1. Where the assessors' list of valua- tion and assessment of polls and estates, did not exhibit in distinct columns the "true value of real estate" and the "reduced value,' as required by the Revised Statutes, but contained a column of the "val- ue," (and the like as to personal estate,) it was held that the irregu- larity did not render the valuation and assessment void. Torrey v. Millbury. 64 2 It was held, that under a warrant for a town meeting 66 to see if the town would make an appropriation towards purchasing a fire engine," the town was authorized to pass a vote "to raise and appropriate a sum for that object. Ibid.
3. But if the warrant had been, to see if the town would appropriate to a specific object money already in the town treasury or under the control of the town, it seems the town could not have considered the question of laying a tax for that object. Ibid. 4. A town voted to raise and appro- priate a certain sum for purchasing a fire engine, provided that the same amount should be raised by private subscription within ninety
days, the engine to be located by the selectmen. A subscription was obtained for the sum required, but on condition that the engine should be located in a particular place designated, and in consequence the assessors declined accepting it. Thereupon, with the consent of a portion of the subscribers, but with- out the knowledge of the others, the condition was erased; but one of the subscribers verbally guarantied to the assessors that the whole sum should be paid; and in this form the subscription was accepted, and the sum voted by the town was assessed. Held, that there was a substantial compliance with the proviso of the vote, and therefore that the assess- ment was authorized. Ibid. In assumpsit to recover back the amount of a tax alleged to have been illegally assessed, if a part of the tax was valid and a part void, and the void part can be distin- guished, the plaintiff is entitled to recover back only that part. Ibid. 6. Where a person refused to pay a tax valid in part and void in part, and it was collected by distress, it was held, in an action in which he recovered back the void part, that he was not entitled to recover back the costs of the distress, the warrant having been rightfully issued for the valid part of the tax. Ibid. 7. In an action against a school dis- trict to recover back money paid for a school district tax, the plaintiff objected that the meeting at which the tax was voted, was called by a prudential committee, elected at a meeting warned under an irregular warrant. Held, that the question of the regularity of this warrant was not open; it was sufficient that the committee was a committee de facto. Williams v. School District in Lu- nenburg.
8. In an action against a school district to recover back a tax which had been paid to a collector de facto of
the town, it was held, that it was not open to the plaintiff to object that the officer had not been duly elected and sworn. Ibid. 9. If the assessors omit through error of judgment or mistake of law, to assess on an individual a school district tax, the omission does not invalidate the assessment in regard to other persons. Ibid. 10. If one of three assessors, after due notice, refuses to attend and act in assessing a tax, the other two may proceed without him. Ibid. 11. In an action against a school dis- trict to recover back the amount of a tax paid for building a school- house, evidence on the part of the plaintiff that there was already a sufficient schoolhouse in the dis- trict, was held to be inadmissible. Ibid.
12. The provision in Revised Stat. c. 23, 37, that an assessment of a school district tax shall be made within thirty days after the clerk of the district shall certify to the assessors the sum voted by the dis- trict to be raised, is only directory, and does not prohibit an assessment after the expiration of that period. Ibid.
13. Assessors of a town, conducting themselves with fidelity and integrity in assessing a tax, in pursuance of a vote duly certified to them, are not responsible in any form of ac- tion, for accidentally assessing a person not an inhabitant of the town and not liable to be taxed. Baker v. Allen.
1. If personal property held in com- mon, be sold by one of the tenants in common, as if exclusively hist own, such sale is a conversion, and the cotenant may maintain trover therefor against him; or he may, in case the purchaser shall also sell and deliver the property as his own, maintain trover against such pur-
3. Where a tenant in common with the plaintiff, of merchandise, sold the same to the defendant, who sold it again, and the plaintiff made out a bill of his proportion of the price, against the defendant, and called on him, as he had taken the prop- erty after he had been informed it belonged to the plaintiff, to pay for the same and save himself further trouble and expense, it was held that the plaintiff did not thereby ratify the sale and waive his right to an action of trover against the defendant. Ibid.
