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V. McGirr, 1 Gray, 1, 22, 26; Sullivan v. ity of the statute with the constitution of Adams, 3 Gray, 476; Jones v. Robbins, 8 that state. See Baldwin v. Kausas, 129 U. Gray, 329; Brown v. Perkins, 12 Gray, 89; S. 53, 9 Sup. Ct. Rep. 193; Spencer v. MerNolan's Case, 122 Mass. 330; Com. v. Hor-chant, 125 U. S. 345, 8 Sup. Ct. Rep. 921; regan, 127 Mass. 450. The case most relied Bucher v. Railroad Co., 125 U. S. 555, 583, on by the complainants is Kansas v. Ziebold, 8 Sup. Ct. Rep. 974; Barbier v. Connolly, reported with Mugler v. Kansas, in 123 U. 113 U. S. 27, 5 Sup. Ct. Rep. 357; Schmidt S. 623, 8 Sup. Ct. Rep. 273. The question v. Cobb, ubi supra; State v. Whisner, 35 there considered was whether section 13, c. Kan. 271, 10 Pac. Rep. 852. 128, of the Statutes of Kansas of 1881, as The phrase "due process of law,” conamended by the statute of March 7, 1885, tained in the fourteenth amendment of the was in violation of the fourteentlı amendment constitution of the United States, has not of the constitution of the United States. See been construed to mean that part shall be State v. Crawford, 28 Kan.726, 743; Schmidt entitled to a jury trial in civil suits at comv. Cobb, 119 U.S. 286, 7 Sup. Ct. Rep. 1373; mon law, or that a person shall be tried for a Kidd v. Pearson, 128 U.S. 1,9 Sup. Ct. Rep. felony, or a capital crime, only on present6. That section, as amended, declared that ment of a grand jury, and it is doubtful even every place where intoxicating liquors were if it would be held that the amendment sesold, manufactured, etc., in violation of the cures a trial by jury in criminal cases. The act, was a common nuisance, and it author- clause of the amendment we are considerized the attorney general, county attorney, or ing is a restraint on all the states of the any citizen to maintain an action in the name United States, and the supreme court of the of the state, and it provided that, if by the United States has taken notice that there are judgment of any court having jurisdiction considerable diversities in the jurisprudence such place was found to be a nuisance, the of the different states. That court say, in sheriff, etc., “shall be directed to shut up Walker v. Sauvinet, 92 U. S. 90, 93: "This and abate such place by taking possession requirement of the constitution is met if the thereof and destroying all intoxicating liquors trial is held according to the settled course of found there, together with all signs, screens, judicial proceedings.

Due process bars, bottles, glasses, and other property used of law is process due according to the law of the in maintaining said nuisance,” and that an land. This process in the states is regulated by injunction might issue at the commencement the law of the state.” In Missouri y. Lewof the action without giving a bond, and is, 101 U. S. 22, 31, that court say: “Great that any person violating the terms of any diversities in these respects may exist in two injunction granted in such a proceeding states, separated only by an imaginary line. should be punished as for contempt by a fine on one side of this line there may be a right or imprisonment, or both. The question was of trial by jury, and on the other side no such not much considered in that case, if it were right. Each state prescribes its own modes considered at all, whether that statute was of judicial proceeding.” In Dent v. West inconsistent with the constitution of Kansas, Virginia, 129 U. S. 114, 124, 9 Sup. Ct. Rep. and the decision, in effect, is that the pro- 231, that court say: "It is sufficient for the ceedings authorized by it were not inconsist- purposes of this case to say that legislation is ent with the fourteenth amendment of the not open to the charge of depriving one of constitution of the United States. In the his rights without due process of law, if it cases of Mugler v. Kansas, the writs of error be general in its operation upon the subjects were to the supreme court of the state of to which it relates, and is enforceable in the Kansas, and the supreme court of the United usual modes established in the administration States was necessarily confined to the federal of government with respect to kindred matquestions involved in the suits. Kansas v. ters; that is, by process or proceedings Ziebold was an information against Ziebold adapted to the nature of the case.

