a lien rests are as well known to the plaintiff as to the defendant, and the defendant simply refuses to give up the property, without alleging any reason, we do not think that a lien, if one exists, is thereby waived. Everett v. Coffin, 6 Wend. 603; White v. Gainer, 2 Bing. 23; Avery v. Hackley, 20 Wall. 412. It may be that if the lien is unknown to the plaintiff, and the defendant knows or has reason to know this, it is the defendant's duty, when a demand is made upon him for the property, to give the plaintiff notice of the lien if he relies upon it; and it has been often held that, when the defendant puts the refusal to surrender property upon a ground which is inconsistent with a lien, he cannot defeat an action by setting up a lien of which the plaintiff was ignorant at the time he brought the action. Still, even in these cases, there may be a distinction between waiving the necessity of a tender as a condition precedent to the right of action, and losing the right to have a claim upon the property satisfied in some manner. Hudson v. Swan, 83 N. Y. 552. Under the pleadings, the burden was on the plaintiff to prove property, general or special, in the goods replevied, and the right of immediate possession, but it may well be doubted whether the defendants, under their answer, can rely upon a lien if they have one. The defendants deny that they unlawfully took the goods, but do not deny that they unlawfully detained them, except by alleging that the goods "were the property of and belonged to the defendants, and were not the property of the plaintiffs, and the defendants were and are entitled to the possession thereof." The fair construction of this answer is that the defendants say they are entitled to the possession of the goods because they say that the goods are their property. Such an allegation might, perhaps, be held to raise only the issues of property in the goods and of possession as dependent upon property. The refusal of the court to rule as requested, and the rulings given, however, do not appear to have been put upon the form of the pleadings; and, as the questions argued are of substantial importance, we are unwilling to decide the case upon this ground.

The exceptions state all the evidence introduced by either party "in regard to Lambert's acts or connection with the matter, or of the dealings or interviews of the plaintiffs with him," and that "the counsel for the plaintiffs stated in argument that the plaintiffs were willing to repay to Lambert the duties upon said molasses paid to him." If the plaintiffs or their agents knew or believed that Lambert, in good faith, claimed the goods as consignee of a supposed owner other than themselves, and they, believing themselves to be the owners, and intending to claim the goods, stood by and permitted him to pay the duties without disclosing their claim, and with the intention of replevying the goods after the duties were paid, we think that Lambert was equitably entitled to have the amount of the duties paid to him before the plaintiffs were entitled to possession, and that he thereby acquired an equitable lien upon the goods, and we also think that the evidence recited in the exceptions does not show that this lien has been waived or lost. Willmott v. Barber, 15 Ch. Div. 96; Ramsden v. Dyson, L. R. 1 H. L. 129, 141, 168, 174; Rennie v. Young, 2 De Gex & J. 136; Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Niven v. Belknap, 2 Johns. 573; Pickard v. Sears, 6 Adol. & E. 469; Gregg v. Wells, 10 Adol. & E. 90; Dewey v. Field, 4 Metc. 381; Hinchley v. Greany, 118 Mass. 595; Griffin v. Lawrence, 135 Mass. 365.

If the defendant Lambert had this lien, it was the duty of the plaintiff to have discharged it by paying the amount of the duties before they replevied the goods. The effect of an offer to do this, if Lambert refused to state to them the amount, and they were thus prevented from tendering the exact amount due, need not be considered. If the instructions requested ought not to have been given without some modification, such as has been suggested, yet the instructions given were erroneous, and there must be a new trial.

We are not now required to determine whether, if, in a new trial, the de

fendant Lambert should obtain a verdict, and it was established that his only right to retain the goods was to secure the payment of the amount of the duties, he would be entitled to a judgment for a return if the plaintiff paid this amount to him, or into court for him. Exceptions sustained.

(143 Mass. 448)

TOBIN V. JONES.

(Supreme Judicial Court of Massachusetts. Norfolk. January 17, 1887.) WITNESS-IMPEACHING-AUDITOR A WITNESS AS TO STATEMENTS BEFORE HIM.

