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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 amended by the statute of March 7, 1885, was in violation of the fourteenth amendment of the constitution of the United States. See State v. Crawford, 28 Kan. 726, 743; Schmidt v. Cobb, 119 U. S. 286, 7 Sup. Ct. Rep. 1373; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6. That section, as amended, declared that every place where intoxicating liquors were sold, manufactured, etc., in violation of the act, was a common nuisance, and it authorized the attorney general, county attorney, or any citizen to maintain an action in the name of the state, and it provided that, if by the judgment of any court having jurisdiction such place was found to be a nuisance, the sheriff, etc., "shall be directed to shut up and abate such place by taking possession thereof and destroying all intoxicating liquors found there, together with all signs, screens, bars, bottles, glasses, and other property used in maintaining said nuisance," and that an injunction might issue at the commencement of the action without giving a bond, and that any person violating the terms of any injunction granted in such a proceeding should be punished as for contempt by a fine or imprisonment, or both. The question was not much considered in that case, if it were considered at all, whether that statute was inconsistent with the constitution of Kansas, and the decision, in effect, is that the proceedings authorized by it were not inconsistent with the fourteenth amendment of the constitution of the United States. In the cases of Mugler v. Kansas, the writs of error were to the supreme court of the state of Kansas, and the supreme court of the United States was necessarily confined to the federal questions involved in the suits. Kansas v. Ziebold was an information against Ziebold and his copartner, brought in the state court, and it was removed to the circuit court of the United States by the defendants, on what ground does not appear. That court dismissed the information on hearing, and the state of Kansas appealed to the supreme court of the United States. In that case it was competent for the supreme court of the United States to decide whether the statute of the state of Kansas was inconsistent with the constitution of that state; but, in deciding this, it would follow the decision of the supreme court of that state, if that court had decided it. It does not appear that the precise question involved in that case had been decided by the supreme court of Kansas, but the opinion of the supreme court of the United States cannot be considered as a careful determination of the question of the conform

The phrase "due process of law,' contained in the fourteenth amendment of the constitution of the United States, has not been construed to mean that parties shall be entitled to a jury trial in civil suits at common law, or that a person shall be tried for a felony, or a capital crime, only on presentment of a grand jury, and it is doubtful even if it would be held that the amendment secures a trial by jury in criminal cases. The clause of the amendment we are considering is a restraint on all the states of the United States, and the supreme court of the United States has taken notice that there are considerable diversities in the jurisprudence of the different states. That court say, in Walker v. Sauvinet, 92 U. S. 90, 93: "This requirement of the constitution is met if the trial is held according to the settled course of judicial proceedings. * **Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state." In Missouri v. Lewis, 101 U. S. 22, 31, that court say: "Great diversities in these respects may exist in two states, separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding." In Dent v. West Virginia, 129 U. S. 114, 124, 9 Sup. Ct. Rep. 231, that court say: "It is sufficient for the purposes of this case to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters; that is, by process or proceedings adapted to the nature of the case. The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen. Apparently any mode of procedure, duly established by a state, which provides for an impartial trial, and does not violate the fundamental principles of general jurisprudence, would be due process of law within the meaning of that amendment. A different construction has been given by this court to the phrase "the law of the land,” contained in article 12 of our declaration of rights, and Kansas v. Ziebold is not an authority upon the meaning of our constitution. See Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111; Jones v. Robbins, and other Massachusetts cases cited supra. will hardly be contended that intoxicating liquors can be destroyed in this common

