mode is pointed out in which it shall be it was not sufficient to say that an action had prosecuted, that mode alone can be pursued. accrued to the plaintiff' by force of laws and Commona wcoqNth v. Iowes, 15 Pick. 231 (1834). acts aforesaid." rlas7cell v. Moody, 9 Pick. 8. A statute providing that prosecutions for 162 (1829). violations of the by-laws of a city may be in 16. But since St. 1852, c. 312, (Gen. Sts. the name of the Comlnonwealth, is not uncon- c. 129,) it is unnecessary to allege that thle stitutional, notwithstanding that in prosecu- offences were committed against the form of tions in that form the defendant is not allowed tle statute. Levy v. Goswdy, 2 Alien, 320 costs on acquittal. Goddard, Petitioner, (1861). 16 Pick. 504 (1835). 17. The penalty incurred by a sale of coal 9. A statute gave a penalty, to be recovered in violation of St. 1855, c. 188, ~ 2, (Gen. by a qui laic action, one half to the.use of Sts. c. 49, ~ 189,) may be recovered in an tile prosecutor, and the other half to the use action of tort. In such action it is not necesof the town. A person having brought such sary to allege that the action is brought by an action, afterwards compromised it by re- the plaintiff as well for the town in wlich tlle ceiling a sumn of money of the defendant and sale was made as for himself, or to allege or having tle action entered " neither party" on prove that there was at the time of the sale a the docket. It was held, that the town could sworn weigher of coil therein. Ib. See not maintain an action against the plaintiff in Libby v. Downiey, 5 Allen, 300; Sts. 1863, c. the qui tarm suit to recover a part of the 171; 1865, c. 191. money received by him. Rayinhamn v. Rounse- 18. An informer may sue in his own name sile, 9 Pick 44 (1830). for a penalty imposed by statute, to be re10. Thle settlement of the qzi tam action, covered " one half to the use of tlie said town, being made without the leave of the court, is and the other half to any person who shall no bar to another action for the same penalty. prosecute therefor;" and need not aver that lb. the prosecution was authorized by the town. 11. In an action commenced by acity treas- Nye v. Lamphere, 2 Gray, 295 (1854). urer against one who has fraudulently trans- 19. A penalty for a violation of a legal byferred shares in a corporation in order to law of a town against obstructing its streets, avoid taxation, to recover the penalty imposed although payable into the town treasury, may by St. 1843, c. 98, ~ 3, (Gen. Sts. c. 68, ~ 23,) be recovered by complaint before a justice of "one half tor the use of the city, and the other the peace residing in the town. Hall v. Kent, half for the use of tlie person furnishing the 11 Gray, 467 (1856;). necessary evidence in the case," a nonsuit may be entered by agreenent of the plaintiff, 1 and the defendant, against the objection of' the person who furnished the evidence. Wheeler v. Godlding, 13 Gray, 539 (1859). P E. See St 1864, c. 201, ~ 6. 1. A police officer of the city of Boston, 12. As a general rule, a common informer who arrests an intoxicated person, while cannot maintain an action for a penalty, guilty of disorderly conduct, and releases him unless power is given to him for that purpose on his promise to go directly home, may law POLICE - PUBLIC BUILDINGS - PUBLIC LANDS. 65 fully retake him, on his going into a bar-room PRESCRIPTION. before he is out of the officer's sight. Con- See PUBLIC LANDS, 5, 6; SEWERS AND mzonwealth v. liastilgs, 9 Met. 259 (1845). DRAINS, 7; WAYs, 86-101. 2. L. was appointed by the mayor and aldermen of Boston, under St. 1838, c. 123, "a police officer (at the National Theatre) PUBLIC BUILDINGS. with the power of a constable, except the power of serving civil process." Held, that 1. A town my erect a townhouse of sufif L's power was limited to a part of the city, icient capacity for all the business which it yet that it was not limited to'tle space within may have occasion to do in such a building, the walls of the theatre, but extended to the d toma in its erection make suitable provienvirons, so far as the special vigilance of an sion for its prospective wants; and if the officer might be required to keep the peace building contains rooms not wanted for the and preserve order among persons frequenting time being for municipal business, the town the theatre, or carrying others to and from it, maylet them temporarily, or allow them to or supplying refreshments; and also to all be used gratuitously. And the condition of shops, stalls and stands, kept in the vicinity, a deed of land to the inhabitants of a town, for the purpose of supplying refreshments. lb. which provides that the same " shall not be 3. The law does not require tht a police used for any other purpose than as a place officer for a town-house for said inhabitants," is not suant to St. 1838, c. 123, should be sworn to broken by the erection thereon of a townthe faithful discharge of the duties of his house with a hall in the second story, which office; and therefore a person indicted for has been used for miscellaneous purposes, and assaulting such police officer, and obstructing rooms upon the sides of the entrance, whi him in the discharge of the duties of his office, have been let and used for slops, and other cannot defend by showing that he had never purposes not connected with municipal busibeen sworn. Commonwealth v. Dugan, 12 ness, and the construction and use for several Met. 233 (1847). years of a lock-up under the building. French 4. An appointment of a police officer by the v. Quinscy, 3 Allen, 9 (1861). selectmen of a town, " to continue in said 2. When the additions and improvements office till the next annual town meeting," is upon a court house and jail, necessary for a valid appointment during their pleasure, the convenience and accommodation of all under St. 1851, c. 162, (Gen. Sts. c. 18, ~ 38,) courts, officers and persons whose duty reauthorizingf selectmen to appoint police offi- quires them to resort there, and for the prescers, who shall hold their office during the ervation of the records and public papers of pleasure of the selectmen by whom they are the county, would exceed in expense the appointed. Commonwealth v. Higgins, 4 amount which the county commissioners are Gray, 34 (1855). authorized by law to expend, it is their duty 5. A police officer arresting a person with- to submit to the legislature a statement of the out a warrant, under St. 1855, c. 215, ~ 23, amount required, with evidence of the exifor being intoxicated in a public street, is not gency for such improvements. DistrictAttorliable criminally for an assault, if he has hey v. Bristol, 14 Gray, 138 (1859). reasonable cause to believe such person to be intoxicated, although he is not in fact intoxicated. Commonwealth v. Presby, 14 Gray, 65 (1859). See Gen. Sts. c. 86, ~ 40; Com- PUBLIC LANDS. monwecalth v. O'Connor, 7 Allen, 584, 585. 1. The inhabitants of a town may take 6. A city ordinance giving to police officers lands by gift or devise, and hold them in their a fixed salary, and requiring them to pay over corporate capacity. Worcester v. Eaton, 13 to the city the fees received by them as wit- Mass. 371 (1816). nesses, or for penalties in criminal cases, or 2. Towns have authority to alienate their for the service of any criminal process, or lands by vote without a deed. Springfield v. for any services in behalf of the city, is not Miller, 12 Mass. 415(1815). contrary to public policy. TWorcester v. 3. A grant of lands by vote of a town is by Walker, 9 Gray, 78 (1857). our laws good without a seal. Adams v. See ACTIONS, 10, 11, 17; REWARDS, 3; Frothingham, 3 Mass. 352 (1807). SpringlWAYS, 285. 9field v. Miller, 12 Mass. 415 (1815). Damon WAYS, 28-. - __ v. Granhy, 2 Pick. 351 (1824). Thomas v. HJarshfield, 10 Pick. 364 (1830). It is not POUNDS. necessary, in order to sustain such grant, to show any consideration for the grant. Thomas See FIELD DRIVERS, &C. v. Hlarshfield, ubi suprsa. i66 PUBLIC LANDS - RAILROADS. 4. Towns adjoining on, or extending across of the common lands within its assigned limits, a navigable river, may own the soil of the in all cases where there was not a separate flats or even of the channel, if a grant has body of proprietors to whom such lands were been obtained from the government. Coolidge granted. HOAR, J., in Iest Roxbury v.Stodv. Williams, 4 Mass. 140 (1808). * dard, 7 Allen, 169 (1863). 5. The use of land on the sea shore by the ANNEXATION ND DIION T individual inhabitants of a town, as a landing- 8 place, does not tend to show a possession by the town in its corporate capacity, but, on the contrary, is adverse to the claim of such a RAILROADS possession. Green v. Chelsea, 24 Pick. 71 (1836). 1. Under Rev. Sts. c. 39, ~ 67, (Gen. Sts. 6. An averment of a lost grant from the c. 63, ~ 48,) providing that every railroad corowner of a beach to the inhabitants of a town, poration "may raise or lower any turnpikeor in their corporate capacity, to the use of all way for the purpose of having their railroad the inhabitants thereof, to take sea-weed for pass over or under the same," a railroad cormanuring their lands, is not supported by poration may raise a turnpike road for the evidence that individual inhabitants of the purpose of constructing the railroad across it town had been accustomed, from a very early upon the same level. Newburyjport Turnpike period of time, to take sea-weed from such v. Eastern Railroad, 23 Pick. 326 (1839). beach for that purpose. Sale v. Pratt, 19 2. A railroad corporation was authorized Pick. 191 (1837). by a statute passed March 17, 1841, (St. 1841, 7. A grant of one hundred acres of land, c. 108,) to extend its road across H Street, to be "left common for the use of the town which was a section of the Middlesex Turnfor building stones," constituted a grant of the pike. The same statute subjected the corporaquarry to the town, not for their use in a cor- tion to all the duties, liabilities and provisions porate capacity, but for the use and benefit of contained in Rev. Sts. c. 39, and other statutes all those who were or might become inhabitants relating to railroad corporations, and also rethereof. Green v. Putnam, 8 Cush. 21 (1851). quired that said extended railroad should cross 8. A city is not estopped to claim land which H Street under a bridge. By a statute passit owns, by the wrongful act of its assessors ed March 13, 1841, the Middlesex Turnpike in taxing it to a person who had no title to or Corporation was dissolved, and the surrender possession of the same, or by a collector's of its charter accepted, to take effect on and sale for non-payment of such tax. Rossirev. after June 1, 1841. In September, 1842 the Boston, 4 Allen, 57 (1862). county commissioners laid out and established 9. A proposal was received from the plain- H Street as a public highway, and ordered the tiff by the superintendent of public lands of towns of C. and S., in which that part thereof Boston for the purchase for $ 600 of a tract over which the railroad.had been extended, of land belonging to the city. A sub-com- was situate, to erect a bridge over the track of mittee of the land commissioners subsequently the railroad across II Street. It was held, reported favorably upon this proposal to the that the railroad corporation was bound by St. full board, who thereupon passed the follow- 1841, c. 108, and Rev. Sts. c. 39, to erect and ing vote: " That we recommend on the p~art maintain said bridge, and that the towns of of the board of land commissioners the sale C. and S. were entitled to a writ of mandaand transfer by quitclaim deed, for the sum of mus requiring the corporation so to do. Cam$ 600 cash, of all the right, title and interest bridge v. Charlestown Branch Railroad, 7 the city of Boston may have in and to the Met. 70 (1843). lot," &c. to the plaintiff. This vote was sent 3. A bridge with lateral embankments, to the mayor for his approval, and he approv- erected by a railroad corporation for the pured the same four months afterwards, but no pose of raising a highway and carrying it over further action was taken by the land commis- their road, is as much a part of the structure sioners. Ield, that there was no contract authorized by their charter, as the railroad between the plaintiff and the city which could itself; and Zany person injured by the erection be enforced in equity, and that the vote of of such bridge and embankments, is entitled the land commissioners did not import a con- to recover his damages thereby occasioned, in tract, though approved by the mayor, but was the manner provided by the Rev. Sts. c. 39, ~ only an authority to the proper officers to ex- 56 (Genm Sts. c. 63, ~ 21). Parker v. Boston ecute a deed, which was to constitute the l Maine Railroad, 3 Cush. 107 (1849). contract when executed and delivered. Dun- 4. In order to authorize a railroad corporaham v. Boston, 12 Alien, (1866). tion, under the provisions of the Rev. Sts. c. 10. It seems, that under the colony laws a 39, ~~ 67, 68, to raise or lower any way, it is town by its establishment became the owner not necessary that a previous agreement there RAILROADS. 67 for should be made with the selectmen of the 9. County commissioners, in the exercise town in which such way is situated, or that of the power conferred upon them by St. there should be a previous determination of 1842, c. 22, (Gen. Sts. c. 63, ~~ 53, 54,) the county commissioners as to whether any relative to the raising or lowering of a turnand what alteration should be made. The pike, highway or town way, are to make a railroad corporation are first to give notice to specific order, and not an order in the alterthe selectmen of their intention to raise or native. Roxbury v. Boston 4 Providence lower the way in question: the selectmen are Railroad, 6 Cush. 424 (1850). then within thirty days to notify the corpora- 10. The selectmen of a town, or mayor and tion of the alterations, if any, which they aldermen of a city, in all their proceedings require. If the selectmen and the corporation under St. 1842, c. 22, (Gen. Sts. c. 63, ~~ 53, shall not agree what alterations are neces- 54,) act in their official capacity for such sary, application may be made by either to the town or city, and as their agents. lb. county commissioners, to determine the same; 11. A town is not responsible for a defect and if the selectmen give no notice to the cor- or want of repair in a bridge, whereby a poration as to what alterations they require, public highway crosses a railroad, the proprithe presumption is that they require none, etors of which are bound by law to keep the but leave the whole matter to the corporation. bridge in repair. Sawyer v. Northfield, 7 lb. See now Gen. Sts. c. 63, ~~ 47, 48; St. Cush. 490 (1851). 1865, c. 239. 12. A railroad corporation, which proceeds 5. In order to entitle the abutters on a high- under Rev. Sts. c. 39, ~ 67, (Gen. Sts. c. 63, way which has been raised or lowered by a ~ 48,) after notice to the mayor and aldermen railroad corporation, under the provisions of of a city and on terms agreed upon between the Rev. Sts. c. 39, ~~ 67, 68, to recover the the corporation and the mayor and aldermen, damages therefor to which they may be enti- to raise a street, that its railroad may pass tied, it is not necessary that the selectmen of under the same, acts by virtue of its indethe town should have authorized or directed pendent corporate powers, and not as the such alteration to be made. lb. agent or servant of the city; and such corpo6. The remedy for an injury to an adjoining ration is primarily liable, to third parties, for estate occasioned by the alteration of a high- damages thereby caused to their estates. way, for the purpose of raising or lowering Gardiner v. Boston 4 Worcester Railroad, the same, by a railroad corporation, is not by 9 Cush. 1 (1851). an action against the town, but by a proceed- 13. A bond of indemnity taken by the city, ing against the corporation for damages, under and the appointment of a superintendent to Rev. Sts. c. 39, ~ 56 (Gen. Sts. c. 63, ~21). Ib. take care of the public interests in the execu7. A bill in equity, to compel a railroad tion of this work during its progress, are prucorporation to raise or lower a highway, in dent measures, which do not change the compliance with an order of county commis- character of the work, or the general liability sioners, may be brought by the town or city of the company. Ib. within which such highway is situated; 14. If a railroad company unreasonably although the case is one in which the mayor neglect to comply with the order of county and aldermen, or selectmen, may, under St. commissioners allowing the company, upon 1842, c. 22, (Gen. Sts. c. 63, ~~ 53, 54,) on their petition under St. 1846, c. 271, (St. the neglect or refusal of the corporation to 1865, c. 239,) to cross a highway upon a level, carry the clecision of the commissioners into the only remedy is for the penalty given by effect, proceed to do the work, and maintain section fourth of that statute, or by a proceedan action against the corporation to recover ing in equity under St. 1849, c. 222, ~ 5 (Gen. the cost thereof. Roxbury v. Boston c Sts. c. 63, ~ 63). The commissioners cannot Providence Railroad, 6 Cush. 424 (1850). assess damages, or issue a warrant for a jury, 8. The bill in equity provided by St. 1849, in such a case. Vermont L Massachusetts c. 222, ~ 5, (Gen. Sts. c. 63, ~ 63,) for enforc- Railroad v. Fraan7lin., 10 Cush. 12 (1852). ing the orders of county commissioners res- 15. The legislature may grant authority, pecting the manner of constructing a railroad either by express words or necessary impliwhere it crosses a public highway, can be cation, to construct a railroad on and along maintained only by the mayor and aldermen an existing public highway. Springfield v. of the city, or the selectmen of the town, Connecticut River Railroad, 4 Cush. 63 within which the way is situated, and not by (1849). any individual inhabitant of such city or town, 16. Where a railroad corporation, under a although he is owner in fee simple of the land general grant of power,'lay out and construct over which the way is located. Brainard their road over and along a public highway, v. Connecticut River Railroad, 7 Cush. 506 the town within which such highway is (1851). situated, may proceed in equity against the 68 RAILROADS. corporation in the supreme judicial court, with the first order. Commonwealth v. Verunder its general jurisdiction in matters of mont c Maissachusetts Railroad, 4 Gray, 22 nuisance, in order to ascertain whether such (1855). laying out and construction are or are not 21. Under Rev. Sts. c. 39, ~ 69, town or within the power granted to the corporation; city authorities had no power to lay out a and it is immaterial, in this respect, whether highway across a railroad, on a level therethe way in question be a highway, properly with; and a railroad company is not estopped so called, or a town way. lb. from objecting to the exercise of such power 17. A railroad, constructed over a highway by an agreement made by it with former ownin such a manner as to obstruct public travel, ers of the land, which contained a stipulation is liable to indictment as a nuisance, notwith- for a right of way, to be used by such owners standing St. 1849, c. 222, ~ 4,(Gen Sts. c. 63, and their assigns, at the place where the high~ 62,) conferring on county'commissioners way was afterwards laid out. Boston 4 Maine "the original jurisdiction of all questions Railroad v. Lawrence, 2 Allen, 107 (1861). touching obstructions to turnpikes, highways See now Gen. Sts. c. 63, ~~ 57 { seq. or town ways, caused by the construction or 22. A railroad laid out over and along a operation of railroads." Commonwealth v. highway in such a manner as to obstruct it, Nashua ~" Lowell Railroad, 2 Gray, 54 (1854). without express statute authority or necessary Commonwealth v. TVermont 6 Maassachusetts implication, is liable to indictment as a nuiRailroad, 4 Gray, 22 (1855). sance. Commonwealth v. Old Colony ( Fall 18. Where selectmen, besides requiring River Railroad, 14 Gray, 93 (1859). other alterations to be made by a railroad 23. A railroad corporation, which has duly corporation in a way over which their railroad located its road across a public highway, and passed, pursuant to Rev. Sts. c. 39, ~ 67, acquired a right to construct it there at a cer(Gen. Sts c. 63, ~ 48; St. 1865, c. 239,) tain grade, without any restriction as to the ordered a draw to be made in the railroad for number of tracks or the place where they the accommodation of public travel on the should be laid, is authorized to lay and mainway, it was held, that the railroad corporation, tain as many tracks as are essential to the having built their road without such a draw, convenient transaction of its business; and so as to obstruct public travel, were liable to for that purpose may make any necessary indictment for a nuisance. Ib. alteration in the surface of the highway. 19. An order of county commissioners, Commonwealth v. Hartford 4 New IHaven passed on.the petition of the mayor and alder- Railroad, 14 Gray, 379 (1860). men of a city, or selectmen of a town, under 24. An order of the mayor and aldermen of St. 1842, c. 22, (Gen. Sts. c. 63, ~~ 53, 54,) the city of Boston, passed on a petition of the which determines that the raising of a high- owner of land taken by a railroad corporation way at a place named, where it is crossed by for the construction of their road, for the asa railroad on a level, so as to pass over the sessment of his damages, "that this board railroad, is necessary for the security of the will proceed no further in the premises, and public, without defining the height above the that the respondents be hence discharged and railroad to which the highway shall be raised, go thereof without day," is a final adjudicathe grade of the ascent, the mode and material tion that the petitioner has sustained no of the structure, or the time within which it damage, and warrants him in applying to shall be made, is too indefinite to be specifi- have his damages assessed by a jury. Smitth cally enforced by this court in equity under v. Boston, 1 Gray, 72 (1854). St. 1849, c. 222, ~ 5 (Gen. Sts. c. 63, ~ 63). 25. A mandamus will not lie to compel the Roxbury v. Boston ~ Providence Railroad, 2 mayor and aldermen of the city of Boston to Gray, 4(60 (1854). revise their decision upon the merits of the 20. A railroad corporation were authorized claim of an owner of land for damages susby the county commissioners to raise a high- tained by the construction of a railroad. lb. way at a certain grade so as to cross their 26. An open and travelled street in a city, road on a level, and raised the road accord- though not located by the municipal authoriingly, but at a steeper grade. The commis- ties, is a "travelledplace," within the meaning sioners subsequently, on the application of of St. 1849, c. 222, ~ 2, (Gen. Sts. c. 63, ~~ the towns between which the highway lay, 85, 86,) which provide for the erection of modified their former order by postponing the sign-boards and gates at crossings. Whittime within which it should be complied with, taker v. Boston ~ Maine Railroad, 7 Gray, and assessed damages to the towns. It was 98 (1856). See St. 1865, c. 239. held, that the part of the second order which 26a. A city is not liable in an action at assessed damages was unauthorized, and that law for an injury to a private person by the the whole order was therefore void, and would obstruction of the flow of the water of a not justify the corporation in not complying stream, caused by a bridge constructed by a RAILROADS - RECO SI DERATION - RECORDS. 69 railroad corporation, under the authority of of the city maintain such bill. Cambricdge v. its charter; or by a bridge constructed by the Cambridge Railroad, 10 Allen, 50 (1865). city, if the bridge when built was sufficient to 30. The power of making regulations conallow the free flow of the water as the stream cerning the removal of snow from the tracks then was, or with such changes as were likely of street railways is given by law exclusively to be produced by natural causes alone, to the mayor and aldermen of the cities and although it has proved insufficient for this the selectmen of the towns in which such purpose, with such changes as have been pro- tracks are located; and in the exercise of this duced by the exercise by a railroad corpora- power they may prohibit the removal of snow tion of its chartered rights, or by thie wrongful by the railway company at any and all times acts of individuals. FWheeler v. liorocester, 10 and places, when in their judgment tile public Allen, 591 (1865). interests may require it. Unzion Rcilzu'cy v. See ACTIONS, 28; TAXES, 15, 17, 222; Cambridge, 11 Allen, (1866). See St. WAYs, 207, 268-272, 277, 305, 397-399, 413, 1864, c. 229, ~ 16. 414, 424, 425, 461-469. 31. It is no objection to an order of the mayor and aldermen regulating the removal Street Railwacys. of snow from the track of a street railway, 27. A franchise to construct, maintain and that it requires and permits such removal by 27. A firanchise to construct, maintain and the lw company nly when it is allowed use a street raiway over a highway, author- the railway company only when it is allowed use a street railway over a highway, author- ^ ^ / bedesignated by the izes the grantees to drive their cars upon and in a manner to be designated by the thize the grack nt teo draie tpeed usual for superintendent of streets or other officer havvthires trawk at he rate of sp ed usual fof ing charge of the condition or repair of streets. vehicles drawn by horses for the carriage of 1 passengers, so far as this right can be enjoyed without preventing other vehicles on See TAXES, 7. the hiighway fromn moving at their usual rate of speed. Comzonwealth v. Tem2ple, 14 Gray, 69 (1859). 28. The driver of a heavily loaded wagon RECONSIDERATION. on a highway, having one wheel in the track By the reconsideration of a vote, by a town of a street railway established by authority of meeting, at an adjournment of the same the legislature, and moving at the usual rate meeting by which it was passed, and before of-speed of such wagons, but at a slower rate it has been acted on, such vote becomes than street railway cars usually move, is revoked and ceases to have tny effect, as if bound to turn off from the track at the request it had never been passed. Withintgton v. of the conductor of a car owned by the pro- Harvard, 8 Cush. 66 (1851). prietors of the railway, if there is room to do, so, although it is usual and much easier to See APPOPRIATIONS, 21; CONTRACTS, 4; drive such wagons with one wheel upon the OFFIcERS, 7; TAXES, 204; TRUSTS, 2. railway track. lb. 29. A provision in the charter of a street railway company that, at any time after the expiration of ten years from the opening of RECORDS. any part of the road for use, a city may pur- 1. An ancient book of records of the town chase of the corporation so much of the cor- of Boston, entitled the Book of Possessions, porate property as lies within its own limits, which, although not regularly authenticated, at a specified price, does not give to the city has been preserved among the records of tile any such interest or right as to enable it to town, was held (there being nothing to ilamaintain a bill in equity to restrain the corpo- peach its verity) competent and sufficient ration from raising passenger fares upon their evidence to establish the ancient titles under road, in violation of conditions expressly as- allotments from the town. Rust v. Boston sented to by the corporation, and imposed Mill Corp. 6 Pick. 158 (1828). upon them by the mayor and aldermen of the 2. An ancient bo.ok, lept among the records city when granting to them the power to of a town, purporting to be the "selectmen's locate and build a new line of their railway book of accounts with the treasury of the through additional streets, if they are guilty town," is admissible in evidence of the facts of no fraudulent intent to destroy or depre- therein stated; and where the selectmen were ciate the value of the corporate property; at the same time assessors, an entry, in such although the value of tleir franchise and book, of a credit, by an order in favor of tile property will be thereby diminished, and collector, for a discount of a particular indithe portion of their railway constructed under vidual's tax, was held to be evidence of an such authority will perhaps be exposed to abatement of the tax of such individual. Bos. forfeiture. Nor can the mayor and aldermen I ton v. Wteyzoutth, 4 Cush. 538 (1849), 70 RECORDS -- EPRESEKTATIVES, ETC. - REWARDS. 3. It is competent for a town clerk to amend covers a person setting fire to a building, and a record made by him when in office under a prosecutes him to conviction, is not entitled former election, such amendment being con- to claim a reward offered by the city governsistent with truth. W4elles v. Battelle, 11 Mass. ment for the detection and conviction of an 477 (1814). See 2 Allen, 594, 595. incendiary. Pool v. Boston, 5 Cush, 219 4. One who was formerly a town clerk, but (1849). See Davies v. Butrns, 5 Allen, 349. is no longer in the office, cannot amend a 4. The mayor and aldermen of the city of town record made by him when town clerk. Boston passed an order,'that a reward of -lcart'well v. Littleton, 13 Pick. 229 (1833). ~ 500 be offered to any person who shall give 5. One chosen town clerk is competent to information so that any person shall be conmake a record of his own election and quali- victed of setting fire to any building, for the fication. Briygs v. MurJdock, 13 Pick. 305 purpose of burning the same." An advertise(1832). ment was inserted in the city newspapers See OFFICERs, 25, 30; TAXES, 116,118, 231. which were published on the next morning after said order was passed, reciting that sundry houses and other buildings had been recently set on fire, and offering a reward of REPRESENTATIVES IN TIHE GEN- 500 to any person who shall give informaERAL COURT. tion so that any perpetrator of these outrages Under the twenty-frst article of amend- shall be convicted." This advertisement purent ofe onstitution of Massachusetts, t ported to be "by order of the mayor and aldermayor and alldermen of Boston are empow- Dmen," and was signed by the city clerk. fleld, that the advertisement must be taken to be erect to apportion the number of representa-ust to be tives assigned to Suffolk county among t the oHl cial act of the ayor and aldermen. representative districts formed by them, under eld, also, that th e order and the advertisement were to be construed together, as parts said article, as well as to form the districts; of the same transaction, and that by the true of the same transaction, and that by the true and their doings and returns in the premises o thereof, are conclusive, and cannot be revised by the construr tion th the reward tws offered house of representatives in judging of that would lead to theetection of offences previously committed, and returns of elections and qualifications of its tio of offences previously committed, and members. Opinion of the Justices, 10 Gray, not of o s. - /";1') (185S8. qman v. Boston, 5 Met. 56 (1842). 6130^~ (1858). -~5. In an action against a town to recover a See ELECTI*S, 1-6; JURIES, 7. reward offered by its selectmen, it is not sufficient to allege that the selectmen made the offer of reward, without alleging that they did it in behalf of the town. Coddinlg v. MansRENWARDS. field, 7 Gray, 272 (1856). 1. The city of Boston having offered a re- 6. On an offer of reward "to any person ward for the detection and conviction of any who will give information to the subscribers person who might be guilty of feloniously that will lead to the detection and conviction setting fire to any building in said city; and of the person who set fire to the dwellingthe plaintiffs claiming the reward; on the house ofJ.S.," adeclaration which alleges that ground of the detection and conviction of a the plaintiff arrested such a person, and gave person for wilfully and maliciously setting fire information thereof to the defendants, whereto and burning, in the daytime, a building, upon such proceedings were had that the formerly used and occupied as a carpenter's prisoner was convicted, is insufficient. lb. shop, but then in the process of being alter- 7. An offer of reward for "the apprehened and made into a dwelling-house, and not sion and conviction of any person who shall yet finished; it was held, that the court could set fire to any building within the city of Roxnot infer, from this description, that the burn- bury " is not void for ambiguity; and entitles ing' was felonious. Mead v. Boston, 3 Cush. a person to the reward, who gives information 404 (1849). to the police officers of the city, upon which 2. In an action to recover a reward for the an incendiary is arrested, and which has a detection and conviction of any person who tendency to procure ultimate conviction, and may be guilty of a certain crime, the record without which a conviction would not have of conviction is not conclusive evidence of been had, if the incendiaryhad not, while the guilt of the persQn convicted, but it may under arrest, confessed his guilt; although be shown in defence that he should not have such person is not called as a witness on the been convicted. Ib. trial, and does no act after the arrest, and the 3. A watchman of the city of Boston, who confession is given in evidence on the trial, while in the discharge of his duty as such, dis- and perhaps is the ground of the conviction. REWARDS - RIOTS — SCHOOLS. 71 Crawshlawy v. Roxbtury, 7 Gray, 374 (1856). authorize him to call out the volunteer militia See Besse v. Dyer, 9 Allen, 151. to aid the civil authority in enforcing the 8. An offer of reward, made by the mayor laws. Ela v. Smith, 5 Gray, 121 (1855). in behalf of a city, and subsequently ratified 5. The volunteer militia, when called out by the city council, is binding on the city, by the mayor of a city under St. 1840, c. 92, although not so ratified until after the per- ~ 27, (St. 1866, c. 219, ~ 141,) on the ground formance of the service for which the reward that a mob or riot is threatened, may, before is claimed. lb. such riot or mob has actually taken place, be 9. The mayor of the city of Boston baused ordered by the mayor to repair to a particular an advertisement to be published, for about a place, and there perform any specific duty, week, in the daily papers of the city, stating such as clearing the streets, which in his that there had been a frequent and successful judgment is necessary to prevent the threatrepetition of incendiary attempts, and offering ened mob or riot. Ib. a reward, to be paid by the city, for the ap- 6. Officers of militia, called out by a civil prehension and conviction of any person en- magistrate to aid the civil authority in engaged in these attempts. feld, that this was forcing the laws, cannot be entrusted with not to be regarded as an unlimited offer, con- discretionary power as to the measures to be tinning till it should be formally withdrawn, adopted; but can.only direct the details of the but as limited to a reasonable time; and that mode of executing specific orders received it ceased to be an offer after the lapse of three from the civil magistrate. Ib. years and eight months. Loring v. Boston, 7. The power to call out the militia to pre-.7 Met. 409 (1844). vent a threatened riot is not affected by the 10. The city council may bind the city by anticipated cause of the riot being the enforcean offer of reward of a greater amount than ment of an unconstitutional law. Ib. that which the mayor and aldermen are 8. Civil magistrates and military officers, authorized by statute to offer. Crawshaw v. giving unlawful orders to militia called out to Roxbury, 7 Gray, 374 (1856). See Gen. aid the civil authority in enforcing the laws, Sts. c. 170, ~ 7; St. 1866, c. 9. are liable for acts done by the militia within 11. Selectmen of a town have no authority the fair scope of the orders, but not for acts to bind the town by an offer of a reward for unauthorized by them. Ib. the apprehension and conviction of a person 9. Although the constitution provides that who has not been charged with a crime by a "the military power shall always be held in complaint or indictment. Day v. Otis, 8 an exact subordination to the civil authority, Alien, 477 (1864). But see now St. 1866, c. 9. and be governed by it," it is does not follow from this that the military force is to be taken wholly out of the control of its proper officers. They are to direct its movements in RIOTS. the execution of the orders given by the civil 1. To disturb another in the enjoyment of officers, and to manage the details in which a a lawful right is a trespass; and if this is done specific service or duty is to be performed. by numbers unlawfully combined, the same But the service or duty must be first preact is a riot. Commnonun'ealth v. Runnels, 10 scribed and designated by the civil authority. Mass. 520 (1813). BIGELOW, J., in Ela v. Smith, 5 Gray, 140 2. A riot must be committed by three per- (1855). sons at least, and the offence cannot exist without acting in concert and unlawful combination. Commonwealth v. Porter, 1 Gray, S S. 480 (1854). Commonwealth v. Berry, 5 1. Persons who reside on lands purchased Gray, 93 (1855). by or ceded to the United States for navy 3. In order to constitute a riot, rout or un- yards, forts or arsenals, where there is no lawful assembly, there must be an unlawful other reservation of jurisdiction to'the state assembling together; although the assembly than that of a right to~ serve civil and crimiTmay not have been unlawful on the first corn- nal process on such lands, are not entitled to in'g together of the parties, but becomes so by the benefits of the common schools for their their engaging in a common cause, to be ac- children in the towns in which the lands are complished with violence and in a tumultuous situated. Opinion of the JlTstices, 1 Met. manner. Coaemonwealth v. Gibney, 2 Allen, 580 (1841). 152 (1861). 2. An indictment against a town for not 4. The determination of the mayor of a city providing a schoolmaster, which did not conthat a riot or mob is threatened, is conclusive elude " against the form of the statutes," &c., that the exigency existed, required by St. was held to be insufficient even after the de1840, c. 92, ~ 27, (St. 1866, c. 219, ~ 141,) to fendant had pleaded nolo contendere. Com 72 SCHOOLS. monwealth v. Northampton, 2 Mass. 116 trict was not in pursuance of any article in (1806). But see now Gen. Sts. c. 172, ~ 19. the warrant for the meeting at which it was 3. No person could be lawfully employed passed. lb. as a town schoolmaster, so as to protect the 12. The prudential committee-man of a town from prosecution under St. 1789, c. 19, school district, chosen by the district, pursuunless he first produced the certificates or ant to a vote of the town, is not liable to the evidence of his qualifications, required by that district for money received by him out of the statute. Commonwealth v. Dedham, 16 Mass. treasury of the town, which had been raised 141 (1819). by the town and appropriated by it to the sup4. To constitute a grammar school within port of the school in such district, and placed the meaning of that statute, it must be duly to the credit of the district on the town treasregulated as to the admission of scholars; and urer's books. Belchertown y. Randall, 7 the master must be engaged to keep a school Cush. 478 (1851). of that description. lb. 13. The prudential committee of a school 5. The grammar school required by St. 1789, district, duly chosen in March, and authorized c. 19, to be maintained by every town having to contract with teachers, cannot interfere two hundred families or householders, must with a teacher engaged by the general school be kept for the use and benefit of all the in- committee of the preceding year, under St. habitants of the town. lb. 1846, c. 223, ~ 1, for the entire winter term; 6. An indictment under Rev. Sts. c. 23, ~ and if they close, against a teacher so engaged, 5, for neglecting to maintain a high school, the school-house in which he is accustomed need not negative a compliance with the sub- to keep his school, such general school comsequent St. 1850, c. 274. Commnonwealth v. mittee may forcibly break open the schoolShefield, 11 Cush. 178 (1853). house, and reinstate the teacher. Natick v. 7. If such indictment aver a neglect to Jlorse, 8 Cush. 191 (1851). maintain such school for three successive 14. Selectmen who, on the failure of a years, and a general verdict of guilty is re- school district to agree where to place their turned, judgment, will be arrested, as no cer- school-house, have determined the location tain penalty can be inflicted thereon under thereof, pursuant to Rev. Sts. c. 23, ~ 30, and Rev. Sts. c. 23, ~ 60 (Gen. Sts. c. 38, ~ 14). St. 1848, c. 237, ~ 1, (Gen. Sts. c. 38, ~ 38,) Ib.. cannot proceed to lay out the land and assess 8. The prudential committee of a school damages to the owner, without seven days' district, in hiring a teacher for the district notice to him in writing; nor, it seems, until school, act as the agents of the town, and the he has refused to sell the land or demanded teacher's remedy for his wages is an action an unreasonable price. Norton v. Copelctnd, against the town, and not against the district. 2 Gray, 414 (1854). Clark v. Great Barcrqington, 11 Pick. 259 15. It seenls, that the owner of land takeli (1831). for a school-house lot under St. 1848, c. 237, 9. Payment of money by the town to the (Gen. Sts. c. 38, ~ 38,) " in the same way prudential committee, for the purpose of and manner as is provided for laying out town being paid over to the teacher, does not make ways," has no such right to remove trees or the committee liable in the trustee process fences as the owner of land taken for a town as the teacher's trustee, nor discharge the way has. Ib. town from its liability to the teacher. Ib. 16. It seems, that the receipt, by the owner 10. A majority of a prudential committee of land taken for a school-house lot, of the of a school district may lawfully do official damages awarded him by the selectmen puracts, especially after a refusal of the minority suant to St. 1848, c. 237, ~ 1, (Gen. Sts. c. 38, to meet with them. Kingsbury v. Quincy, ~ 38,) estops him to object to the regularity 12 Met. 99 (1846.) of their proceedings in taking the lot. Ib. 11. A school district, by vote, instructed 17. A building committee of the selectmen its prudential committee "to prosecute for of a town which had not been divided into trespasses that have been, or in future may territorial school districts, selected a lot of be, committed, by breaking into the school- land for a sohool-house, and, on the refusal houses of the district," and the committee of H., the owner, to sell it, applied to the employed an attorney to commence several selectmen to call a meeting of the town. At actions of trespass, which he commenced such a meeting, called " to see if the town and prosecuted accordingly; and he after- will authorize the selectmen to select at their wards sued the district for his fees and dis- discretion a school-house lot," it was voted, bursements in those actions. It was held, "that the selectmen be and they are hereby that the district was bound by the acts of the authorized to select at their discretion a schoolcommittee, and that the attorney was entitled house lot and lay out the same, from the land to recover, although the said vote of the dis- of H. heretofore selected by the town." IHeld, SCHOOLS. 73 that this was not a sufficient designation of my legal heirs." "I also give, bequeath and land by the town to' authorize the selectmen devise unto the same aforenamed inhabitants to select out of it a school-house lot, under of the town of B. to whom I bequeath " the St. 1848, c. 237 (Gen. Sts. c. 38, ~ 38). Hasi- money, certain land described, upon condition sis viMarblehead, 10 Gray, 40 (1857). that " said land is to be used for the purpose 18. It seems, that a notice that the select- of erecting a school-house upon it for the use men, in accordance with a vote of the town, of the school aforenamed, and to become the will on a certain day lay out and assess property of my heirs whenever said land shall damages for the taking of a lot of land, but be used for any other purpose, after the exnot stating that it is for a school-house, is in- piration of two years from my decease." It sufficient. lb. was held, that these provisions constituted a 19. A town which, against the owner's will, valid legacy and devise to the town in its corillegally takes a lot of land for a school-house porate capacity, for the support of a public lot, and erects a school-house thereon, cannot school for the benefit of all the inhabitants; be allowed anything for betterments, under and that the condition excluding certain perRev. Sts. c. 101, ~~ 19, 20 (Gen. Sts. c. 134, sons and their descendants from the school, ~~ 18, 19). lb. being repugnant to the nature of the grant, 20. The tender of the appraised value of and contrary to law and public policy, was land seiected and laid out as a school-house inoperative and void. 1VouI'se v. IMeq'iam, 8 lot, if the owner lives out of the Common- Cush. 11 (1851). wealth, may be made to a person who is left 22. The power of towns to vote and grant by him in possession of the land, and who, money for the support of town schools is not for some purposes, is his agent. Gibbons v. restricted to the amount that is necessary to East GCranville, 4 Allen, 508 (1862). support the schools which the Rev. Sts. c. 23, 21. A will contained the following provi- ~~ 1-5, and 60, (Gen. Sts. c. 38, ~~ 1, 2, 14,) sions: " I give, bequeath and devise unto a require them to support under a penalty for part of the inhabitants of the town of B. and refusal or neglect to do so; but they have unto a part of those persons who may become power to vote and grant money for the support inhabitants of the said town of B., to wit, all of other town schools, for instruction in that are now or may become inhabitants of branches of knowledge which the revised said town of B., excepting" nine persons statutes do not require to be tauglt iln such named, "and their descendants," a certain schools. Cushing v. Newtbitryport, 10'Met. sum of money, "upon the following con- 508 (1845). ditions, to wit, said town of B. is to loan 23. A town which had raised money for the said sum and secure the payment of the prin- support of all the schools required by law, cipal and interest by a mortgage or mortgages and had supported them, also raised money upon real estate; the principal is to be kept to support, and did support, a female high as a permanent fund; the interest is to be school for the purpose of teaching book-keepexpended yearly after two years from my ing, algebra, geometry, history, rhetoric, decease in the support of one school, to be mental, moral and natural philosophy, botany, kept near the centre of said B., in which such the Latin and French languages, and other academical instruction shall be given as said higher branches of knowledge than were town shllll decide to be most useful; " "said taught in the grammar schools of the town. school is to be free to all persons who arenow It was held, that this was a town school, or maly become inhabitants of the town of B., within the meaning of the revised statutes, excepting such persons as do not conform to and that the money for its support was legally proper rules and regulations that shall be es- raised by tax. Ib. tablishud in said school by said town, and 24. The teacher of a town school is not sucli persons as said town shall determine to liable to any action by a parent, for refusing be of an unsuitable age, and the aforesaid" to instruct his children. S2pear v. CLaminys, nine persons' and their descendants, who 23 Pick. 224 (1839). See Gen. Sts.. c. 41, are excluded from attending said school for ~ 11. the term of one hundred years; and after tie 25. Under the clause in St. 1826, c. 143, expiration of said term of one hundred years (Gen. Sts. c. 38, ~ 29,) which provides that tlhe school is to be free to all the inhabitants " the school committee of each town shall of said town of B. who comply with the rules procure class books, at the expense of the of said school." " Said town of B. is to be town and to be paid for out of the town treaspaid by my executors the aforenamed sum ury," the committee may either get the books within two years from my decease, with in- on the credit of the town, or buy them themterest on the same from the day of my selves and thereby make themselves creditors decease." " Whenever the town of B. shall of tlhe town. Hcartwell v. Littleton, 13 Pick. fail to fulfil the above conditions the said" 229 (1833). sum of money "' shall become the property of 26. The requisition of the statute, that the 74 SCHOOLS - SEALS. school committee shall give notice of the 33. If one who has been authorized by the place where such books may be obtained, is school committee of a city to take charge of substantially complied with, if the books are an evening school, employs a person to render placed in the hands of the schoolmasters, with needful assistance in preserving order outside notice to the schools that they may be obtained of the door while the school is in session, the of the masters. lb. city is liable to pay a reasonable compensation 27. A report of the condition of the town to such person, although the committee have schools, made and published as required by never acted as a body upon this particular law, by the superintending school committee, matter; and in such case, evidence is incomis not libellous by reason of charging the petentto show that in former years the school prudential committee of one of the districts was under the sole control of the conmmittee, with employing a teacher and putting her in or that the committee had rejected the claim' charge of a public school, in violation of law, for compensation. IHise v. Lowell, 10 Allen,4 and with taking possession of the sclool-house 149 (1865). and excluding by force the general school 34. It is no defence to an action against a committee and the teachers employed by school district, to recover the rent of a schooltlilm, if it does not impute corrupt motives, room hired by the prudential committee of Shattuec v. Allen, 4 Gray, 540 (1855). the district, tha.t the school was partly sup28. Under Gen. Sts. c. 38, ~~ 23, 24, the ported by private contributions, and so was authority and duty of the school committee of continued longer than it otherwise would a town are not confined to ascertaining by have' been, or that the teachers were not examination the literary qualifications of legally employed or duly qualified for their teachers, and their capacity for the govern- situations, or that there was no legal appromaent of schools; but they are the sole judges priation or distribution by the town of the of their qualifications in all respects to teach funds raised for the support of schools. Allen and govern the school for which they are v. Westport, 15 Pick. 35 (1833). selected. Uxbridge v. Jlowry, 9 Allen, 94 35. The school committee of a town have no (1864). such property in the school registers required 29. The general school committee of the by law to be kept, as will enable them to city of Boston had power, in 1849, under the maintain an action for the taking of the same constitution and the laws of this common- out of their possession. Perkins v. Weston, wealth, then in force, to make provision for 3 Cush. 549 (1849). the instruction of colored children in separate 36. A teacher of a district school cannot schools established exclusively for them, and recover payment for his services, until he has to prohibit their attendance upon the other filled up and completed the register of the schools. Roberts v. Boston, 5 Cush. 198 school kept by him, in compliance with the (1849). But see now Gen. Sts. c. 41, ~ 9. requirement of St. 1849, c. 209 (Gen. Sts. c. 30. The general school committee of a 40, ~~ 5, 13); and the school committee of the city or town have power, under the laws of town have no power to waive a performance this commonwealth, in order to maintain the of this duty by him. Jewell v. Abington, 2 purity and discipline of the public schools, to Allen, 592 (1861). exclude therefrom a child whom they deem to 37. A teacher in one of the public schools of be of a licentious and immoral character, the city of Boston, who is elected annually, although such character is not manifested by and whose salary is payable quarterly, if disany acts of licentiousness or immorality missed in the middle of a quarter by the school within tie school. Sherman v. Charlestown, committee, although for no misconduct on her 8 Cush. 160 (1851). part, cannot recover salary for the subsequent 31. The power conferred on school com- part of the quarter. Kniowles v. Boston, 12 mittees by St. 1838, c. 105, ~ 2, (Gen. Sts. c. Gray, 339 (1859). 38, ~ 23,) to "select and contract with the 38. A truant officer, appointed under Gen. teachers for the town and district schools," Sts. c. 42, ~ 5, does not hold over after the includes the power to fix the compensation to expiration of his year, although no other has be paid tlem, and to bind the town to pay the been appointed in his place. l:use v. Lowell, same. Bcatchelder v. Salem, 4 Cush. 599 10 Allen, 149 (1865). (1849). 32. The school committee of Boston have,,; APRO ITNS, 19. the right to dismiss teachers employed by them, whenever in their judgment the public good requires it, and are the exclusive judges, in each case, of the propriety of such dis-SEA missal. Knowles v. Boston, 12 Gray, 339 1. It is not necessary that municipal cor(1859). porations should act under seal, in order to SEALS - SET-OFF - SEWERS AND DRAINS. 75 bind themselves, or obligate others to them. common sewers to be laid down through A vote of the body is sufficient for this pur- streets and private lands;" and although the pose. PARKER, C. J., in Rumford v. Wood, canal was constructed in the channel of an 13 Mass. 199 (1816). ancient watercourse. Proprietors of Locks 2. Afac simile of the seal of a corporation Canals v. Lowell, 7 Gray, 233 (1856). printed upon blank forms of obligations pre- 6. In an action of tort against a city for pared to be executed by the corporation, at the breaking and entering the plaintiff's close, the same time when the blank is printed and by defendant, under an answer alleging that the the same agency, is not a seal, at common city council voted to lay out and did lay out a law, nor will such forms, when executed by sewer, according to law, through the close in the corporation, be contracts under seal, al- question, on the4 petition of the owners of the though the language of them calls for a seal. close, with notice to the abutters and before Bates v. Boston 4 N. Y. Central Railroad, the plaintiff was owner of the close, may in10 Allen, 251 (1865). troduce as ajustification the proceedings of the 3. The St. of 1855, c. 223, (Gen. Sts. c. 3, city council in laying out the sewer. Hildsreth ~ 7, cl. 15,) providing that the mere impres- v. Lowell, 11 Gray, 345 (1858). sion of the seal of a corporation upon any 7. A right to empty a town drain upon the legal instrument executed by such corporation land of an individual cannot be acquired by shall thenceforth be valid, is not retrospective twenty years' use, unless the drain be one and in its operation. lb. the same, and the use thereof uninterrupted See Commonwealth v. Griffith, 2 Pick. 11; during that number of years. If the drain, durBradford v. Randall, 5 Pick. 496; Mill Dam ing those years, be enlarged, deepened and Foundery v. fovey, 21 Pick. 417; Tasker v. raised in its course and termination, the town Bartlett, 5 Cush. 359; PUBLIC LANDS, 3; cannot acquire such right, as against the owner T AXES, 122. of the land, by using the drain less than twenty years after it is thus enlarged and altered. Cotton v. Pocasset I1anuf. Co. 13 Met. 429 SET-OFF. (1847). See ACTIONS, 52, 53. 