benefit received by abutting estates from the alteration of a street, and their
assessment of the expense accordingly, were made as of the date of the order
for the alteration.
4. An overvaluation by the aldermen of Boston, under the St. of 1866, c. 174,
§ 5, or the St. of 1868, c. 276, § 1, of the benefit received by real estate from
altering a street, as the basis of an assessment thereon for the expense of tho
alteration, is no ground for quashing the proceedings on certiorari, but the
remedy of the owner is by petition for a jury. Ib.
5. An order of the aldermen of Boston under the St. of 1866, c. 174, § 5, as-
sessing for the expense of altering a street estates abutting thereon and ben-
efited by the alteration, which lays the assessment on the estates named in a
schedule annexed to the order and entitled "Schedule of assessments upon
the estates that were benefited by the alteration," imports that the schedule
includes all the abutting estates which were benefited. Ib.
6. An omission of the aldermen of Boston to allege, in the record of altering a
street under the St. of 1866, c. 174, that their assessment of the expense of
the alteration upon abutting estates thereby benefited was laid on all such
estates, is no ground for quashing the proceedings on certiorari, in the ab-
sence of
any allegation, in the petition for the writ, that the assessment was
in fact not so laid, and of any evidence that the omission injured the peti-
tioner. Ib.
1. The St. of 1866, c. 174, § 5, construed in connection with § 1, requires the
aldermen of Boston, in assessing, for the expense of laying out or altering a
street, abutting estates thereby benefited, to lay the assessment ratably upon
all such estates; and is constitutional. Ib.
8. It is no ground for quashing on certiorari proceedings of the aldermen of
Boston altering a street under the St. of 1866, c. 174, that, by a clerical
error in the preamble of their adjudication of the benefit received by abut
ting estates, the date of the assessment of damages is substituted for the date
of the order making the alteration. Ib.
. The provision of the St. of 1868, c. 276, § 1, that in no case shall assess-
ments upon real estate, for special benefits received from the laying out or
alteration of a street in Boston, exceed the amount to be paid by the city
for such laying out or alteration, construed in connection with the St. of
1866, c. 174, § 3, limits the assessments only to the whole amount of the cost
of the laying out or alteration, which the city pays in the first instance, with-
out any deduction on account of the partial reimbursement which it may de-
rive from such assessments. Ib.
10. It is no ground for quashing on certiorari proceedings of the aldermen of
Boston altering a street, under the St. of 1866, c. 174, as amended by the
St. of 1868, c. 276, which repealed § 5 of the former statute, that the sched-
ule of their assessment of the expense of the alteration upon real estate
specially benefited by it purports to be made in pursuance of the provision
of the repealed section and of § 1 of the St. of 1868. Ib.
1. The remedy by petition for a jury, given by § 7 of the St. of 1866, c. 174
to any party aggrieved by doings of the aldermen of Boston under that stat
ute, extends also to their doings under it as amended by the St. of 1868
c. 276. Ib.
12. An alteration in the location of an existing highw. y was made by the
county commissioners, upon the petitioner's land, and under his agreement
to bear the whole expense. He was constructing a canal across his land, and
had nearly finished digging the trench through the place of the new location
at the time thereof; and he proceeded to build the new way and the canal
together, and carried the way over the canal upon a bridge which was fin-
ished before water was let into the canal. Held, that he was liable for the
subsequent expenses of maintaining and keeping in repair the bridge over
his canal. Lowell v. Proprietors of Locks & Canals, 18.
13. The proprietor of a canal built across a highway which is subsequently
traversed by a horse railroad is not exonerated by the St. of 1866, c. 286,
§ 1, from his liability in the first instance to the town or city for the expenses
of repairs made within the location of the railroad in the bridge which con-
ducts the highway over the canal. Ib.
14. A town may be liable on the Gen. Sts. c. 44, § 22, for an injury resulting
to a traveller from a defect in a highway, although the defective place is
within the location of a railroad which crosses the highway on a level there-
with. Pollard v. Woburn, 84.
15. In moving a building, by permission of a town, through a street which the
town was bound to keep in repair, the ground was dug up around a post
which obstructed the passage of the building, so as to cause the post to slope
over and obstruct travel on the sidewalk, and at the base of the post on the
side towards the carriageway there was left for several days an excavation
across which some planks were laid, which at times were displaced so as to
leave a hole a foot wide, open towards the carriageway. Between nine and
ten o'clock on the evening of the fourth day after the moving of the building.
three men, travelling on foot along the street, turned from the sidewalk into
the carriageway, as they approached the obstruction, intending to pass
around it, there being no sidewalk on the other side of the street. The night
was dark and foggy; and there was no light on the street. Two of them had
observed the hole during previous days. The third, though knowing of the
removal of the building and generally of the obstruction and its dangerous
nature, had never observed or known of the hole. The two passed safely.
The third, who was walking at ordinary speed, abreast with and inside from
the second, supposed that he was far enough out in the carriageway for
safety, but, in passing the hole, his foot, on the side next to it, slipped into
it, and he was thereby injured. Held, that, on evidence of these facts, a jury
was warranted in finding that he was using due care at the time of the acci-
deat Ib.
16. A city is not liable on the Gen. Sts. c. 44, § 22, for an injury received by
a traveller on a sidewalk, which it is bound to keep in repair, through the
falling upon him of a signboard which the proprietor of an adjoining build
ing had suspended over the sidewalk on an iron rod insecurely fastened to
the building; although the city had notice of the position and insecurity of
the signboard and its fastening. Jones v. Boston, 15.
