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July 3 and August 4, 1884, offered evidence which he claimed would show that said Costello was convicted in September, 1884, before said district court on two complaints for illegally selling in said Quincy, one being the seven packages of intoxicating liquors seized on the second complaint aforesaid, and which were also seized under the first complaint, and which the said district court ordered to be forfeited as heretofore stated; the other being a sale in April prior. This evidence was excluded by the court. The defendant also offered to show by a witness who was present at the hearing before the district court on said second complaint-August twenty-fifth- and made a record of the testimony of the several claimants, and by his own testimony, what the evidence of said claimants, other than the plaintiff was, tending to show the actual guilt of said Falvey and Costello on said July second and third and August fourth; this evidence the court excluded.

The defendant requested the court to rule and instruct the jury: (1) that if the plaintiff collected orders for intoxicating liquors in Quincy, to be purchased of said Costello, or collected money in Quincy for intoxicating liquors sold by said Costello, such would constitute sales in Quincy; (2) that if the plaintiff took orders in Quincy for the intoxicating liquors seized, to be by him purchased or ordered in Boston, and to be delivered in Quincy by him, at the expense of the parties to whom he was transporting them, the sale of said liquors would be completed in Quincy, and be a violation of law, and the defendant had a right to seize them, pursuant to the statute; (3) that if Costello was in the habit of selling liquors in Quincy without lawful right, and Falvey was in the habit of transporting such liquors into Quincy, a knowledge of such facts or subsequent proof of the same would be a justification of the defendant's acts in making these complaints.

The jury returned a verdict for the plaintiff on the first count, and for the defendant on the second and third counts. The defendant alleged exceptions to the exclusion of said evidence and the refusal of the court to rule as requested.

J. L. Eldridge, for plaintiff. B. B. Johnson, for defendant.

DEVENS, J. The plaintiff's declaration contained three counts, the first for alleged malicious prosecution by the defendant in making a complaint in order to obtain a warrant to search for certain intoxicating liquors in possession of the plaintiff, in a certain building in Quincy, with intent to sell the same contrary to law, which complaint was made on the 3d day of July, 1884; the second count was for alleged malicious prosecution by defendant in making complaint on August 4, 1884, in order to search for certain intoxicating liquors in the possession of the plaintiff, illegally transported by him, he having reasonable cause to believe that they were intended to be sold in Quincy in violation of law; the third count alleged a wrongful conversion by the defendant of certain personal property of the plaintiff. As the verdict was for the defendant on the second and third counts, the exceptions are only to be considered as they relate to the first count, and the first complaint was made by defendant on the alleged malicious prosecution of which that count is founded.

That which the plaintiff has to establish in an action for malicious prosecution is that the prosecution was instituted without probable cause to believe him guilty, and with malice in its legal acceptation, that is in bad faith, and with want of any sincere belief in the guilt of the party against whom it is commenced. While malice may be inferred from a want of probable cause, it is not a necessary inference, and the issues are distinct. Even if it be proved that the prosecution was without probable cause, it is still a sufficient defense to show that it was instituted in good faith and in the honest belief of the guilt of the party charged. Ripley v. Mc Barron, 125 Mass. 272. Whatever legitimately tends to show probable cause for the prosecution or the good faith of the complainant is, therefore, admissible on his behalf to meet the evidence of the plaintiff, who, in such action, has the burden of establishing the want of probable cause and the malice of the defendant. That the defendant had a right to introduce evidence of all the facts as they existed or appeared to exist at the time of the seizure under the first warrant and when the complaint was made cannot be controverted. As this is so, he contends that he had the right to introduce the evidence of the claimants, other than the plaintiff, as given at the trial of the second complaint in the district court after the failure of the first complaint to thus justify his act in swearing to the first complaint. The issues raised by the two complaints were different; in one the charge was for keeping liquors with intent to sell; the other was for unlawful transportation. The defendant may have been fully justified in making the second complaint, while he had no justification for the first. It may be that this evidence would have been admissible under the second count where the verdict was for the defendant, as the facts there testified to by witnesses may have been most influential in inducing a man of proper prudence and caution to believe that the plaintiff was guilty of the offense there charged, and that there was good cause to believe him so. Bacon v. Towne, 4 Cush. 217.

