ception of the months of May and June, because the allegation of time in the complaint is material, and of itself excludes the months of May and June.

The defendant contends that St. 1886, c. 318, § 2, is inoperative, because it purports to be an amendment of Pub. St. c. 57, §§ 5, 9, and he says that said section 9 was repealed by St. 1885, c. 352, § 6, and the argument is that an amendment of a repealed statute is a nullity. By St. 1885, c. 352, § 6, "section nine of chapter fifty-seven of the Public Statutes is hereby amended so as to read as follows," etc., and by St. 1886, c. 318, § 2, "section nine of chapter fifty-seven of the Public Statutes is hereby amended so as to read as follows," etc., and in each case there follows a sentence which covers the whole subject of the original section, and may well be held to have impliedly repealed the preceding provisions. The intention of the legislature is plain that, after St. 1885, c. 352, took effect instead of Pub. St. c. 57, § 9, the sixth section of chapter 352, St. 1885, should be in force, and that, after St. 1886, c. 318, took effect, section 2 of this statute should be in force, instead of section 6, c. 352, St. 1885. The sections in each statute are complete in themselves, and, being substitutes for each other, stand like independent enactments.

The remaining exception is to the admission of evidence of the analysis of the milk. The objection is that "the chemist did not reserve a portion of the sample for the defendant as provided in Acts 1884, c. 310, § 4, until about two hours after commencing the analysis." The inspector, at the time he took the sample, deliverd to the defendant a portion of the sample taken, in accordance with St. 1886, c. 318, §§ 1, 3. We are of opinion that St. 1884, c. 310, § 4, is impliedly repealed by St. 1886, c. 318. Pub. St. c. 57, § 2, provided for the taking of specimens of milk, the analysis of the milk, and that a certificate of the result, sworn to by the analyst, should be admissible as evidence; but it did not require that any portion of the sample of milk taken should be delivered to the person from whom it was taken. This section of the Public Statutes was amended by St. 1884, c. 310, § 3, which was intended as a substitute for the section amended, and the section 4 of this statute required the person making the analysis, before commencing it, to reserve a portion of the sample, which should be sealed, and, if a complaint was made, should, upon application, be delivered to the defendant or his attorney. The statute did not declare what the consequence would be if this was not done. Section 2 of chapter 57, Pub. St., was again amended by St. 1885, c. 352, § 4, which was intended as a substitute for section 3, c. 310, St. 1884, and was again amended by St. 1886, c. 318, § 1, which was intended as a substitute for said section 3; and the last amendment provides that, at the time the sample is taken, if the person taking the sample of milk be requested so to do, "a portion of each sample, as taken," shall "be sealed and delivered to the owner or person from whose possession the same is taken," and section 3 of the same statute provides that if the inspector or collector, after being requested, refuses or neglects to seal up and deliver a portion of the sample taken to the owner or person, from whose possession the sample is taken, "no evidence shall be received in any court of the results of the analysis," etc. We think that the provisions we have cited from St. 1886, c. 318, were intended to be a substitute for the provisions of St. 1884, c. 310, § 4, and that the St. 1886, c. 318, contains all the provisions which were intended to be in force after its passage containing the taking of samples of milk, the analysis of them, and the use of the results of the analysis as evidence.

Exceptions overruled.

(143 Mass. 369)

HOLDSWORTH v. TUCKER.

(Supreme Judicial Court of Massachusetts. Bristol. January 10, 1887.) VENDOR AND Vendee-Bond for DEED-TENDER-WAIVER OF MISDESCRIPTION. To constitute a waiver there must be knowledge and intention; and the fact that the holder of a bond for a deed of land platted refused to accept it, when tendered, because the southerly boundary was set out as "contemplated Field street," but professed himself willing to take it if the word "contemplated" should be omitted, will not operate, in the absence of knowledge on his part of such misdescription, and an intention to waive his rights under the bond, as a waiver of a misdescription in the deed the effect of which would be to give him land only to the north line of "Field street," where his bond called for land up to the middle.