At the trial of a case in the superior court, it is competent for the auditor who heard the case to testify that a witness who has testified at the trial, made statements, at the hearing before him, contradictory of those made at the trial, where the auditor has not set out the testimony of the witness in his report, and where the effect of the auditor's testimony is not to add to or control his report. This was an action of contract to recover the sum of $517, according to an account annexed, as balance due from the defendant for labor and services performed from December 17, 1875, to November 1, 1885. The case was sent to an auditor, who heard the parties, and made his report in writing. At the trial in the superior court, before ALDRICH, J., the plaintiff offered in evidence the auditor's report, and rested. The defendant called one C. F. Crane, referred to in the auditor's report as the person who figured up the plaintiff's books, who testified that he had no recollection as to the result of his figures, or what appeared to be due as the result of the computation made by him. The defendant testified that the balance which Crane figured as due was about $60, and that, after deducting a certain coal bill paid by defendant, which Crane had not computed, he (defendant) owed plaintiff nothing, but that plaintiff owed him eight dollars. The defendant, on cross-examination, was asked whether he did not state at the hearing before the auditor that the balance found by Crane was about $400 or $500, to which he replied that he did not. He was also asked whether he did not state to the plaintiff, in the presence of the auditor, that he would "jew" the plaintiff out of the bill if he could, to which he replied that he did not. In rebuttal the plaintiff testified that defendant had testified before the auditor that the balance was $400 or $500, and that defendant stated he would "jew" him out of the bill if he could, and plaintiff denied that the account was adjusted between them.

The plaintiff called the auditor as a witness. The defendant objected, but the court overruled the objection, and the auditor testified that "he heard the case; that the only books produced were some accounts of Jones; that he did not know that Jones claimed before him that he had made a settlement; that the balance was, as claimed by Jones before him, $400 or $500; that Jones did not state that the balance found by Mr. Crane was $60; and that he did not take down as evidence the expression that he would 'jew' him out of the bill if he could." The testimony of the auditor was introduced for the sole reason that it tended to contradict the testimony of Jones, as given at the trial. The only objection made by the defendant was that the auditor was an incompetent witness in this case, for the reason that he had acted as the auditor in the case.

The judge instructed the jury, among other things: "Now, as somewhat tending to control the testimony of the defendant, the auditor was called by the plaintiff as a witness, after the defendant had testified as above stated. It is said in the case to which reference is made by the defendant's counsel that the auditor's report is the only form in which he can be permitted to state what took place before him, and he cannot be called as a witness for the purpose of adding to or controlling his report. The auditor was not called in the case now on trial for any such purpose. He was called for the purpose of testifying according to his recollection as to what the defendant said to or before him. That does not add anything to his report, nor take anything

from it. The meaning of the case cited is that, after the auditor has stated in his written report his conclusions, he is not to be called as a witness, either to add to that report, or to control that report. But if one of the parties before him admitted a fact, and testified that he admitted that before him, and then comes into this court, and says that he did not admit or testify to any such thing, would it not be very strange if the adverse party could not call the auditor as a witness for the purpose of contradicting him? You have heard the evidence, and, taking the auditor's report, and what you have heard here, it will be for you to say whether the defendant owes any sum of money." The jury found for plaintiff, and defendant alleged exceptions. J. E. Tirrell, for defendant.

The defendant's objection to the admissibility of the testimony of the auditor was based on the statement of the court in the case of Fair v. Manhattan Ins. Co., 112 Mass. 331. The auditor's report is the report of an officer of the court, appointed by the court, under the authority of the statute, and is made prima facie evidence upon such matters as are referred to the auditor. It is submitted that the powers of the auditor are exhausted when he makes his report to the court, and the same is not recommitted, and states therein his conclusions from the trial of the matter before him. His statement is necessarily accepted with only less weight and authority than the direction of the judge himself before whom the case is tried. We submit that the auditor cannot be permitted to state what took place before him, except in and by the report itself.