8. A by-law of the city of Boston, requiring that every person who enters his particular drain into a common sewer of the city shall be held to pay to the city such sum as is his SEPWFERS AND DRAINS. just proportion of the expense of making such Wcommon sewer, having reference always to 1. A city or town is not responsible in dam- the last valuation of such person in the asages for the inconvenience and loss of business sessors' books previous to the expenditure, is occasioned to the abutters on a street by open- void for inequality and unreasonableness. ing an old common sewer in the street for the Boston v. Shaw, 1 Met. 130 (1840). purpose of enlarging and repairing it. Brooks 9. A city cannot maintain an action of conv. Boston, 19 Pick. 178 (1837). tract on a quantum meruit against one who 2. An action of tort lies against a city in enters his particular drain into such common behalf of the owner of land through which its sewer, and upon whom no assessment has agents have unlawfully made a sewer. lild- been laid for its cost. Ib. seth v. Lowell, 11 Gray, 345 (1858). 10. A by-law of the city of.Boston, provid3. No action lies against a city for the injury ing that the expense of constructing a comoccasioned to land bounding on a public street mnon sewer, after deducting the portion to be from the accumulation of water on the surface paid by the city, shall be assessed upon the of the street, which the city has neglected to persons and estates deriving benefit therefrom, drain. Flagg v. Worcester, 13 Gray, 601 either by the entry of their particular drains (1859).. therein, or by any mdre remote mIeans, ap4. No action lies against a city for a failure portioning the assessment according to the to keep a public sewer and cesspool in repair, value of the lands thus benefited, indepenwhereby waste water accumulates and flows dently of any buildings or improvements into the cellar of a neighboring house, which thereon, is valid. And it is no objection to is not connected by a drain with the public the validity of an assessment, made pursuant sewer. Barry v. Lowell, 8 Alien, 127 (1864). to such by-law, that the greater part of one 5. A canal corporation may maintain an lot assessed is lower than the bottom of the action of tort against a city, for laying down sewer. Downer v. Boston, 7 Cush. 277 sewers and drains through lands purchased by (1851). the corporation for the use of their canal, and 11. The statute of 1841, c. 115, (Gen. Sts. emptying into the canal; although the city is c. 48,) in relation to sewers and drains, is a authorized by its charter "to cause drains and valid statute; and the by-laws of the city of 76 SEWERS AND DRAINS -- SMOKING IN THE STREETS. Boston, in relation to sewers and drains, 18. When constructed, they become the passed June 14, 1841, and March 7, 1844, property of the city, and the duty of keeping (Laws and Ordinances, 658-661,) are in con- them in order devolves upon the city; and formity with that statute, and valid; and own- the city is responsible for negligently suffering ers of vacant lots on a street in which a corn- them to occasion a nuisance to the estates of nion sewer has been laid in pursuance of such the citizens whose private drains enter into by-laws, are properly assessed for their pro- them, if the nuisance does not result from portion of the cost thereof, as well as owners their original plan of construction, and could of lots built upon. Wright v. Boston, 9 Cush. be avoided by keeping them in proper condi233 (1852). tion. Ib. 12. An order of the mayor and aldermen 19. When a sewer was ordered to be conof Boston, directing a main drain to be laid, structed with a waste weir discharging into upon a petition setting forth that the safety the empty basin of the Back Bay, and was and convenience of the city require such a built according to the order, it was the duty drain, is a sufficient adjudication of the neces- of the city, when the flats between the upland sity thereof under the city by-laws. Ib. and the channel of the basin were filled up and 13. A city ordinance, which requires the made solid land, to extend the drain through city council, before laying out a drain across the land thus made, so as to keep an open private property, to " give notice in writing place of discharge into the basin, the city havto the several owners " of the property, ap- ing the right thus to extend it; and if, by their pointing a time and place for hearing all par- negligently omitting to do so, after notice, inties interested, and to post two or more cop- jury is occasioned to the estates of private ies of such notice at public places in the city, persons by the overflow of the sewer, the city is complied with by serving notice upon all is answerable in damages. lb. known owners personally or at their usual 20. An indenture conveying to the city of places of abode, and publicly posting two cop- Boston the right forever "to dig, lay and ies thereof, and therein describing the premi- maintain all convenient and necessary sewers ses as a passage way, without adding that and drains from the upland to the channel or they are private property. IHildreth v. Lowell, deep water within the basin [in the Back Bay] 11 Gray, 345 (1858). according to law and the common and usual 14. A statute authorizing the city council practice for the time being within the city," of a city to " cause drains and qommon sew- must be construed to apply, not only to the ers to be laid down through any street or pri- wants of the city as a private owner of lands vate lands, paying the owners thereof such in the neighborhood, but also to the sewers damage as they may sustain thereby," is con- for general use which it might be their duty, stitutional and valid. lb. in their municipal capacity, to construct and 15. Under an ordinance of a city, requiring maintain. Ib. the committee of the city council, upon laying 21. A city is not liable in an action at law out a drain through private land, to report the for an injury to a private person by the obnames of all the owners of such land, with the struction of the flow of the water of a stream, amount of damages allowed to each, a report caused by an increase of the surface wash of the names of all those owning land abutting from the streets into the same, if such inon the sewer, without mentioning any dana- crease is only the natural result of the growth ges, is a sufficient award that no one is enti- of the city; or by the emptyings of the sewers tied to damages. lb. into the same, if these are no greater than 16. County commissioners have no au- would otherwise have been carried in by surthority to issue a warrant for a jury to assess face washing, and are not sufficient to exert damages for land taken for a common sewer, any appreciable effect on such person; or by under St. 1859, c. 137, (concerning sewers a bridge constructed by the city, if the bridge and drains in the city of Cambridge,) after when built was sufficient to allow the free flow the expiration of six months from the decision of the water as the stream then was, or with to take the land; although the owner of the such changes, as were likely to be produced land had no notice of their decision until after by natural "causes alone, although it has' the expiration of the six months. Ccmrbridge proved insufficient for this purpose, with such v. Midlclesex, 6 Allen, 134 (1863). changes as have been produced by the exer17. The exclusive control of the construe- cise by a railroad corporation of its chartered tion of common sewers in the city of Boston rights, or by the wrongful acts of individuals. is vested in the board of aldermen; and the TVheeler v. Worcester, 10 Allen, 591 (1865). city is not liable for any injury or inconvenience occasioned to private persons by their location or construction, according to the or- MOK G IN T- der of that board. Child v. oston, 4 Alen,ETS. 41 (1862). See FIRE, 8. SPENDTHRIFTS - STEAM ENGINES - TAXES, I. 77 SPENDTHRIFTS. STEAM ENGINES. 1. The purpose for which the selectmen of A steam engine erected in a building situaa town are empowered to apply'to the judge ted on State Street in Boston, under a license of probate for the appointment of a guardian from the board of aldermen, and with the to a spendthrift, is to restrain the spendthrift safety plug required by law, is not a nuisance; from a course of vicious excesses, by taking and the landlord is not liable to third persons froml him the means of indulging in them, and for any injury resulting to theml from its thus to save both himself and his family from maintenance or use by the tenant. Saltondistress and ruin, as well as to save the town stall v. Banker, 8 Gray, 195 (1857). See from expense for their support; where, there- Call v. Allen, 1 Allen, 137. fore, the selectmen, having filed a complaint for the appointment of a guardian, relinquished the proceedings solely in consideration of a bond and mortgage, given to them by the SWINE. spendthrift, with condition to indemnify the See ODIANCES &C. 1821 town from expense on account of himself and his family, it was held, that if there was good ground for the complaint, they had abandoned a public duty imposed upon them by law, and TA if the complaint was not well founded, they had used a public power, given for other pur- I. PERSONS AND PROPERTY SUBJECT TO poses, to compel the giving of a particular TAXATION. security to the town, and that in either case E ND TO POLLS AND the bond and mortgage were void. Norton v. PROPERTY SHALL BE ASSESSED. Leonard, 12 Pick. 152 (1831). 2. A judge of probate may appoint a guar- III. MANNER AND VALIDITY Or THE Asdian to a spendthrift upon the complaint of the SESSLIENT. selectmen of the town where the spendthrift V OF TAXES. is domiciled, although the spendthrift has his legal settlement in a town in a different county (a) Generally. from that in which such appointment is made. (b) By Action at Law. Stacey v. Benson, 18 Pick. 496 (1836). And (c) By Arrest. see Gen. Sts. c. 109, ~ 9. (d) By Distress and Sale; Lien on Land. 3. The selectmen of a town, having been appointed guardians of a spendthrift, under a statute authorizing tlhe judge of probate to (a) Whether by Action or Abatement. appoint the selectmen or' other suitable per- (b) Of the Action to recover back. sons," do not cease to be such guardians on (c) Of the Abatement. the expiration of the period for which they (d) Of Actions against Assessors and were elected to the office of selectmen. Rus- others. sell v. Coffin, 8 Pick. 142 (1829). See PAUPERS, 75. I. PERSONS AND PROPERTY SUBJECT TO TAXATION. 1. The polls of aliens are liable to taxation. STABLES0. Opinion of the Justices, 7 Mass. 523 (1811). See BUILDINGS, 1. And see Gen. Sts. c. 11, ~ 1. 2. The property of minors, personal as well as real, is liable to be assessed in the public taxes. Payson v. Tufts, 13 - Mass. STATE TREASURY. 493 (1816). Baldwin v. Fitchburg, 8 Pick. 494 (1829). Under Gen. Sts. c. 15, ~ 32, the governor 3. Non-residentowners of real estate may may instruct the state treasurer to withhold be taxed therefor, although the real estate is the payment of a portion of a sum of money in the actual occupation of tenants at will. due to a city or town, after he has, with the Newburyport Tulrnpilce v. Upton, 12 Mass. advice of the council, executed and delivered 575 (1815). to the treasurer a warrant for the payment 4. Persons who reside on lands purchased thereof, if such city or town illegally with- by or ceded to the United States for navy holds money due to the Commonwealth. yards, forts or arsenals, where there is no Lowcell v. Oliver, 8 Allen, 247 (1864). other reservation of jurisdiction to the state 78 TAXES, I. than that of a right to serve civil and criminal life, at her decease the principal to be equally process on such lands, are not liable to be divided among her children; " and his execassessed for their polls or estates to state, utors, being residuary devisees and legatees, county, or town taxes, in the towns in which gave bond to the judge of probate for the paythe lands are situated. Opinion of the Jus- ment of all the debts and legacies. It was tices, 1 Met. 580 (1841). See Commonwealth held, that under this bequest there was no v. Clary, 8 Mass. 72. " capital or principal sum" owned legally or 5. A manufacturing corporation is not equitably by, or held in trust or otherwise liable to be taxed for its personal property in for, the daughter, and that consequently she the town where the manufactory is established. was not liable to taxation under St. 1828, c. Otherwise, as to its real property. Salem 143, ~ 2, which provided "that persons enIron Co. v. Danvers, 10 Mass. 514 (1813). titled to the income of any personal property Amesbu6ry Woollen Co. v. Amesbury, 17 Mass. held by others in trust for them, shall be 461 (1821),. See Goodell Manuf. Co. v. liable to be taxed for the capital or principal T) ask, 11 Pick. 514. sum in the town where such persons reside." 6. Manufacturing corporations are not tax- Swett v. Boston, 18 Pick. 123 (1836). able for their personal property, except for 10. An investment of $ 50,000, made by the their machinery. Boston 4 Sandwich Glass executors, without the consent of the daughCo. v. Boston, 4 Met. 181 (1842). Dunnell ter, in trust to pay her the income, was held Jfanuf. Co. v. Pawtucket, 7 Gray, 277 (1856). to have no effect upon her rights in regard to 7. An incorporated street railroad company taxation under that statute. lb. is not taxable for horses or other personal 11. Under St. 1830, c. 151, subjecting to property used in and necessary for the prose- taxation " shares or property in any incorcution of its business. Middlesx Railroad porated company for a bridge or a turnpike v. Charlestown, 8 Allen, 330 (1864). road," a citizen of this state is liable to be 8. A testator bequeathed to his daughter, taxed for his stock in a turnpike company of who was married, "the interest of 50,000" another state. Great Barrington v. Berkfrom the time of his decease, "during her shire, 16 Pick. 572 (1835). See Gen. Sts. natural life; and at her decease, the principal c. 11, ~ 4. to be equally divided among her children or 11 a. Inhabitants of this state who own the survivors of them at her decease." The stock in corporations established in other executors, who were also residuary legatees, states are taxable for such stock at its full having given bonds for the payment of debts value, and no deduction is to be made on and legacies, deposited, of their own motion, account of taxation to which such'corporathe sum of $ 50,000 in the Massachusetts tions are subject in the states where they are Hospital Life Insurance office, subject to a established. Dwight v. Boston, 12 Alien, contract providing that the insurance com- (1866). pany should, during the life of the daughter, 12. Water power for mill purposes, not pay to her annually the same rate of interest used, being merely a capacity of land for a thereon as they should receive on the other certain mode of improvement, cannot be property in their possession; that at intervals taxed independently of the land. Boston of every five years during the life of the Manuf. Co. v. Newton, 22 Pick. 22 (1839). daughter, the executor should have the right 13. A corporation owning canals and land to withdraw the sum so deposited, and the under and adjoining them, and ga.te-houses, company should also have the right to pay off feeders and other property used for raising the same, and that the company should, after and making available a water power, and her decease, pay the principal sum and all whose business it is to furnish water power to interest due thereon to the executors, to be its stockholders, who are taxed for the value distributed according to the provisions of the thereof, in connection with their own mills, will. The executors returned no inventory, is taxable for the value of its property over and rendered no account at the probate office. and above the amounts so taxed to its stockIt was held, that the executors were not liable holders on account of the water power furto be taxed on account of the sum so deposited, nished to them;'although such value is deit not coining under the head either of rived merely from the surplus supply of " moneys at interest more than they paid water power which it is able to furnish to interest for," or of "debts due to them more others during a portion of the year. Lowell than they were indebted for," in the provisions v. Middlesex, 6 Alien, 131 (1863). of the tax acts. Gray v. Boston, 15 Pick. 14. Under the Rev. Sts.c.7, ~ 5, cl.5, exempt376 (1834). ing houses of religious worship from taxation, 9. A testator gave to his daughter, a mar- such distinct tenements only are exempted as ried woman, " the interest of $ 50,000," from are used for religious worship and purposes the time of his decease, "during her natural connected therewith; and not tenements, TAXES, I. 79 though under the same roof, which are used ceived on deposit. Worcester Savings Inst. for purposes wholly secular. Proprietors of v. Worcester, 10 Cush. 128 (1852). Mfeeting-house, c. v. Lowell, 1 Met. 538 23. A clerk in a post office, who is ap(1840). And see Gen. Sts. c. 11, ~ 5, cl. 7; pointed by the deputy postmaster, and his apSt. 1865, c. 206. pointment approved by the postmaster gen15. The Western Railroad Corporation are eral, is taxable for the income derived from not liable to be taxed for the land, not ex- his employment as such clerk. Melcher v. ceeding five rods in width, over which they Boston, 9 Met. 73 (1845). were authorized to lay out their road, nor for 24. The president and fellows of Harvard buildings and structures thereon erected by College having built a dwelling-house on them, if such buildings and structures are land of the corporation within the college reasonably incident to tne support of the road yard, and leased the same to one of their proor to its proper and convenient use for the fessors, to be occupied by him as a residence carriage of passengers and property - such for himself and his family at an annual rent; as houses for the reception of passengers, en- it was held, that this was not an occupation gine-houses, car-houses and depots for the of the real estate of the college by one of its convenient reception, preservation and deliv- officers, within the exemption from taxation cry of merchandise carried on the road. provided by the Rev. Sts. c. 7, ~5, cl. 2 (Gen. Worcester v. TWcstern Raailroad, 4 Met. 564 Sts. c. 11, ~ 5, cl. 3); otherwise, if the build(1842). See Charlestown v. Middlesex, 1 Al- ing had been erected for one of the professors len, 199. or officers, and had been occupied by him, 16. The Boston WMter Power Company are with the permission of the college, without not taxable for their income, which is annu- his having any estate therein, or paying any ally divided among the individual stockhold- rent therefor. Pierce v. Cambridge, 2 Cush. ers. Boston TWater Power Co. v. Boston, 9 611 (1849). Met. 199 (1845). 25. The provisions of Rev. Sts. c. 7, ~ 10, 17. The flatts lying between the channels (Gen. Sts. c. 11, ~ 12,) cl. 5, relating to the of Charles and Miller's rivers, outside of the manner of assessing taxes upon personal location of the Boston and Maine Railroad property -held in trust, apply to property in Extension Company,- and filled up by the said the hands of a receiver appointed by the circompany, pursuant to the authority given by cult court of the United States to hold and inSt. 1845, c. 224, ~ 1, for the location of en- vest the same, and to pay over the income gine-houses and wood-houses, and other pur- thereof to another person, until the further orposes for the use of their road, and used, when der of the court. Bates v. Boston, 5 Cush. so filled up, exclusively for such purposes, 93 (1849). are not exempt from taxation. Boston Mlaine 26. A., residing in another state, owned a Railroad v. Cambridge, 8 Cush. 237 (1851). building in Lawrence, in this state, standing 18. Land purchased in fee or otherwise by consent on the land of another person. taken by a city, by authority of the legislature, The building was taxed to A. in Lawrence, as for the purpose of supplying the city with real estate belonging to a non-resident, but pure water, and used for that purpose only, is was subsequently sold by the tax collector as justly taken in the exercise of the right of em- personal property. fIeld, that the sale was inent domain, and is therefore not liable to void. Flandersv. Cross, 10 Cush, 514 (1852). taxation. Wayland v. Middlesex, 4 Gray, 27. Under the Rev. Sts. c. 7, an unmarried 500 (1855). woman, an inhabitant of this state, is not tax19. Mutual fire insurance companies are able here for the principal or income of shares not liable to taxation for personal estate in- in corporations held in trust by trustees residvested in their corporate names and held by ing in another state, to pay the income to her. them for the purposes of their incorporation. Dorr v. Boston, 6 Gray, 131 (1856). But see Worcester Ins. Co. v. Worcester, 7 Cush. 600 Gen. Sts. c. II1, ~ 12, cl. 5. (1851). 28. A corporation incorporated by the laws 20. The real estate of a bank, including its of another state, and authorized by a statute banking house, is liable to taxation in the of Massachusetts to-hold real estate here, is town where such estate lies. Tremont Bank taxable for stock employed in manufactures in v. Boston, 1 Cush. 142 (1848). a town in this state where it carries on its 21. A bank cannot legally be taxed for rail- business. Blackcstone Manuf. Co. v. Blackroad stock pledged to it as collateral security stone, 13 Gray, 488 (1859). for a debt. Waltham Bank v. TWaltham, 10 29. The personal estate of an unmarried Met. 334 (1845). Tremont Bank v. Boston, woman is liable to taxation in this common1 Cush. 142 (1848). wealth, although by the constitution women 22. Savings banks are not taxable for bank are not allowed to vote. Wheeler v. Wtall, 6 stock in which they have invested money re- Allen, 558 (1863). 80 TAXES, I. II. 30. Bonds issued under special legislative be taxed therefor in B. But for his income authority, by a state or city, for aiding in the derived from business as an underwriter transconstruction of railroads, are public stocks, acted in B., he is taxable in the town of A. and taxable as such, under Gen. Sts. c. 11, ~ Little v. Greenleaf, 7 Mass. 236 (1810). See 4. Hall v. Middlesex, 10 Allen, 100 (1865). Gray v. Kettell, 12 Mass. 160. 31. A gas light company is not a public cor- 39. The owner of goods, wares and merporation in such a sense as to be exempt from chandise, living in one town, and doing busitaxation for its real estate and machinery in ness in another, where he has a privilege in a the town in which such real estate and machin- counting-room and has goods stored, but does ery are situated. Comrmonwealth v. Lowell not otherwise hire or occupy any store, shop Gas Light Co. 12 Allen, (1866). or wharf, is not liable to taxation for such 32. The mains, supply pipes and meters of goods in the town where he so does his busia gos light company are "machinery " within ness. Iluccins v. Boston, 4 Cush. 543 (1849). the meaning of Gen. Sts. c. 11, ~ 12, cl. 2, and 40. A firm doing business in Boston as are taxable as such in the town where they are booksellers and publishers are not liable to situated. Ib. taxes in Cambridge by reason of their keeping deposited in Cambridge some materials used in their business, and having some of II. WHIERE AND TO WHOM POLLS AND PROP- their printing and binding done for them there ERTY SHALL BE ASSESSED. by other firms. Little v. Camnbridge, 9 Cush. 298 (1852). WThere to be Assessed. 41. The plaintiff; residing in Barre, hired 33. Where part of a town was incorporated a store in Boston every year, from December into a new town, in accordance with a vote of 1st to March 1st, and kept a stock of goods the old town which provided that certain min- there for sale during that period, but had no isterial lands of the old town lying within the establishment there on the first of May. Held, limits of the new town should not be taxed for that the stock was not taxable in Boston. town charges in the new town; it was held, Field v. Boston, 10 Cush. 65 (1852). that such lands were exempt fromn taxation 42. Stock in trade of a partnership, emfor town charges in the new town, especially ployed in manufacturing or in any of tie meafter the new town had omitted for one hun- chanic arts in a town in which the firm have dred and forty years to tax these lands. not their principal place of business, but in Capen v. Gloser, 4 Mass. 305 (1808). which they hire or occupy a manufactory, 34. No man can be holden to pay for his shop, store or wharf, may be taxed in that poll, or for the same estate, any state or town town as one "other than where the owners tax but in one town during the same year. reside," under Rev. Sts. c. 7, ~ 10, cl. 1, and PARSONS C. J., in Richards v. Dagget, 4 Mass. ~ 13, and St. 1839, c. 139, ~ 1, (Gen. Sts. c. 11, 539 (1808). ~ 12, cl. 1.) although one of the partners re35. A manufacturing corporation is taxable sides in that town. Lee v. Templeton, 6 Gray, for its real property in the town where it lies; 579 (1856). but not for its personal property used in and 43. To constitute an occupation, within the about its manufactory. Saleem Iron Co. v. meaning of Rev. Sts. c. 7, ~ 10, cl. 1, and St. Danvers. 10 Mass. 514 (1813). Amesbury 1839, c. 139, ~ 1, (Gen. Sts. c. 11, ~ 12, cl. 1,) IT;oollen Co. v. Amesbury, 17 Mass. 461 (1821). of a manufactory, shop, store or wharf, there 36. A person liable to be taxed in one town must be an actual possession, use and efficient for his poll and personal estate cannot legally control of it - such an occupation as one who be assessed for the same in another town; and owns or hires would ordinarily have. Ib. if so assessed, even with his own consent, 44. Merchants, sending goods to a manustill he cannot be compelled to pay the tax. factory not owned or hired by them, in a town Preston v. Boston, 12 Pick. 7 (1831). in which they do not reside, to be passed 37. Where a dam extended across a river, through one of the processes of manufacturthe thread of which was the dividing line be- ing by one who contracts to put the goods tween two towns, and the water power created through that process, and who, in order to thereby was applied exclusively to drive mills secure a continuance of their custom, permits situated in one of the towns, it was held, that them to sort and count the goods there before the water power was not subject to taxation in finishing, and to pack them there afterwards, the other town. Booston, Macnf. Ce. v. New- do not thereby "occupy" the manufactory, ton, 22 Pick. 22 (1839). within the meaning of Rev. Sts. c. 7, ~ 10, cl. 38. One living in the town of A., and hir- 1, and St. 1839, c. 139, ~ 1, (Gen. Sts. c. 11, ing a store in the town of B., in which he de- ~ 12, cl. 1,) so as to be liable to taxation for posited a cargo of salt for sale, and also such goods in the town where the manufactory owning and fitting vessels in B., is liable to is situated. lb. TAXES, II. 81 45. Under St. 1839, c. 139, stocks in trade 54. The real and personal property of and stock employed in manufacturing in a minors should be assessed to their guardians town within the state other than where the personally. Payson v. Tufts, 13 Mass. 493 owner resides, is taxable in such town, if the (1816). Baldwin v. FitchbugLq, 8 Pick. 494 owner hire or occupy a manufactory therein, (1829). And see Gen. Sts. c. 11, ~ 12, cl. 4. although the owner is an inhabitant of another 55. A tax cannot be legally assessed upon state. Leonard v. lNew Bedford, 16 Gray, a person after his decease; but the assess(1860). And see now Gen. Sts.c. 11, ~ 12, cl.1. ment should be upon his estate in the hands 46. Under the Rev. Sts. c. 7, ~ 13, and St. of his heir, administrator, or whoever else 1839, c. 9,, ~ 2, ships belonging to a partner- may be in possession of the same. Coo/k v. ship and employed in its business are to be Leland, 5 Pick. 236 (1827). See Gen. Sts. taxed to the partners jointly in the town where c. 11, ~ 12, cl. 7; Hardy v. Yarmouth, 6 their business is carried on, and not separately Allen, 277 (ante, 48). at their places of residence. Peabody v. Essex, 56. In December, 1845, 0. S. died, leaving 10 Gray, 97 (1857). But see now Gen. Sts. c. a will, in which A. S. was named as executor, 11, ~ 1(. by whom the will was presented for probate; 47. A person is liable to be taxed in the but the validity thereof being controverted, town where he resides on the first day of May, A. S., in )ecember, 1846, was appointed although he and his estate may be set off to special administrator; and the validity of the another town by a special statute, before the will being established in August, 1847, A. S. assessment is completed and the tax bill de- was appointed executor under the same: livered to the collector. Iarnman v. New The assessors of the town of H., in which the Jlarlborough, 9 Cush. 525 (1852). deceased last dwelt, having assessed a tax to 48. Under Rev. Sts. c. 7, ~ 10, cl. 7, the A. S., in May, 1864, for the estate cf 0. S. in personal estate of a deceased person is tax- his hands as executor, it was held, that under able in the town where he last dwelt, until his the peculiar circumstances of the case, the executors or administrators give notice to the same was rightly assessed. Smith v. Northassessors thereof that it has been distributed. ampton Bank, 4 Cusli. 1 (1849). and paid over to the persons interested therein. 57. Before the revised statutes, (Gen. Sts. Hardy v. Yarmouth, 6 Allen, 277 (1863). And c. 11, ~ 13,) a ministerial fund in the hands see Gen. Sts. c. 11, ~ 12, el. 7. of incorporated trustees, the interest of which 49. The personal estate of a deceased per- was to be paid by them to the treasurer of son, which is taxable in the town where he the parish for the minister, was rightfully aslast dwelt, under Rev. Sts. c. 7, ~ 10, (Gen. sessed to the trustees. Gloucester v. GlouSts. c. 11, ~ 12,) cl. 7, is not taxable in any cester, 19 Pick. 542 (1837). other town. lb. 58. The poll tax of minors who are in the 50. If the trustees of trust property which service of a manufacturing corporation, and is taxable to them as the owners thereof, un- receiving salaries, cannot be legally assessed der Rev. Sts. c. 7, ~ 9, reside in different to said corporation. Boston' Sandwich towns, the property should be apportioned Glass Co. v. Boston, 4 Met. 181 (1842). among them, for the purpose of taxation, and 59. The provision of Rev. Sts. c. 7, ~ 10, the share of each taxed in the town where he cl. 5, that all personal property held in trust, resides. lb. See Gen. Sts. c. 11, ~ 12, cl. 5. the income of which is to be paid to any mar51. Returning a list of trust property to the ried woman residing within the state, shall be assessors of a town in which it is not taxable assessed to the husband of such married does not authorize its taxation therein. lb. woman in the town of which he is an inhabitant, applies to property in the hands of a receiver of the circuit court of the United To whom to be Assessed. States,. appointed by that court to hold and invest the same, and to pay over the income 52. A tax on land belonging to a company, thereof to such married woman until the furin the occupation of their agent, who is one ther order of the court. Bates v. Bostoni, 5 of the company, may be set to such agent by Cush. 93 (1849). See Gen. Sts. c. 11, ~ 12. his name; nor will it vitiate such tax that there 60. Property held intrust by the " Trustees is added to his name the title of agent of said of the Greene Foundation," a chartered corcompany. Welles v. Battelle, 11 Mass. 477 poration, to apply the income to the support (1814). of an assistant minister of Trinity Church, in 53. Non-resident owners of real estate may Boston, is taxable to the corporation in Bosbe taxed therefor, although the real estate is ton, although the assistant minister, who is in the actual occupation of tenants at will. entitled to receive the income,resides in BrookNewburyport Turnpike v. Upton, 12 Mass. line. Trustees of the Greene Foundation v. 575 (1815). Boston, 12 Cush. 54 (1853). 82 TAXES, II. As to Domicil. he frequently expressed an intention of leav61. A citizen of Boston, who had been at ing Boston and removing to Europe or New school in the city of Edinburgh when a boy, York. On April 5, 1849, he went to New and formed a predilection for that place as a York, intending to sail for Europe, and either residence, and had expressed a determination to fix his residence in Paris or return to New to reside there, if he ever should have the York. He did not sail from New York, but means of so doing, removed with his family returned to Boston on May 7th, and sailed to that city in 1836, declaring at the time of from that city June 6, 1849. In June, 1850, his departure that he intended to reside le returned and established his residence at abroad, and that if he should return to the Newport. Ield, that he was an inhabitant of United States he should not live in Boston. Boston on May 1, 1849, for the purpose of He resided in Edinburgh and the vicinity as a taxation. Otis v. Boston, 12 Gush. 44 (1853). housekeeper, taking a lease of an estate for a 65. C. owned dwelling-houses in Boston, in term of years, and endeavored to engage an Brookline, and in Beverly. He usually reAmerican to enter his family for two years, sided in Brookline about seven months of each as an instructor of his children. Before he year, from some time in April to November, left Boston lie made a contract for the sale of (except a few weeks in midsummer, spent at his mansion house and furniture there, but his house in Beverly,) when he closed that shortly afterwards procured said contract to house and removed to Boston until the followbe annulled, (assigning as his reason therefor ing April. In April, 1850, the usual prepathat, in case of his death in Europe, his wife rations were made for him to close the house might wish to return to Boston,) and let his in Boston and remove to Brookline, but from house and furniture to a tenant. field, that illness he was not able to go personally until he had changed his domicil, and was not some time in May. On the 28th of April he liable to taxation as an inhabitant of Boston informed the assessors of Brookline of the in 1837. Thorndike v. Boston, 1 Met. 242 cause of his detention in Boston, and that he (1840). desired to continue a citizen of Brookline, and 62. A native inhabitant of Boston, intend- taxable there, where for many years he had ing to reside in France with his family, de- been taxed and had exercised all municipal parted for that country in June, 1836, and was rights and privileges. Nfeld, that although followed by his family about three months actually in Boston on May 1, 1850, he was afterwards. Hisdwelling-house andfurniture not rightfully taxed there upon his poll and were leased for a year, and he hired a house personal estate. Cabot v. Boston, 12 Cush. in Paris for a year. At the time of his depart- 52 (1853). ure, he intended to return and resume his 66. A persen is not taxable as having a residence in Boston, but had not fixed on any residence in the city of Boston, who habitutime for his return. He returned in about ally resides, for seven months of the year, in sixteen months, and his family in about nine his own house in another town, where he has months afterwards. field, that he continued for twenty years been taxed for his poll and to be an inhabitant of Boston, and that he was personal property, and voted and exercised rightly taxed there, during his absence, upon the rights of citizenship, although he spends his poll and personal property. Sears v. five months of each year, including the winter Boston, 1 Met. 250 (1840). months, in a house owned by him in Boston. 63. Where a dwelling-house is so divided Lee v. Boston, 2 Gray, 484 (1854). by the boundary line between two towns as to 67. An inhabitant of P., being out of health, leave that portion of the.house in which the gave up business there, and removed to F., occupant mainly and substantially performs with the intention of remaining there through those offices which characterize his home, the summer and returning to P. in the autumn, (such as sleeping, eating, sitting and receiving to reside and do business there. The next visitors,) in one town, lie is a citizen of that autumn his health was restored, but, not findtown, and has no right to elect to reside and ing satisfactory business in. P., he remained in be taxed for his personal property in the other F. until the following March, when lie entown. Chenery v. Waltham, 8 Cush. 327 teredinto business elsewhere, and intended, as (1851). soon as he could make arrangements, to re64. 0., a native of Boston, removed to move to C. to reside, and made a contract for New York in 1828, where he resided until the removal of his furniture to C. as soon as 1840, at which time he returned to Boston, possible, and on the first of May put it on and continued an inmate of his father's family board a vessel, and a few days after personally until 1848, when his father died. He then removed to C. Ield, that he was rightly took rooms at a hotel,'and remained in Bos- taxed in F. on said first of May. Carnoe v, ton, employed as executor of his father's will, Freetown, 9 Gray, 357 (1857). until April 5, 1849. During this whole period 68. A man who was born and resided in child TAXES, II. 83 hoodinVermont, afterwardslived in New York mine where he is legally liable. Lyman v for five years next preceding his coming of age, Fiske, 17 Pick. 231 (1835). then spent some months at his fornmer home 72. Whether a person removing from one in Vermont in search of employment, and town to another intends to change his resiafterwards, for the same purpose, went to St. dence, is a question of fact, and not of law. Louis and obtained employment as a clerk, lFtchburg v. Wlinchendon, 4 Cush. 190 (1849). but under no contract for any fixed length of 73. If an inhabitant of a town removes to time, and there became engaged to marry a another town in this commonwealth, not inwoman residing at Roxbury, and cane to tending to remain there permanently, but with Massachusetts in March to fulfil his engage- the intention of not returning to his former ment, without intending to make Roxbury his home, and does not so return, he loses his residence, hired a house in Brookline, at a domicil in the former town. Jlead v. Boxborrent beginning on the 1st of April, and put ough, 11 Cush. 362 (1853). -into it servants and furniture, and his own and 74. The fact that a person was taxed in the his betrothed wife's movable property. They town to which he has removed, is not compewere married at Roxbury on the 9th of April, tent evidence to show that he did not continue and immediately took a wedding tour, with no to be taxable in the town of his former resiintention of returning to Roxbury, and on the dence. Ib. 2d of May returned to the house in Brookline 75. An inhabitant of this commonwealth, and resided there. field, that his domicil who removes from the town of his residence, was in Brookline on the first of May. Will- with the intention of never residing there iacns v. Roxbury, 12 Gray, 21 (1858). again, and of removing to another state, is 6 9. A. formerly lived in Boston, and after- still, so long as he remains in this commonwards went to New Orleans, where he took up wealth, liable to taxation in that town, until his residence, went into business, and became he acquires another dolicil. Bulkcley v. Willpermanently fixed as a merchant, and has had ianstown, 3 Gray, 493 (1855). no other place of business since. He married 76. Al inhabitant of the town of Rochester at the South, had children, came to Boston in this commonwealth removed out of the with tlem, intending to return, bought a state on April 10, 1858, witlh the intention not house, commenced housekeeping, and sent his to return or have his home in that town, and clhildren to the public schools. He was in the to make his future abode and home in Motthabit of comingto Boston every summer, and haven, in the state of New York. But before remaining there and in the vicinity for a few lie took up his abode in Mlotthaven, he stopped months. H-e left his family in Boston for the at the abode of his son-in-law in the city of benefit of his children's health, for two years, New York until and including May 1, 1858, returned himself to his business at New Or- and slortly afterwards went to Motthlaven, leans, always styled himself as of New Or- where he subsequently resided. lHeld, tllat he leans, exercised the riglts and performed was not an inhabitant of Roclester on May 1, the duties of a citizen there, and in no other 1858, nor taxable therein for his personal place, and intended that his domicil should estate. Briggs v. Rochester, 16 Gray, be there. Held, that the suprene judicial (1860). court ought not to set aside a verdict wllich 77. The words in Rev. Sts. c. 7, ~, " where found, upon proof of the above facts, that his he shall be an ihllabitant on tile first day of domicil was in New Orleans. Cochrane v. Bos- May," are to be construed as meaning "wliere ton, 4 Allen, 177 (1862). he shall have his home" on that day. Ib. 70. It a minor leaves the domicil of his 78. A man's declarations as to the place of origin witl tlhe consent of his guardian, and his residence, andt his designation thereof in lives for two consecutive years exclusively in his will, are competent evidence after his another town, considering it as his home, with death, upon the question of his domicil, at a no definite intent on the part of his guardian time shortly after the making of the dleclarato cause him to return, lie acquires a new tions and of the will. W[ilson v. Terry, 9 domicil in the latter place, and his property is Allen, 214 (1864). properly taxable there. Kirkland v. JVhately, 78 a. After proof'of at man's declarations of 4 Alien, 462 (1862). his intention to leave a town, evidence is com71. A person is legally taxable for personal petent, upon the question of his domicil, that property in the town of which lie is an inhab- lie was not there, except occasionally and for itant when the tax is assssesed; but his elec- short visits, afterwards. Wilson v. Terry, 11 tion to pay such tax in one town rather than Allen, (1865). in another, is only one circumstance bearing 78 b. If on a question of domicil instructions upon the question of his actual habitancy, and were given to tile jury in the form of general must be taken in connection with the other propositions, which, when taken together, circumstances of the case, in order to deter- correctly express the law of the case and 84 TAXES, II. III. contain all necessary explanations and quali- able; and a second assessment made for the fications, a new trial will not be granted for purpose of rectifying the error is illegal and the reason that a single passage, taken ab- void. Lizglee v. Bosworth, 5 Pick. 498 stractly, may have been erroneous. Adams v. (1827). Nantuck/et, 11 Allen, (1865). 89. If assessors omit, through error of judgSee DoMICIL. ment or mistake of law, to assess a tax on an individual, the omission does not invalidate the assessment in regard to other persons. WTilliams v. Lunenburg, 21 Pick. 75 (1838). III. MANNER AND VALIDITY OF THE AS- 90. A tax is not rendered void by the omisSESSIBENT. sion of the assessors to tax all the property 79. An agreement between neighboring of an individual which ought to be taxed. towns, not to tax in one the lands of the in- Vcttson v. Princeton, 4' Met. 599 (1842). See habitants of the other in their owyn occupation, George v. Jlendon, 6 Met. 497. is invalid. Dillinghamn v. Snow, 5 Mass. 547 91. Where one is taxed and pays more (1809). than his due proportion of a town tax, in con80. Assessors are not compellable to assess sequence of the omission of the assessors to an illegal tax. They may exercise their tax other persons their due proportion, lie judgment on the subjects for which the money cannot maintain an action against tile town appears to be voted; and they may refuse to for money lhad and received, to recover back cause the collection to be enforced, if they any part of the tax so paid. Watson? v. deem the tax illegal. PARKiER, C. J., in Stet- Princeton, 4 Met. 599 (1842). George v. son v. IKemptoen, 13 Mass. 282 (1816). Meledon, 6 Met. 497 (1843). 81. It a tax is illegally assessed, it need not 92. Under St. 1823, c. 133, a tax was valid, be lost. Tie tax may be re-assessed, or although the assessors' list of assessments, the town may renew their vote to raise the and the rate lists committed to the collector, money. PArntR, C. J., in Libby v. Barn- contained no separate column for income. ham, 15 Mass. 148 (1818). Blackbuern v. TWValpole, 9 Pick. 97 (1829). 82. In assessing improved lands, it is not 93. The provision of statute requiring that necessary in invoices or tax lists to specify notice respecting an abatement to those who the number of acres; it is sufficient if the pay their taxes promptly, shall be posted up value of the land is stated. Welles v. Battelle, in public places, is merely directory to the as11 Mass. 477 (1814). sessors, and the plaintiff in an action of tres83. Taxes must be assessed upon a valua- pass against a collector for taking his goods in tion made for the year in which they are as- levying his tax, cannot avail himself of a failsessed, and cannot be assessed upon tile val- ure in this respect, as an objection to the vauation of the preceding year. Nason, v. lidity of the assessment. Sprague v. Bailey, [Whitney, 1 Pick. 140 (1822). 19 Pick. 436 (1837). 84. It is essential to the validity of an as- 94. Nor can the plaintiff in such an action sessment of taxes that the valuation on which avail himself of the omission of the assessors it is based, or a copy of it, should be depos- to follow precisely the form of valuation preited in the assessors' office. Thayer v. scribed by the statute. Ib. Stearns, 1 Pick. 482 (1823). See Blossom v. 95. A town voted to raise a certain sum Cannon, 14 Mass. 177; Gen. Sts. c. 11, ~ for the support of schools and another sum for 33. contingent expenses; and in assessing these 85. The assessment of half a poll tax upon sums, together with the county tax, the asan individual is, it seems, illegal. South- sessors made one list of the school tax and ampion v. Easthamprton, 8 Pick. 380 (1829). another of the county tax and the sum voted 86. Assessors cannot lawfully add more for contingent expenses, and on the first list than five per cent. to the amount of any tax the sum assessed exceeded the sum voted for which they are authorized to assess. Libby schools by more than five per cent.,but the exv. JBu.rnkham, 15 Mass. 144 (1818). Charle- cess on both lists together was less than five mont v. Conway, 8 Pick. 408 (1829). Gen. per cent. on tle whole amount to be raised by Sts. c. 11, ~ 32. taxation. It was held, that the assessment 87. Under a vote to raise the sum of $250, was valid. Alvord v. Collin, 20'Pick. 418 assessors have no authority to assess a tax of (1838). $285.01. Joyner v. Egremont, 3 Cush. 567 96. An assessment by the assessors of a (1849). town, in pursuance of a legislative grant and 88. The circumstance that in the assess- apportionment of a state tax, would be valid, ment of a tax, some individuals are assessed although made by the assessors without any who are not liable to the tax, does not vitiate warrant from the state treasurer. Ib. the assessment as respects those who are li- 97. So an assessment of a county tax, duly TAXES, III. 85 granted and apportioned among the several 103. Where a town chooses three assessors, towns in the county, would be valid, although two of whom are sworn, and the third does made by the assessors without any warrant not refise to accept the trust, but omits to from the county treresurer. b. take the oath of office, and when called upon 98. Where in the assessment of a tax on by the other two declines to act, and the town unimproved land of a non-resident proprietor, does not choose another in his stead, the otler the land, by mistake, was set in the list against two have authority to assess taxes. Geor ge the name of the previous owner, but was v. Mendon, 6 Met. 497 (1843). otherwise properly and sufficiently described, 104. If one of three assessors, after due the tax was held to have been legally assessed. notice, refuses to attend and act in assessing lb. a tax, the other two may proceed without him. 99. A building owned by one person and Williamns v. Locnenburg, 21 Pick. 75 (1838). standing by consent upon the land of another, 105. The list of estates, real and personal, should be assessed to the owner as personal which the inhabitants of towns are required and not as real estate. Flanzders v. Cross, to present to the assessors, before an assess10 Cush. 514 (1852). ment of taxes is made, is not intended to con100. The provision in Rev. Sts. c. 8, ~ 5, tain a statement of the estimated value of the (Gen. Sts. c. 12, ~ 6,) that "if, in the asses- property; and if the list contains a statement sors' lists, or in their warrant and list coin- of the value, such statement is not, by Rev. mitted to the collectors, there shall be any Sts. c. 7, ~ 22, (Gen. Sts.'c. 11, ~ 25,) conerror in the name of any person taxed, the elusive on the assessors; but they are to extax assessed to him mhy, notwithstanding such ercise their own judgment in estimating the error, be collected of the person intended to value of the property. i Vewbueryport v. Essex, be taxed, provided he is taxable, and can be 12 Met. 211 (1846). identified by the assessors," applies to the 106. Assessors have no power to waive the case of a person whose surname only is in- bringing in of such list. 1'Wi7'isimmaet Co. v. serted in the list of the valuation and in the Chelsea, 6 Cusli. 477 (1850). tax list committed to the collector.. Tyler v. 107. Such list must h)e brought in before i.ardclick, 6 Met. 470 (1843). See Trustees, thie tax is assessed. Porter v. Norfolk, 5 4c. v. Boston, 12 Cush. 56; Sargent v. Bean, Gray, 365 (1855). 7 Gray, 125. 108. Under Rev. Sts. c. 7, ~ 27, (Gen. Sts. 101. Where the assessors' list of valuation c. 11, ~ 31,) the omission to assess upon the and assessment of polls atnd estates did not polls one sixth part of the state tax renders exhibit in distinct columns the "true value the whole assessment illegal. Goodrich7 v. of real estate" and the "reduced value," LEunenb:trg, 9 Gray, 38 (1857). Gerry v. as required by the revised statutes, but con- Stonehncm, 1 Allen, 319 (1861). But see now tained a column of the "value," (and the Gen. Sts. c. 11, ~ 51. like as to personal estate,) it was held, that 109. An inhabitant of a town is not entitled the irregularity did not render the valuation to recover back the amount of a tax paid by and assessment void. Torrey v. Milillbury, himi therein, although, (1.) The record of the 21 Pick. 64 (1838). See Gen. Sts. c. 11, choice of assessors, by whom the tax was ~ 34. assessed, as originally made, did not show that 102. A town voted to raise and appropriate they were closen by b.llot. if they were in a certain sum for purchasing a fire engine, fact so chosen, and the record has been alnendprovided the same amount should be raised ed; (2.) The whole amount assessed in the by priv:;te subscription within ninety days, town Nwas less tlan the lwhole sum voted to be the engine to be located by tle selectmen. A raised, by a sumn exactly equivalent to the subscription was obtained for the sum re- amount voted for bridges, if there was also a quired, but on condition that the engine should vote at the satme meeting to repair the bridges be located in a particular place designated, by a labor tax; (3.) A vote was passed to and in consequence the assessors declined make a discount on such taxes on property as accepting it. Tlereupon, with the consent should be paid within a spiecified timle, but no of a portion of the subscribers, but without discount on poll titaes, and a direction to the knowledge of the others, thle condition this effect was inserted in thle warrant to the was erased; but one of the subscribers ver- collector; (4.) The valuation list was not bally guaranteed to the assessors that the deposited with the chairman of the assessors whole sum should be paid; and in this form until the day befiore the tax list was coammitthe subscription was accepted, and the sum ted to tile collector; (5.) The valuation list voted by tle town was assessed. It was contained no specification of particulars,under held, that there was a substantial compliance the several classes of property assessed, but with the proviso of the vote, and, therefore, only a general estimate of the value of each that the assessment was authorized. lb. class, if the plaintiff did not furnish to tho 86 TAXES, III. IV. assessors a list of his property. aobey v. iWasre`- iis office; and his oath need not be matter of hasn, 2 Allen, 594 (1861). record, but may be proved by parol. Ib. 110. This court cannot say that a city or 117. A collector of taxes is not obliged to town may be excused from levying a tax ac- return his warrant to the assessors. lb. cording to the requirement of St. 1863, c. 218, 118. A town record, showing a vote " to on the ground that an insufficient time was let out the collection of the taxes at auction allowed for the assessment and collection immediately to the lowest bidder whom the thereof, although the warrant for the tax was town will accept," the bidding off of the colnot received from tile state treasurer until the lection of taxes, and a choice of tle lowest ordinary taxes of such city or town had been bidder to be collector for the ensuing year, assessed and committed to its treasurer for shows a sufficient authority to the person collection. Louzell v. Oliver, 8 Allen, 217 elected to collect the taxes; especially if he (1864). has previously been chosen constable. lb. 111. Assessors of taxes are not bound by a 119. Where a person was chosen collector list of property brought in for assessment and of taxes " by bidding off the office at vendue,' sworn to, if it appears from an examination by which " he was to collect the taxes of the of the person who brings it in that it is not town for five per cent.," the election was sustrue. Icdll v. Hliddlescx, 10 Allen, 100 (1865). tained; but if the terms of the vendue had 112. Towns may raise money at a meeting been that the person who would collect the duly called after the annual meeting; and if taxes for the lowest compensation, should at at tle annual meeting they have voted to raise all events, without regard to his fitness or so mucl money as to require the assessment qualifications, be the collector, it seems, that of the full sum allowed by law to be assessed the election would have been illegal and void. upon polls in any one year, a tax subsequently Alvorcd v. Collin, 20 Pick. 418(1838). voted must be assessed only upon property. 120. A deputy collector appointed under Fcceland v. IIastiszgs, 10 Allen, 570 (1865). Rev. Sts c. 15, ~ 60, (Gen. Sts. c. 18, ~ 57,) 112 a. Sales of the stock of a manufactur- by a collector who is also town treasurer, ing corporation do not furnish the only test of may execute a warrant for the collection of the value of their real estate and machinery taxes, though he be appointed deputy before for the purpose of taxation, although the cor- tlhe warrant was issued, and though the warporation owns no other property than this rant be directed to the collector only. Aidreal estate and machinery, and owes no debts. rich v. Aldrich, 8 Met. 102 (1844). The market value of shares of stock in 121. If the facts under which a town treassuc! corporation is liable to be controlled by urer was to issue his warrant of distress, circumstances which do not affect the value under St. 1785, c. 46, against a collector, for of its real estate and machinery as a whole. neglecting to collect and pay over taxes colmC'hicopee v. iazmpclden, 16 Gray, (1860). mitted to him for collection, were properly 112 b. Stock in corporations established in certified to him, he had no discretion, but was other states is to be assessed to stockholders obliged to issue his warrant. lWaldrons v. in this state at its full value, and no deduction Lee, 5 Pick. 323 (1827). See now Gen. Sts. is to be mlade on account of taxation to which c. 12, ~ 51. such corporations are subject in the states 122. An assessors' warrant made out and whe1re they are established. Dwight v. Bos- signed by the assessors, with one seal affixed ton, 12 Allen, (1866). while they were together, and concluding See APPROPRIATIONS. with " given under our hands," without adding "' and seals," was held to be valid. BradIV. COLLECTION OF TAXES. ford v. Ranzdall, 5 Pick. 496 (1827). See now Gen. Sts. c. 11, ~ 39. (a) GenerPally. 