Volume 1 — Massachusetts Reports

<p>In an action by the endorser against the promisor of a promissory note negotiated subsequent to the day of payment, the defendant may go into such evidence as he would have been entitled to had the action been brought by the original promisee. The deposition of a person used in a former trial is competent evidence m a review, though the deponent is a party to the suit, having become administrator of one of the original parties.</p>

<p>This indictment, which was found at the last term of this Court, but not brought on for trial because one only of the justices was then present, (a) charged, that the defendant broke and entered a shop in the night-time, and stole therefrom divers goods, wares, &c., against the statute, &c. — Upon his being set to the bar for trial, he having pleaded not guilty, he moved to have his trial postponed to the next term, that he might have time to procure witnesses who resided in the states of New York and Vermont. The defendant said he had written several times to a man in Vermont, but had received no answer: he did not pretend that he had used any other endeavor to procure his witnesses, although there had been an interval of four months from the last to the present term.</p>

<p>Practice. — In an action of covenant, special matter not allowed to be given in evidence under the plea of non est factum — though consented to by the plaintiff's counsel.</p>

<p>In a criminal case, the Court will not put off the trial on account of the absence ■ji a witn°ss, believed by the defendant to be material, if such witness d< not reside within the jurisdiction of the Court. In an indictment for shop breaking and stealing from the shop, proof that part of the goods stolen were found in the possession of the defendant, is prima fade evidence that the do fendant is guiltv of the whole charge in the indictment</p>

<p>The person whose instrument is alleged to be forged is not a competent witness to prove the forgery, unless the instrument, said to be forged, is produced at the trid>..</p>

This was an indictment containing two counts. The first charged the defendant to have forged a promissory note purporting to be made by one Samuel Castle, and payable to the defendant or his order—the second count was for uttering and publishing the same note. The defendant pleaded not guilty.

<p>On an indictment for open gross lewdness and lascivious behavior, evidence of lewdness or such behavior in secret will not support the indictment.</p>

This was an indictment against the defendant, grounded on stat. 1784, c. 40, § 6, and contained three counts. The first count stated that on the last day of July, 1803, at-, the defendant, being then and there a married man, did commit open gross levvdness and lascivious behavior, and did [ * 9 ] then * and there lewdly and lasciviously lie on a bed with one A. D., she, the said A. D., then and there not being the wife of the defendant.

<p>In an action of debt on a bond in which judgment is entered for the whole penalty to stand as security for future breaches of the condition, the Court will enter judgment for damages incurred up to the time of rendering judgment, and will not restrict the plaintiff to such damages only as were incurred at the time of the commencement of the action.</p>

This was an action of' debt on a bond in a penalty of 10,000 dollars.

This was an action of trespass against Alpheus Ray and another, brought by Horace Avery, an infant under the age of twenty-one years, who sued, by his father and guardian, Miles Avery, for an assault and battery alleged to have been committed by the defendants on the infant on the 14¿7t of Feb. 1803. The declaration was general — containing no allegation of any special damage; nor was it stated that the wounding, bruising, &c., was followed by any particular ill consequences.

This was an action of trespass against Alpheus Ray and another, brought by Horace Avery, an infant under the age of twenty-one years, who sued, by his father and guardian, Miles Avery, for an assault and battery alleged to have been committed by the defendants on the infant on the 14th of Feb. 1803. The declaration was general—containing no allegation of any special damage; nor was it stated that the wounding, bruising, &c., was followed by any particular ill consequences.

This was an indictment against Easland and four others for an assault and battery, to which they all pleaded not guilty, and were on trial together. During the trial, the counsel for the defendants moved the Court that the wife of one of the defendants might be examined as a witness in behalf of the other four.

<p>In an action on the trustee-law, in which less than £4 are recovered in damages the plaintiff is entitled to only one fourth part so much costs as damages.</p>

• This was an action of assumpsit for work, labor, and service, brought by Benajah * Denham against Eli Lyon [ * 16 and his trustee, in the form prescribed by statute of 1794, c. 65. The declaration contained two counts. First, a quantum meruit, in which they were alleged to be reasonably worth 13 dollars—and secondly, an indebitatus assumpsit for 5 dollars and 8 cents.—The damages were laid at thirty dollars.

This was an indictment against Easland and four others for an assault and battery, to which they all pleaded not guilty, and were on trial together. During the trial, the counsel for the defendants moved the Court that the wife of one of the defendants might be examined as a witness in behalf of the other four.

<p>This was an appeal from a decree of the judge of probate for this county. By the record in the Probate Court, authenticated copies whereof were produced in this Court, it appeared that the appellant was administrator de bonis non of the estate of Phineas Watkins, deceased; that the estate had been represented insolvent, and that commissioners had been appointed by the judge to receive and examine all claims of the several creditors thereto; that the commissioners had made their report to the judge, which contained a list of the creditors to the estate, with their respective claims, as allowed by the commissioners — i~ which list the appellee is stated to be a creditor, and to whom there was allowed by the commissioners the sum of 3451 dollars, 54 cents, for his claim against the estate; that the report was accepted and allowed by the judge, who, on the 18th of November, 1801, made his decree of distribution and average, by which the appellee was to receive 843 dollars, 59J cents, as his proportion of the estate of the deceased. The appeal was entered by virtue of a resolve of the legislature (a).</p> <p>* Among the reasons of appeal filed in the case, only these two following were insisted on, viz.,</p> <p>1. Because by the said decree the appellee had allowed him $848 59J cents, on a claim reported by the commissioners of in-so.vency on said estate, of $3451 54 cents, whereas by law no such claim ought to have been received or allowed, and no average made thereon, inasmuch as the appellee’s claim was founded on a joint and several note, executed by the said Watkins, with William Fletcher, and Oliver Tenney, previous to Oct. 1798, whereon a suit had been instituted against all of the debtors, in the Court of Common Pleas for the county aforesaid, and while pending and before judgment, the said Watkins died, and the two others survived, against whom the suit was prosecuted to judgment and execution, and from whom was levied the sum of $2339 40 cents, leaving a balance due to the appellee, on his execution against Fletcher and Tenney, of $1303 8 cents; but deducting the sum collected from the sum allowed by said commissioners, a balance will remain of only $1112 14 cents, and the said Fletcher and Tenney, yet living ; wherefore, by instituting and prosecuting the said suit in manner aforesaid, the appellee waived the benefit of the severalty of the promise contained in the note, and made his election to give it the effect of a mere joint promissory note against Fletcher and Tenney, the survivors, against whom the said claim survived on the death * of the said Watkins, and against whom alone the appellee had his remedy by law.</p> <p>2. Because, admitting the appellee to have a claim on the said Watkins’s estate for the balance of $1112 14 cents, there is error in the said decree in this; that the decree of average was made on the whole sum allowed by the commissioners of insolvency, of $3451 54 cents, thereby producing the average of $843 59J cents, whereas the average allowed should have been made on the balance actually remaining due to the appellee, by deducting the payment made towards the said claim subsequent to the report of the said commissioners, and previous to the 18th day of November, 1801, being $2339 40 cents, in which case the balance due to the appellee would have been $1112 14 cents, producing an average sum of about $500 only.</p> <p>It was conceded by J. C. Williams, counsel for the appellee, that the facts stated in the first reason of the appeal were true.</p>

<p>Neither the judge of probate, nor this Court, on an appeal from the judge of probate, can examine the merits of a claim against an insolvent estate, reported by the commissioners—the only remedy in such a case is, for the party dissatisfied with the report, to file his objection as pointed out by the statute, and have the same determined at common law.</p>

The declaration in this case contained three counts. The first was indebitatus assumpsit for money laid out and expended ; the second for money lent, and the third for money had and received. In each of the counts, the promise was alleged to have been made to pay on demand with interest.

