When a claimant of an aqueduct title uses the water without an actual promise, express or implied, to pay for the use, assumpsit on the fiction of a promise, implied by law, is not an appropriate form of action for settling the disputed title.

Assumpsit for water carried by an aqueduct to a house which the defendant bought of Jackson, the plaintiff in interest. Facts found by a referee.

G. W. Chapman, for plaintiffs. G. F. Putnam and Bingham, Mitchells & Batchellor, for defendant.

DOE, Ch. J. No promise, express or implied, was in fact made by the defendant to pay for his use of the water. The water-right claimed by him is also claimed by the plaintiff in interest; and the suit is brought to settle the disputed aqueduct title. The fiction of a promise implied by law contrary to the fact may be invented and used, for the sake of the remedy, to enforce the performance of a legal duty. Scera v. True, 53 N. H. 627; Kelley v. Davis, 49 id. 187. The law does not leave this disputed title unsettled for want of an adequate method of procedure, but no fiction is required by adequacy or convenience of the plaintiff's remedy. Assumpsit does not lie. Barron v. Marsh, ante,

107.

Case discharged.

BLODGETT, J., did not sit: the others concurred.

JENNE V. HARRISVILLE.

July 31, 1885.

EVIDENCE FOREIGN LAW-CONSTRUCTION.

Foreign unwritten law, including the prevailing construction of a foreign statute, may be proved by competent witnesses, and is a matter of fact determinable at the trial term.

Case. The plaintiff is a citizen of Vermont, and questions were raised as to the law of that State.

N. B. Bryant, Lane & Dole, for plaintiff. Batchelder & Faulkner, for defendants.

DOE, Ch. J. Foreign unwritten law, including the prevailing construction of a foreign statute, may be proved by competent witnesses, and is a matter of fact determinable at the trial term. Leach v. Pillsbury, 15 N. H. 137; Beach v. Workman, 20 id. 379; Watson v. Walker, 23 id. 471; Pickard v. Bailey, 26 id. 152; Holton v. Gleason, id. 501; Emery v Berry, 28 id. 485; Taylor v. Barron, 30 id. 100; Ferguson v. Clifford, 37 id. 87; Kennard v. Kennard, ante, 33; S. C., 61 N. H.

303, 308; Dyer v. Smith, 12 Conn. 384; Holman v. King, 7 Metc. 384; Kline v. Baker, 99 Mass. 253; 1 Greenl. Ev., §§ 486, 488; Story Confl. of Laws, §§ 637-639.

Case discharged.

CARPENTER, J., did not sit; the others concurred.

ROGERS V. ASHLAND SAVINGS BANK.

HOMESTEAD-NO BUILDING ON LAND.

July 31, 1885.

There may be a right of homestead in land on which there is no building, but which is occupied as a part of the place of his home by the owner living in a hired house.

Declaration upon Gen. Laws, chap. 138, § 20-of the grounds of the defendants' denial of a homestead right claimed by the plaintiff. Trial by the court. The plaintiff and her husband who is the execu

tion debtor-occupy a leased tenement. They own no real estate except the premises in question, upon which there is no building, and which are situated at some distance from their hired house. The court found the plaintiff entitled to a homestead, if under the law she can be. C. A. Jewell, for plaintiff. J. L. Wilson, for defendants. DOE, Ch. J. The question is of the legal possibility of a homestead right in the land under any circumstances consistent with those stated in the reserved case. The exemption may attach in cases in which the debtor "is owner of a homestead, or of any interest therein." Gen. Laws, chap. 138, § 1. If the plaintiff's husband, owning and occupying the house and an adjoining garden, had sold the house and the land under it, but had continued to own and occupy the garden, and as a lessee had remained in the house, the garden might continue to be a part of the place of his home; and adjacency is not a requisite of the homestead right. The question whether the land was a part of the home place is a question of fact that has been determined at the trial term. Allen V. Chase, 58 N. H. 419; Cole v. Bank, 59 id. 53, 321.