123. A warrant to a collector of taxes, 113. A collector of taxes is competent to signed by only a majority of the assessors, is collect taxes granted and agreed on before his valid. Sprague v.. Bailey, 19 Pick. 436 appointment to office. Colburn7 v. Ellis, 7 (1837). Mass. 89 (1810). 124. The provision in the "act to amend the 114. Constables are ex officio collectors of revised statutes,"(Rev. Sts.page 804; Gen.Sts. taxes, when none others are appointed. Col- c. 12, ~ 16,) that when any person committed znan v. Andersosz, 10 Mass. 105 (1813). Gen. to jail for non-payment of taxes, sliall be disSts. c. 18, ~ 71. cliarged by taking the poor debtors' oath, 115. A selectman and assessor of a town "the collector shall be liable to pay the tax, may legally be chosen collector of taxes also. with the charges of imprisonment, unless he Howard v. Proctor, 7 Gray, 128 (1856). shall have arrested and committed the party 116. A collector of taxes may be sworn at within one year after the tax was committed any time before entering upon the duties of to him to collect," does not render the col TAXES, IV. 87 lector liable to pay for the support of the collector without paying his tax, and a warperson so committed, while in jail. Townsend rant has been issued to a deputy sheriff for v. fTalcutct, 3 Met. 152 (1841), its collection which onmits to set forth the fact 125. Taxes, being neither judgments nor of such removal, and the deputy sheriff colcontracts, are not subject to be set off in an lects the tax upon such warrant, the sheriff is action by a tax payer against the city entitled liable to the town for the default of his deputy to his tax. Peirce v. Boston, 3 Met. 520 in not paying over said tax to the town. lb. (1842). See Commonwealth v. PholBix BaCn7c, 11 Met, 135; Appleton v. Ilopkinis, 5 Gray, (b) By Action at Law. 533. 134. A collector of taxes cannot maintain 126. The provision in Rev. Sts. c. 8, ~ 5, an action to recover them in any case besides (Gen. Sts. c. 12, ~ 6,) that " if, in the asses- those in which an action is given to him by sors' lists, or their warrant and list committed the Rev. Sts. c. 8, ~ 15 (Gen. Sts. c. 12, ~~ to the collectors, there shall be any error in 19, 20). Grapo v. Stetson, 8 Met. 393 (1844). the name of any person taxed, the tax assessed 135. A collector of taxes, in an action to himu may, notwithstanding such error, be under St. 1789, c. 4, (Gen. Sts. c. 12, ~ 19,) collected of the person intended to be taxed, cannot recover interest on the amount of the provided he is taxable, and can. be identified taxes demanded in the action. Danforth v. by the assessors," applies to the case of a Williams, 9 Mass. 324 (1812). person whose surname only is inserted in the 136. If a person, after the assessment of a list of valuation and in the tax list committed tax upon him, leave the precinct of the colto the collector. Tyler v. cHardwick, 6 Met. lector, with the intention of returning at the 470 (1843). - expiration of six months, this is a removal, 127. A tax warrant is not void by reason of within the meaning of Rev. Sts. c. 8, ~~ 14, containing an assessment of real and personal 15, (Gen. Sts. c. 12, ~~ 18, 19,) which provide estate to two owners jointly, if it does not ap- that if any person, after being assessed, pear that the real estate was held by them as remove out of the precinct of the collector partners. fHowa-rd v. Proctor, 7 Gray, 128 without paying the tax, the collector may, in (1856). his own name, maintain an action therefor, 128. Nor by reason of containing an assess- in like manner as for his own debt. Iloughton ment of two poll taxes to two tenants in com- v. Daveinport, 23 Pick. 235 (1839). mon of land; nor by reason of assessing a 137. In an action brought by the collector number of poll taxes to one person. lb. of taxes for the town of Groton to recover a 129. A tax warrant, good upon its face, tax assessed upon the defendant for the year protects the collector acting under it, not- 1839, it being admitted that shortly before the withstanding any irregularity in the meetings tax was assessed the defendant was an inat which, or the votes by which, the taxes habitant of Groton; it was held, that the burwere assessed. lb. den was on the defendant to prove that lie 130. A warrant to a collector of taxes, had, before the first of May, 1839, changed which directs him to collect the amount of a his domicil. KIilbuen v. Bennett, 3 Met. 199 highway tax " in money or receipts from the (1841). surveyor of highways," is unauthorized by 138. When a person who is sued by a town law. Cheshiire v. lrowland, 13 Gray, 321 collector for the recovery of a tax, defends on (1859). the ground that he was not an inhabitant of the 131. A collector of taxes is not responsible town where he was taxed, at the time when the to the town for not collecting taxes under a tax was assessed, but had removed therefrom, warrant illegal on its face. lb. See Adams and this defence fails, he may then defend on v. Facrnsworth, 16 Gray,. the ground that he has not removed from the 132. When a person, after the assessment town since the tax was assessed. Crapo v. of a tax upon himl, removes out of the pre- Stetson, 8 Met. 393 (184-1). cinct of the collector without paying his tax, 139. A mortgagee of land, who has taken and the collector issues a warrant, under St. possession thereof for the purpose of foreclo1842, c. 34, (Gen. Sts. c. 12, ~ 18,) to the sure since the enactment of the General Statsheriff of the county or his deputy, for the utes, is liable to an action, under Gen. Sts. c. collection of such tax, the warrant must set 12, ~ 40, by the collector of taxes, for the unforth the fact that the person taxed has re- paid taxes thereon. Andrews v. TWores7ter moved out of the precinct of the collector Ins. Co. 5 Allen, 65 (1862), without paying his tax, or it is invalid. TWViliamstowa v. Willis, 16 Gray, (1860). But (c) By Arrest. see Cheeverr. ilerritt, 5 Allen, 563 (post, 186). 140. Under St. 1785, c. 70, ~ 7, taxes on 133. But in such case if in fact the person the unimproved lands of non-resident propritaxed has removed out of the precinct of the etors or on improved lands of proprietors liv 88 TAXES, IV. ing without the state, were not a personal in his favor, in an action against him for an charge, but a lien upon the land only, and unlawful arrest. I b. the proprietors could not lawfully be arrested 148. In the service of a warrant of distress for non-payment of such taxes. Rising v. for the collection of a tax, the collector cannot Granger, 1 Mass. 47 (1804). lawfully arrest tile body of a tax debtor, un141. A warrant for the collection of taxes, less he is unable to find property whereon to properly issued to a collector by a board of levy it, and by means of which payment of the assessors, is " a lawful warrant issued by a tax may be secured. IaZl v. fIal, 3 Allen, court of competent jurisdiction," within the 5 (1861). meaning of St. [837, c. 221, ~ 1, (Gen. Sts. c. 149. One who is unlawfully arrested and 144, ~ 42,) and a person who is arrested upon committed to prison on a warrant of distress such warrant by the proper officer, for non- for the collection of a tax, may show, as compayment of taxes, is not entitled, as of right, petent evidence on the question of damages, to the writ of personal replevin, and to be in an action to recover for the illegal arrest thereby delivered. Aldrich v. Aldrich, 8 and imprisonment, the manner in which he Met. 102 (1844). lived while detained in prison, if he was sub142. A warrant issued by assessors for the jected only to the ordinary inconveniences of collection of a tax, justified the arrest by the persons lawfully detained there. Ib. collector of a party on whom a tax was assess- See ACTIONS 14. ed, although he might have received a certificate of discharge under the United States (d) By Distress and Sale; Lien on Land. bankrupt act of 1841. The question whether 150. A collector of taxes can sell a distress such certificate released the party from the taken by him only under statute authority, as tax could not be tried in an action against he derives no authority to sell from the comthe collector. Ib. mon law. Caldwell v. Eaton, 5 Mass. 403 143. A collector of taxes, under a warrant (1809). Crapo v. Stetson, 8 Met. 393 (1844). from the assessors in which the time for the 151. If goods distrained for non-payment of completion of the collection of the taxes taxes be sold by the collector after the expitherein mentioned is specified, may arrest a ration of the time limited by statute for makperson for the non-payment of his tax, after ing such sale, the delay renders the collector the expiration of the time limited in the war- a trespasser ab iniio; and he is liable to an rant for the collection and payment of tile tax. action by the owner for the conversion of the Bassett v. Porter, 4 Cush. 487 (1849). goods, although no demand thereof be made 144. The St. of 1855, c. 444, abolishing im- before the commencement of the action, the prisonment for debt, does not apply to a war- tortious taking of personal property being a rant of distress for non-payment of taxes. conversion. Pierce v. Benjazzin, 14 Pick. Appleton v. IlopciZns, 5 Gray, 530 (1855). 356 (1833). See Gen. Sts. c. 12, ~ 8. 145. A non-resident owner of real estate may 152. In such action it appeared that the colbe arrested for non-payment of taxes thereon, lector applied the proceeds of the sale in part after clue demand upon him, and failure of the payment of the tax, and that the owner subseofficer upon diligent search to find any goods quently paid him the residue and required a belonging to hiin or on the estate. Snow v. receipt for the whole amount of tle tax in orClark, 9 Gray, 190 (1857). der that he might settle with his landlord. It 145 a. An officer, who returns upon a war- was held, that this was not a waiver of the right rant for the collection of a tax assessed to bring the action. Ib. upon real estate to a non-resident owner 153. In such action- it was held, that the thereof, that "having made diligent search measure of damages was the value of the for goods of" the said owner " and for goods goods, deducting the amount applied by the upon the said real estate, whereon to levy this collector to the payment of the tax. 1b. warrant," lie arrested the said owner, does not 154. The provision in the tax act of 182-4, make himself liable as a trespasser, by not (Gen. Sts. c. 12, ~ 22,) that. "' whenever any more distinctly stating that he was unable to tax shall be assessed oif any real estate liable find such goods. Ib. to taxationyssaid' tax shall be a lien on said 146. A collector of taxes has no right, under estate," extends to county and city taxes as the Rev. Sts. c. 8, ~ 11, (Gen. Sts. c. 12, ~ well as to state taxes, Hlayden v. Foster, 13 13,) to take the body for non-payment of Pick. 492 (1833). taxes,if sufficient property is shown to him upon 155. Where separate and distinct real eswhich to levy; although fourteen days have tates belong to the same owner, they are to be elapsed since a demand of payment. Lothrop considered as distinct subjects of taxation, v. Ide, 13 Gray, 93 (1859). and must be separately valued and assessed; 147. The return of a collector of taxes and each estate is subject to a lien for the upon his warrant is only primafacie evidence payment of that portion only of the owner's TAXES, IV. 89 tax which shall be assessed on each particu- 164. Under the Rev. Sts. c. 8, ~ 8, (Gen. lar estate. Ib. See Howe v. Boston, 7 Cush. Sts. c. 12, ~ 8,) a collector of taxes, who 276. distrains goods, may post a notification of the 156, Where, at a sale of goods for the non- sale thereof before the expiration of four payment of taxes, the collector of taxes be- days after the seizure. lb. came himself the purchaser, it was. held, that 165. The return made by a collector on his such sale was voidable, at the election of the warrant, of his doings in making a distress owner of the goods. Pierce v. Benjamin, 14 for taxes, is so far an official act as to be priPick. 356 (1833). macfacie evidence in his favor, on the trial of 157. It seems, that in such case the owner,in an action against him for making the distress. order to maintain an action for the conversion And a demand by him of payment of a tax of the goods, must elect to annul the sale be- before he made distress for it, may be shown fore the commencement of the action. Ib. by his return. The return must be taken to 158. Where in the advertisement of a sale be true, until it is impeached: and if it is of unimproved lands of non-resident propri- impeached merely by showing facts which etors for the payment of taxes, a parcel of would justify the collector equally well with land was set against the name of the previous those stated in his return, he may rely on such owner, through ignorance of its having been facts to sustain his justification. lb. conveyed, but the amount of the tax, the time 166. A collector's notification of the sale and place of sale, the town in which the land of a horse, distrained for non-payment of a lay, the number of the lot, and the quantity tax by the owner, need not menetion the of the land were expressed, it was held, that owner's name, nor describe the horse, nor state the notice of sale was sufficient. Alvord v. the amount of the tax; nor is such notificaCollgi, 20 Pick. 418 (1838). tion vitiated by the collector's adding to his 159. Where a witness, upon being shown a signature the word "constable" instead of writing certifying that a notice of a sale was collector, lie being in fact constable as well as posted up in his inn, testified that the signature collector. lb. was in his handwriting, and that he had no 167. A warrant to collect taxes, issued by doubt the certificate stated the truth, though assessors to a collector, does not authorize he did not recollect the fact; it was held, that him to collect a tax by distress, unless it is the posting up of the notice was duly proved. accompanied with a tax list; but it is not 1b. necessary that the tax list should be annexed 160. Where the only defect in a warrant to the warrant. lb. issued by assessors to a collector of taxes is 168. The third section of St. 1848, c. 166, an omission to direct him to sell distrained requiring that the advertisement of the timhe goods within seven days, he is justified by and place of sale of real estate taken for such warrant in distraining goods and selling taxes shall " in addition to the provisions conthem within seven days according to law. tained in Rev. Sts. c. 8, ~ 25, contain a subKii.g v. WVhitcomb, 1 Met. 328 (1840). stantially accurate description of the righlts, 161. A demand by a collector of payment lots or divisions of the real estate to be sold," of a tax assessed on a non-resident, who has is only explanatory of the statute referred to, no agent or attorney within the Common- under which a description, though not exwealth, is sufficient to justify a subsequent pressly required, was necessary, by which the seizure and sale of his goods, if such demand owner might know what rights, lots or divisbe made at his last and usual place of abode ions were to be sold. Farit7um v. Bumff amn, 4 in the town where he is taxed. Ib. Cush. 260 (1849). See Gen. Sts. c. 12, ~ 29. 162. A distress for the non-payment of a 169. Where, in an advertisement of the tax cannot be made after the death of the per- time and place of sale of real estate taken for son on whom the tax is assessed. Wilson v. taxes, estates were described in these terms: Shearer, 9 Met. 504 (1845). "M. B. house and land," and " L. E. house, 163.. Though a warrant to a collector barn and one hundred and fifteen acres of erroneously direct him, for want of goods and land," L. E. being a tenant of M. B., but chattels, whereon to make distress," for the. M. having at the tihe taken possession of space of twelve days after demanding pay- the estates under a mortgage from MI. B. to ment, (instead of fourteen days, as directed him; it was held, that I. M. was the owner, by the Rev. Sts. c. 8, ~ 11; Gen. Sts. c. 12, and that his name not being stated in the ~ 13,) to take the body, &c., yet if the war- advertisement, there was no sufficient derant be in other respects sufficient, this error scription within the Rev. Sts. c. 8, ~ 25, protherein will not vitiate it, so as to render il- viding that where the name of the owner is legal a distress made by virtue of it, if, in not known to the collector, the advertisement making the distress, the warrant be execu- shall state the amount of the taxes on the ted according to law. Barnard v. Graves, several rights, lots or divisions of the real 13 Met. 85 (1847). estate to be sold. Ib. 90 TAXES, IWe: 170. In proving the posting of a notice by also the rights of the mortgagee. Parker v. the collector of the time and place of sale of 2Bazter, 2 Gray, 185 (1854)o See Gen. Sts. real estate taken for taxes, in some convenient c. 12, ~~ 35, 36. and public place within his precinct, three 178. A sale and conveyance of land by a weeks before the time of sale, as required by collector of taxes for non-payment of taxes Rev. Sts. c. 8, ~ 27, the time when such assessed thereon to William S. H., but innotice was posted must be fixed with certainty, tended by the assessors to be assessed to and its contents must be sufficiently shown, Charles S. H., under a warrant in which the in order to identify it with the notice required first name of the owner, as originally written, to be published by ~ 24 of the same chapter. has been erased by the collector, and the lb. See Gen. Sts, c. 12, ~~ 28-30..name of Charles inserted, with the addition of 171. Where the advertisement and notice the words, " or owner unknown," and after of sale of real estate for non-payment of notices of sale in which Henry S. I. is mena tax of three dollars and thirty cents, state tioned as the owner, is not sufficient evidence the amount of the tax to be four dollars and of title against one who has been in possession twelve cents, the sale is void. Alexander v. of the land ten years. Sargent v. Bean, 7 Pitts, 7 Cush. 503 (185.1). Gray, 125 (1856). 172. A., residing in another state, owned a 179. A collector of taxes is not obliged to building in Lawrence, in this state, standing return his warrant to the assessors; he may by consent on land of another person. The make a distress after the first of January building was taxed to A. in Lawrence, as real next succeeding his election; he may include, estate belonging to a non-resident, but, was in the legal costs of a sale of property for the subsequently sold by the tax collector as per- non-payment of a tax, a commission or personal property. flsd, that the sale was void. centage on the amount of the tax, for his own Flanders v. Cross, 10 Cush. 514 (1852). compensation. IHoward v. Proctor, 7 Gray, 173. The purchaser who enters on premises 128 (1856). sold for non-payment of an illegal tax, is 180. A collector of taxes, holding two tax liable in trespass to the real owner. lb. warrants, may make one sale of property for 174. Where bank shares are seized and non-payment of the whole amount of taxes sold by a collector of taxes, in the manner due under both. lb. provided by St. 1846, c. 195, (Gen. Sts. c. 12, 181. If any demand is required before dis~~ 10, 11,) on a warrant from assessors having training for non-payment of taxes, a demand jurisdiction of the subject matter, and pri2ma for payment of taxes assessed on two jointly facie a lawvful authority to issue such warrant, may be made on them on different days. Ib. and there is nothing on the face of the pro- 182. A tax warrant, good upon its face, proceedings to indicate any waat of jurisdiction tects the collector acting under it, notwithor any error or defect therein, the cashier of standing any irregularity in tile meetings at the bank is authorized (if not required) to which or the votes by which the taxes were issue a new certificate of such shares to the assessed. lb. purchaser, who will thereupon become en- 183. The owner of land advertised for sale titled to accruing dividends, whether the tax, for non-payment of taxes, but not yet sold, on for the payment of which the shares are sold, tendering the amount due for taxes thereon, be rightly assessed or not. Smith v. Northl- cannot be required to pay to the collector fees amapton Balnk, 4 Cush. 1 (1849). See post, 207. for a levy upon the land, or for travel to make 175. A sale of bank shares for non-payment a return to the state and county treasurers, or of town taxes assessed upon their owner, for a commission on the tax. Converse v. Jenmust be made within seven days after the nings, 13 Gray, 77 (1859). seizure, or the sale is void, and passes no 184. A tax title under Rlev. Sts. c. 8, ~~ 28, title to the purchaser. Noyes v. lfaverhill, 29, (Gen. Sts. c. 12, ~ 33,) is not valid unless 11 Cush. 338 (1853). Gen. Sts. c. 12, ~~ it appears by the collector's deed or otherwise 8-11. that the land was so divided that no greater 176. If the return of the tax warrant shows portion thereof was sold than was necessary that such sale was made twenty days after to satisfy the tax and intervening charges, or seizure, the bank are not bound to issue a that it could not be conveniently divided to certificate of tile shares to the purchaser, for that extent. Crowell v. Goodwin, 3 Allen, 535 the owner's title is not devested. Ib. (1862). 177. Under chapters 7 and 8 of the revised 185. If the charter of a city provides that statutes, a tax on real estate, assessed to the the city council may establish provisions for mortgagor in possession, constituted a lien on the collection of taxes, in addition to those the whole estate; and a sale of the estate, for prescribed by the laws of the Commonwealth, non-payment of the tax, passed to the pur- a city ordinance is valid which directs the colchaser not only the equity of redemtion, but lector, before proceeding to collect taxes by TAXES, IV. V. 91 distress, to issue a summons to delinquent his remedy against the illegal tax on his poll persons assessed, and authorizes him to collect and personal property is not merely by an twenty cents therefor; and a warrant of dis- appeal as for over taxation, but in case he is tress issued by tle collector of such city, un- compelled to pay the same, he may recover der St. 1842, c. 34, (Gen. Sts. c. 12, ~ 18,) is back the money in an action against the town. not void by reason of requiring the collection PJrestan v. Boston, 12 Pick. 7 (1831). of twenty cents for such slummions. Cheever 192. The Boston Watej Power Company v. Merritt, 5 Allen, 563 (1863). were taxed, on separate valuations, for their 186. If a person after the assessment of a mill, and for land owned by them in fee, which tax upon him, has removed out of the precinct was used solely for the flowing of water from of the collector without paying his tax, the their mill. lelde that if the mill and land collector's warrant of distress to the sheriff of might have been valued and assessed together, the county or constable of the town where he as one estate, and if the taxes, as assessed, may be found, under St. 1842, c. 34, (Gen. Sts. were too large, yet that they were not void, c. 12, ~ 18,) need not recite the facts which and therefore, if paid, could not be recovered authorize the collector to issue it. Ib. But back by action; but that the remedy was by see. Williamstown v. WTillis, 16 Gray, application to the proper authority for an (ante, 132). abatement. Bostonz Water Power Co. v. Boston, 187. A collector's deed of real estate, sold 9 Met. 199 (1845). by him for taxes, is invalid, under the statutes.193. If the husband of a woman for whom of this commonwealth, if it does not state personal property is held in trust, is possessed that the taxes were not paid within fourteen of personal property for which he is liable to be days after demand. I-arrington v. Worcester, taxed, and is improperly taxed for a larger 6 Allen, 576 (1863). amount than lie otherwise would be, on ac188. If a tax title proves invalid, the pur- count of such property in trust, his only remchaser at the colleetor's sale cannot maintain edy is by an application to the assessors for an action against the town to recover back the an abatement. Bates v. Boston, 5 Cush. 93 money paid by him as the consideration of the (1849). purchase, and the expenses of defending his 194. One who is liable to be taxed in a city title. Lynde v. MIelrose, 10 Allen, 49 (1865). or town for real and personal property cannot But see St. 1862, c. 183, ~ 6. maintain assumpsit against the city or town to See ESTOPPEL; post, 199, 201, 207. recover back any part of a tax assessed upon and paid Ly him, on the ground that the assessors, in their valuation list, assessed certain lots of land separately which should have A been assessed together, and assessed other V. REEDY FOR AN ILLEGAL lots as one estate, which should have been as(a) Whether by Action or Abatement. sessed separately; nor on the ground that one 189. Where one who has personal property item in the valuation list included personal liable to taxation is overrated by the assessors, property held by him in his own right and also by their including in the valuation property personal property held by him as guardian for of which hle is not the owner, or that for which a person residing in another town, in which he is not liable to be taxed, his only remedy such property was legally taxed. Litncoln v. is by an application for an abatement, pursu- Worcester, 8 Cusli. 55 (1851). ant to the statute, and he cannot maintain any 195. One who is taxed in the city where he action at law to recover back the tax, if paid. is an inhabitant, for his own personal estate; Litle v. Greenleaf, 7 Mass. 236 (1810). Osborn and is also taxed, in a separate tax bill, by v. Dancers, 6 Pick. 98 (1828). And see 17Wright one valuation, for personal and real estate held v. Boston, 9 Cush. 233. See 8 Allen, 333. by him " as trustee and guardian of" three 190. So where a person, who is liable to be persons flamed, of one of whom,' wllo is a taxed in a city or a town for any real estate, minor, he is guardian, and taxable as such; is overtaxed by the assessors, whether the ex- cannot maintain an action against the city to cess is caused by too high a valuation of real recover back the tax so assessed on the propestate for which lie is liable to be assessed, or erty held by him as trustee for tlie two others by including in the valuation estates for which named, though they are of age and inhabitants he is not liable, his only remedy is by applica- of the Commonwealth. Bourne v. Boston, 2 tion to the assessors for an abatement. HIowe Gray, 494 (1854). v. Boston, 7 Cush. 273 (1851). 196. An inhabitant of this state, Wxio has 191. If a person owning real estate in a no personal property or taxable income, may town iii which he does not reside, is assessed maintain an action against the city of his resby the assessors of such town for his poll and idence to recover back a tax unlawfully aspersonal property as well as for his real estate, sessed to him on personal property in other 92 TAXES, V. states held in trust for him. Dor'r v. Boston, paid. It was held, that such inhabitant could 6 Gray, 131 (1856). not maintain assumpsit against the town for 197. Whether partners, taxed by one entire the amount of the taxes assessed upon and paid assessment, in a town in which they have no by him for the support of the schools. Withplace of business, for stock in trade employed ington v. Harvard, 8 Cush. 66 (1851). there in a manufactory occupied by them, and 205. A tax payer cannot maintain an acfor other personalproperty, can, if the tax on tion against the town for his proportion of the the other personal property is illegal, recover expenses of the burial of persons not paupers, back by action the whole tax, or at least that paid by the town out of the money raised by part of it, qucere. Lee v. Templeton, 6 Gray, town taxes. lb. 579 (1856). 206. It is no ground for retaining a tax illegally assessed by a school district against (b) Of the Action to recover back. an inhabitant, who has paid the same, that 198. If part of a tax is valid and part void, the sum so received of him was only his due only the part which is void can be recovered proportion of the amount necessary to disback by the person assessed. Torrey v. Mill- charge the debts of the district, and for paybury, 21 Pick. 64 (1838). And see Gen. Sts. ment of which the district might have legally. 11, ~ 54; c. 12, ~ 56. raised asufficient sum. Joyner v. Egremoint, 199. Where a person refused to pay a tax 3 Cush. 567 (1849). valid in part and void in part, and it was col- 207. If bank shares have been seized for lected by distress, it was held, in an action in non-payment of taxes due from their owner, which he recovered back the void part, that and disposed of by the collector by a sale he was not entitled to recover back the costs which was illegal and void, the owner cannot of the distress, the warrant having been maintain assumpsit against the town to recover frightfully issued for the valid part of the tax. the proceeds of the sale, although they have lb. been paid into the town treasury. Such pro200. When taxes, illegally assessed and ceeds belong to the purchaser of the shares, paid under protest, are recovered back by as he obtained no title to the shares under action, the plaintiff is entitled to interest the collector's sale. Noyes v. laverhill, 11 thereon from the time of payment. When Cush. 338 (1853). such taxes, so recovered, were paid upon 208. A manufacturing corporation, who are compulsion, without protest, the plaintiff is taxed in the town where their real estate is entitled to interest thereon from the time of situated and their machinery employed, for demanding repayment; or from the date of such real estate and machinery, and also for the writ, when no previous demand is made. their stock in trade and other personal propBoston 4- Sandwich Glass Co. v. Boston, 4 erty, and pay the whole tax, may mainMet. 181 (1842). tain an action against the town to recover 201. A person of whom a tax, illegally as- back the latter portion of the tax; and are sessed, has been collected by distress, can not estopped to maintain such an action, by recover of the town, in an action for money having, before the assessment of the tax, sent had and received, only the amount of the tax, in to the assessors a statement of their taxable with interest thereon from the time of the property, including all these items, if the sale, and not the surplus value of the property assessors did not assess upon that valuation, sold, nor the costs of distress. Dow v. Sud- and knew that they were a corporation. Dunbury, 5 Met. 73 (1842). Shaw v. Beckcet, 7 nell Manuf. Co. v. Pawtucket, 7 Gray, 277 Gush. 442 (1851). (1856). 202. Assessors may recover of a town, on 209. A person who has paid his tax within an express promise, the amount of an illegal the time prescribed by the town, and thus obtown tax which was irregularly assessed by tained a discount thereon, cannot maintain them and dollected and paid to the town, and an action against the town to recover back which, on account of such irregularity, the the amount, upon the ground that the tax was assessors were compelled to pay to the per- illegal by reason of too small a portion of the sons taxed. Nelson v. Milford, 7 Pick. 18 state tax having been assessed-bn polls; even (1828). - if he paid under-pr6test. Lee v. Templeton, 203. But without an express promise by 13 Gray, 476&-(1859). Ahe town such action would not lie; nor would 210. A vote by the inhabitants of a town to it lie upon such promise for state or county appropriate money to celebrate the Fourth of taxes. Ib. July, and to raise for town expenses a sum 204. A town voted to let an inhabitant, who which includes such appropriation, renders sent his children to school in another town, an assessment illegal which is based thereon; " draw his proportion of school money; " and and a plaintiff is not estopped from maintainreconsidered this vote before the money was ing an action to recover back money paid for TAXES, V. 93 a tax so assessed, by proof that, after the vote assessors to give notice to the inhabitants to thus to appropriate money, he, as selectman, bring in lists of their estates will excuse tax presented to the town an estimate of the prob- payers fr;om bringing them in, (and tile court able town expenses for the year, which in- do not decide that such omission will have that eluded that sul. Gerry v. Sooneham, 1 Allen, effect,) the burden of proving such want of 319 (1861). See St. 1861, c. 165. notice is on the tax payer. Ib. 211. TheSt. of 1859,c.118, ~4,(Gen. Sts.c.11, 217. The list required by St. 1853, c, 319, ~ 54,) which provides tlhat " whenever, by any like that required by Rev. Sts. c. 7, ~~ 19, 40, erroneous or iilegal assessment or apportion- (Gen. Sts. c. 11, ~~ 22, 4G,) in order to enment of taxation, any party is assessed more title an individual to apply for an abatement or less than his due and legal proportion, such of his tax, must be brouglt to tlle assessors tax and assessment slall be void only to the before the tax is assessed. Porte,' v. Norlfolk, extent of tle illegal excess of taxation, when- 5 Gray, 365 (1855). ever such exists; and no party shall recover 218. It cannot be filed after an appeal from in any suit or process based upon such error the assessors to the county commissioners. or illegality greater damages than the amount Otis Co. v. TWare, 8 Gray, 509 (1857). of such excess," does not apply to an action 219. The omission by a tax payer to bring pending at tile time of its passage. lb. in to the assessors a list of his property veri212. No action lies to recover back a tax fled by oath, within the time prescribed by paid before process had been issued for its statute,is no ground for dismissing a petition collection, although the tax was illegal. Bar- to the county commissioners for the abatement r'ett v. Camnbridge, 10 Alien, 48 (1865). of. a tax, if the assessors expressly assented 212 a. Evidence of the usage of assessors to the delay, and a list verified by oatlh was for many years in making certain deductions brought in before the filing of the petition for in assessing a certain class of taxes, is insuf- abatement. Lowell v. Mliddlesex, 3 Allen, ficient to control the legal interpretation of a 546 (1862). provision of statute concerning taxation. 220. But assessors have no power to waive Dwight v. Boston, 12 Alien, (1866). the bringing in of the list. 1Winnisimmet Co. See Watson v. Princeton, 4 Met. 599 (ante, v. Chelsea, 6 Cush. 477 (1850).. 91); Teob^y v. TWreham, 2 Allen, 59'4 {(ante, 221. The statutes providing that no abate109D); Liocoln v. Wlorester, 8 Gush. 55 (ant, m ent shall be made of the taxes assessed upon 1094)- Les v. Templetoest, 6 Gray, 579 (ante, any individual until he shall have filed with 197); APPviOPKIATIONS, 23. the assessors a sworn list of his estate, applies to corporations. Otis Co. v. Warze, 8 Gray, (c) Of the Abatement. 509 (1857). 222. A railroad company gave in a tax list 213. The judgment of the county commis- as follows: "To the assessors of the city of sioners upon a complaint for the abatement of C. The F. R.R. Co. submit and bring in the a tax is a judicial act, and consequently a following list of all the estate of said Co. in mrandamul s does not lie to compel tlem to re- said C. subject to taxation, being all the real vise such a decision. Gibbs v. IIampdeen, 19 estate of said Co. in said C. except that emlick. 298 (1837). braced and contained in the location of said 214. If in such a case they err in matters of Co.'s railroad, made and filed according to law, a writ of certiorari is tle proper remedy. law, that is to say, three hundred and fortyIb). Lincoln v. Worcester, 8 Cush. 61 (1851). eight thousand and three hundred and ten JV'zebu.rsyp)ort v. Essex, 12 Met. 211 (1846). square feet of land and wharf with the build215. The statute requirement that the ings thereon - the same lying between Prison owner of taxable property must carry in a list Point, so called, and Warren Avenue, valued of his estate to the assessors, in order to en- at ~350,000. F. R.R. Co., by MI. D. B., Treastitle him to an abatement, is not complied with urer. Then personally appeared M. ). B., by an exhibition to the assessors of a plan of Treasurer, and made oath that the above lls real estate, or by referring them, orally, statement by him subscribed was true. T. to a former list carried in by him two years G., Assessor." It was held, that this was a efolre; nor is the fact that the assessors are sufficient tax list under St. 1853, c. 319, ~ 3 satisfied without a list equivalent to the bring- (Gen. Sts. c. 11, ~ 46). Charlestown v. Miding in of one. Winnisimmet Co. v. Chelsea, dlesex, 1 Allen, 199 (1861). 6 Cush. 477 (1850). 223. Upon a petition for an abatement of 216. It is no good cause for an omission to taxes, on the ground of an over valuation of carry in a listof taxable property tothe assess- property, county commissioners have no ors that the party assessed is a corporation; power to increase the taxes upon the same or or that the estate taxed is owned in part by other property of the petitioner. Lowell v. non-resident proprietors. If an omission by Middlesex, 3 Allen, 516 (1862). 94 TAXES, V. -TREASURER, 224. Nor have they authority, upon such ors thereupon assess the same, a person petition, to allow costs to the petitioner. lb. arrested for not paying the tax cannot main225. Under a petition for an abatement of tain trespass against the clerk, the injury taxes, county commissioners have no author- being but a remote consequence of his act. ity to allow costs to either party. Lowell v. Taft v. Metcalf, 11 Pick. 456 (1831). ilciddlesex, 6 Allen, 131 (1863). 234. A collector of taxes, acting under a 226. Under a petition for an abatement of warrant from the assessors, is not responsible taxes, county commissioners have no author- to the party on whom lie levies a tax, for the ity to allow to the petitioner interest upon the regularity of the town meeting, or the validity amount abated, which had been paid by him of the votes at the meeting at which the tax under protest. Lowell v. Middlesex, 3 Allen, is granted. Sprague v. Bailey, 19 Pick. 550 (1862). 436 (1837). 227. Assessors have no power to abate a tax 235. The return of a collector of taxes upon after their term of office has expired. CGhe- his warrant is only primrc facie evidence in shire v. llowland, 13 Gray, 321 (1859). his favor, in an action against him for an unlawful arrest. Lothrop v. Ide, 13 Gray, 93 (d) Of Actions against Assessors and others. (1859). 228. The assessors of a town are not re- 236. When a tax warrant is good on its sponsible to a person assessed for any unin- face and sufficient in form, and the assessors tentional error committed by them in the as- have jurisdiction of the subject, a collector is sessment of a tax. Iagraharm v. Doggett, 5 not liable for its due execution. Hays v. Pick. 451 (1828). And see Gen. Sts. c. 11, Drake, 6 Gray, 3S7 (1856). ~ 51. 237. But a warrant bad on its face affords 229. Where a poll tax is assessed upon a no protection to the collector. Eames v. person in a town of which he is not an inhabi- Johason, 4 Allen, 382 (1862). taut, and is collected by distress, the assessors 233. Under Rev. Sts. c. 25, ~ 12, if a highare responsible for such assessment, the St. way tax is not woked out or pid during tle 1823, c. 133, ~ 5, exempting tlhem from re- year in which it is assessed, it must be placed sponsibility, not being applicable to such case; in the next assessment of a town tax upon the and it is not a defence that the residence of delinquent, and not afterwards; and if it is the person taxed was included within the placed in a subsequent assessment, and the boundaries of such town as perambulated. ta list a warrat show upon their face the Freemlna v. Ketnney, 15 Pick. 44 (1833). See year in which it was originally assessed, and Gen. Sts. c. 11, ~ 51. the tax is collected by seizure and sale of 230. Assessors of a town, conducting them- property, an action therefor lies against the selves with fidelity and integrity in assessing collector, and such assessors as directed the a tax, in pursuance of a vote duly certified to proceedings of the collector. lb. them, are not responsible in any form of action, since Rev. Sts. c. 7, ~ 44, (Gen. Sts. c. 11, ~ 51,) for accidentally assessing a person TREASURER. not an inhabitant of the town and not liable 1. If the inhabitants of a town have authorto be taxed. Baker v. Allen, 21 Pick. 382 ized their treasurer to borrow a certain sum (1838). of money for a specific purpose, and to give 231. In an action against assessors for his note as treasurer therefor, and he lhas excausing the plaintiff to be arrested for non-pay- ercised this authority, they are not liable upon ment of a tax, if the town records no not show a note given by himn in their name for money that the defendants were duly sworn as assess- subsequently borrowed by him and converted ors, evidence is admissible to prove the fact. to his own use, althourgh le assumed to be Pease v. Smith, 24 Pick. 122 (1834). acting under the authority conferred upon 232. The provision of Rev. Sts. c. 7, ~ 44, him, and the lender supposed he was doing (Gen. Sts. c. 11, ~ 51,) exempting assessors so. Lowell Savings Bank v'. WVinclhester, 8 from all responsibility, excepting "only for Allen, 109 (1864)., the want of integrity and fidelity on their own 2. If the inlabit.ants of a town have by vote part," does not extend to the assessment of a authorized their treasurer to borrow money school district tax, where the district has no for the adjustment of a state tax for the reimlegal existence. Bassett v. Porter, 4 Cusb. bursement of bounties to volunteers, and the 487 (1849). Dickinson v. Billings, 4 Gray, tax has been adjusted without the necessity of 42 (1855). borrowing money, his authority to borrow 233. If the clerk of a school district wrong- money under that vote thereupon ceases. fully certifies to the assessors of the town Benoit v. Oonwcay, 10 Allen, 528 (1865). that at a legal meeting of tihe district it was 3. If a town treasurer without authority voted to raise a sum of money, and the assess- borrows money on the credit of the town, and TREASURER - TRUSTS - WATER. 95 gives his note as treasurer, and mingles the the personal estate into money and pay her money with his own private funds, by deposit- debts and funeral expenses, and to appropriate ing the same to his own credit in a bank where the residue to the purposes above named by he keeps an account in his own name, and erecting a building, buying books and setting uses the whole fund indiscriminately for the apart a fund for the future purchase of books payment of his own debts and the debts of and the establishment of a reading-room; and the town, so that the borrowed money cannot she provided that the town should foreverpay be specifically traced as having been applied all the incidental expenses of managing and in payment of the debts of the town, the insuring the library and building. The town lender cannot maintain an action against the at first voted to accept these provisions, and town for money had and received. lb. chose trustees accordingly; but afterwards re4. Authority in a town treasurer to borrow considered this vote, and voted to decline to money on the credit of the town cannot be accept the same. It was held, 1. That the established by proof of a long continued will gave the estate to the town in fee. practice of the treasurer to borrow money 2. That it was the duty of an administrator and give and pay notes therefor, without with the will annexed to collect the personal any votes of the town, and at the end of assets and pay the debts and funeral expenses each year to report to the town a list of of the testatrix, and that the direction to the the amounts borrowed and of the notes trustees to do these things was inoperative given and paid, and of the acceptance of such and void. 3. That the trustees were vested reports by the town; there being no such with a power coupled with a trust, which enreport of the borrowing of the money in con- titled them to seek the instructions of this troversy. Ib. court as to the proper discharge of their duty. See ACTIONS, 7, 29-31; APPROPRIATIONS. That under Gen. Sts. c. 100, trustees for 35; BONDS; FINANCE; TAXES, 120, 121. charitable trusts need not give bonds. 5. That 35; B S IE, 10, 17 the trusts created by this will were claritable trusts, although a burden was annexed to the acceptance thereof by the town. 6. That the TRUSTEE PROCESS. town had power to accept the same; and after doing so cannot renounce the same. 7. That See ACTIONS, 54-59. the town, by accepting these provisions, could not bind itself to expend more money than is allowed by Gen. Sts. c. 33, ~ 9, for that purpose. 8. That the charitable trusts TRUSTS. will not be defeated nor the estate forfeited 1. A city, in its corporate capacity, may by a failure on the part of the town to pay the act as trustee of a fund left by will, with a expenses put upon them by the will. Drury provision that the income thereof shall be ex- v. Natick, 10 Allen, 169 (1865). pended in the purchase of fuel, "to be given, See PUBLIC BUILDINGS, 1; SCHOOLS, 21. or sold at low prices, as may be deemed best l)y the trustees, to such worthy and industrious persons as are not supported in whole or in part at the public expense, but who may need WATER. some aid in addition to their own labor to 1. The city of Boston did not, by St. 1846, enable them to sustain themselves and their c. 167, acquire the fee of land taken for the families during the inclement season of the construction of the aqueduct from Long year; such aid to be afforded in the most Pond, but only such an easement therein as is private manner possible, and the names of the necessary for the purposes of the water works. recipients to be withheld from the public." HIarbackc v. Boston, 10 Cush. 295 (1852). WTJebb v. lNeal, 5 Allen, 575 (1863). 2. The owner of land taken under St. 1846, 2. A testatrix by her will gave all her real c. 167, for supplying the city of Boston with and personal estate, after payment of debts pure water, may maintain:a petition for damand funeral expenses, to a town, for the pur- ages under the sixth section of the statute, as pose of establishing, for the use and benefit soon as his land is actually entered upon and of all the inhabitants of the town, a free public taken, and before a description of the land, library, and, if the funds should prove suffi- signed by the mayor of the city, is filed in the cient, a free public reading-room, to be under registry of deeds, as required by the first secthe control of trustees to be chosen by the in- tion. Moore v. Boston, 8 Cush. 274 (1851). habitants from time to time, which trustees 3. If the owner of land taken under St. were directed to sell certain of the real estate 1846, c. 167, dies before filing his petition, the and empowered in their own names to convey right of action survives to his executor or adthe same, and were also directed to convert ministrator. lb. 96 WATER - WAYS, I. 4. The only remedy for damages to land (c) Proceedings before Jury; their Pownecessarily caused in the construction of the ers and Duties. aqueduct from Long Pond to Boston, under (d) Elements and Computation of DamSt. 1846, c. 167, was by petition to the court ages; Evidence thereof. of common pleas under ~ 6 of that statute, al- (e) Verdict, and Judgment thereon. though such injury was to land not finally taken for tie location of the aqueduct, but V. REPAIRING PUBLIC WAYS; POWERS only adjacent thereto. Tower v. Boston, 10 AND DUTIES or HIGHWAY SURVEYORS. Cush. 235 (1852). Cush. 235 (1852). I. D)EECTS AND OBSTRUCTIONS IN 5. Land purchased in fee or otherwise taken V by a city, by authority of the legislature, for the purpose of supplying the city with pure (a) Liability of Towns to an Action. water, and used for that purpose only, is (b) Where the Plaintiff's Negligence or justly taken in the exercise of the right of em- other Causes concur. inent domain,and is therefore not liable to tax- (c) Evidence, Trial, Damages. ation. Tayland v. Middlesex, 4 Gray, 500 (d) Indictments against Towns. (155)'. (e) Liability of Individuals for Obstruc6. An assessment for a quarter of a year, tions; Civilly and Criminally. made by the water registrar under the direction of the water board of Boston, at the rate VII. IIGHTS OF THE PUBLIC AND OF of two cents for each one hundred gallons of LAND OWNERS IN THE SOIL OF PUBLIC water used in a hotel in Boston, the daily con- WAYS. sulmption of which, as measured by a watermeter placed therein, under tie provisions of VIII. LIMITS AND BOUNDARIES OF'WAYS; the city ordinance, exceeds 10,000 gallons a FNCES, &C. day, is legal; although water-meters have I RAILROAD CROSSINGS; SIDETATKS IN been put into only a portion of the hotels in CITIES OF LOWELL AND CHARLESOWN. Boston, and although the assessment, if made according to the provisions of the city ordi- X. OF TIIE REMEDIES FOR IRnnlGULARInance applicable to hotels into which no water- TIES IN LAYING OUT AND COMPLETlNG meters have been put, would have amounted WAYS; AND OF SOME OTHER MATTERS. to only about one fourth as much. Parker v. Boston, 1 Allen, 361 (1861). I. PROCEEDINGS IN LAYING OUT AND ALTERING PUBLIC WAYS. WVAYS. (a) Application; and Adjudication as to I. PROCEEDINGS IN LAYING OUT AND AL- whether the Public Safety and ConvenTERING PULBLIC tWAYS. ience require the Laying out or Alteration. (a) Application; and Adjudication as to See St. 1866, c. 174. whether tile Public Safety and Convenience 1. A city council, in acting under a city require the Laying out or Alteration. charter which gives to them exclusive author(b) Location or Laying out, and Altering; y o lay out, alter or discontinue any street Prior Notice thereof; Agreements with Land or way, the termini of which are entirely Owners. within the city, and makes no provision as to (c) Where Ways may be laid out. tile manner in which the authority thus conII. PUBLIC WAYAS BY DEDICATION, BY ferred shall be exercised, must conform to and PRESCRIPTION AND USE, AND BY NECESSITY. be governed by the regulations prescribed in the General Statutes in relation to tie same (a) By Dedication. subject; and has no jurisdiction of an applica(6) By Prescription and Use. tion to locate anew a road, or to.ascertain the'(c) By Necessity. correct location thereof, and- erect the necesIII. DISCONTINUING PUBLIC WAYS; DAM- sary bounds, unless tie same is signed in the AGES THI-IREEFOR. lmanner required by Gen. Sts. c. 43, ~ 12, or ~ 87. Barnes v. Springfield, 4 Allen, 488 IV. PROCEEDINGS ON AN APPLICATION FOR (1862). But see Gen. Sts. c. 43, ~ 78. A JURY. 2. A petition for a highway from a partic(a) Who are entitled to Damages; ular place "to a point near the dwellingWaiver of Damages. house of A.," on a certain road, is not so (6) Application for a Jury, and Notice indefinite in the description of the terminzus thereon. as to require that the proceedings of county WAYS, I. 91 commissioners, laying out a highway upon the clerks of the towns in which the road is situsame, should be quashed. Westport v. Bristol, ated and the posting of copies of the petition 9 Allen, 203 (1864). in two public places in each of said towns is 3. The power vested in the mayor and al- sufficient. Ib. dermen of Boston as to laying out or altering 10. A vote of a town that the selectmen streets " whenever in their opinion the safety shall lay out a particular town way is unauor convenience of the inhabitants shall require thorized and improper, it being the intention it," is judicial, and a certiorari lies to remove of the statute that the selectmen shall exercise their proceedings. Parks v. Boston, 8 Pick. their own discretion upon the subject. Ilean 218 (1829). Stone v. Boston, 2 Met. 220 v. Stetson, 5 Pick. 492 (1828). (1841). Dwight v. Springfield, 4 Gray, 107 11. The circumstance that a county com(1855). missioner is a taxable inhabitant of a town 4. Where such mayor and aldermen shall through which a contemplated road is to pass, adjudge that the laying out or altering of a does not constitute such an interest as will street is required by public safety and conven- disqualify him to act as a county commnisience, their having taken a bond from an sioner in the proceedings relative to the layindividual to contribute towards the expense, ing out and making the road. Wiltbraham will not vitiate their proceedings, provided the v. Jlcnmpden, 11 Pick. 322 (1831). bond was not made the basis of their proceed- 12. The circumstance that a son and a ings, and the adjudication was not colorably brother of a county commissioner have for the use of the city but really for the benefit joined with others in a petition that a road of the individual. Parks v. Boston, 8 Pick. may be laid out, does not disqualify him to 218 (1829). act on the question of the common conven5. Where the common convenience or ne- ience and necessity of the road, it not appearcessity is not sufficient to warrant the laying ing that the son or brother has any other than out of a highway wholly at the expense of a a public interest in the subject of the petition. town, the court of sessions, under St. 1786. c. lb. 67, ~ 4, could not adjudge it to be of common 13. A county commissioner is not disqualconvenience or necessity in consideration of a ified to act in the laying out of a road by bond having been filed by an individual to reason of his being a taxable owner of real relieve the town of part of the expense. Corn- estate in the town in which the road, or a part sonawcealth v. Sawin, 2 Pick. 547 (1824). But of it, is prayed for. Danvers v. Essex, 2 Met. see Parks v. Boston, 8 Pick. 218; Crockett v. 185 (1840). Boston, 5 Cush. 182 (post, 50). 14. By St. 1803, c. 111, annexing South 6. It seems, that an adjudication " that the Boston to Boston, the selectmen of Boston public convenience and necessity require that were authorized " to lay out such streets and the road prayed for should be located in part," lanes" in South Boston, as in their judgwithout designating the termini, is invalid, and mkt would be for the common benefit of will not support a location, though made in the proprietors of the land, and of the town of due form, over part of the route prayed for. Boston, provided " that the town of Boston Danvers v. Essex, 2 Met. 185 (1840). shall not be obliged to complete the streets 7. The question whether an adjudication as laid out by their selectmen pursuant to this to a highway or town way, made by county act, sooner than they may deem it expedient commissioners at the time of their view or at so to do." At a meeting of the selectmen a special meeting, is to be regarded as final, of Boston, on Feb. 27, 1805, a street was laid or as subject to confirmation or reversal at a out in pursuance of such statute. On Nov. subsequent regular meeting, is to be determin- 7, 1831, the mayor and aldermen (successors ed by their intention, as manifested by their to the selectmen of Boston) passed an order records. New Marlborough v. Berkshire, 9 that such street " should be made passable," Met. 423 (1845). "provided that a sum not exceeding $ 500 be 8. It seems, that an adjudication of county expended during the current year." It was commissioners that public convenience re- held, that such order of the mayor and alderquires a road to be laid out, may be rescinded men was a declaration- of the expediency of by them at any time before the location of the completing the way for public use;. that the road. Fhope v. Worcester, 9 Gray, 57 (1857). city were thereupon bound to complete it 9. On a petition to county commissioners to within a reasonable time; that the question rescind an adjudication that public necessity of reasonable time was a question of law, to requires the construction of a road, no special be determined by the circumstances of the notice to the original petitioners for the road case; and that the city was liable to an inis necessary, if the road has been located in dictment for not keeping such street in repart as prayed for by them; but service of pair. Commonwealth v. Boston, 16 Pick. 442 copies of the petition to rescind on the town (1835). 