The great and his copartner, brought in the state court, purpose of the requirement is to exclude and it was removed to the circuit court of everything that is arbitrary and capricious the United States by the defendants, on what in legislation affecting the rights of the citiground does not appear. That court dismissed zen." Apparently any mode of procedure, the information on hearing, and the state of duly established by a state, which provides Kansas appealed to the supreme court of the for an impartial trial, and does not violate United States. In that case it was compe- the fundamental principles of general juristent for the supreme court of the United prudence, would be due process of law withStates to decide whether the statute of the in the meaning of that amendment. A difstate of Kansas was inconsistent with the ferent construction has been given by this constitution of that state; but, in deciding court to the phrase "the law of the land, this, it would follow the decision of the su-contained in article 12 of our declaration of preme court of that state, if that court bad rights, and Kansas v. Ziebold is not an audecided it. It does not appear that the pre- thority upon the meaning of our constitution. cise question involved in that case had been See Hurtado v. California, 110 U. S. 516, 4 decided by the supreme court of Kansas, but Sup. Ct. Rep. 111; Jones v. Robbins, and the opinion of the supreme court of the Unit- other Massachusetts cases cited supra. It ed States cannot be considered as a careful will hardly be contended that intoxicating determination of the question of the conform-' liquors can be destroyed in this common

wealth because they are kept for sale in vio- or condition of tangible property, or by relation of law, unless this fact has been found moving obstructions to the exercise of a pubby a jury. Fisher v. McGirr, Brown v. Per- lic right. Its purpose is, I think, to prevent kins, ubi supra. See Ely v. Supervisors, 36 the illegal sale of intoxicating liquors by punN. Y. 297; Gray v. Ayres, 7 Dana, 375; ishing, by fine or imprisonment, or by both, Welch v. Stowell, 2 Doug. (Mich.) 332; Rex without limit, in the discretion of the court, v. Pappineau, 2 Strange, 686. In Mugler v. any person who sells or keeps such liquors Kansas, ubi supra, and in Littleton v. Fritz, for sale after he bas been enjoined by the 65 Iowa, 488, 22 N. W. Rep. 641, a good deal court. The prevention of crime by the punof reliance was placed upon the jurisdiction ishment of persons found guilty of an ofof courts of equity over informations filed by fense against a general law is the end aimed the attorney general to enjoin public nui- at. The keeping or selling of intoxicating sances, and it is said that this jurisdiction ex- liquors without a license was a well-known tends, not only to purprestures, but also to offense when our constitution was adopted, public nuisances, strictly so called. In Lit- and the procedure for punishing it, or for tleton v. Fritz it was conceded, for the pur- forfeiting the liquors, was also well known. poses of the decision, that at the time of the Articles 12 and 15 were inserted in the decadoption of the constitution of Iowa courts laration of rights as a protection to every inof equity declined to entertain suits to re- dividual in his life, liberty, and property. strain and abate public nuisances in cases If a statute had given jurisdiction in equity where rights of property were not involved. to hear, without a jury, an information like In State v. Uhrig, 14 Mo. App. 413, this this, and had authorized the court on finding jurisdiction was examined, and the court say the respondent guilty to punish him in its that it had been exercised only in three classes discretion by fine or imprisonment, or both, of cases: First, "to restrain purprestures of in what substantial respect would such a public highways or navigations;" second, "to statute differ from this i The legislature restrain threatened nuisances dangerous to cannot do indirectly what it cannot do dis the health of the whole community;" third, rectly. If the legislature, by statute, can au"to restrain ultra vires acts of corporations thorize a court to enjoin any person from injurious to public right;" and that “the ex- illegally keeping or selling intoxicating liqercise of equity jurisdiction in these three uors in any specified place within the comclasses of cases is an exception to the rule; monwealth, why cannot it authorize a court