<p>A public teacher of religion, not ordained over a particular parish or place, but only indefinitely over a large district of country, including, or which may include, a number of parishes or places, cannot maintain an action to recover moneys assessed for the support of public worship. See post.</p>

<p>This was an action of debt, brought in the name of Samuel Henshaw, Esq., judge of probate, &c., for this county, on an administration bond, against Martha Blood and Hezekiak Fiske, * administrators of the estate of Isaiah Blood, Jun., and their two sureties, for the benefit of A, B, C, &c., creditors of the intestate.</p> <p>The defendants prayed oyer of the condition, which was in the form prescribed by the statute, passed March 9th, 1784, (stat. 1783, c. 36, § 8,) and pleaded in bar that the administrators from the time of making the writing obligatory aforesaid had well and faithfully observed, performed and kept all and every part of the things in the condition of the writing obligatory aforesaid, on their part to be observed, performed and fulfilled.</p> <p>To this plea the plaintiff replied that the intestate, in his lifetime, viz., on-, at-, was seised in fee simple of certain real estate, (describing it,) and that afterwards, viz., on-died so seised thereof, whereby the whole of the same real estate, of the value, as the plaintiff averred, of $2000, was and became the proper estate of the intestate at the time of his death; and when administration of the estate of the intestate was committed to the said M. and H., (viz., on the 5th day of June, 1798,) the same real estate came to the knowledge and into the hands and possession of the said M. and H. as the estate of the intestate, and at the date of the administration bond was, thenceforth, always hitherto hath been, and still is liable by law to be inventoried by them, the said M. and H., as the estate of the intestate; and, in case the personal estate of the said intestate was insufficient for the payment of the debts of the intestate, to be administered by them, the said M. and II., for the payment of the debts aforesaid. The plaintiff then averred that the personal estate of the intestate was insufficient to pay and satisfy the debts due and owing from him at the time of his death — that the administrators represented the estate of the intestate to be insolvent- - that the commissioners to receive and examine the claims * against his estate were duly appointed — that A, B, C, &c., creditors of the intestate, for whose use and benefit this action is brought, duly proved their respective claims and demands under the said commission — that the same were severally allowed by the commissioners, and that their doings and proceedings were duly returned into the Probate Court, and by the same court accepted, ratified and approved. The plaintiff then averred that the estate of the intestate, exclusive of the real estate above described, was in fact insolvent, and insufficient to pay the debts of the intestate — yet that the said M. and II., well knowing the premises, did not, and each of them did not, make or cause to be made an inventory of the same real estate, or any part thereof, or exhibit or cause to be exhibited such inventory into the Probate Court for said county of Hampshire at or before the said fifth day of September next ensuing the date of the said writing obligatory, in the condition thereof specified, or at any time since — but that they always hitherto had, and each of them had, neglected, and still did unjustly neglect and refuse, to make inventory, and return the same to be administered for the payment of the debts of the intestate, although often thereto requested — and that at a court of probate for said county, holden at-, on-, they, the said M. and II., having been duly cited to appear at the same probate court, and show cause why said real estate should not be inventoried and sold for the payment of the debts of the said intestate, it was duly ordered and decreed that the said M. and H. should return into the probate office for said county an inventory of said real estate, on receiving bonds from any creditor or creditors of the estate of said intestate, sufficient to indemnify the said M. and II. from all costs and charges which might thereafter arise in consequence of any suit or legal process for the recovery of said real estate * for the benefit of the creditors aforesaid, and for inventorying the same; of which order and decree they the said M. and H., thereafterwards, viz., on the same day, had notice — which decree the plaintiff averred to be in full force, not reversed, annulled, or appealed from. The plaintiff then averred that A, aforesaid was then and there a creditor of the said intestate, and that afterwards, viz., on-, at-, he, the said A, being then and there a creditor as aforesaid, tendered and offered to them, the said M. and H., the bond of C. D. of -, sufficient for all the purposes in said decree mentioned — but that the said M. and II. had always hitherto refused to accept said bond, or inventory said real estate, or any part thereof — all which the plaintiff is ready to verify, &c.</p> <p>The defendants protesting that the intestate did not die seised of the real estate in the replication mentioned, nor of any part thereof, and that the said M. and H. duly inventoried all the estate, both real and personal, whereof the intestate died seised or possessed, which came to the hands, possession, or knowledge of the said M and H., and whereof they had any notice, demurred generally — and the plaintiff joined in demurrer.</p>

<p>in indebitatus assumpsit, where a promise to pay interest is stated in the declaration, an express promise to pay interest must be proved.</p>

<p>A public teacher of religion, not ordained over a particular parish or place, but only indefinitely over a large district of country, including, or which may include, a number of parishes or places, cannot maintain an action to recover moneys assessed for the support of public worship. See post.</p>

<p>Practice.—The Court null continue an indictment for fraud pending a civil action for the same cause.</p>

