because of his conduct he wished to see him apprehended, the elements are supplied not only of bad faith, but of such doubt as to his guilt as to show want of probable grounds which would lead a reasonable man to believe him guilty, and, therefore, a case was presented which entitled the plaintiff to go to the jury. Cheever v. Sweet, 151 Mass. 186, 23 N. E. 831; McIntire v. Levering, 148 Mass. 546, 20 N. E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594; Connery v. Manning, 163 Mass. 44, 39 N. E. 558.

The ruling directed a verdict for the defendant being erroneous, the plaintiff's exceptions must be sustained, but according to the agreement of the parties if this is done judgment is to be entered for the plaintiff in the sum of $500.

So ordered.

(191 Mass. 503)

BEARD, City Treasurer, v. SEAVEY, Sheriff. (Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1906.)

TAXATION COLLECTION OF TAXES - WARRANTS-SERVICE-POWER OF CONSTABLE.

Rev. Laws, c. 13, § 31, provides that a tax collector may issue his warrant for delinquent taxes to the sheriff of the several counties, or to any constable or deputy collector of taxes of the city or town for which he is the collector, directing them to distrain the property or take the body of the person assessed, and to proceed as required of collectors in like cases; that the warrant shall run throughout the commonwealth, and any officer to whom it is directed may serve it, and apprehend the person in any county. Section 87, describing the warrant authorizes the taxpayer's commitment to one of the common jails in the county in which the officer shall arrest him. Section 79 provides for cases in which the treasurer of a city or town is appointed collector of taxes, and authorizes such a collector to issue warrants to the sheriff of the county or his deputy, or to any constable of the city or town, which warrants shall confer the same powers as warrants by assessors to collectors, which warrants do not authorize collectors to make arrests outside of the town for which they are elected. Held, that section 79 did not control section 31, under which a constable to whom a warrant had been issued by a collector of taxes was empowered to serve the same in any county.

Appeal from Superior Court, Suffolk County.

Action by James F. Beard, city treasurer and collector of taxes of the city of Somerville, against Fred H. Seavey, sheriff. From a judgment for defendant, plaintiff appeals. Judgment for plaintiff.

Frank W. Kaan, for plaintiff. Hollis R. Bailey, for defendant.

KNOWLTON, C. J. The question in this case is whether a constable, to whom a warant had been issued by a collector of taxes, under Rev. Laws, c. 13, § 31, can serve it outside of his own town. This statute is as follows: "If a tax assessed upon a person remains unpaid for fourteen days after demand

therefor, the collector may issue his warrant to the sheriffs of the several counties, or their deputies, or to any constable or deputy collector of taxes of the city or town for which he is the collector, directing them and each of them to distrain the property or take the body of the person assessed, and to proceed as required of collectors in like cases. The warrant shall run throughout the commonwealth, and any officer to whom it is directed may serve it, and apprehend the person in any county." In general, sheriffs and their deputies can serve process only within their own counties. Rev. Laws, c. 23, § 12; Henshaw v. Savil, 114 Mass. 74. The jurisdiction of a constable, in ordinary cases, is limited to the town in which he is elected. Rev. Laws, c. 25, §§ 88, 89; Lewis v. Norton, 159 Mass. 433, 34 N. E. 544. But for special cases, there are exceptions to this rule. Rev. Laws, c. 25, §§ 92, 93; Id. c. 166, § 13; Sullivan v. Wentworth, 137 Mass. 233.

The last sentence of the section above quoted, in the plainest terms, gives jurisdiction to the officer to serve the warrant in any county. In this respect the statute makes no distinction between a deputy sheriff and a constable to whom the warrant is directed.

It is contended that this express provision is controlled by Rev. Laws, c. 13, § 79, which provides for cases in which the treasurer of a city or town is appointed collector of taxes, and authorizes such a collector to issue warrants to the sheriff of the county, or his deputy, or to any constable of the city or town, returnable in 60 days, requiring them to collect any or all taxes remaining unpaid. "Such warrants shall be substantially in the same form, and shall confer the same powers, as warrants by assessors to collectors." The argument is that warrants issued by assessors to collectors do not authorize collectors to make arrests outside of the town for which they are elected, and that therefore the express provision, relied on in section 31, does not give such authority to the officers to whom the warrant is directed. The answer to this contention is that, if the true construction of section 79 is as argued by the defendant, it is a section of a different kind from the other, applicable only when the town treasurer is made the collector, and it is intended to permit him to delegate by his warrant the collection of any part or the whole of the taxes to an officer, and to give him the powers of collectors of taxes in making the collection. This provision had its origin in St. 1817, c. 69, and has been continued with slight modifications through Rev. St. 1836, c. 8, § 36, Gen. St. 1860, c. 12, § 45, St. 1874, p. 30, c. 28, § 2, Pub. St. 1882, c. 12, $ 70, St. 1888, p. 381, c. 390, § 80, and Rev. Laws, c. 13, § 79. Under all these statutes, an officer, acting under a warrant from the collector, is given the powers of collectors of taxes. This general provision for officers

acting in this way, not merely to enforce the collection of a tax after a refusal to pay on demand, but to do the whole business of collecting the taxes committed to them cannot limit the powers of officers under warrants given for a special purpose, under section 31. That the officer to whom the warrant is directed may act anywhere within the commonwealth is further emphasized, in the language of the warrant prescribed by Rev. Laws, c. 13, § 87. This language, referring to the delinquent taxpayer, is, "him commit to one of the common jails in the county in which you shall arrest him."

