be deemed an appurtenance of the whole of the remaining parcel belong. ing to the grantor, of which the plaintiffs' land forms a part, then it is clear, on the principles declared in the principal case, that the plaintiff would be entitled to insist on its enjoyment, and to enforce his rights by a remedy in equity. But this case was distinguished from the principal one, because in the former the defendant took his grant without any notice, either express or constructive, that the restriction in the deed was intended for the benefit of the plaintiff's estate:" See p. 561. It is contrary to equity and good conscience to suffer a party to lie by and see acts done, involving risk and expense by others, and then permit him to enforce his rights, and thereby inflict loss and damage on parties acting in good faith. But if delay in filing a bill in equity is sufficiently explained and accounted for, the "suit in equity" will be deemed to have been "seasonably commenced:" Linzee v. Mixer, 101 Mass. 528. Tho principles of the principal case were adverted to with approval in Parker v. Nightingale, 6 Allen, 345, and it was there said that they are constantly acted upon by the court of chancery in England, and by the courts of this country exercising equity powers. That an agree ment between owners of adjacent lands restricting the mode of its use and enjoyment, although not entered into in the form of a covenant or condition, or so framed as to be binding on heirs and assigns by virtue of privity of estate, may nevertheless create a right in the nature of a servitude or easement in the land to which it relates, which can be enforced in equity, is now well settled in the commonwealth of Massachusetts: Hubbell v. Warren, 8 Id. 178. Between the original parties only, agreements and stipulations may be enforced at law. But in equity those claiming title under them may resort to the whole instrument, including the covenants and agreements in gross, for the purpose of ascertaining the nature of the right intended to be conveyed; and when ascertained, the court will enforce, in favor of such persons, that use or mode of enjoyment which the grantor has seen fit to impress upon it. The effect of a grant will thus be given to that which is in the form of an agreement, binding at law only between the original parties: Schwoerer v. Boylston Market Association, 99 Mass. 298.

Where several owners of adjacent lands located a canal over the land, and agreed that each of them, and the persons holding under them, should have a right to pass upon the canal with vessels, and the same to fasten in one row to the landing-places on their respective premises, subject to removal, so aa always to keep a free passage through the canal, it was held that a person holding under one of these owners had no right to drive piles in the canal so as to render its navigation and the approach to the premises of those holding under the other owners more difficult, and he was restrained from doing so by injunction: Page v. Young, 106 Mass. 316. It is undoubtedly true, and has often been decided, that where a tract of land has been divided into lots, and those lots are conveyed to separate purchasers, subject to conditions that are of a nature to operate as inducements to the purchase, and to give to each purchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an easement or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee: Sharp v. Ropes, 110 Id. 385. A remedy in equity will be afforded to enforce a restriction in an agreement preventing the erection of any building of a greater height than thirteen feet, upon land abutting that of an adjacent owner: Jeffries v. Jeffries, 117 Id. 190. The owner of the fee has the right to sell his land subject to such reservations or restrictions as to its future use

and enjoyment as he sees fit to impose, provided they are not contrary to public policy. He may impose a restriction in the deed that no building shall be erected upon the land conveyed, and if the restriction be violated, the grantor, as long as he lives and remains the owner of the adjoining land, may enforce the restriction in equity. Actual knowledge of such reservation when the deed is taken is immaterial. Title is derived under the deed, and which gives constructive notice of its own provisions: Peck v. Conway, 119 Id. 549. It often happens that owners of land, which they design to put into market in lots for dwelling-houses, insert in the deeds of the several lots a uniform set of restrictions as to the purposes for which the land may be used, and as to the portions of it which may be covered by buildings. So far as these restrictions are reasonable in their character, they are upheld and enforced by courts of equity in favor of the original owner, so long as he continues to own any part of the tract for the benefit of which the restrictions were created, as well as in favor of the owner of any one of the lots into which the tract was divided, and against the owner of any of the lots who attempts to set the restriction at naught: Sanborn v. Rice, 129 Id. 397. Where land is conveyed subject to the "restrictions and conditions" that no building shall ever be erected upon it to be used for certain trades, or within a certain distance of a street, and the deed further provides that any breach of these provisions shall not work a forfeiture of the estate, but give a right of entry to remove the building, the provisions are not conditions, but restrictions, which, although unlimited in point of time, are valid, and can be enforced in equity. They do not affect the title, but only the mode of use: Tobey v. Moore, 130 Id. 451.

