undertaking of a larger scope upon the same consideration.

Moreover

all three cases deal with attempts to add a further obligation to those assumed by the covenant, not with an attempt to cut the latter down. Spurr v. Andrew and Harlow v. Thomas, ubi supra, remain unshaken. Exceptions sustained.

JONES v. GOODWILLIE.

January 7, 1887.

CONVERSION-TITLE-WHETHER HAD PASSED.

A. delivered a printing press and a quantity of type to B. under conditional contracts of sale. The condition as to the sale of the type was not performed. It was in dispute whether the sale ever became absolute as to the printing press. While B. was in possession under the contracts of sale they gave plaintiffs a bill of sale of all the property and took back a conditional contract of sale. It was in dispute whether the sale to plaintiff was absolute in payment of a debt due from B. or as security therefor. Defendant removed the property from the possession of B. to the place of business of A. In an action for conversion the plaintiff excepted to the following charge: "If the defendant did this at the request of the Littlefields, and the jury find that the bill of sale from them to the plaintiff was given merely for the purpose of securing their indebtedness to the plaintiff, this action cannot be maintained for such removal; but if the removal was not with the consent of the Littlefields, it is of no importance whether the bill of sale was given to secure the debt of the Littlefields to the plaintiff or in payment of such debt." Held, that the instruction was correct.

Action of tort for the conversion of a printing press and a lot of type and printing materials to which the plaintiff claimed title under a bill of sale from John A. and George E. Littlefield. At the trial in the superior court there was a verdict for the defendant, and the plaintiff alleged exceptions to rulings of the court. The case is stated in the opinion.

F. B. Patten, for plaintiff. J. W. Hubbard, for defendant.

W. ALLEN, J. This is an action of tort for the conversion of a printing press and a quantity of type. The defendant justifies under the Goodwillie Wyman Company, a corporation, and the plaintiff claims under the Littlefields, to whom the Goodwillie Wyman Company delivered the property under conditional contracts of sale. The condition of the sale of the type has not been performed; it was in dispute whether the sale ever became absolute as to the printing press. While the Littlefields were in possession under the contracts, they gave to the plaintiff a bill of sale of all the property, and took back from him a conditional contract of sale. It was a question whether the sale to the plaintiff was absolute, in payment of a debt due to him from the Littlefields, or as security for the debt. The defendant removed the property from the printing office of the Littlefields, where it was in use by them, to the place of business of the Goodwillie Wyman Company, and the plaintiff relied upon this removal as a conversion of the property. The plaintiff excepted to the following sentence in the charge to the jury relating to this: "If the defendant did this at the request of the Littlefields, and the jury find that the bill of sale from them to the plaintiff was given merely for the purpose of securing their indebtedness to the plaintiff, this action cannot be maintained for such removal; but if the removal was not with the consent of the Littlefields, it is of

no importance whether the bill of sale was given to secure the debt of the Littlefields to the plaintiff, or in payment of such debt."

The instructions were correct. If the transaction between the plaintiff and the Littlefields amounted to a mortgage, the Littlefields had at least the right of a mortgagor in possession, to transfer the possession of the mortgaged property; and receiving the possession from them of a stranger would not be a conversion of it. The removal of the property from the Littlefields' possession without their consent, unless under a paramount right, would be a conversion for which the plaintiff might recover, if he had the right either of absolute owner or of mortgagee. The other questions relate only to a part of the property-the type. The Littlefields had in their possession, and used with the type claimed by the plaintiff, another quantity of type called the "Knight lot," which belonged to the Goodwillie Wyman Company. The type claimed by the plaintiff had become mingled in using by the Littlefields with this lot, so that they could not easily be separated, and they were removed together to the place of business of the Goodwillie Wyman Company. While there, in that condition, there was a conditional sale of type by the defendant, acting for the corporation, to one Bacon, which the plaintiff claimed was a conversion of the type claimed by him. The defendant testified that the sale was of the type in the Knight lot," and that the sale was expressed in the bill of sale as subject to the claim of any one for property in excess of the original "Knight lot." The bill of sale is not set forth in the exception. The court in its charge to the jury said that: "In the instrument in writ ing between the corporation and Bacon, showing what the contract was, there is a saving of the rights of all persons other than the corporation, and it is stated in some form of words that all that the corporation undertook to sell was the type and material in the "Knight lot." If that was the nature of the transaction between the defendant and Bacon, it is not evidence of a conversion. We do not see in what respect this instruction is open to exception. It does not relate to a delivery, but is a contract of sale, and is to the effect that the contract of sale would not prove a conversion of type which it did not include. If the plaintiff had desired more particular instructions than were given as to the effect of a delivery of the type claimed by him to Bacon by the defendant, he should have asked for them.

The next part of the charge which is excepted to is as follows: "The defendant admits that the type came to the office of the corporation in Boston. He says that while the type was there, the plaintiff called and gave him information as to his claim, and that he said to the plaintiff: 'There is the type; take whatever belongs to you." The theory of the defendant is that if the plaintiff had type in the office of the Littlefields, it had, in use, become mixed with type belonging to the corporation, and could not easily be separated. If that is true, and if the defendant did not controvert the plaintiff's claim, but said: "There is the type; take what is yours;" that would not be evidence of a conversion.

