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marriage. Even if the evidence showed that her associates were lewd women, it would be equally immaterial and irrelevant upon the fact of their marriage. Clement v. Kimball, 98 Mass. 537; Morrissey y. Ingham, 111 Mass. 67.
HOLMES, J. Evidence of lewd conduct of the alleged first wife was not admissible to contradict her testimony to a marriage in New York. But evidence should have been admitted that her companion was a lewd woman at the time she answered the defendant's sister's summons to come back into the house where you belong.” The answer, “I will not; I have a right to do as I have a mind to,"—was ambiguous in itself. It might have had any one of various shades of meaning, some of which would not, and some of which would, be inconsistent with her being married to the defendant. For instance, it might have meant only a declaration of independence as against the defendant's sister. On the other hand, it might have meant a denial of duty to any one in the house, including her alleged husband. If she had been in the company of a doctor and a sister of charity, out on an errand of mercy, it might be construed one way; if with a prostitute, it might very naturally be construed the other. Exceptions sustained.
(143 Mass. 126),
EASDALE 0. REYNOLDS. (Supreme Judicial Court of Massachusetts. Essex. November 26, 1886.) 1. RECORDS-OF COURT-Loss OF APPEAL-BASTARDY.
At the trial of a bastardy complaint in the superior court, where it appears that the original complaint and warrant transmitted to the superior court by the clerk of the police court where the complaint was niade, have been lost from the files of the superior court, and the only record of the police court consists of entries upon the docket showing that, upon complaint of the plaintiff, the defendant pleads not guilty, waives examination, is ordered to give bond in a certain sum, and does give such bond, it is a case of a lost record, and secondary evidence of the contents of the complaint and warrant are competent; and upon such secondary evidence, and a certified copy of the record of the police court, the superior court is justified in
proceeding with the trial upon the merits. 2. INTERCOURSE WITH OTHERS-BASTARDY-EVIDENCE.
At the trial of a complaint for bastardy, evidence of an act of sexual intercourse between the complainant and any other man than the defendant is not admissible in evidence, unless it is so near in time as to afford some evidence that it resulted in begetting the child named in the complaint. Complaint for bastardy. Trial in the superior court, before ALDRICH, J., where the jury returned a verdict of guilty, and the defendant alleged exceptions. The facts appear in the opinion.
E. T. Burley, for complainant.
It has been decided that section 40, c. 154, Pub. St., does not apply to a proceeding under the bastardy act, (Biggane v. Ross, 126 Mass. 233;) and that a case under this act may proceed to trial upon filing copies in the superior court at any time before the trial, (Hawes v. Gustin, 2 Allen, 402-405; Kennedy v. Shea, 110 Mass. 152, 153.) Whether properly.or improperly, the original papers in this case were filed in the superior court, and were lost from its files. From the necessity of the case, the complainant was obliged to rely upon her recollection to produce a substantially accurate copy of the lost record, which she did, and supported the same by her affidavit. Pruden v. Alden, 23 Pick. 184; Davidson v. Slocomb, 18 Pick, 464.
The evidence sought to be introduced in cross-examination of complainant was immaterial. Řonan v. Dugan, 126 Mass. 176; Sabine v. Jones, 119 Mass. 167; Parker v. Dudley, 118 Mass. 604, 605; Eddy v. Gray, 4 Allen, 435.
J. P. Sweeney, for defendant,
The jurisdiction of the superior court in bastardy cases, although original, is founded upon and supplemental to the preliminary proceedings in the police
court, and trial can proceed in the superior court only upon the original papers, or üpon duly authenticated copies of the proceedings in the court below. Packard v. Lawrence, 15 Gray, 483; Hawes v. Gustin, 2 Allen, 402; Kennedy v. Shea, 110 Mass. 152; Biggane v. Ross, 126 Mass. 233. The authentication contemplated by the cases above cited is the certificate of the clerk, and the complainant could not supply the record by her own affidavit. Ryan v. Merriam, 4 Allen, 77. The complainant sought to supply the record by the dócket entry of the police court, but, in the absence of proof that the record of that court had not been extended, the docket entry did not constitute a record. 'Good v. French, 115 Mass. 201; Tracy v. Maloney, 105 Mass. 90.
The evidence sought to be introduced on cross-examination, of prior acts of familiarity and criminal intercourse between the complainant and Menzies, was competent to sustain the defense that Menzies was the father of the child. The case is to be distinguished from those cases wherein it has been held that proof of intercourse with others was inadmissible, (1) because, being within four or five months of the date of begetting, it was not too remote; (2) because the relation between the complainant and Menzies being that of lovers, there was a strong inference that such relation continued. Thayer v. Thayer, 101 Mass. 111; Parker v. Dudley, 118 Mass. 602.