From the earliest times a collector of taxes might arrest one who had removed from the town where the tax was assessed, in any county where he was found. St. 1785, p. 569, c. 70, § 5; Rev. St. 1836, c. 8, § 14; Pub. St. 1882, c. 12, § 19. It is a question which does not arise in this case, whether the repeal of Pub. St. 1882, c. 12, § 19, by the enactment of St. 1888, p. 383, c. 390, § 95, and the substitution of the provisions found in sections 18 to 23 of this statute, change the law in this respect. By St. 1889, p. 1020, c. 334, chapter 390, p. 361, of the Acts of 1888, was amended in some particulars, one of which was by section 4 of the later statute, which changed materially the method of making the demand for payment of the tax. This change made it necessary to change section 23 of the same statute, and it is contended by the defendant that this change, found in St. 1889, p. 1022, c. 334, § 6, has left tax collectors with no power to arrest delinquents except in their own towns. There is ground for an argument that the Legislature, by St. 1888, p. 361, c. 390, did not intend to change the law in this particular, and that the only effect of St. 1889, p. 1022, c. 334, § 6, was to change the law in regard to making the demand. Certain it is that the right of a tax collector to proceed by distress or by imprisonment, on the expiration of 14 days after the demand, was not taken away by the amendment just cited, and the law is silent as to whether he may exercise his right in his own town only, or throughout the commonwealth. On the other hand, the express provision of Pub. St. 1882, c. 12, § 19, for action by the tax collector in any county, was included in the general repeal of the chapter, contained in St. 1888, p. 383, c. 390, $95.

As this question is not before us we leave it undecided. Whatever the construction of the statute as to the right of a collector of taxes to make an arrest outside of the town for which he is acting, we think it plain that an officer to whom he issues his warrant, under Rev. Laws, c. 13, § 31, may serve the warrant in any county. Officers acting under similar warrants have had this power for more than 60 years. St. 1842, p. 507, c. 34; Gen. St. 1860, c. 12, § 18; Pub. St. 1882, c. 12, § 19; St. 1888, p. 364, c. 390, § 23. Judgment for the plaintiff.

(192 Mass. 269)

HOLLYWOOD et al. v. FIRST PARISH IN BROCKTON.

(Supreme Judicial Court of Massachusetts. Plymouth. June 19, 1906.)

1. TRIAL - AGREED STATEMENT OF FACTSCONSTRUCTION-CONFLICT.

The provisions of a copy of an instrument annexed to an agreed statement of facts, which contradict the agreed facts, control. 2. LANDLORD AND TENANT-ASSIGNMENT OF LEASE.

One acquiring the whole estate of a lessee in a portion of the premises covered by the lease is an assignee, and not a subtenant. 3. SAME-COVENANTS-IMPROVEMENTS.

A lease to a lessee and "heirs and assigns" contained a covenant binding the lessor to pay for improvements made on the premises during the term. The covenant was with the lessee, his "heirs and assigns." Held, that the covenant was one binding the lessor to pay for improvements made by an assignee of the lessee. 4. COVENANTS-COVENANTS RUNNING WITH THE LAND-COVENANT IN A LEASE.

A covenant with a lessee and his assigns, binding the lessor to pay for improvements made on the premises during the term, runs with the land.

5. RELIGIOUS SOCIETIES-PROPERTY-LEASEPOWER OF SOCIETY.

It is not ultra vires for a parish, having no further use for an old meetinghouse and the land on which it stands, to lease the land by a lease in which the lessee agrees to buy the meetinghouse, which has been superseded, and in which the parish agrees to pay, on the termi- . nation of the lease, a reasonable sum for buildings and improvements put on the land during the lease.

Appeal from Superior Court, Plymouth County.

Action on contract by one Hollywood and others, executors of the assignee of a lease, against the First Parish in Brockton to compel defendant to either extend a lease or to pay for improvements on the premises. From a judgment for defendant, plaintiffs appeal. Reversed.

Warren A. Reed and Richard W. Nutter, for plaintiffs. F. M. Bixby, for defendant.

