Provident Institution for Savings v. Burnham

128 Mass. 458, 1880 Mass. LEXIS 114

• Court: Massachusetts Supreme Judicial Court
• Decided: March 5, 1880
• Status: Published

Opinion

Gray, C. J.

1. By the St. of 1873, c. 44, it is enacted that “no person shall serve as a traverse juror in the county of Suffolk more than thirty days at any one term of court, unless for the purpose of finishing a case commenced within that time.” The “ thirty days ” here intended are manifestly days on which the court is in session, and on which jurors may be called upon to serve. Upon the facts stated in the bill of exceptions, therefore, the challenge to the array set forth no legal ground of objection to the jury, and the tenant suffered no prejudice by the summary and informal manner in which it was overruled.

2. There was evidence of the corporate existence of the demandant ; 1st. In the books of records produced by its clerk and proved by his testimony; and 2d. In the description of the demandant as a corporation in the mortgage referred to and affirmed in the deed executed by the tenant himself. Worcester Medical Institution v. Harding, 11 Cush. 285. Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391.

3. There was no variance in the description of the property demanded. Easements and restrictions cannot be recovered or enforced, and need not be set forth, in a writ of entry. Stearns on Real Actions, 150. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1. The objection made at the argument, that the demandant had not alleged his seisin to be in mortgage, was not taken at the trial, when it might have been cured by amendment, if necessary.

4. By the practice act, the case was at issue when the plea was filed, and no formal joinder of issue by the demandant was needed. Gen. Sts. c. 129, § 28; c. 134, § 8.

5. The instruction as to the proof of title was all that the case required. Gen. Sts. c. 134, § 7. There does' not appear to have been any evidence or pretence of title in the tenant.

6. The instruction as to rent was correct. Under the statutes of the Commonwealth, the demandant in a writ of entry is entitled to recover rents and profits, although not specifically demanded in the writ. Gen. Sts. c. 134, §§ 13, 14. Raymond v. Andrews, 6 Cush. 265, 268.

7. But neither party having moved for conditional judgment, judgment was to be entered in the common form, and the demandant could not recover for insurance. Gen. Sts. c. 140, § 4. As the instructions given allowed the demandant to recover for insurance, the tenant’s exceptions must be sustained and a new trial granted as to damages only, unless the demandant (as was intimated at the argument) elects to remit all damages and take judgment for possession of the land, in which case the entry will be Exceptions overruled.

Upon the delivery of this opinion, the demandant elected to remit all damages, and judgment was entered accordingly.