edge, of the unlawful sale in Quincy, especially as that complaint charged the defendant with illegally keeping liquors with intent to sell the same, and not with illegally transporting them.

The rulings requested and refused had reference to the second complaint against plaintiff for illegally transporting liquors, for alleged malicious prosecution of which a verdict has been found in his favor. If it were not so, however, sufficiently favorable instructions were given on this part of the case by the court. Where the plaintiff was a mere messenger, and the sale was lawfully made, he could not be held guilty of illegally transporting the liquor sold, by bringing it to the purchaser, even if the latter resided in a town where such sales could not be lawfully made. Exceptions overruled.

NOTE.

Malice must concur with the want of probable cause to support a suit for malicious prosecution. Emerson v. Cochran, (Pa.) 4 Atl. Rep. 498; Castro v. De_Uriarte, 16 Fed. Rep. 93; Walker v. Camp, (Iowa.) 19 N. W. Rep. 802; Sherburne v. Rodman, (Wis.) 8 N. W. Rep. 414; Gee v. Culver, (Or.) 6 Pac. Rep. 775. But it is held that, in the absence of probable cause, good faith and honest motives are not a defense to an action for malicious prosecution. Wilson v. Bowen, (Mich.) 31 N. W. Rep.-.

(143 Mass. 299)

BEMIS and another v. CALDWELL and others.

(Supreme Judicial Court of Massachusetts. Middlesex. January 7, 1887.) TAXATION-ASSESSMENT-DESCRIPTION OF LAND-PUB. ST. MASS. CH. 11, ? 53.

Under Pub. St. Mass. c. 11, 53, providing that a, valuation list, for purposes of taxation, shall contain "a description, by name or otherwise, of each and every lot of land assessed, there is a sufficient description where in one column of the list the buildings are described as "House, Western street; house, Main street; stable; and greenhouse;" and in another column, headed "Description of Each Lot, by Name or Otherwise," is simply the word "land," and in the next column the number of acres is given.

Contract for breach of a covenant against incumbrances in a deed. Hearing in the superior court, without a jury, where the finding was for the plaintiffs, and the defendants appealed. The facts appear in the opinion.

H. J. Boardman and S. H. Tyng, for defendants.

In an action on the covenant against incumbrances, the burden of proof is on the plaintiff to show that any incumbrance was lawful. Lathrop v. Grosvenor, 10 Gray, 52. See Pub. St. c. 11, § 53. In considering the conditions precedent to the legality and validity of a tax, see Torrey v. Millbury, 21 Pick. 67, and Atherton v. Hitchings, 12 Gray, 117, 120. The cases of Tobey v. Wareham, 2 Allen, 594, and Westhampton v. Searle, 127 Mass. 502, differ from the case at bar, inasmuch as the land was there described as "meadow," "improved," "woodland," "tillage," "pasture," etc., while here there is no description whatever. See Jennings v. Collins, 99 Mass. 29, 32; Coburn v. Litchfield, 132 Mass. 449. In the case of taxes, it is the assessment which creates the lien or incumbrance. Cochran v. Guild, 106 Mass. 29; Jennings v. Collins, 99 Mass. 29, 32. The fact that, at the time the plaintiffs paid the tax, the tax might, under Pub. St. c. 11, §§ 79, 80, have been reassessed, is immaterial, as in point of fact there was no reassessment. See Jennings v. Collins, 99 Mass. 29, 32.

H. N. Allin and W. Howland, for plaintiffs.

The right to a tax-that is, to the tax itself-is a public right, and is independent of the right to levy the tax. It follows, therefore, that, so long as the tax remains unpaid, the right to it remains in the public. Pub. St. c. 11. The process by which the right to the tax is to be enforced is fixed by statute, and its enforcement "creates a title paramount to any existing estate therein.' Such interest is an incumbrance. Russell v. Deshon, 124 Mass. 343, 344; Langley v. Chapin, 134 Mass. 82. The town had not lost the right. See

Pub. St. c. 11, § 70. See, also, Pub. St. c. 12, §§ 24, 48. The tax was legally assessed, and, being legally assessed, was an existing incumbrance until paid. The description was sufficiently accurate. Westhampton v. Searle, 127 Mass. 502, 507; Tobey v. Inhabitants of Wareham, 2 Allen, 594; Torrey v. Millbury, 21 Pick. 67; Lincoln v. City of Worcester, 8 Cush. 63, 66. The unpaid tax was an incumbrance upon the estate conveyed, and constituted a breach of a covenant against incumbrances, because it was a lawful tax, legally levied upon a lawful assessment. Mitchell v. Pillsbury, 5 Wis. 407; Long v. Moler, 5 Ohio St. 271; Harlow v. Thomas, 15 Pick. 68; Hutchins v. Moody, 30 Vt. 655.