See CONVEYANCE, 7. EXECUTION.
In 1768 the inhabitants of a town, then administering their parochial and municipal concerns under their organization as a town, voted to purchase a lot of land to build a meetinghouse upon, and the same was conveyed to the town in fee simple, the deed not expressing any trust nor any limitation or restric- tion as to the use of the land. They soon afterward erected a meeting- house upon the land, and in 1795 they also built a schoolhouse upon it. In 1822 they leased small par- cels of the land for the term of twenty years to erect horse-sheds upon. In 1824, upon the incorpo- ration of a portion of the inhabitants as a religious society, the residue became the First Parish. In 1836 the town purchased the right of the lessee of one of the horse-shed par-
cels and built thereon an addition to the schoolhouse. It was held, that the town, whilst it continued to act in the double capacity of town and parish, had a right to appropri- ate the land either to municipal or to parochial purposes, and from time to time to alter the appropriation; that upon the creation of the second religious society, the portion of the land then in use for the school re- mained vested in the town, and the residue became vested in the First Parish; and that the extent of the appropriation for the school inclu- ded not only the land actually covered by the schoolhouse, but so much of the land adjoining as was reasonably necessary and conven- ient for the occupation and enjoy- ment of the schoolhouse, that is, enough to secure convenient access, and to secure light and air on all sides of the house, with any rights of way to it enjoyed by the town. First Parish in Medford v. Medford.
See OFFICER. SCHOOL DISTRICT, 4.
INFANT. LANDLORD AND TENANT, 1, 2, 3. POUND, 1.
TENANT IN COMMON, 1, 2, 3.
TRUSTEE PROCESS.
1. One summoned as trustee under the trustee process, answered, that he had had no dealings with the de- fendant, and had not made any prom- ise or undertaking to him, within six years; that no promise or agree- ment made previously thereto had been broken or fell due, or any
cause of action accrued thereon, during such term of six years; and that he did not believe that he had one cent of money which the de- fendant had a right to demand or collect of him, because, if for no other reason, every such claim was barred by the statute of limitations. It was held, that although the de- fendant might still have claims upon which the respondent might be charged, consistently with the truth of his answer, yet that in the ab- sence of interrogatories in relation to such claims, he had set forth facts enough to avail himself of the statute bar, and was entitled to be discharged. Crossman v. Crossman and Tr.
But where the trustee in such case, answered further, that his belief was, that he did not owe the defendant any thing; that he had not in his pos- session any goods put into his hands by the defendant that he knew of; that he did not know of having any money of the defendant in his hands, and did not believe that he had; that the defendant had never put into his hands any goods or money, either to be applied to some par- ticular purpose, or accounted for, or to be delivered on demand, to his knowledge, where the purposes for which the same were put into his hands, were not fully answered or the money repaid to the defend- ant more than six years before the service of the writ; and that he did not know of having had, and did not believe that he had had, within six years, any goods or money of the defendant, which the defendant had a right to demand and recover of him; it was held, that the trus- tee was clearly entitled to be dis- charged. Ibid. 3. Under the process of foreign attach- ment, the plaintiff may put inter- rogatories to the trustee calculated to elicit facts that may tend to charge him, but he has no right to ask questions for the purpose of
discrediting his disclosures. Hence he is not entitled to the privilege of a cross-examination; and what the trustee may have told other persons, or said on former occasions, is immaterial and not a proper subject of inquiry Ibid. 4. In declaring in scire facias, under St. 1794, c. 65, against one summoned as trustee, it was not necessary to aver that the defendant had been adjudged trustee on the original trustee process; nor was such an adjudication required in all cases, if in any, in which the trustee did not discharge himself upon oath. (But see Revised Stat. c. 109, and particularly § 14.) Bickford v. Boston and Lowell Railroad Corporation.