But the evidence taken upon a subsequent trial for a different offense, even if one of a similar character, would not have any legitimate tendency to justify the first complaint made by the defendant, which had previously been tried and decided. Nor was the conviction of Costello at a still later period, for illegally selling a portion of the liquors being transported into Quincy by the plaintiff, admissible as evidence of probable cause on the defendant's part. It does not appear that any evidence of the facts showing the relations of Costello and the plaintiff was refused. The fact of a subsequent conviction of Costello would not certainly, in any way, afford evidence of a probable cause to believe the plaintiff guilty when the first complaint was made. It could in no way have operated on the defendant's mind. The defendant further contends that the plaintiff collected money in Quincy for liquors brought there in Costello's name, and for liquors brought to fill orders given to Costello in Quincy, and, therefore, the court should have ruled that the defendant had a justification for his action making the complaint. But the defendant could not be justified on these facts in making the first complaint, without evidence that the plaintiff was informed or had knowledge 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 town where such sales could not be lawfully made.

Exceptions overruled.

LEONARD V. FITCHBURG RAILROAD Co.
January 8, 1887.

In an action to recover for injuries to cattle in transportation by reason of improper cars, the fact that the mode of transportation adopted in the particular case was the usual mode, is no defense. If it was an unsafe method of transportation the fact that it was usual does not exonerate defendant from its contract to carry safely.

Usage has no tendency to show that an adopted method of transportation is safe.

Where no exception is taken to an instruction on the question of damages, and there is no report on the subject, it will be assumed that it was clear, correct and adapted to the case.

A witness was asked as to the value of a cow which was found dead among plaintiff's herd on its arrival at Waltham, "having regard to its market value at the time in the nearest place to Waltham, that he knew of, where there was a market for it, and the cost of getting it there and the risk, and was further asked "on the same basis," as to the injury to the herd, if it had, at its arrival, been put up for sale, and answered that "a hundred dollars a head would not have covered" it. This question and answer were excepted to, and the plaintiffs subsequently asked of the witness what was his estimate of the injury the cattle sustained at the time, if such judicious and proper care were taken as a prudent man would take, to put them in proper condition for sale, to make them fit for market, and what his own estimate would be of the actual damage from the experience of that night, assuming that he could have an opportunity to cure it by the usual judicious and prudent course. To this he stated that the damage would be $20 to $30 per head.

Held, that even if Waltham was not the proper market for such animals, they must have had a value there, for the purpose of transportation to the place where they were generally brought and sold, and that the exception could not be sustained.

Action of contract or tort to recover for injuries to cattle delivered to the defendants as common carriers. At the trial, in the superior court, there was a verdict for the plaintiffs in the sum of $5,575, and the defendant alleged exceptions to rulings of the presiding justice. The facts appear in the opinion.

L. S. Dabney, for plaintiff. C. A. Welch, for defendant.

DEVENS, J. This was an action to recover damages for an alleged injury to cattle in the transportation of them, from a ship lying at a wharf in Boston to the quarantine grounds at Waltham, by reason that improper cars were used, and also by delay in their transportation. One of the contentions of plaintiff was that the cars were unsuitable, as they

were box cars provided with doors but not with slats upon the sides, so that there was no sufficient means of ventilation, and also without cleats upon the floor by which the animals could maintain their footing. Whether the defendant had provided slats and carpenters to nail them across the opening of the doors was in dispute. The seventh regulation of the regulations issued from the treasury department of the United States," concerning the treatment and guaranteeing of imported cattle," provide that "the railway cars used in the transportation of cattle to the quarantine grounds shall either be cars reserved for this exclusive use, or box cars not otherwise employed in the transportation of meat animals," etc., etc.

The defendants offered to prove that box cars similar to those furnished for the conveyance of the plaintiff's cattle had always been used by them for carrying cattle to said quarantine grounds, and also how such cars had usually been equipped in regard to their floors.