17. In an action on the Gen. Sts. c. 44, § 22, for an injury alleged to have been
received through a defect in a highway which the defendant town was
bound to keep in repair, the evidence tended to show that the place al-
leged to be defective was covered with smooth and slippery ice, upon a steep
and springy hillside, where the road sloped not only in the direction of its
course, but across it from one side to the other. Held, that the defendants
had no ground of exception to instructions which authorized the jury to re-
turn a verdict for the plaintiff only in event of their finding that there was
some special reason for the formation of ice in that particular locality owing
to the construction or condition of the road, that the ice there formed ren-
Jered the highway unsafe, and that but for such defect the injury to the
plaintiff would not have happened. Pinkham v. Topsfield, 78.
18. The fact that a traveller on a highway perceives that an obstacle therein
is dangerous to persons attempting to pass it is not conclusive that he does
not use due care in making the attempt. Mahoney v. Metropolitan Railroad
Co. 73.
9. In an action against a street railway corporation for injuries alleged to
have been caused to a traveller on the street by negligence of the defendants
in heaping up snow by the side of their track, it appeared that the defend-
ants heaped up snow on each side of the track so that it formed a trough,
twelve or fourteen inches deep, with sides sloping down to the rails at angles
of about forty-five degrees, and that, while the plaintiff was conducting
across this trough his team of two horses, drawing a sled on two sets of run-
ners, which was heavily loaded with lumber projecting over the back of the
shaft horse, the load tilted forwards, when the front runners reached the
first rail, so that the lumber fell on that horse and on the plaintiff, and in-
jured them. Held, that the questions whether the plaintiff was negligent
in attempting to cross the track, or in the manner in which he made the at-
tempt, were for the jury. Ib.
Bee ACTION, 1, 2; BRIDGE; EVIDENCE, 4; EXCEPTIONS, 4; HARVARD
COLLEGE; INTERROGATORIES; LANDLORD AND TENANT; NEGLIGENCE,
2-4.
See DEVISE AND LEGACY; PARTNERSHIP, 3; TRUST AND TRUstke, 2.
See ASSESSOR, 2; Costs, 1; DIVORCE, 3; EVIDENCE, 6, 7; EXCEPTIONS,
5; INTOXICATING LIQUORS; MORTGAGE, 2.
Absent defendant." See James v. Townsend, 369.
Agree to sell." See Martin v. Adams, 263.
"Civil imposition." See Harvard College v. Aldermen of Boston, 470.
"Clear and satisfactory title."
See Dresel v. Jordan, 407.
"Continue a stockholder." See Bacon v. Pomeroy, 577.
"Corruption." See Brewer v. Boston Theatre, 389.
"Each his one half." See Costigan v. Lunt, 217.
"Fiduciary character." See Cronan v. Cotting, 245.
"Gross or wanton and cruel." See Peabody v. Peabody, 195.
"Misfeasance." See Tracy v. Warren, 376.
"Multitude." See Pike v. Witt, 597.
"Port of discharge." See Bramhall v. Sun Insurance Co. 510.
"Subject to a mortgage." See Howard v. Chase, 251; Dresel v. Jordan, 417.
"Tenement." See Young v. Boston, 104.
"Unusual number." See Pike v. Witt, 597.
1. A specification of nontenure and disclaimer, pleaded with the general issue
to a writ of entry, is falsified by proof of occupation of the demanded prem-
ises by the tenant with a permanent building, although such occupation is
by a mistake of boundary and without intention to disseise. Proprietors of
Locks & Canals v. Nashua & Lowell Railroad Co. 1.
2. A writ of entry cannot be maintained against a tenant who holds an abso-
lute deed from the demandant's grantor, prior to the deed to the demandant,
although he has given a written agreement, not under seal, to reconvey to
the grantor on performance of a condition, and the condition has been per-
formed. Wilson v. Black, 406.
See EVIDENCE, 9; RAILROAD, 1, 2.
A writ of scire facias against a person charged as trustee is not a civil action,
within the meaning of the Sts. of 1862, c. 217, § 4, and 1866, c. 279, § 9, au-
thorizing the removal of such actions by the defendant from the municipal
court of Boston to the superior court; and a judgment rendered therein for
the plaintiff in the superior court, after such removal, may be reversed by
writ of error for want of jurisdiction, although the defendant in that court
appeared and filed both a motion to dismiss for that cause and an answer to
the merits, and notwithstanding the provision of the Gen. Sts. c. 129, § 79,
that, when the defendant has appeared and answered to the merits of an
action, no defect in the writ or process by which he has been brought before
the court shall be deemed to affect the jurisdiction of the court. Gray ▼.
Thrasher, 373.
ERRORS NOTED IN PREVIOUS VOLUMES OF THIS SERIES.
Page 466, 8th line from top. Substitute "El., Bl. & El." for "9 El. & Bl."
Page 41, 5th line from top. Insert "not" between "and" and "with."
"132, bottom line. Substitute " S. B. Ives, Jr.," for "C. Allen, Attorney General." "494, 8th line from bottom. Substitute "legal" for "local."
"524, 2d line from top. Substitute "plaintiff" for "defendants."
"530, 15th line from bottom.
" $19, 7th line of EVIDENCE, 12. }
Dele "not" between "was" and "a defect.'
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