Contract to recover the penalty of a bond for the conveyance of real estate. At the trial in the superior court, before HAMMOND, J., it appeared that on February 17, 1885, the plaintiff and her husband called upon the defendant and her husband, with the money to pay for the deed; that the deed was shown to the plaintiff, who made the objection that the deed described the southerly boundary of the land as by "contemplated" Field Street, instead of by Field Street. The plaintiff objected to the use of the word "contemplated," and made no other objection to the deed tendered at any time before the trial of the case; and it further appeared that plaintiff's husband read the deed through. The defendant offered to correct the name of plaintiff, in which an initial letter was omitted, but refused to strike out the word "contemplated." February 18th, the next day, the parties again met at defendant's house, and the deed was again tendered as corrected as regarded the name, but not otherwise altered. The plaintiff again refused to take the deed unless the word "contemplated" was stricken out. This was again refused. February 19th the parties again met, and the same objection was made. During the day plaintiff consulted counsel as to the legal effect of the word "contemplated," and as to whether it complied with the terms of the bond. The deed was not shown to counsel. In the evening the parties again met, plaintiff demanded a deed, and defendant offered and tendered the same deed, and again plaintiff objected to the use of the word "contemplated," and demanded that it be struck out. One Greenwood, who came with plaintiff, then took the deed, read it, compared it with the bond, and then said to the defendant that the word "contemplated" was the only objection made. Plaintiff refused to take the deed.

The plaintiff at the trial testified that her only objection to the deed was the word "contemplated." It appeared that the bonded lot was one of a large number laid out on defendant's farm, a plan thereof having been made. Field street was not a public highway, and had no existence except on said plan, but was open to public travel its full width, and extended from a road to the public highway. The evidence showed that the boundaries in the deed tendered passed all the land in the bond by a good title and correct description, except only that the southerly boundary was south by the north line of the contemplated Field street, instead of by Field street. During the trial the court ruled, as matter of law, that, under the circumstances above disclosed, the use of the word "contemplated" was the same in legal effect, as far as the validity of the deed was concerned, as if it had been omitted. The plaintiff, at the close of the evidence, for the first time, made objection to the expression, "south by the northerly line of contemplated Field street." It was then objected to by the plaintiff as not in compliance with the terms of the bond, the description of that boundary line in the latter being "southerly by Field street sixty feet." The defendant claimed that there had been a waiver of any such defect on the part of the plaintiff upon the evidence. The court ruled that this was a matter of fact for the jury to determine. The plaintiff asked the court to rule "that to tender a deed in which one of the boundaries was south by a

contemplated Field street was not a compliance with the condition of the bond." The court ruled that it was a substantial compliance with the condition of the bond; that, under the circumstances, it was the same in legal effect. The court instructed the jury in terms, the substance of which appears in the opinion. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.

J. Brown, for plaintiff.

By the terms of the bond the defendant stipulated to convey to the plaintiff a parcel of land bounded "southerly by Field street." O'Linda v. Lothrop, 21 Pick. 296; Tufts v. Charlestown, 2 Gray, 271. The "precise location may naturally be supposed to have entered into the consideration of the purchase." Thomas v. Poole, 7 Gray, 85. Where a party bounds on a street, it is an implied covenant that a street has been laid out, either by himself or public authority. Loring v. Otis, 7 Gray, 565; Walker v. Worcester, 6 Gray, 548. The general rule: A court of equity will not compel a person who has agreed to purchase land to accept a title so doubtful that it may be exposed to litigation. Jeffries v. Jeffries, 117 Mass. 184; Sturtevant v. Jaques, 14 Allen, 526; Richmond v. Gray, 3 Allen, 27. There must be very clear proof of a parol waiver of its terms. Bigelow, Estop. 206; 1 Sugd. Vend. 167, 347. Courts scrutinize a claim of parol waiver with jealous care. Gerrish v. Nor

ris, 9 Cush. 169; Dresel v. Jordan, 104 Mass. 419; Park v. Johnson, 7 Allen, 383; Packard v. Usher, 7 Gray, 531.

Braley & Swift, for defendant.

The ruling as to the legal effect of the use of the word "contemplated" in the deed tendered was in accordance with Tufts v. City of Charlestown, 2 Gray, 271, 273; Dresel v. Jordan, 104 Mass. 407; Brown v. Bellows, 4 Pick. 178, 184, 189. The instructions given on the question of waiver were correct. Gerrish v. Norris, 9 Cush. 167, 170; Dresel v. Jordan, supra, 419; Popes v. Machias Water-power Co., 52 Me. 535, 539.