<p>This was an action of debt, brought in the name of Samuel Henshaw, Esq., judge of probate, &c., for this county, on an administration bond, against Martha Blood and Hezekiah [ * 36 ] Fiske, * administrators of the estate of Isaiah Blood, Jun., and their two sureties, for the benefit of A, B, C, &c., creditors of the intestate.</p> <p>The defendants prayed oyer of the condition, which was in the fu/m prescribed by the statute, 'passed March 9th, 1784, (stat. 1783, c. 36, $ 8,) and pleaded in bar that the administrators from the time of making the writing obligatory aforesaid had well and faithfully observed, performed and kept all and every part of the things in the condition of the writing obligatory aforesaid, on their part to be observed, performed and fulfilled.</p> <p>To this plea the plaintiff replied that the intestate, in his lifetime, viz., on-, at-, was seised in fee simple of certain real estate, (describing it,) and that afterwards, viz., on-died so seised thereof, whereby the whole of the same real estate, of the value, as the plaintiff averred, of $2000, was and became the proper estate of the intestate at the time of his death; and when administration of the estate of the intestate was committed to the said M. and H., (viz., on the 5th day of June, 1798,) the same real estate came to the knowledge and into the hands and possession of the said M. and H. as the estate of the intestate, and at the date of the administration bond was, thenceforth, always hitherto hath been, and still is liable by law to be inventoried by them, the said M. and H., as the estate of the intestate; and, in case the personal estate of the said intestate was insufficient for the payment, of the debts of the intestate, to be administered by them, the said M. and II., for the payment of the debts aforesaid. The plaintiff then averred that the personal estate of the intestate was insufficient to pay and satisfy the debts due and owing from him at the time of his death—that the administrators represented the estate of the intestate to be insolvent- - that the commissioners to receive and examine the claims " * 37 ] * against his estate were duty appointed—that A, B, C. &c., creditors of the intestate, for whose use and benefit this action is brought, duly proved their respective claims and demands under the said commission—that the same were severally allowed by the commissioners, and that their doings and proceedings were duly returned into the Probate Court, and by the same court accepted, ratified and approved. The plaintiff then averred that the estate of the intestate, exclusive of the real estate above described, was in fact insolvent, and insufficient to pay the debts of the intestate—yet that the said M. and H., well knowing the premises, did not, and each of them did not, make or cause to be made an inventory of the same real estate, or any part thereof, or exhibit or cause to be exhibited such inventory into the Probate Court for said county of Hampshire at or before the said fifth day of September next ensuing the date of the said writing obligatory, in the condition thereof specified, or at any time since—but that they always hitherto had, and each of them had, neglected, and still did unjustly neglect and refuse, to make inventory, and return the same to be administered for the payment of the debts of the intestate, although often thereto requested—and that at a court- of probate for said county, holden at-, on-, they, the said M. and H., having been duly cited to appear at the same probate court, and show cause why said real estate should not be inventoried and sold for the payment of the debts of the said intestate, it was duly ordered and decreed that the said M. and H. should return into the probate office for said county an inventory of said real estate, on receiving bonds from any creditor or creditors of the estate of said intestate, sufficient to indemnify the said M. and II. from all costs and charges which might thereafter arise in consequence of any suit or legal process for the recovery of said real estate * for [ * 38 ] the benefit of the creditors aforesaid, and for inventorying the same ; of which order and decree they, the said M. and Hi, thereafterwards, viz., on the same day, had notice—which decree the plaintiff averred to be in full force, not reversed, annulled, or appealed from. The plaintiff then averred that A, aforesaid was then and there a creditor of the said intestate, and that afterwards, viz., on-, at-, he, the said A, being then and there a creditor as aforesaid, tendered and offered to them, the said M. and H., the bond of C. H. of -, sufficient for all the purposes in said decree mentioned—but that the. said M. and II. had always hitherto refused to accept said bond, or inventory said real estate, or any part thereof—all which the plaintiff is ready to verify, &c.</p> <p>The defendants protesting that the intestate did not die seised of the real estate in the replication mentioned, nor of any part thereof, and that the said M. and H. duly inventoried all the estate, both real and personal, whereof the intestate died seised or possessed, which came to the hands, possession, or knowledge of the said M and H., and whereof they had any notice, demurred generally—and the plaintiff joined in demurrer.</p>

<p>This was an action of assault, battery, and false imprisonment, brought by James Rising, jun. vs. Justin Granger. The plaintiff laid his damages at $100.</p> <p>* The defendant pleaded the general issue, and gave notice, agreeably to the stat. of Feb. 25, 1793, (stat. 1792, c. 41,) that he should justify as a collector of taxes for the fourth parish in West Springfield.</p> <p>It appeared in evidence that the plaintiff’s domicil was in the state of Connecticut; that the farm of land on which he resided lay partly in that state and partly in this commonwealth, the line dividing the two states running through his farm; that the tax was assessed on that part of his farm which lies in this commonwealth, and in the parish aforesaid, consisting of about 100 acres; 70 acres of which were under cultivation, and the remaining 30 acres not cultivated; that the defendant, being collector of the tax, had demanded it of the plaintiff, who refused to pay, whereupon he was, in the parish aforesaid, arrested by the defendant, who claimed a right to do it by his warrant, and detained in custody about 12 hours, when the plaintiff paid the tax and charges of collection, amounting to something more than three dollars.</p>

<p>In an action, qm tam, on the statute against usury, the Court will not allow the plaintiff to amend his declaration where he had previously amended in the Common Pleas by leave of that court, qu.</p>

<p>Br an act of the legislature passed June 12, 1800, (stat. 1800, c. 5,) divers persons named in the act, belonging to the several towns of Russell, Blandford, Norwich, and Montgomery, in this county were incorporated by the name of The United Baptist Society, with all the privileges, powers, and immunities, so far as should be necessary for the support and maintenance of public worship, to which parishes are by law entitled in this commonwealth. By the second section of the act, it is enacted, “ That any person in either of the towns of Russell, Blandford, Norwich, and Montgomery, aforesaid, being of the Baptist denomination of Christians, who may at any time hereafter become a member of and unite in their religious worship with the said United Baptist Society, and give in his or her name to the clerk of the town or parish to which he or she belongs, with a certificate, signed by the minister or clerk of said society, that he or she has actually become a member of, and united in religious worship with, the said society in Russell, aforesaid, fourteen days previous to the town or parish meetings therein to be held in the month of March or April annually, shall, from and after giving such certificate, with his or her polls and estates, be considered as a member of said society ; provided, however, that such, person shall first pay his proportion of all money assessed in the town or parish to which he or she belonged previous to that time.”</p> <p>The indictment stated the substance of the act above mentioned, and that the society thereby incorporated did congregate, associate, and assemble as a corporation from the passing of the act to the time of finding the indictment, and that the defendant was elder and teacher, and empowered in that capacity to sign certificates as in and by * the same act is provided to be signed by the minister of said society; and that the defendant, under pretext of the act aforesaid, wickedly and fraudulently intending to evade the provisions and intendment of the same act, and to defraud the town of Montgomery of the taxes which by law-might be or had been legally assessed on the poll and estate of one J. W., towards the support of the public worship therein, did on the -day of-falsely, &c., make a certificate directed to the town clerk of Montgomery, in the words and figures following, viz. [Here the certificate was set out, omitting, however, the date and direction to town cleric.] When in truth and in fact the said J. IV. did not belong to the said society, nor had he before that time-attended with the said society for religious worship, &c.; of which the defendant was well knowing, &c.</p> <p>The indictment contained thirteen other counts, charging that the defendant had falsely and fraudulently signed certificates in favor of that number of persons, and with the like intent; the different counts were nearly or precisely alike; and in all of them the date of the certificate and the direction to the town clerk were omitted.</p>

<p>The defendants were indicted in the Court of General Sessions for poisoning a cow, the property of A. B. Being convicted in that court, they appealed to this, and at the last term thereof were found guilty by the verdict of the jury. The indictment was at common law.</p> <p>Bliss moved in arrest of judgment on the ground that the Court of Sessions had not jurisdiction in the case.</p> <p>He said that this was a common law offence, and so laid in the indictment; that justices of the peace were officers not known to the common law, but were created by statute, and of course all their powers were given by statute; and that none of our statutes nad given them jurisdiction over the offence charged in the indictment. And he cited 4 Com. Dig. Title, Just. of the Peace, B. 1, and 1 Salk. 406.</p>

<p>Taxes on the unimproved lands of non-resident proprietors or on improved lands of proprietors living without the state, are not a personal charge, but a lien on the lands only —In an action for false imprisonment, the plaintiff will not be permitted to prove special damage, unless laid in the declaration. In such action, if the jury find less than £4 damages, the Court has no discretion as to costs, for the statute has expressly restricted the costs to 1-2 of the amount of the damages.</p>

The defendant was indicted for uttering a forged and counterfeit bill of the Maine Bank, of five dollars. In this case it was alleged in the indictment that the forged bill was in the words and figures following, viz.— B. ' No. 237. FIVE DOLLARS. , The President, Directors, and Company of the Maine *? Bank, promise to pay N. Shaw, or bearer, FIVE S DOLLARS on demand. — Portland, the 7th day of 95 Feb. 1803. D. Hale, Cash’r. Sam.