AMES v. COLBURN.

[11 GRAY, 890.]

ALTERATION OF PROMISSORY NOTE WILL NOT ENABLE MAKES TO AVOID Ir IN HANDS OF INDORSEE, where such alteration by the payee, without the maker's knowledge, but without any fraudulent intent, was merely to correct a mistake, and make the date what the parties intended it to be.

ACTION of contract by the indorsee against the maker of a negotiable promissory note. The case was referred to an arbitrator who made an award in favor of plaintiff, subject to the decision of the court, upon the following facts: The note was made and delivered on Saturday, which was in fact the twentyeighth, but was supposed by the maker and the payee to be the twenty-ninth of May, 1853, and was dated Saturday, May 29th. The payee observed the mistake on the Monday following, and altered the date to May 28th. The day of the week and year was what the parties supposed it was. The other facts are stated in the opinion.

A. F. L. Norris, for the plaintiff.

S. A. Brown, for the defendant.

By Court, METCALF, J. The alteration of the date of the note was made by the promisee, without the knowledge or express consent of the promisor. But as the arbitrator has found that it was made without any fraudulent intention, and merely to correct a mistake and make the note such as both parties intended it should be, and understood that it was, we are of opinion, upon the authorities, that the note was not vacated by the alteration, and that the plaintiff is entitled to judgment on the award: Brutt v. Picard, Ry. & M. 37; Knill v. Williams, 10 East, 436, 437; Boyd v. Brotherson, 10 Wend. 93; Byles on Bills, 2d Am. ed., 247; Id., 4th Am. ed., 391; 1 Saund. Pl. & Ev., 2d ed., 115.

Judgment on the award.

THAT ALTERATION IN DATE OF NOTE WITHOUT AUTHORITY VITIATES IT, see Mitchell v. Ringgold, 5 Am. Dec. 433; Stephens v. Graham, 10 Id. 485; Aubuchon v. McKnight, 13 Id. 502; Bank of Commonwealth v. McChord, 29 Id. 398. But in Wilson v. Henderson, 48 Id. 716, and note, 718, it is said that the alteration of a note by the payee does not necessarily vitiate it, and will not where the alteration is immaterial; as the insertion of an immaterial date or an omitted one. And in Inglish v. Breneman, 41 Id. 96, it is held that a date is not necessary to the validity of a note. It is only material alterations which now affect the validity of instruments: See Reed v. Roark, 65 Id. 127, and notes 128, showing collected cases as to what constitutes a material alteration. Material alteration of commercial paper, however, is fatal to a recovery upon it if unaccounted for by him who holds it: See notes to case last cited; Miller v. Reed, 67 Id. 459, and collected cases in note thereto, 462.

CITATION OF PRINCIPAL CASE.-In Nickerson v. Swett, 135 Mass. 514, the Wellfleet Insurance Company loaned the Union Wharf Company five thousand dollars, and took a note, with two sureties, payable on demand, with interest at six and one-half per cent per annum. This was the only express agreement between the two companies; but it was understood between them that the money would not be wanted for more than six months, and that if the loan should be continued for more than six months, interest after that time should be paid at the rate of seven per cent per annum. The money was not paid or demanded in six months. At the expiration of this time, the secretary of the payee, believing, from information received of the agent of the wharf company, and from other sources, that all the parties to the note had agreed that the loan should be continued longer, and that interest thereafter should be paid at the rate of seven per cent per annum, wrote in the body of the note a statement that from the end of six months interest was to be at the rate of seven per cent. In fact, there was no such agreement, and the secretary made the writing in the reasonable and in the mistaken belief that it expressed the agreement of all the parties to the note. He made the change for the purpose of receiving payments of interest upon the note, which the wharf company paid at the increased rate. The sureties brought a ball in equity to restrain the insurance company from negotiating the note with their names on it as sureties; and the insurance company brought a cross-bill to have the words added by its secretary erased from the note. The sureties' bill was dismissed, and in granting the relief sought by the

cross-bill, the court cited the principal case to the following language: “As the words appear upon the note, and apparently form a part of it; as they were put there while the note was in the custody of the payee, and by its agent, but an agent who had no authoirty to make any alteration of the note or add any words to it; as they were put there without fraud and in good faith, and under a mistake of fact as to the existence of the contract they expressed and the consent of the parties to have them placed there; and as the sureties have not been injured, and cannot suffer injury if the note is returned to its original and true condition-the words should be stricken from the note."