* that a court of equity has no juris- to enjoin any person from illegally keeping diction in matters of crime." In Attorney or selling intoxicating liquors anywhere General v. Ice Co., 104 Mass. 239, this court within the common wealth? And, if this can say that sitting in equity it "does not ad- be done, why can it not authorize a court to minister punishinent, or enforce forfeitures, enjoin any person from doing any illegal or for transgressions of law, but its jurisdiction criminal act anywhere within the commonis limited to the protection of civil rights, wealth, and to try without a jury any person and to cases in which full and adequate re- so enjoined, on a charge of having violated lief cannot be had on the common-law side the injunction, and to punish him by fine of this court, or of the other courts of the and imprisonment, without limit, if the commonwealth." The court also says that court find him guilty? Except for constitu"the only cases in which informations in tional limitations, the legislature could deal equity, in the name of the attorney general, with all crimes by way of injunctions in have been sustained by this court, are of two equity. Indeed, if this jurisdiction were classes: The one is of pablic nuisances, which confined to crimes having some direct relaaffect or endanger the public safety or con- tion to a particular building, place, or tenevenience, and require immediate judicial in- ment, the number of such crimes is large, terposition, like obstructions of highways or and all crimes have some relation to place, navigable waters; * * * the other is of as they must be committed somewhere. The trusts for charitable purposes,” etc. See At- harboring or concealing of criminals; the retorney General v. Aqueduct Corp. 133 Mass. ceiving or concealing of stolen or embezzled 361; Attorney General v. Gas Co., 142 Mass. property; the making or keeping of instru417,8 N. E. Rep. 138. No case has been cited ments intended for criminal use; the violawhere, under the general jurisdiction of ation of the provisions of a criminal statute court of equity, an injunction has been regulating trade; burglary, arson, and other granted in behalf of the public to restrain a similar offenses,—have a direct relation to a person from selling intoxicating liquors in particular building, place, or, tenement, and violation of statute, or from doing similar the place or building in which these offenses acts which have been prohibited on general are committed may be said to be used for the considerations of public policy. So far as purpose. In the prosecution of crimes, by appears, courts acting under their general way of injunctions in equity, the existing equity powers have refused to entertain suits statutes of limitations would not be a debrought for this purpose. State v. Uhrig, fense, and the whole course of criminal proubi supra; State v. Crawford, ubi supra. cedure would be changed. It was not the inThe Massachusetts statute of 1887, c. 380, tention of the constitution that

persons should was not passed for the abatement of a nui- be punished for violating general laws by sance by destroying or changing the character proceedings in equity, or by a court acting

without a jury, and subject to no limitations | parcel of this land measuring 77 feet on Beaupon its power to fine and imprison except con street, and on the 24th of April, 1886, it at its own discretion. The safeguards of conveyed to Nathan Matthews another parthe common law were carefully secured by cel, 48 feet in width, lying westerly of and the declaration of rights, both in public prose- adjoining the land conveyed to Simes. Each cutions and in private suits, "except in deed contained the following provision: “The cases in which it has heretofore been other- center of the easterly and westerly partition wise used and practiced.” There is nothing walls of the houses and buildings first erected novel about the present suit except the pro- on said land shall be placed on the division cedure. Statutes against illegally selling or lines between the granted premises and the keeping for sale intoxicating liquors, from adjoining lots, and shall be good and suffithe earliest times, have been enforced by cient walls; and the party first building such criminal complaints or indictments, or by partition wall, whether the owner of the penal actions. Such statutes were never en- premises hereby granted or of an adjoining forced in equity anywhere when the consti- lot, shall be entitled to have and receive from tution was adopted. I think that the statute the party using the wall one-half of the actual under which the present proceedings were cost of so much of said wall, including the brought is inconsistent with article 12 of the pile foundations and stone and brick work and declaration of rights.

fences, as he shall actually use." The center

of the easterly wall of plaintiff's house coinJustices DEVENS and WILLIAM ALLEN cides with the dividing line between his lot concur in this dissent.

and defendant's. The wall is 12 inches thick

and 55 feet high. The defendant is propos(149 Mass. 595)

ing to build a house upon her land, higher MATTHEWS 0. DIXEY.

and deeper than the plaintiff's, and for that (Supreme Judicial Court of Massachusetts.

purpose to carry up the partition wall built Suffolk. Sept. 5, 1889.)

by the plaintiff to a height of over 60 feet, PARTY-WALLS-ALTERATIONS.