J. L. Eldridge, for plaintiff.

The exceptions are frivolous and immaterial, and intended for delay, and the plaintiff asks for double costs and interest, under Pub. St. c. 150, § 14.

BY THE COURT. At the trial in the superior court, the defendant was a witness in his own behalf. It was competent for the plaintiff to contradict his testimony and impeach his credibility by showing that he had made inconsistent statements at other times. He had the right, therefore, to prove by any competent witness that the defendant made such contradictory statements in his testimony before the auditor who heard the case, and for this purpose the auditor is a competent witness, he not having set out in his report the testimony taken before him. He is not called as a witness to control or affect his report, either by impeaching it or adding to it, but merely to contradict the testimony of the defendant. The case, therefore, does not fall within the cases of Monk v. Beal, 2 Allen, 585, and Packard v. Reynolds, 100 Mass. 153 Exceptions overruled.

(143 Mass. 446)

BOSTON LOAN Co. v. MYERS.

(Supreme Judicial Court of Massachusetts. Suffolk. January 17, 1887.) REPLEVIN-DAMAGES FOR DETENTION OF PROperty.

In an action of replevin of household furniture, where the verdict is for the defendant, and a return of the goods ordered, the jury may award such damages for the detention of the property as they shall be satisfied the property was worth to the defendant, during the time of the detention, considering the nature and character of the property.

Replevin brought to recover possession of a piano and suite of parlor furniture. In the superior court before KNOWLTON, J., the plaintiff was nonsuited, and the question of damages to the defendant for the detention of the goods was submitted to the jury; the plaintiff requesting certain rulings which the court refused to give, and to such refusal the plaintiff alleged exceptions. The nature of the rulings requested, with other material facts, appear in the opinion.

C. W. Bartlett, for plaintiff.

The rulings requested should have been given. Interest would have been the proper rule for compensation upon the facts disclosed, analogous to the rule in other cases of unlawful detention of property. Bartlett v. Brickett, 14 Allen, 62; Bruce v. Learned, 4 Mass. 614. There was no evidence in this case of special damage. The ruling is the rule laid down in our reports, modified to meet the facts presented. Stevens v. Tuite, 104 Mass. 328. See Clark v. Martin, 120 Mass. 543, which arose on a question of pleading. "In trover the rule is well established to be interest on the value of the goods from the time of the conversion to the time of the assessment; and, when no special damages are shown, the same principle applies to replevin." Barnes v. Bartlett, 15 Pick. 71.

Richardson & Hale, for defendant.

It is to be presumed that the instructions given were correct. Smith v. Livingston, 111 Mass. 343. No such rule or limit of damage as that contained in the plaintiff's request has been or could be laid down in the case of a wrongful taking or detaining such property. Stevens v. Tuite, 104 Mass. 334. It leaves out an important element of damages in all such cases. In Clark v. Martin, 120 Mass. 544, the instruction to the jury that "they might award such damages for the detention as upon all the evidence they should be satisfied the use of the property was worth to her during the time of detention, considering the nature and character of the property," was held to be correct.

MORTON, C. J. This is an action of replevin in which the defendant has recovered a verdict. He is entitled to recover as damages such sum as will be a fair indemnity to him for the injury he has sustained by reason of the unlawful taking and detention of his property by the plaintiff. Stevens v. Tuite, 104 Mass. 328. In this case the property replevied was household furniture, including a piano, and it appeared that during the time of the detention the defendant did not purchase or hire other similar property. The plaintiff asked the court to rule that "the damages for the detention should be fixed at the interest of the money value of the property, during the time it was detained, and whatever loss or inconvenience was sustained in purchasing property of equal value for use during the time of detention." As the defendant did not purchase other property, this was equivalent to asking the court to rule that the defendant could only recover as damages the interest on the value of the property. The court rightly refused this ruling, for it is clear that interest on the value of the property is no criterion of the damage sustained by the defendant by reason of being deprived of the use of it. The property was household furniture, in daily use, and necessary to his comfort. It is evident that the restoration of the property, with interest on its value, would not furnish an adequate indemnity to the defendant for the wrong done in taking it out of his possession. In Clark v. Martin, 120 Mass. 543, it was held that where a plaintiff in replevin recovered damages for the detention of a horse and buggy attached by the defendant on a writ against a third person, the jury might award such damages for the detention as they should be satisfied the use of the property was worth to the plaintiff during the time of the detention, considering the nature and character of the property. A similar rule of damages would apply in the case before us, and it is to be presumed that such rule was adopted by the court, as nothing appears to the contrary. Exceptions overruled.