The only objection to this instruction made in the argument is that it did not refer to the evidence offered by the plaintiff, tending to show

that the transaction was after the sale to Bacon. If that sale had included the type claimed by the plaintiff, and had been a conversion of them, it is difficult to see how not controverting the plaintiff's claim when informed of it by him, and telling him to take what was his before the delivery of the goods to Bacon, or even after such delivery, would prove a conversion. It appeared that the type claimed by the plaintiff were delivered by the defendant to Bacon with the "Knight lot;" but no instructions were asked as to the effect of such delivery apart from the contract of sale.

The only other exception is to the instruction that the defendant was not responsible for wrongful acts of Bacon after he had possession of the property. The only argument advanced in support of this objection is that the sale to Bacon was a conversion, and made the defendant responsible for his acts. No authority is cited in support of this position, and the argument is not convincing. Exceptions overruled.

PEASLEE v. Ross.

January 7, 1887.

EVIDENCE-AUDITOR'S REPORT-JURY NOT BOUND BY.

When an auditor reports subordinate facts and evidence, the report must be submitted to the jury, who may render a verdict differing from the result arrived at by the auditor.

a

Action of tort for the conversion of a quantity of boots and shoes. The defendant's answer set up as defenses à general denial and releases of the cause of action. By replication, the plaintiff claimed that the releases were obtained by duress, to which the defendant rejoined that by reason of laches the plaintiff could not avoid the releases for duress. Under his general denial, the defendant claimed that by reason of his subsequent insolvency, the plaintiff had no title upon which he could maintain action. At the trial in the superior court the plaintiff introduced in evidence the auditor's report, and duly attested record evidence in the insolvency case of Richard Peaslee and Charles H. Peaslee, of the assignees' final account, and allowance of the same by the judge in insolvency. The defendant offered no evidence, and the auditor's report and said documents were all the evidence introduced. Upon this evidence the presiding judge ruled, as a matter of law, that the plaintiff was entitled to recover, and instructed the jury to return a verdict for the plaintiff.

The defendant alleged exceptions.

J. P. & B. B. Jones, for plaintiff. M. F. Dickinson, Jr., and H. R. Bailey, for defendant.

MORTON, Ch. J. We are of opinion that the superior court erred in taking the case from the jury, and directing a verdict for the plaintiff. An auditor's report is only prima facie evidence of the matters referred to and found by him, and it is well settled that the effect of his general finding may be controlled by the particular facts and findings reported by him, if the jury think a different inference ought to be drawn from them. When he reports subordinate facts and evidence

the report must be submitted to the jury, who may render a verdict differing from the result arrived at by the auditor. Peru Steel & Iron Co. v. Whipple Fire Co., 109 Mass. 465; Blackington v. Johnson, 126 id. 21; Emerson v. Patch, 129 id. 299. In the case at bar the auditor reports general findings in favor of the plaintiff, but he also reports the particular facts and evidence upon which he bases such findings; and the cases above cited conclusively show that the defendant had the right to go to the jury upon the auditor's report, at least upon the question whether releases executed by the plaintiff were obtained by duress.

As this makes a new trial necessary, we do not consider the other questions argued at the bar, as they may not arise upon another trial in the same form.

Exceptions sustained.

BEMIS v. CALDWELL.

January 7, 1887.

TAXATION DESCRIPTION-PUB. STAT., CH. 11, § 53.

In the valuation list, assessors entered an estate as follows: "House, Weston street, $3,200; house, Main street, $1,600; stable, $400; green-house, $200; land, six acres, $1,800; aggregate value of real estate, $7,200.

Held a sufficient description of land for purposesof taxation, under Pub. Stat., chap. 11, § 53.

Action of contract for the breach of the covenant against incumbrances contained in a deed of land in Waltham, from the defendants to the plaintiffs, dated June 19, 1883. The breach alleged was that the taxes for the year 1883 were not paid at the time the deed was executed and delivered. The case was heard in the superior court upon agreed facts. That court gave judgment for the plaintiffs, and the defendants appealed. The facts appear in the opinion.

H. N. Allen and W. Howland, for plaintiffs. H. J. Boardman aud S. H. Tyng, for defendants.

MORTON, Ch. J. It appears that on May 1, 1883, the heirs of C. H. R. 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 green-house 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, six acres, $1,800; aggregate value of real estate, $7,200."

The defendants contend that this assessment was invalid, because the valuation list did not contain "a description, by name or otherwise, of each and every lot of land assessed," as required by Public Statutes, chapter 11, section 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 assessment 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 reason 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 id. 64; Tobey v. Wareham, 2 Allen, 594; Westhampton v. Searle, 127 Mass. 502; Noyes v. Hale, 137 id. 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.

YARTER V. FLAGG.

January 7, 1887.

Public Statutes, chapter 99, sections 1 and 2, in giving an action of tort to a common informer to recover of the owner of a place, in which property is lost by gaming, treble the value thereof, provides for the recovery of a penalty, and the action does not survive against the representatives of the defendant, either at common law or by Public Statutes, chapter 165, section 1.

Action of tort brought in the superior court, under Public Statutes, chapter 99, section 2, to recover of the owner of the building_treble the value of money lost and paid to the winner by Charles F. Yarter in gaming. The writ was dated February 11, 1884. Defendant's death was suggested March 20, 1885. The executors of his will were summoned. They appeared specially and filed a motion to dismiss, on the ground that the action did not survive.

After a hearing the court sustained the motion, and ordered the action dismissed. The plaintiff alleged exceptions.

F. A. Perry, for plaintiff. J. Q. A. Brackett, for defendant.

W. ALLEN, J. Public Statutes, chapter 99, sections 1 and 2, in giv

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