MORTON, C. J. It appears that on May 1, 1883, the heirs of C. H. B. Caldwell were the owners of a tract of land in Waltham, bounded in part on Weston street and in part on Main street. There was on the tract a mansion house, with a stable and greenhouse attached, fronting on Weston street, and a smaller house fronting on Main street. The assessors of Waltham taxed this estate for the year 1883 to the said heirs. In the valuation list they entered the estate as follows: "House, Weston street, $3;200; house, Main street, $1,600; stable, $400; greenhouse, $200; land, 6 acres, $1,800; aggregate value of real estate, $7,200.”

The defendants contend that this assessment was invalid, because the valuation list does not contain "a description, by name or otherwise, of each and every lot of land assessed," as required by Pub. St. c. 11, § 53. We are of opinion that this claim cannot be maintained. Although the owners had divided the tract of land into two house-lots, yet, as they were contiguous, this did not require the assessors to make a separate valuation of each lot, but they might value the whole tract as one lot. Jennings v. Collins, 99 Mass. 29. The statutes regulating the assessments of taxes contain numerous provisions as to the powers and duties of assessors. Some of them are conditions precedent to the validity of the tax, they being intended to secure an equality of taxation, and to enable the citizen to ascertain with reasonable certainty for what estate he is taxed. If this purpose is defeated by reasons of a failure to comply substantially with the requirements of the statutes, the tax is invalid. But most of them are intended as directions to the assessors, designed to secure regularity and uniformity in the proceedings of the numerous boards of assessors throughout the state. It has always been held that a non-compliance by the assessors with the strict requirements of the statutes, if it does not affect the rights of the tax-paying citizen, does not render the tax invalid. Sprague v. Bailey, 19 Pick. 436; Torrey v. Millbury, 21 Pick. 64; Tobey v. Inhabitants of Wareham, 2 Allen, 594; Westhampton v. Searle, 127 Mass. 502; Noyes v. Hale, 137 Mass. 266.

In the case before us the valuation list sufficiently describes the house on Weston street, the house on Main street, the stable, and the greenhouse. To this description is added "land," containing six acres. Taking the whole description, it would naturally be understood as intended to describe the tract of land upon which the buildings named stood. The owners would not be misled by it. The failure to give a more particular description of the land would not injuriously affect their rights, and we are of opinion that such failure does not invalidate the assessment.

It follows that, at the time of the sale to the plaintiffs, there was an incumbrance upon the premises, and that the plaintiffs are entitled to recover for a breach of the covenant against incumbrances in the deed to them. Judgment affirmed.

(143 Mass. 237)

DOLE, Trustee, v. KEYES and others.

(Supreme Judicial Court of Massachusetts. Essex. January 6, 1887.) WILL-VESTED REMAINDER IN UNBORN CHILDREN-GRANDCHILDREN TAKE PER CAPITA. A devise of the income and improvement of real and personal estate "to my children, A. and B., and at their decease the said real and personal estate shall revrt to their children, and also the above-described estate given to my beloved wife, after her decease, to them and their heirs, forever," gives a vested remainder to the children of A. and B. per capita, and not per stirpes.1

Bill in equity by Nathaniel Dole, trustee under the will of Moses Perley, of Newbury, to obtain the instructions of the court as to construction to be put upon certain clauses of said will. The material parts of the bill set forth that the said Perley died May 25, 1857, leaving a will which contained the following provisions: "(1) After paying my just debts and funeral charges, I give and bequeath to my wife, Nancy Perley, the income and improvement of my house near Parker river bridge, in Newbury aforesaid, during her natural life, and also a handsome maintenance from my estate. (2) I give and bequeath to my son, John Perley, $600, to him and his heirs, forever. (3) All the rest and residue of my estate, real or personal, of every name and nature, I give the income and the improvement of the same to my children, to-wit, John Perley and Sarah Lambert, wife of George Lambert, and at their decease the said real and personal estate shall revert to their children, and also the above-described estate given to my wife, after her decease, to them and their heirs, forever." At the death of the testator, his wife, Nancy Perley, his daughter, Sarah Lambert, wife of George Lambert, and his son, John Perley, were all living. The wife, Nancy Perley, died soon after the death of the testator; the daughter, Sarah Lambert, died March 1, 1865; and the son, John Perley, died June 26, 1885. The said George Lambert is still living. Said Sarah Lambert had five children, four of whom were born during the life-time of the testator, and were living at his death, to-wit: Hannah, born August 24, 1845; Georgianna, born June 12, 1849; Maria C., born September 4, 1851; and Sarah P., born March 26, 1855. One of said five children, named John, was born December 19, 1857. Of said five children, John died June 19, 1864, and Sarah P. died February 8, 1868; both during their minority, unmarried, and without issue. Maria C. married William Clement, and died February 8, 1871, without issue, and her husband is still living. Hannah married Charles Nowell, and died September 17, 1869, leaving one child, named Emma J. Nowell, born October 31, 1867, and is now living. The husband of said Hannah is dead. Georgianna married Henry E. Keyes, and is now living. Said John Perley, son of the testator, had three children, all born after the testator's death, viz., Sarah A., Susan B., now the wife of Patrick J. Hanley, and James M., all of whom are now living.