5. In the case of an execution against a debtor and against his goods, effects and credits in the hands of a railroad corporation as his trustee, a demand on the president of the corporation to satisfy the execution, was held to have been made upon a proper officer of the corporation. Ibid.
6. By St. 1794, c. 65, § 6, a trustee who has been examined on oath, upon the original trustee process, and has disclosed funds of the principal in his hands, cannot be again examined on scire facias. By Revised Stat. c. 109, § 41, on scire facias, the court may require or permit the trustee to be examined anew, notwithstanding any examination in the original suit; and by c. 146, 5, the repeal of former statutes shall not affect any act done or right accruing or accrued, or any suit or proceeding had or commenced, in any civil case, but the proceedings, in every such case, shall be conformed, when necessary, to the provisions of the Revised Statutes. In a scire facias pending at the time when the Revised Statutes took effect, it was held, that the proceedings might be conformed to and regulated by the provis
7. One summoned on the trustee process made answer, that the principal defendant sold and delivered to him certain furniture and provisions to secure the payment of a debt; that the articles were left in the debtor's possession; that the furniture alone was not sufficient to pay his demand, but that the whole property was more than sufficient; but that most of the provisions had been consumed by the debtor. It was held, that the answer did not state with sufficient precision the amount of provisions consumed at the time when the process was served on the respondent, and he was adjudged trustee. Graves v. Walker and Tr. One summoned under the trustee process, is not excused from answering interrogatories on the ground that they tend to the discovery of fraud on his part, which may render him responsible as tru 8tee out of his own property, provi ded they do not tend to charge him criminally. Neally v. Ambrose and Trs.
See BILL OF EXCHANGE, &c. 8.
See LANDLORD AND TENANT, 4.
VERDICT.
See INDICTMENT, 1, 2.
1. It is not a valid objection to an election, that illegal votes were received, if they did not change the
1. After a highway has been regularly laid out by the county commissioners, and a time fixed for the town to complete it, and it is subsequently open to the use of the public, the traveller has a right to presume that it has in fact become a public highway, and the responsibility of the town for its safe condition thenceforth attaches. Drury v. Worcester. 44
2 A highway was laid out near the central part of a large town, by the county commissioners, and recorded, and the time for completing it as fixed by the commissioners and by the town's agreement with contractors for making it had elapsed, and the contractors insisted that it was completed and that the selectmen ought to accept it and open it for public use, which they refused to do, and the contractors then opened it themselves and it remain
ed open and was used by the public for six days, when an injury to a traveller was caused by a defect in it. Held, that the town had constructive notice of the way's being actually opened for public use, and was responsible for the injury sustained. Ibid. 3. The contractors were held not to be agents of the town for opening the road for public use. Ibid By the partition of a farm the righ of passing and repassing across eight acre lot, a part belonging to the plaintiff, became appurtenant to three acre lot, a part belonging to the defendant, and the defendant owned also nine acre lot, which was beyond three acre lot, but adjacent to it and not separated from it by any fence. It was held, that the defendant had no right to use the way as a way from nine acre lot, although in so doing he passed last from three acre lot on to the plaintiff's close. Davenport v.Lamson. 72 5. The defendant having loaded his cart with produce taken in part from each of his lots, passed with it from three acre lot over the plaintiff's close. Held, that trespass quare clausum would lie for such abuse of the defendant's right.
6. In an action against a town for an injury sustained by the overturning of the plaintiff's carriage, on a highway in such town, the burden of proof is on the plaintiff to show, that he was driving with ordinary skill and diligence at the time when the accident happened. Adams v. Carlisle.
146 7. In the case of land taken for a railroad, if the county commissioners refuse to assess damages on the ground that the party applying for them does not own the land, he is entitled to have their judgment revised by a jury; and a mandamus will lie in his behalf, to compel them to grant a warrant for a jury Carpenter v. County Commissioners of Bristol.
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