Thoreau v. Pallies

87 Mass. 354

Opinion

Bigelow, C. J.

*

The objections to the award are not tenable. The arbitrator has found that the alleged tortious acts of the defendant were done on premises to which the plaintiffs had the elder and therefore the better title; and that the defendant showed no title “ which would justify the aforesaid acts done by her.” This was a finding within the issue raised by the pleadings, and is' decisive of the liability of the defendant in this action. It was not necessary for him to go further, and find whether other persons had title to the premises which would afford a justification for the alleged trespass, unless some evi* dence of such title was offered by the defendant as one ground of her defence. But it does not appear that any such evidence was offered. For aught that we can know, the defendant’s justification rested solely on her claim of title in herself, and no proof of any other justification was offered before the arbitrator. If any presumption is to be made on the subject, it must be in support of the award, and that the defendant failed to show any defence to the action, either under title in herself or in other persons.

It is immaterial that the items of costs included in the costs of reference are not stated, inasmuch as it does not appear that any charges were improperly included among them.

Judgment on the award.

Hoab, J. did not sit in this case.