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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 has 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? The legislature restrain threatened nuisances dangerous to cannot do indirectly what it cannot do dithe 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 say that sitting in equity it "does not administer punishment, or enforce forfeitures, for transgressions of law, but its jurisdiction is limited to the protection of civil rights, and to cases in which full and adequate relief cannot be had on the common-law side of this court, or of the other courts of the commonwealth." The court also says that "the only cases in which informations in equity, in the name of the attorney general, have been sustained by this court, are of two classes: The one is of public nuisances, which affect or endanger the public safety or convenience, and require immediate judicial interposition, like obstructions of highways or navigable waters; * * * the other is of trusts for charitable purposes," etc. See Attorney General v. Aqueduct Corp. 133 Mass. 361; Attorney General v. Gas Co., 142 Mass. 417, 8 N. E. Rep. 138. No case has been cited where, under the general jurisdiction of a court of equity, an injunction has been granted in behalf of the public to restrain a person from selling intoxicating liquors in violation of statute, or from doing similar acts which have been prohibited on general considerations of public policy. So far as appears, courts acting under their general equity powers have refused to entertain suits brought for this purpose. State v. Uhrig, ubi supra; State v. Crawford, ubi supra.

The Massachusetts statute of 1887, c. 380, was not passed for the abatement of a nuisance by destroying or changing the character

within the common wealth? And, if this can be done, why can it not authorize a court to enjoin any person from doing any illegal or criminal act any where within the commonwealth, and to try without a jury any person so enjoined, on a charge of having violated the injunction, and to punish him by fine and imprisonment, without limit, if the court find him guilty? Except for constitutional limitations, the legislature could deal with all crimes by way of injunctions in equity. Indeed, if this jurisdiction were confined to crimes having some direct relation to a particular building, place, or tenement, the number of such crimes is large, and all crimes have some relation to place, as they must be committed somewhere. The harboring or concealing of criminals; the receiving or concealing of stolen or embezzled property; the making or keeping of instruments intended for criminal use; the violation of the provisions of a criminal statute regulating trade; burglary, arson, and other similar offenses.-have a direct relation to a particular building, place, or tenement, and the place or building in which these offenses are committed may be said to be used for the purpose. In the prosecution of crimes, by way of injunctions in equity, the existing statutes of limitations would not be a defense, and the whole course of criminal procedure would be changed. It was not the intention of the constitution that persons should be punished for violating general laws by 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 par the 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 constitution was adopted. I think that the statute under which the present proceedings were brought is inconsistent with article 12 of the declaration of rights.

lot, shall be entitled to have and receive from the party using the wall one-half of the actual cost of so much of said wall, including the pile foundations and stone and brick work and fences, as he shall actually use." The center of the easterly wall of plaintiff's house coin

Justices DEVENS and WILLIAM ALLEN cides with the dividing line between his lot concur in this dissent.

(149 Mass. 595)

MATTHEWS v. DIXEY.

(Supreme Judicial Court of Massachusetts.
Suffolk. Sept. 5, 1889.)
PARTY-WALLS-ALTERATIONS.

*

*

*

1. Adjoining property owners, who claim under deeds from the same original grantor, which provide that "the center of the easterly and westerly partition walls of the houses * first erected on said land shall be placed on the division lines between the granted premises and the adjoining lots, and shall be good and sufficient walls, and the party first building such partition wall' * * * shall be entitled to * * receive from the party using the wall one-half of the actual cost," etc., have equal and mutual rights in relation to the erection of party-walls, and one may enlarge a wall and foundation previously erected by the other, where it appears that such enlargement is in accordance with the building laws, and it is not shown that the original wall will be injured thereby.

2. Payment by the party seeking to enlarge the wall of his share of the costs of the original wall is not a condition precedent to the exercise of his rights therein.

3. It is immaterial that he claims under a deed

prior to that of the builder of the wall.

4. An extension to the original wall, built on the division line, is within the provision, as the latter extends to every part of the line, and cannot be limited to that part first built against. Report from supreme judicial court, Suffolk county; W. A. FIELD, Judge.

Bill by Nathan Matthews, Jr., against Ellen Sturgis Dixey, to enjoin defendant from interfering with and enlarging a certain party-wall. The cause is reported to the full court for decision.