<p>This was an action of indebitatus assumpsit, for £100, money had and received by the defendant for the use of the plaintiffs.</p> <p>The defendant pleaded the general issue ; and non assumpsit infra sex annos.</p>

<p>This was an action, qui tarn, brought to recover the penalty given by the statute against taking excessive usury. The action came up to this Court by appeal from the Court of Common Pleas, in which court the plaintiff, by leave of the same court, had had liberty to amend his declaration; and had amended it accordingly.</p> <p>The counsel for the plaintiff moved the Court, on Friday, the fourth day of the term, to amend the declaration by striking out the 21th and inserting the 28th day of May, the latter being the actual day of the loan of the money, which in the declaration was alleged to have been loaned on the 21th day of May—and they cited 1 Wms. Air. 427, &c., and the cases there cited. They also relied on the rule of this Court.</p> <p>The counsel for the defendant objected to the motion, and cited 2 Mod. 144, (Sir Wm. Turner’s case.) They said that this was an action strictissimi juris, and ought not to be favored—the act of June 19, 1788, (stat. 1788, c. 12, § 1,) is express that “the action shall be brought within one year next after the offence committed”—although the action was commenced within the time limited by the statute, yet a much longer time has now elapsed. Will the Court, then, where there is no equitable right, authorize this amendment, and give the plaintiff an action which the law has taken away?</p> <p>On the next day, Saturday, the Court delivered their opinions.</p>

This was an action of trover brought by Whipple Lovett, as assignee of Thomas Rice, bankrupt, against the defendant, Robert Cutler, a deputy-sheriff, for divers goods specified in the declaration.

<p>Declarations of a grantee not admissible to contradict what is contained in a deed to himself. In a suit on an administration bond, interest allowed from the time that the judge of probate passed his decree. .</p>

<p>Practice. — Upon the question of sanity of. a testator, those who are for establishing the will open and close. The burthen of proof is with the party who affirms the sanity. An opinion said to have been expressed by one of the devisees that the testator was insane, is not admissible to prove his insanity.</p>

<p>Br an act of the legislature passed June 12, 1800, (stat. 1800, c. 5,) divers persons named in the act, belonging to the several towns of Russell, Blandford, Norwich, and Montgomery, in this county, were incorporated by the name of The United Baptist Society, witii all the privileges, powers, and immunities, so far as should be necessary for the support and maintenance of public worship, to which parishes are by law entitled in this commonwealth. By the second section of the act, it is enacted, “ That any person in either of the towns of Russell, Blandford, Norwich, and Montgomery, aforesaid, being of the Baptist denomination of Christians, who may at any time hereafter become a member of and unite in their religious worship with the said United Baptist Society, and give in his or her name to the clerk of the town or parish to which he or she belongs, with a certificate, signed by the minister or clerk of said society, that he or she has actually become a member of, and united in religious worship with, the said society in Russell, aforesaid, fourteen days previous to the town or parish meetings therein to be held in the month of March or April annually, shall, from and after giving such certificate, with his or her polls and estates, be considered as a member of said society ; provided, however, that such person shall first pay his proportion of all money assessed in the town or parish to which he or she belonged previous to that time.”</p> <p>The indictment stated the substance of the act above mentioned, and that the society thereby incorporated did congregate, associate, and assemble as a corporation from the passing of the act to the time of finding the indictment, and that the defendant was elder and teacher, and empowered in that capacity to sign cer- [ * 55 ] tificates as in and by * the same act is provided to be signed by the minister of .said society; and that the defendant, under pretext of the act aforesaid, wickedly and fraudulently intending to evade the provisions and intendment of the same act, and to defraud the town of Montgomery of the taxes which by law might be or had been legally assessed on the poll and estate of one J. W., towards the support of the public worship therein, did on the -day of -falsely, &c., make a certificate directed to the town clerk of Montgomery, in the words and figures following, viz. [Here the certificate was set out, omitting, however, the date and direction to town clerk.] When in truth and in fact the said J. W. did not belong to the said society, nor had he before that time attended with the said society for religious worship, &c.; of which the defendant was well knowing, &c.</p> <p>The indictment contained thirteen other counts, charging that the defendant had falsely and fraudulently signed certificates in favor of that number of persons, and with the like intent; the different counts were nearly or precisely alike; and in all of them the date of the certificate and the direction to the town clerk were omitted.</p>

<p>Endorser not a competent witness to prove the hand-writing of the promissor, unless he has a release from the endorsee. That the adverse party has had notice of taking a deposition must appear from the certificate of the magistrate taking it, and cannot be proved by parole evidence.</p>

<p>This was an action of trespass, brought by Aaron Smith of Athol, in the county of Worcester, for taking the plaintiff’s cows; and was submitted to the judgment of the Court upon the following state of facts,, viz., That a writ of attachment in due form of law was purchased out of the clerk’s office of the Court of Common Pleas for the county of Worcester, dated November 16, 1799, directed to the sheriff of the county of Hampshire, or his deputy, commanding them to attach the goods or estate of Aaron Smith of Orange, in the county of Hampshire, yeoman, alias gentleman, &c., so that he might be had before the same Court at their then next term in December, 1799, to answer to one Samuel Sweetser of Athol, in the county of Worcester, innholder, in a plea of the case,-for not paying the contents of a certain promissory note therein set forth, which said writ, on the 18iiA day of Nov. 1799, was delivered to one Judah Sexton, then being and ever since continuing to be a deputy sheriff in and for said county of Hampshire, to serve and return ; and on the first day of the term of said Court, the said Judah Sexton returned said writ, with the following certificate thereon by him signed as deputy sheriff as aforesaid, viz., “Hampshire, ss. November 18,1799. By virtue of this writ I have attached a hat, the property of the within-named Aaron Smith, and at the same time left him a summons for his appearance at court as the law directs.” And thereupon said action was duly entered on the docket of said Court, and no person appearing to answer to the same, Aaron Smith was regularly called and defaulted, and judgment rendered thereon accordingly for $33 34 cents damages, and $9 02 cents costs; and after wards, on the 23d day of April, 1800, an alias execution in due form of law was * issued on said judgment, directed to the sheriffs of Worcester and Hampshire, or their deputies respectively, and returnable to said Court at the term in June, whereby they were commanded to satisfy the same of the goods, chattels, or lands of Aaron Smith of Orange, in the county of Hampshire, yeoman, alias gentleman; which execution, afterwards, on said 23d day of April, was committed to Jotham Bowker, the defendant in this action, to collect, who then was and ever since has continued to be a deputy sheriff, in and for the county of Worcester, and he, the said Jotham, by virtue of said execution, and before the return-day thereof, after requesting Aaron Smith, the plaintiff, to pay the contents thereof, and he refusing, took (within his precinct) the cattle mentioned in the plaintiff’s writ, and duly advertised and sold the same at public vendue, to satisfy said execution and the legal fees and charges, and returned the overplus to Aaron Smith, the plaintiff, which is the supposed trespass in his declaration alleged. And the parties further agree, that Aaron Smith, the plaintiff, at the time of the date of said Sweetser’s writ aforesaid, and of the certificate of the said Judah Sexton, had his dwelling-house in Athol, in the county of Worcester, and was an inhabitant of Athol; and that the summons, which was in conformity to said writ, was left by the said Judah Sexton at his, said Aaron’s, dwelling-house in Athol, and that the plaintiff did sign the note declared on in said writ of Sweetser.</p>

<p>An indictment for poisoning cattle is within the jurisdiction of the Court of Sessions.</p>

The defendant was indicted for uttering a forged and counterfeit bill of the Maine Bank, of five dollars. In this case it was alleged in the indictment that the forged bill was in the words and figures following, viz.— B. No. 237. FIVE DOLLARS. The President, Directors, and Company of the Maine t* Bank, promise to pay N. Shaw, or bearer, FIVE 5 DOLLARS on demand.—Portland, the 7th day of * Feb. 1803. D. Hale, Cash'r. Sam.

