the subject. The law clearly is that the court of chancery will not interfere by injunction to restrain the publication of a libel, as was distinctly laid down by Lord Chancellor CAIRNS in the case of Prudential Assurance Co v. Knott, L. R., 10 Ch. App. 142; s. c., 11 Eng. Rep. 498, where he says, in reference to an application for an injunction to restrain a libel calculated to injure property: "Not merely is there no authority for this application, but the books afford repeated instances of the refusal to exercise jurisdiction," he referring to several authorities. If this decision has since been overruled, it is only because of the enlarged jurisdiction conferred upon the English courts by the statutes referred to. It is a standing authority on the general law, independent of legislation. We do not think that the existence of malice in publishing a libel or uttering slanderous words can make any difference in the jurisdiction of the court. Malice is charged in almost every case of libel, and no case of authority can be found, we think, independent of the statute, in which the power to issue an injunction to restrain a libel or slanderous words has ever been maintained whether malice was charged or not. Charges of libel and slander are peculiarly adapted to, and require trial by jury; and exercising, as we do, authority under a system of government and law which by a fundamental article secures the right of trial by jury in all cases of common law, and which by express statute declares that suits in equity shall not be sustained in any case where a plain, adequate and complete remedy may be had at law, as has always heretofore been considered the case in causes of libel and slander, we do not think we would be justified in extending the remedy of injunction to such cases.

The application for injunction must be denied, and the ancillary bill dismissed, with costs.

In Greene v. United States, etc., Agency, 39 Hun, 300, it was held that in an action brought to restrain the publication of a libel to the effect that the plaintiff refuses and neglects to pay debts justly due from him, a temporary injunction restraining the publication of the libel during the pendency of the action will not be granted, unless the falsity of the charge that the plaintiff is a delinquent debtor, who can but will not pay, be proved.

GRUNDY v. MARTIN ET AL.

January 7, 1887.

A widow had a life estate in an undivided half of certain real estate; the reversion of this half and the fee of the other undivided half are owned by the lessors. Held, that the lessors were entitled to possession against everybody except their tenant in common, the widow, and could give a lease of the premises good as against every one not claiming under her.

A notice to quit, left on the premises with the wife when the husband is the tenant, is sufficient to terminate the tenancy.

A notice addressed to two tenants in common served upon one is sufficient service on both.

Action on Public Statutes, chapter 175, for the possession of onefourth of an acre of land with a dwelling-house thereon in Stoneham. The writ was dated November 14, 1883.

At the trial in the superior court, it appeared that the defendants, father and son, became tenants at will of the premises eight or ten months previous to the date of the writ, the contract of hiring being made by Peter L. Martin, the son, with one W. H. Bate. Said Bate was then in charge of the premises for his wife, Susanna Bate, and Thomas G. Grundy, her brother, as owners, and in letting the same acted solely as agent of said Susanna and Thomas, but did not inform the defendants for whom he acted. September 1, 1883, said Susanna and Thomas executed and delivered to the plaintiff a lease of said premises for one year from said September 1, 1883, and on October 29, 1884, executed and delivered another lease of the same for three years from said last-named date. The estate in question was owned in 1858

by the firm of J. Grundy & Brothers, consisting of three brothers, James, Thomas and Joseph, who held as tenants in common. James Grundy died first, and said premises, in the partition of his estate, which was recorded with the probate records, were assigned to his surviving partners, Joseph and Thomas. Thomas next died, leaving a will, by which his widow still living took a life estate in his portion, with remainder to his two children, Thomas G. Grundy and Susanna Bate, the lessors above-named. Subsequently in 1866, Joseph conveyed his interest to said Thomas G. and Susanna.

At the conclusion of the evidence the defendants asked the court to rule that no sufficient title was shown in the lessors to make the lease to the plaintiff effective to terminate the defendants' tenancy at will which ruling was refused. The verdict was for the plaintiff, and the defendants alleged exceptions. Except as above given, the case sufficiently appears in the opinion.