N. Matthews, Jr., pro se. H. H. Sprague and J. L. Thorndike, for defendant.

and defendant's. The wall is 12 inches thick and 55 feet high. The defendant is proposing to build a house upon her land, higher and deeper than the plaintiff's, and for that purpose to carry up the partition wall built by the plaintiff to a height of over 60 feet, and to extend it 12 feet in the rear. To carTy up the existing wall to the height to which the defendant proposes to carry it, it will be necessary, in order to comply with the building law, (St. 1885, c. 374,) to add four inches to the thickness of the wall below the third story of the house, and to widen the foundation. The defendant proposes to add to the thickness of the wall and foundation on her own land, but it is contended by the plaintiff that it will not be practicable to get a sufficient foundation without renewing the existing foundation, and, perhaps, extending it somewhat further in the plaintiff's land. If this is rendered necessary by a proper use which the defendant makes of the existing wall, we see no objection to it. If the foundation is insufficient for a proper use which the defendant proposes to make of the wall, or for such a wall as the defendant has a right to have, the right to strengthen or enlarge the foundation so as to make it sufficient is implied. If the defendant has a right to carry up the wall, she has a right to put in a foundation sufficient therefor, doing no injury to the existing wall. Bank v. Stokes, L. R. 9 Ch. Div. 68; Eno v. Del Vecchio, 4 Duer, 53; Field v. Leiter, (Ill.) 6 N. E. Rep. 877.

The right claimed by the defendant is to carry up the partition wall built by Matthews. Whether she has that right depends upon the construction to be given to, and the inferences 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 Bos- 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

The plaintiff claims that the grant to erect a party-wall is to the owner who shall first put up a building on the line, and is limited to such good and sufficient wall as shall be first erected. The general intention of the provision is that the walls of adjoining buildings on the lines of the land conveyed shall be party-walls, and this is secured by provid

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 partition walls between houses built on the land, but party-walls of houses built on the easterly or westerly lines of the land conveyed. It was a grant of a right to build a party-wall upon both the eastern and western sides of the lot, one-half of which should be upon land not included within the lines of the 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 either 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 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 Simes 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 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 corporationing or impairing the wall as originally built. conveyed to Simes it gave and reserved the mutual right to build a party-wall upon the line between them, with the further provision that neither party should make the wall of a house which he might erect on the line a several wall on his own land adjoining the line, but a party-wall, one-half upon each estate. This is the meaning and effect of the provision in regard to the building first erected on the land. The plaintiff, then, as possessing the rights reserved by the grantor in the deed to Simes, and the defendant, as possessing the rights granted to Simes by that deed, have equal and mutual rights in relation to a party-wall. It is immaterial that the defendant claims under the elder deed,

use

The plaintiff objects that the addition of four inches to the thickness of the wall below the third story, which the defendant proposes to make on her side of the wall, will not be compliance with the law, which requires a wall sixteen inches in thickness. The report finds that the defendant does not intend to do anything which she may not be permitted to do under the laws by the inspector of buildings. This renders it unnecessary to consider whether it would be a ground for the interference of the court at the suit of the plaintiff, if it appeared that the defendant intended or threatened to violate the building law. The report finds that the wall, with the additional thickness proposed to be

added by the defendant, will be amply sufficient, and it does not appear that the original wall will be weakened, or the plaintiff injured, by the changes proposed by the defendant. We think that the defendant has a right to carry up the wall, and to make such changes in the foundation as are necessary for that purpose. The defendant also proposes to extend the wall 12 feet in the rear. This is the building of a new wall, rather than the enlargement of the original one, for it is not to be upon land occupied by that. Without relying upon the technical point that the defendant's building is the first one to be erected on the land conveyed to Simes, we think that the provision was intended to apply to every part of the line, and cannot be limited to such part as may first be built against. It was intended to include every wall of a building first erected on any part of the line. The board fence put up by the plaintiff was not the wail of a house or building, nor was it built one-half on each side of the line. Decree affirmed.

(150 Mass. 27)

PAGE v. HIGGINS.

'Supreme Judicial Court of Massachusetts. Suffolk. Sept. 5, 1889.)

BREACH OF COVENANTS-MUTUAL MISTAKE.