<p>In a prosecution on the militia law, the defendant is entitled to prove disability, although he has neither the certificate of the surgeon of the regiment nor of the captain of the company. Costs not allowed on a writ of error where judgment is reversed for error in law.</p>

This was an action of indebitatus assumpsit, for £100, money had and received by the defendant for the use of the plaintiffs. The defendant pleaded the general issue ; and non assumpsit infra sex annos.

<p>This was a writ of error and certiorari to remove an order of the Court of Sessions for this county, establishing a highway, laid out by a committee of that court, in the town of Lancaster.</p> <p>The errors assigned were, first, {in substance,) that it does not appear that the inhabitants of the said town of Lancaster had notice of the laying out of the highway by the committee; and, secondly, the general error.</p> <p>The defendants pleaded in nullo est erratum.</p>

<p>This was an action of trover brought by Whipple Lovett, as assignee of Thomas Rice, bankrupt, against the defendant, Robert Cutler, a deputy-sheriff, for divers goods specified in the declaration.</p>

This was an action on an administration bond brought against the defendant, one of the sureties, in the name of the judge of probate for this county, for the benefit of the seven children and heirs of Dorcas Putney, to recover the amount of their distributive shares in the estate of their grandfather, who was the father of the said Dorcas; and which the administrator had not paid, as it was said, agreeably to the decree of the judge heretofore made.

<p>A grantor not permitted to explain his own grant, even in a suit in which he is not interested. Qit. These words in a deed, “between A. and B.” are necessarily exclusive of the termini mentioned.</p>

<p>Practice.—Upon the question of sanity of a testator, those who are for establishing the will open and close. The burthen of proof is with the party who affirms the sanity. An opinion said to have been expressed by one of the devisees that the testator was insane, is not admissible to prove his insanity.</p>

<p>The defendant, John Battis, a negro of about twenty years of age, was indicted for the murder of one Salome Talbot, a white girl of the age of thirteen years, on the twenty-eighth day of June last.</p> <p>The indictment contained three counts.</p> <p>The 1st count charged the killing to have been with a stone, with which he beat and broke her skull, &c. The 2d stated that the killing was by drowning; and the 3d charged the killing to have been by beating and breaking her skull with a stone, and throwing her body into the water, and suffocating and drowning.</p> <p>There was another indictment against the prisoner for a rape on the body of the said Salome, on the same day on which the murder was charged to have been committed.</p> <p>On the second day of the term, in the forenoon, the prisoner was set to the bar, and had both indictments read to him, and pleaded guilty to each.</p>

<p>This was an action brought by the plaintiff as endorsee of a promissory note purporting to be made by the defendants’ intestate, to which the general issue was pleaded.</p> <p>The defendants denied the signature of the note by their intestate ; and the plaintiff’s evidence as to the hand-writing not being perfectly satisfactory, his counsel moved that the endorser might be sworn as a witness to prove that the intestate actually executed the note; he having a release from the plaintiff, which was produced. [ * 74 ] *The counsel for the defendants did not deny the execution of the release, which was made some months since, but objected to the- introduction of the endorser as a witness, on the ground that the release was given merely for the purpose of making him a witness, and that the endorser is the real plaintiff, and the action brought to recover the money for his use; and they offered to prove the declarations of Barnes since executing the release, to show that such was the intention of making it.</p> <p>The counsel for the plaintiff insisted that parole evidence was inadmissible to control the operation of the release, and, therefore, that the endorser had no interest in this suit, and ought to.be admitted ; but, suspecting (as is believed) that the Court were inclined to go into the inquiry, the plaintiff executed a new release in Court, which they said put an end to all questions as to any equitable claim which' the endorsee might otherwise have had against the endorser.</p>

<p>This was an action of trespass. The defendant was attached to answer to D. H., of W., in the county of W., and state of Connecticut; for that whereas the defendant at R., in said county, &c.</p> <p>* The defendant demurred generally; and the plaintiff joined in demurrer.</p> <p>Two exceptions were taken to the declaration: 1. that there is no positive averment of a trespass committed, but that it is laid by way of recital only, under a quod cum; 2. that there is a want of venue; the trespass, if any, is laid in Connecticut; “ in said county ” must refer to the last antecedent, which is the county of W., in Connecticut.</p>

<p>On a petition for review, the petitioner is confined to the allegations in his petition.</p>

<p>Mistake in the addition of place must be pleaded in abatement; and cannot be $ ground for maintaining trespass against an officer who serves an execution issuing on the judgment</p>

<p>An administrator, to support his charges in an administration account for payment of taxes, must produce the receipt of the collector. Quaere if he must not also pro’ e the assessment of the taxes.</p>

<p>Where the defendant has, without objection at the time, accepted articles manufactured for him, he is not entitled, in an action brought against him for the price of the articles, to show in evidence that the workmanship was bad ; but his remedy is by a special action on the case for the fraud and deceit in the workmanship.</p>

<p>The prisoner was indicted for the murder of his wife. On Thursday, the third day of this term, he was set to the bar, and the indictment was read to him. Upon being asked the usual question, whether he was guilty or not guilty, the prisoner, in a voice scarcely audible, said he did not know what to say ; that it appeared to him she was still alive ; it seemed to him he had seen her since. The Court told him he must say guilty or not guilty; upon which he made nearly the same answer as before. After a few minutes had elapsed, the Court asked him whether he was now disposed to plead, and told him he was charged with killing his wife. He again answered as he had before, and added that he was guilty of what he had done, but did not know what he had done. The Court then informed him that he should have time till the next day to> consider of the charge, and remanded him to prison. On the next day, he was again set to the bar, and arraigned on the indictment; when he said that he was guilty of all he had done, he must confess ; but no direct or positive answer could be obtained from him.</p>

<p>Administrator cannot join with surviving promisee in prosecuting an action, it must be prosecuted by the survivor only. A defendant who relies upon the statute of another state must, in his plea in bar, set it out, that the Court may see whether the proceedings were warranted by the statute or not, and the general allegation that the proceedings were pursuant to the statute is not sufficient. Practice. Amendment allowed after argument upon demurrer.</p>

<p>In a prosecution on the militia law, the defendant is entitled to prove disability, although he has neither the certificate of the surgeon of the regiment nor of the captain of the company. Costs not allowed on a writ of error where judgment is reversed for error in law.</p>

<p>A committee appointed by the Court of Sessions to locate a highway must return, specifically, what notice was given to persons interested. Quaere, whether the inhabitants of a town are to be notified of laying out a highway.</p>

The defendant was indicted for larceny. The indictment contained two counts, the first of which charged the defendant with stealing 98 handkerchiefs, of the goods and chattels of Hannah Healey; in the second count the goods stolen were alleged to belong to Walter Healey. The defendant pleaded not guilty.

