premises in his occupation in such a way as to prevent their being a nuisance: Stewart v. Putnam, 127 Mass. 403, 406; City of Lowell v. Spaulding, 4 Cush. 277; 50 Am. Dec. 775; Russell v. Shenton, 3 Q. B. 449; 1 Chit. Pl., 7th ed., 94.

The defendant's house was not a nuisance in itself. If it was, half the householders in Boston are indictable at the present moment. It was certain to become so at times by the mere working of nature alone, unless the tenant cleared the roof, or took other steps to prevent it. But so far as appears, the tenant could have done so by using reasonable care. If he could, it was his duty to do so, and the landlord was not liable, for the reasons which we have stated.

Exceptions overruled.

LANDLORD'S LIABILITY TO THIRD PERSONS FOR DEFECTIVE CONDITION OR CONSTRUCTION OF PREMISES: See Dalay v. Savage, 1 Am. St. Rep. 429; Donaldson v. Wilson, 1 Id. 487, and notes thereto collecting cases; Jennings v. Van Schaick, 2 Id. 459.

KNOWLTON v. ΚΕΕΝΑΝ.
[146 MASSACHUSETTS, 86.J

WRITTEN CONTRACTS MAY NOT BE ENLARged, Added to, or CONTROLLED BY PREVIOUS or contemporaneous oral agreements. Hence one who agreed to carry the mails according to a certain schedule cannot avoid his contract by showing that at the time at which he entered into it the other contracting party fraudulently promised to procure a change in such schedule, and fraudulently represented that he could procure such change. REPRESENTATION RESPECTING FUTURE EVENTS OR THINGS TO BE DONE AT A FUTURE TIME cannot be true nor false when made, and hence cannot be enforced unless it amounts to a contract.

ACTION of contract. The defense was based upon certain representations which the plaintiff was alleged to have made fraudulently, and with knowledge of their falseness, the nature of which is stated in the opinion. Judgment for plaintiffs. Defendants appeal.

J. W. Corcoran, for the defendants.

S. L. Graves, for the plaintiffs.

DEVENS, J. The plaintiffs, who were themselves contractors with the United States to carry the mails, having authority to sublet their contract, made a written contract with the defendants to carry the mails from Mashpee to Sandwich

and back, according to a certain schedule. As an excuse for the non-performance of their contract, they offered evidence that, at and before the execution of this contract, the plaintiffs fraudulently promised to procure a change in the schedule, and fraudulently represented that they could secure such a change; and that they knew at the time that they could not, and that they thereafter did not do so. The fraud which the defendants sought to establish was the failure to perform an oral promise contemporaneous with the written agreement, and constituting a part of the transaction, which the plaintiffs knew they could not perform.

The case at bar is readily distinguishable from those cases where it has been held that if a person makes a representation of a fact as of his own knowledge in a matter susceptible of knowledge, and such representation is not true, or where in a matter of opinion, judgment, or estimate dishonestly and with the intent to deceive states that as of his own knowledge which is not true, and the party to whom the statement is made relies and acts upon it as true, and thus sustains damage, it is a fraud and deceit for which the party making it is responsible: Tryan v. Whitmarsh, 1 Met. 1; Page v. Bent, 2 Met. 871; Milliken v. Thorndike, 103 Mass. 382; Munde v. Lambie, 122 Id. 336.

That which the defendant sought to prove, if it can with propriety be termed a representation at all, was a representation that something should thereafter be done. Such a representation, from its nature, could not be true or false at the time it was made, and, if anything, was a contract or promise. The difference between a representation that something exists which does not, and a representation that something shall be done thereafter, is obvious: Beattie v. Lord Ebury, L. R. 7 Ch. 777, 804. A representation which amounts to an engagement, if enforceable, must be so as amounting to a contract. "There is no middle term, no tertium quid," says Lord Cranworth, "between a representation so made to be effective for such a purpose and being effective for it, and a contract": Maunsell v. White, 4 H. L. Cas. 1039, 1056.

What the defendants sought to establish by their evidence was an oral contract, by which the terms of the written contract were to be changed by the efforts of the plaintiffs, and the mails which the defendants had in writing agreed to transport according to a specified schedule were to be transported according to a different schedule, to be obtained from

the postmaster-general. The principle that written contracts are not to be enlarged, added to, or controlled by previous or contemporaneous oral agreements is too well settled to require a citation of authorities. Proof of such a representation as that offered by the defendants was proof only of an oral contract to be thereafter executed. Nor even if the plaintiffs made this oral contract fraudulently, knowing they could not perform it, would that have rendered the evidence admissible. There was no fraud in the written contract itself, and such evidence could not have been received to control its operation, and virtually to annul it.

Exceptions overruled.

REPRESENTATIONS RESPECTING FUTURE EVENTS cannot be relied upon as creating an estoppel: See McLain v. Buliner, ante, p. 36.

ADMISSIBILITY OF PAROL EVIDENCE to vary or explain written instrument: See McFarland v. Sikes, 1 Am. St. Rep. 111, and note. In French v. Williams, 82 Va. 462, and Looney v. Rankin, 15 Or. 617, it is held that parol evidence is inadmissible to vary or add to a written instrument.

EVERETT V. HENDERSON.

[146 MASSACHUSETTS, 89.]