and to extend it 12 feet in the rear. To car1. Adjoining property owners, who claim under ry up the existing wall to the height to which deeds from the same original grantor, which pro- the defendant proposes to carry it, it will be vide that “the center of the easterly and westerly necessary, in order to comply with the buildpartition walls of the houses * on said land shall be placed on the division lines ing law, (St. 1885, c. 374,) to add four inches between the granted premises and the adjoining to the thickness of the wall below the third lots, and shall be good and sufficient walls, and the story of the house, and to widen the foundaparty first building such partition wall' *

tion. The defendant proposes to add to the shall be entitled to

receive from the party using the wall one-half of the actual cost," thickness of the wall and foundation on her etc., have equal and mutual rights in relation to own land, but it is contended by the plaintiff the erection of party-walls, and one may enlarge a that it will not be practicable to get a sufficient wall and foundation previously erected by the foundation without renewing the existing other, where it appears that such enlargement is in accordance with the building laws, and it is not foundation, and, perhaps, extending it someshown that the original wall will be injured there. what further in the plaintiff's land. If this by. 2. Payment by the party seeking to enlarge the

is rendered necessary by a proper use which wall of his share of the costs of the original wall the defendant makes of the existing wall, we is not a condition precedent to the exercise of his see no objection to it. If the foundation is rights therein. 3. It is immaterial that he claims under a deed fendant proposes to make of the wall, or for

insufficient for a proper use which the deprior to that of the builder of the wall.

4. An extension to the original wall, built on such a wall as the defendant has a right to the division line, is within the provision, as the have, the right to strengthen or enlarge the latter extends to every part of the line, and can- foundation so as to make it sufficient is imnot be limited to that part first built against.

plied. If the defendant has a right to carry Report from supreme judicial court, Suf- up the wall, she has a right to put in a founfolk county; W. A. FIELD, Judge.

dation sufficient therefor, doing no injury to Bill by Nathan Matthews, Jr., against El- the existing wall. Bank v. Stokes, L. R. 9 len Sturgis Dixey, to enjoin defendant from Ch. Div. 68; Eno v. Del Vecchio, 4 Duer, 53; interfering with and enlarging a certain par- Field v. Leiter, (Ill.) 6 N. E. Rep. 877. ty-wall. The cause is reported to the full The right claimed by the defendant is to court for decision.

carry up the partition wall built by Matthews. N. Matthews, Jr., pro se. H. H. Sprague Whether she has that right depends upon the and J. L. Thorndike, for defendant.

construction to be given to, and the infer

ences to be drawn from, the deed to Simes, W. ALLEN, J. The parties own adjoining her grantor. The provision in the deed is lots on the north side of Beacon street, in somewhat blind, but on examination its Boston. Both parties claim under the Bus- meaning becomes evident. It may be aston & Roxbury Mill Corporation, which for- sumed that the grantor owned a large tract merly owned the land extending northerly of land, which it was selling in parcels to be from Beacon street to the harbor commis- built upon. It may also be assumed that the sioner's line, and westerly from Hereford provision was intended as a general provisstreet to West Chester park. March 15, 1886, ion, to be applied to all the land sold, and the corporation conveyed to William Simes a' to be inserted in all deeds of it, and that it