<p>This was an action of assumpsit upon a note or memorandum in writing, by which the defendant promised to deliver to the plaintiff a certain number of mules.</p> <p>The defendant pleaded in bar that after the time of making the note declared on, an action was brought by one M. S., at the Court of Common Pleas, held at Worcester, on the Monday next preceding the first Tuesday of September, 1801, against the said Perkins, wherein the said M. S. declared against the said Perkins, (on a note dated July 17, 1794, for $300, made by said Perkins, payable to one J. S., or his order, in April, then next, with interest, and endorsed by J. S. to the said M. S., and which Perkins had not paid,) to the damage of the * said M. S., as she in her declaration averred, the sum of 500 dollars; averment, that the said M. S., in the writ by which her action was commenced, did further declare, in due form of law, that he, the said Perkins, had not in his own hands and possession goods and estate to the value of $500 which could be come at to be attached, but had intrusted to, and deposited in the hands of, Elisha Parker, (meaning the present defendant,) trustee of the said Perkins, goods, effects, and credits, to the said value; and the said Parker was accordingly, duly and legally, according to the form of the statute in such case made and provided, summoned, as trustee and factor of the said Perkins, to show cause, if any he, the said Parker, had, why execution should not issue against the goods, effects, and credits, of the said Perkins in his hands ; and the same action being legally continued to the Court of Common Pleas, holden at said Worcester, on the Monday next preceding the fourth Tuesday of September, 1801, when the said Parker, pursuant to the summons served upon him as trustee of the said Perkins in manner aforesaid, appeared and submitted himself to an examination on oath before the same court in the same cause, and then and there in that form disclosed and confessed that he had given the said Perkins the same note of hand, by the said Perkins in this action declared on, and that the contents thereof had never been paid, 01 the promise therein contained in any manner performed, released or discharged; that the same action was continued to the term of the same court, holden at Worcester, on the Monday next preceding the fourth Tuesday of March, 1802, when and where the said Perkins was called by said court to answer to the said M. S. on her said suit, but that he did not answer thereto, but made default; whereupon judgment was rendered by the same court that the said M. S. should recover against *the said Perkins the sum of 438 dollars, 50 cents, damages, and 12 dollars, 39 cents, costs of suit, and that the said M. S. should have execution therefor against the goods, effects, and credits, of the said Perkins in the hands and possession of the said Parker, his trustee, as aforesaid; all which, by the record of the process and judgment aforesaid, in the same Court of Common Pleas remaining, (an authenticated copy whereof is here in Court to be produced,) appears, which judgment yet remains in full force, unreversed, unsatisfied, and without being in any manner annulled; all which, &c. Wherefore he prays judgment, &c. Ja. Sullivan.</p> <p>The plaintiff replied, that prior to the suing out of the writ mentioned in said plea, in favor of the said M. S. against him, the said Perkins, and the service thereof on the said Parker, as trustee and factor of said Perkins, to wit, on the 29th May, 1800, at T., in said county of Bristol, the note set forth in the plaintiff’s declaration in this case, and the contents thereof were, by the said Perkins, by a certain writing under his hand of that date, assigned and transferred to Christopher Deane, of Plainfield, in the county of Windham, in the state of Connecticut, for value received of the said Deane, and in and by said assignment, the said Perkins authorized and empowered the said Deane, in his own name, or in the name of said Perkins, to ask, demand, sue for, recover, and receive of the said Parker, the contents of said note for his, the said Deane’s, own use; and that the said Deane afterwards, to wit, on the same day, at T. aforesaid, gave the said Parker notice of the assignment aforesaid, and requested him to pay the contents of said note to him, the said Deane; and that the writ in this action was sued out by the said Deane, in the name of the said Perkins, by virtue of the assignment and power aforesaid, and that the present action is carried on * by the said Deane for his own use, by virtue thereof, all which, &c. Wherefore he prays judgment.</p> <p> N. Tillinghast. </p> <p>General demurrer and joinder.</p>

This was an action of trespass on the case for diverting watei ■ from the plaintiff’s mill. Held: that as Mr Robbins was not interested in the event of this suit, it could not avail.

<p>This was a real action entered at the last term of this Court, when the tenant appeared, and had liberty to imparl till the present term, that she might vouch ° A. and B. to warrant the premises to her.</p> <p>Tiie summoneas ad warrantizandum was duly issued, and returned on the first day of the present term, when the vouchers were called, but made default. And now, on the second day of the term, the tenant’s counsel moved for leave to plead double; which was objected to by the counsel for the demandant; the motion not being, aceording'to the rule of the Court, made in season. The rule is, “ that no motion for double pleading shall be made to the Court after the first day of the term in which the action is en- [ * 95 ] tered.” To this it was * answered that the tenant had a right to expect that her warrantors would appear on the summons, and take on them the defence of the action ; that there had been no delay in issuing or in serving and returning the summons, and that the motion had been made as soon after the default of the warrantors, as, from the situation and circumstances of the business before the Court, it was in the power of the counsel to make it.</p>

The defendant, John Battis, a negro of about twenty years of age, was indicted for the murder of one Salome Talbot, a while girl of the age of thirteen years, on the twenty-eighth day of Tune last.

I'his was an action of trespass. The defendant was attached to answer to D. H., of W., in the county of W., and state of Connecticut; for that whereas the defendant at R., in said county, &c. * The defendant demurred generally; and the plaintiff [ * 97 ] joined in demurrer.

<p>On a petition for review, the petitioner is confined to the allegations in his petition.</p>

<p>Practice. — Rule to show cause why a writ of review should not be quashed, granted upon the affidavit of the party stating that he had no notice of the application for the writ.</p>

This was an action of assumpsit. The declaration contained five counts. * 1. Indebitatus assumpsit on an account annexed to [ * 102 ] the writ for making 98 gun-locks, which were charged at 147 dollars. 2. Quantum valebant for 98 gun-locks delivered by the plaintiff to the defendants. 3. Quantum valebant for 98 gun-locks made and delivered. 4. Indebitatus assumpsit for money had and received.

This was an appeal from a decree of the judge of probate for this county. The contest in this case was relative to several items of charge in the account of the administrator which had been allowed by the judge; among which were divers charges for moneys paid to a collector of taxes assessed on the estate of the intestate.

This was a real action, in which David Fales, Jun. demanded against Zebadiah, Thompson eighty acres of land,- situate, &c. The demandant declared upon his own seisin within thirty years, and a disseisin by the tenant within that time. The tenant had pleaded the general issue, which was joined ; but his counsel now moved to have liberty to plead non-tenure to all but 60 acres, and as to those 60 acres, the general issue.