98 3WAYS, I. (b) Location or Laying out, and Altering; 21. Parties who appear before commisPrior Notice thereof; Agreements with sioners cannot object to the proceedings on the ground of their not having had reasonable See St. 1866, c. 174. notice, unless they make the objection at the 15. The mayor and aldermen of Bostoncan- time of the hearing. Ib. not legally lay out a street without first giving 22. A city that has taken land and actually to all.persons interested, notice of their inten- constructed a highway over it, cannot object tion to do so. Stone v. Boston, 2 Met. 220 that no notice was given of the purpose to (1841). locate the way; or that the names of the 16. Where the mayor and aldermen laid out owners of the land were not stated in the laya street over land belonging to minors, with- ing out. Hascell v. Bristol, 9 Gray, 341 out giving any previous notice, and without (1857). making any estimate of the amount of dam- 23. Although the proceedings in laying out age thereby sustained by the owners, and a way by selectmen, and the acceptance more than a year elapsed before either of the thereof by the town, may be avoided by the owners became of age; a writ of certiorari owner of the land over which the way passes, was ordered on a petition filed by one of the on the ground that he had no notice of the owners at the first term after he came of age, selectmen's proceedings; yet they cannot be although notice had been given to the tenant avoided, on that ground, by a subsequent ocin possession to remove the buildings from cupant of the land, who does not claim title the land, and he had communicated that notice under such owner. Hence such occupant to the guardian of said minors within a year cannot, on that ground, successfully defend after the street was thus laid out. lb. an indictment against him for a nuisance 17. Where public notice of a meeting of within the limits of said way. Commonwealthz the county commissioners for the purpose of v. Weiher, 3 Met. 445 (1841). locating a highway and assessing the damages 24. Neither the language of the statutes nor was duly given, it was held, that it was suffi- the principles of justice require that persons cient as against the heirs of a person over over whose land a town way is laid out should whose land the highway was laid out, although have any separate notice of the time and place su6h person died four days before the meeting, appointed by the selectmen for a hearing on out of the Commonwealth, and none of his an assessment of damages, if they are notified heirs resided, at that time, within the Con- of the time and place appointed by the selectmonwealth, or had actual notice. Taylor v. men for laying out the way. The laying out Hampden, 18 Pick. 309 (1836). of the way and the estimation of damages are 18. Where parties interested in the alter- to be at the same meeting. Iligginson v. ation of a street or highway, had actual notice Nahant, 11 Allen, (1866). of the proceedings, and attended and Mere 25. Taking land for a way which is already heard concerning them, and have acquinced used as such, takes all things placed, fixed or therein for many years, a writ of certiorari existing upon it adapted to its use as a public to remove those proceedings will not be way, such as gravel, stone or wood paving, granted merely because it does not appear plank-ways, flag-stones, bridges, culverts, that they had the official notice prescribed by guard or lamp-posts, and all works erected or law; nor because one of them was non compos connected with it for use, or rendering its use mentis, and had no guardian. Ilancock v. more safe and beneficial as a way. Central Boston, 1 Met. 122 (1840). Bridge v. Lowell, 15 Gray, (1860). 19. Where commissioners, after notice to 26. Viewing premises and staking out a persons interested, viewed the route for a road over the same by selectmen of a town, highway, and adjourned to a certain time and do not constitute an incumbrance thereon, place for the purpose of locating the way and until a location is filed and accepted. Shute assessing the damages to individuals, it was v. Barnes, 2 Allen, 598 (1861). held, that it was not necessary to give a new 27. The selectmen of a town have no notice of the time and place soe appointed, authority to lay out a private way "to be Co'lzn,onwealth v. Berkshire, 8 Pick. 343 used onlyduring the time of sleighing." lotl(1829). Westport v. Bristol, 9 Allen, 203 comb v. Mllooqe, 4 Alien, 529 (1862). (1864). 28. It is no objection to the legality of a 20. When the parties interested are duly town way, laid out by the selectmen of a town, notified of the time and place of a meeting of and accepted by the town with an observance commissioners, no new notice to them is nec- of all the forms prescribed by statute, that the essary of the time and place of an adjourned motive and purpose of the selectmen in laying meeting; of which they are bound to take it out was to provide access, not for the town notice. New Salem, Petitioners, 6 Pick. 470 merely, but for the public, to points or places (1828). in the land over which the way passes, es WAYS, 1. 99 teemed by them as pleasing natural scenery. public convenience requires it; and although Higginson v. Nahant, 11 Allen, (1866). they merely adjudge, in the first instance, that 29. A town voted to accept a road which the way prayed for is required by common had been laid out by the selectmen, "pro- convenience and necessity, yet it is no deparvided the expense do not exceed five hundred ture from this order, if they subsequently lodollars." field, that this was a sufficient ac- cate the way wider than the bridge described. ceptance of the road; and the cost not having Commonwealth v. Boston 4 Lowell Railroad, exceeded that sum, the town was bound to 12 Cush. 254 (1853). keep the road in repair. Jones v. Andover, 38. So if they adjudge that the way should 9 Pick. 146 (1829). be laid out fifty feet wide, it is not repugnant 30. It seems, that there is no objection to a to this order to determine subsequently thtt town's having a town way made, part of the only thirty-two feet in width should be made expense of which is paid by individuals. Ib. convenient for use at that time; and although 31. Since St. 1827, c. 77, upon a petition for the whole width of the way as laid out be not a new highway, the county commissioners may finished for travel, an obstruction erected on lay out a way which is only a part of that the part unfinished is a nuisance, for which prayed for. Princeton. Worcester, 17 Pick. an indictment will lie. Ib. 154 (1835). 39. Selectmen laid out a town way over the 32. It is no ground for issuing a certiorari land of A., and awarded him damages, to be to quash the location of a highway, that it paid by B. before the road should be opened. omits to state the name of one person whose The town voted to accept the report of the seland is taken therefor, or to describe his land lectmen, on condition that B. should " build as of apersonunknown. FEatonv. Middlesex, the road and pay all expenses of the same, 7 Gray, 109 (1856). and defend the town against all prosecutions." 33. Where the precise direction of a street The damages awarded to A. were tendered to in Boston, as laid out and recorded, was un- him before his land was entered upon. Ield, certain, the laying out was held to be void. that the way was legally established, and lHinecley v. Iastings, 2 Pick. 162 (1824). therefore, that A. could not maintain an action 34. Where updn a petition for the alteration against those who entered upon his said land of a county road, or the location of anew for the purpose of constructing the road. Hlarroad between two other county roads, com- -ington v. Ilarrington, 1 Met. 404 (1840). missioners laid out a new road between the 40. By an ordinance of the city of Lowell, termini, it was held, that their describing the a report of a committee of the city council, in new road as an alteration did not vitiate their favor of laying out a street, after it is made to proceedings. Commonwealth v. Berkshire, 8 the council,' shall remain in the city clerk's Pick. 343 (1829). office seven clays at least, before said council 35. The proceedings of county commis- proceed to act thereon." A report of such sioners in laying out a highway were quashed, committee, in favor of laying out a street, was where the original petition for the way was made to the council June 27, 1840, and redefective in not expressing with sufficient nmained in the city clerk's office till July 8, exactness the termini of the proposed way, 1840, when it was recommitted to the same and where it appeared that the road as laid conmmittee, who made no further report. In out was not within the road prayed for. the board of aldermen, the report, which had Pembrokce v. Plymouth, 12 Cush. 351 (1853). been recolmmitted, came up from the com36. An order of the mayor and aldermen of men council October 17, 1840, accompanied by a city, for the laying out and establishing of a resolution to lay out the street; and on Noa highway, having described the same as vermber 10, 1840, said resolutions passed both " delineated on a plan now before this board," branches of the common council. ield, that it was held, that the laying out was sufficiently tile street was legally laid out conformably to certain; that the limits of the highway might saidt ordinance. Lowell v. Hadley, 8 Met. 180 be proved by reference to the plan; and that (1844). parol evidence was admissible to show that a 41. After an order of notice had been issued plan produced from the custody of the city by the committee on. streets of a city council, clerk was the plan before the board when the on a petition for an extension of a street, anorder for laying out was made. Stone v. other petition praying for such extension, and Cambridge, 6 Cush. 270 (1850). also that the whole street from its beginning 37. On a petition to county commissioners might be laid out and accepted as a highway, to lay out a highway "over and along" an was referred to the same committee, who reexisting bridge, which was thirty-two feet ported in favor of laying out the whole street wide, the commissioners have power to lay by one description which did not distinguish out the way fifty feet wide, if they think the the extension from the other part of the 100 WAYS, I. street, and the city council laid out the street others a very long street, named Second accordingly. Ield, that the city council had Street, which subsequently became distinno authority, on these proceedings, to lay out guished into two parts, namely, Second Street any part of the street except the.extension East, and Second Street West, of Dorchester prayed for in the first petition; and that the Street. The mayor and aldermen, in 1831, whole laying out was therefore void. Dwight adopted an order that Second Street, west v. Springfield, 4 Gray, 107 (1855). of Dorchester Street, should be made passa42. The record of the laying out of streets ble, and subsequently passed orders, in 1834 in South Boston, made by the selectmen of and 1836, appointing committees to' cause Boston, pursuant to the directions of St. 1803, Second Street at South Boston to be repaired c. 111, is thus: " The selectmen have deter- and put in good order," and " to be properly mined and agreed to lay out the streets through graded and gravelled;" in pursuance of which, the whole of said tract, now called South Bos- that part of Second Street known as Second ton, according to the plan drawn by M. W., Street West had been completed and used as surveyor;" " the streets agreed upon and laid a highway; but no part of Second Street East, out are described as follows": among the though it was occasionally used as a highway, streets so described were three " to the north- had ever been ordered to be completed and ward of Broadway, and parallel thereto, all of made passable, unless included in the above them fifty feet wide; the street on the north- orders. In an action against the city of ern shore in Boston I-larbor to be called Boston to recover damages for an injury ocFirst Street," and to be two hundred and casioned by a defect in Second Street East, it fifty feet distant from the second. First Street was held, that in order to render the defendwas laid out according to this description ants liable, it was not sufficient to prove that from the easterly part of South Boston as far the way complained of had been so travelled westwardly as the width of the land between and used as to become a highway de facto; Broadway and the northern shore would al- it must appear, not only that such way had low. HIeld, that a section of a street, drawn been laid out, but that the mayor and alderon the plan of M.W. along the northern shore, men, by an official act, had determined though only forty feet wide, and only one hun- upon its completion, that is, when it should be dred and eighty feet distant from the second graded, fitted for travel and opened for use; street, and though neither it nor the corre- and that the orders above mentioned related spending part of the second street was parallel only to Second Street West. Bowman v. Bosto Broadway, conformed to the description in ton, 5 Cush. 1 (1849). the record sufficiently to authorize the mayor 45. Under the proceedings of the selectand aldermen of Boston to complete it. lenz- men of Boston on February 27, 1805, in layshaw v. HuIzting, 1 Gray, 203 (1854). ing out streets in South Boston, considered in 43, The possession and fencing, for more connection with the plan of Mather Withthan twenty years, by one holding no convey- ington referred to in the record of those proance thereof, of land in South Boston, over ceedings, the street called Fifth Street does which a street was laid out by the selectmen not extend westwardly from H- Street to G under St. 1803, c. 111, but which has not been Street. Glove v. Boston, 14 Gray, 282 (1859). ordered to be completed, is not such an ad- 46. A petition for the alteration of a highverse possession as to affect the right of the way which had been laid out fifty feet wide, mayor and aldermen of Boston to complete prayed that it might be narrowed by taking the street. lb. ten feet from the easterly side, leaving the 44. By St. 1803, c. 111, annexing to Bos- boundary line on that side along the wall of a ton that part of Dorchester now known as building which the petitioner had erected South Boston, the selectmen of Boston were there, in ignorance of the laying out of the authorized to lay out such streets in South highway. A committee appointed for that Boston as in their judgment would be for the purpose reported that they had altered the common benefit of the proprietors of the land, highway according to the prayer of the petiand of the town of Boston; provided that no tion, by setting off ten feet from the easterly compensation should be allowed the proprie- side of the highway, leaving the highway tors for such streets as should be laid out forty feet wide,band bounded on the westerly within twelve months from the passing of side accoriding to the original laying out, and the act; and provided also that the town of on the easterly side by the building of the Boston should not be obliged to complete the petitioner. This report was accepted. field, streets so laid out sooner than they might that this was not a new laying out of the deem it expedient. In pursuance of this highway so as to take in more land upon the authority the selectmen, within the twelve westerly side of it, although the westerly months, laid out various streets over the en- boundary, as it then stood, was a little less than tire territory of South Boston, and among thirty-niae feet from the building of the peti WAYS, I. 101 tioner. Cutter v. Cambridge, 6 Allen, 20 city in laying out and making the street. In (1863). June, the complainants addressed a letter to 47. The mayor and aldermen of a city, the other memorialists and sent a copy to the upon a petition for the assessment of damages mayor, explaining their proposition to be an by the raising of a street in front of the peti- offer to relinquish all claim of damages for tioner's house, accepted the report of a com- their land, but not their claim of incidental mittee recommending that no damages should damages for removing and repairing their be allowed to the petitioner, but that the street buildings. In October, the mayor and aldershould be lowered in front of the land, " so men passed an order laying out the street that said house shall stand relatively to the according to the plan, and the street was finstreet as it did before the alteration now con- ished during the year. Soon after the passplained of, providing any action in the case ing of this order the complainants protested is necessary." Three months afterwards, the against the making of the street without a mayor and aldermen, upon a request of the previous agreement in relation to indemnity, petitioner to act on his petition, voted to meet and gave notice that they should hold the city at the premises to view them, but took no responsible for all damages. It was held, that further action in the matter. Held, that the the proposition of the memorialists was a conacceptance of the report was a judgment tinuing offer during the year, if not revoked against the petitioner's claim for damages; or rejected; that the vote of April was not a and that this judgment was not waived or rejection, but a distinct proposition on the modified by the subsequent action of the part of the city; that the offer of the memoboard. Goddard v. Worcester, 9 Gray, 88 iialists was several in its nature, and until (1857). accepted or rejected by the city, each proprietor of land had a right to revoke or modify Agreements with Land Owners. his offer, indeendently of the others; and 48. The abutters on a street in Boston en- that by laying ut the street the city, in legal tered into an agreement with a committee of effect, accepted the complainants' offer as mothe' selectmen for the widening of the street, dified by their letter of explanation, and it mutually promising each other to submit to then became a contract, binding upon both the award of certain arbitrators concerning parties; and thereby the city became entitled what each should pay or receive on account to the land, and the complainants became enof the premises, according to the damage or titled to incidental damages for removing and benefit they should respectively receive. An repairing their buildings. Foster v. Boston, action brought by the inhabitants of Boston 22 Pick. 33 (1839). upon the agreement was sustained against one 50. The board of aldermen of the city of of the abutters for the sum he was awarded Boston having referred it to a committee to to pay, although the said widening had not consider a plan for widening Bromfield Street, been recorded; and although the money was and the committee having agreed upon a reawarded to be paid to the other abutters and port of a plan for that purpose, an offer was not to the inhabitants; and although a part of made to the board, by one of the proprietors the money was to be paid to an abutter who of land abutting on Bromfield Street, that if was not a party to the agreement. Boston v. the city would establish a prospective line for Brazer, 11 Mass. 447 (1814). widening said street, according to the report 49. In March, 1833, a memorial was pre- of the committee, and would take from a cersented to the mayor and aldermen of Boston tain estate, and the proprietors of certain other by several proprietors of lands, including the estates would give, sufficient land from said complainants, representing that the public estates, respectively, for the purpose, such convenience required that a street should be proprietor would give free of charge the neclaid out over their lands, and that to promote essary amount of land which might be rethis improvement they would for themselves quired for the purpose from his estate. "It individually relinquish their interest in the was held, that if such offer was accepted in land for the street, provided the street should a reasonable time, and the condition complied be opened during the year 1833, agreeably to with, the contract thereby formed was not ina particular plan. In April, the mayor and valid by reason of its supposed interference aldermen passed a vote,,that a certain sum of with the duty of the mayor and aldermen, in money be appropriated to defray the expenses deciding upon the public necessity and conof laying out a street according to the plan, venience of the way proposed; but would to be paid when the street should be made estop such proprietor from claiming damages and fitted for paving, to such person or per- for his land, if taken therefor, and for the obsons as the memorialists should designate, and struction of his adjoining land, during the to be in full for all the expenses, as well as for laying out of the street; that it was not necesall damages to be incurred on the part of the sary that the mayor and aldermen should 102 WAYS, I. accept the proposal in direct terms or by a 55. The court of sessions had no authority formal vote; but that it was sufficient if they to locate a road across a navigable river, and took seasonable measures to secure the actual a bridge erected in pursuance of such location fulfilment of the conditions of the offer, by is an obstruction which any citizen, having making the necessary orders for carrying the occasion to use the river for the passage of proposed widening into effect, and by actually his vessel, might lawfully remove as a public accomplishing the same; and that a year and nuisance, although a bridge had been mainfour months was not an unreasonable time tained at the same place more than fifty years. for this purpose. Crockett v. Boston, 5 Cush. Arundel v. MI'Culloch, 10 Mass. 70 (1813). 182 (1849). 56. If a highway is located over water51. The city of Boston agreed with certain courses, either natural or artificial, the public individuals that, if the former would widen cannot shut them up, but may make the road the street to a certain width, the latter would over them by the aid of bridges. Perley v. pay a portion of the expense thereof; and Chandler, 6 Mass. 453 (1810). widened the street accordingly, but allowed 57. An inlet of the sea which is navigable the second story of a building on such street to any useful purpose is public property. It to project beyond and over the line of the was held, that an order of the court of sessions lower story, the highway having in all other for laying out a road across such inlet was respects been made of the stipulated width. void. Commionwealth v. Charlestown, 1 Pick. Held, that the right of the city to recover of 180 (1822). such individuals the amount of their sub- 58. Where the legislature authorized the scriptions was not defeated by reason of such building of a bridge across a navigable stream, projection. Boston v. Simmons, 9 Cush. 373 "either solid or on piles, leaving sufficient (1852). passages for the water," as certain commis52. A street was laid out in-1804, with an sioners might deem necessary, and a bridge agreement by the owners of lan taken there- was built, by direction of those commissioners, for, not to claim compensation, and that the two thirds of the length of which was solid, street need not be completed until it was and the other third, over the channel and deemed expedient to do so. In 1831 the deeper parts of the stream, was on piles; and proper authorities voted that the order of scows, gondolas, and boats and vessels with1804, laying out said street, " be carried into out masts, empty or loaded, could and did execution, so: far as the same remains un- advantageously pass and repass under said finished," and some work was done under that bridge; it was held, that the stream had not vote. Held, that the street was thereby ceased to be navigable, and that the county "completed" within the meaning of the commissioners had no authority to lay out a original laying out, and was from that time highway over it. Charlestown v. Middlesex, so far an existing way that damages could be 3 Met. 202 (1841). recovered, under Rev. Sts. c. 25, ~ 6, (Gen. 59. Selectmen have no authority to lay out Sts. c. 43, ~ 62,) for lowering the grade thereof a landing-place or town way between highin 1850, notwithstanding the agreement of water mark and the channel of a navigable 1804 not to claim compensation for the land. river. Kean v. Stetson, 5 Pick. 492 (1828). _Fern ald v. Boston, 12 Cush. 574 (1853). 60. A road located on the dividing line be53. In raising the grade of streets, a city tween two towns, so that one half of it is in government act as public officers, and not as each town through its whole course, was held agents of the city; and their agreement as to to be legally established; and one of the the amount of damages to be paid an owner towns was properly indicted for neglecting to of real estate injured by such change of grade keep it in repair. Coommonwealth v. Stockcdoes not of itself give to him an absolute bridge, 13 Mass. 294 (1816). right of action against the city to recover the 61. Wherever the legislature has annexed samfe; but they may afterwards require him, the character of public use to any property, as a condition of his receiving the money, to and such public use would be destroyed or inprove his title to the satisfaction of the city terrupted by the laying out.of a highway, the solicitor, and to execute a discharge. Griggs power of the county commissioners to lay out v. Foote, 4 Allen, 195 (1862). such highwayyis superseded. Thus, St. 1830, 42 c. 6, authorizing "the enclosing of a part of See ante 4, 5, 30 39; st, 176, 428. Cambridge common," superseded the power (c) Where Ways may be laid out. of the county commissioners to lay out a highway across such enclosure. Wellington, Pe54. The court of sessions had no authority titioner, 16 Pick. 87 (1834). to lay out a highway over a navigable river, 62. A highway may be located, without so as to obstruct the river by a bridge. Core- special authority of the legislature, over flats, monnwealth v. Coombs, 2 Mass. 489 (1807). lying between high and low water mark, WAYS, I. II. 103 which have been lawfully filled up by the pro- 69. He who gives his land to the public prietor of the adjoining upland. Ilenshaw v. may prescribe the terms and limitations on fe7Znting, 1 Gray, 203 (1854). which he gives it; and if it be accepted at all, 63. A franchise to build and maintain a it must be accepted with the limitations, qualbridge may be taken for a highway, whenever ifications andrestrictions prescribed. lemzpthe legislature deem that the public exigencies hill v. Boston, 8 Cush. 195 (1851). require it, reasonable compensation being 70. A way may be acquired by dedication made; and the legislature may authorize a or user. Twenty years' use of land will raise city to take a toll bridge, and lay it out as a a presumption that it has been dedicated by town way, paying damages to the proprietors. the owner to the public for a way, and forty Centr'al Bridge v. Lowell, 4 Gray, 474 ( 1855). years' use of the land as a way will give the Central Bridge v. Lowell, 15 Gray, (1860). public a right of way over it. Valentine v. 64. County commissioners have no juris- Boston, 22 Pick. 75 (1839). See Williams diction to locate a highwaiy upon a beach v. Cummington, 18 Pick. 312. which forms one side of a harbor, and which, 71. A highway may be established in this though not within the ebb and flow of ordinary commonwealth by a dedication on the part of tides, unaided by storm or wind, is almost in- the owner of the soil, and an assent thereto variably covered by spring tides, and part of on the part of the public. But qucere, whether which is often useful to vessels drifting from the assent of the pubAc is necessary to an their anchorage in the harbor. And awrit of effectual dedication, and if necessary, in certiorari will be granted, to quash such a lo- what manner is it to be given or withheld. cation, if it would probably, although not nec- Hobbs v. Lowell, 19 Pick. 405 (1837). essarily, injure the harbor for the purpose of 72. It seems, that in this commonwealth, navigation, or interfere with public measures and especially since St. 1846, c. 203,(Gen. Sts. for its protection and improvement. lMarble- c. 43, ~ 82,) no public way can be established head v. Essex, 5 Gray, 451 (1855). by dedication merely, and without the assent, 65. Under Gen. Sts. c. 63, ~ 59, the mayor express or implied, of the city or town which and aldermen of a city, or selectmen of a town, will be bound by law to keep the same in have no authority to lay out a way across any repair. Bowers v. Suffolk Manizf. Co. 4 portion of the land, not exceeding five rods in Cush. 332 (1849). width, which has been taken by a railroad 73. Where a county road was stopped up corporation for their railroad, unless permis- by an impassable canal, fences and dwellingsion so to do has been granted by the county houses, and an owner of adjoining land opened commissioners. Commonwealth v. Haverhill, a road over his land in the general direction 7 Allen, 523 (1863). of the old road, passing the canal by abridge and joining the old road at each extremity, and travel was wholly diverted into the new road, and had continued therein for six years, II. PUBLIC WATS BY DEDICATION, BY and the selectmen put up a guide-post at the PRESCRIPTION AND USE, AND BY NECESSITY, corner of the new road directing persons to travel thereon to the town to which the old (a) By Dedication. road had led; it was held, that the town had 66. Dedication is the gift of land by the expressed its assent to the dedication of the owner for a way, and an acceptance of the road, and accepted it. Hobbs v. Lowell, 19 gift by the public, either by some express act Pick. 405 (1837). of acceptance or by strong implication. SHAW, 74. Where acts are done by the owners of C. J., in IHemphill v. Boston, 8 Cush. 196 land, which manifest an intention on their (1851). part to dedicate it to the public as a highway, 67. A dedication is negatived by the fact acts of appropriating money or labor to the that gates were established and kept up across making or repair of such way, by the town the way by the proprietors of the land. PAR- or city within which it is situated, manifest an KER, C. J., in Commonwealth v. Newbisry, intention on the part of such city or town to 2 Pick. 57 (1823). accept the dedication, and render the place 68. In England there may be a dedication so dedicated a complete highway, the obstrucof a way, that is, by throwing open a piece of tion of which is a public nuisance. WITight land and permitting the public to use it as a v. Tukey, 3 Cush. 290 (1849). way, without putting up a bar or the like to 75. The dedication of a highway to the denote that the owner retains his rights over public is to be proved by showing the acts and it. But it is not known that in this common- accompanying declarations of the owners of wealth a way has ever been made by dedica- the land alleged to be dedicated. Ib. tion. LINCOLN, J., in Hfinckley v. Hastings, 76. One who has sold and conveyed land, 2 Pick. 164 (1824). and, at the same time, taken a reconveyance 104 WAYS, II. to himself by way of mortgage, which is way, placing a fence across it which allows afterwards foreclosed, is to be deemed the foot passengers to pass, but is dangerous to owner so far as relates to a dedication thereof horses and carriages, the city, whether they to the public as a highway, notwithstanding have accepted the way or not, are not liable such conveyance. lb. for an injury occasioned by the fence to a 77. The building of abridge by a town on a horse and carriage, though driven with ordipublic highway is ipso facto a dedication of nary care and skill. Ilemr27bill v. Boston, 8 the bridge to the public. Springfield v. g lLamp- Cush. 195 (1851). den, 10 Pick. 67 (1830). 81. St. 1846, c. 203, (Gen. Sts. c. 43, ~ 82,) 78. The proceedings of a town, however limiting the liability of towns for damages irregular, in the laying out of a highway, may from defects in ways opened and dedicated to be admissible in evidence to show the corn- the public use, but not duly laid out and esmencement of the way, in order to rebut a tablished, applies only to ways over land presumption of a dedication; or as a ground dedicated by its owner to the use of the public for the presumption of a grant, or a confir- as a way, and does not, as to other vtays, mation of the way as actually used, by the repeal the Rev. Sts. c. 25,- ~ 26, making the owner of the land; or to enable the jury to actual repair of a way by a town conclusive determine whether the way is a public or a evidence of its location. Hlcyden v. lttletown way. Avery v. Stewart, 1 Cush. 496 boroughy, 7 Gray, 338 (1856). (1848). 82. A conveyance of land adjoining land of 79. The proprietors of certain real estate the grantor, and bounded on the same street, in the city of Lowell laid out and constructed " with a right of way in the street to a street " a street through the same, in the manner in on the other side of the grantor's land, and a which roads are usually built, with a carriage covenant that the street on which the land is way in the centre, of the ordinary width, after bounded shall be of a certain width as far as which the street was and continued to be used the granted land extends, is no evidence of by the public, without obstruction or objec- an agreement of the grantor to dedicate to the tion. They afterwards conveyed a portion public a strip necessary to make the street of of the land, including a part of that over the same width throughoutits length. Brown which the street was laid out, to the defend- v. Worcester, 13 Gray, 31 (1859). ants, with a provision in the deed that the 83. Evidence that a grantor, at the time of street should be forever maintained as a road, making conveyances of lands bounded upon a for the common use of the parties to the con- street, said to his grantees that he should not veyance, their successors and assigns, the throw out a strip of his own land into the grantees severally keeping in repair those street then, but should " eventually throw it parts which passed over their respective es- out all the way," does not show a dedication tates. The proprietors subsequently convey- of the land to the public. lb. ed to the plaintiff a lot of land bounding on 84. No way or street can be made a public the street and so described, with all the privi- way merely by throwing it open to the public, leges and appurtenances thereto belonging; or permitting the public to use it, without the and then sold at auction all their remaining assent of the public authorities and its acceptlands on said street, together with other lands, ance as a street by them; and this assent and declaring in the printed conditions of sale acceptance, since St. 1846, c. 203, (Gen. Sts. that all the streets mentioned therein (in- c. 43, ~ 82,) can only be given by laying out eluding the street in question) should be re- the street according to the ordinary mode served and kept open for the benefit of the prescribed by law. HOAR, J., in Morse v. abutters; but that any of them which were Stocker, I Allen, 154 (1861). not graded might be altered or discontinued, 85. A way constructed and kept in repair with the consent of the abutters thereon; and by a private corporation upqJ its own land the city afterwards laid out that part of the for its own use and convenience and the use street on which the plaintiff's lot was bounded, and convenience of tenants occupying its as a public highway. It was held, that no houses on both sides thereof, opening into a intention on the part of the proprietors to public street, having a sign "Private way" dedicate the street in question to public use upon the conher, but left open to public travel could be inferred from these facts, and that for more than twenty years without interrupthe plaintiff had a right of way in that part of tion, is not thereby dedicated to the public; the street not laid out by the city, for an ob- nor does it become a public way by prestruction of which by the defendants he might scription. Durgiin v. Lowell, 3 Allen, 398 maintain an action on the case. Bowers v. (1862). Suffolk [faenuf. Co. 4 Cush. 332 (1849). 80. Where the owners of land in a city (b) By Prescription and Use. open and dedicate it to public use, as a foot- 86. The existence of a highway may be WAYS, II. 105 proved by immemorial usage. Folger v. more than sixty years for all the usual purWorth, 19 Pick. 108 (1837). poses of a street, but there was no record of 87. A way is sufficiently shown to be a its having been laid out as a street. The highway, by proof that it has been known and mayor and aldermen then duly laid out and used as a highway for forty years, and during recorded a street, and afterwards staked outa that time has been repaired by the town in line in continuation of the north side of it, which it is situated. Reed v. Northfield, 13 passing in front of and at some distance'from Pick. 94 (1832). 4 the warehouses, and paved a space on the 88. It seems,thlat a town way may be proved south of such line, of the same width with the by prescription, or by the presunption arising street so laid out, and treated it in all respects from use and enjoyment. Stedman v. South- like the streets in said city, but it was never bSridge, 17 Pick. 162 (1835). laid out and recorded as a street; and the city, 89. The proper laying out of a town way, claiming the fee in the land between the line in distinction from a public highway, may be so staked out and the defendant's warehouse, presumed by a jury from long user and occa- sold this land to the defendant, and the desional repairs, with other circumstances tend- fendant built a new warehouse thereon up to ing to show that the way was originally laid such line. It was held, that these facts were out as such way. Comzmonwealth v. Belding, sufficient to prove a highway by prescription 13 Met. 10 (1847). over the quay, and that they were not suffi90. A plea of a highway from time immemo- cient to prove that such highway had been rial is supported by proof of the existence of legally discontinued over the land on which the. way for sixty years, there being no the defendant erected his new warehouse. evidence showing its commencement. Odi- Stetson v. Faxon, 19 Pick. 147 (1837). orn'e v. WaSde, 5 Pick. 421 (1827). 97. The owner of land abutting on a street 91. Evidence of a usage for all persons to in the city of Boston laid out as a town way, pass over a common will not support a plea set his building back from the line of the that the land is a public highway. Emerson street, thus leaving an open strip of land, v. Wiley, 7 Pick. 68 (1828). which was used by the public as a part of the 92. Where a highway is established by user street for more than forty years. It was held, merely over a tract of land of the usual width that the public or the city had acquired a right of a highway, the right of the public is not of way over this strip, so that upon a new limited to the travelled path; but such user street being laid out over it by the city, the is evidence of a right in the public to use the owner of the soil was not entitled to damages. whole tract as a highway by widening the Valentine v. Boston, 22 Pick. 75 (1839). travelled path or otherwise, as the increased 98. Evidence of general, uninterrupted, travel and the exigencies of the public may public use of a road as a highway for twenty require. Sprague v. Waite, 17 Pick. 309 years is sufficient to charge a town with lia(1836). bility to keep it in repair, notwithstanding St. 93. The erection and support of a bridge 1846, c. 203, (Gen. Sts. c. 43, ~ 82,) providing by a town, and the use of it by the public for that no way by dedication shall be made thirty-eight years, are sufficient proof of its chargeable upon a town unless accepted. Jenexistence as a highway. WTilliams v. Cum- nings v. Tisblury, 5 Gray, 73 (1855). See Ilolt mington, 18 Pick. 312 (1836). v. Sargent, 15 Gray, 94. In the case of a highway established by 99. Evidence that a way was built and kept user, the jury may be authorized by the cir- in repair by a private corporation for more cumstances to find that its limits extend than twenty years before St. 1846, c. 203, beyond the travelled path. Hannum v. Bel- (Gen. Sts. c. 43, ~ 82,) took effect, open to chertown, 19 Pick. 311 (1837). the public and frequently travelled, is'suffi95. If a private way exists over a person's cient to prove that it was a public highway. land, he is liable to an action for stopping the Taylor v. Boston Water Power Co. 12 Gray, way, but not for suffering it to be out of 415 (1859). repair, unless he is bound by covenant or by 100. As a general principle, the right acprescriptive obligation to keep it in repair. quired by the public in a way by user is comJACKsoN, J., in Doane v. Badger, 12 Mass. mensurate with the way actually used. Pick69 (1815). ering v. Shearer, 11 Gray, 153 (1858). 95 a. The way must be kept in repair by the" 101. A highway may be proved by prescripowner of the easement, and not by the owner tion, even at or near a place where a particular of the land over which it passes. MORTON, way is shown by a record to have been estabJ., in Jones v. Percival, 5 Pick. 487 (1827). lished. Commonwealth v. Old Colony' Fall 96. A quay in the city of Boston, on River Railroad, 14 Gray, 93 (1859), which the warehouses of the defendant and others fronted to the south, had been used for See ante, 85. 106 WAYS, II. III. (c) By Necessity. repair of the new way by public authority 102. A traveller on a highway rendered does not necessarily presuppose the disconimpassable by a sudden and recent obstruc- tinuance of the old one. Johnson v. TrWyanz, tion, may pass over the adjoining fields, so 9 Gray, 186 (1857). far as may be necessary to avoid the obstruc- 113. Where a party had due notice of the tion, doing no unnecessary damage, without time and place of the meeting of county cornbeing guilty of a trespass. Campbell v. Race, missioners to view aroad which they lhad been 7 Cush. 408 (1851). desired to discontinlte, and might have appeared before them, and opposed the discontinuance, buedid not; it was held, after he, III. DISCONTINUING PUBLIC WVAYs; DAS1- and all others who were interested, had acAGES THEREFOR. quiesced, for nearly five years, in the disconSee St. 1866 c. 174. tinuance, that a writ of certiorari should not See St. 1866, e. i4. issue, on his petition, to remove the record 103. A town has power to discontinue a of the proceedings of the commissioners in town way. Commonwealth v. Tuckeer, 2 Pick. discontinuing the road, although those pro44 (1823). ceedings were not perfectly regular. Ilol6den 104. The general court may have a right to v. Berkshire, 7 Met. 561 (1844). discontinue a public highway. PARSONS, C. 114. At a town meeting, the town, under J., in Wales v. Stetson, 2 Mass. 146 (1806). an article to see if they would discontinue a 105. It is a sufficient ground for the discon- town way, voted " to leave it to the discretion tinuance of a highway, that it has become of the selectmen;" and at a meeting subseuseless. Commonwealthl v. Roxbury, 8 Mass. quently called "to see if they Would accept 457 (1812). the doings of the selectmen in discontinuing 106. Where a highway is once legally dis- the road," the selectmen reported that the continued, it ceases to be chargeable to the way should be discontinued, and the town town, unless it is laid out anew, although the accepted their report. 1ield, that the way reason for its discontinuance may have ceased. was legally discontinued. Niles v. Patch, 13 Commonwealthv. Westernt, I Pick. 136 (1822). Gray, 254 (1859). 107. A public landing-place is not a way, 115. Where county commissioners, upon a and a town'has no power to discontinue it. petition praying that a new piece of road may Commonwealth v. Tucker, 2 Pick. 44 (1823). be made, or the existing road altered and 108. The location of a street, once made shortened, and such parts of the existing by the mayor and aldermen of Boston, can- road, if any, as may be rendered unnecessary not be waived by them except by a legal dis- may be discontinued, laid out a new piece of continuance of the way. Loring v. Boston, road from one point in the existing road to 12 Gray, 209 (1858). another, and passed an order discontinuing so 109. In pursuance of authority from the mucl of the existing road as was rendered unlegislature, a canal was located in such a necessary by the new location: H-eld, that manner as to include a county road, and was that part of the road then existing for which partly made. It was held, that the road had the new location was a substitute, was disconbeen discontinued, and consequently that the tinned. Goodwin v. Marblehead, 1 Allen, town was not responsible to a person injured 37 (1861). by reason of its being out of repair. Tinker 116. Establishing an alteration in a way, v. Russell, 14 Pick. 279 (1832). upon a petition praying that it may be widened 110. Upon a petition for a new highway and straightened, is in law a discontinuance from M. to R., a highway was laid out over a of those portions of the way which do not portion of an old highway from S. to M. This come within the newly assigned limits; and was held not to operate as a discontinuance no special order of discontinuance is necesof the old highway over any land not embrac- sary. Bowley v. Walker, 8 Allen, 21 (1864). ed within the limits of the new highway. 117. Although a highway is discontinued Spr'ague v. Wacite, 17 Pick. 309 (1836). before it is opened or worked; or any contract 111. In a vote to discontinue a town way, is made to work it, yet a party who sustains a description of it, as "leading from FW. G.'s damages by such discontinuance, is entitled to the pond," is sufficient. Avery v. Stewart, to recover those damages. lfallock v. Friank1 Cush. 496 (1848). lin, 2 Met. 558 (1841). But see now Gen. 112. It seems, that a laying out of a high- Sts. c. 43, ~ 14. way, in terms, as an alteration of a former 118. The discontinuance of part of a street way, discontinues the old way between the in a city, by order of the mayor and aldermen, ends of the new one. But in the absence of whereby the value of lands abutting on other any record of the laying out of either way, parts of the street, and on the neighboring evidence of the construction and subsequent streets, is lessened, is not a ground of action WAYS, III. IV. 107 against the city by the owner of such lands, IV. PROCEEDINGS ON AN APPLICATION FOR if they are still accessible by other public A JURY. streets. Smilthv. Boston, 7 Cush. 204 (1851). 119. Tie discontiiuance of a highway gives (a) Who are Entitloe to Damages; Waiver no right to recover damages to the owner of land not abutting on the way discontinued, 124. A possessory title to land, over which and accessible by other ways. Castle v. a highway is located, is sufficient to entitle Berkshire, 11 Gray, 26 (1858). the party in possession, who is aggrieved by 120. Upon the question whether a public the doings of county commissioners in locatway has been discontinued, evidence is admis- ing the highway, to have a jury to determine sible of its obstruction from time to time the matter of his complaint. Slcete L tzcLtic during a series of years by successive owners Ilospital v. WIorcester, 1 Met. 437 (1840). or occupiers of the soil, by whatever right or 125. Possession of land for nine years, untitle they were possessed of the premises. der a claim of title in fee, is priime facie Ilolt v. Sarggent, 15 Gray, (1860). sufficient to support a petition for dalmages 121. In 1826, the commissioners of high- thereto, sustained by reason of the disconways adjudged that "an alteration in the tinuance of a highway. IIawkins v. JBe;k'cshire, road fiom the Central Bridge to P." was 2 Allen, 254 (1861). of common convenience and necessity, and 126. Before the Rev, Sts. one tenant in their record described the road by courses and common of land over which the commissiondistances in part over lands of certain persons ers have laid out a highway, could not apply named and in part " over old road." In for a jury, without the joinder of his co-ten1827, on a petition for an alteration in the ants. ierrill v. Berkshire, 11 Pick. 269 (1831). highway located in 1826, but not now worked, But since the Rev. Sts. c. 24, ~ 48, (Gen. Sts. they adjudged the alteration to be of common c. 43, ~ 53,) he can. DwigLt v..lazmpdenz, 7 convenience and necessity, and described it Cush. 533 (1851). by lines and boundaries in part "over road as 127. Where part of a lot of land under formerly laid out in" 1826, " and said corn- lease is taken by the mayor and aldermen of missioners adjudge that all that part of the Boston for the purpose of widening a street, road by them located in 1826," between cer- the lease is not thereby extinguished; nor is tain points described, " be and the same is the lessee discharged from his liability to pay hereby discoatinued." In 1853 and 1854, the reserved rent during the remainder of the upon a petition to define the boundaries of term. But the lessor and lessee are each enthis road and locate it anew, the county com- titled to recover compensation for the damage missioners described a new location very ex- so sustained by them respectively. Parks v. actly by metes and bounds. It was held, that Boston, 15-Pick. 198 (1834). evidence of these proceedings, with evidence 128. The estate of a tenant who holds a that the old way had not been travelled upon house under a lease for years, which contains since 1826, excepting that up to 1839 it was this clause: "It is also agreed that if the used by persons crossing the river in winter lessor shall sell the said house, or that the upon the ice, and since then by persons driv- city shall cut off said premises, that the said ing cattle to drink, showed a discontinuance tenant shall consent thereto, and that the said of the old way. Bennett v. Clemence, 6 Allen, tenant shall do all repairs at his expense," is 10 (1863). determined, if the city cuts off the premises; 122. For the purpose of proving that an ex- and the tenant can recover no damages of isting way has not been discontinued by the the city for the injury done thereby..leanigle substitution of a new way therefor, evidence v. Boston, 3 Alien, 230 (1861). is competent to prove the existence of a public 129. If, after county commissioners have landing, to which the way furnishes a neces- laid out a highway and assessed the damages sary access, or can reasonably be considered sustained by the owner of land over which it as appurtenant. Ib. is, laid out, such owner removes his fences 123. County commissioners have no author- and rebuilds them oh the-line of the highway ity to discontinue a public landing; and the so laid out, he does not thereby deprive himalteration of a way by the substitution of a self of his right to a jury to re-assess the new one therefor has not the effect to discon- damages. Endicott, Petitioner, 24 Pick. 339 tinue the old way, if such old way is necessary (1834). to furnish access to a public landing, or can 130. S., an. owner of land over which a reasonably be considered as appurtenant highway was laid out, agreed with the county thereto. lb. commissioners "to release all claims for damages consequent on laying out the same, See ante, 96; post, 154. except some damage for removing fence." 108 WAYS, IV. field, that S. had not, by this agreement, location, "is to have the privilege to have bound himself to accept such damages for re- his house remain as it is, and not be required moving his fence as the commissioners might, -to remove it until he, his heirs or assigns, have in their discretion, allow him; but that he was occasion to rebuild or remove it," does not entitled to have them estimated by a jury. prevent him from claiming damages for the Sturtevanzt v. Plymouth, i2 Met. 7 (1846). expense of removing it, if rendered expedient 131. In a petition for damages caused by by the location, or from claiming damages for raising and grading a highway, the petitioner injuries occasioned to it by such location. is not estopped by his waiver of damages Brozwn v. WTorcester, 13 Gray, 31 (1859). caused by the deposit of gravel from a side- 138. The burden of proving a waiver of walk built along the highway by the surveyor damages by one whose land has been taken who raised the way. Mitchell v. Bridgcwccter, for a highway is on the party alleging the 10 Cush. 411 (1852). waiver. Ib. 132. Damages arising from the taking of See aine, 52. land for a highway may be released by a parol agreement made before the county commis- (b) Application for a Jury, and Notice sioners and entered on their records. Fuller hereon. v. Plymnouth, 15 Pick. 81 (1833). 139. Under the Rev. Sts. c. 24, ~ 55, a peti133. An agreement made between one of tion for a jury to assess damages for land several tenants in common and the county taken to widen a street in Boston must be commissioners in relation to the location of filed within a year after the vote of the mayor a highway over the land held in commron, or and aldermen for laying out the street. Loring the assessment of damages, is not binding on v. Boston, 12 Gray, 209 (1858). And see the co-tenants. Merrill v. Berkshire, 11 Pick. Gen. Sts. c. 43, ~ 79. 269 (1831). 140. A complaint to the court of common 134. When a town way is laid out by county pleas, setting forth that the complainant's commissioners over land which A. has con- land had been taken by the city of Boston to veyed to B. by deed not recorded, and B. does widen a street, and praying for a jury to assess not make known to the commissioners his title his damages, must be brought within twelve and claim for damages, although he has an months from the time when the land was so opportunity so to do, and they award damages taken. Goddard v. Boston, 20 Pick. 40T to A. and not to B., a writ of certiorari will (1838). not be issued, on the petition of B., for the 141. An application under Rev. Sts. c. 24, purpose of quashing the commissioners' pro- ~~ 68, 76, (Gen. Sts. c. 43, ~ 73,) for a jury ceedings. Brown v. Essex, 12 Met. 208 (1846). to assess damages occasioned by taking land 135. Where county commissioners, on the for a town way must be made within one year location of a highway, awarded no damages from the laying out of the way, and not to a land owner, because, in their judgmegt, merely within one year from the assessment the benefit resulting to him from the highway of damages by the selectmen or mayor and was equivalent to the damage which he aldermen. Russell v. New Bedford, 5 Gray, thereby sustained; and, such land owner's 31 (1855). claim for damages being afterwards brought 142. Under Rev. Sts. c. 25, ~ 6, a petition before a sheriff's jury, the commissioners for a jury to assess damages caused by changthere took the ground that the petitioner had ing the grade of a street in a city may be filed waived his right to damages; it was held, that at any time within a year after the refusal of this was not inconsistent with the former the mayor and aldermen to give damages, ground, and that both bore directly upon the although the mayor and aldermen do not act real question in issue, namely, whether such upon the petition to them for more than six land owner was entitled to damages. White v. months after the completion of the alterations Norfolk, 2 Cush. 361 (1848). complained of. Ers7sine v. Boston, 14 Gray, 136. If, at the time of the adjudication by 216 (1859). See Gen. Sts. c. 44, ~~ 19, 20. county commissioners that the location of 2 143. Such petition must be filed within a highway, petitioned to be laid out by them, is year after the adjudication of the mayor and of common convenience and necessity, an aldermen upoii the petition to them, even if owner of land over which the same passes work has been done upon the street after the waives all claim to damages, he will be bound adjudication. Revere v. Boston, 14 Gray, thereby, and cannot afterwards, at the location 218 (1859). See Gen. Sts. c. 44, ~~ 19, 20. of such highway, retract his waiver and claim 144. Any party aggrieved by the action of damages. Ib. county commissioners in locating a road 137. A provision in the location of a high- anew, for the purpose of establishing the way by county commissioners, that the owner boundary lines thereof, under Rev. Sts. c. 24, of a house, part of which comes within the ~ 9, (Gen. Sts. c. 43, ~ 12,) is entitled to a WAYS, IV. 109 jury to determine his damages, in the same by the board of aldermen of a city, and an manner as on an original laying out of such assessment of damages in favor of a land road. IHadley v. M1fiddlesex, 11 Cush. 394 owner by a jury, and acceptance of their ver(1853). See Barcnes v. Springfield, 4 Allen, 7dict, are not sufficient to entitle the land owner 488. to recover the damages so assessed, if the 145. When county commissioners, on lay road was not in fact constructed, nor the land ing out a highway or ordering specific repairs in fact entered upon for the purpose of opentherein, make no return of damages sustained ing the street, and the order for its construcby a party, this is equivalent to a return that tion was afterwards revoked. New Bedford v. he has sustained no damage; and the party, Bristol, 9 Gray, 346 (1857). if aggrieved, must apply for a jury within the 150. Exceptions to the form of a petition to same time as if the commissioners had ex- county commissioners, praying for a warrant pressly returned that he had sustained no for a jury to assess land damages, cannot be damage. lionagle v. Bristol, 8 Cush. 360 taken after the warrant has issued and a ver(1851). diet has been returned for the petitioner. 