LORING, J. It is stated in the agreed statement of facts that the lease made in 1854 by the First Parish of Bridgewater was a lease "of a vacant lot of land." But it appears from the lease, a copy of which is annexed to the agreed facts, that the land leased was "the southerly portion of a lot of land owned by said parish and called the Parish Green," and that "the old meetinghouse standing thereon" was "sold by said parish" to the lessees for $1,226. These provisions of the lease contradict and control this statement in the agreed statement of facts.

The building here in question was erected by Hollywood, who appears to have been in possession at that time as an assignee of the lease for the portion of the land demised. It is stated in the agreed facts that he was then a sublessee "for a time equal to the remainder of the term of the original lease."

We do not see how under these circumstances Hollywood could have been a subtenant.

One who acquires the whole estate of a lessee in a portion of the land covered by the lease is an assignee and not a subtenant. Daniels v. Richardson, 22 Pick. 565. Congham v. King, Cro. Car. 221, 222; s. c., sub nomine Conham v. Kinge, 1 Roll. Ab. 522, and sub nomine Conan v. Kemise, Jones, 245; Wollaston v. Hakewill, 3 M. & G. 297; Cook v. Jones, 96 Ky. 283, 28 S. W. 960. See, also, the cases collected in 18 Am. & Eng. Encyc. of Law, 657, note 1. But if Hollywood was a subtenant when he erected the building here in question, he became on March 15, 1904, an assignee of the lease so far as that portion of the demised land was concerned on which the building in question was erected, and the lease did not expire until March 21, 1904.

The covenant sued on has to do with the termination of the orginal lease, and in our opinion it is a covenant to pay to the lessees and their assignees on the termination of the lease (in case the lease is not extended as therein provided) "a just and reasonable sum for" any buildings and improvements which may have been put up on the demised land during the term of the lease. The defendant has argued that the covenant is to be restricted to buildings put upon the land by the lessees and does not include buildings put upon it by subtenants or assignees of the lessees. We can conceive of no possible reason for such a discrimination having been made by the parties to the lease, and we think that such a construction is too narrow a construction of the word "lessees." If that were the true construction of the word "lessees" here, the covenant in question in the earlier part of the lease that "the said lessees shall have a right of way," and the covenant to "warrant and defend the free use and occupancy of said premises" "as they, the said Baker and Kingman, deem proper," would have to be restricted in the same way. On the other hand the lease is a lease to "Baker and Kingman to their respective heirs, executors and assigns," "to them, the said Baker and Kingman and their heirs and assigns," and the covenant in question is in terms a covenant "with the said Baker and Kingman, their heirs and assigns."

The defendant has argued that this covenant does not run with the land, relying on the second resolution in Spencer's Case, 5 But Co. 16, in support of that contention. the covenant is with the lessees and their assigns, as we have just said, and for that reason it does run with the land within the rule laid down in the second resolution in Spencer's Case; and it is not necessary to consider Minshull v. Oakes, 2 H. & N. 793; Gorton v. Gregory, 3 B. & S. 90; Elliott v. Johnson, 8 B. & S. 38; Stockett v. Howard, 34 Md. 121.

The defendant has argued that to require the parish to pay for this building is to divert its funds from the corporate purposes to which they are devoted.

But that is not a fair statement of the question of ultra vires which we have here. The question of ultra vires in the case at bar is this: Where a parish has no further use for an old meetinghouse and the land on which it stands, abutting on a business street, is it ultra vires to let the land to a lessee who agrees to buy the meetinghouse which has been superseded, the parish agreeing to pay on the termination of the lease "a just and reasonable sum for such buildings and improvements" as are put upon the land during the lease?

We are of opinion that such a lease is not ultra vires. The case comes within the class of cases referred to in Davis v. Old Colony Railroad, 131 Mass. 258, at page 272, 41 Am. Rep. 221; "Thus a corporation may let or mortgage property lawfully held by it under its charter, and not immediately needed for its own business. Simpson v. Westminister Hotel Co., 8 H. L. Cas. 712; Brown v. Winnisimmet Co., 11 Allen, 326; Hendee v. Pinkerton, 14 Allen, 381."

As the case must stand for further trial, it is proper to add that in our opinion the plaintiff is entitled to the sum of $3,267.98, stated in the agreed facts. Judgment reversed.

Where a testatrix bequeathed to her husband for life all her personal property, and after his death to her daughter, if she should be living at the husband's death, "subject to certain other bequests hereinafter made," and then directed her executrix to pay certain bequests, in the event her daughter should not be living at the death of her husband, immediately at his death, the latter bequests are to be paid on the death of the husband, though the daughter is still living.

Case Reserved from Supreme Judicial Court, Bristol County.

Action by one Newcomb, executrix of the will of Betsey T. Hayward, against the trustees of Pine Grove Cemetery and others, Case reserved for full court. Decree of probate court reversed, and decree entered.

