original dam was built, to assist the jury in determining whether the pond had affected its condition.

The paper offered by the defendant was incompetent. It did not show bias on the part of the plaintiff. The defendant's exceptions must also be overruled.

Exceptions overruled.

NUISANCE- PERMANENT.

- When a nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once compensated: St. Louis etc. R'y Co. v. Biggs, 52 Ark. 240; 20 Am. St. Rep. 174, and note; Troy v. Cheshire R. R. Co., 23 N. H. 83; 55 Am. Dec. 177. A railway company permitting water to stand upon its right of way, which is prevented from flowing off, on account of an embankment, is liable to persons injured thereby for maintaining a perma nent nuisance: Lockett v. Fort Worth etc. R'y Co., 78 Tex. 211.

NUISANCE LIABILITY OF MUNICIPAL CORPORATIONS FOR IMPROPER CONSTRUCTION OF WORK. — A municipal corporation is liable for injuries sustained on account of maintaining upon its property an improperly constructed privy well: Briegel v. Philadelphia, 135 Pa. St. 451; 20 Am. St. Rep. 885, and note; Cardington v. Fredericks, 46 Ohio St. 442.

NUISANCE- EVIDENCE. - Evidence of the condition of the premises prior to the nuisance complained of is admissible on the trial for the nuisance: State v. Holman, 104 N. C. 861; Rosenthal v. Taylor etc. R'y Co., 79 Tex. 825.

ROBERTS v. FRENCH.

[153 MASSACHUSETTS, 60.]

SALE OF LAND AT AUCTION INDUCED BY MISREPRESENTATION OF QUANTITY. — If, at an auction sale of a lot of land, one of the auctioneers states that he has assisted in measuring it, and that it is of certain dimensions, which he specifies, one who purchases, relying on such statements, is not bound by his bid, and may recover any payment made by him, though the sale was made on the premises, and they were inclosed by visible fences, and the purchaser knew that the property sold did not extend beyond them.

F. H. Pearl, for the plaintiff.

M. A. Pingree, for the defendant.

HOLMES, J. This is an action to recover two hundred dollars paid by the plaintiff as part payment of the price of a lot of land for which he made the highest bid at a sale by auction. The advertisements described the lot as containing about 11,000 square feet, and as extending 130 feet on the east. The plaintiff's evidence tended to show that at the sale one of the firm of auctioneers read the advertisement and said that the defendant's husband and himself had measured

the land (as they had done), and that its dimensions were as stated in the posted bill, except as to the easterly line, which was only 107 feet long. The other auctioneer then proceeded to sell the property, and said that the easterly line was 107 feet long, that the lot contained about 11,000 square feet, and that a warranty deed would be given. The sale took place on the premises; the plaintiff was familiar with them, and he understood that he was buying only the land inclosed by the fences. But, according to his evidence, he believed the statements of the auctioneers as to the length of the lines and the area, and made his bid relying upon them, and we may fairly say by inference, being more or less induced by them to purchase. The easterly line in fact was only 95 feet long; the other lines varied somewhat from the lengths given at the sale, and the contents were 7,760 feet, being 565 feet less than what they would have been if the length of the lines stated at the sale had been correct. The defendant has not offered a deed describing the premises as they were described by the auctioneer, but only a deed describing them correctly. The court below ruled that the action could not be maintained, and the plaintiff excepted.

On the foregoing evidence, plainly the jury might have found that the auctioneer made a misstatement of fact as to the length of the easterly line, and also represented that he made the statement on the faith of his own senses, because, as he said, he and the defendant's husband (who, by the way, was also her agent, and was present and assenting to what the auctioneer said) had measured the line. In other words, the statement of the length was a statement, as of the party's own knowledge, of the kind which our decisions pror.ounce fraudulent: Chatham Furnace Co. v. Moffatt, 147 Mass. 403; 9 Am. St. Rep. 727. Notwithstanding the plaintiff's knowl edge of how the land looked, the jury also might have found that the statement in fact deceived him, and induced him to buy, and that it materially varied from the truth. It is true that the agreement was to buy a lot with known boundaries, and very likely, in the absence of fraud, the rule would apply that monuments govern distances in such agreements and in deeds with warranty: Noble v. Googins, 99 Mass. 231; Powell v. Clark, 5 Mass. 355; 4 Am. Dec. 67; Rawle on Covenants, 5th ed., sec. 297. But that is only a rule of construction; it does not mean that measurements are not material, or that a man who knows the monuments can

not be deceived about them: See Lewis v. Jewell, 151 Mass. 345; 21 Am. St. Rep. 454. Of course it was not necessary that the plaintiff's belief as to the length should have furnished his only motive for buying, if it furnished one motive: Safford v. Grout, 120 Mass. 20, 25; Windram v. French, 151 Mass. 547; and if the defendant's agents knew that the representations would affect action on the part of the bidders, or if under the known circumstances it manifestly was likely to do so.

The ruling of the court below probably assumed all that we have said, but was based on the cases which hold fraudulent representations as to the contents of a piece of land the boundaries of which are pointed out to the buyer not to be actionable: Gordon v. Parmelee, 2 Allen, 212; Mooney v. Miller, 102 Mass. 217.