146. Under the Rev. Sts. c. 25, ~ 6, the Thayer v. Worcester, 10 Cush. 151 (1852). owner of land adjoining a highway or town 151. When a warrant for a jury to assess way was not entitled to damages for injuries damages occasioned by taking land for a town to his estate sustained by raising or lowering way is issued without any order of notice, the such way, until the act of raising or lowering objection that the application for a jury was it was done. In the city of Lowell, the appli- not made within the time limited by law, may cation for damages, in such case, must be be first made upon the return of the warrant, first made to the mayor and aldermen, as a and before the empanelling of the jury; and board separate from the city council; and if overruled by the presiding officer, is ground until their determination is made on such ap- for setting aside the verdict, when returned to plication, the county commissioners have no the court of common pleas. Russell v. Newo authority to issue a warrant for a jury to esti- Bedford, 5 Gray, 31 (1855). mate such damages. Brown v. Lowell, 8 152. What is *seasonable notice to appear Met. 172 (1844). before a jury summoned to estimate damages 147. The board of aldermen of a city upon caused by laying out a way, depends on the petition laid out and accepted as a higlhway a circumstances of each case. Barre Turnpike new road, and the road was constructed as v. Appleton, 2 Pick. 430 (1824). laid out, with some alterations made by agree- 153. Where a turnpike corporation appearment with abutters. More than a year after- ed before such a jury andobjected to the want wards, without any new petition being filed, of due notice, but declined being allowed furthe board of aldermen ordered the superin- ther time, and proceeded on the trial, it was tendent of streets to make an additional re- held to be a waiver of the insufficiency of the turn following the line of the road as con- notice. Ib. structed, and the board of aldermen passed an 154. It is not necessary in a petition for order accepting that road. as a highway. damages to land sustained by reason of the Held, that a petition for a jury to assess dam- discontinuance of a highway, that one who is ages, by an owner of land not affected by the in possession of the same, claiming title therealterations, should have been presented within to in fee as trustee, should describe himself a year from the original laying out. lIaskell as trustee in his petition. IawlcijLs v. Berkv. Bristol, 9 Gray, 341 (1857). shire, 2 Allen, 254 (1861). 148. The provision in St. 1812, c. 86, (Gen. 155. If a petition, addressed to " the Board Sts. c. 43, ~ 14,) that no person claiming dam- of Mayor and Aldermen and Common Council age for the laying out of a highvay shall of the city of Worcester," and praying for an "have a right to demand the same until the assessment of damages to an estate in the city land over which the highway is located shall of Worcester, caused by altering the grade of have been entered upon, and possession taken, an adjoining highway, has been acted on by for the purpose of constructing said highway," the mayor and aldermen, and damages refused, does not prohibit a person over whose land a and thereupon on application to the county way is laid out by county commissioners, and commissioners a warrant has been issued for who is aggrieved by their estimate of his a jury to determine the damages, and a trial damage, from having the damage assessed by had before them, and their verdict set aside, a jury before his land is entered upon, and it is too late for the city, on an application for possession thereof taken for the purpose of a new warrant for a jury, to object to the irregconstructing the way. Harding v. Medway, ularity in the address of the original petition. 10 Met. 465 (1845). See post, 496-498. Worcester v. Keith, 5 Allen, 17 (1862). 149. The location and acceptance of a road 110 WAYS, IV. (c) Proceedings before Jury; their Powers 164. Under the authority given to a jury by and Duties. the Rev. Sts. c. 24, ~~ 13, 76, (Gen. Sts. c. 156. Where ajury empanelled to determine 43, ~~ 20, 73,) to make any alterations that a question relating to the location of a high- may be prayed for between the termini of a way were unable to agree, it was held, that town way laid out by selectmen, the jury the town was entitled to have the question de- may, on petition of a party over whose land termined by another jury. Mendon v. Wor- the way is located, move the location of a cester, 10 Pick. 235 (1831). portion of the way, beginning at one tcerminus 157. In a preceding against a city or town thereof, a rod to one side of the location by to assess damages occasioned to adjoining the selectmen. Iffayward v. North Bridgeland by the raising or lowering of a highway, water, 5 Gray, 65 (1855). a person who, though not residing in the city 165. It is the province of the county comor town, has a claim against the respondents missioners to determine the general course and of a like character to that in controversy, and terminations of a highway, and the jury may feels himself aggrieved and injured by the mike only such minor alterations as in their alteration in question, is not competent to sit opinion may improve thb highway or render it on the jury. Flagg v. Worcester, 8 Cusl. 69 less burdensome to individuals or corporations (1851). affected by it. Merriill v. Berkshire, 11 Pick. 158. Where a jury empanelled in the court 269 (1831). Gen. Sts. c. 43, ~ 20. of common pleas to assess the damages sus- 166. Tie jury cannot lawfully decide that tained by the owner of land taken in Boston there shall be no road, when the county comto widen a street, under St. 1821, c. 109, ~ 8, missioners have determined that common conhave viewed the land, the jurors may exercise venience requires that there should be one. lb. their own judgment and knowledge of like 167. They are bound by the judgment of subjects in estimating the..damages, but it the county commissioners as to whether the seems, that if ajuror has knowledge of any fact road is of common convenience and necessity, bearing upon the case, he must disclose and and cannot alter it. Lanmesboroegh v. Berktestify to it in court. Parks v. Boston, shire, 22 Pick. 278 (1839). Gen. Sts. c. 43, Pick. 198 (1834). ~ 20. 159. A bill of exceptions lies to the instruc- 168. The jury have no authority to lay out tions and rulings of the court upon such trial. the way over the land of any person except lb. the petitioners for the jury; it is therefore 160. A petition for the assessment of dam- not necessary that their verdict should name ages occasioned by the taking of land to widen the owners of the land over which the way is a highway, and a petition for a jury to revise established. JMerrill v. Berkshire, 11 Pick. the damages to- the same land, assessed by 269 (1831). Gloucester v. Essex, 3 Met. 375 selectmen, for altering the grade of the way, (1841). may be submitted together to one jury. Dick- 169. If a petition for a jury to revise the enson v. Fitchburg, 13 Gray, 546 (1859). judlgment of county commissioners in laying 161. A jury, summoned to assess the dam- out a highway asks for various specific alterages occasioned by the laying out or altering ations in tlie hig'hway as ordered by them, of a highway, are authorized by Rev. Sts. c. some of which a jury have power to make, 24, ~ 33, (Gen. Sts. c. 43, ~ 39,) to extend and others not, a warrant for a jury should the time allowed by the county commissioners issue, and upon the trial the presiding judge for the owner of the land to take off the fences, should decide, upon the facts as they then trees, &c.; although the petition and warrant appear, whether any specific alteration which are for a jury to assess damages only. Dwight is asked for is within their power. WVestport v. Springfield, 6 Gray, 442 (1856). Av. Bristol, 9 Allen, 203 (1864). 162. A jury has authority, underiev. Sts. c. 24, ~ 13, (Gen. Sts. c. 43, ~~ 19, 20,) to (d) Ele-rnts and Computation of Dammake alterations in a highway that has been a-es; Evidence thereof. located anew by county commissioners. State See St. 1866, c. 174. Lunatic Hospital v. Worcester, 1 Met. 437 170. In estimating the damage sustained by (1840). the laying out of a highway, the value of the 163. Under the Rev. Sts. c. 24, ~ 13, (Gen. land taken, the expense of fencing against the Sts. c. 43, ~ 20,) authorizing a jury to make road, and the damage done to the remaining any alterations that may be prayed for, land of the owner, are to be allowed; and between the termini of a highway laid out by from this is to be deducted the benefit of tile county commissioners, a jury has no authority road, if any, to the owner of the land. Conto make an entire new line of way from one monwealth v. Coombs, 2 Mass. 492 (1807). ternminus to the other. Gloucester v. Essex, Commonwealth v. Norfolk, 5 Mas,. 437 (1809). 3 Met. 375 (1841). Gen. Sts. c. 43, ~ 16, WAYS, IV. 111 171. The benefit which the owner of the land that his sales were less during the time when derives from the laying out a way over it may the street as widened was being fitted for use,1 exceed the value of the land covered by the than in the corresponding season of the next way. In such case he is entitled to no dam- year after the alteration had been completed, ages. Commonwealth v. Middlesex, 9 Mass. is not admissible, unless it is connected with 388 (1812). other evidence tending to show that the dimi172. If the laying out of ahighway subjects nution of business was in fact occasioned by the owner to the inconvenience of opening a the operation of widening the street. lb. watercourse at his own expense, this may be 181. A city or town is not responsible in estimated among other causes of damage. damages for the inconvenience and loss of Perley v. Chandler, 6 Mass. 458 (1810). business occasioned to the abutters on a street 173. In estimating the value of land taken by incumbrances and obstructions placed in for a highway, its value to build permanent the street for the purpose of repairing it, or brick and stone buildings upon in the future by opening a common sewer in the street. Ib. is to be considered. Dieckensoin v. Fitchburg, 182. The complainant took a lease of a 13 Gray, 546 (1859). store in the city of Boston, for three years, 174. The value of land taken for a highway covenanting to pay the rent and to leave the is to be assessed according to its value at the premises in good repair at the end of the time of the taking, having regard however to term, and the lessor reserving a right to enter the uses to which it may probably be applied. and make improvements. The front part of lb. the land was taken and the front wall of the 175. In estimating the damages occasioned building was cut off by the city, for the purby taking land for a highway, no benefit is to pose of widening the street. It was held, be set off which is received by the petitioner that the lessee, in the first instance, and if in common with other abutters on the samee he declined, the lessor, had a right to build a street, no part of whose land is taken. Ib. new wall on the new line fixed for the street, 176. An agreement made between one of and the expense of it was a proper item of several tenants in common and the county claim for damages against the city. Patterson commissioners, as to the assessment of dam- v. Boston, 20 Pick. 159 (1838). ages on the location of a highway over the 183. Whether the lessee built such wall land held in common, is not binding on the himself, or paid the lessor for building it, co-tenants. Me'rrill v. Berkshire, 11 Pick. does not affect his claim against the city, 269 (1831). unless the lessor built it on his own account 177. Where land is taken by the mayor and received remuneration from the city; in and aldermen of Boston for the purpose of which case lie was not entitled to recover the widening a street, it is to be estimated in the amount from the lessee, and the city is not to assessment of damages, at its value at the be charged a second time for the same damage. time of the taking, and not at its value at the Ib. time of the trial. Parks v. Boston, 15 Pick. 184. The damage sustained by the lessee 198 (1834). in being deprived of the use of his store, for 178. Where the jury have viewed the land, which he is entitled to recover of the city, is the jurors may exercise their own judgment to be computed for such time as would be and knowledge of like subjects, in estimating reasonably necessary to remove his goods the damages; but it seems, that if a juror has and make the repairs and move back again; knowledge of any particular fact bearing upon and the loss of the value of the store to him the case, he should disclose and testify to it, for that period, and not the rent and taxes in court. lb. specifically, is the measure of the indemnity 179. Where the lessee of a store in Boston to which lle is entitled. lb. was prolibited, under certain penalties, by 185. The lessee is also to be remunerated the terms of the lease, from making any for the diminished value of the premises for alterations in the store without the consent the residue of the term, caused by the taking of the lessor, and, subsequently to the execu- of part of the premises, he continuing to pay tion of the lease, the street was widened by rent and taxes at the same rate. - b. the city authorities, it was held, that the city 186. It seems, that -le is not entitled to was not responsible to the lessee for any damages for loss of custom, occasioned by damage occasioned by a delay on the part of his being obliged to occupy a less advanthe lessor to give his consent to the alterations tageous place of business while the repairs rendered necessary by the widening of the are making. lb. street. Brooks v. Boston, 19 Pick. 174 187. Soon after the commencement of a (1837). lease for three years of a warehouse or store 180. Upon a complaint for damages in such in Boston, in which lease the lessee covecase by the lessee against the city, evidence nanted to pay'ne rent during the term, and to 112 WAYS, IV. leave the premises in good repair, the city estate would be benefited by selling for buildtook the front part of the land on which the ing lots, as if that must be the future use of building stood, and cut down the front wall, the property, but may consider how much the for the purpose of widening the street. The estate would be benefited, using it as men of building remained in this condition about two ordinary prudence, economy, and wisdom years, when the lessor took it down and would use it. lb. erected a new store on the same site, but 191. Steps projecting from the door of a diminished by the strip of land taken by the house, over land taken for a highway, are ohcity. Before the wall was taken down, the structions to the highway, and must be relessee removed into another store, and re- moved by the owner of the land, and are to mained there until the new one was erected, be included in the assessment of the damages when he removed back into the new one. In occasioned by such taking of his land; and so a complaint by the lessee against the city for of eave spouts and bay windows, if they indamages, it was held, that the plaintiff was terfere.with the public use of the entire limits entitled to recover the expenses of removing of the highway. fHlyde v. AMiddlesex, 2 Gray, his goods from and back to his original place 267 (1854). of business, and for the loss of earnings for 192. The owner of land, who has built a the few days occupied in such removals, and house on a part thereof over which there is a a reasonable sum for the rent of another store right of way, may recover, as part of the for so long a time as would reasonably have damages occasioned by the subsequent taking been required for putting up a new front wall; of the land for a highway, tie value of the (or, if lie had suspended his business, that he right to have the house remain on the land might have recovered for the loss of earnings until its removal be required by tile owner of during a reasonable time for rebuilding the the right of way. Tufts v. Charlestown, 4 Gray, wall;) that he had a right forthwith to rebuild 537 (1855). the wall, carrying it up to the roof, and if he 193. Upon the taking, for a highway, of part had done so, inasmuch as he could not have of land held by a parish for the site of a meetcompelled a contribution from the lessor, he ing-house and its appurtenances, the parish would have been entitled to recover the whole may recover damages for the diminution in cost from the city; but that as he did not in value of the land for the purpose to which it fact put up the wall, but left the lessor to was devoted, if it does not appear that they make his full claim for damages on the city, have any other right to the land, but cannot he could recover only such proportion of the recover damages for the anticipated annoyance estimated expense as his interest (regard to worshippers in the meeting-house. resultbeing had to the portion of the store occupied ing from the use of the highway on the Lord's by him and the time his lease had to run) day by noisy and dissolute persons, riding for bore to the value of the whole estate. Pat- pleasure. Woburn v. JMiddlesex, 7 Gray, 106 terson v. Boston, 23 Pick. 425 (1839). See (1856). ioster v. Boston, 22 Pick. 39, 40. 194. The true rule of damages in most 188. An estimate, not on oath, of damages cases of this nature, is the diminution of the that would be sustained by a party over whose absolute value of the land owner's property by land a railroad was afterwards laid out, made the laying out of the highway, and not the by a committee of a town, while a petition of diminution of its value for the specific use to the town for a change of the route of the rail- which he had devoted it. MEBTCALF. J. Ib. road was before the legislature, and merely 195. A jury empanelled to assess damages stating those damages as the least the party caused by altering a highway were instructed would take, is not admissible in evidence to a that they were to set off any benefit occasioned jury empanelled to appraise damages caused by the alteration; that this benefit must be by laying out the railroad over the land, al- some direct, peculiar and special benefit dothough such estimate was ma'de at the request rived by this estate, and not the general benefit, of an agent of the railroad company. Webber acquired by all the estates adjacent, of having v. Easternl Railroad, 2 Met. 147 (1840). a wider street; that if the alteration by cutting 189. At a hearing before a sheriff's jury to off some of the petitioner's estate left a smaller assess damages caused by laying out a high- estate with a longer front, which was of more way, the opinion of competent witnesses as to value in the market, this was a benefit which the comparative value of the land before and should be allowed; but unless the petitioner's after tie laying out, is competent evidence, its estate derived some benefit not received in weight and value being determined by the jury. common by all the other estates on that street Dwight v. Iamnp2cen, 11 Cush. 201 (1853). between the two nearest cross streets, the 190. In estimating the benefit to a land benefit was not to be deducted. ield, that owner from the laying out of a highway, the the respondents had no ground of exception. jury are not to inquire merely how much the, arwelt v. Cambridge, 11 Gray, 413 (1858). WAYS, IV. 113 196. When a town way has been laid out so bridge as a structure belonging to them, inthat it is above the level of the adjoining land, dependently of their franchise, at the actual a petitioner for damages to adjoining land may value of such a structure. Held, that the prove the cost of filling up which has become instruction was erroneous. Central Bridge necessary in order to pass from his land to v. Lowell, 15 Gray, (1860). the way. Plynmpton v. Woburn, 11 Gray, 415 206. It was held, further, that the whole (1858). beneficial interest of the corporation consisted 197. Evidence that land taken for a high- in their right to take the specified tolls until way has since been laid out as a sidewalk is the grant should revert, or be redeemed acinadmissible in reduction of the owner's dam- cording to the reservations therein made, and ages. But evidence that when it was taken it that the damages to be awarded to the petiwas probable that it would be improved in tioners should be a just and reasonable cornthat way is admissible. Dic7ceeson v. Fitch- pensation for the appropriation to public use bolrg, 13 Gray, 546 (1859). of this qualified and redeemable franchise. Ib. 198. It seems, that the surrender of a lease 207. In estimating the damages sustained to the lessor, after the land has been taken by a railroad company by the laying out of a for a highway, with a release of the lessee's highway across tleir railroad, the jury have claim to damages, is admissible in evidence no right to take into consideration any supon the assessment of the damages. lb. posed future benefit to them from a probable 199. Evidence that a witness, not shown to increase of business in consequence of the esbe an expert, "offered the petitioners one tablishment of the new highway; and evidence dollar a foot for a portion of the land in ques- of payments of money by them for accidents tion," is incompetent. lb. at their several crossings, and of tlhe com200. A witness who has testified to his parative profit of the local and other travel opinion of the value of the land, may be asked over their railroad, is inadmissible. Boton on his examination in chief, the facts and cS Ma3ine Railroad v. iddlesex, 1 Allen, reasons on which his opinion is founded. lb. 324 (1861). 201. The petitioner, if an expert, may 208. If a petitioner for damages to land testify to his opinion of the value of tlhe land. sustained by reason bf the discontinuance of 202. A special county commissioner, who a highway relies upon title by deed and by as such has assessed damages in other cases possession, and evidence is offlred of his posfor land taken for highways, is competent to session thereof, and the only evidence of title give his opinion of the effect of taking for a by deed is of two deeds, one of which conhighway part of certain land which he has veyed a part of the land in question to two often seen. Ib. other persons described as trustees of the 203. At a hearing for the assessment of United Society of Shakers, and tile other condamages occasioned by the location of ahigh- veyed the residue to the petitioner and another way, a witness, called to testify to the value person as trustees of the same society, and of land taken on one side of the highway, these deeds are allowed to go to tlhe jury as may be asked on cross-examination concern- proper evidence, with instructions that they ing the value of land upon the opposite side may decide upon the deeds and fronm the of the way, although the jury have not had whole evidence, whether the petitioner is their attention called to land upon that side. entitled to damages, a verdict for the Brown v. lTWorcester, 13 Gray, 31 (1859). petitioner assessing damages cannot be sus204. On a petition under lJev. Sts..c. 24, ~ tained. Ilawkins v. Berkshire, 2 Allen, 25a55, (Gen. Sts. c. 43, ~ 79,) for damages for (1861). taking for a street certain land described by 209. In assessing damages for taking a pormetes and bounds, damages may be recovered tion of an estate for widening a street, no for an injury thereby resulting to adjoining allowance should be made for an increased land of the petitioner. First Church in Bos- injury to the residue of the estate from a supton v. Boston, 14 Gray, 214 (1859). posed easement of light and air, claimed by 205. A bridge, which had been built by a an adjoining proprietor, unless its existence bridge corporation under a charter which is proved or admitted by the petitioner. authorized them to take tolls thereon for Paine v. Boston, 4 Allen, 168 (1862). seventy years, unless the bridge should be 210. Evidence of actual sales of other sooner redeemed for the public under certain similar land in the vicinity ie competent, to specified conditions, was laid out by a city as aid in determining the value of land taken for a highway. Upon a trial for the assessment widening a street. And if evidence of sales by a jury of the damages sustained by the of other land on the same street, and within corporation by such laying out, the jury were one hundred and seventy-six feet, is rejected instructed that they might take into consider- on the sole ground that it is too remote, this is ation the petitioners' right of property in the a sufficient reason for granting a new trial. lb. 114 WTAYS, IV 211. On the trial of a petition for the as- of the verdict of a jury in the case of laying sessment of damages for land taken for a out a highway, when the decision was founded public way, evidence of the opinion of wit- on matter of law apparent on the record. nesses as to the value of land must be confined Lanesborouzghl v. Berkshire, 22 Pick. 278 to the land in controversy. Rand v. Newton, (1839). 6 Allen, 38 (1863). 220. Where several parties over whose 212. A petitioner for damages to land by respective lands a highway had been laid out reason of the widening of a street may be by county commissioners, applied for a jury asked in cross-examination if he has not ex- to make alterations in the location and to repressed opinions as to the effect of the alter- assess their damages, and all the cases were ation upon the value of the estates upon the submitted to the same jury at the same time, str.eet; and lie will not be entitled to a new and a verdict was returned confirming the trial, after a verdict against him, because, in location over the lands of some of tlhe parties the same connection, other questions designed and assessing their damages severally, and to aid in eliciting his real opinion upon this stating that as to another part of the location point were allowed to be put to him, especially the jury could not agree, it was held, that the if it does not appear what answers were given verdict was a several verdict in each case; to them, although the questions taken by and accordingly that it ought to'be received themselves alone mightbe irrelevant. Flowler and accepted in each case in which the damv. Miiddlesex, 6 Allen, 92 (1863). ages were assessed, and that the case in which 213. The value of the land in controversy the jury could not agree ought to be submitted may be proved by the testimony of witnesses to a new jury. b.. See Gen. Sts. c. 43, ~ 23. personally acquainted with the subject, and 221. Where several parties aggrieved.by the sufficiently familiar wihl it to give an opinion. laying out of a highway, join in a petition for l0. a jury, the verdict is in effect several distinct 213 a. Evidence of an unaccepted offer of a verdicts on the several rights of the parties, certain price for a piece of land is incom- and it is competent to the court to accept and petent, for the purpose of showing its value. affirm the verdict as to one petitioner and set lb. it aside as to another; and where the verdict (e) Verdict, and Judgment thereon. is set asidce as to one of the petitioners, a new 214. The verdict of a jury by which the jury should be granted him. Antlhony v. Berclocation of a way by commissioners is altered, shire, 14 Pick. 189 (1833). See Gen. Sts. c. is sufficiently certain if it gives the commence- 43, ~ 23. ment and termination and the courses and 222. It is no ground of objection to the acdistances, so that the actual location of the ceptance of tlie verdict of a jury, assessing' way by the jury can at any time be readily damages occasioned to adjoining land by the ascertained. Merrill v. Berkshire, 11 Pick. raising or lowering of a highway, that there 269 (1831). was no such determination of dnamages by the 215. The jury have no authority to lay out selectmen or mayor and aldermen as to authorthe way over the land of any person except ize the county commissioners to issue a warthe petitioners for the jury; it is therefore rant for a jury. But such objection, if relied not necessary tlat their verdict should name upon, must be taken before the county coiithe owners of the land over which the way is missioners. Flagg v. Worcester, 8 Cush. 69 established. lb. (1851). 216. The jury cannot lawfully decide that 223. County commissioners cannot object there shall be no road, when tle county corn- to a verdict assessing land damages, because missioners have determined tlat common the jury apportioned tle damages to the difconvenience requires that there should be ferent joint petitioners instead of awarding a one. lb. gross sum. Tlhayerv. Worcester, 10 Cush. 151 217. It is the province of the county com- (1852). missioners to determine the general course 224. On a petition for the assessment of and terminations of a highway, and the jury damages to the land of'"A. B. and wife," may make only such minor alterations as in damages cannot also be assessed for land hleld their opinion imay improve the highway or by A. B. in his own right. lb. render it less burdensome to individuals or 224 a. A verdict of a jury assessing danmcorporations affected by it. lb. ages sustained by a party by the laying out of 218. Where the jury alter the course of a road over his land, may be set aside for tlle the highway, they may of necessity assess reason that the damages are excessive. Ilardthe damages for such alteration. Ib. ing v. Medway, 10 Met. 465 (1845). 219. An appeal lay to the supreme judicial 225. An extension, by the jury, of the time court from tlle decision of the court of con- allowed to the owner of land taken for a highmon pleas adjudicating upon the acceptance way to take off his fences, trees, &c., to "the WAYS, IV. V. 115 first day of October next from the acceptance or railings on highways only at such places as, of this verdict," authorizes him, if exceptions without them, would be unsafe or inconvenare taken to the acceptance of the verdict by ient for travellers exercising ordinary care. the court of common pleas, and overruled Collins v. Dorchester, 6 Cush. 396 (1850). by this court, to take off his fences, trees, &c. 234. It is the duty of cities and towns to at any time before the first of October next keep that part of the street which lies between after such overruling of the exceptions. the carriage-way and the sidewalk in such Dwight v. Sp'ringfield, 6 Gray, 442 (185G). repair that foot-passengers may cross any part 226. A verdict of a sheriff's jury under a thereof with a reasonable degree of safety, complaint of A. B. and others for daimages to using such care and caution as are adapted to land by reason of the laying out of a highway, to the nature of tle case; and the establishwhich states as follows: " We find that the ing of raised crossings at proper distances is said'complainants have sustained damages by not a sufficient compliance with this duty. means of said laying out of said street or way Raymonod v. Lowell, 6 Cush. 524 (1850). over or adjoining their land, and the continu- 235. A city has a right to erect a barrier ance thereof, and we find and allow damages across tha entrance of a passage way wlhich to each of them respectively as follows, to opens upon and is below tlie level of a pulblic wit, to A. B nothing," &c. should not be set street, it it is necessary to do so in order to aside as repugnant or against law, but should make the street safe and convenient for travbe accepted as a verdict that A. B. has sus- ellers. Alger v. Lowell, 3 Allen, 402 (1862). tained no damages for which lie is entitled to 236. The surveyors of highways had aucompensation. Chace v..Fall River, 2 Allen, thority to dig down or raise a street, even 533 (1861). whenl there was no provision of statute for 227. Under a warrant for a sheriff's jury to compensation of persons whose estates were assess damages, "by reason of the locating, tllhreiy injurecl. Callezder v. Afr'sh, 1 Pick. laying out and widening " of a street, a ver- 418 (1823). diet of tihe jury assessing damages, or assess- 237. If such autlority is exercised by tlem ing no damages, by reason of " laying out " of with discretion, and niot wantonly, a party the street, wiil be deemed to cover the whole injured cannot maintain an action agrinst subject matter submitted to them, and may be tlhem. l. See ElUder v. Bemins, 2 Met. 599; accepted. Fowler v. Middcleesex, 6 Allen, 92 Benjamin,Z v. Wheeler, 16 Gray, (1863). 238. A surveyor of higlhways is not liable to tihe town for damages which tile town may be compelled to pay to a person injured by V. RLEPAIRING PnUBILIC WAYS; POWEns reason of' a defect or want of repair existing iAND DUTIES iOn I-ILGHWIAY SURvEYORS. in a hiiglivway through such surveyor's fault or neglect. k[Vite v. Phillipston, 10 Met. 108 228. Surveyors of liighways, as sucli, have (1831). no authority except as to Ilighlways oil hlnd. 289. A surveyor of highways has no autliorAustii, v. Cartere, 1 iMass. 231 (1804). ity to repair a way at his own expense, and 229.'lI'e duty of repa.iring higIhways within then call upon tile town for an. indemnity. their limits is e njoined on towns in this state, oes v. La Pick. 119 (1826). See not by tile common law, but only by statute. Gemn. Sts. c. 41, ~ 13 14. Com1mozewealt2hi v. Sprin.gficld, 7 Mlass. 13 240. Thus, where a surveyor, before Ilis (1810). limits were assigned, and without consultimg 230. The duty required of towns to keep tlle othler surveyors, repaired at liis own exhighways in repair, extends to defects iand pense a way, whrici upoil the assignment fell obstructions caused by snow. Lolcer, v. Brook- witiout his liinits, it was held, that lie was line, 13 Pick. 343 (1833). without remedy. b. 231. Towns are not obliged to keep tle 241. Unlder the'ev. Sts. c. 25, ~ 13, (Gen. whole of a higlhway, from one boundary to Sts. c. 44, ~ 13,) tlme only autliority of a iurtile otller, free ifom obstructions and lit. for the veyor of hilghwavs to clharge a town for l re.lai,: s use of travellers. Iiow'ccrd v. NTorfth BJ'ridge- of a roaLd, vwhen the iihighway tax is insuficient catier, 16 Pick. 189 (1834). therefor, is by employing other persons to 232. A town lias no authority, it seems, to make such repairs; and those persons, and erect an embanklment or other separate work, not the surveyor, may recover payment of wholly detached froml a road, for the purpose the town for tleir labor. As tus/iong v. of facilitating tie making, maintenance, or Wendell, 9 Met. 522 (1845). future repair of tile road. Aelthony v. Acdams, 242. Wllere a defect in a highway, for an 1 Met. 286 (1840). injury occasioned by which to person or prop233. Towns are bound by law to erect fences erty the town would be liable, is found to 116 WAYS, V. VI. exist on the Lord's day, it is the duty of such VI. DEFECTS AND OBSTRUCTIONS IN WAYS. town to cause the defect to be repaired immediately, or, to adopt measures to guard (a) Liability of Towns to an Action., ag'ainst the danger, until such repair can be 251. No action lies at common law against made; and work, labor, or business for this a town for damages sustained through a defect purpose, is a work of necessity within the in a hllohway in such town. Mower v. Leicesstatute respecting the observance of the Lord's, ter, 9 Mass, 247 (1812). day. lggyy v. l:lZzlbury, 4 Cush. 243 (1849). 252. Towns are liable to an individual for 243. A town is not bound to keep in repair an injury occasioned by an incumbrance in a cattle pass under a highway therein, such the road (as by large stones left in it) as well pass being the private way of an adjoining as for one occasioned by any other defect in land owner, so that such land owner's cattle it. Bigelow v. Weston, 3 Pick. 2(G7 (1825). may pass through. Baker v. Dedhanr, 16 253. In St. 1786, c. 81, ~ 7, giving damages Gray, (1860). for injuries sustained by reason of a defect in 244. A surveyor of highways lawfully re- any highway, the term " highway " includes moved wood which was placed within the town ways. Jones v. Azndover, 6 Pick. 59 limits of the highway, and notified the owner (1828). And see now Gen. Sts. c. 44, ~ 22. of the wood where he had put it, and told him 254. It is no defence to an action for an he might have it on paying for the removal injury caused by a defect in a highway, that of it. Iceld, that the owner of the wood could the town used ordinary care and diligence in not maintain an action to recover its value repairing the road, if by such care the road from the surveyor. Plumer v. Brown, 8 was not made safe and convenient, but reMet. 578 (1844). mained defective. Hiorton v. Ipswich, 12 245. An action for injuries occasioned to Cush. 488 (1853). land of an abutter by acts done by direction 255. A city or town is not responsible in of-a surveyor of highways in digging a water- damages for the inconvenience and loss of course in a highway, with the approbation of business occasioned to the abutters on a the selectmen, cannot be supported by evi- street by incumbrances and obstructions dence that the surveyor acted wantonly and placed in the street for the purpose of repairwith the intention to injure the plaintiff, or ing it, or by opening a common sewer in the that the acts done were not necessary to the street. Brooks v. Boston, 19 Pick. 178 repair of the way. Benjamin v. WVheeler, 8 (1837). Gray, 409 (1857) S.C. 16 Gray, (1860). 256. After a highway has been regularly 246. A highway surveyor has no authority laid out by the county commissioners, and a to make repairs upon a highway which has time fixed for the town to complete it, and it been discontinued by the legislature; and is subsequently opened to the use of the public, does not by making such repairs make his the traveller has a right to presume that it has town responsible in damages to a person in- in fact become a highway, and the responsijured on such highway. Tinker v. Russell, bility of the town for its safe condition thence14 Pick. 279 (1833). But see now Gen. Sts. forth attaches. Dsuery v. 1Wor'cester, 21 Pick. c. 44, ~ 26; Hayden v. Attlebor'ough, 7 Gray, 44 (1838). 338. 257. An action cannot be mintntaied against 247. Although the liability of towns for a town for damages alleged to have been cansdamages from defects in ways opened and ed to the plaintiff by the obstruction of a road dedicated by their owners to the public use, by snow, by reason whereof he was prevented but not duly laid out and establisled, is from travelling on the road and from working limited by statute, yet the actual repair of on his wood lot. Ilolman v. Townsend, 13 such a way by a town is conclusive evidence Met. 297 (1847). See Gen. Sts. c. 44, ~ 24. of its due location. lfayden v. Attleborough, 258. An action cannot be maintained against 7 Gray, 338 (1856). a town to recover damages for trouble, ex248. And such repairs made by the sur- pense and loss of time incurred by the plainveyors of highways are made by the town. Ib. tiff in extricating his horses and sleigh from 2-19. A surveyor of highways cannot re- snow suffered byythe town to remain upon a cover compensation of the town for his official highway. Brailey v. Southborozgh, 6 Cush. services. Sikes v. Hlatfield, 13 Gray, 347 141 (1850). See Gen. Sts. c. 44, ~ 24. (1859). 259. In an action against the city of Boston, 250. Highway surveyors have no authority to recover damages for an injury occasioned to accept a way in behalf of a town. Reed v. by a defect in Second Street East, in South Scituate, 5 Allen, 120 (1862). Boston, it was held, that in order to render the defendants liable, it was not sufficient to See post, 280, 309. prove that the way complained of had been so WAYS, VI. 117 travelled and used as to become a highway de well opened in the highway, such barriers as facto, but that it must appear, not only that to make it safe for the night to persons using such way has been laid out, but also that the ordinary care, is not responsible for an inmayor and aldermen, by an official act, had jury suffered during the si>me night, by a foot determined, under St. 1803, c. 111, that it passenger, by reason of the removal of such should be completed, that is, graded, fitted barriers, unless the town had notice of such for travel, and opened for use. Bowman v. removal, and of the way having been thereby Boston, 5 Cush. 1. (1849). rendered unsafe. Doherty v. fVcaltlham, 4 Gray, 260. In an action against a fown, to recover 596 (1855). damages for an injury alleged to have been 267. Where the owners of land in a city caused by a defect in a highway, occasioned open and dedicate it to the public use, as a by the want of a rail or barrier, the town will footway, placing a fence across it, which albe liable therefor, if such rail or barrier was lows foot passengers to pass, but is dangrerous necessary for the proper security of travellers, to horses and carriages, the city, whether it and would have prevented the happening of has accepted the way or not, is not liable for the injury complained of. Palmer v. Andover, an injury occasioned by the fence to a hIorse 2 Cush. 600 (1849). and carriage, although driven with ordinary 261. The liability of a city or town for an skill and care. -lIemihill v. Boston, 8 Cush. injury occasioned by a defect in a street or 195 (1851). wav, is not varied or discharged, if the defect 268. The obligation of a town to make roads is occasioned by the exercise of the riglt of safe and convenient for travellers continues an adjoining owner of land, to use the street where such roads are crossed by railroads at or way for some private purpose, not incon- grade, except so far as the necessary use of the sistent with the right of the public. Bacon, v. crossing by the railroad may prevent it, and Boston, 3 Cusl. 174 (1849). subject to such specific directions as may be 262. Notice to a town of a defect in a high- given by the county commissiowers. Davis v. way may be inferred from.the notoriety of tile Leominster, 1 Allen, 182 (1861). defect, and its continuance for such a length 269. If the proprietors of a railroad, acting of time as to lead to the presumption that the within the scope of their lawful autiority, proper officers of the town knew, or, with construct a cattle guard in their road, at a proper vigilance and care, might have known place where it crosses a highway on the same of it. Reed v. Northlfield, 13 Pick. 94 (1832). level; and the town erect and maintain a 263. The only remedy to which a party in- sufficient and proper barrier against such jured in consequence of a defect in a public cattle guard, up to the railroad, and as far as highway is entitled, against the city or town can be done without impeding the passage of bound to keep the same in repair, is the rem- cars on the same; the town is not responsible edy provided by statute; and under the Rev. for an injury sustained by a traveller on the Sts. c. 25, ~ 22, where the defect has not ex- highway, in consequence of his falling into isted for twenty four hours, the party injured the cattle guard, without any fault or neglect thereby is not entitled to damages. Brcdcly v. on his part. Jones v. Wallh/ z, 4 Cush. 299 LoweZl, 3 Cush. 121 (1849). But see Gen. Sts. (1849). c. 44, ~ 22. 270. A town is not responsible for a defect 264. In computing the time of twenty-four or want of repair in a bridge, whereby a hours, during which a defect in a highway public highway passes over a railroad, the must have existed, in order to render the town proprietors of which are bound by law to keep liable for an injury occasioned thereby, Sun- the bridge in repair. Sawyer v. Vorthfjicld, day is to be included. Flagg v. Millbury, 4 7 Cush. 490 (1651). Cush. 243 (1849). 271. A town is not liable for injuries done 265. If an injury is caused by reason of the to a traveller on the highway, by a locomotive elevation of one edge of a plank, which is laid engine run by a railroad corporation on a over an open space left for the passage of track illegally laid across the highwany. TVzina water in a ipublic street, and this is tound to be v. Dorchcste', 7 Gry, 421 (1856). an actionable defect, it is enough to authorize 272. By St. 1830, c. 4, establishing the a verdict for thle plaintiff if the plank has been Boston & L owell Railroad Corporation, it is split, loose, liable to change and unsafe for provided (~ 11) that if thle railroad shoul(l twenty-four hours before the accident, or if cross any highwvay, it should bIe so constructed the city authorities had reasonable notice of as not to impede the safe and convenient use its unsafe condition, although the position of of such. highway. Where art excavation was the plank which was the inlmediate cause of made by such corporation in a higlhway for the accident had continued only for a short the purpose of constructing the railroad across time. TWinn v. Lowell, 1 Allen, 177 (1861). it, and an injury was sustained by a person 266. A town placing at sunset, around a travelling on the highway, in the evening, in 118 WAYS, VI. consequence of being thrown into the excava- guilty of negligence and are liable for an tion, it was held, that the town in which sucl injury happening to a traveller in the street higihway was situated wa.s liable to an action by reason thereof. Burnelica v. Boston, 10 for such injury, although the town had given Allen, 290 (18G5). notice to the superintendent of the work on 279. A rope stretched across a highway, the railroad that a barrier must be put up for above the grouid, and attached at each end the protection of travellers on tile highway, to objects which are outside of tle limits of and such superintendent had promised tihat the highway, -and in temporary use, is not a this sh(uld be done. Clrrier v. Lowell, 16 defect or want of repair in the highway for Pick. 170 (1835). whiilch a city is liable to a traveller who re273. The want of a railing at the side of a ceives an injury from coming into collision highway, necessary to the security of travel- with it while it is in motion froim human lers, is a " deficiency " in the way, within the agency. Barber v. loxbuery, 11 Allen, meaning of Rev. Sts. c. 25, ~ 26 (Gen. Sts. c. (1865). 44, ~ 26). Ilayde~n v. Attleboozogh, 7 Gray, 280. A surveyor of highways may recover 338 (1856). against hiis town for damages happening to 274. A town is not liable for damages sus- him through a defect in the highways within tained by a traveller upon a higlway by his own district, unless the defect arose from reason of' a telegraph post erected withlin the his own neglect. looed v. TWcdcrville, 4 limits of the hightwaty by an electric telegrapli Mass. 422 (1808). See post, 309. company, in a place prescribed by the select- 281. A person who travels on the Lord's men of the town. Yomng v. I'rZoZtYam th, 9 dy, neitler from necessity nor charity, cannot Gray, 886 (1857). maintain an action against a town for an 275. A town is liable for injuries occasioned injury received by him, wilile so travelling, to a traveller using due care, by a ditcli dug by reason of a defect in a higlhway which the ini tile hligl'hwa by an aqueduct corporation town is by law obliged to repair. Boswortlh under license fromn the selectmen, and left v. Suransey, 10 Met. 3(63 (1845). Jones v. open twenty-four hours. lierrill v. Wilb'cc- Andlovc7', 10 Allen, 18 (1865). ham,, 11 Gray, 154 (1858). 282. A husband, whose wife has been 276. An individual cannot maintain an injured by reason of a defect in a highway, action against a town for.suffering a cattle cannot maintain an action against the town pass under a highway, which is his private obliged by law to repair the same, to recover way, to be out of' repair, so that his cattle for medical and other expenses incurred, or cannot safely pass through. Baker v. Dec- for the loss of his wife's services, in conselitaj, 16 Gray, (1860). quence of such injury. Jlarwood v. Lowell, 277. If the expense of keeping a bridge in 4 Cush. 310 (1849). repair is imposed by statute upon several 283. A traveller upon a highway, who stops towns and a railroad company jointly, witli a alnd ties his horse outside of the limits of the provision that the municipal authorities of highway, using due care, cannot, if the horse one of the tow.ns shall have the care and gets loose and runs upon the highway, and superintendence of it, and shall emiploy all suffers an injury fiom a defect therein, mainservices necessary in the care of it, no action tain an action against the town for such lies against said town in favor of the railroad injury. Richards v. EnJield, 13 Gray, 344 company, to recover for damages sustained (1859). by tlhe latter in consequence of a defect in 284. A town is liable for an injury occatihe bridge. M1adden 4^ Mcilrose Rcdilroac v. sioned by a defect in a highway which the Cllarlestown, 8 Allen, 245 (1864). town is bound to repair, to an eleplant driven 278. If a travelled way, either public or over it witli due care, if in the opinion of the private, over private lots adjoining a public jury an elephant, at the time and place and street in which an excav-ation lias been made, under thle circumstances of the accident, was and leading into that street, lias been so much an animal which it was reasonably proper to used by persons having occasion to pass, for take over a lhighlway kept for the reasonable a long time before and after the existence ot use of tlie. pIlulic. Gregory v. Adamis, 14 the excavation, as to become lkiown as a Gray, 242 (1859). common way for travel and to make it reason- 285. A police officer is not the servant of ably necessary for the city, in the exercise of the city which appoints him, in any sucli due and proper care, to provide a barrier for sense as to take away his right of action the purpose of preventing travellers who comie against it for an injury sustained by reason over such way from the adjacent lots, and use of a defective highway. KiTebcall v. Boston, due care, from falling into the excavation in 1 Allen, 417 (1861). the street, and the city have unreasonably 286. A town is not liable in damages to neglected to erect such barrier, they are one who, while stopping in the highway for WAYS, VI. 119 the purpose of conversation, leans against a repair. Brown v. Camhbridge 3 Allen, 474 defective railing, and is injured by reason of (1862). its insufficiency. Sticlney v. Scaem, 3 Allen, As to Sidewalks. 374 (1862). 287. One who lives upon and is acquainted 292. Sidewalks, when a part of the public with the condition of a way which has never streets, as in the city of Boston, are to be been formally dedicated to the public, or ac- kept in a safe and convenient state of repair cejktcd or treated by the city in which it lies for public use; and a sidewalk in the city of as a public way, but which was constructed Boston, six and a half feet in width, should by a private corporation upon its own land be so constructed and fitted for use, through for its own use and convenience and the use its entire width, as to be safe and convenient. and convenience of tenants occupying its Bacon v. Boston, 3 Cush. 174 (1849). houses upon both sides thereof, and who has 293. The act of 1833, c. 128, respecting the seen a sign, " Private way," at one end there- streets of Boston, and the city ordinance of, cannot sustain an action against the city passed in pursuance thereof, authorizing the for an injury sustained by reason of a defect surveyors of highways to regulate the width therein while in the use of ordinary care, al- and height of sidewalks, and to accept and though the way opens into a public street, bind the city to maintain the same, when ~and lias been open to public travel for more built and relinquished to the city by the than twenty years without interruption, and abutters, do not exonerate the city, when a the city has not closed up the entrance to the sidewalk has been thus built, accepted and same or in any way given notice that it was relinquished, from its liability, under the dangerous. Dizrgin v. Lowell, 3 Allen, 398 Rev. Sts. c. 25, ~ 22, (Gen. Sts. c. 44, ~ 22,) (1862). for defects therein. lb. 288. No action lies against a city which is 294. The city of Boston is required to keep bound to keep a bridge in repair, to recover the sidewalks within its duly established damages sustained by reason of a defect streets in good repair and clear of snow and therein, by an inhabitant of the city who, at ice, so that they shall, at all seasons of the the time of receiving the injury complained year, be safe and convenient for persons of, was driving across the same at a rate fast- travelling and passing thereon. And the city er than a walk, in violation of a city- ordi- is in no degree exonerated from its obligations nance, although hle did not know of the exist- in tlese particulars in consequence of the ence of the ordinance. Ileland v. Lowell, 3 adoption of ordinances requiring the owners Allen, 407 (1862). of buildings adjoining the sidewaiks to keep 289. No action lies to recover damages for the sidewalks free from snow and ice, thougll the obstruction of a highway, against a city such ordinances are valid, and relieve the -hliclh is bound to keep it in repair, by an city of expense in the performance of these individual whose place of business thereby duties. Kirby v. i Boylston iiarketAssociation, becomes more difficult to reach, his business 14 Gray, 249 (1859). injured, the delivery of articles which he has 295. The projection of the movable grating sold and the gathering in of his crops more of a culvert, from one to two inchies above expensive, his houses less desirable for ten- the edge of the sidewalk against which it rests, ants, and his rents diminished in value, if is not a defect which shows sucll a want of other persons suffer damages from the same ordinary care on the part of tlhe city as will cause, similar in kind, though less in degree. make them responsible for an injury occasionWillc-d v. C3aibridye, 3 Alien, 574 (1862). ed by stumbling over the grating. 