Hearing in the supreme court, before C. ALLEN, J., who found "that the devise in the third clause of the will of the said Moses Perley created a vested remainder in the children of the testator's children opening to let in the after-born children," and ordered that the said trustee be instructed and directed to distribute said fund accordingly. From the said decree, Susan B. Hanley, one of the defendants, appealed.

Bricket & Poor and I. E. Pearl, for Susan B. Hanley.

If the language of the will is construed according to its technical force and meaning, a reversion remained in the heirs of the testator, the life-estates of John Perley and Sarah Lambert were merged in the reversion, and at their decease the children of each inherited from their parent one-half of the tes

1See Byrnes v. Stillwell, (N. Y.) 9 N. E. Rep. 241, and note; Delafield v. Shipman, Id. 184. V.9N.E.no.8-40

tator's estate. The intention of the testator, as clearly expressed in the will, is that, at the decease of his children, his estate shall pass by operation of law, and not by gift, to their children. His mistake was in supposing a reversion did not vest until the termination of the particular estate upon which it was expectant. The language used is, in effect, equivalent to a grant of a remainder to the heirs of the life-tenants. The word "children" may be construed to mean "heirs," in order to give effect to the intent of the testator. Houghton v. Kendall, 7 Allen, 72. Where an estate in remainder is devised to the heirs of a person to whom an intervening life-estate is given, contingent remainders will be created for those who may be such heirs at the time of the death of the devisee of the life-estate. Putnam v. Gleason, 99 Mass. 454; Richardson v. Wheatland, 7 Metc. 169; White v. Woodberry, 9 Pick. 136. The limitation over upon the death of the testator's children is not a devise to a single class. The children of each child of the testator form a distinct class, who respectively take the separate share of the estate in which their ancestor had a life-estate. Hills v. Simonds, 125 Mass. 536; Merriam v. Simonds, 121 Mass. 198. Therefore, whether we construe the language strictly, or seek to carry into effect the intent of the testator, each of the three children of John Perley is entitled to one-third of that share of the testator's estate in which their father had a life-interest, or one-sixth of the entire estate.

D. L. Withington and N. N. Jones, for George Lambert, Georgianna F. Keyes, and William F. Clement.

This is a legacy to children of other persons than the testator, and by it is created vested remainders per capita, subject to open and admit after-born children. Weston v. Foster, 7 Metc. 297; Dingley v. Dingley, 5 Mass. 537; Balcom v. Haynes, 14 Allen, 204; Ballard v. Ballard, 18 Pick. 41; White v. Curtis, 12 Gray, 54; Moore v. Weaver, 16 Gray, 305; Pike v. Stephenson, 99 Mass. 188; Blanchard v. Blanchard, 1 Allen, 223; Hatfield v. Sohier, 114 Mass. 48; Darling v. Blanchard, 109 Mass. 176. See Richardson v. Wheatland, 7 Metc. 173; Winslow v. Goodwin, Id. 363; Rapalje & L. Law Dict. "Reversion;" Cruise, Dig. tit. 17, §§ 1-13; Com. Dig. "Estates," 4, 22.

HOLMES, J. The limitation to the children of the testator's children created a vested remainder, which opened and let in those born after the testator's death. Weston v. Foster, 7 Metc. 297; Hatfield v. Sohier, 114 Mass. 48; Gibbens v. Gibbens, 140 Mass. 102; S. C. 3 N. E. Rep. 1. The inartificial use of the word "revert" no more obscures the plain meaning that the children are to take as purchasers than "descend to his legal heirs" in White v. Woodberry, 9 Pick. 136, 138, or "inherit” in Moore v. Weaver, 16 Gray, 305.