Albert Fuller and Wm. J. Davison, for Harriet B. Minchew. Chester F. Williams, for Trustees of Pine Grove Cemetery and others.

MORTON, J. This is a petition by the executrix of the will of Betsey T. Hayward for instructions as to the time when certain legacies given in said will are payable. The clauses under which the question arises are the fourth and the sixth. The fourth is as follows: "Item 4th. I give and bequeath to my husband William A. Hayward, during his natural life, the one half of all the personal

property belonging, due and owing to me at the time of my decease, excepting the same stated and set forth in the first item of this will. And after his decease, I give and bequeath the same to my said daughter Harriet B. absolutely, if she shall be living at my husband's decease, subject to certain other bequests hereinafter made." The sixth clause is this: "Item 6. In the event that my said daughter Harriet B. shall not be living at the time of the decease of my said husband, William A. then immediately upon his decease, I direct my executrix hereinafter to be named, to pay the following bequests." Then follow the bequests, five in all. Two of them are for the benefit of cemeteries in Norton and Milford, one is for the purpose of keeping the family lot in the burying ground in Norton in good condition, one is to an adopted daughter, and the last is "to the trustees of Laurel Chapter No. 44, Order of the Eastern Star in the city of New York." The question is whether the legacies are payable on the death of the husband or on the death of the daughter, the ambiguity arising from the sixth clause. The probate court ruled that they were not payable during the life of the daughter and directed the executrix "to hold the sum of seven thousand dollars of the personal estate of the testatrix and pay the income thereof to Harriet B. Minchew during her life." Harriet B. Minchew is the daughter. Certain of the legatees named in the sixth clause appealed.

We think that the ruling was wrong. The will is obscure and we cannot be sure that the view which we take is the correct one. It is plain that the testatrix knew how to create a life estate. She did it in the case of her husband, and if she had intended that the legacies given in the sixth clause should not be paid till after her daughter's death, if the daughter survived the husband, and that the income should be payable in the meantime to the daughter, it is difficult to understand why she should not have made that intention clear, instead of leaving it to be inferred from the vague provision in the sixth clause that if her daughter did not survive her husband then the bequests that followed should be immediately paid. Aldrich v. Aldrich, 172 Mass. 101, 51 N. E. 449. Again, by the fourth clause the remainder of the half of the personal property given to the husband for life is given to the daughter "absolutely" "subject to certain other bequests hereinafter made," which are manifestly the bequests contained in the sixth clause.

There is no suggestion of a life estate in the daughter also. On the contrary the gift to her is an absolute one and expressly made subject to the legacies thereinafter given which, in the absence of anything more, would make them payable at the husband's death. Further in the bequest to the Trustees of Laurel Chapter No. 44 the gift is to

take effect if the chapter is in existence at the death of her husband, not at the death of the daughter if she survives the husband, which would seem to indicate that the death of the husband was the punctum temporis as of which the legacy was to be paid. And there is a general direction that the bequests set forth in the sixth clause shall be paid from the personal property remaining at the death of the husband if sufficient, which also would seem to point to the death of the husband as the time for the payment of the legacies. Still further one of the bequests is to the adopted daughter who it is agreed is younger than Mrs. Minchew, and it is hardly reasonable to suppose that the testatrix intended to postpone its payment till after Mrs. Minchew's death. Lastly we think that the language of the sixth clause may and should be construed rather as referring to the contingency on which the remainder is given by the fourth clause to the daughter namely "if she shall be living at my husband's decease" than as manifesting, an intention that the daughter should take a life estate in the remainder if she survived the husband, and that the words "then immediately upon his decease" have the same legal effect as the words "subject to" in the fourth clause.

The result is that the decree of the probate court should be reversed and a decree entered declaring that the legacies were payable on the death of the husband. So ordered.

(192 Mass. 204) CARLETON v. FLOYD, ROUNDS & CO. et al.

(Supreme Judicial Court of Massachusetts. Suffolk. June 7, 1906.)

FRAUDS, STATUTE OF-PROMISE TO PAY DEBT OF ANOTHER-CONSIDERATION.

The oral promise of a person attempting to gain control of a corporation to pay one of its debts if the creditor would not make an attachment was void within the statute of frauds. [Ed. Note. For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 50, 52.]

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Action by one Carleton against Floyd, Rounds & Co., a corporation, and others. Findings for defendants, and plaintiff excepts. Exceptions overruled.

This was an action to recover $587.94 for services rendered to the defendant corporation. Defendant Rounds was interested in the corporation, and was trying to obtain control of it; the concern being in an embarrassed financial condition. Plaintiff was about to attach the corporation, when defendant Rounds agreed that if plaintiff would not make the attachment he would pay plaintiff's claim, which he subsequently refused to do, although he did obtain control of the corporation.