1iaylymond v. 290. A person who, while using a highway Lowtell, 6 Cush 524 (1850). See antee, 234. simply for the purpose of play, meets with a 296. A city is liable to pay damages to a personal injury by reason of a defect therein, person who receives an injury by tle fall of cannot maintain an action to recover damages an awning projected over the sidewalk of a therefor against the city or town which is street by tle owner of a building, if the awnbound to keep the same in repair. Blodgett ing be dangerous to travellers for the space v. Bostoi, 8 Alien, 237 (1864). of twenty-four hours before the injury hap291. Ptayment of a sum of money "in full pens. Drake v. Louell, 13 Met. 292 (1847). payment and satisfaction for all claim for See Day v.' ilfosd, 5 Allen, 98 (post, 348). damages and costs " in a suit against a cor- 297. A city is not liable for an injury causporation for an injury sustained by the plaintiff ed to a foot passenger on a sidewalk which therein by reason of falling into a trench the city is bound to keep in repair, by the alleged to have been dug. by its servants in a falling of an overhanging mass of snow and public highway, is a bar to a subsequent ice from the roof of a building not owned by action for the same injury against the town the city, although it has so overhung the which was bound to keep the highway in highway for more than twenty-four hours 120 WAYS, VI. before the accident. Eixon v. Lowell, 13 that the post was dangerous to travellers, Gray, 59 (1859). suffered it to remain an unreasonable time: See post, 324, 326, 333, 334, 348, 360, 374, It was held, that the town was liable for the 375, 382, 383, 387. v.injury sustained by the plaintiff. Coggswell v. Lexington, 4 Gush. 307 (1849). As to Deffects out of the Travelled Path. 305. A town is not liable for an injury occasioned to a traveller.passing from a pub298. Obstructions in a highway, though not lie highway to a railroad station through a on the travelled part, are defects for injuries road opened by the proprietors of the railroad caused by which towns are responsible under for that purpose, by a block of stone, lying the statute, whether placed there by the owner within the limits of the highway, as located, of the soil over which the highway is laid, and obstructing the entrance to the road to or others. Snzow v. Ad7ams, 1 Cush. 443 ^the station, if it does not obstruct the road (1848). bed of the highway. Smith v. WTendell, 7 299. Towns are not obliged to keep the Cush. 498 (1851). whole of a highwaly, from one boundary to 306. A town is not liable for an injury susthe other, free from obstructions and fit for tained by a traveller while straying outside of the use of travellers. Howard v. North the limits of the highway, when the whole Brqidgewater, 16 Pick. 189 (1834). highway and tlhe land next adjoining are safe 300. A town is not liable for obstructions and convenient to travel upon; nor are towns and defects in portions of the highway not a obliged to maintain fences merely to keep part of the travelled path, and not so con- travellers from straying out of the highway. nected with it that they would affect the safety Sparhazrs v. Scdlem, 1 Allen, 30 (1861). or convenience of those travelling on the 307. A large vehicle used as a daguerrean highway and using the travelled part. Ieel- saloon, standing partly within the limits of a logg v. 2Northtam2pton, 4 Gray, 65 (1855). highway, but outside of and several feet from 301. A town is not liable for an injury sus- the travelled path, is not a defect in the hightained by a party using the road for the pur- way which will entitle a traveller to recover pose of passing to or from his private way or against a town damages for the injuries suspath, or his own land, caused by a defect tained by him, if his horse, while driven by within the limits of the highway as located by himself, is frightened thereby, and becomes law, but outside the part of the road used for unmanageable, and runs for some distance, public travel. Ib. and upon an embankment, so that the carriage 302. A town is liable for injuries received is broken, and himself thrown upon the by reason of a defect without the limits of the ground and injured. IKeith v. Eastooi, 2 located way, if it is so near the way as to ren- Allen, 552 (1861). der travelling there dangerous, and there is 308. An action lies against a city to recover nothing to warn travellers of it. Hlayden v. damages for an injury sustained by reason of Attleborough, 7 Gray, 338 (1856). the want of a railing at a point so near to a 303. An action against a town, to recover declivity outside of the limits of the street as damages for an injury received by reason of to make the street dangerous for travellers, a defect or want of repair in a highway which although the injury is not received by passing the town is by law obliged to repair, cannot down the declivity directly from the street be maintained by a party who goes out of the itself. Alger v. Lowell, 3 Allen, 402 (1862). highway, because of the defect therein, into See ante, 283; post, S38. the adjoining land, and there receives an injury. Tisdale v. Norton, 8 Met. 388 (1844). (b) Where the Plaintiff's Negligence or 304. Where a traveller on a highway, while other Causes concur. in the exercise of ordinary care, received an 309. A surveyor of highways sustaining injury in consequence of driving his wagon damage from a defect in the highway within against a post; and it appeared that the line his district, which arises from his owvn neglect, of the highway was not indicated by any has no remedy against the town for such visible objects; that the post, which occasion- damage. Wood v. TWatervville, 5 Mass. 294 ed the injury, was near the true line of the (1809). highway, and within the limits of the general 310. But he may recover damages for such course and direction of the travel, and where injury, if the defect did not arise from his own travellers were accustomed to pass, and ren- neglect. W Wood v. VWaterville, 4 Mass. 422 dered the travelling dangerous; that there (1808). was nothing to indicate that the post was not 311. One who is injured by an obstruction within the way intended for public travel; placed unlawfully in a highway, cannot mainand that the town, though they had reason- tain an action for damages, if it appears that able notice of the course of the travel, and he did not use ordinary care, by which the WAYS, VI. 121 obstruction might have been avoided. Smith in attempting to cross over the grating, fell v. Smith, 2 Pick. 621 (1824). and was injured, there being no reason for 312. A traveller, in order to be entitled to attempting to cross at that place rather than recover damages of a town, for loss caused at any other part of the street; it was held, by a deficiency in a road, is not obliged to that the passenger, in attempting to cross at look far ahead in order to guard against that particular spot, was not in the exercise obstacles which ought not to be suffered to of ordinary care, and could not therefore exist. Thompson v. Bridgewater, 7 Pick. recover damages of the city for the injury so 188 (1829). suffered. Raymond v. Lowell, 6 Cush. 524 313. Thus, where a person travelling with (1850). a horse and wagon might, from an eminence 320. A person travelling on a highway in the road, have seen that a causeway at a obstructed with snow, must use ordinary care considerable distance, which he intended to in determining whether to proceed or return; pass over, was covered with water, but when and if guilty of negligence in proceeding, he he descended the hill the causeway was out cannot recover for any injury received from of sight until he had proceeded too far either the defect in the way to which his negligence to turn back or go on with safety, it was held, in any way contributed. HLor'ton v. Ipswich, that ie had not been guilty of negligence; 12 Cush. 488 (1853). and as he then used ordinary care in endeav- 321. If the horse driven by the plaintiff oring to extricate his horse from the danger, runs in consequence of a defect in the road, but without success, he was entitled to recover the plaintiff is bound to use ordinary care as for damages thereupon incurred. lb. well after as before the horse begins to run. 314. The fact that a person injured through lIe cannot abandon himself to needless alarm a defect in a highway, had previous knowledge or give up all proper control of his horse in of the defect, is not conclusive evidence of consequence of the peril to which he is exnegligence on his part. Reed v. Northfield, posed, but must use such care as a person of 13 Pick. 94 (1832). ordinary prudence and discretion would ex315. The facts that the person injured was ercise if placed in similar circumstances and an inhabitant of the town in which the high- exposed to a like danger. Brooks v. Petersway was situated, and knew of the defect, but ham, 16 Gray, (1860). omitted to give notice of it to the town, have 322. And it is an error to instruct the jury, no bearing on the question of the town's that " the mere want of prudent management liability for the injury sustained. lb. on the part of the plaintiff or his companion 316. In an action against a town for an after the horse began to run, or the mere injury sustained by the overturning of the fact that he imprudently seized the reins and plaintiff's carriage on a highway in such town, turned the horse from the road, would not the burden of proof is on the plaintiff to show exonerate the defendants." lb. that he was driving with ordinary skill and 323. Common prudence requires of a diligence at the time when the accident hap- person of poor sight greater care in walking pened. Adams v. Carlisle, 21 Pick. 146 upon the public streets, and in avoiding (1838). obstructions, than is required of persons of 317. In an action for an injury to the plain- good sight; and if it appears that the plaintiff alleged to have been occasioned by the tif's eyesight was poor and weak, the omisdefendant's negligence in driving upon the sion so to instruct the jury, in compliance highway, the burden of proof is on the plain- with the request of the defendants, is sufficient tiff, not only to show negligence and miscor- ground for a new trial. }Vinn v. Lowell, 1 duct on the part of the defendant, but ordinary Allen, 177 (1861). care and diligence on his own part. Lane v. 324. If a man, while not exercising ordiCrombie, 12 Pick. 177 (1831). nary care himself, receives an injury by falling 318. In an action against a town for an into a cellar way dug through a sidewalk, lie injury occasioned by a defect in a highway, cannot recover.damages therefor against a the question whether or not there was negli- city, although the city imay have been in gence, or want of ordinary care, on the part fault in not erecting a barrier to guard the of the plaintiff, is to be determined by the opening. Fallon v. Boston, 3 Allen, 38 (1861). jury, under all the circumstances of the case. 325. In an action to recover damages for a Bigelow v. Rutland, 4 Cush. 247 (1849). personal injury sustained by reason of a de319. Where a person who had occasion to fective way, it is no error to refuse to instruct cross in the daytime from one side of a the jury that if the plaintiff was familiar with street to the other, selected for that purpose the place where the accident occurred, it was a portion of the street which, having been his duty to use more care in passing there necessarily and properly appropriated for a than if he was whlOlly ignorant of its condidrain, was covered by an iron grating, and, tion, or to avoid the place altogether, if in 122 WAYS, VI. structions were given that the burden of proof particulars, and such defect contributes to was on him to show that he used reasonable the disaster, the town is not liable, although care, adapted to the circumstances of the the way be defective. The reason is, that it case, and that if he was familiar with the is impossible to know what proportion of the place, they should take this fact into consid- dcamage is occasioned by one, and what by eration, and determine whether on account the other, or whether there would have been of it he ouglt to have used increased care in any damage at all but for the traveller's own passing over it, or to have avoided it alto- default. SIAW, C. J.,in fMurdocl v. WarZwick, gether. Smiith v. Lowell, 6 Allen, 39 (1863). 4 Gray, 180 (1855). 326. A person who voluntarily attempts to 330. Therefore, if the vicious habits of the pass over a sidewalk which he knows to be plaintiff's horse contributed to the injury, thel. very dangerous, by reason of ice upon it, plaintiff cannot recover. lb. when lie might easily avoid it, cannot main.- 331. If there is evidence tending to show' tain an action against the town which is bound that the accident happened in consequence of to keep the way in repair, to recover for inju- the youth and vicious conduct of the plainries sustained by falling on the ice. Wilson tiff's horse, the defendants have no ground of v. Charlestown, 8 Alien, 137 (1864). exception to a ruling by the judge tllat "or327. This court cannot decide, upon a bill dinary care requires a person driving on the of exceptions, that driving a safe horse, with highway to do so with a horse which will not, a tiglt rein, at night, at his usual speed of when exposed to ordinary objects and noises ten miles an hour, by a skilful driver, over a upon and along the highway, becom-e unmanwide and level road, with which lie is familiar, ageable by a driver of ordinary skill and pruand over which lie has passed in safety within dence; " and that, "if a vicious or untrained an hour without perceiving any obstruction, condition of the horse for ordinary public is such a want of ordinary care as to prevent travel contributed with the insufficiency of the a recovery for an injury sustained from a de- rail to produce the injury, the plaintiff cannot fective highway. Reed v. Deerfield, 8 Allen, recover." Bliss v. [Vilbrahar, 8 Allen, 564 522 (1864). (1864). 328. This court cannot decide, upon a bill 332. In an action against a bridge corpoof exceptions, that riding a safe horse on a ration to recover damages for an injury susdark night, bareback and without martin- tained by the plaintiff in consequence of tile gales, over a familiar road, by a person ac- lamps of the bridge not being lighted, as recustomed to the use of horses and to that quired by law, it was held, that the burden of horse, and turning out upon meeting a car- proof was on the defendants, to show that riage, show such want of ordinary care as to there was no negligence on their part in this prevent a recovery for an injury sustained respect. TWorster v. Canal Bridge, 16 Pick. by reason of a defective highway. Stevens v. 541 (1835). Boxford, 10 Alien, 25 (1865). 333. The liability of a city or town for an 328 a. If, in an action to recover damages injury occasioned by a defect in a street or for an injury sustained from a collision with way, is not varied or discharge'd, if the defect a wagon left standing in a highway by the de- is occasioned by the exercise of the right fendant, the evidence shows that the plaintiff of an adjoining owner of land to use the had seen the obstruction there on the day of street or way for some private purpose, not the accident, that he was accustomed to drive inconsistent with the right of the public, as horses, and that the accident happened while by constructing a cellar window opening into he was driving a gentle horse in a dark even- a sidewalk, within the limits of a street. Baing on a slow trot, looking out on one side of con v. Boston, 3 Cush. 174 (1849). the horse for a blanket which he had shortly 334. A city is not liable for an injury sufbefore lost from his wagon, and his compan- fered by slipping and falling upon a sidewalk, ion was looking for the blanket on the other fromn the combined effect of the unsafe conside, and neither of them saw the defendant's dition of the sidewalk and of the like condiwagon before thle collision, it cannot be held tion of steps without the limits of the higlhas a matter of law that the plaintiff was so way. Rowell v. Lowell, 7 Gray, 100 (1856). careless as to preclude his recovery, but the 335. A town is not liable to a person injurquestion should be submitted to the jury. ed by tile combined effect of a defet in tile 1Fox v. Sackett, 10 Allen, 535 (1865). higlhway and the negligence of athiird person. 329. In order to recover of a town for Kidder v. Dunstable, 7 Gray, 104 (1856). injuries sustained from a defect in its high- 336. A city is not liable for an injury cansway, the traveller must not only drive with ed by the combined effect of the unsafe due care and skill, but must be using a proper condition of a highway and the unlawful or horse and vehicle, with strong and suitable careless act of a third person. Shep2herd v. harness; and if there be any defect in these Chelsea, 4 Alien, 113 (1862). WAYS, VI. 123 337. An action lies against a city to recover driven with due care, becomes frightened and damages for an injury sustained by being excited by reason of the striking of the pushed from a public street down an unguard- vehicle against a defect in the highway, frees ed and dangerous declivity by a crowd, if it himself from the-control of his driver, runs, was not done through the wilful act or negli- and at the distance of fifty rods from the gence of the crowd, or of any person therein. defect knocks down a person on foot in the Alger v. Lozell, 3 Alien, 402 (1862). highwi ay, who is using reasonable care, the 338. 1)riving a sleigh without the bells re- city or town bound to keep the highway in quired by Rev. Sts. c. 51, ~~ 2, 3, (Gen. Sts. repair is not responsible to such person for c. 77, ~~ 3, 4,) does not make the driver the injury so occasioned to him, thoughl no liable, nor exempt the town from liability, for other cause intervene between the defect and injuries caused by collision with his sleigh the injury. (TH)nAis, J. dissenting.) Mlcarble upon a defective highway, unless his neglect v. Worcester, 4 Gray, 395 (1855). contributes in some degree to the accident. 344. If a horse, going off' a highway by Kidder v. Dunstable, 11 Gray, 342 (1858). reason of a defect therein, fills upon a fence, See Counter v. Couch, 8 Allen, 436. and, in being removed firoi the fence with reasonable care and skill, suffers injury, the See ante, 271, 283; post, 371, 379. town is liable for such injury. Tuttle v. flol/olce, 6 Gray, 447 (1856). Direct ancd Proxiubate Cause. H 6 G Direct a oxiate ase. 345. A loaded wagon, while the driver was 339. The action given by Rev. Sts. c. 25, using reasonable care, was strained and ~ 22, (Gen. Sts. e. 44, ~ 22,) must be for a injured by a defect in the highway, and the damage sustained in using the road, with due driver stopped and examined it, and then procare and skill. The damlage for which the ceeded on his journey, and after passing over statute gives a remedy, must be one of which a rough and muddy road, and while on a the defect in the highway is the direct and smooth and level road, the axletree broke, proximate cause, and therefore damage sus- and he was thrown from the wagon and tained in consequence of not being able to use injured. Held, that the accident to the driver a highway, because of snow negligently suf- could not be considered to have resulted fered to remain thereon, cannot be recovered directly and immediately froml the existence under it. llolman v. Townsend, 13 Met. 297 of the defect in the higlway, and that the (1847). Brailey v. Southborough,, 6 Cush. town was not responsible for the injury to 141 (1850). See Gen. Sts. c. 44, ~ 24. him. Jens v. Wilbrahamn, 11 Gray, 142 340. So an owner of land, who is prevented (1858). from a convenient access thereto by reason 346. An action lies against a city to recover of a defect in the highway, and thereby sus- damages for an injury sustained by being tains damage, is not entitled to recover the pusled from a public street down an unguardsame of the town liable to keep such highway ed and dangerous declivity by a crowd, if it in repair. Snzith v. zDeldham, 8 Cush. 522 was not done through the wilful act or negli(1851). gence of the crowd, or of any person therein. 341. A town is liable for an injury occa- Alger v. Lowell, 3 Allen, 402 (1862). sioned by a defect in a highway, where the 347. A town is not responsible in damages primary cause of the injury is a pure accident, if a horse, being frightened by an accident,.as, for example, the failure of some part of a breaks away from his driver and escapes from carriage; provided the accident occur witllout all control, and afterwards while running at the fault or negligence of the party injured, large meets with an injury through a defect and be one which common prudence and n higllway. Davis v. Dudley, 4 Allen, sagacity could not have foreseen and provided 557 (1862). against; and provided also, that the injury 3-8. A town is liable, under Gen. Sts. c. would not have been sustained but for the 44, ~ 22, to pay damages to a person who defect in the higiway. Palmer v. Andover, receives an injury by the fall of an awning 2 Cusli. 600 (1849). projected over the sidewalk of a street by the 342. If a traveller, in the exercise of ordi- owner of a buildingi.if the awning lias been, nary care and prudence, voluntarily leaps for the space of twenty-four hours before the from his carriage, because of its near approach happening of the injury, so frail that in the to a dangerous defect in thle highway, and winds, rains and snows ordinarily occurringin thereby sustains an injury, the town is liable, this climate it was likely to fall, and did fall, althou'gh tlhe carriage does not come in actual form such cause, although the direct cause contact will the defect. LZund v. Tyngsboro, was snow which fell thereon less than twenty11 Cush. 563 (1853). See I'ngalls v. Bills, 9 four hours before. Day v. Jilford, 5 Allen, Met. 1. 98 (1862). 343. If a horse, drawing a vehicle, though See ante, 307. 124 WAYS, VI. (c) Evidence, Trial, Damages would have been liable to indictment therefor, 349. It seems, that if the inhabitants of a is not open to exception. Goldthwait v. town, in making a county road, deviate from East Bridgewater, 5 Gray, 61 (1855). the true location, they are estopped, in an 356. In an action to recover damages of a action against them for an injury occasioned town for injuries received from a defect withby its being out of repair, to deny their lia- in the located limits of a highway but witlout bility to maintain it as they have made it. the travelled path, if the judge instruct the Williams v. Cutmmington, 18 Pick. 312(1836). jury generally that the defendants are liable 350. The erection and support of a bridge for a ifilure to keep the highway at that by a town, and the use of it by the public, for place safe and convenient for travel, without thirty-eight years, is sufficient proof of its more particularly defining such liability for existence as a highway, on the presumption defects without the travelled path, though of a laying out, a grant or a dedication, to requested by the defendants so to qualify the render the town liable for an injury occasioned instructions, the defendants are entitled to a by its being out of repair. lb. And see Gen. new trial. Kellogg v. Northampton, 4 Gray, Sts. c. 44, ~ 26. 65 (1855). 351. In an action against a town for an 357. It is a question of fact for the jury, injury sustained by the overturning of the and not of law for the court, whether a town plaintiff's carriage on a highway in such has used ordinary care in the construction of town, the burden of proof is on the plaintiff its roads, and whether the latter are reasonto show that he was driving with ordinary ably safe. Hall v. Lowell, 10 Cush. 260 skill and diligence at the time when the acci- (1852). dent happened. Adams v. Carlisle, 21 Pick. 358. It is no defence to an action for an 146 (1838). injury caused by a defect in a higllway, that 352. The facts that the person injured was the town used ordinary care and diligence in an inhabitant of the town in which the high- repairing the road, if by such care the road way was situated, and knew of the defect, but was not made safe and convenient, but reomitted to give notice of it to the town, have mained defective. Hlorton v. Ip7sXich, 12 no bearing on the question of the town's lia- Cush. 488 (1853). bility for the injury sustained. Reed v. North- 359. The damages recoverable against a field, 13 Pick. 94 (1832). town, under Rev. Sts. c. 25, ~ 22, (Gen. Sts. 353. In the trial of an action against a city c. 44, ~ 22,) are for an injury to the person for an injury occasioned by a defect in a street or property only, and not merely on account therein, the presiding judge,having instructed of a risk or peril, which caused fright and the jury that what was a defect in a highway mental suffering; but, where an actual injury which would render a town or city liable for to the person is sustained, however small, an injury occasioned thereby, was a " practi- which causes mental suffering, that suffering cal question, to be determined by the jury in is a part of the injury, for which the town is view of the circumstances of each particular liable in damages. Canning v. Williamscase," added, by way of illustration, "that a town, 1 Cush. 451 (1848). different state of repair would be required in 360. On the trial of an action against the a city, where a large amount and variety of city of Boston, for an injury sustained by the travel was constantly passing, from that in a plaintiff, in consequence of falling into a eelcountry place, where the state of things in lar window opening into a sidewalk witlin the this respect was different." It was held, that limits of a public street, the existence of sinthis illustration was a proper comment on the ilar apertures in various other parts of the law. Fitz v. Boston, 4 Cush. 365 (1849). city, in great numbers, and for a long time, 354. Where a jury were instructed that will not authorize the jury to find that such towns were not ordinarily bound by law to apertures are not actionable obstructions. fence their roads, but were afterwards in- Bacon v. Boston, 3 Cush. 174 (1849). structed that towns were bound to erect fen- 361. In an action against.a town or city, to ces or railings at places which would other- recover damages for an injury occasioned by wise be unsafe or inconvenient for travellers a defect in a ihighway in that part thereof exercising ordinary care; it was held, that lying between the carriage-way and the sidethere was no legal exception to-the instruc- walk, the defendants may show, as having a tion. Collins v. Dorchester, 6 Cush. 396 bearing upon the question of ordinary care, (1850). that in other towns and cities inequalities in 355. The refusal of the presiding judge to the surface of that part of the highway are of rule, at the trial of an action against a town common occurrence; but evidence tlat such for damages occasioned by a defect in a high- inequalities are not deemed to be a portion of way, that in order to maintain the action the the highway, required to be reduced to a defect must be of such a nature that the town level and kept in repair for the use of foot WAYS, VI. 125 passengers, is inadmissible. Raymond v. that the highway in question was defective. Lowell, 6 Cush. 524 (1850). Collins v. Dorchester, 6 Cush. 396 (1850). 362. If, in an action against a town to 3(;8. A person having sustained injuries recover damages for an injury sustained by froml an lleged defect in a highway, the reason of a defective highway, the alleged report of a committee subsequently duly defect consists in a gutter running obliquely chosen by the town, that the way was unsafe across the highway, it is competent for the for travellers, although duly accepted by the defendants to show, upon the question of town, is not evidence against the town in an ordinary care, that a great many gutters "'action brought to recover for the injuries. equally deep crossed the streets in the same WVheeler v. Firaningham, 12 Cush. 287 (1853). manner, in the same town, or the towns near 369. Evidence that the duly elected surit. Packard v. New Bedford, 9 Alien, 200 veyors of highways of a town made repairs (1864). upon a way, within six years before the time 363. In an action against a town to recover of an accident from a defect therein, is comdamages for an injury occasioned by a defect petent and conclusive evidence of repairs by in a highway, evidence is not admissible on the town, to establish its liability for the the part of the plaintiff to show that another damages resulting from the accident; although person, before the injury complained of, re- it also appears by the plaintiff's evidence that ceived a similar injury, at or near the same the records of the laying out of the way as a place, and from the same alleged defect, with- public highway were insufficient. Hayden v. out any negligence on his part. Collins v. Attleboro'ugh, 7 Gray, 338 (1856). Dorchester, 6 Cush. 396 (1850). 370. In an action to recover of a town 364. On the trial of an action against a damages sustained by reason of a defect in a town for an injury occasioned by a defect in part of the highway, which has been so a higlnway, when one of the defects relied wrought and repaired by the town for public upon by the plaintiff is the insufficient width travel as to induce the public to pass over it, of the way, evidence that other persons with the town cannot introduce evidence that that their vehicles had previously, when the way part of the highway was originally wrought was in the same condition as at the time of bor the accommodation of the abutters. IEelthe plaintiff's injury, passed or met other logg v. Norithamptoen, 8 Gray, 504 (1857). vehicles at the same place, without collision 371. A traveller on a highway which had or accident, and had room to spare on each been rendered unsafe by recent freshets and side, is inadmissible to show that the way was was undergoing repairs, upon coming at sunset not defective in point of width. Aldrich v. to a bridge which had been thus made impassPelham, 1 Gray, 510 (1854). able, crossed at a ford indicated by wagon 365. In such action evidence is admissible ruts, and after proceeding for some distance of measurements of the width of the way and of on his journey received an injury from a the travelled part thereof, taken nine months defect in the highway, and brought an action after the accident occurred, if it is accom- against the town for damages. Ield, that the panied by proof that no material change has state of the bridge and ford was not conclusive taken place in the way since the accident, evidence that the traveller was not using which can affect the accuracy of the measure- ordinary care at the time of the injury, but ments. Brooks v. Petersham, 16 Gray, must be submitted to the jury with the other (1860). evidence in the case. Rindge v. Coleraine, 366. In an action against a town to recover 11 Gray, 157 (1858). damages for an injury sustained by reason of 372. In an action against a town for injuries a defect in a road, reports of committees ap- sustained from a defect in a highway, evidence pointed by the town to inquire into the facts that other persons than the plaintiff passed of the case, and votes of the town accepting and repassed the place in safety is inadmissuch reports, are not admissible in evidence sible for the town. Kidder v. Dunlsiable, 11 against the town, if such reports do not set Gray, 342 (1858). forth facts which show the liability of the 373. Evidence that a highway was in the town, and if such votes neither acknowledge usual condition of other country roads is inany liability nor direct any settlement with admissible in defenice of an action against a the plaintiff at the town's expense. Dudley town for damages from a defect therein. Ib. v. WEeston, 1 Met. 477 (1840). 374. In an action against a city to recover 367. Reports of committees of a town, damages for an injury sustained from filling relating to the condition of a highway, and into a plumber's furnace left in the sidewalk the votes of the inhabitants thereupon, are in a street, evidence is inadmissible to show not competent evidence, in an action against that the same furnace was left upon the sidethe town for an injury occasioned by a defect walk for several hours on the day before the in such highway, of an admission by the town accident occurred, or that the police officer 126 WAYS, VI. whose duty it was to pass through that street the plaintiff's counsel to the jury, that the was accustomed to pa.s through the street defendants were liable even if the injury was daily during the time in which the furnace received under the circumstances testified to was placed in the street on the day of the ac- by the defendants' witnesses, furnishes no cident. Donaldson v. Boston, 16 Gray, ground of exception. Clarqs v. Lowell, 1 (1860). Allen, 1SO (1861). 375. In such action, it having been proved 379. If, in an action against a city to rethat a number of citizens passed through the cover damages for an injury sustained by street while the furnace was standing upon reason of a defective lhighway,there is evidence the sidewalk, the jury were instructed that in that the plaintiff was intoxicated at the time order to prove reasonable notice to the de- of the accident, and the judge has instructed fendants of the alleged defect, it must appear the jury that he could not recover if anything that the officers of the city having charge of else than the negligence of the city contlibuted the streets, such as the mayor and alderlmen, to cause the accident, or if it occurred in any superintendent of streets, or policemen, liad respect through his own negligence, and that actual notice of the defect, or that a defect if he was intoxicated that was a circumstance which had obstructed travel had continued so to be considered by them as bearing upon the long or been so notorious, that if such officers question of due care on his part, no exception had done their duty, or citizens passing had lies to his refusal to instruct tlem that a city done their dutythey would have known it; and is not bound to keep its streets safe and conthat the jury might consider whether the ob- venient for intoxicated persons, or that if lie struction to travel was of such a nature tlat if was intoxicated at the tinme of the accident citizens passing had seen it they would have they are to presume e he was negligent. Alger been likely to have informed such officers forth- v. Lowell, 3 Allen, 402 (1862). witl of its existence. fleld, that the instruc- 380. Under a declaration alleging simply a tions were in accordance witlh the law, and want of repair in a way, it may be proved sufficiently favorable to the plaintiff. Ib. that the way was defective by reason of the 376. In a suit against a town for an injury want of a railing to protect travellers fron sustained by reason of a defective highway, going down a declivity just outside of the the opinion of a witness as to the state of limits of the way. lb. repair of a road at a period between two.and 381. Payment of a sum of money " in full three months before the accident is incompe- payment and satisfaction foib all claim for tent. HIltchineson v. Methuaen, 1 Allen, 33 damages and costs" in a suit against a corpo(1861). See ante, 365. ration for an injury sustained by the plaintiff 377. If an injdry is caused by reason of the by reason of falling into a trench alleged to elevation of one edge of a plank, which is have been dug by its servants in a public laid over an open space left for the passage high\way, is a bar to a subsequent actioni for of wa.ter in a public street, and this is found the same injury against the town whichl was to be an actionable defect, it is enough to bound to keep tlle highway in repair; atud at autlorize a verdict for thle plaintiff if the written receipt for the nmoney, showing that plank has been split, loose, liable to change it was received in full payment and sati.sfacand unsafe for twenty-four hours before the tion for all claim for damages and costs in accident, or if the city authorities had reason- that suit, cannot be controlled or varied by able notice of its unsafe condition, although parol evidence. Brown, v. Cambridge, 3 the position of the plank which was tlhe im- Allen, 474 (1862). mediate cause of the accidelet had only con- 382. If, in an action against a city to recovtinued for a short time. Winnt v. Lowell, 1 er dallmles for lan injury sustained by reason Allen, 177 (1861). of a defective way, the alleged defect in wllich 378. If the plaintiff, in an action against a consisted of ice and snow upon a sidewalk, a town for an injury sustained by reason of a witness for the plaintiff hais described tie condefective highway, has introduced no evidence ditiol of tlle sidewalk at the time of tlle injuexcept his own testimony, and by his own ry, he may be asked on cross-examination if testimony has definitively fixed the place of the ice and snow were not removed from the the accident iand the circumstances under sidewalk asa-well as it could c.nveniently be which it occurred, and the defendants, in done by a man with a shovel. O'YNeill v. Lowreply, have introduced witnesses'to show that ell, 6 Allen, 110 (1863). the accident which caused the injury occurred 383. If, in an action to recover for damfages at a different place in the higlhway, wlere no sustained by falling upon the ice on a. sidedefect had been shown to' exist, and under walk, it becomes a question whether the dedifferent circunstances, the interference of fendants had taken reasonable pains to remomve the presiding judge to check an argument of the ice, the plaintiff may show that in other WAYS, VI. 127 places on the same sidewalk, similarly situ- injuring the plaintiff, the town would be liable. ated, ice had been removed with a shovel I-eld, that the defendants had no ground of only. Shea v. Lowell, 8 Allen, 136 (1864). exception. Stevens v. Boxford, 10 Allen, 25 384. If, in an action to recover for an injury (1865). sustained by reason of a defective way, it be- 389. In an action to recover damages for comes a material question whether the plain- an injury sustained by reason of a defective tiff's horse had a habit of shying at the time way, the defendants may prove that the plainof the accident, the defendants, after intro- tiff, at the time of receiving the injury, was ducing evidence of instances of his shying travelling in violation of the statutes for the before that time, may also prove similar in- observance of the Lord's day, without specistances afterwards. Todd v. Rowley, 8 Allen, ally averring that as a ground of defence in 51 (1864). thle answer. Jones v. Andovei, 10 Allen, 18 385. In an action to recover for injuries to (1865). See ante, 281. a horse, sustained in consequence of a defect 390. A person violates those statutes who in a highway, the plaintiff, is entitled to re- travels on the Lord's day for the purpose of cover for the diminution, occasioned by the supplying fresh meat to marketmen, whom injury, in the market value of the horse at his master has agreed to supply therewith, the commencement of the action, and, in ad- although he could not do this, in addition to dition, such sums as the plaintiff has paid out his other work, on Monday morning, and his in reasonable attempts to cure him, with a master, by reason of illness, is unable to do reasonable compensation for his own services it himself. lb. in attempting to cure him, and a reasonable See te 22. sun as compensation for the loss of the use of the horse whiile under such treatnent; provided that the whole damages allowed do (d) Indictents against Towns. not exceed the value of the horse. Gillett v. 391. The inhabitants of a town, where a Weste rn Railroad, 8 Allen, 560 (1864). bridge or road has been recently built or laid 386. In an action against a town to recover out without any authority, are under no obdamages for an injury sustained by reason of ligation to repair such bridge or road. Comna defective bridge, a witness cannot properly monwealth v. Charlestown, 1 Pick. 180 be asked by the defendants, how the bridge (1822). compared, on the day of the accident, in re- 392. In an indictment for not repairing a spect to its safety and state of repair, with highway it is not necessary to set out the other bridges of like character on roads of termini.z Commonwealth v. Newbury, 2 Pick. like amount of travel. Bliss v. Wilbraham, 51 (1824). 8 Allen, 564 (1864). 393. Where a turnpike corporation had 387. If, in an action against a city to re- ceased for several years to demand toll, and cover damages for an injury sustained by a town way was-in due form of law laid out reason of a defective way, tle defect alleged over the turnpike road. and accepted by the is ice on a sidewalk, and the defendants have town, it was held, that the town was indictbeen allowed to prove that rain had fallen able for not keeping the way in repair. and frozen shortly before the time of the ac- Coemmonwealth v. Peltershamn, 4 Pick. 119 cident, so tliat all the sidewalks in the city (1826). were covered with ice, evidence is inadmissi- 394. An indictment against the town of N. ble, in their behalf, to prove the steps actually B. f(r not repairing a highway, alleged that taken by them to remedy the defect. Payne tliere was a highway, leading from a meetingv. Lowell, 10 Allen, 147 (1865). house in the town of B. to the dividing line 388. In an action against a town to recover between B. and N. B. and thence in N. B. to for a personal injury sustained by the plain- the meeting-house in N. B., and that the detiff, while riding on horseback upon a high- fendants allowed "a certain part thereof, way, by going off a bank where there was no consisting of twenty rods in length," to be railing, tile defendants asked the court to in- out of repair. It was held, that the indictstruct the jury that if the plaintiff's horse mnent was defective, inasmluch as it was left passed the bank wall in safety, and, wlile uncertain in which of the towns the unrepairproceeding in the adjoining field, stepped on ed part of the highway lay. Commonwealtlv ice and slipped down, and thus injured the v. North Brookfield, 8 Pick. 463 (1829). plaintiff, he could not recover. The judge 395. Where the line between two towns, gave this instruction, and added that if the situated in different counties, is the centre of horse, by reason of the want of a railing, a highway, and one of the towns is indicted went over the bank wall, and immediately, for not repairing the same, and submits to the and while under the same impulse or impetus, payment of a fine, which is laid out in repairslipped on ice in the field and fell, thereby ing the road, such town cannot recover one 128 WAYS, VI. half of the money so paid, against the other out of the line of the road, to protect the road town, in an action for money paid to the use against the action of tie water. field, that of the latter. Middleborough'v. Taunton, 2 the town could recover from the mill owner Cush. 406 (1848). the expense incurred in repairing the road, 396. If a town has neglected to repair a and building the wall, with interest from the part of a road which it was its duty to main- time of demanding payment from the mill tain, it is no defence to an indictment for the owner, but not the costs of an indictment neglect, to show that this part would be of no against the town for not'seasonably repairing immediate practical use, because a portion the road. Andover v. Setton, 12 Met. 182 of a bridge with which the road connects, and (1846). which the town is not obliged to maintain, 401. A town which has been compelled to has been swept away and las not been rebuilt. pay damages for an injury from a defect in a Commonwealth v. Deerfied, 6 Allen, 449 highway, occasioned by a nuisance placed (1863). therein by an individual, may recover of the See ante, 14, 38, 60; *post, 400; INDICTMENT. latter the damages so paid. Lowell v. Short, 4 Cush. 275 (1849). (e) Liability of Individuals for Obstruc- 402. Where a town was compelled to pay tosCiynC~1y402. W here a town was compelled to pay ns; C y ad C y damages for an injury resulting from a defect Civilly. in a highway, occasioned by the want of repair 397. A railroad corporation was authorized of a cellar way constructed in the sidewalk, toconstructits railroad across a higlway, and and leading to a building adjoining thereto, in the progress of the work it became neces- which was in the occupation of a tenant, it sary from time to time to remove certain was held, that the occupant and not the owner barriers, which were placed by the corpora- was liable to the town for such damagles. But tion across the highway for the protection of if, in such case, there had been an express travellers, but were adopted by the town in agreement between the landlord and the which the highway was situated, and in con- tenant, that the former should keep the premsequence of the neglect of the workmen to ises in repair, then, to avoid circuity of action, replace the barriers at night a traveller sus- the landlord would be liable in the first tained an injury, and subsequently, under St. instance. Lowell v. Spaulding, 4 Cush. 277 1786, c. 81, recovered double damages.against (1849). See Ifirby v. Boylston lliarket Assothe town. It was held, that the railroad cor- ciation, 14 Gray, 249. poration was bound to cause the barriers to 403. A verdict and judgment against a city be replaced at night, although its charter con- in an action for personal injuries occasioned tained no express provision on this point; as by a defect within the limits of a highway, are otherwise an accident might have happened conclusive evidence in a subsequent action by before the town had notice, actual or con- the city against a tenant of the land, (who had structive, and no one would have been liable notice of the pendency of the former action for the damages. Lowell v. Boston c Lowell and of the city's intention to hold him responRailroad, 23 Pick. 24 (1839). sible for all damages recovered therein, and 398. Hfeld, also, that the corporation was had opportunity to furnish evidence, and responsible for the negligence of such work- testified at the trial, although lie was not renen, although they were employed by an in- quested to and did not take upon himself the dividual who had contracted to construct this defence of that action,) that the highway was portion of the railroad for a stipulated sum, defective, that the person was injured there, the work being done by the direction of the while using due care, and of the amount of corporation. lb.. the injury; but not of the tenant's liability to 399. ield, also, that an action might be keep the place in repair, nor of his having sustained against the corporation by the town neglected to do so, nor of such negligence for indemnity, but that the town couldrecover having been the sole cause of the injury. only single damages, and that the corporation Boston v. TVorthingtoon, 10 Gray, 496 (1858). was not liable for the costs and expenses of 404. If a town haye.paid-a reasonable and the action brought against the town by such just sum as datmaes to one who has been intraveller, it not appearing that such action jured, while using due care, by reason of an was defended at the request of the corpora- obstruction in a highway, they may recover tion or for its benefit. Ib. the same of the person who placed such ob400. A mill owner placed a dam across the struction in the highway, although no action outlet of a pond, and thereby caused the has been brought against them by the person water to overflow a road near the bank of the injured. The question whether the sum so pond. The town which was obliged by law to paid was reasonable and just is to be deterrepair the road, repaired it, and caused a mined by the jury upon the evidence. Swanbank wall to be built on the shore of the pond, sey v. Chace, 16 Gray, (1860). WAYS, VI. 129 405. It is no defence to an action by atown several tenements, who is bound to make all against a person who has placed an obstruc- necessary repairs, and has control of the tion in a highway, to recover damages paid passage ways and doors for that purpose, and to a person who has been injured by reason who keeps the keys and opens and closes the thereof, that such obstruction had existed in doors of portions of the building at times the highway more than two days before the fixed by the occupants, is not relieved from injury was sustained, and that the town were liability for injuries caused by defects in the negligent in not removing the same. Ib. building or by the falling of snow and ice 406. The owner of a building, who has therefrom. Kirby v.Boylston Market Associleased the lower story for shops, and portions ation, 14 Gray, 249 (1859). of the upper story for various purposes, in- 412. The owner of a building is liable for cluding one or two rooms to the town in injuries resulting from obstructions caused or which the building is situated, and has himself created by him in the adjoining sidewalk; but remained in possession of the residue there- not for injuries resulting from defects in the of, is, in the absence of an express agreement sidewalk, or from accumulations by natural with tenants to the contrary, responsible for causes of snow and ice thereon, although the the safety of an awning erected.along the sidewalk forms part of the highway, and he is whole front of the building, for the benefit of obliged by the ordinances of the city to keep the shops. Milford v. Holbrook, 9 Allen, 17 the sidewalk clear and in good repair. Ib. (1864). 413. A railroad company has no right to 407. If in such case the owner has had due use a highway as a part of its freight yard; notice, he may be held liable to the town for but it has a right to pass and repass over a damages which they have been compelled highway in making up its trains and shifting to pay to one who has suffered an injury by its cars, provided this is done only to a reasonreason of the falling of the awning, through able extent and in a reasonable manner, witha defect; and the occupants of the shops out encroaching upon the rights of others who need not becjoined as defendants. Ib. have an equal right to use it. Gahagan v. 408. A notice by the town to such owner, Boston 4 Lowell Railroad, 1 Allen, 187 of an action brought against them to recover (1861). damages for an injury sustained' on the 414. When, in a suit against a. railroad sidewalk in front of or near Union Block, so company for an injury received while passing called, in Milford," (that being the name of along a highway, an issue is made upon the his building,) requesting him to defend the unreasonable or negligent conduct of the same, and stating that, if the town was liable, company in the use of the highway at the he was responsible to them, because the in- time complained of, its usage at other times jury, if it occurred, must have occurred has no legitimate bearing upon this issue, and through his negligence, sufficiently connects evidence respecting such usage is incompethe defendant and his property with the alleg- tent. lb. ed injury. lb. 415. In an action by an infant child to re409. In such action by the town against cover for personal injuries occasioned, as she such owner, after such notice, the verdict and contended, by the defendants' pushing a railjudgment against the town are conclusive road car upon her while she was in a highway evidence of the existence of a defect in the along which the railroad track was laid, no highway, the injury to the individual while exception lies to a refusal to instruct the jury, he was in the exercise of due care, and the ex- upon the request of the plaintiff, that, if these tent of the injury. lb. facts were true, the defendants, by obstructing 410. Where several persons were engaged the highway with the car, were making an in playing a game of ball in the public high- unlawful use thereof, and were liable for any way, and a traveller lawfully passing thereon injury to her resulting from such unlawful was accidentally struck by the ball, it was use, if the railroad track was not placed there held, that all the persons so engaged were by the defendants, and it is not proved that liable in trespass; provided that from the the highway was in fact obstructed by moving width of the road, and the number of persons the car upon it; or to an instruction by the usually passing thereon for the ordinary pur- judge that the jury were not required to deterposes of travel, the game was of such a char- mine whether or not there was an existing acter as to be likely to endanger the safety of highway there. Lawler v. Northampton Gas travellers and passengers, and provided that Light Co. 2 Allen, 307 (1861). the individual by whom the ball was thrown 416. The lessee of a building, who has emwas acting in the usual manner of persons ployed a carpenter to repair an awning which engaged in such game. Vosburgh v. Hoak, extends from the building over a public way, 1 Cush. 453 (1848). with no special contract as to the terms, 411. The owner of a building, leased in price or time of doing the work, is liable for 130 WAYS, VI. an injury sustained by one who is lawfully pealed or altered by the Rev. Sts. c. 24, ~ 61 using the way, by reason of the carelessness (Gen. Sts. c. 46, ~ 1). Commonwealth v. of the carpenter in making the repairs. King, 13 Met. 115 (1847). Brackett v. Lubke, 4 Allen, 138 (1862). 424. A railroad corporation, constructing their railroad across a highway without lawful CrGiminally. authority, are liable to indictment for a 417. An indictment lies against an indi- nuisance. Commonwealth v. Nashua, Iowell vidual for a nuisance erected by him on a Railroad, 2 Gray, 54 (1854). Commonwealth town way. Commonwealth v. Gowen, 7 Mass. v. Vermont. Massachusetts Railroad, 4 378 (1811). Gray, 22 (1855). Commonwealth v. Old 418. A party who obstructs a highway is Colony 4 Fall River Railroad, 14 Gray, 93 amenable to the public in an indictment, (1859). whether any person be injured or not, but he 425. The confirmation, by statute, of the is not liable to an action by an individual, illegal location of a railroad in a highway, is unless such individual suffers in his person no ground for arresting judgment on an inor property by means of the obstruction. dictment for a nuisance by such obstruction, PARKER, C. J., in Smith v. Smith, 2 Pick. on which the proprietors of the railroad have 623 (1824). been convicted before the passage of the 419. A town may acquire a right of way by statute. Commonwealth v. Old Colony 4 grant; and exclusive uninterrupted user by Fall River Railroad, 14 Gray, 93 (1859). the inhabitants for twenty years unexplained, 426. On the trial of an indictment for a is evidence of a grant; but such way will be nuisance in a road, caused by digging a ditch a private way, and an obstruction upon it will across it, the defendant introduced evidence not be indictable as a nuisance. Common- that, at a remote period, a similar ditch, use-'wealth v. Low, 3 Pick. 408 (1826). ful for draining certain meadow lands, was in 420. The statutes for the support and regu- the same place, and had been afterwards lation of mills will not justify or excuse the filled up; and he contended that #he nuisance erection of a dam in such manner as to over- with which he was charged was a mere reflow a public highway already appropriated moval of a preexisting nuisance. It was and in actual use, and thereby render it im- held, that if the road had been used for more passable.' Commonwealth v. Stevens, 10 Pick. than forty years without the incumbrance of 247 (1831). a ditch, the right to reopen it had been lost. 421. Where a mill owner, who has a grant Commonwealth v. Belding, 13 Met. 10 (1847). of a right to flow certain lands, suffers his 427. When a party, who is indicted for obmill and dam to go to decay, and ceases to structing a road, gives evidence that when he flow the land, and a highway is then made obstructed it, he opened a new and convenient across the land, he cannot, by afterwards way on his own land, which was used for granting his mill privilege and right to flow, seven or eight years, and until a bridge which authorize his grantee to overflow such high- he built in the new way was carried off by a way by means of a new mill dam on the site flood, such evidence does not show an abanof the old one; and his grantee, if he so over- donment of the old road, nor furnish any flow the highway, is punishable for a nuisance. defence to the indictment. lb. Commonwealth v. Fisher, 6 Met. 433 (1843). 