was contained in the deed of the land that because the same right that was granted by had been sold adjoining the Simes land on that in the plaintiff's parcel was reserved in the east. The land conveyed to Simes was the defendant's. It is immaterial that the of sufficient width for several buildings. defendant has not paid to the plaintiff any of The words, “the easterly and westerly parti- the costs of the wall. That is in no sense a tion walls of the houses * first erect- condition precedent to the possession or the ed on said land shall be placed on the divis- exercise of the right of the defendant in the ion line between the granted premises and party-wall. the adjoining lots,” plainly do not mean all The plaintiff claims that the grant to erect partition walls between houses built on the a party-wall is to the owner who shall first land, but party-walls of houses built on the put up a building on the line, and is limited easterly or westerly lines of the land con- to such good and sufficient wall as shall be veyed. It was a grant of a right to build a first erected. The general intention of the party-wall upon both the eastern and western provision is that the walls of adjoining buildsides of the lot, one-half of which should be ings on the lines of the land conveyed shall upon land not included within the lines of be party-walls, and this is secured by providthe description. This gave a right, or inter-ing that the wall first built on the line shall est, or estate in the adjoining land, which it be a party-wall. Before any wall is erected, is not necessary to attempt to name. The either owner may build such a wall as he has same right that was granted to the grantee occasion to use, being a good and sufficient was also reserved to the grantor. If this wall. After the wall is built it is a partywould not be inferred from the mere grant wall, and the ordinary rights and incidents of the right to build a party-wall, which is of a party-wall exist. The other owner can built upon both estates, and belongs to both, use it for any purpose which a party-wall, the terms of the grant show that the benefit upon the enjoyment of which no special reof the grantor equally with the grantee was strictions are placed, can by law be used. intended. It not only gave the grantee the One of these purposes and uses is to buildright to build a party-wall, but gave the gran- upon it, if eithir owner has occasion to carry tor the right to require that no wall of a it up. Everett v. Edwards, ante, 52, (Sufbuilding, except a party-wall, should be built folk, Sept. 5, 1889.) This case furnishes an adjoining his line; and it further provided apt illustration of the rule. The Boston & for the case of the erection of “such walls" Roxbury Mill Corporation authorized and reby the owner of "an adjoining lot.' It is quired Simes, if he should put up a two-story also to be considered that the provision was house upon the line, to make the wall of it a probably intended to be applied to all parcels party-wall. Did it intend to preclude itself sold, and to give mutual rights to and in and its assigns from using that wall for anyparty-walls to the purchasers of different thing higher than a two-story building, and parcels, and that could not be done unless the from ever putting up a three or five story grantor reserved to himself in the land con- house on the line without building up a sevveyed, the same rights which he granted in eral wall from the foundation on its side of the the land not conveyed. The deed to Simes line? Did it intend that the accident of a bounds his land on the east by land “recent- first erection should determine the height to ly conveyed by this corporation to W. J. Sal- which either owner could ever carry up the tonstall; "but, unless the right to build a wall? By giving the natural and reasonable party-wall on the land was reserved in the construction to the provision, that the walls deed to Saltonstall, the grant to Sinies of that of buildings erected on the line should be right would be nugatory; unless the right party-walls, in which the parties should have was reserved in the deed to Simes, it could equal rights, the plain intention of the grannot have been granted to Matthews, and the tor will be carried out, either party can use plaintiff would now be unlawfully, or by the wall as it is, and either party can carry it mere license, maintaining a wall on the de- up as the party-wall of such house as he may fendant's land. The true construction of have occasion to erect, in neither case injurthe provision is that when the corporation ing or impairing the wall as originally built. conveyed to Simes it gave and reserved the The plaintiff objects that the addition of four mutual right to build a party-wall upon the inches to the thickness of the wall below the line between them, with the further provis- third story, which the defendant proposes to ion that neither party should make the wall make on her side of the wall, will not be of a house which he might erect on the line compliance with the law, which requires a a several wall on his own land adjoining the wall sixteen inches in thickness. The report line, but a party-wall, one-half upon each es- finds that the defendant does not intend to tate. This is the meaning and effect of the do anything which she may not be permitted provision in regard to the building first erect- to do under the laws by the inspector of ed on the land. The plaintiff, then, as pos- buildings. This renders it unnecessary to sessing the rights reserved by the grantor in consider whether it would be a ground for the deed to Simes, and the defendant, as pos- the interference of the court at the suit of sessing the rights granted to Simes by that the plaintiff, if it appeared that the defenddeed, have equal and mutual rights in rela- ant intended or threatened to violate the tion to a party-wall. It is immaterial that building law. The report finds that the wall, the defendant claims under the elder deed, with the additional thickness proposed to be

added by the defendant, will be amply suffi-| title by devise. Plaintiff excepted to two recient, and it does not appear that the origi- fusals of the court to charge the jury, which nal wall will be weakened, or the plaintiff are stated in the opinion, and a verdict reninjured, by the changes proposed by the dered for defendant. defendant. We think that the defendant A. D. Bosson, for plaintiff. W. B. Durant, has a right to carry up the wall, and to make for defendant. such changes in the foundation as are necessary for that purpose. The defendant also FIELD, J. This is an action of contract proposes to extend the wall 12 feet in the for the breach of covenants contained in a rear. This is the building of a new wall, warranty deed of land delivered by the derather than the enlargement of the original fendant to Anna F. Page, who has deceased, one, for it is not to be upon land occupiel by and who by will devised the land to the plainthat. Without relying upon the technical tiff. The defendant has no title to a part of point that the defendant's building is the the land called the “Cheever Lot,” included first one to be erected on the land conveyed in the description in the deed, and this conto Simes, we think that the provision was stitutes the breach declared on. The barintended to apply to every part of the line, gain for the land was made with the defendand cannot be limited to such part as may ant by the plaintiff, acting as agent for Anna first he built against. It was intended to F. Page, and the plaintiff drew the deed, and include every wall of a building first erected it is assumed that the acts and intention of on any part of the line. The board fence put the plaintiff are to be imputed to his princiup by the plaintiff was not the wail of a house pal, the grantee in the deed. The defendant or building, nor was it built one-half on each "introduced evidence that he was illiterate; side of the line. Decree affirmed.