We do not mean to question these decisions in the slightest degree, but it is obvious that there must be a limit beyond which fraudulent representations cannot be made with impunity; and upon the whole, we are of opinion that, if the plaintiff's evidence is believed, the representations made to himunder the circumstances in which they were made, went be, yond that limit. When a man conveys "the notion of actual admeasurement" (Hill v. Buckley, 17 Ves. 394, 401, cited in 99 Mass. 233), still more when he says that he has measured a line himself and has found it so long, his statement has a stronger tendency to induce the buyer to refrain from further inquiry (Parker v. Moulton, 114 Mass. 99, 100; 19 Am. Rep. 315), than a statement of the contents of a lot without giving grounds for the estimate. If false, it is a grosser falsehood. It purports on its face to exclude the suggestion that it is a mere estimate, which the other leaves open: See Cabot v. Christie, 42 Vt. 121, 126; 1 Am. Rep. 313; Deming v. Darling, 148 Mass. 504, 505. If it is made at a sale by auction, where it is out of the question for a bidder to go and verify it before making his bid, it seems to us reasonable to say that the purchaser has a right to rely upon it, as was held in a very similar case in Connecticut: Stevens v. Giddings, 45 Conn. 507. See Lewis v. Jewell, 151 Mass. 345; 21 Am. St. Rep. 454; Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486, 489; Porter v. Fletcher, 25 Minn. 493.

New trial granted.

FRAUD-FALSE REPRESENTATIONS IN SALE OF LAND. - Misrepresentations made by a vendor of land as to some material fact, knowing at the time they were false, and upon which the vendee relies, are actionable: Williams v.

McFadden, 23 Fla. 143; 11 Am. St. Rep. 345, and note; Cabot v. Christie, 42 Vt. 121; 1 Ain. Rep. 313; Putman v. Bromwell, 73 Tex. 465; Phelps v. James, 79 Iowa, 262; McGibbons v. Wilder, 78 Iowa, 531. Where false statements as to the quantity of land are fraudulently made, the plaintiff, who relies upon them, will not be denied a recovery because he failed to measure the land: Ledbetter v. Davis, 121 Ind. 120. A mere misstatement as to the quantity of land sold is not sufficient to prove fraud: Griswold v. Gebbie, 126 Pa St. 353; 12 Am. St. Rep. 878, and note.

CHASE V. LADD.

[153 MASSACHUSETTS, 126.]

WILLS-CONSTRUCTION OF DEVISE. — If a testator gives and devises all his property to his wife, "to her use and behoof forever," but provides that if any of such property shall not be expended by her for her support and maintenance during her lifetime, it shall be disposed of in a manner designated in the will, it does not vest the property in her absolutely, but merely confers on her a right to use it for her support, and, if necessary for that purpose, to dispose of it during her life, leaving whatever she has not so disposed of to vest, after her death, in other persons as provided in the will.

BILL by the administrator de bonis non of Thomas H. Chase against the executor of Ann L. Chase and the Danvers Savings Bank to compel payment of a deposit. At the death of Thomas H. Chase, he had an account with the savings bank, which his wife, after his death, caused to be transferred to her name, and she afterwards added to it the proceeds of lands sold by her, but which had belonged to him. The question was, whether this deposit belonged to his estate or to hers, and that question, in turn, depended upon whether or not all his property was given to her absolutely by his will, which, so far as material, was as follows: "2. All the rest and residue of my estate, real, personal, or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath to my beloved wife, Ann L. Chase, to her use and behoof forever. Provided, however, that my said wife shall shall cause to be erected on my lot in Merrimack Cemetery, in said West Newbury, a handsome marble monument worth at least five hundred dollars; also, to put the monument now standing on my lot in said cemetery on the lot where Jane Jaques is buried. All to be paid for by my said wife out of the estate which I have given to her. Provided, also, that if any of the property which I have given my beloved wife afore

said shall not have been expended by her for her support and maintenance during her lifetime, then and in that case my will is, that so much of said estate as shall remain unexpended at the time of her decease shall be disposed thereof in manner following, to wit." After this clause in the will were bequests aggregating three thousand five hundred dollars to sundry designated legatees, "to their own use and behoof forever."

B. B. Jones, for the plaintiff.

W. H. Moody, for the executor.

FIELD, C. J. The principal differences between this case and Joslin v. Rhoades, 150 Mass. 301, are, that the devise in Joslin v. Rhoades is to the wife, and "her heirs and assigns forever," and in the present case it is to the wife, "to her use and behoof forever," and that in Joslin v. Rhoades there is no express or implied restriction upon the right or power of the devisee to dispose of the estate, unless it is to be inferred from the "condition that if any portion of my said estate should remain in the possession of my said wife at the time of her decease, such remainder shall be divided" as expressed in the will, while in the present case it is distinctly implied that the wife shall have the power of expending the property only "for her support and maintenance during her lifetime," and it is provided that "so much of said estate as shall remain unexpended at the time of her decease shall be disposed" of as expressed in the will. We are inclined to the opinion that these differences are significant, and that the most reasonable construction of the will is, that the testator intended that the wife should have the use of the property for her support and maintenance, with the power of expending it,—that is, of selling and conveying it, and using the proceeds only so far as was necessary for her reasonable support and maintenance during her life, but with no other power of disposing of the property, or of any part of it. The words of the first part of the clause do not so plainly convey the property absolutely, or in fee-simple, that the subsequent proviso must necessarily be considered as inconsistent with them, and the meaning of the proviso is clear. There is no doubt of the intention of the testator to dispose of what remains at the death of his wife unexpended for her support and maintenance, and we see no insuperable difficulties in carrying this