FIELD, J. The waiver set up is not of a condition precedent or of the time, place, or manner of the performance of a contract. If it can be called a waiver at all, it is a waiver of the right to require a conveyance of all the land which the defendant by the bond was bound to convey. If the plaintiff had accepted the deed tendered, it would have been a question for the jury, whether she thereby waived a claim for damages occasioned by the failure of the defendant to convey all of the land described in the bond; and the knowledge or ignorance of the plaintiff, when she accepted the deed, of the defect in the description of the land, would be material upon the question of waiver. There are, indeed, acts to which the law affixes a specific effect, independently of the intention of the parties; but the acts of the parties in this case are not of that character. Fox v. Harding, 7 Cush. 516; Taylor v. Cole, 111 Mass. 363; Moulton v. McOwen, 103 Mass. 587; Palmer v. Sawyer, 114 Mass. 1. The plaintiff did not accept the deed; and the defense is that, although the defendant did not offer to perform his contract according to its terms, yet the plaintiff waived the defect in the offer which was made. As the defect relates to the quantity of land to be conveyed, the defense is, in effect, that the plaintiff agreed to accept a substituted performance for that which the contract required, and that the defendant offered to perform the contract according to the new agreement; or, if put on the ground of waiver, that the plaintiff intentionally relinquished to the defendant the right to require a conveyance of the land to the center line of Field street. It may be assumed that in this commonwealth, in an action upon a contract under seal, which is executory upon both sides, the defendant may show in defense that, before any part of the contract has been executed, and before a breach, the parties have agreed to vary its terms, and that the defendant offered to perform the contract as thus varied. Rogers v. Rogers, 139 Mass. 440; S. C. 1 N. E. Rep. 122. But,

whether the defense is put upon the ground of waiver or of a new agreement, it is necessary to show an assent to the change on the part of the plaintiff. In Earl of Darnley v. London C. & D. Ry., L. R. 2 H. L. 43, it is said by Lord CHELMSFORD, on page 57, that "a waiver must be an intentional act with knowledge;" and by Lord CRANWORTH, on page 60, that "when parties who have bound themselves by a written agreement depart from what has been agreed on in writing, and adopt some other line of conduct, it is incumbent on the party insisting on, and endeavoring to enforce, a substituted verbal agreement, to show, not merely what he understood to be the new terms on which the parties were proceeding, but also that the other party had the same understanding; that both parties were proceeding on a new agreement, the terms of which both understood." In such a case as the present, knowledge on the part of the plaintiff of the form in which the deed and bond were written, if she was ignorant of the legal effect of the language, would not be conclusive against her right of action, even if she had been willing to accept the deed tendered, and had so declared, but for an objection which should be held to have been groundless. A mistake in the legal effect of the words in a deed, if it were mutual, or if the words were used by accident, or by fraud on the part of the defendant, would be corrected in equity. Canedy v. Marcy, 13 Gray, 373, 377; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 319. See Watson v. Watson, 128 Mass. 152.

In Dresel v. Jordan, 104 Mass. 407, the fact that the deeds were upon condition that the Cabot mortgage should be paid by the grantee, and the difference in legal effect between a grant upon such a condition and a grant subject to a mortgage which the grantee assumed, was well known to the defendant's attorneys, and the objection to the deeds on this ground had been considered by them, and was held to have been in fact waived.

In Gerrish v. Norris, 9 Cush. 167, the justice at the time did not rule that the defendant, "by not taking the objection to the deed at the time it was tendered, which he now raises," waived the objection, but submitted the question of waiver to the jury. The statement, however, in the first paragraph of the opinion, is too broad, if applied to substantial changes in contract, and seems to have misled the presiding justice in the case at bar. It does not appear in the case at bar that the defect in the deed was noticed by the plaintiff, or that the effect of the language used was discussed or considered by the parties. The dispute was wholly upon another matter; and the instructions of the court were in effect that, if the plaintiff was willing to accept the deed if the word "contemplated" was stricken out, she waived the substantial mistake in the boundary of the land, whether she knew of it or not. We think that this ruling is erroneous. The jury could not properly find that the plaintiff waived this defect in the deed unless they found she knew of it, and assented to the change in the boundary. The assent need not be expressed in terms; but it must be found to have existed as a fact. No question of estoppel, as distinguished from waiver, arises in these exceptions; and we are not called upon to decide whether, if the defendant intended to deliver a deed in conformity with the bond, and the mistake was not pointed out or known to him until the trial, he might not then have tendered a sufficient deed, and, under an amendment of his pleadings, have proved these facts in mitigation of damages.