Judgment for the plaintiff.

CARPENTER, J., did not sit; the others concurred.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

FLETCHER V. EVANS.

October 26, 1885.

TRESPASS CONVERSION CONTRACT WITH WIDOW TO REMOVE MONUMENT FROM HUSBAND'S GRAVE IF NOT ACCEPTED.

Defendants erected a monument at the grave of the deceased under an express contract with his widow that if the same was not accepted or paid for they might remove it. The plaintiffs, who were heirs at law of the deceased, knew of and assented to the making of the contract, but it did not appear that they had knowledge of that part which gave defendants the right to remove the monument. The monument was not paid for and defendants removed it, and the plaintiffs sued them for trespass and conversion. Held, that the action could not be maintained; that the general authority given by the heirs to the widow to make the contract for the monument, without any restriction, gave her by implication the right to agree to its removal if not accepted or paid for, and that under such a contract the monument would not become a part of the realty until accepted and paid for.

The question whether the widow could, without consent of the heirs, make such a contract, not decided.

Action of tort for trespass in forcibly entering the plaintiffs' burial lot in Milford and converting a tablet placed on the lot by the defendants, under a contract between the defendants and Rachel Steele, widow of David Steele, and mother of the plaintiffs. At the trial in the superior court it appeared that the plaintiffs are the heirs at law of David Steele who, at the time of his death, was the owner of the burial lot, and that the widow after his death made the contract to place the tablet over the tomb of her husband, by the terms of which, in case of non-payment, the defendants were to have the authority to take it down, and sell the same, at their discretion. Other facts appear in the opinion. The plaintiffs contended that the removal of the tablet, without the license of the plaintiffs, was an indictable offense under Pub. Stat., chap. 207, §§ 49 and 50; that the tablet was a part of the realty, and that the defendants were liable for conversion. The court found that the title to the tablet passed to the plaintiffs, and ruled that Rachel Steele had no authority to make the contract or give the license contained therein without the plaintiffs' consent. The defendants alleged exceptions.

II. L. Parker, for plaintiffs. W. A. Gile, for defendants.

MORTON, Ch. J. By an express provision of the contract made between Rachel Steele and the defendants, they had the right to remove the monument erected by them at the grave of her husband, David Steele, if it was not paid for according to the terms of the agreement. The bill of exceptions states that the plaintiffs "knew of said contract," and that the defendants erected the said monument "with the knowledge and assent of the plaintiffs; but it did not appear that they knew or assented to the part of the contract which gave the defendants power to take it away." After the monument was completed, Rachel Steele notified the defendants that it was not according to the contract, requested them to remove it, and refused to pay for it. Upon these

facts we are of opinion that the defendants had the right to enter the burial lot and remove the monument. It is not necessary to consider whether a widow can, without the consent of the heirs, erect a monument at the grave of her deceased husband, and give to the contractor a license to enter the burial lot for the purpose of removing it if it is not satisfactory, or is not paid for according to the contract. In this case the heirs at law authorized her to. erect the monument. Such authority, without any restriction, gave the widow the right to make any reasonable contract for a monument, and, by implication, the right to give to the contractor a license to enter the lot to build the monument, and to remove it if it was not satisfactory, or if she did not pay for it according to the contract.

The contract which the widow made with the defendants was a reasonable one. Under it the monument would not become a part of the realty until it was accepted and paid for. To this extent the plaintiffs are bound by it. They knew of the contract, and knew that the defendants were putting up a monument under it. They did not object to it at the time, and cannot now deprive the defendants of their right to remove the monument, because they did not inquire into its terms. Exceptions sustained.

COUNTY COMMISSIONERS OF HAMPSHIRE COUNTY, PETITIONERS.

October 26, 1885.