that the deed was not read to him, and he

did not and could not read it; that he signed (150 Mags. 27)

the deed supposing that it covered only the PAGE V. HIGGINS.

property he owned east of the stone wall

spuken of in said deed.” There was evi'Supreme Judicial Court of Massachusetts. Suffolk. Sept. 5, 1889.)

dence that the parties orally agreed to buy BREACH OF COVENANTS-MUTUAL MISTAKE.

and sell “only what the defendant owned 1. In an action for breach of covenants, de-east of the stone wall, and that the defendfendant, who had conveyed certain land to plain- ant relied upon the plaintiff to draw the deed tiff's testatrix, to part of which he had no title, al- according to such agreement.” The defendleged that as to that portion the deed was drawn ant delivered to the plaintiff his title-deeds by accidentor mutual mistake, and showed that he was illiterate; that the deed was not read to him, for this purpose. There were deeds of land and that he signed it supposing it covered only the east of the stone wall, but they did not inproperty owned by him east of a stone wall, as or- clude the Cheever lot. The exceptions recite ally agreed between him and plaintiff's testatrix; that “it is not claimed by the defendant that but did not claim that plaintiff, who drew the deed as agent for his testatrix, acted unfairly. There Dr. Page did anything that was unfair. It was evidence that plaintiff

' honestly intended to de- is suggested that the explanation of the misscribe what the oral agreement called for, assum-take perhaps is that at the time the defendant ing that defendant owned the land in dispute. Held error to refuse to instruct the jury that, if supposed that Dr. Page had already acquired plaintiff intended and understood that the deed he the Cheever land, and that Dr. Page supårew included the lot in dispute, the description posed that the defendant had acquired it, and therein was not made by accident or mutual mis- both parties were assuming that their land take.

2. Where the mistake of one party as to the came together,—the defendant assuming it land to be conveyed under an oral agreement is in came together because Dr. Page owned the misunderstanding that the other owned and agreed Cheever place, and Dr. Page assuring that to sell certain land, and not as to the contents of the deed or its legal effect, and the mistake of the it came together because the

defendant owned grantor is in supposing that the deed did not contain the Cheever place; but, without any intent nor convey land he did not own, it is a mistake as to whatever to enlarge or depart from the oral the subject-matter of the contract, and not a “mutual mistake” concerning the contents or legal ef agreement that they had made to convey fect of a written instrument.

whatever it might be that the defendant 3. In such case an issue was framed as to owned east of the wall, this deed was framed whether "plaintiff's testatrix and defendant made in the way that it was by Dr. Page, honestly an oral agreement prior to the execution of the deed, whereby she was to buy and he to sell only intending to describe just what the oral agreewhat he owned east of the wall, and whether they ment had been.” attempted to embody it in the deed.” Held, that The defendant has attempted to set up an the issue, standing alone, will not support a verdict equitable defense under St. 1883, c. 223, ş for defendant, in that it does not state whether the land was to be described by metes and bourds, in a 14. This defense is that the defendant deed containing the usual covenants of a warranty signed the deed without reading it, or having deed, or whether there was a misunderstanding as it read, supposing that it had been drawn by to the land to be conveyed.

the plaintiff according to the oral agreement Exceptions from superior court, Suffolk to sell all the land which the defendant county; ALBERT MASON, Judge.

owned east of the stone wall, and no more, Action of contract by Horatio N. Page and that, if the description in the deed inagainst James Higgins for breach of war- cludes any land other than that owned by ranties in a deed from him to one Anna F. him east of the stone wall, “such description Page, deceased, from whom plaintiff claims was made by accident and mistake.” The

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