MORTON, C. J. Bastardy proceedings must be commenced by complaint before a police, district, or municipal court, or trial justice. The inferior tribunal, after a default or a hearing, requires of the defendant a bond for his appearance in the superior court; and the proper course of proceeding is for it to transmit to the superior court certified copies of the complaint and warrant, and of the record of the court or trial justice. Pub. St. C. 85, § 7; Biggane v. Ross, 126 Mass. 233. But the superior court exercises an original, and not an appellate, jurisdiction, and the proceedings before the inferior tribunal are merely to compel the appearance of the defendant before the superior court. Thompson v. Kenny, 110 Mass. 317; Kennedy v. Shea, Id. 152; Duhamell v. Ducette, 118 Mass. 569. The case is tried in the superior court upon a supplemental complaint, which is in the nature of a declaration in a civil suit. It has been held that certified copies of the complaint and warrant, and of the record of the court in which the proceedings were commenced, may be filed in the superior court at any time before the trial. Hawes v. Gustin, 2. Allen, 402; Packard v. Lawrence, 15 Gray, 483.
In the case at bar, when it came up for trial in the superior court, it appeared that the clerk of the police court of Lawrence, in which court the complaint was made, had transmitted to the superior court the original complaint and warrant, and that they had been lost from the files of the superior court. The only record in the police court concerning the case was the entries upon the docket, showing that, úpon complaint of the plaintiff, the defendant pleads not guilty, waives examination, is ordered to give bonds in $400, with sureties, and does give such bond. In the absence of an extended record, this is the record of the case. From the nature of the case, the clerk could not furnish certified copies of the complaint and warrant, because they were lost. The superior court had to deal with a case where, owing to the loss of a part of the record, it had become impossible to comply strictly with the requirements that a certified copy of the record should be filed. It was a case of a lost record, and we think the superior court rightly ruled that secondary evidence of the contents of the complaint and warrant was competent. Davidson v. şiocomb, 18 Pick. 464; Pruden y. Alden, 23 Pick. 184.
The certifieđ copy of the record of the police court filed by the plaintiff, and the secondary evidence of the contents of the complaint and warrant, were sufficient to show that the necessary preliminary steps were taken in the police court, and justified the superior court in proceeding with the trial upon the merits. The defendant did not object to this secondary evidence because it
was in the form of an affidavit to the copies offered, instead of being upon the oath and examination of the witness, but objected only because the copies “were not properly certified to.” We are of opinion that the court rightly overruled this objection, and ordered that the case proceed to trial upon the supplemental complaint.
At the trial the complainant was asked, upon cross-examination, “if she had not, in the autumn of 1884, been with child by one Menzies, and if she had not got rid of that child.” It is the general rule that no act of sexual intercourse between the complainant and any other man than the defendant is admissible in evidence, unless it is so near in time as to afford some evidence that it resulted in begetting the child named in the complaint. Eddy v. Gray, 4 Allen, 435; Sabine v. Jones, 119 Mass. 167; Ronan v. Dugan, 126 Mass. 176. In this case the offer was to show an act of illicit intercourse with Menzies of from three to six months before the child was begotten, and the evidence was rightly rejected. It is to be observed that there is in this case no evidence of any intimacy with Menzies continuing up to the time of gestation. If it had appeared that such intimacy continued, and that the parties were together under circumstances of suspicion, about the time the child was begotten, the offer would have presented a different question. Odewald v. Woodsum, 142 Mass. 512; S. C. 8 N. E. Rep. 347.
(143 Mass. 113)
COMMONWEALTH 0. ALDEN. (Supreme Judicial Court of Massachusetts. Bristol. November 26, 1886.) 1. HEALTH-NUISANCE-NOTICE BY BOARD OF HEALTH SERVICE THEREOF.
A notice to an owner or occupant of certain premises, issued by order of the board of health, to remove a nuisance, may be served by a constable who is also one of
the board of health. 2. SAME-FORM OF NOTICE-SUFFICIENCY-REMOVAL “OUTSIDE” OF VILLAGE.
An order of a board of health to the owner of certain premises, "to'abate the said nuisance on your estate within forty-eight hours from the service hereof,” is a good order, and is not rendered void by the addition of a further direction to remove the
nuisance “outside” the limits of the village. 8. CRIMINAL LAW-COMPLAINT-OMISSION-MOTION TO QUASH.