As the other questions stated in the exceptions may not arise upon a new trial, we have not considered them.

For the reasons given, a majority of the court are of opinion that the exceptions must be sustained.

(143 Mass. 396)

MORLEY V. CHASE.

(Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.) ASSAULT AND BATTERY-KEEPER OF ATTACHED GOODS-ATTEMPT TO ARREST BY OWNER —Belief that FELONY HAD BEEN COMMITTED.

At the trial of an action for assault, brought by a keeper of attached goods against the owner, where the defendant seeks to justify by showing that he was attempting to arrest the plaintiff, and had reasonable ground for believing that he was guilty of a felony, a charge that, the plaintiff being rightfully in the defendant's shop, the defendant, not being an officer, had no right to arrest or lay violent hands on him, although he had reasonable cause to believe him guilty of larceny, unless, by some fault or improper omission on the plaintiff's part, the plaintiff contributed to induce such belief, and that the defendant, if he was led to believe the plaintiff had been guilty of larceny by the conduct of the plaintiff, and his failure to notify the defendant of his business, would be justified in forcibly restraining him, and that the jury, in determining what the defendant really believed, were to take into consideration all the circumstances bearing on the conduct of both, is sufficiently favorable to the defendant; and a refusal to charge that if certain facts, which were only a part of the circumstances bearing on the matter, were true, the defendant would be justified, is not open to exception..

Tort for assault. At the trial in the superior court, before THOMPSON, J., it appeared that on May 27, 1884, a constable duly attached, on civil process, certain personal property of the defendant in the defendant's bake-shop, and duly deputed the plaintiff as keeper thereof in said shop. The defendant's daughter, 16 years of age, was attending said shop at the time, and in half an hour another older girl, employed in said shop, came in, and remained there. The evidence was conflicting as to whether the girls, or either of them, were informed or knew that an attachment had been made, or as to the authority, object, or purpose of the constable or keeper; the girls denying having had any such information or knowledge, and the constable and plaintiff testifying that they duly and fully informed said girls of the attachment, and showed to them the deputation paper. It further appeared that the defendant came into his shop, and found there the plaintiff and said girls; and that, upon being told by his daughter that the plaintiff had pushed her, and "taken money from the drawer," he seized the plaintiff, after telling him to restore the money, and held him against a partition until a policeman came, and took plaintiff away from the shop. The defendant also offered evidence tending to show that the plaintiff made no statement, and gave no information, as to the attachment, or his authority, and that the defendant neither knew or suspected either. The plaintiff offered evidence tending to prove that, immediately upon the defendant entering the shop, plaintiff fully informed him of the attachment, and his authority as keeper, and that the defendant fully understood that before making the assault complained of. The court, in substance, ruled and instructed the jury that the plaintiff, being rightfully in said shop, and his doings there being legal, the defendant, not being an officer, had no right to arrest or lay violent hands on him, even though the defendant had reasonable cause to believe that the plaintiff had committed a felony, unless, by some fault or improper omission on the plaintiff's part, the plaintiff contributed to induce such belief; and that the defendant, if he was led to believe that the plaintiff had wrongfully taken money from his drawer, by the conduct of the plaintiff, and his failure to notify the defendant of his business in his shop, would be justified in forcibly restraining the plaintiff, and endeavoring to obtain the money which he believed had been wrongfully taken from the drawer, although, in fact, no money had been wrongfully taken therefrom; and that, in determining whether or not, the defendant believed that the plaintiff had wrongfully taken money from the drawer, the jury were to take into consideration all the circumstances bearing upon the conduct of both the plaintiff and the defendant upon that occasion. At the close of the charge, the defendant requested the court further to rule and instruct the