B. F. Briggs, for plaintiff. A. V. Lynde and W. P. Harding, for defendants.

MORTON, Ch. J. The ground taken by the defendants, that their lessors had no sufficient title to enable them to make a valid lease to the plaintiff cannot be sustained. The widow of Thomas Grundy has a life estate in an undivided half of the premises; the reversion of this half and the fee of the other undivided half are owned by the lessors. They are entitled to possession against everybody except their tenant in common the widow, and can give a lease of the premises good as against every one who does not claim under her. Rising v. Stannard, 17 Mass. 282; Cunningham v. Oattee, 99 id. 248. The only other point argued by the defendant is the exception to the ruling of the court that twenty-four hours' notice to the defendant, Levi Martin, would, under the circumstances of this case, be a reasonable notice. We do not discuss the correctness of this ruling because it was immaterial, or at least sufficiently favorable to the defendants. The bill of exceptions shows that the premises were leased to Levi Martin and Peter L. Martin. They were tenants in common. It was adınitted at the trial, that upon the evidence a sufficient notice was served upon Peter L. Martin, and that the plaintiff was entitled to a verdict against him. It has been held that a notice to quit left on the premises with the wife or agent of the tenant, was a sufficient notice to terminate the tenancy. Blish v. Harlow, 15 Gray, 316; Walker v. Sharp, 103 Mass. 154; Clark v. Keliher, 107 id. 406.

In the case at bar it appeared that a notice addressed to both tenants was served four days before the writ was brought by giving a copy in hand to Peter L. Martin, upon the premises in which both tenants resided. The relation of one tenant in common to the estate and co-tenant is such that in our opinion this was a sufficient service upon both tenants, and the court should so have instructed the jury. The instructions given were too favorable to the defendants. Exceptions overruled.

VOL. IX.-49

BLAKE v. CITY OF LOWELL.

January 7, 1887.

In an action against a city to recover for personal injuries received by reason of a defective sidewalk, a book kept in the office of the city messenger, in which entries were made of complaints as to the conditions of the streets, is admissible on the question of notice to the city.

Action of 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.

At the trial in the superior court, without a jury, Albert E. Libby, a police officer of the defendant city, was called by the plaintiff and testified that about four o'clock on the afternoon of Saturday, December 27, 1884, the day before the alleged injury was received, upon the book hereafter described he made the following entry:

"Sidewalk at the corner of Kirk and Merrimack streets in a bad condition; snow and ice not removed. December the 27th, 1884."

It appeared in evidence that this book had been kept in the office of the city messenger of the city of Lowell, in the city government building, for the use of the superintendent of streets, from the year 1871 up to and after the date of this injury, and that police officers and others during that time had entered therein notices of defects in the streets and sidewalks, and that the superintendent of streets had in consequence of such notices repaired the defects. The book had printed headings on each page, in this form:

"Streets, Sidewalks and Sewers.

Complaints. When attended to." It also appeared that the corner of Kirk and Merrimack streets was a round corner, and in sight of and only a few feet distant from the city government building.

The book with the above entry in it was produced on notice from the plaintiff, and again the objection of the defendant was admitted in evidence.

The court found for the plaintiff, and the defendant alleged exceptions.

W. H. Anderson, for plaintiff. G. F. Lawton and J. J. Pickman, for defendant.

DEVENS, J. The city of Lowell was responsible for the defect in its highway, if it had reasonable notice thereof, or by the exercise of reasonable care and diligence on its part, might have had such notice. Pub. Stats., chap. 52, § 18. Such notice may be given to its officials, and the reasonable care and diligence which must be exercised is to be exercised by them. The book which was admitted in evidence was kept in the office of the city messenger in the city government building, and had been kept from 1871 up to the time of the injury, which was of recent date.

The printed headings on its pages indicated that it was kept for the purpose of entering complaints as to the condition of the streets, side

walks, etc., and recording the time when said complaints were attended to. It was in evidence that the superintendent of streets had, in consequence of similar notices, repaired defects complained of. The object with which the book apparently was kept was that the city should receive notice of defects. Upon this book a policeman of the defendant city had entered a notice of the defective condition of the sidewalk a day previous to the occurrence of the plaintiff's injury, and it was properly admitted in evidence, npon the question of notice. Whether the defect was the same, and the place of the injury the same as that pointed out by the entry recorded, it was for the jury to determine. It does not appear, as defendant contends, that the book was admitted as a narrative of the condition of the way at the time it was made. The actual condition of the way was proved by other evidence, and no further weight appears to have been given to the book, than that derived from its bearing upon the question of notice.