<p>Judgment arrested after the defendant had pleaded guilty, it not appearing by the indictment that any thing more was charged than a breach of contract, and for which the only remedy was by action.</p>

<p>The prisoner was indicted for the murder of his wife. On Thursday, the third day of this term, he was set to the bar, and the indictment was read to him. Upon being asked the usual question, whether he was guilty or not guilty, the prisoner, in a voice scarcely audible, said he did not know what to say ; that it appeared to him she was still alive ; it seemed to him he had seen her since. The Court told him he must say guilty or not guilty ; upon which he made nearly the same answer as before. After a few minutes had elapsed, the Court asked him whether he was now disposed to plead, and told him he was charged with killing his wife. He again answered as he had before, and added that- he was guilty of what he had done, but did not know what he had done. The Court then informed him that he should have time till the next day to consider of the charge, and remanded him to prison. On the next day, he was again set to the bar, and arraigned on the indictment; when he said that he was guilty of all he had done, he must confess; but no direct or positive answer could be obtained from him.</p>

<p>Administrator cannot join with surviving promisee in prosecuting an action; it must be prosecuted by the survivor only. A defendant who relies upon the statute of another state must, in his plea in bar, set it out, that the Court may see whether the proceedings were warranted by the statute or not, and the general allegation that the. proceedings were pursuant to the statute is not sufficient Practice. Amendment allowed after argument upon demurrer.</p>

<p>An action for money had and received will not lie for a surety who has paid the debt of his principal; one for money laid out and expended will. A surety may recover of his principal, although the money was paid for him upon a usurious contract made by the principal, and which he might have avoided.</p>

<p>The defendant was indicted for forgery, by altering a word in the condition of a bond from six to eight. He pleaded not guilty.</p> <p>It was alleged in the indictment that the bond was dated the I5ih day of October, 1802. The bond produced had the same date iu the penal part, and in the usual place ; at the close of the condition to the instrument, immediately above the signature of the obligor, there was written, “ Given under my hand and seal this 25th day of October, 1802.”</p>

<p>Trespass will not lie for a consequential jury.</p>

<p>This was an appeal from a decree of the judge of probate for this county.</p> <p>The appellants were the grandchildren of Nathaniel Foster, deceased, who, on the 7th day of May, 1791, made his last will and testament, at which time the mother of the appellants,-Terry, and daughter of the testator, was dead; and the appellants claimed, before the judge of probate, to have an equal proportion assigned them in the estate of their grandfather, the testator, as though he had died intestate, alleging that they had no legacy given them in the will. The judge was of opinion that they had a legacy given them in the will, and decreed that they were not entitled to come in for such proportion of their grand father’s * estate as they claimed, but that the will should stand.</p> <p>The appellees were the sons and the principal devisees of the testator, and to whom he gave all his real and most of his personal estate; they being appointed his executors, and charged with the payment of divers small legacies to his children and grandchildren.</p> <p>After the usual preamble, the testator says, “ As to my temporal estate, which God hath given me, after all my just debts shall be paid by my executors, whom I shall hereafter name, I give as followeth.”</p> <p>He then devises his real estate to his two sons, the appellees; then follows a bequest to the children of his son John Foster, deceased, namely, to William Foster 20 dollars, to Peter Foster 12 dollars, to Elizabeth Denham, daughter to his son, deceased, 20 dollars. He next bequeaths to his daughter Mary Foster 15 dollars. Then fob lows the clause upon which the question in this case arose, and which is in the following words: — “ Item, I give to my daughter Mary Russell five dollars, and to my daughter Bushop five dollars, to my grandchildren of my daughter Terry’s, deceased, to be paid to them when the youngest of them come of age.”</p> <p>He next bequeaths to his daughter Martin 10 dollars. Then “ to his dear daughter Abigail Foster, who then lived with him, and had been a kind and tender nurse in his lonesome state of widowhood, night and day, in his long confinement,” divers articles specified, £30 in money, and the use of a part of his dwelling-house and garden, and an annuity of twenty dollars while she remained unmarried, &c.</p> <p>He then gives to his two sons, the appellees, his farming tools, and the stock on his farm, &c., to pay debts and legacies.</p> <p>* Finally, he appoints them his executors and residuary legatees; and concludes by saying that “ as he has now done what he thinks absolutely necessary for the good of his dear family, and for the peace and welfare of their temporal good and happiness, he recommends to them, as their dying father, to live in love and peace, &c. &c.”</p>

<p>Where an action is brought on a statute to recover double damages, the jury are to assess single damages, and the Court double them. What is reasonable notice to the inhabitants of a town of a defect m a bridge or highway.</p>

<p>The -rife of a person who has been absent six or seven years in the East Indies, cannot be considered as a feme sole. A person stealing goods in another state who brings them into this state, may be indicted here for the larceny.</p>

<p>A plea in bar that the defendant has had judgment against him as trustee m an action upon the statute of foreign attachment, is good ; although no execution has issued on such judgment, and although it does not appear that the trustee has paid on the judgment any part of the sum he had in his hands as trustee. The law will protect the equitable interest of the assignee of a chose in action, but the assignment must be for an adequate consideration, and so appear by the pleadings. Qucere whether such assignment must not be by deed, even though the thing assigned is evidenced by writing merely.</p>

<p>Assumpsit on a promissory note to the plaintiff’s testator.</p> <p>The declaration stated that, whereas the said Ezra Weston, and one George Keith, Jun., who has since been declared a bankrupt, and received his certificate of discharge, pursuant to the statute of the- United States of America in such case made and provided, on-, at-, by their promissory note, «fee.</p> <p>Plea, that the defendant, with the said George, never promised, &c.</p> <p>*The note offered in evidence was as follows, viz., “For value received, I promise to pay Capt. Amos Rogers, or ordér, three hundred dollars, in six months from date, with interest until paid; as witness my hand. April 29, 1801.</p> <p> George Keith, Jun. </p> <p>Ezra Weston, surety.”</p>

<p>Quaere, whether the pendency of a rule of reference entered into before a justice of the peace is pleadable in abatement of an action brought for the same cause.</p> <p>The justice who takes the acknowledgment of the parties to such rule cannot himself be one of the referees.</p>