The question whether the remainder is to be taken per capita or per stirpes is more difficult. The English rule is that, when property is given to A. and B. as tenants in common, and at their decease to their children, the latter take per stirpes; the testator's intent that the share of each tenant in common shall continue separate, and go to his children, being inferred from the fact that it will go over immediately upon his decease. Pery v. White, Cowp. 777, 781; Flinn v. Jenkins, 1 Colly. Ch. 365; Arrow v. Mellish, 1 De Gex & S. 355; Willes v. Douglas, 10 Beav. 47; Turner v. Whittaker, 23 Beav. 196; Wills v. Wills, L. R. 20 Eq. 342; Houghton v. Kendall, 7 Allen, 72, 77. Perhaps this court has gone further than the English courts would, in reading "at their decease" as meaning "when all the life-tenants shall have died," rather than "as they respectively die." Loring v. Coolidge, 99 Mass. 191, 192. But, when this interpretation is adopted, the reason for the English rule ceases, because the whole fund goes over together, instead of in separate shares at different times.

We are of opinion that the testator's grandchildren take per capita, not only on the ground that we must follow Loring v. Coolidge, and hold that the whole fund goes over together, but also because this remainder is evidently

given in the same proportions as the remainder after the wife's death, which is limited by the same clause; and, as the remainder-men's parents take no interest in the latter, there can be no doubt that, if it stood alone, it would go per capita. Weston v. Foster, ubi supra. The presence of the latter limitation, and the slightly illiterate character of the will, make it more likely that the words "after their decease" were used in a popular rather than in a strictly logical sense, and thus enable us to apply the authority of Loring v. Coolidge with more confidence. And, conversely, the construction which we give to the words "after their decease" makes it more probable that the intention to be gathered from the limitation of the remainder after the wife's death is the true purpose of the whole clause, rather than that for which there is some color in other portions of the clause taken by themselves. See, further, Ballard v. Ballard, 18 Pick. 41, 45.

In Merriam v. Simonds, 121 Mass. 198, 203, there was an indication that the remainder-men would have taken in a representative capacity if the gift to the first takers had been absolute; for the remainder was "to their children or legal representatives," and the decision went on the ground that legal representatives were mentioned. Decree affirmed.

(143 Mass. 296)

BLAKE v. CITY OF LOWELL.

(Supreme Judicial Court of Massachusetts. Middlesex. January 7, 1887.) MUNICIPAL CORPORATIONS-DEFECT IN HIGHWAY-NOTICE-EVIDENCE-COMPLAINT Book.

In an action against a city for injuries received by reason of a defect in the highway, a book kept in the office of the city messenger, for the purpose of entering complaints as to the condition of the streets, sidewalks, etc., and recording the time when such complaints were attended to, is admissible to show notice to the city of the defect.1

Tort brought to recover damages for personal injuries alleged to have been received by reason of a defect alleged to have existed upon a sidewalk at the corner of Kirk and Merrimack streets, in Lowell, consisting of an accumulation of ice and snow. Trial in the superior court, without a jury, before MASON, J. Albert E. Libby, a police officer of defendant city, testified for the plaintiff that, at about 4 o'clock on the afternoon of Saturday, December 27, 1884, the day before the alleged injury was received, he made an entry upon a book kept in the office of the city messenger of the defendant, the printed headings on the book being as follows: "Streets, Sidewalks, and Sewers. Complaints. When attended to." When attended to." The book was for the use of the superintendent of streets, and had existed from the year 1871; and from that date, up to and after the date of the injury, police officers and others, during that time, had entered notices of defects in the streets and sidewalks, and, in consequence of such notices, repairs were made by the superintendent of streets. The entry made by witness was as follows: "Sidewalk at the corner of Kirk and Merrimack streets in a bad condition. Snow and ice not removed. December 27, 1884." The book, with the above entry in it, was produced, on notice from the plaintiff; and, against the objection of the defendant, was admitted in evidence. Upon these and other facts, the nature of which appear in the opinion, the court found for the plaintiff, and the defendant alleged exceptions.

G. T. Lawton and J. J. Pickman, for defendant.

The book admitted was not an official record required to be kept by law, but, so far as it appears, was a mere memorandum for the private use of the

1 As to the necessity of notice to the municipal authorities of a defect in a public way, to render the corporation liable for injuries caused thereby, and what will be deemed evidence of such notice, see City of Plattsmouth v. Mitchell, (Neb.) 29 N. W. Rep. 593,

and note.