66

The defendant requested the court to rule "that the origin of the ice"- by which the defect was occasioned was not material on the question whether the ice constituted a defect," but as the court- the case being heard without a jury-found as a fact" that the ice on which the plaintiff fell was a defect without reference to its origin," that is, independently of the manner in which it was occasioned; this request of the defendant was immaterial. We do not intend to intimate that even if material it should have been granted, especially in view of the Statute 1877, chapter 234, section 2-Pub. Stats., chap. 52, 18— which renders a defendant town or city liable only for an injury or damage through a defect "which might have been removed, or which damage or injury might have been prevented by reasonable care or diligence." Billings v. Worcester, 102 Mass. 329; Fitzgerald v. Woburn, 109 id. 204; Rooney v. Randolph, 128 id. 580; Hayes v. Cambridge, 136 id. 402; Olson v. Worcester, 142 id. 536; Post v. Boston, 141 id. 189.

Other exceptions taken at the trial were not argued, and need not be discussed.

Exceptions overruled

FLYNN V. BOURNEUF.

January 7, 1887.

EVIDENCE — PAROL TO CHANGE COVENANT AGAINST INCUMBRANCES.

At the time of the execution of a deed containing a covenant against incumbrances, the land was liable to an assessment for betterments.

In an action to recover damages for a breach of the covenant, held, that evidence of a prior oral agreement that plaintiff would assume and pay all assessments was erroneously admitted.

Action of contract to recover damages for the breach of a covenant against incumbrances contained in a deed, given by defendant to the plaintiff. The superior court found for the defendant, the plaintiff alleged exceptions to rulings of the presiding justice. The case is stated in the opinion.

W. H. Moody, for plaintiff. J. P. & B. B. Jones, for defend

ants.

HOLMES, J. This is an action on a covenant against incumbrances. At the time of the execution of the deed, the land conveyed was liable to an assessment for betterments, which was afterward made and which has been paid by the plaintiff. It is not disputed that the liability was an incumbrance, or that there would have been a breach of the covenant on general principles. Carr v. Dooley, 119 Mass. 294. But what the defense relied on is "that a few days before said deed to the plaintiff was executed and delivered, the plaintiff and defendant made an independent, distinct and oral agreement that in consideration that the defendant would execute and deliver the deed in question to the plaintiff for the sum of $2,200, and would execute and deliver to the brother a deed of the adjoining premises for the sum of $2,300, the plaintiff would assume and pay all assessments which should be made in accordance with said liability on the lands conveyed by said deeds," and that the deeds were made as agreed.

We interpret that the consideration moving from the defendant was a promise to execute the deeds, not the execution of them. For if it was the latter, then the agreement did not become a contract until the consideration was furnished, and if the deed to the brother was executed after the deed to the plaintiff, which, for all that appears, may have been the case, then the oral contract was subsequent to the covenant in suit, and the question of its effect on that state of facts would be a different one from that which was argued or which we understand to have been relied upon.

Assuming that the oral contract was made before the covenant in suit, the purpose for which it is offered is to show that at the very moment when the specialty purporting to extend to all incumbrances was executed and accepted as determining the extent of the defendant's obligations under the contract expressed by it, the parties expressed by their conduct in pais that the deed should have a less operation. We think that this is plainly a contradiction of the covenant, if, leaving technical difficulties on one side, the oral contract be relied on as a contemporaneous release or satisfaction of an obligation admitted to be within the language of the deed. Bachelder v. Queen Ins. Co., 135 Mass. 449. And we think that the contradiction is only a little more disguised if such a contract be allowed to take the incumbrance out of the language of the deed by giving a special and unusual meaning to a covenant in daily use, the interpretation of which is as well settled as that of any words in the language. The suggestion of Mr. Justice WILDE to the contrary, in Preble v. Baldwin, 6 Cush. 549, 553, is declared by him not to be necessary to or embraced in the decision, and is outweighed by Howe v. Walker, 4 Gray, 318; Spurr v. Andrew, 6 Allen, 420; Harlow v. Thomas, 15 Pick. 66; Townsend v. Weld, 8 Mass. 146. Of course we are not speaking of a case which would warrant a reformation of the deed in equity, and when the facts are pleaded by way of equitable defense.

It is enough to say of Carr v. Dooley, 119 Mass. 294, and McCor mick v. Cheevers, 124 id. 262, that they evidently were not intended to overrule the decision iu Howe v. Walker, ubi supra, that a covenant against incumbrances would exclude proof of a contemporaneous oral