RECOGNIZANCE ENTERED INTO UPON BEHALF OF A POOR DEBTOR CANNOT BE AVOIDED by showing that the affidavit upon which his arrest was ordered was willfully false when made, if it appears that the affidavit was proper in form and substance, that the magistrate had jurisdiction to act upon it, and that he judicially found the facts alleged in it to be true, and signed a certificate authorizing the arrest. DUTY OF PERSON WHO PROCURES PROCESS AND CAUSES IT TO BE SERVED REQUIRES him to see that it is well founded and rests upon a good record or other preliminary proceeding; but so far as the matter rests upon the adjudication of a court or magistrate having jurisdiction, he may rely upon that.

ERRONEOUS JUDICIAL ACTION JUSTIFIES all who have acted in reliance upon it.

TERM "IRREGULARITIES, as applied to judicial proceedings, does not include false allegations of fact, made as the foundation for a suit in which the allegations are to be proved or disproved. This is equally true whether they are falsely made by mistake or design.

ACTION FOR MALICIOUS PROSECUTION IS THE ONLY REMEDY FOR MALICIOUSLY CAUSING AN ARREST ON FALSE CHARGES, or maliciously making a false affidavit.

ACTION of contract upon a recognizance entered into by the defendant Henderson (a poor debtor) as principal and his codefendant as surety. Henderson was arrested under an affida

vit in due form, and to procure his release from the arrest gave the recognizance sued upon. The breach of the condition of the bond consisted in not having a magistrate in attendance at a certain hour which was fixed for the hearing of a charge of fraud made against Henderson. The defense to the action was that the affidavit on which the arrest of Henderson was procured was made by plaintiff when he knew the statements therein made to be false. The plaintiff requested the judge before whom the present action was tried to rule that no evidence could be received to prove the falsity of the affidavit. This request was denied, and the plaintiff excepted. The jury found for the defendants.

E. M. Bigelow, for the plaintiff.
C. G. Keyes, for the defendants.

KNOWLTON, J. The defendants contend that the recognizance declared on cannot be enforced, because the proceedings in which it was taken were founded upon a willfully false affidavit of the plaintiff. The act imputed to the plaintiff involves such moral turpitude that we cannot permit him even temporarily to profit by it, unless upon principle as well as authority our duty is clear.

The wrong complained of, so far as it affects the question before us, was like an ordinary malicious prosecution of a groundless suit. The proceedings for the arrest of the defendant Henderson were in the nature of a new prosecution. They were for the purpose of obtaining a remedy which was not. available without them. The statute provides that they "shall be considered in the nature of a suit at law": Pub. Stats., c. 162, sec. 49. They were founded upon allegations of fact, heard at first ex parte, which, if issue was taken upon the arrest, were afterward to be regularly tried between the parties, with a view to an adjudication which should give or withhold the remedy sought. It is admitted that the affidavit was proper in form and substance, that the magistrate had jurisdiction to act upon it, and that he judicially found the facts alleged in it to be true, and signed a certificate authorizing the arrest. The arrest was regularly made by a proper officer, and the defendant Henderson was taken before a magistrate, and there entered into the recognizance in suit. The proceedings being conceded to have been in all other respects legal and proper, it is contended that the known

falsity of the plaintiff's allegations in his affidavit rendered the arrest, as to him, illegal, and the recognizance void.

It is familiar law that an officer called upon to serve a process needs only to see that it is good upon its face, and it is not suggested that the conduct of the officer or of the magistrate in relation to this arrest can be called in question. But there are cases in which an officer is protected in making an arrest, when the person who caused it or set the proceedings in motion is liable. If the arrest in this case was legal as to the plaintiff as well as the officer, the recognizance founded upon it was legal also, and can be enforced in this action. If it was illegal as to the plaintiff, he can be sued in trespass for causing it, the process as to him is no justification, and the recognizance is tainted with illegality, and is void. We are brought, therefore, to the inquiry, Under what circustances is an arrest under process illegal as to the party causing it to be made?

There is no doubt that one who obtains a process, and causes it to be served assumes the duty of seeing that it is well founded. He should know that it rests upon a good record, or other proper preliminary proceedings; but so far as the matter depends upon an adjudication by a court or magistrate having jurisdiction, he may rely upon that. Processes good on their face may be absolutely void for want of jurisdiction in the court or magistrate that issues them, or they may be voidable for error, or they may be voidable for irregularity in obtaining them. Processes voidable for error do not subject the person who directs their use to any liability, even after they are set aside. But processes irregularly obtained may be set aside, and then, as against those who obtained them, acts done under them are deemed to have been done illegally: Cassier v. Fales, 139 Mass. 461; McGregor v. Crane, 98 Id. 530; Barker v. Braham, 3 Wils. 368; Tarlton v. Fisher, 2 Doug. 672; Belt v. Broadbent, 3 Term Rep. 183; Bates v. Pilling, 6 Barn. & C. 38; West v. Smallwood, 3 Mees. & W. 418; Collett v. Foster, 2 Hurl. & N. 356, 361; Chapman v. Dyett, 11 Wend. 31; Deyo v. Van Valkenburgh, 5 Hill, 242; Lovier v. Gilpin, 6 Dana, 321.

In cases of error, the judicial action in which the error is found is a justification for all who have acted in reliance upon it. In Marks v. Townsend, 97 N. Y. 590, where a process for arrest was set aside for error, it was held that the person who obtained it was not liable, and it was said in the opinion that