Where a complaint under Pub. St. Mass. c. 80, 821, by a board of health of a town, does not allege that it is made by the complainant as agent of the board of health, such omission is not a ground for a new trial, and constitutes, at most, a formal defect, which a defendant could only avail himself of by a motion to quash.
This was a complaint to recover a forfeiture under the provisions of Pub. St. c. 80, § 21, relating to the abatement of a nuisance by a board of health, Trial in the superior court, before BARKER, J., where the jury returned à verdict of guilty, and the defendant alleged exceptions.
F. A. Miliken, for defendant.
This is a complaint to recover a forfeiture under Pub. St. c. 80, § 21. A forfeiture may be recovered by a civil action, or by complaint or indictment. Pub. St. c. 161, § 11; Id.c. 217, §. 2. Sheriffs, their deputies; and, under certain conditions, constables, are authorized to serve process and notices. Pub. St. c. 25, 88 16, 17; Id. c. 27, § 112 et seq.; Id. c. 160, § 5. He signs the order of the board of health, and is thus a party in name, as well as an interested party. Weston v. Coulson, 1 W. BI. 506; Co. Litt. 156a; Bac. Abr. "Names," E, “Sheriff,” M.
The order of the board of health was void. Watuppa Reservoir v. Mackenzie, 132 Mass. 71; Pub. St. C. 80, 8.810. Fines and forfeitures incurred under the laws relating to health inure to the use of the town. Pub, St C, 27, § 106. Şee, also, št. 1879, c. 75; Pub. St. c, 80, 8:16. The statutes have ing pointed out a particular mode of prosecution, that mode alone can be pursued; and the power to collect such fines and forfeitures is therefore vested exclusively in the town treasurer, and the agent duly appointed to make such sanitary inspection. Com. v. Howes, 15 Pick. 231; Com. V. Fahey, 5 Cush. 408: Com. v. Smith, 111 Mass. 407. It was essential to the jurisdiction of the court that the authority to make the complaint in this case should appear on the face of the papers. Com. v. Fay, 126 Mass. 235; Fisher v. McGirr, 1 Gray, 1, 44. The court had no jurisdiction, and the complaint should have been dismissed. Com. v. Fahey, ubi supra; Com. v. Smith, ubi supra; Com. v. Fay, ubi supra.
E. J. Sherman, Atty. Gen., for the Commonwealth.
MORTON, C. J. It is the duty of the board of health of a town to examine into all nuisances, sources of filth, and causes of sickness within its towns, and it has authority to order the owner or occupant of any premises on which the same exists to remove it, after notice served upon such owner or occupant. The statute provides that such order shall be in writing, and may be "served by any person competent to serve a notice in a civil suit.” Pub. St. c. 80, 88 18-22. It is not necessary that these notices should be served by an officer, though he may properly do so. Notices in civil suits may often be served by interested parties; but, in the case before us, the constable who served the notices, was not an interested person, and his service is not vitiated because he was one of the board of health.
The defendant contends that the order and notice was void because it directed him to remove his hogs outside the limits of the village. It may be that the board of health would not have the power to limit the defendant to the removal of his hogs outside the limits of the village, as the only mode of abating the nuisance. But it did not attempt to do this. The order and notice contained a sufficient direction to the defendant “to abate the said nuisance on your estate" "within forty-eight hours from the service hereof. This is a good order, which the defendant refused to obey, and we do not think that it is rendered void by the addition of the further direction to remove the hugs. The defendant could have protected hiinself by abating the nuisance in any effective way.
The defendant further contends that the complaint could not be maintained because it should have been made by the town treasurer, and also because it does not allege that it is made by the complainant as agent of the board of health. The statute expressly provides that “an agent appointed to make sanitary inspections may make complaint, in cases of violation of any law, ordinance, or by-law relating to the public health, in a city or town.” Pub. St. c. 80, 8.16. It was shown that Reccord, the complainant, was duly appointed as such agent; the right of the board of health to amend its records to make them conform to the truth being too clear to require any discussion. As such agent, he had the right to institute this complaint. While it is true, as a general rule, that the record of an inferior court must show all the facts necessary to give it jurisdiction, yet we think that the omission to allege that Reccord was an agent of the board of health, he being in fact such agent, was, at most, a formal defect, which the defendant could only avail himself of by a motion to quash. Pub. St. c. 214, § 25.
(143 Mass. 59)
O'DAY 0. BOWKER. (Two Cases.) (Supreme Judicial Court of Massachusetts. Suffolk. November 24, 1886.) L TAXATION-SUCCESSIVE SALES FOR TAXES—RIGHT OF REDEMPTION.