1. In an action for breach of covenants, defendant, who had conveyed certain land to plaintiff's testatrix, to part of which he had no title, alleged that as to that portion the deed was drawn by accident or mutual mistake, and showed that he was illiterate; that the deed was not read to him, and that he signed it supposing it covered only the property owned by him east of a stone wall, as orally agreed between him and plaintiff's testatrix; but did not claim that plaintiff, who drew the deed as agent for his testatrix, acted unfairly. There was evidence that plaintiff honestly intended to describe what the oral agreement called for, assuming that defendant owned the land in dispute. Held error to refuse to instruct the jury that, if plaintiff intended and understood that the deed he drew included the lot in dispute, the description therein was not made by accident or mutual mis

take.

2. Where the mistake of one party as to the land to be conveyed under an oral agreement is in misunderstanding that the other owned and agreed to sell certain land, and not as to the contents of the deed or its legal effect, and the mistake of the grantor is in supposing that the deed did not contain nor convey land he did not own, it is a mistake as to the subject-matter of the contract, and not a "mutual mistake" concerning the contents or legal ef

fect of a written instrument.

3. In such case an issue was framed as to whether "plaintiff's testatrix and defendant made an oral agreement prior to the execution of the deed, whereby she was to buy and he to sell only what he owned east of the wall, and whether they attempted to embody it in the deed." Held, that the issue, standing alone, will not support a verdict for defendant, in that it does not state whether the land was to be described by metes and bounds, in a deed containing the usual covenants of a warranty deed, or whether there was a misunderstanding as to the land to be conveyed.

Exceptions from superior court, Suffolk county; ALBERT MASON, Judge.

Action of contract by Horatio N. Page against James Higgins for breach of warranties in a deed from him to one Anna F. Page, deceased, from whom plaintiff claims

title by devise. Plaintiff excepted to two refusals of the court to charge the jury, which are stated in the opinion, and a verdict rendered for defendant.

A. D. Bosson, for plaintiff. W. B. Durant, for defendant.

FIELD, J. This is an action of contract for the breach of covenants contained in a warranty deed of land delivered by the defendant to Anna F. Page, who has deceased, and who by will devised the land to the plaintiff. The defendant has no title to a part of the land called the "Cheever Lot," included in the description in the deed, and this constitutes the breach declared on. The bargain for the land was made with the defendant by the plaintiff, acting as agent for Anna F. Page, and the plaintiff drew the deed, and it is assumed that the acts and intention of the plaintiff are to be imputed to his principal, the grantee in the deed. The defendant "introduced evidence that he was illiterate; that the deed was not read to him, and he did not and could not read it; that he signed the deed supposing that it covered only the property he owned east of the stone wall spoken of in said deed." There was evidence that the parties orally agreed to buy and sell "only what the defendant owned east of the stone wall, and that the defendant relied upon the plaintiff to draw the deed according to such agreement." The defendant delivered to the plaintiff his title-deeds for this purpose. There were deeds of land east of the stone wall, but they did not include the Cheever lot. The exceptions recite that "it is not claimed by the defendant that Dr. Page did anything that was unfair. It is suggested that the explanation of the mistake perhaps is that at the time the defendant supposed that Dr. Page had already acquired the Cheever land, and that Dr. Page supposed that the defendant had acquired it, and both parties were assuming that their land came together,-the defendant assuming it came together because Dr. Page owned the Cheever place, and Dr. Page assuming that it came together because the defendant owned the Cheever place; but, without any intent whatever to enlarge or depart from the oral agreement that they had made to convey whatever it might be that the defendant owned east of the wall, this deed was framed in the way that it was by Dr. Page, honestly intending to describe just what the oral agreement had been."

The defendant has attempted to set up an equitable defense under St. 1883, c. 223, § 14. This defense is that the defendant signed the deed without reading it, or having it read, supposing that it had been drawn by the plaintiff according to the oral agreement to sell all the land which the defendant owned east of the stone wall, and no more, and that, if the description in the deed includes any land other than that owned by him east of the stone wall, "such description was made by accident and mistake." The

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