The only quarantine grounds for imported cattle in Massachusetts were at Waltham, and the only railroad by which cattle could be transported thither was that of the defendant. The evidence offered by defendants was excluded by the presiding judge, while he admitted evidence that box cars were used by other railroads for the transportation of cattle, and also evidence of the mode of equipment of their floors. The contention of the defendant, that the mode of transportation adopted in this case was its usual mode, and must, therefore, be held to have been accepted by the plaintiff, cannot be maintained. If it was an unsafe method of transportation, the fact that it was usual with the defendants cannot exonerate it from its contract to safely transport, and its own usage would not have any tendency to show that it had adopted a safe method. Even if its railroad was the only one by which cattle could be conveyed to the quarantine grounds, this conveyance of cattle is common to nearly all railroads, and the mode adopted by them in the preparation of their cars, etc., the defendant was permitted to show as bearing on the character of that adopted by itself. Peverly v. Boston, 136 Mass. 366.

A witness was asked as to the value of a cow which was found dead among plaintiff's herd on its arrival at Waltham, "having regard to its market value at the time in the nearest place to Waltham, that he knew of where there was a market for it, and the cost of getting it there and the risk," and was further asked "on the same basis," as to the injury to the herd, if it had at its arrival been put up for sale, and answered "a hundred dollars a head would not have covered" it. This question and answer were excepted to, and the plaintiffs subsequently asked of the witness, what was his estimate of the injury the cattle sustained at the time, if such judicious and proper care were taken as a prudent man would take, to put them in proper condition for sale, to inake them fit for market, and what his own estimate would be of the actual damage from the experience of that night, assuming that he could have an opportunity to cure it by the usual judicious and prudent course. To this he stated that the damage would be $20 to $30 per head.

The defendant's argument concedes that if the jury had been

directed to take the latter computation as the true rule of damages, any difficulty in the admission of the former question and answer might have been cured. The instruction given by the presiding judge upon the question of damages does not appear. No exception was taken to it, and in the absence of any report upon the subject, we must hold that it was clear, correct and adapted to the case. The verdict sufficiently shows that no rule of damages more unfavorable to the defendants than $20 a head could have been adopted. Nor are we prepared to say that even if Waltham was not the proper market for such cattle, having regard to the distant place where such market was, the cost of getting there and the attendant risk, the witness, in testifying to the original injury which the cattle received, might not express the amount of the injury by a statement of what its effect would be upon the value of the animals. Even if Waltham was not the proper market for such animals, they must have had a value there, for the purpose of transportation to the place where they were generally brought and sold. We are of opinion, therefore, that this exception cannot be sustained. The exception taken to the competency of the witness who testified in the matter of value, as well as the other exceptions taken, were not pressed and are not, therefore, discussed. Exceptions overruled.

NEW YORK COURT OF APPEALS.

BREHM, ADMX., ETC., Resp't, v. THE MAYOR, ETC., OF NEW YORK,

*

Appl'ts.
January 18, 1887.

A referee to sell, appointed in a foreclosure action, paid out of the proceeds of sale an assessment as directed by the judgment. On the application of the owner of the equity of redemption, the assessment was vacated. Held, that his administrator might maintain an action to recover back the money paid thereon. The validity of an assessment cannot be determined in an action to foreclose a mortgage.

The presentation of a claim against the city of New York, pursuant to section 105 of the charter of 1873-Laws of 1873, chap. 385 - although a necessary preliminary to enable the claimant to maintain an action thereon, is not the commencement of an action.

An assessment was paid on June 6, 1871; on the fourth of the following December an order was entered vacating the same. November 17, 1877, a written demand was presented to the comptroller of the city for the repayment of the amount paid to discharge the assessment; and payment not having been made, this action was commenced on the eighteenth of December following. statute prohibited the commencement of any action for a period of thirty days after said demand.

The

Held, that plaintiff's action was not barred. Under section 406, Code Civ. Pro., the statute of limitations was suspended during the term of the statutory prohibition.

Appeal from order of general term, first department, reversing judgment in favor of defendants, and directing a new trial.

*Affirming 23 W. Dig. 548, but on other grounds.

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