Where there have been successive tax sales of land to different purchasers, all the different purchasers, or the persons holding their titles at the time the suit is brought, should be made parties defendant in a bill to redeem the land from these sales, and,
if the right of redemption is gone against a purchaser at a prior sale, it cannot be Lindforced against a person holding under a subsequent sale.
2. STATUTE OF LIMITATIONS—Tax SALES-BILL TO REDEEM - INFANT— PUB. ST. Mass.
CH. 12, % 66.
A bill in equity brought under Pub. St. Mass. c. 12, 266, to redeem land sold under a tax sale, can be maintained only when brought within five years from the date of the sale, and the statute will not be construed as excepting from its provisions an infant who brings her bill to redeem after the expiration of five years, alleging that
she had no guardian during the time limited by statute. 3. IEQUITY_PARTIES—BILL TO REDEEM FROM Tax SALE.
In a bill brought to redeem land sold under a tax sale, the person who holds the
estate under a tax sale and conveyance is an indispensable party. 4. ACTION OR SUIT-Two SUITS HEARD TOGETHER-EFFECT.
Where two suits are heard together before a single judge, and argued together before the full court, proceedings alleged in the second suit which affect the first suit, although not averred in the pleadings in the latter suit, will not be ignored by the full court in deciding the law in the first suit. Bill in equity to redeem land from tax sales. Hearing in the supreme court, where a decree was entered for the plaintiff in each suit, and the defendant appealed. The facts appear in the opinion.
H. H. Winslow, for defendant.
The deed given by the collector of taxes to J. W. French “conveyed an estate in fee-simple.” Butler v. Stark, 139 Mass. 19, and cases cited. French was seized of the land. There can be but one actual seizin of an estate. Seizin follows the title. The title was vested in French. The right to revest the title in the O'Day heirs, by lawful redemption within two years of sale, (Pub. St. c. 12, § 49,) never was used, and therefore the fee never has been in the O'Day heirs or plaintiff since September 3, 1880. Plaintiff is not entitled to an account. Mitchell v. Green, 10 Metc. 107. “There is no privity between the parties by way of contract.” Infant's rights are determined. Hall v. Bumstead, 20 Pick. 2; Thompson v. Paris, (N. H.) 2 East. Rep. 26; Dewey v. Donovan, 126 Mass. 337; Reed v. Adams, 2 Allen, 413. Equity follows the law. . Gladwin v. French, 112 Mass. 186.
H. Dunham, for plaintiff.
The only question before this court seems to be whether the decree conforms to the allegations and prayer of the bill, no report of the evidence having been requested at the hearing before the single justice, (Weld v. Walker, 130 Mass. 222; Mason v. Lewis, 115 Mass. 334; O'Hare v. Downing, 130 Mass. 16, 20; rule 35, Ch., 136 Mass. 609; Pub. St. c. 151, § 26; Iasigi v. Chicago, B. & Q. R. R., 129 Mass. 46; Stanley v. Stark, 115 Mass. 259;) and though the decree may state some of the facts, it does not necessarily state all, (rule 37, Ch., 136 Mass. 610; Mason v. Daly, 117 Mass. 405.) All inferences of fact must be presumed to have been decided against the appellant, (Seamans v. Gibbs, 132 Mass. 240,) and the findings of fact cannot be revised,
Wiley v. Hoyt, 120 Mass. 166;) and, even were the evidence reported, the decision of the single justice would not be reversed unless clearly erroneous, (Rau v. Von Zedlitz, 132 Mass. 164, 167; Reed v. Reed, 114 Mass. 372; Boston Music Hall Co. v. Cory, 129 Mass. 435.) But in this case the decision is not erroneous, and the decree conforms to the allegations and prayer of the bill. Gladwin v. French, 112 Mass. 186; Faxon v. Wallace, 98 Mass. 44. A tax on real estate is a lien only. Preston v. Boston, 12 Pick. 7, 13; Howe v. Boston, 7 Cush. 273, 275. Edwin F. Bowker's right in the land was neither greater nor less 'by reason of the sale to Ellis.
Another question is presented in this case, viz., that the plaintiff, being a minor, has the right to redeem. “In all cases of infants, à court in equity has jurisdiction.” Story, Eq. Jur. $$ 1333, 1334, 1337, 1341. Infancy is a personal privilege, which cannot be taken away nor waived, even by a guardian. Pub.' St. c. 139, SS 29, 30; Oliver v. Houdlet, 13 Mass. 237, 240; Chandler v. Simmons, 97 Mass. 508, 511. In case of a deed from an infant, such infant may, by entry, within age, or after, reserve the title in himself, ( Worcester v. Eaton, 13 Mass. 371, 375; Chandler v. Simmons, ubi supra,