428. The refusal of a city to fulfil an agree422. An indictment lies for continuing ment which they have made with the owner of within the limits of a highway certain build- land bounding on a street, to set back the fence ings previously erected therein, although that and grade the land, in consideration of a reportion of the highway which was covered by lease of all damages for a widening of the them was not within the travelled path, and a street, is no defence to an indictment of the bank six or seven feet in height had been re- agent of such owner for a nuisance in replacmoved for the purpose of placing the buildings ing the fence in its former position so as to where they stood. Commonwealth v. Wilkin- obstruct the street; although the owner was son, 16 Pick. 175 (1834). an infant and a —feme covert at the time of 423. It is an indictable offence at common making the'release. Commonwealth v..Smyth, law to place and continue, within the estab- 14 Gray, 33 (1859). lished limits of a highway, a wall, or stones, 429. The officers of an agricultural society, or anything which obstructs the full enjoy- who have unlawfully fixed and defined bounds ment, by the public, of an easement coixten- for the purpose of exhibiting horses in a pubsive with those limits, although such wall, lie highway, have no right to obstruct public stones, or other thing, be not placed or con- travel thereon, although there is sufficient tinued within that part of the highway which room for public travel on the other parts of can be safely used for travel. The common the highway; and they may be convicted of law, as to nuisances in a highway, is not re- assault and battery, if without legal process WAYS, VI. II. 131 they have arrested a person within such Chandler, 6 Mass. 454 (1810). Rowe v. bounds, who, when directed to fall back, re- Granite Bridge, 21 Pick. 344 (1838). fused to do so, and without malice or unlaw- 438. But when a way has been located over ful intent struck the horse of a marshal of the private land, if the owner should afterwards society, although he was wilfully and mali- open a watercourse across the way, it will be ciously in the highway for the purpose of ob- his duty, at his own expense, to make and structing the exhibition of horses there. Corn- keep in repair a way over the watercourse, monwealth v. Ruggles, 6 Allen, 588 (1863). for the convenience of the public; and if he should neglect to do it, he may be indicted See ante, 23, 74; post, 438. for the nuisance; and upon the conviction, the nuisance may be abated by filling up the watercourse, if he shall not make a convenVII. RIGHTS OF THE1 PUBLIC AND OF LAND ient way over it. Perley v. Chandler, G Mass. OWNERS IN THE SOIL OF PUBLIC WAYS. 454 (1810). 439. A town which is obliged to maintain 430. Upon the location of a highway, the a highway, through which a canal has been public acquire an easement not lawfully to be constructed, not being the owner of the soil, interrupted by the owner of the land; but the is not entitled to damages under a statute soil and freehold remain in the owner for every providing for the assessment of damages to purpose of use or profit consistent with such the owners of the land through which the easement. He may maintain ejectment for canal passes. Millbury v. Blackstone Canal it; and he may sink a watercourse below Co. 8 Pick. 473 (1829). the surface, covering it so that the highway 440. County commissioners, having adjudgremains safe and convenient for passengers. ed a town way to be of common convenience Perley v. Chandler, 6 Mass. 454 (1810). and necessity, located it and made their return, 431. The owner of the soil is entitled to which was duly recorded; an order was the herbage growing upon a highway. Stack- thereupon passed by them, requiring the town pole v. Hiealy, 16 Mass. 33 (1819). Adams to complete the way, but allowing the prov. Emerson, 6 Pick. 57 (1827). prietor of the land to remove all property not 432. When a highway is laid out, the title required for the construction of the way. It of the owner of the land taken is not thereby was held, that the town way did not become divested. The fee remains in him and de- such by the mere force of the adjudication scends to his heirs, subject to an easement in that it was of common convenience and nethe public during the continuance of the high- cessity; and that a person breaking down the way. When the highway is discontinued the fence for the purpose of passing over such owner holds the land free from incunibrance. way, after the expiration of the time allowed Perley v. Chandler, 6 Mass. 454 (1810). liar- to the proprietor of the land for the purpose rington v. Berkshire, 22 Pick. 266 (1839). of removing the property, but before the 433. The owner of the soil over which a road was constructed, was liable~to an action turnpike passes may maintain an. action of trespass by such proprietor. Loker v. against a stranger who ploughs up the land, Damon, 17 Pick. 284 (1835). not for the purpose of mending the road. 441. It seems, that tie town could not in Robbins v. Borman, 1 Pick. 122 (1822). See such case legally break down the fence in Brainard v. Clapp, 10 Cush. 9. order to construct the road, before the expira434. When a public way is unlawfully ob- tion of the time allowed to the proprietor for structed, any individual who wishes to use it thle purpose of removing the property, proin a lawful way, may remove the obstruction. vided ti}ere were growing crops on the soil, to He may even enter upon the land of the party the protection of which the fence was neceserecting or continuing the obstruction, for sary. Ib. the purpose of removing it, doing as little 442. The owner of the soil over which a damage as possible to the soil and buildings. town way passes cannot maintain trespass Arunzdel v. M'Cilloch, 10 Mass. 70 (18 i3). against a person placing logs, stones and 435. The public have no right to depasture timber thereon. MIayhew v. Norton, 17 Pick. their cattle upon the highway. Stackpole v. 357 (1835). liealy, 16 Mass. 33 (1819). 443. It is not a trespass upon the owner of 436. As to the right of the public to move the soil of a street in a populous town, to buildings through the streets, see Day v. elect buildings and fences on the line of the Green, 4 Cush. 437 (1849). street with doors and gates so constructed as, 437. If a highway is located over water- when opened, to swing over it; or, in concourses, either natural or artificial, the public structing such buildings, to place within the cannot shut them up, but may make a road limits of the street building materials and the over them by the aid of bridges. Perley v. earth dug from the cellar, provided the street is 132 WAYS, VII. VIII. not improperly obstructed and such materials VIII. LrMITs AND BOUNDARIES OF WAYS; and earth are removed within a reasonable FENCES, &c. time; or to spread earth on the street for the 450. St. 1786, c. 67, ~ 7, (Gen. Sts. c. 46, purpose of improving it as a way; or to allow ~ 1,) provides that where fences have been horses and carriages occasionally to stand in erected fronting upon or against any highway, such street against or near a house. O'Linda of which the breadth or quantity is not known v. Lothrop, 21 Pick. 292 (1838). nor can be made certain by the records, or by 444. The possession and fencing, for more any other boundaries, and such fences have than twenty years, by one holding no con- been maintained for more than forty years, veyance thereof, of land in South Boston, they shall be deemed the true ancient boundover which a street was laid out by the select- aries thereof. Under this statute it was held, men under St. 1803, c. 111, but which has not that a fence near a highway was only prima been ordered to be completed, is not such an facie evidence of the boundary, it being for adverse possession as to affect the right of the jury to determine from the nature and the mayor and aldermen of Boston to com- value of the soil, the nearness of the fence to plete the street. Henshaw v. Hunting, 1 the highway, and from all the other circumGray, 203 (1854). stances, whether it was a fence " fronting 445. One who lays out a street through his upon or against" the highway, within the land, and then grants all the lots bounding on meaning of the statute. Sprague v. Waite, the street, except one, may maintain an 17 Pick. 309 (1835). action of tort, in the nature of trover, against 451. The erection of a pound by a town either of the grantees, for taking earth from within the limits of a highway does not change the street, not necessary to the construction the limits of the highway. lb. or repair of the street. Phillips v. Bowers, 452. Where the travelled path upon a 7 Gray, 21 (1856). public highway which had been established 446. The title of the owner of land bounding by user merely, separated into two tracks, upon a highway is presumed to extend to the thus leaving a triangular strip in the middle, centre of the way. Rice v. Worcester, 11 over which the travel had never passed, Gray, 283, note (1858). But this presump- partly on account of a declivity, and partly tion is rebutted by the production of a deed on account of some obstructions which had from which he derives his title, granting the been placed there, it was held, that it was a land to the side of the way only. Smith v. question of fact to be determined upon conSlocomb, 11 Gray, 280 (1858). sideration of all the circumstances, whether 447. The use, by the owner of land bounded such land had been appropriated to public on the side of a highway, of the land between use as a highway, although not actually prehis own and the travelled part of the way, by pared for travel at the time when the highway moving a wall, planting trees, cutting brush- was first used; and that the owner of the soil wood and ditging up the soil, for fifteen years, would have the benefit of the rule that his gives no right to maintain an action of tort in private right was not to be incumbered by the the nature of trespass quiare clausum fregit, public unless it appeared satisfactorily that it for the interruption of such use and possession *had been appropriated to public use. lb. by another person. lb. 453. In the case of a highway established 448. An action of tort lies against a city to by user, the jury may be authorized by the recover damages occasioned by the obstruc- circumstances to find that its limits extend tion, owing to negligence on the part of the beyond the travelled path. IHannum v. city, of a natural watercourse, through a Belchertown, 19 Pick. 311 (1837). See culvert under a highway, although the plain- Sprague v. Waite, 17 Pick. 309. tiff is the owner of the land on both sides of 454. The selectmen of a town viewed a the highway. Parker v. Lowell, 11 Gray, highway, in company with the owners of the 353 (1858). See ACTIoNs, 44. adjoining lands, and ordered the fence against 449. A private individual may be held the highway to be moved back. The fence liable as a trespasser by the owner of land was accordingly moved back, and was conover which there is a public highway, for acts tinned more than twenty years in tile place done to the injury of the latter in widening or where it was then put. Held, that the fence, repairing the highway, outside of the travelled so moved and continued, was, under Rev. limits thereof; although a highway surveyor Sts. c. 24, ~ 61, (Gen. Sts. c. 46, ~ 1,) to be might properly have done the same acts. deemed and taken as the true boundary of ifollenbeck v. Rowley, 8 Allen, 473 (1864). the highway; there being no records or monuments by which the boundary could be made See ante, 25, 161, 191, 225; post, 452. certain. Plumer v. Brown, 8 Alet. 578 (1844). 455. A fence fronting on a highway for more WAYS, VIII. IX. 133 than twenty years is not to be deemed and 402. Under the St. of 1857, c. 287, an taken to be the true boundary thereof, (Gen. adjudication by county commissioners, laying Sts. c. 46, ~ 1,) if the original boundary can out a highway across a railroad, which does be made certain by ancient monuments, not state whether the highway is tobe carried although such monuments are not now in ex- over, or under, or on a level with the railroad, istence. Wood v. Quiincy, 11 Cush. 487 or show that special notice was given to the (1853). railroad corporation, is erroneous, and will 456. A straight line drawn through the be quashed on certiorari, although the railcentre of a Virginia fence which has been road corporation actually appeared and were continued for more than twenty years fronting heard before the commissioners. lb. on a highway, the boundaries of which can- 463. A railroad corporation is entitled to not be otherwise ascertained, is to be deemed damages for land taken by the laying out of a the true boundary; and there is no presump- public highway across its railroad, subject to tion that the land enclosed between that line its use for said road, and for the expense of and the angles of the fence next the highway erecting and maintaining railroad signs and was not intended to be dedicated to public cattle guards at the crossing, and of flooring use. Holbrook v. McBride, 4 Gray, 215 the same and keeping it in repair; but not for (1855). any increased liability from accidents, for the 457. A fence fronting on a highway and increased expense of ringing the bell, or for continued for more than twenty years is con- its liability to be ordered by the county comelusive evidence of the true boundary thereof, missioners to build a bridge for the highway if the same is not known and cannot be made over its track. Old Colony 4 Faoll River certain by records or monuments. Pettingill Railroad v. Plymouth, 14 Gray, 155 (1859). v. Porter, 3 Alien, 349 (1862). 464. In assessing damages occasioned to a 458. Maintaining a fence within the limits railroad corporation by the location of a highof a highway for forty years, under a claim way across its track, supposed benefit by an of right, gives to the owner an absolute increase of travel on the railroad cannot be right, under the statutes of this common- set off. Ib. Boston 4' Maine Railroad v. wealth, to continue it there, as against the Middlesex, 1 Allen, 324 (1861). public. Cutter v. Cambridge, 6 Allen, 20 465. A railroad company has no right to use (1863). a highway as a part of its freight yard; but it 459. If there is no competent record evi- has a right to pass and repass over a highway dence of the laying out of a highway, and it in making up its trains and shifting its cars, appears that surveyors have been unable to provided this is done only to a reasonable exascertain the boundaries accurately, evidence tent and in a reasonable manner, without of the existence of a fence substantially in the encroaching upon the rights of others who same place for more than twenty years, upon have an equal right to use it. Gahagan v. the side of the highway, is competent for the Boston 4 Lowell Railroad, 1 Allen, 187 purpose of fixing the boundary line. Hollen- (1861). beck v. Rowley, 8 Allen, 473 (1864). 466. The obligation of a town to make 460. The provisions of St. of 1848, c. 192, roads safe and convenient for travellers con(Gen. Sts. c. 43, ~ 88,) requiring county tinues where such roads are crossed by railcommissioners, mayors and aldermen and roads at grade, except so far as the necessary selectmen to cause stone bounds or other use of the crossing by the railroad may prevent monuments to be erected at the termini and it, and subject to such specific directions as angles of all roads laid out by them, are mere- may be given by the county commissioners. ly directory, and not necessary to be coin- Davis v. Leominister, 1 Allen, 182 (1861). plied with, to make a location valid; and com- 467. Under Rev. Sts. c. 24, ~ 13, (Gen. Sts. pliance therewith need not be stated on the c. 43, ~~ 19, 20; c. 63, ~~ 57-59,) county record of the laying out of the road. Mon- commissioners have final jurisdiction of the terey v. Berkshire, 7 Cush. 394 (1851). question whether a highway which crosses a railroad shall be laidlout over, under, or on a level with it. Boston' Maine Railroad v. Middlesex, 1 Allen, 324 (1861). IX. RAILROAD CROSSINGS; SIDEWALKS IN 468. Under Rev. Sts. c. 39, ~ 69, town or THE CITIES OF LOWELL AND CHIARLESTOWN. city authorities had no power to lay out a 461. The St. of 1857, c. 287, concerning highway across a railroad, on a level therethe laying out of highways across railroads, with; and a railroad company is not estopped applies to a petition for the laying out of a from objecting to the exercise of such power highway,. pending at the time of its passage. by an agreement made by it with former Old Colony 4J Fall River Railroad v. Ply- owners of the land, which contained a stipumouth, 11 Gray, 512 (1858). lation for a right of way, to be used by such 134 WAYS, IX owners aid their assigns, at the place where that width regularly to seven and a half feet, the highway was afterwards laid out. Boston and for a further length of sixty-eight feet Maine Railroad v. Lawrence, 2 Allen, 107 increased gradually from seven and a half (1861). See now Gen. Sts. c, 63, ~~ 57-59. feet to eight feet in width. In a remote and 469. Under Gen. StsC c. 63, ~ 59, the mayor comparatively unfrequented part of W Street, and aldermen of a city, or selectmen of a town, the sidewalk, for a little more than forty feet have no authority to lay out a way across any in length, was made considerable less than portion of the land, not exceeding five rods in eight feet wide. I-. was not asked to consent, width, which has been taken by a railroad and did not consent to these alterations. Ield, corporation for their railroad, unless permis- in a suit against H. to recover the expense of sion so to do has been granted by the county the sidewalk constructed in front of his lot, colmmissioners. Commonwealth. Haverhill, (which expense was admitted by him not to 7 Alien, 523 (1863), be unreasonable in amount,) he was bound to See ante, 207, 269-272, 277, 397-899, 424, upay it, notwithstanding the departure from the 425; - R~AILROADS. ^city ordinance in the construction of the side425; RAILROA.DS. walk. lb. Sidewalks in the Cities of Lowell and Charles- 473. The city ordinance of Lowell, c. 16, fdowln~ 3, which requires the superintendent of streets to make a report to the auditor of ac470. The authority of the city council of counts of the expense incurred in building a Lowell to lay out streets within the city, sidewalk, "within ten days from the finishing (under St. 1836, c. 128,) is not like that of of the sidewalk," is merely directory; and selectmen to lay out town ways, but is like his omission so to do furnishes no defence to that of county commissioners to lay out high- an action brought against the owner of a lot ways. And, therefore, if said city council lay in front of which a sidewalk is built, to recover out a street by an order apparently regular the expense of building it. lb. and formal, a party who has an easement in 474. A city ordinance having provided that the land over which the street is laid cannot, previous to the assessment of the expenses of in an action against him to recover the ex- building a sidewalk upon the -abutters, the pense of a sidewalk constructed on the side city auditor should give notice in writing to of such street, by order of the city council, each person reported to him as liable to be successfully object that all persons interested assessed, of his intention to make an assesshad not due notice of the intention to lay out ment, appointing a time and' place at which the street; but, in order to raise this question, all persons might appear and be heard in he mustresort to a writ of certiorari. Lowell relation to the assessment; it was held, that v. Hadley, 8 Met. 180 (1844). the giving of such notice was a condition pre471. An assessment on the owner of build- cedent to the validity of the assessment, ings in the city of Lowell, for the expense of which was not complied with by notifying all a sidewalk constructed on a street in front of the abutters, except one, of the time and the buildings, by order of the city council, place at which they might be heard, and afterpursuant to the authority given by the city wards notifying the remaining abutter of a charter and ordinances, is constitutional and different time and place, at whicl hle might valid. lb. be heard. Lowell v. lWenttworth, 6 Cush. 221 472. The city council of Lowell, by an (1850). ordinance, directed a sidewalk on W Street 475. The city council of Lowell were to be constructed by the superintendent of authorized by the city charter to cause perstreets, 796 feet in length, and 8 feet in manent sidewalks to be constructed on the width, of brick and edge stones in front of streets in front of buildings, at the expense of occupied lots, and of timber and planks in the owners, and temporary sidewalks in front front of vacant lots. The sidewalk over a of vacantlands, at the expense of the abutters part of the length in front of IH.'s lot was or of the city, which sidewalks, when accepted built, in consequence of his request, of flag- by the council- should be afterwards mainstones, in three rows, with paving stones tained at the expense of the city. In the between; and in some other places it was year 1838, the city council caused a sidewalk built of flagstones and paving stones, across of plank to be constructed in front of the private entrances to yards, with the assent of defendant's building, and assessed the expense the immediate abutters, but without asking thereof upon him, but it did not appear that H.'s consent. In one place near H.'s lot, this sidewalk was ever expressly accepted. the sidewalk was made but seven feet wide, In 1849 the city council caused the wooden and between his lot and one of the most fre- sidewalk to be removed, and its place to be quented streets in the city, for a length of supplied by one of brick and stone. It was sixty-three feet, the sidewalk varied from held, that the first sidewalk was a permanent WAYS, XI. X. 135 one, within the meaning of the charter, and highway is presented to the county conmmisthat the city could not charge the defendant sioners by certain private individuals, and the with the expense of the second. Lowell v. county commissioners order that no further French, 6 Cush. 223 (1850). proceedings shall be had upon the petition, 476. The city of Lowell cannot recover of the petitioners merely as such are warranted a land owner an assessment for building a in applying to this court for a writ of mandasidewalk on a street in that city, unless the mus to the county commissioners, quaere. city council have prescribed the materials of [Wellington, Petitioner, 16 Pick. 87 (1834). which the sidewalk should be constructed, as 483. Upon an application for a mandamus required by the revised ordinances of the city, to commissioners of highways, commanding c. 17, ~ 4; which order should appear from them to construct and finish a highway, the journal kept by the city clerk, and cannot alleged to have been insufficiently made, but be presumed. Lowell v. Wheelock, 11 Cush. which the commissioners had already accepted 391 (1853). as completed, it was held, that a mcandamus 477. If the order of the city council requires would not lie, the question of the sufficiency the sidewalk to be built on the side of a cer- of the construction of the road being submittain street, the city cannot recover an assess- ted by law to the judgment of the coimmisnient for building a sidewalk four feet from sioners. Rice v. Middlesex, 13 Pick. 225 the side of such street. lb. (1833). 478. The charter of the city of Lowell hav- 484. When a town way is laid out by ing provided for the construction of side- county commissioners over land which A. has walks in front of buildings, "at the expense conveyed to B. by a deed not recorded, and of the owners thereof," (St. 1836, c. 128, ~ 9,) B. does not make known to the commissioners the remedy of the city to recover the cost of his title and claim for damages, although he sidewalks of such owners is at common law, has an opportunity to do so, and they award by action, and is not taken away by a statute damages to A. and not to B., a writ of ce'rtio(St. 1847, c. 82, ~ 5) giving to the city a lien rari will not be issued on the petition of B., on the real estate of such owners for such for the purpose of quashing the commnissioncost. Lowell v. Wyman, 12 Cush. 273 (1853). ers' proceedings. Brown v. Essex, 12 Met. 479. Under St. 1855, c. 11, concerning 208 (1846). sidewalks in the city of Charlestown, if the 485. It is no sufficient ground for issuing mayor and aldermen have ordered that a a certiorari to revise the proceedings of section of a street shall be graded and covered county commissioners in laying out a highwith gravel and that the gutters therein shall way, that the public necessity and convenience be paved, owners of adjoining land cannot be did not require the same to be laid out; or required to construct sidewalks in front of that a submission of the matter to a jury their land until after such grading, covering would not afford the petitioners any effectual with gravel, and paving, has been completed. remedy; or that the commissioners increased Charlestown v. Stone, 15 Gray, (1860). the damages of the land owners, on the hearing of a petition for a discontinuance of the way. Kingman, v. Plymouth, 6 Cush. 306 (1850). 486. Certiorari will not lie to remove to the X. OF THE REMEDIES FOR IRREGULARITIES supreme judicial court the record of the proIN LAYTING OUT AND COMPLETING WAYS; AND ceedings of a town in the location and estabSOBME, OTHER MATTERS. lishment of a town or private way. Bobbins 480. This court will not prohibit the county v. Lexington, 8 Cush. 292 (1851). But cercommissioners from working a road during tiorari will lie to the mayor and aldermen of the pendency of a petition for a certiorari on Boston, to remove their proceedings in the account of supposed errors in their proceed- location of ways in Boston; because the ings, but, after notice of the pendency of such powers of the mayor and aldermen, in such petition, the commissioners, if they proceed cases, are like those of county commissioners. with the making of the road, do so at their lb. Parks v. Boston, 8 Pick. 218' (1829). own risk. Adams, Petitioners, 10 Pick. 273 Stone v Boston, 2 Met. 220 (1841). And see (1830). Dwight v. Spr'ingfield, 4 Gray, 107. 481. On certiorari this court may quash 487. The owner of land over which a street one part of the proceedings of county com- is laid out by a city council, who objects at missioners and affirm the other part, where the hearing before them to the regularity of the two parts are independent of and uncon- the proceedings, and gives written notice to nected with each other. Comnmonwealth v. the city, before the commencement of the West Boston Bridge, 13 Pick. 195 (1832). construction of the street, that he intends to 482. Whether, where a petition for a new take legal measures to protect his rights, is 136 WAYS, X. not guilty of laches in waiting six months, men of the town, on petition, had unreasonuntil the next term of this court for the same ably neglected to lay out the same, can only county, before he petitions for a certiorari. be avoided by a petition for certiorari; and, Dwight v. Springfield, 4 Gray, 107 (1855). until so avoided, the order of the commis488. Under Gen. Sts. c. 145, ~ 9, this court sioners will justify an entry by the town upon have power, in issuing a writ of certiorari to the land appropriated, for the purpose of vacate irregular proceedings by county corn- constructing the way. Durant v. Lawrence, missioners, to order further proceedings by I Allen, 125 (1861). them to correct the irregularity. Lowell v. 495. The adoption of a city charter, after Middlesex, 6 Allen, 131 (1863). proceedings for the establishment of a town 489. A writ of certiorari will not be issued way have been commenced before county to correct the proceedings of county commis- commissioners, does not oust them of their sioners, who, after having adjudged that a jurisdiction to pass an order, before the city road should be constructed, and having laid government is organized, for the construction it out over a portion of the route proposed, of the way; and such orderis valid, if addressed have rescinded their adjudication on the to the town of L. instead of the city of L. ground that public necessity does not require Ib. the construction of the road over the re- 496. In a suit by a land owner against the mainder of the route. Thorpe v. Worcester, city for damages for constructing such way 9 Gray, 57 (1857). in pursuance of the order of the commis490. The board of aldermen of a city laid sioners, it is not necessary to prove in defence out and accepted a public highway, awarded a final acceptance of the way. Ib. damages to land owners, and fixed a time for 497. An action to recover of a town the them to remove buildings. A land owner ap- damages assessed by county commissioners, pealed from the award of the board of alder- on laying out a town way over the plaintiff's men to the county commissioners, and obtain- land, cannot be maintained, if it is commenced ed a new award of damages from a jury, before the land is entered upon, and posseswhose verdict was accepted by the court of sion thereof taken, for the purpose of concommon pleas. The order for the removal structing the way, although the way is conof buildings had been previously revoked and structed before the action comes to trial. due notice given of such revocation, and the And on the trial of such action, thus comorder accepting the street was afterwards also menced, the defendants may give evidence revoked, before any entry was made upon that the commissioners, by mistake, awarded the. land or possession thereof taken for the damages to the plaintiff, not only for his own purpose of constructing the highway. Held, land, but also for the lands of others, to whom that under Sts. 1842, c. 86, and 1847, c. 259, they' awarded no damages; and that those the land owner was not entitled to a warrant others have since sought and obtained damof distress for the damages given by the ages of the defendants for the laying out of jury, and that an order of the county com- the way over their lands. La Croix v. Medmissioners issuing such a warrant should be way, 12 Met. 123 (1846). quashed on certiorari. New Bedford v. 498. The owner of land over which a street Bristol, 9 Gray, 346 (1857). has been laid out by the city council of a city, 491. Want of notice to one owner of land under authority conferred upon them by the over which a street is laid out by a city is no city charter, may maintain an action to ground for issuing an injunction against the recover the damages awarded therefor, completion of the street at the suit of another although the defendants have not entered land owner. Nichols v. Salem, 14 Gray, 490 upon or taken possession of the land for the (1860). purpose of constructing the street. Shaw v. 492. A city assessed to an individual over Charlestown, 3 Allen, 538 (1862). whose land they had laid out a street so as to 499. St. 1853, c. 315, (Gen. Sts. c. 43, ~ 84,) compel the removal of his buildings, a certain which imposes upon owners of lots abutting sum in lieu of all damages for the removal of on any street or way which then was or theresaid buildings. Held, that his remedy, if ag- after should be opened over any private land grieved, was by petition for a jury, and not by the owners thereof, and dedicated to or by injunction. lb. permitted to be used by the public before 493. A city which, after laying out a street, being accepted and laid out according to law, unreasonably delays to complete it, is liable the duty of grading such street or way at to indictment for the neglect, but not to in- their own expense, in such manner as the junction against completing the street. lb. safety and convenience of the public shall, in 494. The record of county commissioners the opinion of the mayor and aldermen of the establishing a town way, and reciting that it city, or selectmen of the town, require; and was made to appear to them that the select- which authorizes the mayor and aldermen, or WAYS, X. 137 selectmen, to cause the same to be so graded, unconstitutional. Norcwich v. Hlampshire, 13 and to assess the expenses thereof upon the Pick. 60 (1833). owners of such abutting lots, and to create by 502. The owner of land bordering on a such assessment a lien upon their respective stream, whether navigable or not, may mainlands, if upon notice they refuse or neglect to tain an action of tort against a town laying grade the same in manner aforesaid, or to out a highway and bridge across the stream, close the same from public use, is unconsti- to recover any special damage occasioned to tutional and void. Morse v. Stocker, 1 Allen, his land by the bridge being so built or after150 (1861).. Barrett v. Cambridge, 10 Allen, wards altered by a third person for his own 48 (1865). benefit with the permission or assent of 500. The making and regulation of streets the town, as to obstruct the course of the in the city of Boston is provided for ex- stream more than it would otherwise be obelusively by special statutes; consequently a structed; although the bridge is built over a by-law containing a provision for removing tide mill, the owners of which have acquired snow in the streets, differing from the pro- a prescriptive right to obstruct the water in a visions in the general statute of 1786, c. 81, less degree. Lawrence v. Fairhaven, 5 Gray concerning the laying out and regulation of 110 (1855). See ACTIONS, 20, 43, 44; OFFIhighways, is not repugnant to this statute, as CERS, 43; RAILROADS, 26 a. that statute is not in force in Boston. God- 503. If a private way is opened, leading dard, Petitioner, 16 Pick. 504 (1835). from a public street, and prepared for use in 501. An act of the legislature providing the same manner as a public street, and with that the expense of building a particular nothing to show that it is not such, the public bridge shall be borne in part by the county may lawfully travel over it, although it is within which it is situated, when by the closed at one end. Danforth v. Durell, 8 operation of the general laws of the Common- Allen, 242 (1864). wealth the expense would be borne wholly by the town within which it is situated, is not See ante, 3, 16, 18, 32, 64, 113, 134, 470. TAB LE OF TIiE CASES REFERRED TO IN THIS DIGEST. A. PAGE. PAGE. Alvord v. Collin, 20 Pick. 418, 84, 80, 89 Abington v. Boston, 4 Mass. 312, 18 Amesbury (Amesbury Woollen Co. v.) 17 -- (Jewell v.) 2 Allen, 592, 74 Mass. 461, 78, 80 - v. North Bridgewater, 23 Pick. 170, 17, 56 - (Boston v.) 4 Met. 278, 29, 56 Adams, Petitioners, 10 Pick. 273, 135 Amesbury Wn Co. v. Amesbury,17 Bass. 461, 78,80 v. Adams, 13 Pick. 384, 23 Amherst (Granby v.) 7 Mass. 1, 18, 39 -- (Anthony v.) 1 Met. 28, 2, 8, 14, 115 v. Shelburne, 11 Gray, 107, 62 v. Carlisle, 21 Pick. 146, 121, 124 - v., 13 Gray, 341, 39, 40 - v. Emerson, 6 Pick. 57, 131 Anderson (Colman v.) 10 Mass. 105, 86 v-. Farnsworth, 16 Gray, 3, 87 Andover v. Canton, 13 Mass. 547, 38, 39, 41, 58 v. Frothingham, 3 Mass. 352, 65 - v. Chelmsford, 16 Mass. 236, 48 (Gregory v.) 14 Gray, 242, 118 -— v. Easthampton, 5 Gray, 390, 62 -- v. Hampden, 13 Gray, 439, 28 - (Jones v.) 6 Pick. 59, 116 - v. ~, 16 Gray, 28 - ( v.) 9 Pick. 146, 99 - v. Moulton, 7 Pick. 286, 19 - ( v.) 10 Allen, 18, 118,127 v. Nantucket, 11 Allen, 84 - - (Palmer v.) 2 Cush. 600, 117, 123 (Parker v.) 12 Met. 415, 12 - (Salem v.) 3 Mass. 436, 50, 54 (Snow v.) 1 Cush. 443, 120 v. Sutton, 12 MIet. 182, 128 - (Tash v.) 10 Cush. 252, 7, 9 Andrews v. Worcester Ins. Co. 5 Allen, 65, 87 (Williams v.) 3 Allen, 171, 30 Anthony v. Adams, 1 Met. 284, 2, 8, 14, 115 v. Wiscasset, 5 Mass. 328, 51 v. Anthony, 6 Allen, 408, 22 Aiken (H-astings v.) 1 Gray, 163, 11 v. Berkshire, 14 Pick. 180, 114 Alricldric. drich, 8 BIet. 102,. 86, 88 Appleton (Barre Turnpike v.) 2 Pick. 430, 109 - v. Pelhlam, 1 Gray, 510, 125 v. Hopkins, 5 Gray, 530; 5, 87, 88 Alexander v. Pitts, 7 Cush. 503, 90 Armstrong v. Wendell, 9 MBet. 522, 115 Alfied (Sayward v.) 5 Mass. 244, 51 Arundel v. 3M'Culloch, 10 Mass. 70, 102, 131 Alger v. Lowell, 3 Alien, 402, 115, 120, 123, 126 Ashby v. Lunenherg, 8 Pick. 5;3, 59 Alien (Baker v.) 21 Pick. 382, 94 Athearn (Commonwealth v.) 3 Mass. 285, 33 (Brookfield v.) 6 Allen, 585, 50, 53, 63 Athol v. Watertown, 7 Pick. 42, 48 (Call v.) 1 Allen, 137, 77 Attleborough (Hayden v.) 7 (Commonwealth v.) 11 Met. 403, 12 Gray, 338, 104, 116, 118, 120, 125 v. Metcalf, 17 Pick. 208, 34 --. Mansfield, 15 Pick. 19, 55 (Shattuck v.) 4 Gray, 540, 74 - v. Middleborough, 10 Pick. 378, 48 v. Taunton, 19 Pick. 485, 7, 14 - (Seekonk v.) 7 Pick. 155, 61 v. Turner, 11 Gray, 436, 9 --- (Wrentham v.) 5 Mass. 430, 47, 54 - v. Westport, 15 Pick. 35, 7T Auburn (Worcester v.) 4 Allen, 574, 48, 50, 57 TABLE OF CASESe 139 PAGE, PAGE. Augusta (Bmbdel v.) 12 Mlass. 3072 58 Bennett (Kilburn v.) 3 Met. 199, 87 --- (Kupfor v.) 12 Mass. 185, 15 Benoit v. Conway, 10 Alien, 528, 16, 9 - (Sidney v.) 12 3ass, 316k 59 Benson (Stacey v.) 18 Pick. 496, 77 Austin v. Carter, 1 Mass. 231, 115 Bentley (Canton V.) 11 Mass, 441, 50, 61 v. Murray, 16 Pick. 121, 27, 36 Berkley v. Somerset, 16 IMass. 454, 40 Avery v. Stewart, 1 Cush. 496, 104, 106 v. Taunton, 19 Pick. 480, 49 Berkshire (Anthony v.) 14 Pick. 189, 114 B. - (Castle v.) 11 Gray, 26, 107 Babbitt v. Savoy, 3 Cush. 530, 3 (Commonwealth v.) 8 Pick. 343, 98, 99 Bacon v. Boston, 3 Cush. 174, 117, 119, 122, 124 - (Great Barrington v.) 16 Pick. 572, 78 Badger (Doane v.) 12 Mass. 69, 105 (I-arrington v.) 22 Pick. 266, 131 Bailey (Pedrick v.) 12 Gray, 161, 32, 36 - (Hawkins v.) 2 Allen, 214, 107, 109, 113 - -(Sprague v.) 19 Pick. 436, 84, 86, 94 -- (Holden v.) 7 Met. 561, 106 Baker v. Allen, 21 Pick. 352, 94 (Lanesborough v.) 22 Pick. 278, 110, 114 v. Boston, 12 Pick. 184, 14, 27 - (Merrillv.) 11 Pick. 269, 107,108, 110, 111, 114 - v. Dedham, 16 Gray, 116, 118 - (Monterey v.) 7 Cush. 394, 133 Baldwin v. Fitchburg, 8 Pick. 494, 77, 81 - (New Marlborough v.) 9 Met. 423, 97 Bancroft v. Lynnfield, 18 Pick. 506, 3, 8, 32 Berlin v. Bolton, 10 Met. 115, 48 Banker (Saltonstall v.) 8 Gray, 195, 77 Bernardston (Dalton v.) 9 Mass. 201, 40, 50 Barber v. Roxbury, 11 Allen, 118 -- (Westminster v.) 8 Mass. 104, 58, 60 Barnard v. Graves, 13 Met. 85, 89 Berry (Commonwealth v.) 5 Gray,93, 71 Barnes (Shute v.) 2 Allen, 598, 98 - (Garrigan v.) 12 Allen, 12 - v. Springfield, 4 Allen, 488, 96, 109 Besse v. Dyer, 9 Allen, 151, 7 Barnicoat v. Folling, 3 Gray, 134, 11 Bigelow v. Bridge, 8 Mass. 274, 10 Barre v. Greenwich, 1 Pick. 129, 32, 44 -- v. Randolph, 14 Gray, 541, 2 Barre Turnpike v. Appleton, 2 Pick. 430, 109 -- v. Rutland, 4 Cush. 247, 121 Barrett v. Cambridge, 10 Allen, 48, 93, 137 -- v. Weston, 3 Pick. 267, 116 Barry v. Lowell, 8 Allen, 127, 2, 75 Billerica v. Chelmsford, 10 Mass. 394, 47 Bartlett (Tasker v.) 5 Cash. 359, 75 - (Townsend v.) 10 Mass. 411, 50, 54, 59 Bassett v. Porter, 4 Cush. 487, 88, 94 Billings (Dickinson v.) 4 Gray, 42, 94 Bassit v. Glover, 1 Dane Ab. 137, 23 Bills (Ingalls v.) 9 Met. 1, 123 Batchelder v. Salem, 4 Cush. 599, 74 Bishop v. Fahay, 15 Gray, 17 Bates v. Boston, 5 Cush. 93, 79, 81, 91 - v. Rochester, 11 Alien, 16 v. Boston & N. Y. Central Railroad, Blackburn v. Walpole, 9 Pick. 97, 84 10 Alien, 251, 75 Blackstone, (Blackstone M'f Co. v.) 13 Gray, 488, 79 - v. Plymouth, 14 Gray, 163, 34, 37 v. Seekonk, 8 Cush. 75, 41 Bath v. Bowdoin, 4 Mass. 452, 44 v. Taft, 4 Gray, 230, 1 v. Freeport, 5 Mass. 325, 54 Blackstone Canal Co. (M3illbury v.) 8 Pick. 473, 131 Battelle (Welles v.) 11 Mass. 477,. 34, 70, 81, 84 Blackstone Manuf.Co.v.Blackstone, 13 Gray, 488, 79 Baxter (Parker v.) 2 Gray, 185, 90 Blake (Brackett v.) 7 Met. 335, 5, 34 Beale (Commonwealth v.) 5 Pick. 514, 25, 64 Blanchard v. Stearns, 5 Met. 298, 20, 21 Bean (- v.) 14 Gray, 52, 35, 37 Blandford v. Gibbs, 2 Cush. 39, 20 (Sargent v.) 7 Gray, 125, 85, 90 Bliss v. Wilbraham, 8 Alien, 564, 122, 127 Becket (Shaw v.) 7 Cush. 442, 92 Blodgett v. Boston, 8 Allen, 237, 119 Belcher v. Farrar, 8 Allen, 325, 27 Blossom v. Cannon, 14 Mass. 177, 84 Belchertown v. Dudley, 6 Allen, 477, 42 Boardman (Williams v.) 9 Allen, 570, 5 - (Hannum v.) 19 Pick. 311, 105, 132 Bolton (Berlin v.) 10 Met. 115, 48 - v. Randall, 7 Cush. 478, 72 Borman (Robbins v.) 1 Pick. 122, 131 Belding (Commonwealth v.) 13 Met. 10, 105, 130 Boston (Abington v.) 4 Mass. 312, 18 Belfast v. Lcominster, 1 Pick. 123, 55 -- v. Amesbury, 4 Met. 278, 29, 56 Belgrade v. Sidney, 15 Mass. 523, 44 (Bacon v.) 3 Cush. 174, 117, 119, 122, 124 Bell (Colerain v.) 9 lMet. 499, 9 - (Baker v.) 12 Pick. 184, 14, 27 Bellingham (Milford v.) 16 Mass. 108, 42 -- (Bates v.) 5 Cush. 93, 79, 81, 91 v-. West Boylston, 4 Cush. 553, 44 --- (Blodgett v.) 8 Allen, 237, 119 Belmont (Frost v.) 6 Allen, 152, 8, 9 - (Boston & Sandwich Glass Co. v.) 4 Bemis (Elder v.) 2 iet. 599, 115 Met. 181, 78, 81, 92 Benjamin (Pierce v.) 14 Pick. 356, 88, 89 -- (Boston Water Power Co. v.) 9 v. Wheeler, 8 Gray, 409, 116 Met. 199, 79, 91 v. --, 16 Gray, 115, 116 - (Bourne v.) 2 Gray, 494, 91 Bennett v. Clemence, 6 Allen, 10, 107 - (Bowman v.) 5 Cush. 1, 100, 117 140 TABLE OF CASES. PAGE. Pa GE. Boston v. Brazer, 11 Mass. 447, 101 Boston v. Simmons, 9 Cash. 373, 102 (Brooks v.) 19 Pick. 174, 75, 11, 116 -- (Smith v.) 7 Cush. 254, 107 ( Burnham v.) 10 Allen, 290, 118 - ( — v.) 1 Gray, 72, 68 -- (Cabot v.) 12 Gush. 52, 82 -- (Stone v.) 2 Met. 220,.97, 98, 135 -- (Charlestown v.) 13 Mass. 469, 40 - (Swett v.) 18 Pick. 123, 78 -- (Child v.) 4 Allen, 41, 76 -- (Thayer v.) 19 Pick. 511, 1, 32 - (Cochrane v.) 4 Alien, 177, 83 -- (Thorndike v.) 1 Met. 242, 19, 82 -- (Commonwealth v.) 16 Pick, 442, 97 -- v. Tileston, 11 Mass. 468, 4 _- (Cook v.) 9 Alien, 393, 2, 12 - (Tower v.) 10 Cush. 235, 96 - - (Crockett v.) 5 Cush. 182, 97, 102 - (Tremont Bank v.) 1 Cush. 142, 79 - (Danvers v.) 10 Pick. 513, 39 - (Trustees of the Greene Foundation v.) - v. Dedham, 4 Met. 178, 43, 44, 56 12 Cush. 54, 81, 85 _ — (Donaldson v.) 16 Gray, 126 - (Valentine v.) 22 Pick. 75, 103, 105 -- (Dorr v.) 6 Gray, 131, 92 - - v. Wells, 14 Mass. 384, 43 - (Downer v.) 7 Gush. 277, 75 - v. Westford, 12 Pick. 16, 29 - - (Dunham v.) 12 Allen, 16, 66 -- v. Weston, 22 Pick. 211, 30, 51 (Dwight v.) 12 Allen, 78, 86,93 -- v. Weymouth, 4 Cush. 538, 49, 69 — (Erskine v.) 14 Gray, 216, 108 - - v. Worthington, 10 Gray, 496, 128 - (Fallon v.) 3 Allen, 38, 121 ~ (Wright v.) 9 Gush. 233, 76, 91 -__ (Fernald v.) 12 Cush. 574, 102 Boston & Lowell Railroad (Commonwealth v.) - - (Field v.) 10 Cush. 65, 80 12 Cush. 254, 99 (First Church in Boston v.) 14 Gray, 214, 113 -- (Gahagan v.) 1 Allen, 187, 129, 133 -- (Fitz v.) 4 Cush. 365, 124 - (Lowell v.) 23 Pick. 24, 128 (Foster v.) 22 Pick. 33, 101, 112 Boston & Maine Railroad v. Cambridge, - (Freeman v.) 5 Met. 56, 70 8 Cush. 237, 79 - (Glover v.) 14 Gray, 282, 100 v. Lawrence, 2 Allen, 107, 68, 134 - - (Goddard v.) 20 Pick. 407, 108 - v. Middlesex, 1 Allen, 324, 113, 133 - (Gray v.) 15 Pick. 376, 78 (Parker v.) 3 Gush. 107, 66 — (Hancock v.) I Met. 122, 98 (Whittaker v.) 7 Gray, 98, 68 -- (Harback v.) 10 Gush. 295, 95 Boston & N. Y. Central Railroad (Bates v.) - (Hemphill v.) 8 Cush. 195, 103,104, 117 10 Allen, 251, 75 - (Howe v.) 7 Cush. 273, 89, 91 - (Mears v.) 5 Gray, 371, 2 - (Huckins v.) 4 Cush. 543, 80 Boston & Providence Railroad, (Roxbury v.) — (Kimball v.) 1 Allen, 417, 2, 118 6 Cush. 424, 67 - (Knowles v.) 12 Gray, 339 74 - ( — v.) 2 Gray, 460, 68 (Lee v.) 2 Gray, 484, 82 Boston & Sandwich Glass Co. v. Boston, (Loring v.) 7 Met. 409, 71 4 Met. 181, 78, 81, 92 -- ( — v.) 12 Gray, 209, 106, 108 Boston & Worcester Railroad (Gardiner v.) -- (Mead v.) 3 ush. 404, 70 9 Cush. 1, 67 -- (Melcher v) 9 Met. 73, 79 Boston Manuf. Co. v. Newton, 22 Pick. 22, 78, 80 -- v. Moore, 3 Allen, 126, 10 Boston Mill Corp. (Rust v.) 6 Pick. 158, 69 -- ( — v.) 8 Gush. 274, 95 Boston Water Power Co. v. Boston, 9 Met. 199,79,91 -- (Munigle v.) 3 Allen, 230, 107 - (Taylor v.) 12 Gray, 415. 105 -- (Otis v.) 12 Cush. 44, 82 Bosworth (Inglee v.) 5 Pick. 498, 84 - (Paine v.) 4 Allen, 168, 113 - v. Swansey, 10 Met. 303, 118 -- (Parker v.) 1 Allen, 361, 96 Bourne v. Boston, 2 Gray, 494, 91 - - (Parks v.) 8 Pick. 218, 97, 135 Boutelle v. Nourse, 4 Mass. 431, 63 -- ( — v.) 15 Pick. 198, 107, 110, 111 Bowdoin (Bath v.) 4 Mass. 452, 44 -- (Patterson v.) 20 Pick. 159, 111 Bowers (Phillips v.) 7 Gray, 21, 132 -- ( — v.) 23 Pick. 425, 112 -- v. Suffolk Manuf. Co. 4 Cush. 332, 103, 104 -- (Peirce v.) 3 Met. 520, 5, 87 Bowley v. Walker, 8-Allen, 21, 106 -— (Pool v.) 5 Cush. 219, 70 Bowman v. Boston, 5 Cush. 1, 100, 117 -- (Preston v.) 12 Pick. 7, 80, 91 Boxborough (Groton v.) 6 Mass. 50, 43 -- (Revere v.) 14 Gray, 218, 108 - (Harvard v.) 4 Met. 570, 47 -- (Roberts v.) 5 Gush. 198, 74 -- (Mead v.) 11 Gush. 362, 18, 83 - (Rossire v.) 4 Allen, 57, 21, 66 Boxford (Stevens v.) 10 Allen, 25, 122, 127 -- v. Sears, 22 Pick. 122, 37 Boylston v. Clinton, 1 Gray, 619, 42 ~ — ( — v.) 1 Met. 250, 82 - v. Groton, 4 Gray, 282, 44 -- v. Schaffer, 9 Pick. 415, 1, 5 -- (New Braintree v.) 24 Pick. 164, 46 -- v. Shaw, 1 Met. 130, 75 v. Princeton, 13 Mass. 381, 41 TABLE OF CASES. 141 PAGE. PAGE. Boylston (West Boylston v.) 15 Mass. 261, 45 Buffum (Farnum v.) 4 Gush. 260, 89 Boylston Market Association (Kirby v.) Bulkley v. Williamstown, 3 Gray, 493, 83 14 Gray, 249, 119, 128, 129 Burgis (Dillingham v.) 16 3Mass. 58, 4 Brackett v. Blake, 7 Met. 335, 5, 34 Burlington (Lexington v.) 19 Pick. 426, 45 - v. Lubke, 4 Allen, 138, 130 - (Wood v.) 1 Met. 493, 38 -- (Nickerson v.) 10 Mass. 212, 26 Burnham v. Boston, 10 Allen, 290, 118 Bradford v. Randall, 5 Pick. 496, 75, 86 - (Libby v.) 15 Mass. 144, 84 -- (West Newbury v.) 3 Met. 428, 48, 49 v. Webster, 5 Mass. 266, 63 Bradley v. Heath, 12 Pick. 163, 33 Burns (Davies v.) 5 Allen, 349, 70 Brady v. Lowell, 3 Cush. 121, 117 Butler v. Charlestown, 7 Gray, 12, 3 Brailey v. Southborough, 6 Cush. 141, 116, 123 - v. Hubbard, 5 Pick. 250, 6 Brainard v. Clapp, 10 Clush. 9. 131 Butterfield v. Melrose, 6 Allen, 187, 25 - v. Connecticut River Railroad, Buttrick v. Lowell, 1 Allen, 172, 1 7 Cush. 506, 67 Buzzell (Commonwealth v.) 16 Pick. 153, 31 Braintree v. Hingham, 17 Mass. 432, 60 Byron v. Crippen, 4 Gray, 312, 25 (Newton v.) 14 Mass. 382, 41 - - (Quincy v.) 5 Mass. 86, 58 (Randolph v.) 4 Mass. 315, 26 - (Williams v.) 6 Cush. 399, 52 Cabot v. Boston, 12 Cush. 52, 82 Braman (Sherman v.) 13 Met. 407, 23 Calder v. Haynes, 7 Allen, 387, 10 Brazer (Boston v.) 11 Mass. 447, 101 Caldwell v. Eaton, 5 Mass. 403, 88 Brewer v. New Gloucester, 14 Mass. 216, 1 Call v. Allen, 1 Allen, 137, 77 v. Tyringham, 14 Pick. 196, 30 Callender v. Marsh, 1 Pick. 418, 115 Brewster v. Dennis, 21 Pick. 233, 42, 49 Cambridge (Barrett v.) 10 Allen, 48, 93, 137 --- v. Harwich, 4 Mass. 278, 6 (Boston & Maine Railroad v.) Bridge (Bigelow v.) 8 Mass. 274, 10 8 Cush. 237, 79 Bridgeton (Harrison v.) 16 Mass. 16, 6 (Brown v.) 3 Allen, 474, 119, 126 Bridgewater v. Dartmouth, 4 Mass. 273, 60 - v. Cambridge Railroad, 10 Allen, 50, 69 -— (East Bridgewater v.) 2 Pick. 572, 46 v. Charlestown, 13 Mass. 501, 47, 54, 63 -- (Mitchell v.) 10 Cush. 411, 108 - v. Charlestown Branch Railroad, -- (Thompson v.) 7 Pick. 188, 121 7 Met. 70, 66 v. West Bridgewater, 9 Pick. 55, 46 (Commonwealth v.) 20 Pick. 267, 63 Briggs v. A Light Beat, 7 Allen, 287, 37 - ( v.) 4 Met. 35, 63 v. Murdock, 13 Pick. 305, 34, 70 (Cutter v.) 6 Allen, 20, 101, 133 - v. Rochester, 16 Gray, 83 - (Farwell v.) 11 Gray, 413, 112 Brigham (Munroe v.) 19 Pick. 368, 30 - v. Lexington, 1 Pick. 506, 41 Brightman v. Grinnell, 9 Pick. 14, 23 - (Little v.) 9 Cush. 298, 80 Brighton, (Dover v.) 2 Gray, 482, 43 v. Middlesex, 6 Allen, 134, 76 Brimblecom (Commonwealth v.) 4 Allen, 584, 17 - (Pierce v.) 2 Cush. 611, 79 Bristol (District Attorney v.) 14 Gray, 138, 65 (Stone v.) 6 Cush. 270, 99 - (Ellis v.) 2 Gray, 370, 19 (Union Railway v.) 11 Allen, 69 -- (Haskell v.) 9 Gray, 341, 98, 109 (Watson v.) 15 Mass. 286, 39, 51 - (Monagle v.) 8 Cush. 360, 109 ( v.) 18 Pick. 470, 29, 51 (New Bedford v.) 9 Gray, 346, 109, 136 (Willard v.) 3 Alien, 574, 119 - (Westport v.) 9 Alien, 203, 97, 98, 110 Cambridge Railroad (Cambridge v.) 10 Allen, 50, 69 Brookfleld v. Allen, 6 Allen, 585, 50, 53, 63 Campbell v. Race, 7 Cush. 408, 106 Brookline (Loker v.) 13 Pick. 343, 115 Canal Bridge, (Worster v.) 16 Pick. 541, 122 Brooks v. Boston, 19 Pick. 174, 75,111,116 Canning v. Williamstown, 1 Gush. 451, 124 v. Petersham, 16 Gray, 121,125 Cannon (Blossom v.) 14 Mass. 177, 84 - (Wilson v.) 14 Pick. 341, 38 Canton (Andover v.) 13 Mass. 547, 38, 39, 41, 58 Brown's case, 8 Pick. 504, 30 v. Bentley, 11 Mass. 441, 50, 61 Brown v. Cambridge, 3 Allen, 474, 119, 126 v. Dorchester, 8 Cush. 525, 42 -v. Essex, 12 Met. 208, 108, 135 Capen v. Glover, 4 Mass. 305, 80 - v. Lowell, 8 Met. 172, 109 Cargill v. Wiscasset, 2 Mass. 547, 51 - (Plumer v.) 8 Met. 578, 116, 132 Carlisle (Adams v.) 21 Pick. 146, 121, 124 - v. Worcester, 13 Gray, 31, 104, 108, 113 Carnoe v. Freetown, 9 Gray, 357, 82 Bruce v. White, 4 Gray, 345, 23 Carter (Austin v.) 1 Mass. 231, 115 Brunswick v. Dunning, 7 Mass. 445, 33 Castle v. Berkshire, 11 Gray, 26, 107 Buckfield v. Gorham, 6 Mass. 445, 44 Caswell (Taunton v.) 4 Pick. 275, 26 Buckland v. Charlemont, 3 Pick. 173, 40 Caverly v. Lowell, 1 Allen, 289, 35 142 TABLE OF CASES. PAGE. PAGE. Central Bridge v. Lowell, 4 Gray, 474, 103 Clark (Snow v.) 9 Gray, 190, 88 v. -- 15 Gray, 98, 103, 113 Clarksburgh (Mount Washingtonv.) Chace v. Fall River, 2 Allen, 533, 115 19 Pick. 294, 42, 49 (New Bedford v.) 5 Allen, 28, 53 Clary (Commonwealth v.) 8 Mass. 72, 20, 78 (Swansey v.) 16 Gray, 128 Clemence (Bennett v.) 6Allen, 10, 107 Chandler (Perley v.) 6 Mass. 453, 102, 111, 131 Cleverly v. Towle, 3 Allen, 39, 24 Chapman v. Lowell, 4 Cush. 378, 15 Clinton (Boylston v.) 1 Gray, 619, 42 Charlemont (Buckland v.) 3 Pick. 173, 40 Cobb v. Iingman, 15 Mass. 197, 5 v. Conway, 8 Pick. 408, 48, 55, 84 Cochrane v. Boston, 4 Allen, 177, 83 Charlestown v. Boston, 13 Mass. 469, 40 Codding v. Mansfield, 7 Gray, 272, 70 ( Butler v.) 7 Gray, 12, 3 Coffin v. Field, 7 Cush. 355, 24, 25 (Cambridge v.) 13 Mass. 501, 47, 54, 63 - v. Nantucket, 5 Cush. 269, 25 (Commonwealth v.) 1 Pick. 180, 102, 127 (Russell v.) 8 Pick. 142, 77 v,( Groveland, 15 Gray, 38, 50 v. Vincent, 12 Cush. 98, 24 (Mlalden & Melrose Railroad v.) Coggswell v. Lexington, 4 Cush. 307, 120 8 Allen, 245, 2,118 Colburn v. Ellis, 7 Mass. 89, 8 - v. Middlesex, 3 Met. 202, 102 - v. Swett, 1 Met. 232, 27, 64 v...., 1 Allen, 199, 79,93 Colerainv. Bell, 9Met. 49, 9 -- (Middlesex Railroad v.) 8 Allen, 330, 78 - (Donelson v.) 4 Met. 430, 4 - (Shaw v.) 3 Allen, 538, 136 (Petersham v.) 9 Allen, 91, 60 (Sherman v.) 8 Cush. 160, 74 (Rindge v.) 11 Gray, 157, 125 - v. Stone, 15 Gray, S. - — 5- - (Smith v.) 9 Met. 492, 52 - (Tufts v.) 4 Gray, 537, 112 Collin (Alvord v.) 20 Pick. 418, 84,86,89 - (_ Warren v.) 2 Gray, 84, 5 Collins v. Dorchester, 6 Cush. 396, 115,124, 125 (Watson v.) 5 Met. 54, 29, 62 Colman v. Anderson, 10 Mass. 105, 86 - (Wilson v.) 8 Allen, 137, 122 Commonwealth v. Allen, 11 Met. 403, 12 Charlestown Branch Railroad (Cambridge v.) v. Athearn, 3 Mass. 285, 33 7 Met. 70, 66 v. Beal, 5 Pick. 514, 25, 64 Charlton (Southbridge v.) 15 Mass. 248, 46,54 - v. Bean, 14 Gray, 52, 35, 37 Chase (Commonwealth v.) 6 Cush. 248, 17, 34 v. Belding, 13 Met. 10, 105, 130 v-. Lowell, 7 Gray, 33, 4, 32 v. Berkshire, 8 Pick. 343, 98,99 v. Merrimack Bank, 19 Pick. 564, 1 v. Berry, 5 Gray, 93, 71 Chatham (Orleans v.) 2 Pick. 29, 42 -- v. Boston, 1 Pick. 442, 97 Cheever v. Merritt, 5 Allen, 563, 87, 91 v. Boston & Lowell Railroad, 12 Gush. 254, 99 Clhelmsford (Andover v.) 16 Mass. 236, 48 v. Brimbleconl, 4 Allen, 584, 17 -- (Billerica v.) 10 Mass. 394, 47 v. Buzzell, 16 Pick. 153, 31 Chelmsford Co. v. Demarest, 7 Gray, 1, 10 v. Cambridge, 20 Pick. 267, 63 Chelsea (Green v.) 24 Pick. 71, 660 v.,4 Met. 35, 63 - v. Malden, 4 Mass. 131, 39 v. Charlestown, 1 Pick. 180, 102,127 - (Shepherd v.) 4 Allen, 113, 122 v. Chase, 6 Cush. 248, 17, 34 (Winnisimmet Co. v.) 6 Cush. 477, 85, 93 (Clark v.) 4 Pick. 125, 12 Chenery v. Holden, 16 Gray, 17 v. Clary, 8 Mass. 72, 20, 78 - v. VWaltham, 8 Cush. 327, 18, 82 v. Cooley, 10 Pick. 36, 28 Cheney (Claflin v.) 4 Pick. 118, 19 v. Coombs, 2 Mass. 489, 102, 110 Cheshire v. Llowland, 13 Gray, 321, 10, 87, 94 v. Curtis, 9 Alien, 266, 36 (Smith v.) 13 Gray, 318, 2 - v. Dedham, 16 Mass. 141, 30, 72 Chester (Fisk v.) 8 Gray, 506, 18 v. Deerfield, 6 Allen, 449, 128 - (Monson v.) 22 Pick. 385, 43 - v. Dow, 10 Met. 382, 17 Chicopee v. Hampclen, 16 Gray, 86 -- v. Dracut, 8 Gray, 455, 58, 63 -- v. Whately, 6 Alien, 508, 18, 19, 49, 50 v. Dugan, 12 Met. 233, 65 Child v. Boston, 4 Allen, 41, 76 -- v. Fahey, 5 Cfish. 408, 27 Choate v. Rochester, 13 Gray, 92, 50 - v. lFarien, 9 Allen, 489, 32 Christ Church v. Pope, 8 Gray, 140, 20 - v. Fisher, 6 Met. 433, 130 Church (Wilson v.) 1 Pick. 26, 63 v. Gammons, 23 Pick. 201, 12 Claflin v. Cheney, 4 Pick. 118, 19 - v. Gay, 5 Pick, 44, 35 - v. HIopkinton,4 Gray, 502, 7 - v. Gee, 6 Cush. 174, 5 Clapp (Brainard v.) 10 Cush. 9,. 131 -- v. Gibney, 2 Allen, 152, 71 Clark v. Commonwealth, 4 Pick. 125, 12 - v. Gowen, 7 Mass. 378, 130 - v. Great Barrington, 11 Pick. 260, 5, 72 - v. Griffith, 2 Pick. 11, 75 v. Lowell, 1 Allen, 180, 126 - -v. Hampden, 2 Pick. 414, 28 - (Middlleborough v.) 2 Pick. 28, 50, 61 TABLE OF CASES. 143 PAGE. PAGE. Commonwealth v. Hartford & New Haven Commonwealth v. Wilkinson, 16 Pick. 175, 130 Railroad, 14 Gray, 579, 68 -- v. Worcester, 3 Pick 462, 12, 13, 31, 35 ~v. Hastings, qMet. 259, 65 Congdon (Reidell v.) 16 Pick. 44, 6 v-. Haverhill, 7 Allen, 523, 103, 134 Connecticut River Railroad (Brainard v.) 7 v. Higgins, 4 Gray, 34, 65 Cush. 506, 67 (Howard v.) 13 Mass. 221, 64 - (Springfield v.) 4 Cush. 63, 6, 67 - v. Howes, 15 Pick. 231, 64 Converse v. Jennings, 13 Gray, 77, 90 v. Hoxey, 16 lMa-s. 385, 17 Conway (Benoit v.) 13 Allen, 528, 16, 91 v. James, 1 Pick. 375, 13 - (Charlemont v.) 8 Pick. 408, 48, 55, 84 (Jones v.) 15 Gray, 17 v. Deerfield, 11 Mass. 327, 42, 43, 54 v. King, 13 Met. 115, 130 Cook v. Boston, 9 Allen, 393, 2, 1 v. Low, 3 Pick. 408, 130 Cooley (Commonwealth v.) 10 Pick. 36, 28 - v. Lowell Gas Iight Co. 12 Allen, 80 v. Granville, 10 Cush. 56, 8 - v. McCarron, 2 Allen, 157, 31 Coolidge v. Williams, 4 Mass. 140, 26, 66 v. Middlesex, 9 Mass. 3S8, 111 Coombs (Commonwealth v.) 2 Mass. 489, 102, 110 v. Nashua & Lowell Railroad, Copeland (Norton v.) 2 Gray, 414, 72 2 Gray, 54,. 68, 130 Cornville (Mitchell v.) 12 Mass. 332 51 v. Newbury, 2 Pick. 51, 103, 127 Cotton v. Pocasset Manuf. Co. 13 Met. 429, 75 v. Nielhols, 10 Allen, 199, 31 Couch (Counter v) 8 Allen, 436, 123 v. Norfolk, 5 Mass. 437, 110 Counter v. Couch, 8 Alien, 436, 123 v. Northampton, 2 Mass. 116, 71, 2 Crapo v. Stetson, 8 Met. 393, 87, 88 v. North Brookfield, 8 Pick. 463, 127 Crawshaw v. Roxbury, 7 Gray, 374, 71 v. O'Connor, 7 Allen, 584, 65 Crippen (Byron v.) 4 Gray, 3i2, 25 - v. O'Donnell, 1 Allen, 593, 31 Crockett v. Boston, 5 Cush. 182, 97, 102 v. Old Colony & Fall River Railroad, Crombie (Lane v.) 12 Pick. 177, 121 14 Gray, 93, 68, 105, 130 Cross (Flanders v.) 10 Cush. 514, 79, 85, 90 v. Petersham, 4 Pick. 119, 127 Crowell v. Goodwin, 3 Allen, 535, 90 - v. Phillipsburg, 10 Mass. 78, 30 Cummings (Spear v.) 23 Pick. 224, 73 - v. Phloenix Bank, 11 Met. 135, 5, 87 Cummington v. Springfield, 2 Pick. 394, 38 - v. Porter, 1 Gray, 480, 17, 71 v. Wareham, 9 Cush. 585, 62 v. Presby, 14 Gray, 65, 65 - (Williams v.) 18 Pick. 312, 103, 105, 124 v. Reed, 1 Gray, 472, - 31 Currier v. Lowell, 16 Pick. 170, 118 - v. Rice, 9 Met. 253, 22 Curtis (Commonwealth v.) 9 Allen, 266, 36 v. Robertson, 5 Cush. 438, 12 - v. Pembroke, 11 Allen, 4 - v. Roxbury, 8 Mass. 457, 106 Cushing v. Newburyport, 10 Met. 508, 8, 73 v-., 9 Gray, 451, 10,11, 30 v. Stoughton, 6 Cush. 389, 3 v-v. Ruggles, 6 Alien, 588, 131 Cushman (Greenfield v.) 16 Mass. 393, 61 v. Runnels, 10 Mass. 520, 71 Cutter v. Cambridge, 6 Allen, 20, 101, 133 v. Ryan, 5 Mass. 90, 31 v. Sawin, 2 Pick, 547, 97 v. Sheffield, 11 Cush. 178, 72 Dagget (Richards v.) 4 BMass. 539, 80 -. Silsbee, 9 Mass. 417, 20 Dalton v. Bernardston, 9 Mass. 201, 40, 50 v. Slack, 19 Pick. 304, 28 - v. Hlinsdale, 6 Mass. 501, 50, 53, 58 v. Smyth, 14 Gray, 33, 130 Damon v. Granby, 2 Pick. 345, 15, 33, 65 v. Springfield, 7 Mass. 13, 115 (Ioker v.) 17 Pick. 284, 131 - v. Stevens, 10 Pick. 247, 130 Dana v. Hardwick, 10 Met. 208, 47 - v. Stockbridge, 13 MIass. 