KELLEY V. BOWKER.

[11 GRAY, 428.]

BILL OF LADING IS COMPLIED WITH BY DELIVERING TWO THOUSAND TWO HUNDRED AND SEVENTEEN BUSHELS OF CORN, if no more is shipped, where such bill recites a shipment of and agreement to deliver two thousand two hundred and eighty-two bushels, more or less, all to be deliv ered, etc., and the master of the vessel is entitled to freight on the num ber of bushels actually delivered.

ACTION of contract by master of the schooner Pavilion, against the consignees to recover freight on a cargo of corn carried from New York to Danvers. The jury were instructed that if plaintiff had proved the delivery of all the corn he took on board, he had discharged his liability under the bill of lading, and was entitled to freight on the number of bushels actually delivered. Verdict for plaintiff; defendant excepted. The other facts are stated in the opinion.

G. Marston and S. H. Phillips, for the defendants.

H. A. Scudder, for the plaintiff.

By Court, THOMAS, J. The question in this case is of the meaning and effect of the bill of lading. "Shipped in good order, etc., to say, twenty-two hundred and eighty-two bushels of corn, more or less," etc. The master actually delivered only two thousand two hundred and seventeen bushels. The defendants say that, as between them and the master, the quantity to be delivered is conclusively settled by the bill of lading; that the master is to account to them for the number of bushels stated, with a reasonable allowance for loss by handling and shrinkage. If you take from the bill of lading the words "more or less,” the position is by no means certain: Barrett v. Rogers, 7 Mass. 297 [5 Am. Dec. 45]; Clark v. Barnwell, 12 How. 272. The insertion of these words excludes, we think,

such conclusion.

They show that the master did not mean to be bound by the number given; that it was an estimate rather than an exact measurement: Shepherd v. Naylor, 5 Gray, 591; Vose v. Morton, Id. 594.

Exceptions overruled.

BILL OF LADING IS NOT CONCLUSIVE AS TO QUANTITY, unless it contains the phrase "quantity guaranteed," or other equivalent expressions amounting to conclusive evidence of the quantity, and rendering the carrier liable for any shortage: See extended note to Chandler v. Sprague, 38 Am. Dec. 413, 414, citing the principal case, and discussing bills of lading generally. As to quantity shipped, and condition of goods, bills of lading may be controlled by parol evidence, at least as between the shipper and the carrier; and carrier may show that he did not receive the quantity of goods receipted for in a bill of lading, when sued for the deficiency by the shipper: O'Brien ▼. Gilchrist, 56 Id. 676, and note 679. As to effect of words "more or less," see authorities just cited.

POOL v. ALGER.
[11 Gray, 489.]

LAND-OWNER WHO NEGLECTS TO REPAIR DIVISION FENCE IS NOT LIABLE TO ACTIONS BY HIS NEIGHBOR for injuries occasioned by a stranger's cattle unlawfully at large in the highway, and which through such neglect break into the neighbor's land.

TORT for suffering a division fence between the lands of plaintiff and defendant, which defendant was bound to keep in repair, to be out of repair, whereby certain cattle, the property of an unknown stranger, unlawfully at large in the highway, and passing over the defendant's land, broke and entered the plaintiff's close, and trod down, ate, and injured the plaintiff's crops there growing. Defendant's land was between the plaintiff's and the highway. The division fence had been divided between them by fence-viewers, and the portion assigned to defendant was out of repair. The case was submitted to the court upon these

facts.

B. Sanford, for the plaintiff.

C. I. Reed, for the defendant

By Court, DEWEY, J. 1. We perceive no ground upon which this action can be maintained as an action of trespass quare clausum fregit. The entry upon the plaintiff's land was by the cattle of a third person, and one with whom the defendant had no connection as an agister of the cattle.