(143 Mass. 27)

HADLEY and another v. WATSON.

(Supreme Judicial Court of Massachusetts. Middlesex. November 10, 1886.) EXCEPTIONS-PETITION TO PROVE-AFFIDAVIT-REQUIREMENTS.

Under the thirtieth rule of the supreme judicial court, an affidavit verifying a petition to prove exceptions is insufficient where the affiants do not state that they

know or recollect any of the facts stated in the petition, but merely on oath say that "the statements contained in the foregoing petition are true, to the best of our knowledge and belief."

Petition to establish the truth of exceptions alleged by Darius Hadley and Maraget Andrews in an action brought against them by Jeremiah Watson, and disallowed in the superior court by MASON, J., before whom the case was tried. The petition was verified by the following affidavit, "subscribed and sworn to" before a justice of the peace by the persons named therein: "We, Darius Hadley and Maraget Andrews, the persons named in the foregoing petition, on oath say that the statements contained in the foregoing petition are true, to the best of our knowledge, information, and belief.

B. F. Briggs, for petitioners. No counsel appeared for respondent.

MORTON, C. J. The thirtieth rule of this court requires that a petition to prove exceptions shall be "verified by affidavit." The affidavit in the case is insufficient. The affiants do not take the responsibility of stating that the facts are true. They do not state that they know or recollect any of the facts. They could not be indicted for perjury if it appeared that their only information was mere hearsay. Any person acting on such information, however untrustworthy, could take such an oath without incurring any responsibility. The right to prove exceptions has always been regarded as strictissimi juris. The purpose of a petition to prove exceptions is to contradict and control the statement of a judge made under his oath of office and his official responsibility. It is fit that, before this court entertain such a petition, some person, with a knowledge of the facts, should make oath to their truth. This was the purpose and meaning of the thirtieth rule. As the petitioners have not complied with the rule, their petition must be dismissed. Tufts v. Newton, 117 Mass. 68.

Petition dismissed.

(143 Mass. 394)

MANN v. WILLIAMS and another.

(Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.) CORPORATIONS-PURCHASE OF STOCK IN MINING COMPANY-EVIDENCE.

In an action of contract to recover the price of certain shares of stock in the M. Co., sold to the defendant, the fact that the defendant signed a memorandum setting forth that he had bought a certain number of shares in the M. Co. is an admission by him that there was an M. Co. that issued what were called by the parties shares of stock which the defendant bought. And, in the absence of evidence that the certificates offered by the plaintiff were not genuine, or were not what were generally known and called shares of stock in the M. Co., or were not what was intended by the parties, the defendant is liable for the purchase money. Contract upon the following written memoranda. Executed in two parts: "200 shares. BOSTON, November 10, 1881.

"I have sold to F. H. Williams 200 shares of the stock of the Milton Mining & Milling Company, at one and thirty-three one hundredths dollars per share, payable and deliverable, buyer's option, sixty days, with interest at the rate of six per cent. per annum. W. J. MANN." BOSTON, November 10, 1881.

"200 shares.

"I have bought of W. J. Mann two hundred shares of the stock of the Milton Mining & Milling Company, at one and thirty-three one hundredth dollars per share, payable and deliverable, buyer's option, sixty days, with interest at the rate of six per cent. per annum. F. H. WILLIAMS & Co."

At the trial in the superior court, before BACON, J., the plaintiff proved that the parties entered into the agreement as set forth in the foregoing memoranda, but submitted no evidence as to the organization of any com