294, 102 -- (Palmer v.) 9 Met. 587, 57, 59 - v. Stodder, 2 Cush. 562, 11 - (Petersham v.) 12 Mass. 428, 41 v. Temple, 14 Gray, 69, 69 (Sutton v.) 4 Pick. 117, 45 --- v. Thompson, 12 Met. 231, 26 (- v.) 1 Met. 383, 47 -- v. Tucker, 2 Pick. 41, 106 Danforth v. Durell, 8 Allen, 242, 137 - v. Turner, I Cush. 493, 36 v. Williams, 9 Mass. 324, 87 -- v. Upton, 6 Gray, 473, 27 Danvers v. Boston, 10 Pick, 513, 39 - v. Vermont & Mass. Railroad, 4 v. Essex, 2 Met. 185, 97 Gray, 22, 68, 130 - (Fowler v.) 8 Allen, 80, 7, 9 - -v. Waite, 11 Allen, 32 - (Osborn v.) 6 Pick. 98, 91 - - v. Walton, 17 Pick. 403, 31 (Page v.) 7 Met. 326, 31 -- v. Weiher, 3 Met. 445, 98 (Salem Iron Co. v.) 10 Mass. 514, 78, 80 -- v. West Boston Bridge, 13 Pick. 195, 135 Dartmouth (Bridgewater v.) 4 Mass. 273, 60 - - v. Western, 1 Pick. 136 106 - v. Lakeville, 7 Allen, 284, 58 144 TABLE OF CASES. PAGE. PAGE. Dartmouth (Westport v.) 10 Mass. 341, 44 Drake v. Stoughton, 6 Cush. 393, 3 Davenport (H oughton v.) 23 Pick. 235, 87 Dresden (Readfield v.) 12 Mass, 316, 54 Davies v. Burns, 5 Allen, 349, 70 Drury v. Natick, 10 Allen, 169, 95 Davis v. Dudley, 4 Allen, 557, 123 - v. Worcester, 21 Pick. 44, 116 - (Hill v.) 4 Mass. 140, 63 Dudley (Belchertown v.) 6 Allen, 477, 42 - v. Leominster, I Allen, 182, 117, 133 ----— (Davis v.) 4 Allen, 557, 123 Day v. Green, 4 Cush. 433, 11, 33, 37, 131 - (Gaskill v.) 6 Met. 546, 1 -— v. Milford, 5 Allen, 98, 119, 123 v. Weston, 1 Met. 477, 125 - v. Otis, 8 Allen, 477, 71 Dugan (Commonwealth v.) 12 Met. 233, 65 Dean v. Lindsey, 16 Gray,. 23 Duncan (Fellows v.) 13 Met. 332, 5 Dearborn (Fales v.) 1 Pick. 345, 12 Dunham v. Boston, 12 Allen, 16, 66 Dedham (Baker v.) 10 Gray, 116, 118 Dunnell Manuf. Co. v. Pawtucket, 7 - (Boston v.) 4 Met. 178, 43, 44, 56 Gray, 277, 78, 92 -- (- v.) 8 Met. 513, 30, 56 Dunning (Brunswick v.) 7 Mass. 445, 33 --- (Commonwealth v.) 16 Mass. 141, 30, 72 Dunstable (Kidder v.) 7 Gray, 104, 122 - (Doggett v.) 2 Mass. 564, 51 ( v.) 11 Gray, 342, 12, 123, 125 (Franklin v.) 18 Pick. 544, 39 Durant v. Lawrence, 1 Allen, 125, 136 v. Natick, 16 Mass. 135, 41 Durell (Danforth v.) 8 Allen, 242, 137 (Smith v.) 8 Cush. 522, 123 Durgin v. Lowell, 3 Allen, 398, 104, 119 Deerfield (Commonwealth v.) 6 Allen, 449, 128 Dwight v. Boston, 12 Allen, 78, 86, 93 --- (Conway v.) ll Mass. 327, 42, 43, 54 v. Hampden, 7 Cush. 533, 107 v. Delhno, 1 Pick. 435, 61 - v. -, 11 Cush. 201, 112 --- v. Greenfield, 1 Gray, 514, 57, 61, 62 - v. Springfield, 4 Gray, 107, 97, 100, 135, 136 - (Leverett v.) 6 Allen, 431, 42 av. -, 6 Gray, 442, 110, 115 (Reed v.) 8 Allen, 522, 122 Dyer (Besse v.) 9 Allen, 151, 71 Deer Isle v. Eaton, 12 Mass. 327, 53 Delano (Deerfield v.) 1 Pick. 465, 61 E. Demarest (Chelmsford Co. v.) 7 Gray, 1, 10 Eames v. Johnson, 4 Allen, 382, 94 Dennis (Brewster v.) 21 Pick. 233, 42, 49 - v. New England Worsted Co. 11 Dickenson v. Fitchburg, 13 Gray, 546, 110, 111, 113 Met. 572, 27 Dickinson v. Billings, 4 Gray, 42, 94 East Bridgewater v. Bridgewater, 2 Pick. 572, 46 Dighton v. Freetown, 4 Mass. 539, 41 - (Goldthwait v.) 5 Gray, 61, 124 - (Somerset v.) 12 Mass. 383, 40 - (North Bridgewater v.) 13 Pick. 303, 40, 41 Dill v. Wareham, 7 Met. 438, 26 Eastern Railroad (Newburyport Turnpike v.) Dillingham v. Burgis, 16 Mass. 58, 46 23 Pick. 326, 66 - v. Snow, 5 Mass. 547, 84 (Webber v.) 2 Met. 147, 112 District Attorney v. Bristol, 14 Gray, 138, 65 East Granville (Gibbons v.) 4 Allen, 508, 73 Dix (Goodhue v.) 2 Gray, 181, 12 Easthampton (Andover v.) 5 Gray, 390, 62 Doane v. Badger, 12 Mass. 69, 105 - (Southampton v.) 8 Pick. 380, 48, 84 - v. Eldridge, 16 Gray, 10 Easton (Keith v.) 2 Allen, 552, 120 - (Macomber v.) 2 Allen, 541, 5, 34 (Randolph v.) 23 Pick. 242, 56 Dodds v. Henry, 9 Mass. 262, 33 ( v-v.) 4 Cush. 557, 49 Doggett v. Dedham, 2 Mass. 564, 51 East Sudbury v. Sudbury, 12 Pick. 1, 49, 55, 59 -- (Ingraham v.) 5 Pick. 451, 94 - ( -- - - v.) 15 Mass. 260, 46 Doherty v. Waltham, 4 Gray, 596, 117 v. Waltham, 13 Mass. 460, 49 Dolan (Lovejoy v.) 10 Cush. 495, 12 Eaton (Caldwell v.) 5 Mass. 403, 88 Donaldson v. Boston, 16 Gray, 126 -- (Deer Isle v.) 12 Mass. 327, 53 Donelson v. Colerain,4 Met. 430, 4 v. Middlesex, 7 Gray, 109, 99 Dorchester (Canton v.) 8 Cush. 525, 42 - (Worcester v.) 13 Mass. 371, 65 - (Collins v.) 6 Cush. 396, 115, 124, 125 Edgartown (Marshpee v.).23 Pick. 156, 60 -- (Vinal v.) 7 Gray, 421, 117 v. Tisbilry,.10 Cush. 408, 41, 42, 60 Dorr v. Boston, 6 Gray, 131, 79, 92 Edgecumbe (Freeport v.) 1 Mass. 459, 60 Dover v. Brighton, 2 Gray, 482, 43 Egremont (Joyner v.) 3 Gush. 567, 84, 92 Dow (Commonwealth v.) 10 Met. 382, 17 Ela v. Smith, 5 Gray, 121, 71 --- v. Sudbury, 5 Met. 73, 92 Elder v. Bemis, 2 Met. 599, 115 Downer v. Boston, 7 Cush. 277, 75 Eldridge (Doane v.) 16 Gray, 10 Downey (Libby v.) 5 Allen, 300, 64 Ellis v. Bristol, 2 Gray, 370, 19 Dracut (Commonwealth v.) 8 Gray, 455, 58, 63 _- (Colburn v.) 7 Mass. 89, 86 Drake (Hays v.) 6 Gray, 387, 94 Elwell (Lexington, &c. Railroad v.) 8 Alien, 371, 10 -~v. Lowell, 13 Met. 292, 119 -~- (Northampton v.) 4 Gray 81, 1 TABLE OF CASES. 145 PAGE. PAGE. Embden v. Augusta, 12 Mass. 307, 58 Folger v. Worth, 19 Pick. 108, 105 Emerson (Adams v.) 6 Pick. 57, 131 Folling (Barnicoat v.) 3 Gray, 134, 11 - v. Newbury, 13 Pick. 377, 15, 32 Foote (Griggs v.) 4 Allen, 195, 102 - v. Wiley, 7 Pick. 68, 105 Foster v. Boston, 22 Pick. 33, 101,112 Endicott, Petitioner, 24 Pick. 339, 107 - (Hayden v.) 13 Pick. 492, 88 Enfield (Richards v.) 13 Gray, 344, 118 - - (Henshaw v.) 9 Pick. 312, 19 Erskine v. Boston, 14 Gray, 216, 108 - v. Worcester, 16 Pick. 71, 62 Essex (Brown v.) 12 Met. 208, 108, 135 Fowler v. Danvers, 8 Allen, 80, 7,9 - (Danvers v.) 2 Met. 185, 97 - v. Middlesex, 6 Allen, 92, 114, 115 - (Gloucester v.) 3 Met. 375, 110 Fox v. Sackett, 10 Alien, 535, 122 - (Mlarblehead v.) 5 Gray, 451, 103 Framingham (Wheeler v.) 12 Cush. 287, 125 - (Newburyport v.) 12 Miet. 211, 85, 93 Frankfort (Haliburton v.) 14 l3ass. 214, 2, 7 - (Peabody v.) 10 Gray, 97,. 81 Franklin v. Dedham, 18 Pick. 544, 39 - (South Danvers v.) 1 Allen, 25, 63 I (Hallock v.) 2 Met. 558, 106 - (Vermont & Mass. Railroad v.) F. 10 Cush. 12, 67 Fahay (Bishop v.) 15 Gray, 17 - (Westborough v.) 15 Mass. 254, 46 Fahey (Commonwealth v.) 5 Cush. 408, 27 Freeland v. Hastings, 10 Alien, 570; 7, 9, 14, 86 Fairhaven (Lawrence v.) 5 Gray, 110, 2,137 Freeman v. Boston, 5 Met. 56, 70 Fales v. Dearborn, 1 Pick. 345, 12 - v. Kenney, 15 Piik. 44, 10, 91 Fallon v. Boston, 3 Allen, 38, 121 Freeport (Bath v.) 5 Mass. 325, 54 Fall RIiver (Chace v.) 2 Allen, 533, 115 - v. Edgecumbe, 1 Mass. 459, 60 Farnsworth (Adams v.) 16 Gray, 3, 87 Freetown (Carnoe v.) 9 Gray, 357, 82 Farnum v. Buffum, 4 Cush. 260, 89 -- (Dighton v.) 4 Mass. 539, 41 Farr v. Flood, 11 Cush. 24, 50 -- (Plymouth v.) 1 Pick. 197, 41 Farrar (Belcher v.) 8 Allen, 325, 27 -- v. Taunton, 16 Mass. 52, 41 (Winthrop v.) 11 Allen, 28 French (Lowell v.) 6 Cush. 223, 135 Farren (Commonwealth v.) 9 Allen, 489, 32. v. Quincy, 3 Allen, 9, 65 Farwell v. Cambridge, 11 Gray, 413, 112 Frost v. Belmont, 6 Allen, 152, 8, 9 Faxon (Stetson v.) 19 Pick. 147, 105 Frothingham (Adams v.) 3 Mass. 352, 65 Fay, Petitioner, 15 Pick. 243, 22 Fullam v. West Brookfield, 9 Allen, 1, 14 Fellows v. Duncan, 13 Met. 332,. 5 Fuller v. Groton, 11 Gray, 340, 8 Fernaid v. Boston, 12 Cush. 574, 102 -- v. Melrose, 1 Allen, 166, 9 Ferry (Palner v.) 6 Gray, 420, 16, 53 -- v. Plymonth, 15 Pick. 81, 108 Field v. Boston, 10 Cush. 65, 80 G - (Coffin v.) 7 Cush. 355, 24, 25 -- v. Jacobs, 12 Met. 118, 24 Gahagan v. Boston & Lowell Railroad, 1 Fields (Folger v.) 12 Cush. 93, 25. Allen, 187, 129, 133 First Church in Boston v..Boston,. Gammons (Commonwealth v.) 23 Pick. 201, 12 14 Gray, 214, 113. Gardiner v. Boston & Worcester Railroad, Fish (Sandwich v.) 2 Gray,.298, 9 9 Cush. 1, 67 Fisher (Commonwealth v.) 6 Met. 433,, 130 Garrigan v. Berry, 12 Allen, 12 Fisk v. Chester, 8 Gray, 506,. 18 Gaskill v. Dudley, 6 Met. 540, 1 Fiske v. Lincoln, 19 Pick. 473,, 38, 52 Gates v Neal, 23 Pick. 308, 21 - (Lyman v.) 17 Pick. 231, 18, 83 - (Srith v.) 21 Pick. 55, 24 - v. Needliam, 11 Mass. 452, 4 Gay (Commonwealth v.) 5 Pick. 44, 35 Fitchburg (Baldwin v.) 8 Pick. 494, 77,,81 Gee ( — v.) 6 Cush. 174, 5 - (Dickensonv.) 13 Gray, 546, 110, 111, 113 George v. Mendon, 6 Met. 497, 84, 85 - (Leicester v.) 7 Allen, 90, 44 Georgetown (Perley v.) 7 Gray, 464, 1 - v. Winchendon, 4 Cush. 190, 18,48, 83 Gerry v. Stoneham, 1 Allen, 39,. 7, 85, 93 Fitz v. Boston, 4 Cush. 365, 124 Gibbons v. East Granville, 4 Allen, 508, 73 Flagg v. Millbury, 4'Cush. 243, 116, 117 Gibbs (Blandfordv.) 2 Cush.:9, 20 - v. Worcester, 8 Cush. 69, 110, 114 -- v. IIampdcen, 19 Pick. 298, 93 v. -, 13 Gray, 601, 2, 75 -- (Weston v.) 23 Pick. 205, 3 Flanders v. Cross, 10 Cush. 514, 9, 85,90 Gibney (Commonwealth v.) 2 Allen, 152, 71 Fleming (Wendell v.) 8 Gray, 613, 9 Gillett v. Western Railroad, 8 Allen, 550, 127 Fletcher v. Lowell, 15 Gray, 33 Gilmore v. Holt, 4 Pick. 258, 23, 34 Flood (Farr v.) 11 Cush. 24, 50 Gloucester v. Essex, 3 Met. 375, 110 Folger v. Fields, 12 Gush. 93, 25 - v. Gloucester, 19 Pick. 542, 81 - v. Hinckley, 5 Cush. 263, 23 Glover (Bassit v.) 1 Dane Ab. 137, 23 146 TABLE OF CASES. PAGE. PAGE. Glover v. Boston, 14 Gray, 282, 100 Hadleyv. Peabody, 13 Gray, 200, 5 - (Capen v.) 4 Mass. 305, 80 -- v. Middlesex, 11 Cush. 394, 109 Goddard, Petitioner, 16 Pick. 504, 35, 36, 64, 137 Hadsell v. Hancock, 3 Gray, 526, 4, 32 - v. Boston, 20 Pick. 407, 108 Haliburton v. Frankfort, 14 Mass. 214, 2, 7 -- v. Worcester, 9 Gray, 88, 101 Halifax (Pope v.) 12 Cush. 410, 8 Goffv. Rehoboth, 12 Met. 26, 33 Hall v. Hall, 3 Alien, 5, 88 Goldthwait v. East Bridgewater, 5 Gray, 61, 124 - v. Kent, 11 Gray, 467, 64 Goodell Manuf. Co. v. Trask, 11 Pick, 514, 78 - v. Lowell, 10 Cush. 200, 124 Goodhue v. Dix, 2 Gray, 181, 12 v. Middlesex, 10 Allen, 100, 80, 86 Goodrich v. Lunenburg, 9 Gray, 38, 85 Hallock v. Franklin, 2 Met. 558, 106 Goodwin (Crowell v.) 3 Allen, 535, 90 Hallowell v. Harwich, 14 Mass. 186, 54, 59 -- v. Marblehead, 1 Allen, 37, 106 - ( -- v.) 14 Mass. 184, 54 -- (Tracy v.) 5 Allen, 409, 10 Hamilton v. Ipswich, 10 Mass. 506, 39 Gore (Harvard College v.) 5 Pick. 369, 19 - (Salem v.) 4 Mass. 676, 45 Gorham (Buckfield v.) 6 Mass. 445, 44 (Woodbury v.) 6 Pick. 101, 7 -- (Westbrook v.) 15 Mass. 160, 43 Hampden (Adams v.) 13 Gray, 439, 28 Goshen (Parsons v.) 11 Pick. 396, 8, 15 - ( - v.) 16 Gray, 28 -- v. Richmond, 4 Alien, 458, 40, 57 -- (Chicopee v.) 16 Gray, 86 Goulding (Wheeler v.) 13 Gray, 539, 64 - (Commonwealth v.) 2 Pick. 414, 28 Gowdy (Levy v.) 2 Allen, 320, 64 - (Dwight v.) 11 Cush. 201, 112 Gowen (Commonwealth v.) 7 Mass. 378, 130 -- (Gibbs v.) 19 Pick. 298, 93 Granby v. Amherst, 7 Mass. 1, 18, 39 - (Norwich v.) 4 Gray, 172, 6 - - (Damon v.) 2 Pick. 345, 15, 33, 65 - (Springfield v.) 10 Pick. 67, 104 Granger (Rising v.) 1 Mass. 47, 88 - (Taylor v.) 18 Pick. 309, 98 Granite Bridge (Rowe v.) 21 Pick. 344, 131 - (Wilbraham v.) 11 Pick. 322, 97 Granville (Cooley v.) 10 Cush. 56, 8 Hampshire (Norwich v.) 13 Pick. 60, 137 -- (West Springfield v.) 4 Mass. 486, 44 Hancock v. Boston, 1 Met. 122, 98 Graves (Barnard v.) 13 Met. 85, 89 - (Hadsell v.) 3 Gray, 526, 4, 32 Gray v. Boston, 15 Pick. 376, 78 - v. Hazzard, 12 Cush. 112, 9 -- v. Kettell, 12 Mass. 160, So Hannum v. Belchertown, 19 Pick. 311, 105, 132 - (Walpole v.) 11 Allen, 4 Hanover (Scituate v.) 7 Pick. 140, 40 Great Barrington v. Berkshire, 16 Pick. 572 78 - ( - v.) 16 Pick. 222, 42 (Clark v.) 11 Pick. 260, 5, 72 - (Simmons v,) 23 Pick. 188, 8 -- v. Lancaster, 14 Mass. 253, 45 - (South Scituate v.) 9 Gray, 420, 2 v. Tyringham, 18 Pick. 264, 41 - v. Turner, 14 Mass. 227, 53 Green v. Chelsea, 24 Pick. 71, 66 Hanson (Hawes v.) 9 Allen, 134, 53 -- (Day v.) 4 Cush. 433, 11, 33, 37, 131 - v. Pembroke, 16 Pick. 197, 46 Greene (Holmes v.) 7 Gray, 299, 18 Hapgood (Jennison v.) 10 Pick. 77, 18 -- v. Monmouth, 7 Mass. 467, 60 - (Lincoln v.) 11 Mass.:50, 20 Greenfield v. Cushman, 16 Mass. 393, 61 Harback v. Boston, 10 Cush. 295, 95 - (Deerfield v.) 1 Gray, 514, 57, 61, 62 Harding v. Medway, 10 Met. 465, 109,114 Greenleaf (Little v.) 7 Mass. 236, 80, 91 Hardwick (Dana v.) 10 Met. 208, 47 Greenwich (Barre v.) 1 Pick. 129, 32, 44 -. Raynham, 14 Mass. 363, 40 Gregory v. Adams, 14 Gray, 242, 118 - (Tyler v.) 6 Met. 470, 85, 87 Griffin v. Rising, 11 Met. 339, 21 Hardy v. Waltham, 3 Met. 163, 7 Griffith (Commonwealth v.) 2 Pick. 11, 75 - v. Yarmouth, 6 Allen, 277, 81 Griggs v. Foote, 4 Allen, 195, 102 Harman v. New Marl)orough, 9 Cush. 525, 81 Grinnell (Brightman v.) 9 Pick. 14, 23 llarpswell (Topshamr v.) 1 Mass. 518, 60 Groton v. Boxborough, 6 Mass. 50, 43 Harrington v. Berkshire, 22 Pick. 260, 131 -- (Boylston v.) 4 Gray, 282, 44 --- v. Harrington, 1 Met. 404, 99 -- (Fuller v.) 11 Gray, 340, 8 v — v. Worcester, 6 Allen, 576, 91 -- v. Lancaster, 16 Mass. 110, 69 Harris v. Marblehead, 10 Gray, 40, 73 -- v. Shirley, 7 Mass. 156, 44 - v. Whitcomb, 4 Gray, 433, 21 Groveland (Charlestown v.) 15 Gray, 38, tO Harrison v. Bricgeton, 16 Mass. 16, 6 ------ v. Medord, 1 Alien, 23, 38, 53, 57 Hartford & New Haven Railroad (Common- (North Andover v.) 1 Allen, 75, 47 wealth v.) 14 Gray, 379, 68 Grover v. Pembroke, 11 Alien, 4, 16 Hartwell v. Littleton, 13 Pick. 229, 34, 70, 73 Harvard v. Boxborough, 4 Met. 570, 47 - (Newbury v.) 6 Pick. 1, 39 Hadley (Lowell v.) 8 Met. 180, 99, 134 (Withington v.) 8 Cush. 66, 28, 69, 92 TABLE OF CASES. 147 PAGE. PAGE. Harvard College v. Gore, 5 Pick, 369, 19 Holmes v. Greene, 7 Gray, 299, 18 Harwich (Brewster v.) 4 Mass. 278, 6 Holt (Gilmore v.) 4 Pick, 258, 23, 34 - v. Hallowell, 14 Mass. 184, 51 - v. Sargent, 15 Gray, 105, 107 Harwich ( — v.) 14 Mass. 186, 54, 59 Holyoke v. Haskins, 5 Pick. 20, 18 Harwood v. Lowell, 4 Cush. 310, 118.(Tuttle v.) 6 Gray,447, 123 Itaskell v. Bristol, 9 Gray, 341, 98, 109 Hood v. Lynn, 1 Allen, 103, 7 - v. Moody, 9 Pick. 162, 64 Hopkins (Appleton v.) 5 Gray, 530, 5, 87, 88 Haskins (Holyoke v,) 5 Pick. 20, 18 Hopkinton (Claflin v.) 4 Gray, 502, 7 Hastings v. Aiken, 1 Gray, IG3, 11. Upton, 3 Met. 165, 42 -- (Commonwealth v.) 9 Met. 259, C65 - (Walpole v.) 4 Pick. 357, 338, 4.5 55, 59 -- (Freeland v.) 10 Alen, 570, 7, 9, 14, 86 Horton v. Ipswich, 12 Cush. 488, 116, 121, 124 ~ (Hinckley v.) 2 Pick. 162, 99, 103 Houghton v. Davenport, 23 Pick. 235, 87 Hatfield (Sikes v.) 13 Gray, 347, 116 Hovey (Mill Dam Foundery v.) 21 Pick 417 7 _- (Winchendon v.) 4 Mass. 123, 41 Howard v. Commonwealth, 13 Mass. 221, 64 Haven v. Lowell, 5 Met. 35, 15 v. North Bridgewater, 16 Pick. 189, 115, 120 Haverhill (Commonwealth v.) 7 Allen, 523, 103, 134 v. Proctor, 7 Gray, 128, 8 87, 90.(Noyes a.) 11 Cush. 338, 00, 92 Howe v. Boston, 7 Cush. 273, 89, 91; —~1a es v. ) Hanson 33, 90 Ale' 1 ~ — (Pickard v.) 12 Met. 198, 23, 24 Hawes v. Hanson, 9 Alien, 134, 53 Howes (Commonwealth v.) 15 Pick. 231, 64 Hawkins v. Berkshire, 2 Allen, 254, 107, 109, 113 Howland (Cheshire.) 13 Gray, 321, 10,87, 9 Hay ( Stevens v.) 6 Cush. 229, 10 Hoxey (Commonwealth v.) 16 Mass. 385, 17 ------ (Sweetset v.) 2 Gray, 49, 10 - (Sweentser.) 2 Gray, 49, G10, Hubbard (Butler v.) 5 Pick. 250, 6 Hayden v. Attleborough, 7 Gray, Huckins v. Boston, 4 Cush. 513, 80 338, 104, 116, 118, 120, 125 Humphrey v. Kingman, 5 Met. 162, 20; 21 ~ — v. Foster, 13 Pick. 492, 88 Hunting (Henshaw v.) 1 Gray, 203, 100, 103, 132 IHaynes (Calder v.) 7 Alien, 387, 10 Huse v. Lowell, 10 Allen, 149, 33, 74 -- v. Wells, 6 Pick. 462, 37, 53 Hutchings v. Thompson, 10 Cush. 238, 50 Hays v. Drake, 6 Gray, 387, 94 Hutchinson v. Methuen, I Allen, 33, -126 Hayward v. North Bridgewater, 5 Gray, 65, 110 (South Reading v.) 10 Allen, 68, 51 Hazzard (Hancock v.) 12 Cush. 112, 9 Hyde v. Middlesex, 2 Gray, 267, 112 Healy v. Root, 11 Pick. 389, 64 - (Stackpole v.) 16 Mass. 3:3, 131 I. Heard (Simonds v.) 23 Pick. 120, 14 Heath (Bradley v.) 12 Pick. 163, 33 Ide (Lothrop v.) 13 Gray, 93, 88, 94 Heland v. Lowell, 3 Allen, 407, 119 Ingalls v. Bills, 9 Met. 1, 123 Hemphill v. Boston, 8 Cush. 195, 103, 104, 117 Inglee v. Bosworth, 5 Pick. 498, 84 Henry (Dodds v.) 9 Mass. 262, 33 Ingraham v. Doggett, 5 Pick. 451, 91 Henshaw v. Foster, 9 Pick. 312, 19 Ipswich (Hamilton v.) 10 Mass. 506, 39 v. Hunting, 1 Gray, 203, 100, 103, 132 - (Horton v.) 12 Cush. 488, 116, 121, 124 Higgins (Commonwealth v.) 4 Gray, 34, 65 - (Salem v.) 10 Cush. 517, 38, 47 - (Smith v.) 16 Gray, 34 - v. Topsfield, 5 Met. 350, 42 Higginson v. Nahant, 11 Allen, 98, 99 Ireland v. Newburyport, 8 Allen, 73, 37, 53 Hildreth v. Lowell, 11 Gray, 345, 1, 35, 75, 76 Hill v. Davis, 4 Mass. 140, 63 J. Hinckley (Folger v.) 5 Cush. 263, 23 Jacobs (Field v.) 12 Met. 118, 24 - v. Hastings, 2 Pick. 162, 99, 103 James (Commonwealth v.) 1 Pick. 375, 13 Hingham (Braintree v.) 17 Mass. 432, 60 Jaquith v. Richardson, 8 et. 213, 12 - v. South Scituate, 7 Gray, 229, 57 Jenks v. Wilbraham, 11 Gray, 142, 123 Hinsdale (Dalton v.) 6 Mass. 501, 50, 53, 58 Jcnnings (Converse v.) 13 Gray, 77, 90 Hiram (Paris v.) 12 Mass. 262, 38, 44, 54, 58 v-. Tisbury, 5 Gray, 73, 105 Hixon v. Lowell, 13 Gray, 59, 120 Jeunison v. Hapgood, 10 Pick. 77, 18 Hobbs v. -, 19 Pick. 405, 103 -_ v. Roxbury, 9 Gray, 32, 3, (2 Holbrook v. McBride, 4 Gray, 215, 133 v-. West Springfield, 13 Gray, 544, 63 - (Milford v.) 9 Allen, 17, 129 Jewell v. Abington, 2 Alien, 592, 74 Holcomb v. Moore, 4 Allen, 529, 98 Jewett (McAueany v.) 10 Alien, 151, 17.Holden v. Berkshire, 7 Met. 561, 106 Johnson (Ealmes v.) 4 Allen, 382, 90 -- (Chenery v.) 16 Gray, 17 - v. Mills, 10 Cush. 503, 10 Holland (Sturbridge v.) 11 Pick. 459, 38, 55 (Putnam v.) 10 Mass. 488, 20 Hollenbeck v. Rowley, 8 Alien, 473, 132, 133 - v. Wyman, 9 Gray, 186, 106 Holman v. Townsend, 13 Met. 297, 116, 123 Jones v, Andover, 6 Pick. 59, 116 148 TABLE OF CASES. PAGE. PAGE. Jones v. Andover, 9 Pick. 146, 99 Lawrence (Sanderson v.) 2 Gray, 178, 24 - v. —, 10 Allen, 18, 118, 127 Learned (Medford v.) 16 Mass. 215, 53 - v. Commonwealth, 15 Gray, 17 Lee v. Boston, 2 Gray, 484, 82 -- v. Lancaster, 4 Pick. 149, 115 - v. Lenox, 16 Gray, 49 -- (Parker v.) 1 Alien, 270, 23 v. Templeton, 6 Gray, 579, 80, 92, 93 -- v. Percival, 5 Pick. 487, 105 v. -, 13 Gray, 476, 92 -- v. Scituate, 11 Allen, 16 - (Waldron v.) 5 Pick. 323, 86 -— v. Waltham, 4 Cush. 299, 117 Leicester v. Fitchburg, 7 Alien, 90, 41 Josselyn (Pierce v.) 17 Pick. 415, 25 - (Mower v.) 9 Mass. 247, 116 Joyner v. Egremont, 3 Cush. 567, 84, 92 - v. Rehoboth, 4 Mass. 180, 60 Lenox (Lee v.) 16 Gray, 49 ][K."- - (Osborn v.) 2 Allen, 207, 17 Kean v. Stetson, 5 Pick. 492, 97, 102 Leominster (Belfast v.) 1 Pick. 123, 55 Keith v. Easton, 2 Allen, 552, 120 - (Davis v.) 1 Allen, 182, 117, 133 - (Worcester v.) 5 Allen, 17, 109 Leonard v. New Bedford, 16 Gray, 81 Kellogg v. Northampton, 4 Gray, 65, 120, 124 - (Norton v.) 12 Pick. 152, 77 v. —, 8 Gray, 504, 125 Leverett v. Deerfield, 6 Allen, 431, 42 Kempton (Stetson v.) 1:3 Mass. 272, 7, 84 Levy v. Gowdy, 2 Allen, 320, 64 Kenney (Freeman v.) 15 Pick. 44, 10, 94 Lexington v. Burlington, 19 Pick. 426, 45 Kent (Hall v.) 11 Gray, 467, 64 -- (Cambridge v.) 1 Pick. 506, 41 Kettell (Gray v.) 12 Mass. 160, 80 - (Coggswell v.) 4 Cush. 307, 120 Keyes v. Westford, 17 Pick. 273, 14 v. Mulliken, 7 Gray, 280, 25, 35 Kidder v. Dunstable, 7 Gray, 101, 122 (Robbins v.) 8 Cush. 292, 135 — v. —, 11 Gray, 342, 12, 123, 125 - (West Cambridge v.) 2 Pick. 536, 55 Kilburn v. Bennett, 3 Met. 199, 87 Lexington, &c. Railroad v. Elwell, 8 Allen 371, 10 Kimball v. Boston, 1 Allen, 417, 2, 118 Leyden (Worden v.) 10 Pick. 24, 51 King (Commonwealth v.) 13 Met. 115, 130 Libby v. Burnham, 15 Mass. 144, 84 -- v. Whitcomb, 1 Met. 328, 89 - v. Downey, 5 Alen, 300, 64 Kingman (Cobb v.) 15 Mass. 197, 5 Light Boat (Briggs v.) 7 Alien, 287, 37 - (Humphrey v.) 5 Met. 162, 20, 21 Lincoln (Fiske v.) 19 Pick. 473, 38, 52 --- v. North Bridgewater, 2 Cush. 426, 3 - v. Hapgood, 11 Mass. 350, 20 - v. Plymouth, 6 Cush. 306, 135: v. Worcester, 8 Cush. 55, 91, 93 Kingsbury v. Quincy, 12 Met. 99, 72 Lindsey (Dean v.) 16 Gray, 23 Kirby v. Boylston Market Association, Little v. Cambridge, 9 Cush. 298, 80 14 Gray, 249, 119, 128, 129 - v. Greenleaf, 7 Mass. 236, 80, 91 Kirkland v. Whately, 4 Allen, 462, 83 Littleton (Hartwell v.) 13 Pick. 229, 34, 70, 73 Kittredge v. Newbury, 14 Mass. 448, 51 Locks & Canals v. Lowell, 7 Gray, 223, 75 Knowles v. Boston, 12 Gray, 339, 74 (Riddle v.) 7 Mass. 187, 1 Kupfer v. Augusta, 13 Mass. 185, 15 Loker v. Brookline, 13 Pick. 343, 115 - v. Damon, 17 Pick. 284, 131 L. Lombard v. Oliver, 3 Allen, 1, 21 La Croix v. Medway, 12 Met. 123, 136 v., 7 Allen, 155, 21 Lakeville (Dartmouth v.) 7 Allen, 284, 58 Lorin v. Boston, 7 Met. 409, 71 Lamphere (Nye v.) 2 Gray, 295, 64., 12 Gray, 209, 106, 108 Lancaster (Great Barrington v.) 14 Mass. 253, 45 Lothrop v. Ide, 13 Gray, 93, 88, 94 -- (Groton v.) 16 Mass. 110, 59 (O'Lid v.) 21 Pick. 292, 132 - (Jones v.) 4 Pick. 149, 115 Lovejoy v. Dolan, 10 Cush. 495, 12 _- (Shlirlcy v.) 6 Allen, 31, 40 Low (Commonwealth v.) 3 Pick. 408, 130 v. Sutton, 16 Mass. 112, 46 Lowell (Alger v.) 3 Allen, 402, 115, 120, 123, 126 Lane v. Crombie, 12 Pick. 177, 121 (ay.) 8 Allen, 127, 2, 75 Lanesborough v. Berkshire, 22 Pick. 278, 110, 114. B & L -- v. New Ashford, 5 Pick. 190, 59 23 Pick. 24, 128 -- v. estfield, 16 Mass. 74, 41 (Brady.) 3 Cusl. 121, 117 Lawler v. Northampton Gas Light Co. - (Brovn v.) 8 Met. 172, 109 2 Allen, 307, 129 - -(Buttrick v.) 1 Alien, 172, 1 Lawrence (Boston & Maine Railroad v.) (Caverly v.) 1 AllenL, 235 2 Allen, 107, 134 - (Central Bridge v.) 4 Gray, 474, 103 (Durant v.) 1 Allen, 125, 68,136 (.) 15 Gray, 98, 103, 113 v. Fairhaven, 5 Gray, 110, 2, 137 - (Chapman v.) 4 ush. 378, 15 - (Middlesex Manuf. Co. v.) 1 Allen, 339, 10 (Chase.) 7 Gray, 33, 4, 32 TABLE OF CASES. 149 PAGE. PAGE. Lowell (Clark v.) 1 Allen, 180, 126 Macomber v. Doane, 5 Allen, 541, 5, 34 - (Currier v.) 16 Pick. 170, 118 Malden (Chelsea v.) 4 Mass. 131, 39 ------ (Drake v.) 13 Met. 292, 119 Malden & Melrose Railroad v. Charlestown, - (Durgin v.) 3 Allen, 398, 104, 119 8 Allen, 245, 2, 118 - (Fletcher v.) 15 Gray, 33 Mansfield (Attleborough v.) 15 Pick. 19, 55 v. French, 6 Cush. 223, 135 - (Codding v.) 7 Gray, 272, 70 - v. Hadley, 8 Met. 180, 99, 134 - (Norton v.) 16 Mass. 48, 4', 55 (Iall v.) 10 Cush. 260, 124 - v. Pembroke, 5 Pick. 449, 43 (Harwood v.) 4 Cush. 310, 118 v. Stoneham, 15 Gray, 3 - (aven v.) 5 Met. 35, 15 Marble v. Worcester, 4 Gray, 395, 123 (Heland v.) 3 Allen, 407, 119 Marblehead v. Essex, 5 Gray, 451, 103 - (Hildreth v.) 11 Gray, 345, 1, 35, 75, 76 - (Goodwin v. ) 1 Allen, 37, 106 - (Hixon v.) 13 Gray, 59, 120 -- (Harris v.) 10 Gray, 40, 73 (Hobbs v.) 19 Pick. 405, 103 - (Walpole v.) 8 Cush. 528, 41 (Huse v.) 10 Allen, 149, 33, 74 Marlborough v. Rutland, 11 Mass. 483, 54 - (Locks & Canals v.) 7 Gray, 223, 75 -- (Southborough v.) 24 Pick. 166, 43 - (Meeting-house in Lowell v.) 1 Met. 538, 79 Marsh (Callender v.) 1 Pick. 418, 115 - v. Middlesex, 3 Allen, 546, 93 IMarshfield (Thomas v.) 10 Pick. 364, 65 - v., 3 Allen, 550, 94 Marshpee v. Edgartown, 23 Pick. 156, 60 v, -—, 6 Allen, 131, 78, 94, 136 Mayhew v. Norton, 17 Pick. 357, 131 v. Morse, 1 Met. 473, I MIead v. Boston, 3 Cush. 401, 70 - ( v.) 7 Met. 152, 34 ~ v. Boxborough, 11 Cush. 362, 18, 83 - v. Oliver, 8 Allen, 247, 14, 77, 86 Mears v. Boston & N. Y. Central Railroad, (O'Neill v.) 6 Allen, 110, 126 5 Gray, 371, 2 -- (Parker v.) 11 Gray, 353, 4, 132 Medford (Groveland v.) 1 Allen, 23, 38, 53, 57 - (Payne v.) 10 Allen, 147, 127 - v. Learned, 16 Mass. 215, 53 -- (Raymond v.) 6 Cush. 524, 2,115, 119, 121, 125 Mcdway (Harding v.) 10 Met. 4G5, 109, 114 -- (Rowell v.) 7 Gray, 100, 122 - (La Croix v.) 12 Met. 123, 136 -- (Shea v.) 8 Allen, 136 127 v. Milford, 21 Pick. 349, 56 - v. Short, 4 Cush. 275, 128 Meeting-house in Lowell v. Lowell, 1 Met. 538, 79 v. Simpson, 10 Allen, 88, 33, 35 Melcher v. Boston, 9 Met. 73, 79 - (Smith v.) 6 Allen, 39, 122 Melody v. Reab, 4 Mass. 471, 25, 64 - v. Spaulding, 4 Cush. 277, 128 Melrose (Butterfield v.) 6 Allen, 187, 25 ~ (~ v.) 23 Pick. 71, 7 (Fuller v.) 1 Allen, 166, 9 - v. Wentworth, 6 Cush. 221, 37, 134 - (Lynde v.) 10 Allen, 49, 2, 49 - v. Wheelock, 11 Cush. 391, 135 Mendon (George v.) 6 Met. 497, 84, 85 (Winn v.) 1 Allen, 177, 117, 121, 126 - v. Worcester, 13 Pick. 235, 110 - v. Wyman, 12 Gush. 273, 135' Merriam (Nourse v.) 8 Cush. 11, 73 Lowell Gas Light Co. (Commonwealth v.) Merrick v. Work, 10 Allen, 544, 25 12 Allen, 80 Merrill v. Berkshire, 11 Pick. 269, 107,108,110,111,114 Lowell Savings Bank v. Winchester, v. Wilbraham, 11 Gray, 154, 118 8 Allen, 109, 16, 94 Merrimack Bank (Chase v.) 19 Pick. 564, 1 Lubke (Brackett v.) 4 Allen, 138, 130 Merritt (Cheever v.) 5 Allen, 563, 87, 91 Lund v. Tyngsboro, 11 Cush. 563, 123 Metcalf (Allen v.) 17 Pick. 208, 34 Lunenburg (Ashby v.) 8 Pick. 563, 59 - (Taft v.) 11 Pick. 456, 34, 94 (Goodrich v.) 9 Gray, 38, 85 Methuen (Hutchinson v.) I Allen, 33, 126 (Shirley v.) 11 Mass. 379, 61 Middleborough (Attleborough v.) 10 Pick. 378, 48 (Williams v.) 21 Pick. 75, 84, 85 v. Clark, 2 Pick. 28, 50, 61 Lyman v. Fiske, 17 Pick. 231, 18, 83 (New Bedford v.) 16 Gray, 57 Lynde v. Melrose, 10 Allen, 49, 2, 91 (Pelilam v.) 4 Gray, 57, 43 Lynn (Hood v.) 1 Allen, 103, 7 v. Plympton, 19 Pick. 489, 39 v. Aewburyport, 5 Allen, 545, 59 - v. Rochester, 12 Mass. 363, 40, 50 Lynnfield (Bancroft v.) 18 Pick. 566, 3, 8, 32 - v. Taunton, 2 Cush. 406, 128 -- (~ v.) 12 Met,35, 48, 49 AJ. Middlesex (Boston & Maine Railroad v.) 1 Allen, 324, 113, 133 McAneany v. Jewett, 10 Allen, 151, 17 (Cmbridge v.)6 Allen, 134, 7 McBride (Holbrook v.) 4 Gray, 215, 133 (Charlestown v.) 3 Met. 202, 102 McCarron (Commonwealth v.) 2 Allen, 157, 31 ( v.) 1 Allen, 93 M'Culloch (Arundel v.) 10 Mass. 70, 102, 131 (Commonwealth v.) 9 Mass. 388, 111 150 TABLE OF CASES. PAGE. PAGO. Middlesex (Eaton v.) 7 Gray, 109, 99 Murray (Austin v.) 16 Pick. 121, 27, 36 - (Fowler v.) 6 Allen, 92, 114, 115 ( [adley v.) 11 Cush. 394, 109 (Htall v.) 10 Allen, 100, 80, 86 Nahant (Higginson v.) 11 Allen, 98,99 (IIyde v.) 2 Gray, 267, 112 (Simmons v.) 3 Allen, 316, 6 (Lowell v.) 3 Allen, 546, 93 Nantucket (Adams v.) 11 Allen, 84 - -( — v.) 3 Allen, 550, 94 - (Coffin v.) 5 Cush. 269, 25 v ( v.) 6 Allen, 131, 78, 94, 136 -- (Ruggles v.) 11 Cush. 433, 26 (Rice v.) 13 Pick. 225, 135 - (Vincent v.) 12 Cush. 103, 4, 9 (Wayland v.) 4 Giray, 500, 79, 96 Nashua & Lowell Railroad (Commonwealth v.) (Williams v.) 4 Met. 76, 29 2 Gray, 54, 68, 130 (Woburn v.) 7 Gray, 106, 112 Nason v. Whitney, 1 Pick. 140, 84 Middlesex Manuf. Co. v.-Lawrence, 1 Allen, 339, 10 Natick (Dedham v.) 16 Mass. 135, 41 Middlesex Railroad v. Charlestown, -- (Drury v.) 10 Allen, 169, 95 8 Alien, 330, 78 -- v. Morse, 8 Cush. 191, 72 Middleton (Topsfield v.) 8 Met. 564, 56 Neal (Gates v.) 23 Pick. 308, 21 Milford v. Bellingham, 16 Mass. 108, 42 _ (Webb v.) 5 Allen, 575, 95 (Day v.) 5 Allen, 98, 119, 123 Needham (Fiske v.) 11 Mass. 452, 4 v. Holbrook, 9 Allen, 17, 129 - v. Newton, 12 Mass. 452, 54, 60 (Medway v.) 21 Pick. 349, 56 Nelson v. Milford, 7 Pick. 18, 8, 92 - (Nelson v.) 7 Pick. 18, 8, 92 New AshIord (Lanesborough v.) 5 Pick. 190, 59 (Worcester v.) 18 Pick. 379, (2 New Bedford v. Bristol, 9 Gray, 346, 109, 136 Millbury v. Blackstone Canal Co. 8 Pick. 473, 131 -- v. Chace, 5 Gray, 28, 53 - (Flagg v.) 4 Cush. 243, 116, 117 _- (Leonard v.) 16 Gray, 81 - (Torrey v.) 21 Pick. 64, 7, 85, 92 v. Middleborough, 16 Gray, 57 Mill Dam Foundery v. Hovey, 21 Pick. 417, 75 -- (Packard v.) 9 Allen, 200, 125 Miller v. Post, 1 Allen, 434, 32 (Russell v.) 5 Gray, 31, 108, 109 - v. Somerset, 14 Mass. 396, 51 ___ v. Taunton, 9 Allen, 207, 37, 58 (Springfield v.) 12 Mass. 415, 65 New Braintree v. Boylston, 24 Pick. 164, 46 Mills (Johnson v.) 10 Cush. 503, 10 Newbury (Commonwealth v.) 2 Pick. 51, 103, 127 Mitchell v. Bridgewater, 10 Cush. 411, 108 -- (Emerson v.) 13 Pick. 377, 15, 32 v. Cornville, 12 Mass. 332, 51 v. Harvard, 6 Pick. 1, 39 - v. Tibbetts, 17 Pick. 298, 20 --- (Kittrcdge v.) 14 Mass. 448, 51 Moak (Vosburgh v.) 1 Cush. 453, 129 Newburyport (Cushing v.) 10 Met. 508, 8, 73 Monagle.v. Bristol, 8 Cush. 360, 109 v. Essex, 12 Met. 211, 85, 93 Monmouth (Greene v.) 7 Mass. 467, 60 - (Ireland v.) 8 Allen, 73, 37, 53 Monson v. Chester, 22 Pick. 385, 43 - (Lynn v.) 5 Allen, 545, 59 - v. Palmer, 8 Allen, 551, 41, 57 (Moody v.) 3 Met. 431, 34 v-. Williams, 6 Gray, 416, 53 - (Willard v.) 12 Pick. 227, 7, 33 Monterey v. Berkshire, 7 Cush. 394, 133 Newburyport Turnpike v. Eastern Railroad, Moody (Haskell v.) 9 Pick. 162, 64 23 Pick. 326, 66 - v. Newburyport, 3 Met. 431, 34 - v. Upton, 12 Mass. 575, 77, 81 Moore v. Boston, 8 Cush. 274, 95 New England Worsted Co. (Eames v.) - (~ — v.) 3 Allen, 126, 10 11 Met. 572, 27 (Holcomb v.) 4 Allen, 529, 98 New Gloucester (Brewer v.) 14 Mass. 216, 1 Morse v. Lowell, 7 Met. 152, 34 New Marlborough v. Berkshire, 9 Met. 423, 97 -- ( v.) 1 Met. 473, 1 -- (Harman v.) 9 Cush. 525, 81 -- (Natick v.) 8 Cush. 191, 72 New Salem, Petitioners, 6 Pick. 470, 98 -- v. Stocker, 1 Allen, 150, 104, 137 v. Wendell, 2 Pick. 341, 55 Moulton (Adams v.) 7 Pick. 286, 19 Newton (Boston Manuf. Co. v.) 22 Pick. 22, 78, 80 Mount Washington v. Clarksburgh, -- v. Braintree, 11 Mass. 382- 41 19 Pick. 294, 42, 49 _ - (NeedhamF v.) 12 Mass. 452, 54, 60 Mower v. Leicester, 9 Mass. 247, 116 - (Rand.) 6 Allen, 38, 114 Mowry (Uxbridge v.) 9 Allen, 94, 74 v. Randolph, 16 Mass. 426, 60 Mulliken (Lexington v.) 7 Gray, 280, 25, 35 Nichols (Commonwealth v.) 10 Alen, 199, 31 Mlunigle v. Boston, 3 Allen, 230, 107 v- v. Salem, 14 Gray, 490, 136 Munroe v. Brigham, 19 Pick. 368, 30 Nickerson v. Brackett, 10 Mass. 212, 26 Murdock (Briggs v.) 13 Pick. 305, 34, 70 Nightingale, Petitioner, 11 Pick. 168, 21 -- v. Warwick, 4 Gray, 180, 122 Niles v. Patch, 13 Gray, 254, 106 TABLE OF CASES. 151 PAGE. PAGE. Norfolk (Commonwealth v.) 5 Mass. 437, 110 Opinion of the Justices, 5 Met. 591, 20 (Porter v.) 5 Gray, 365, 85, 93 —, 10 Gray, 613, 70 - (White v.) 2 Cush. 361, 108 Orange v. Sudbury, 10 Pick, 22, 39, 58 Northampton (Commonwealth v.) - (Sutton v.) 6 Met. 484, 45 2 Mass. 116, 71, 72 Orleans v. Chatham, 2 Pick. 29, 42 - v. Elwell, 4 Gray, 81, 1 Osborn v. Danvers, 6 Pick. 98, 91 - (Kellog- v.) 4 Gray, 65, 120, 124 - v. Lenox, 2 Allen, 207, 17 -_ (- v.) S Gray, 504, 125 Otis v. Boston, 12 Cush. 44, 82 Northampton Bank (Smith v.) 4 Cush. 1, 81, 90 - (Day v.) 8 Allen, 477, 71 Northampton Gas Light Co. (Lawler v.) Otis Co. v. Ware, 8 Gray, 509, 93 2 Allen, 307, 129 Oxford (Shutesbury v.) 16 Mass. 102, 58 North Andover v. Groveland, 1 Allen, 75, 47 - (Ward v.) 8 Pick. 476, 55 Northbridge (Upton v.) 15 Mass. 237, 40 North Bridgewater (Abington v.) P. 23 Pick. 170, 17, 56 Packard v. New Bedford, 9 Allen, 200, 125 - v. East Bridgewater, 13 Pick. 303, 40,41 Page Danvers, 7 Met. 326, 31 (Hayward v.) 5 Gray, 65, 110 - (Hayward v.) 5 Gray, 65, 611P0 Paine v. Boston, 4 Allen, 168, 113 - (Howard v.) 16 Pick. 189, 115, 120 Palmer v. Andover, 2 Cush. 600, 117, 123 --- (Kingman v.) 2 Cush. 426, 3 ~ ^ - ngman v. Dana, 9 Met. 587, 57, 59 North Brookfield (Commonwealth v.) __ v. Ferry, 6 Gray, 420, 16, 53 8 Pick. 463, 127 - (Monson v.) 8 Allen, 551, 41, 57 Northfield (Reed v.) 13 Pick. 94, 105, 117, 121, 124 Pri. iram, 12 Mass. 262, 38, 44, 54, 58 - (Sawyer v.) 7 Cush. 490, 67, 117 Parker v. Adams, 12'Met. 415, 12 - v. Taunton, 4 Met. 433, 58, 60 -- - v. Baxter, 2 Gray, 185, 90 Norton v. Copeland, 2 Gray, 414, 72 v. Bostn, 1 Allen, 361, 96 v-. Leonard, 12 Pick. 1526, -7 v. Boston & Maine Railroad, 3 Cush. 107, 66 - v. Mansfield, 16 Mass. 48, 46,55 - - v. Jones, I Allen, 270, 23 (Mayhew v.) 17 Pick. 357, 131. Lowell, 11 Gray, 353, 4 132 - (Randolph v.) 16 Gray, 42 Parks v. Boston, 8 Pick. 218, 97,135 (Tisdale v.) 8 Met. 388, 120 v. -, 15 Pick. 198, 107,110,111 Norwich v. Hampden, 4 Gray, 172, 6 Parsons v. Goshen, 11 Pick. 396, 8, 15 -. Hampshire, 13 Pick. 60, 137Pettingell, Alen, 26 Nourse (Boutelle v.) 4 Mass. 431, 63 Patch (Niles.) 13 Gray, 256 v. MerriamCush.73 Patch (Niles v.) 13 Gray, 251, 106 -osv. Merriam, 8 Cush. 1133, 73 Patterson v. Boston, 20 Pick. 159, 111 Noyes v. Haveihill, 11 Cush. 338, 90, 92 - vA, -, 23 Pick. 425, 112 Nye v. Lamphere, 2 Gray, 295, 64 Pawtucket (Dunnel Manuf.Co. v.). 7 Gray, 277, 78, 92 Payne v. Lowell, 10 Allen, 147, 127 Oakham v. Rutland, 4 Cush. 172, 42 Payson v. Tufts, 13 Mass. 493, 77, 81 v. Sutton, 13 Met. 192, 49, 50, 57 Peabody v. Essex, 10 Gray, 97, 81 O'Connor (Commonwealth v.) 7 Allen, 584, 65 - (Hadley v.) 13 Gray, 200, 5 Odiorne v. Wade, 5 Pick. 421, 105 Pease v. Smith, 24 Pick. 122, 94 O'Donnell (Commonwealth v.) 1 Allen, 593, 31 Pedrick v. Bailey, 12 Gray, 161, 32, 36 Old Colony & Fall River Railroad (Common- Peirce v. Boston, 3 Met. 520, 5, 87 wealth v.) 14 Gray, 93, 68, 105, 130 Pelham (Aldrich v.) 1 Gray, 510, 125 -- v. Plymouth, 11 Gray, 512, 133 - v. Middleborough, 4 Gray, 57, 43 - v. -, 14 Gray, 155, 133 Pembroke (Curtis v.) 11 Allen, 4 O'Linda v. Lothrop, 21 Pick. 292, 132 (Grover v.) 11 Allen, 4,16 Oliver (Lombard v.) 3 Allen, 1, 21 - (Hanson v.) 16 Pick. 197, 46 ---- ( —-- v.) 7 Allen, 155, 21 - (Mansfield v.) 5 Pick. 449, 43 - (Lowell v.) 8 Allen, 247, 14, 77, 86 - v. Plymouth, 12 Cush. 351, 99 O'Neill v. Lowell, 6 Allen, 110, 126 Percival (Jones v.) 5 Pick. 487, 105 Opinion of the Justices, 7 Mass. 523, 19, 77 Perkins v. Weston, 3 Cush. 549, 74 -, 15 Mass. 537, 19 Perley v. Chandler, 6 Mass. 453, 102, 111, 131 ~, 3 Pick. 517, 19 - v. Georgetown, 7 Gray, 464, 1,11 Pick. 538, 20, 38 Perry v. Worcester, 6 Gray, 544, 2, 35, 23 Pick. 547, 19 Peters v. Westborough, 20 Pick. 506, 52 -, 1 Met. 572, 38 Petersham (Brooks v.) 16 Gray, 121, 125 -, 1 Met. 580, 20, 38, 71, 78 - v. Coleraine, 9 Allen, 91, 60 -, 5 Met. 587, 19, 20 (Commonwealth v.) 4 Pick. 119, 127 152 TABLE OF CASES. PAGE. R Petersham v. Dana, 12 Mass. 428, 41 P Pettingell (Parsons v.) 11 Allen, 26 Race (Campbell v.) 7 Cush. 408, 10 Pettingill v. Porter, 3 Alien, 349, 133 Rand v. Newton, 6 Allen,38, 114 Phillips v. Bowers, 7 Gray, 21, 132 Radall(Belcherton v.) 7 ush. 478, 7 Phillipsburg (Commonwealth v.) 10 Mass. 78, 30 ( i ---- (Bradford v.) 5 Pick. 495, 75, 86 Phillipston (White v.) 10 Met. 108, 115 Phipps's case, 2 Pick. 394, note, 38 4, 2 -- v. Braintree. 4 Mass. 315, 26 Phenix Bank (Commonwealth v.) asn, 23 Pic. 22, 26 11 Met. 135, 6, 87 Easto. n, 23 Pick. 242, 49 v. --, 4 Cush. 557, 49 Pickard v. Howe, 12 Met. 198, 23, 24ton.), 6 Pickering v. Shearer, 11 Gray, 153, 105.(Neton) 16 Mass. 42660 Pierce v. Benjamin, 14 Pick. 356, 88,89 Norton, Gray, 42 i- v. CBeambridge, 2 Cush. 611, 9 Raymond v. Lowell, 6Cush. 524, 2,115,119,121,125 ~ v. Josselyn, 17 Pick. 415, Raynham (Hardwick v.) 14 Mass. 363, 40 Pittv. Josselyn, 17 Picush. 415, v. Rounseville, 9 Pick. 44, 64 Pitts (Alexander v.) 7 Cush. 503, 90 Reab (Melody v.) 4 Mass. 471, 25, 64 Plumer v. Brown, 8 Met. 578, 116, 132 Readfield v. Dresden 12 Mass. 316, 54 Plymouth (Bates v.) 14 Gray, 163, 34, 37. esd, 2 s. 3, -- v. Freetown, 1 Pick. 197, 41 Reading v. Tewksbury, 2 Pick. 535, 48 - (Fuller v.) 15 Pick. 81, 108 Reed (Commonwealth v.) 1 Gray, 472, 31 -- (Kinman v.) 6 Cush. 306, 135 -, Deerfield, 8 Allen, 522, 122 - (Old Colony & Fall River Railroad v.) - v. Northfield, 13 Pick. 94, 105, 117, 121, 124 11 Gray, 512, 133 a v. Scituate, 5 Allen, 120, 3, 116 _- (-G rv.) 14 Gray, 155, 133 Rehoboth (Goffv.) 12 Met. 26, 33 (Pembroke v.) 12 Cush. 351, 99 ((Leicester v.) 4 Mass. 180, 60 (Sturtevant v.) 12 Met. 7, 108 (Seekonk v.) 8 Cush. 371, 61 ((Taunton v.) 15 Mass. 203, 40 - (Somerset a.) 6 Cush. 320, 42 - (Taylor v.) 8 Met. 462, 25 (Westborough.) 4 Gush. 185, 47 - (Williams v.) 11 Alien, 16 Reidell v. Congdon, 16 Pick. 44, 6 Plympton (Middleborough v.) 19 Pick. 489, 39 Revere v. Boston, 14 Gray, 218, 108 v. Woburn, 11 Gray, 415, 113 Rice (Commonwealth v.).9 Met. 253, 22 Pocasset Manuf. Co. (Cotton v.) 13 Met. 429, 75 —. Middlesex, 13 Pick. 225, 135 Pool a. Boston, 5 Cush. 219, 70 av. Worcester, 11 Gray, 283, note, 132 Pope (Christ Church v.) 8 Gray, 140, 20 Richards v. Dagget, 4 Mass. 539, 80 v. Halifax, 12 Cush. 410, 8 v. Enfield, 13 Gray, 344, 118 Porter (Bassett v.) 4 Cush. 487, 88, 94 Richardson (Jaquith v.) 8 Met. 213, 12.- (Commonwealth v.) 1 Gray,, 480, 17, Richmond (Goshen v.) 4 Allen, 458, 40, 57 _ a. Norfolkl, 5 Gray, 365, 85, 93 Riddle v. Locks & Canals, 7 Mass. 187, 1 - (Pettingill v.) 3 Allen, 349, 133 Rindge v. Coleraine, 11 Gray, 157, 125 Portland (Windham v.) 4 Mass. 384, 42, 44 Rising v. Granger, 1 Mass. 47, 88 Post (Miller v.) 1 Allen, 434, 32 (Griffin a.) 11 Met. 339, 21 Powers a. Ware, 2 Pick. 451, 6 Robbins v. Borman, 1 Pick. 122, 131 Pratt (Sale v.) 19 Pick. 191, 66 -- Lexington, 8 Cush. 292, 135 Presby (Commonwealth v.) 14 Gray, 65, 65. Townsend, 20 Pick. 345, 48 Preston v. Boston, 12 Pick. 7, 80, 91 -. Weston, 20 Pick. 112, 30,51 Princeton (Boylston v.) 13 Mass. 381, 41 Roberts v. Boston, 5 Cush. 108, 74 ____- (Watson v.) 4 Met. 599, 84, 93 Robertson (Commonwealth v.) 5 Cush. 438, 12 v a. West Boylston, 15 Mass. 257, 45, 50 Rochester (Bishop v.) 11 Allen, 16 - v. Worcester, 17 Pick. 154, 99 (Brig's v.) 16 Gray, 83 Proctor (Howard v.) 7 Gray, 128, 86, 87, 0 (Choate.) 13 Gray, 92, 50 Putnam (Green v.) 8 Cush. 21, 06 - ~- (Middleborough v.)12 Mass. 363, 40, 50 __- a. Johnson, 10 Mass. 488, 20 -- (Shelburne v.) 1 Pick. 470, 59 Root (Healy v.) 11 Pick. 389, 64 Rossire v. Boston, 4 Allen, 57, 21, 66 Rounseville (Raynham v.) 9 Pick. 44, 64 Rowe v. Granite Bridge, 21 Pick. 344, 131 Quincy v. Braintree, 5 Mass. 86, 68 Rowell v. Lowell, 7 Gray, 100, 122 __ (French v.) 3 Allen, 9, 65 Rowley (Hollenbeck v.) 8 Alien, 473, 132, 133 (Kingsbury v.) 12 Met. 99, 72 -- (Todd v.) 8 Allen, 51, 127 - (Wood v.) 11 Cush. 487, 133 Roxbury (Barber v.) 11 Allen, 118 TABLE OF CASES, 153 PAGE. PAGE. Roxbury v. Boston & Providence Railroad, Shaw v. Charlestown, 3 Allen, 538, 136 6 Cush, 424. 67 Shea v. Lowell, 8 Allen, 130, 127 - - v. —, 2 Gray, 460, 68 Shearer (Pickering v.) 11 Gray, 153, 105 -- (Commonwealth v.) 8 Mass. 457, 106 v. Shelburne, 10 CUsh. 3, 53, 63 — ( ( v.) 9 Gray, 451, 10, 11, 30 -- (Wilson v.) 9 Met. 504, 89 -- (Crawshaw v.) 7 Gray, 374, 71 Sheffield (Commonwealth v.) 11 Cush. 178, ~ — (Jennison v.) 9 Gray, 32, 3, 62 Shelburne (Amherst v.) 11 Gray, 107, 62 (Williams v.) 12 Gray, 21, 83 (- - v.) 13 Gray, 341, 3 40 Rug-gles (Commonwealth v.) 6 Allen, 588, 131 v. Rocliester, 1 Pick. 47'0, - v. Nantucket, 11 Cush. 433, 26 -- (Shearer v.) 10 Cush. 3, 53, 63 Rumford v. Wood, 13 Mass. 199, 75 Shepherd v. Chelsea, 4 Allen, 113, 122 Runnels (Commonwealth v.) 10 Mass. 520, 71 Sherman v. Braman, 13 Met. 407, 23 Russellsv. Coffin, 8 Pick. 142, 77 -- v. Charlestownv, 8 Cush. 160, 74 -- v. New Bedford, 5 Gray, 31, 108, 109 Shirley (Groton v.) 7 Mass. 156, 44 - (Tinker v.) 14 Pick. 279, 106, 116 v. Lancaster, 6 Allen, 31, 40 Rust v. Boston Mill Corp. 6 Pick. 158, 69 - v. Lunenburg, 11 Mass. 379, 61 Rutland (Big-elow v.) 4 Cush. 247, 121 V-. Watertown, 3 Mass. 322, 39 (3Marlborough v.) 11 Mass. 483, 54 Short (Lowell v.) 4 Cush. 275, 128 - (Oakham v.) 4 Cush. 172, 42 Shrewsbury v. Salem, 19 Pick. 389, 48 Ryan (Commonwealth v.) 5 Mass. 90, 31 Shute v. Barnes, 2 Allen, 598, 98 Shutesbury v. Oxford, 16 IMass. 102, 58 S. Sidney v. Augusta, 12 Mass. 316, 59 Sackett (Fox v.) 10 Alien, 535, 122 (Belgrade v.) 15 Mass. 523, 44 Sale v. Pratt, 19 Pick. 191, 66 Sikes v. Hatfield, 13 Gray, 347, 116 Salem v. Andover, 3 IMass. 436, 50, 54 Silsbee (Commonwealth v.) 9 Mass. 417, 20 (Batchelder v.) 4 Cush. 99, 74 Simmons (Boston v.) 9 Cush. 373, 102 v. Hamilton, 4 Mass. 676, 45 v. Hanover, 23 Pick. 188, 8 v. Ipswich, 10 Cush. 517, 38, 47 -. Nahant, 3 Allen, 316, 6 (Nichols v.) 14 Gray, 490, 136 Simonds v. Heard, 23 Pick. 120, 14 -- (Shrewsbury v.) 19 Pick. 389, 48 Simpson (Lowell v.) 10 Allen, 88, 33,35 (SparhawTk v.) 1 Allen, 30, 120 Skinner (Wild v.) 23 Pick. 251, 23, 24 (Stickney v.) 3 Allen, 374, 119 Slack (Commonwealth v.) 19 Pick. 304, 28 -(Wade v.) 7 Pick. 333, 29, 51 Slocomb (Smith v.) 11 Gray, 280, 132 Salem Iron Co. v. Danvers, 10 Mass. 514, 78, 80 Smith v. Boston, 7 Cush. 254, 107 Saltonstall v. Banker, 8 Gray, 195, 77 v. -, 1 Gray, 72, 68 Sanderson v. Lawrence, 2 Gray, 178, 24 v. Cheshire, 13 Gray, 318, 2 Sandwich v. Fish, 2 Gray, 298, 9 ~ v. Colerain, 9 Met. 492, 52 Sargent v. Bean, 7 Gray, 125, 85, 90 - (Commonwealth v.) 9 Mass. 107, 30 (Holt v.) 15 Gray, 105, 107 ~ - v. Dedham, 8 Cush. 522, 123 Savoy (Babbitt v.) 3 Cush. 530, 3 (Ela v.) 5 Gray, 121, 71 Sawin (Commonwealth v.) 2 Pick. 547, 97 - v. Gates, 21 Pick. 55, 24 Sawyer v. Northfield, 7 Cush. 490, 67, 117 - v. Hie-gins, 16 Gray, 34 (Stow v.) 3 Allen, 515, 53 -- v. Lowell, 0 Allen, 39, 122 Sayward (Alfred v.) 5 Mass. 244, 51, —. Northampton Bank, 4 Cush. 1, 81, 90 Schaffer (Boston v.) 9 Pick. 415, 1, 5 -- (Pease v.) 24 Pick. 122, 94 Schlessinger (Worcester v.) 16 Gray, 30 - v. Slocomb, 11 Gray, 280, 132 Scituate v. Hanover, 7 Pick. 140, 40 - v. Smith, 2 Pick. 621, 121, 130 = V. -—, 16 Pick. 222, 42 a v. Wendell, 7 Cush. 498, 120 - (Jones v.) 11 Alien, 16 Smyth (Commonwealth v.) 14 Gray, 33, 130 - (Ieed v.) 5 Allen, 120, 3, 116 Snow v. Adams, 1 Cush. 443, 120 (Underwood v.) 7 Met. 214, 51, 52 - v. Clark, 9 Gray, 190, 88 Sears v. Boston, 1 Met. 250, 82 = —= (Dillingham v.) 5 Mass. 547, 84 ^ (. —~ v.) 22 Pick. 122, 37 Somerset (Berkley v.) 16 Mass. 454, 40 Seekonk v. Attleborough, 7 Pick. 155, 61 a v. Dighton, 12 Mass. 383, 40 -- (Blackstone v.) 8 Cush. 75, 41 (Miller v.) 14 Mass. 396, 51 v. Rehoboth, 8 Cush. 371, 61 --. Rehoboth, 6 Cash. 320, 42 (Uxbricge v.) 10 Pick. 150, 54, 58 Southampton v. Easthampton, 8 Pick. 3SO, 48, 84 Shattuck v. Allen, 4 Gray, 540, 74 Southborough (Brailey v.) 6 Cush. 141, 116, 123 Shaw v. Becket, 7 Cush. 442, 92.- - v. aMarlborough, 24 Pick. 166, 43 (Boston v,) 1 Met, 130, 75 Southbridge v. Charlton, 15 Alass. 248, 46, 54 154 TABLE OF CASES. PAGE. PAGE. Southbridge (Stedman v.) 17 Pick. 162, 105 Stow v. Sawyer, 3 Allen, 515, 53 (WValker v.) 4 Cush. 199, 52 - (Sudbury v.) 13 Mass. 462, 47 - v. Warren, 11 Cush. 292, 43 Sturbridge v. Holland, 11 Pick. 459, 38, 55 South Danvers v. Essex, 1 Allen, 25, 63 - (Wilbraham v.) 6 Cush. 61, 50 South Reading v. Hutchinson, 10 Allen, 68, 51 -- v. Winslow, 21 Pick. 83, 62 South Scituate v. Hanover, 9 Gray, 420, 2 Sturtevant v. Plymouth, 12 Mass. 7, 108 - (Hingham v.) 7 Gray, 229, 57 Sudbury (Dow v.) 5 Met. 73, 92 Southwick (VWestfield v.) 17 Pick. 68, 37, 54, 61 - v. East Sudbury, 15 Mass. 260) 46 Sparhawk v. Salem, 1 Allen, 30, 120 (- v.) 12 Pick. 1, 49, 55, 59 Spaulding v. Lowell, 23 Pick. 71, 7 - (Orange v.) 10 Pick. 22, 39, 58 -- ( - v.) 4 Cush. 277, 128 - v. Stearns, 21 Pick. 148,. 20 Spear v. Cummings, 23 Pick. 224, 73 - v. Stow, 13 Mass. 462, 47 Sprague v. Bailey, 19 Pick. 430, 84, 86, 94 Suffolk Malnuf. Co. (Bowers v.) 4 Cush. 332, 103, 104 v. Waite, 17 Pick. 309, 105, 106, 132 Sutton (Andover v.) 12 Met. 182, 128 v. Worcester, 13 Gray, 193, 2 - v. Dana, 4 Pick. 117, 45 Springfield (Bnrnes v ) 4 Allen, 488, 96, 109 - v., 1 Met. 383, 47 - (Commonwealth v.) 7 Mass. 13, 115 - (Lancaster v.) 16 Mass. 112, 46 - v. Connecticut River Railroad, - (Oakham v.) 13 Met. 192, 49, 50, 57 4 Cush. 63, 6, 67 v. Orange, 6 Met. 484, 45 - (Cummington v.) 2 Pick. 394, 38 - v. Uxbridge, 2 Pick. 436, 39 - (Dwight v.) 4 Gray, 107, 97, 100, 135, 136 Swampscott (Walcott v.) 1 Allen, 101, 1 - (- v.) 6 Gray, 442, 110, 115 Swan's case, 16 Mass. 220, 30 v. Hampden, 10 Pick. 67, 104 Swansey (Bosworth v.) 10 Met. 363, 118 --. Miller, 12 Mass. 415, 65 - v. Chace, 16 Gray, 128 v. Wilbrahanm, 4 Mass. 493, 40 Sweetser v. Hay, 2 Gray, 49, 10 v. Worcester, 2 Cush. 52, 28, 59 Swett's case, 20 Pick. 1, 30 Stacey v. Benson, 18 Pick. 496, 77 Swett v. Boston, 18 Pick. 123, 78 Stackpole v. Healy, 16 Mass. 33, 131 -- (Colburn v.) 1 Met. 232,.27, 64 State Lunatic Hospital v. Worcester, 1 Met. 437, 107, 110 Stearns (Blanchard v.) 5 Met. 298, 20, 21 Taft (Blackstone v.) 4 Gray, 250, 1 (Sudbury v.) 21 Pick. 148, 20 - v. Metcalf, 11 Pick. 456, 34, 94 (Thayer v.) 1 Pick. 109, 34 Tash v. Adams, 10 Cush. 252, 7, 9 - ( c v.) 1 Pick. 482, 84 Tasker v. Bartlett, 5 Cush. 359, 75 Stedman v. Southbridge, 17 Pick. 162, 105 Taunton (Allen v.) 19 Pick. 485, 7, 14 Sterling (Templeton v.) 15 Mass. 253, 43 (Berkeley v.) 19 Pick. 480, 49 (West Boylston v.) 17 Pick. 126, 56 v. Caswell, 4 Pick. 275, 26 (Worcester v.) 5 Gray, 393, 62 -- (Freetown v.) 16 Mass. 52, 41 Stetson (Crapo v.) 8 Met. 393, 87, 88 - v. Middleborough, 12 Met. 35, 48, 49 v. Faxon, 19 Pick. 147, 105 - ( v.) 2 Cush. 406, 128 (Kean v.) 5 Pick. 492, 97, 102 -- (New Bedford v.) 9 Allen, 207, 37, 58 v. Kempton, 13 Mass. 272, 7, 84 (Northfield v.) 4 Met. 433, 58, 60 - (Wales v.) 2 Mass. 146, 106 - v. Plymouth, 15 Mass. 203, 40 Stevens v. Boxford, 10 Allen, 25, 122, 127 - v. Westport, 12 Mass. 355, 54 (Commonwealth v.) 10 Pick. 247, 130 - (Upjohn v.) 6 Cush. 310, 15 v. Hay, 6 Cash. 229, 10 Taylor v. Boston Water Power Co. Stewart (Avery v.) 1 Cush. 496, 104, 106 12 Gray, 415, 105 Stickney v. Salem, 3 Allen, 374, 119 - v. Hampden, 18 Pick. 309, 98 Stockbridge (Commonwealth v.) 13 Mass. 294, 102 v. Plymouth, 8 Met. 462, 25 - v. WTest Stockbrildge, 12 Mass. 399, 41 Temple (Commonwlealth.v.) 14 Gray, 69, 69 Stocker (Morse v.) 1 Allen, 150, 104, 137 Templeton (Leevy.) 0 Gray, 579, 80, 92, 93 Stoddard (West Roxbury v.) 7 Allen, 169, 66 - ( v.) 13 Gray, 476, 92 Stodder (Commonwealth v.) 2 Cush. 562, 11 --. terling, 15 Mass. 253, 43 Stone v. Boston, 2 Met. 220, 97, 98, 135 Terry (Wilson v.) 9 Allen, 214, 19, 83 - v. Cambridge, 6 Cush. 270, 99 - ( - v.) 11 Allen, 83 (Charlestown v.) 15 Gray, 135 Tcwksbury (Reading v.) 2 Pick. 535, 48 Stoneham (Gerry v.) 1 Alien, 319, 7, 85, 93 Thayer v. Boston, 19 Pick. 511, 1, 32 - (Mansfield v.) 15 Gray, 3 -- v. Stearns, 1 Pick. 109, 34 Stoughton (Cushing v.) 6 Cush. 389, 3 v. —, 1 Pick. 482, 84 - (Drake v.) 6 Gush. 393, 3 - v. Worcester, 10 Gush. 151, 109, 114 TABLE OF CASES, 155 PAGE. Thomas v. Marshfield, 10 Pick. 364, 65 Thompson v. Bridgewater, 7~jick. 188, 121 PAGE. CTh ompson v. Bridgewater, h ke. 18, 121 Valentine v. Boston, 22 Pick. 75, 103, 105. (Commonwealth 26.)~::]~et. 231, 26 ~ (Hutchmminags.) 10 Gush. 238, 50 Vandine, Petitioner, 6 Pick. 187, 28, 35 (Hutchings v.) 10 Cush. 238, 50 Vermont & Massachusetts Railroad Thorndike v. Boston, 1 Met. 242, 19, 82 ermont aahett (Commonwealth v.) 4 Gray, 22, 68, 130 Thorpe v. Worcester, 9 Gray, 57, 97, 136 anklin, 10 Cush. 12, Tibbetts (Mitchell v.) 17 Pick. 298, 20 v.al i, 7 Tileston (Boston v.) 11 Mass. 468, 4 Vial v Dorchester, 7 Gray,, 117 Tinkerv. Russell, 14 Pick. 279, 106, 116 V cent (Coffin) 12 Cush. 98, 24 v. Nantucket, 12 Cush. 103, 4, 9 Tisbury (Edgartown v.) 10 Cush. 408, 41, 42, 60 25 Vinton v. Vinton, 17 Mass. 342, 25 -- (Jennings v.) 5 Gray, 73, 105 v. Welsh, 9 Pick. 87, 64 v. ~ Welsh, 9 Pick. 87, 6i Tisdale v. Norton, 8 Met. 388, 120 Vosbur v. Moak 1 Cush. 453 129 Tobey v. Wareham, 2 Allen, 594, 86, 93Moa Todd v. Rowley, 8 Allen, 51, 127 Topsfield (Ipswich v.) 5 Met. 350, 42 V. - v. Middleton, 8 Met. 564, 56 Topsham v. Harpswell, 1 Mass. 518, 60 Wade (Odiorne v.) 5 Pick. 421. 105 Torrey v. Millbury, 21 Pick. 64, 7, 85, 92 - v. Salem, 7 Pick. 333, 29, 51 Tower v. Boston, 10 Cush. 235, 96 Waite (Commonwealth v.) 11 Allen, 32 Towle (Cleverly v.) 3 Allen, 39, 24 - (Sprague v.) 17 Pick. 309, 105, 106, 132 Townsend v. Billerica, 10 Mass. 411, 50, 54, 59 - v. Woodward, 10 Cush. 143, 19 (Holman v.) 13 Met. 297, 116, 123 Walcott v. Swampscott, 1 Allen, 101, 1 - (Robbins v.) 20 Pick. 345, 48 Walcutt (Townsend v.) 3 Met. 152, 34, 87 - v. Walcutt, 3 Met. 152, 34, 87 Waldron v. Lee, 5 Pick. 323, 86 Tracy v. Goodwin, 5 Allen, 409, 10 Wales v. Stetson, 2 Mass. 146, 106 Trask (Goodell Manuf. Co. v.) 11 Pick. 514, 78 Walker (Bowley v.) 8 Allen, 21, 106 Tremont Bank v. Boston, 1 Cush. 142, 79 -. Southbridge, 4 Cush. 199, 52 Trull v. Wheeler, 19 Pick. 240, 10 - (Worcester v.) 9 Gray, 78, 35, 37, 65 Truro (Wellfleet v.) 5 Allen, 137, 43 Wall (Wheeler v.) 6 Allen, 558, 79 ____ (-__ v.) 9 Allen, 137, 43 Walpole (Blackburn v.) 9 Pick. 97, 84 Trustees of the Greene Foundation v. Boston, v. Gray, 11 Allen, 4 12 Cush. 54, 81, 85 v. Hopkinton, 4 Pick. 357, 45 Tucker (Commonwealth v.) 2 Pick. 44, 106 - v., 4 Pick. 358, 55, 59 Tufts v. Charlestown, 4 Gray, 537, 112 - v Marblehead, 8 Cush. 528, 41 ~ —--- (Payson v.) 13 Mass. 493, rr, 81 --- v. West Cambridge, 8 Mass. 276, 61 Tukey (Wright v.) 3 Cush. 290, 103 Waltham (Chenery v.) 8 Cush. 327, 18, 82 Turner (Allen v.) 11 Gray, 436, 9 - (Doherty v.) 4 Gray, 596, 117 ____ — (Commonwealth v.) Cush. 49, 3 (East Sudbury v.) 13 Mass. 460, 49 (Commonwealtlh v.) 1 Cush. 49 — 36 (Hardy v.) 3 Met. 163, 7 __- (Hanover v.) 14 Mass. 227, 53 (Jones v.) 4 Cush. 293, Tuttle v. Holyoke, 6 Gray, 447, 123 (Jones v. 4 Cush. 29,117 --- (Waltham Bank v.) 10 Met. 334, 79 Tyler v. ardwick, 6 Met. 470, 85,87 W altham Bak v. 10 Met. 334, 79 Tyngsboro (Lund v.) 11 Gush. 563, -123 Waltham Bank v. Waltham, 10 Met. 334, 79 Tyrngham (rewer v.) 14 Pick. 196, 13 Walton (Commonwealth v.) 17 Pick. 403, 31 Tyri(Greha t Barringto v. ) 1 Pick. 19, 30 Ward v. Oxfor, 8 Pick. 476, 41 (Great Barrington v.) 18 Pick. 264, 41 Ware (Otis Co. v.) 8 Gray, 539, 93 - (Powers v.) 2 Pick. 451, 6 U. - v. Wilbraham, 4 Pick. 45, 61 v. Williamstown, 8 Pick. 388, 59 Underwood v. Scituate, 7 Met. 214, 51, 52 Wareham (Cummington v.) 9 Cush. 585, 62 Union Railway v. Cambridge, 11 Allen, 69 - (Dill v.) 7 Met. 438, 26 Upjohn v. Taunton, 6 Cush. 310, 15 - (Tobey v.) 2 Allen, 594, 86, 93 Upton (Commonwealth v.) 6 Gray, 473, 27 Warren v. Charlestown, 2 Gray, 84, 5 (I-opkinton v.) 3 Met. 165, 42 (Southbridge v.) 11 Cush. 292, 43 - (Newburyport Turnpike v.) Warwick (Murdock v.) 4 Gray, 180, 122 12 Mass. 575, 77, 81 Watertown (Athol v.) 7 Pick, 42, 48 - v. Northbridge, 15 Mass. 237, 40 - (Shirley v.) 3 Miss. 322, 39 Uxbridge v. Mowry, 9 Allen, 94, 74 v. White, 13 Mass. 477, 26 v. Seekonk, 10 Pick. 150, 54, 58 Waterville (Wood v.) 4 Mass. 422, 118, 120 - (Sutton v.) 2 Pick. 436, 39 - ( - v.) 5 Mass. 294, 33, 120 - (Webster v.) 13 Met. 198, 61 Watson v. Cambridge, 15 Mass. 286, 39, 51 156 TABLE OF CASES. PAGE. PAGE. Watson v. Cambridge, 18 Pick. 470, 29, 51 Weymouth (Boston v.) 4 Cush. 538, 49, 69 - v. Charlestown, 5 Met. 54, 29, 62 Whately (Chicopee r. Allen, 508, 18, 19, 49, 50 __ v. Princeton, 4 Met. 599, 84, 93 - (Kirkland v.) llen, 462, 83 Wayland v. Middlesex, 4 Gray, 500, 79, 96 Wheeler (Benjamin v.) 8 Gray, 409, 116 Webb v. Neal, 5 Allen, 575, 95 -- ( v.) 16 Gray, 115, 116 Webber v. Eastern Railroad, 2 Met. 147, 112 -- v. Framingham, 12 Cush. 287, 125 Webster (Burnham v.) 5 Mass. 266, 63 -- v. Goulding, 13 Gray, 539, 64 v. Uxbridge, 13 Met. 198, 61 - (Trull v.) 19 Pick. 240, 10 Weiher (Commonwealth v.) 3 Met. 445, 98 -- v. Wall, 6 Allen, 558, 79 Welles v. Battelle, 11 Mass, 477, 34, 70, 81, 84 -- v. Worcester, 10 Allen, 591, 2, 69, 76 Wellfeet v. Truro, 5 Allen, 137, 43 Wheclock (Lowell v.) 11 Cush. 391, 135 v. -_, 9 Allen, 137,'43 Whitcomb (Hlarris v.) 4 Gray, 433, 21 Wellington, Petitioner, 16 Pick. 87, 13, 102, 135 - (King v.) 1 Met. 328, 89 Wells (Boston v.) 14 Mass. 384, 43 White (Bruce v.) 4 Gray, 345, 23 (Haynes v.) 6 Pick. 462, 37, 53 -- v. Norfolk, 2 Cush. 361, 108 Welsh (Vinton v.) 9 Pick. 87, 64 - v. Phillipston, 10 Met. 10S, 115 Wendell (Armstrong v.) 9 Met. 522, 115 (Watertown v.) 13 Mass. 477, 26 -- v. lleming, 8 Gray, 613, 9 Whiting (Williams v.) 11 Mass. 424, 19 -- (New Salem v.) 2 Pick. 341, 55 Whitney (Nason v.) 1 Pick. 140, 84 - (Smith v.) 7 Cush. 498, 120 Whittaker v. Boston & Maine Railroad, Wentworth (Lowell v.) 6 Cush. 221, 37, 134 7 Gray, 98, 68 Westborough v. Franklin, 15 Mass. 254, 46 Wilbraham (Bliss v.) 8 Allen, 564, 122, 127 -- (Peters v.) 20 Pick. 500, 52 - v. Iampden, 11 Pick. 322, 97 -v. Rehoboth, 4 Cush. 185, 47 - (Jenks v.) 11 Gray, 142, 123 West Boston Bridge (Commonwealth v.) - (Merrill v.) 11 Gray, 154, 118 13 Pick. 195, 135 - (Springfield v.) 4 Mass. 493, 40 West Boylston (Bellingham v.) 4 Cush. 553, 44 -- v. Sturbridge, 6 Cush. 61, 50 v-. Boylston, 15 Mass. 261, 45 (Ware v.) 4 Pick. 45, 61 - (Princeton v.) 15 Mass. 257, 45, 50 - (Worcester v.) 13 Gray, 586, 49, 57 v — v. Sterling, 17 Pick. 126, 56 Wild v. Skinner, 23 Pick. 251, 23, 24 -- (Willington v.) 4 Pick. 101, 51 Wiley (Emerson v.) 7 Pick. 68, 105 West Bridgewater (Bridgewater v.) 9 Pick. 55, 46 Wilkinson (Commonwealth v.) 16 Pick. 175, 130 Westbrook v. Gorham, 15 Mass. 160,. 43 Willard v. Cambridge, 3 Allen, 574, 119 West Brookfield (Fullaml v.) 9 Allen, 1, 14 v. Newburyport, 12 Pick. 227, 7, 33 West Cambridge v. Lexington, 2 Pick. 536, 55 Williams v. Adams, 3 Allen, 171, 30 -- (Walpole v.) 8 Mass. 276, 61 - v. Boardman, 9 Allen, 570, 5 Western (Commonwealth v.) 1 Pick. 136, 106 - v. Braintree, 6 Cush. 399, 52 Western Railroad (Gillett v.) 8 Allen, 560, 127 -- (Coolidge v.) 4 Mass. 140, 26, 66 -- (Worcester v.) 4 Met. 564, 79 - v. Cummington, 18 Pick. 312, 103, 105, 124 Westfield (Lanesborough v.) 16 Mass. 74, 41 (Danforth v.) 9 Mass. 324, 87 -- v. Southwick, 17 Pick. 68, 37, 54, 61 - v. Lunenburg, 21 Pick. 75, 84, 85 Westford (Boston v.) 12 Pick. 16, 29 v. Middlesex, 4 Met. 76, 29 (Keyes v.) 17 Pick. 273, 14 - (Monson v.) 6 Gray, 41.6, 53 Westminster v. Bernardston, 8 Mass. 104, 58, 60 - v. Plymouth, 11 Allen, 16 West Newbury v. Bradford, 3 Met. 428, 48, 49 - v. Roxbury, 12 Gray, 21, 83 Weston (Bigelow v.) 3 Pick. 267,, 116 v. Whiting, 11 Mass. 424, 19 -- (Boston v.) 22 Pick. 211, 30,51 Williamstown (Bulkley v.) 3 Gray, 493, 83 -- (Dudley v.) 1 Met. 477, 125 (Canning v.) 1 Cush. 451, 124 -- v. Gibbs, 23 Pick. 205, 3 - (Ware v.) 8 Pick. 388, 59 -- (Perkins v ) 3 Cush. 549, 74 - v. Willis, 16 Gray, 87, 91 - (Robbins v.) 20 Pick. 112, 30, 51 Willis (Williamstown v.) 16 Gray, 87, 91 Westport (Allen v.) 15 Pick. 35, 74 Willington v. West Boylston, 4 Pick. 101, 51 - -. Bristol, 6 Allen, 203, 97, 98, 110 Wilson v. Brooks, 14 Pick. 341, 38 --- v. Dartmouth, 10 Mass. 341, 44 - v. Charlestown, 8 Allen, 137, 122 -- (Taunton v.) 12 Mass. 355, 54 v. Church, 1 Pick. 26, 63 West Roxbury v. Stoddard, 7 Allen, 169, 66 - v. Shearer, 9 Met. 504, 89 West Springfield v. Granville, 4 Mass. 486, 44 - v. Terry, 9 Allen, 214, 19, 83 -- (Jennison v.) 13 Gray, 544, 63 - - v. -, 11 Allen, 83 West Stockbridge (Stockbridge v.) 12 Mass. 399, 41 Winchendon (Fitchburg v.) 4 Cush. 190, 18, 48, 83 TABLE OF CASES. 157 PAGE. Winchendon v. Hatfield, 4 Mass. 123, 41 WTorcester (Princeton v.) 17 Pick. 154, 99 Winche ster (Lowell Savings Bank v.)ice.) 11 Gray, 2, note, 1 8 Allen, 109, 16, 94 - v. Schlessinger, 16 Gray, 30 Winnisimmet Co. v. Chelsea, 6 Cush. 477, 85,93 StateLunaticospital v.) 1 Met.43, 107,110 Windha v. Sterling, 5 Grsay, 393, 6 Winslow (Stulbridge v.) 21 Pick. 83, 62 v.Ste, G Winthrop v. Fararl, 11 Allen, 28 — (Thayer v.) Gsh. 151, 09, 131 Wiscasset (Adams v.) 5 Mass. 328, 51 - (Thorpe l 9 Gray, 57, 37, 136 ^- (CargIII v.) 2 Mass. 547, 51 v. lker, 9 Gray, 78, 35, 37, 65 Wti ton v.)arvard, 8 Cash.66, 9v. Western Railroad, 4 Met. 564, 79 Woithington v. Harvard, 8 Cush. 66, 28, 69,9 i- (Wheeler v.) 10 Allen, 591, 2, 69, 76 -Wo (uP.mp ) 17 Gray, 415, 1 ---— 1 v. Wileraham, 13 Gray, 586, 49, 57 in(Plympton v.) 11 Gray, 41, 113 (Woodward v.) 15 Gray, 501 Wood v. Burlington, 1 Met. 493, - (8ood r v.) 1 Gray, 59. Quincy, 11 C. 487, 133 -- - (Worcester Ins. Co. v.)7 ush. 00, 79 (Rumford.) 13 ass. 19, 75 (Worcester Savings Inst. v.) v- c. Waterville, 4 Mass. 422, 118,120 10 Csh. 128, 79 v. Watrville, 4 M ass. 422, 118,120 Worcester Ins. Co. (Andrews v.) 5 Allen, 65, 87, 5 H am ss. 2, 3,1 ____ — v. vWorcester, 7 Cush. 600, 79 Woocdbury v. Hamilton, 6 Pick. 101, 7 Worcester Savings Inst. v. Worcester, Woodward (Waite v.) 10 Cush. 143, 19 12 79 -- v. Worcester, 15 Gray, 50 Wor Leyen, 10 Pick. 24, 51 Worcester v. Auburn, 4 Allen, 574, 48,50, 25 - (Brown v.) 13 Gray, 31, 104, 108,113 Worster v Canal Bridge, 16 ick, 122 -- (Commonwealth v.) 3 Pick. 462, 12,13,31,35 Worth (Folger v.) 19 Pick. 108, 105 -~- (Drury v.) 21 Pick. 44, 116 Worthington (Boston v.) 10 Gray, 496, 128 -- v. Eaton, 13 Mass..71, 65 Wrenthalm v. Attleborough, 5 Mass. 430, 47, 54 -- (Flagg v.) 8 Gush. 69, 110, 114 Wright v. Boston, 9 Cush. 233, 76, 91 --- v.) 13 Gray, 601, 2, 75 v. Trukey, 3 Cush. 290, 103 -~(Foster v.) 16 Pick. 71, 62 Wyma (Johnson v.) 9 Gray, 18, 106 (Goddard v.) 9 Gray, 88, 101 2(Lowell v.12 0Cs. 273, 135 (Harrington v.) 6 Allen, 576, 91 v. Keith, 5 Allen, 17, 109 Y. - (Lincoln v.) 8 Cush. 55, 91, 93 - (Marble v.) 4 Gray, 395, 123 Yarmouth (Hardy v.) 6 Allen, 277, 81 -- (Mendon v.) 10 Pick. 235, 110 (Young v.) 9 Gray, 3SG, 118 - v. Milford, 18 Pick. 379, 62 Young v. Yarmouth, 9 Gray, 386, 118 - (Perry v.) 6 Gray, 544, 2, 35