COMMISSIONERS TO ASSESS COSTS OF IMPROVEMENTS

TIONS OF LAW AND FACT - REPORT TO COURT. Under the act, chapter 200 of the Laws of 1875, authorizing the court to appoint three commissioners to determine and decree what towns and corporations have been benefited by the improvements therein provided for, and the proportion of the costs to be paid by them, and report the same to the court, it is the duty of such commissioners to decide all questions of law and fact which arise on the hearing before them; and they have no authority to reserve questions of law for the determination of this court, or to submit to it the question as to which of the parties shall pay for the benefits.

This is a proceeding for the assessment of a betterment tax to defray the expenditure incurred in building river bank defenses under chapter 200 of the acts of 1875. The county commissioners constructed proper defenses above Northampton bridge to prevent the washing away of the banks of the Connecticut river in Hadley and Northampton, and filed in court on August 5, 1884, a petition, under which special commissioners were appointed, wherein they set out that the expenses to date of constructing said defenses, including interest, were $14,309.12, which had been paid out of the county treasury. They determined and decided that Hadley, Northampton and the Massachusetts Central Railroad Company were benefited and assessed each for proportion of the the consideration of this court. Certain questions of law were reserved by the commissioners for

cost.

W. G. Bassett, for county commissioners. J. C. Hammond, for Hadley. T. G. Spaulding, for Northampton. E. Parsons, for Massachusetts Central Railroad Company.

MORTON, Ch. J. By the statute of 1875, chapter.200, the county commissioners of Hampshire county are required to make the public improvements therein provided for, paying the cost in the first instance. out of the county treasury. After the completion of the work, this court is authorized to appoint three special commissioners, who shall determine and decree what towns and corporations, including said county, are benefited by said work, and what proportion of the cost of said work shall be paid severally by them. They are to make their report to this court, and when it is accepted and judgment is entered therein, it is to be absolutely binding upon all parties interested. But any party affected by the decree and dissatisfied with the determination of the commissioners may appeal to a jury, and thus revise the share and determination of the commissioners. The statute vests in the commissioners the authority, and makes it their duty, to decide all questions of law and fact which arise in the hearing before them, and the law furnishes no means of revising their decisions, whether upon law or fact, except by the appeal provided for in the statute. They have no authority to reserve questions of law for the determination of this court, and cannot, by so doing, vest in the court jurisdiction to hear and determine such questions. Northampton Bridge Case, 116 Mass. 442.

In this case the commissioners determine that the railroad built by the Massachusetts Central Railroad Company has been benefited by the work done by the county commissioners, and submit to the supreme judicial court the question which of these parties shall pay for such benefits. This they have no right to do. It is their duty to decide this question, and the only mode of revising their decisions is by an appeal by the party aggrieved, upon the hearing of which the question can be raised in this court. If any effect could be given to their reservation, the result would be that the party finally held liable to pay for these benefits would lose his right of appeal. He could not know that he was aggrieved until it was too late to appeal. The report of the commissioners is imperfect and incomplete. No judgment can be rendered upon it as it stands, and we are therefore of opinion that it must be recommitted. Until the award is amended and returned to the court, and the case is ready for some final judgment, it is premature to raise any question of law under it. The reservation must be discharged, and the report recommitted to the commissioners. Order accordingly.

LYMAN V. INHABITANTS OF HAMPSHIRE COUNTY.
November 2, 1885.

NEGLIGENCE OF COUNTY IN FAILING TO REPAIR BRIDGE-JOINT LIABILITY OF TOWN AND COUNTY - NON-JOINDER OF PARTIES — ABATEMENT-WAIVER — AGENCY - CONSTRUCTIVE NOTICE — CONTRIBUTORY NEGLIGENCE.

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A special statute - act of February 10, 1795-imposed upon the town of Norwich -now Huntington - and the county of Hampshire, the joint duty of constructing and keeping in repair a bridge over Westfield river. In an action against the county for damages caused by the dangerous condition of the bridge, held, that it was liable for such injury, and the fact that the officers of the town had always made the necessary repairs to the bridge, receiving one-half the expense thereof from the county, did not relieve the county from such liability;