<p>This was an action of trespass, quare clausum fregit, brought by the plaintiffs against Rogers, in which it was alleged that the defendant, on the 20th of July, 1800, and on divers days and times between that day and the 20th of August then next ensuing, broke and entered the close of the plaintiffs, (described and bounded,) and carried away their hay, &c.</p> <p>The defendant pleaded not guilty, reserving liberty to give any special matter in evidence, as though the same had been specially pleaded in justification; and the plaintiffs, by their agent, consenting to the reservation, joined the issue.</p> <p>*TJpon the trial, the jury found a verdict for the plaintiffs, and assessed damages at 100 dollars ; and there was judgment accordingly, and for costs.</p> <p>Rogers sued out his writ of review upon that judgment, which was duly served on the proprietors, and entered at a former term of this Court.</p> <p>Rogers had died since the last continuance, and the Attorney-General, (Sullivan,) on the first day of the present term, moved that his death might be suggested on the record, and that his administrator might come into court and take upon himself the defence of the action, by prosecuting the writ of review. The Court directed the suggestion to be entered, and took time to consider as to the other part of the motion. And on the second day of the term, Strong, J., said the Court were unanimously of opinion that the 3d sect, of the act passed Feb. 4, 1789, (stat. 1788, c. 47,) authorized the administrator to come in and defend this action; that is, to prosecute the writ of review.</p> <p>The Court inquired of the counsel for the defendant what was intended to be given in evidence under the reservation in the plea; the counsel answered nothing except soil and freehold in the defendant. This the Court said might always be given in evidence upon the plea of not guilty ; but as this was a review, in which, by the express words of the statute passed Feb. 26, 1787, (stat. 1786, c. 66,) the action is to be tried upon the issue originally joined between the parties, they could not interfere so as to direct any alteration in the pleadings. In this case, an old paper book purporting' to be the book of records of the proprietors, and containing minutes of their votes and proceedings from the year 1729 to 1756 both inclusive, was produced and offered in evidence by the counse. for the plaintiffs; to which it was objected that there was no evidence of its being their book of records, as no warrant from a justice of the peace for calling their * first meeting was produced, nor any such warrant entered or minuted in the book. The counsel for the plaintiffs then moved that a person, who, they said, was the present clerk of the proprietors, might be sworn as a witness to prove it to be their book of records; but it appearing that there had been no meetings of the proprietors from the year 1756 to 1783, in which year, as the plaintiffs’ counsel said, a meeting of the proprietors was called by a warrant from a justice of the peace, the former clerk being then dead, and which warrant they could not produce; the Court held there was no evidence that the person offered as a witness was in fact clerk of the proprietors; that the book kept since that time could not of itself evidence that fact; for, in a transaction so recent, the plaintiffs should be holden to produce the warrant from the justice.</p> <p>The plaintiffs then proved, by another witness, that, more than fifty years since, he was present at a meeting of the proprietors, at which time one Kendrick was clerk; and, upon examination of the book, it appearing that at that time a person of that name was clerk, the Court unanimously ruled that the appearance of the book, coupled with such evidence, was sufficient, and admitted it. They said that they would not, in a transaction which took place more than seventy years since, require the production of the warrant from a justice of the peace to prove the legality of the first proprietary meeting.</p> <p>As the plaintiffs could not prove any of their corporate acts since the year 1756, for want of the warrant of the justice for calling a meeting of the proprietors in the year 1783, they offered to prove, by the testimony of witnesses, that individuals claiming under the original proprietors, and who were actually proprietors, had entered into the locus in quo, and set out grass, &c., as evidence of * the possession of the corporation at the time of the trespass alleged.</p> <p>This species of evidence was objected to on the ground that the possession of a corporation must be proved by corporate acts; and therefore, to prove an entry by an individual, so as to make it enure to the benefit of the corporation, the plaintiffs must show by the records of the corporation, and cannot show it in any other way, that such individual was the agent of the corporation for that purpose. That the evidence offered would be proper and pertinent where tenants in common bring an action at common law tor an injury done to their possession, there could be no doubt; because the entry and possession of one is to be considered as the entry and possession of all the tenants in common. But in this case, the plaintiffs proceed under the statutes; they sue, in their corporate right, for an injury, as they allege, to their corporate possession, and consequently must prove that possession by corporate acts.</p>

<p>Although a deed be fraudulent as to creditors, yet it cannot be avoided by a creditor the consideration of whose claim is illegal.</p>

<p>Under the act for impounding cattle, a field-driver from whom neat-cattle are rescued cannot recover the penalty given in the 6th section of the act, it being confined to swine, horses, and sheep, as mentioned in the 2d section. The act of 26th February, 1800, (stat. 1799, c. 61,) has not extended the former act. Costs not allowed in error where judgment is reversed for error in law.</p>

<p>In this case, the counsel for the defendant, on the first day of this term, moved for a rule upon the plaintiff to show cause why the writ of review should not be quashed.</p> <p>It was stated in the motion, that the action in which the writ was granted was originally commenced in the Court of Common Pleas, in this county, by Clap against Joslyn, on a promissory note made by Joslyn, and payable to Clap; in which court there was a verdict and judgment for the defendant; that upon an appeal from that judgment to this Court, there was at the term thereof holden in this county on the fourth Tuesday of June, A. D. 1801, again a verdict and judgment for the defendant; that at the term of this Court holden in Suffolk in Feb. 1803, Clap was authorized by the Court (upon his petition to them, preferred at the term in this county, holden * previous to the term aforesaid in [ * 130 ] Suffolk, and which was continued nisi) to prosecute the present writ of review. This order of the Court for a review was obtained, as the defendant alleged in his motion for the rule above mentioned, without his ever having had notice of the application in Court for a review; which the defendant verified by his own affidavi*</p>

<p>Apprentice cannot be assigned by the master, he having a mere personal trust Parole evidence inadmissible to prove a right to the service of a servant, where the declaration states a title to the service by indenture. Guardians of the Marshpee Indians cannot bind the children of those people, except by indenture.</p>

<p>This was a real action, in which David Fales, Jun. demanden against Zebadiah Thompson eighty acres of land, situate, &c. The demandant declared upon his own seisin within thirty years, and a disseisin by the tenant within that time. The tenant had pleaded the general issue, which was joined ; but his counsel now moved to have liberty to plead non-tenure to all but 60 acres, and as to those 60 acres, the general issue. The demandant’s counsel objected, contending that the plea of non-tenure was taken away by the second-section of an act passed Feb. 27, 1796, (stat. 1795, c. 75,) relating to disclaimer.</p>

<p>Judgment arrested after the defendant had pleaded guilty, it not appearing by the indictment that any thing more was charged than a breach of contract, and for which the only remedy was by action.</p>

<p>Practice. — A defendant being an officer, who pleads the general issue, and files a brief statement in % defence, has the right of opening and closing. Qu. Such statement must specify substantially the facts intended to be proved, and in such form as to enable the adverse party to meet them at the trial The records of a parish as to grants of money may be contradicted, and falsified by parole evidence. Parishes have no authority to grant moneys, except foe settling ministers and building houses of public worship, and for purposes necessarily connected with those objects.</p>

<p>An action for money had and received will not lie for a surety who has paid the debt of his principal; one for money laid out and expended will. A surety may recover of his principal, although the money was paid for him upon a usurious contract made by the principal, and which he might have avoided.</p>

<p>The defendant was indicted for forgery, by altering a word in the condition of a bond from six to eight. He pleaded not guilty.</p> <p>It was alleged in the indictment that the bond was dated the 15th day of October, 1802. The bond produced had the same date in the penal part, and in the usual place ; at the close of the condition to the instrument, immediately above the signature of the obligor, there was written, “ Given under my hand and seal this 25th day of October, 1802.”</p>

This was an action of covenant, in which the declaration was, ii* substance, as follows, viz.:— Oliver Parker, Peter Gilson, and Nathaniel Blanchard, were attached to answer to Joel Lawrence, in a plea of covenant broken, for that the said [defendants], at--, on the 18th day of March, 1799, in consideration that the plaintiff had procured Joseph Moors and Isaac Lawrence to give said Parker security to pay him 100 dollars on or before the first day of April then next, by…

<p>In this case, “ the defendant was attached to answer to the plaintiff in a plea of trespass, for the plaintiffs, at K., on the day of being owners and proprietors of a certain schooner called the Charles, of the burden of-, then and there, on the said day, despatched the said vessel, duly fitted and equipped, under the command of one Charles Adams, master of said vessel, on a voyage for P., in order to bring back a cargo of lumber from said P., and while said vessel was so proceeding on her voyage aforesaid, on the day of aforesaid, about three leagues from the land, to wit, at Plymouth aforesaid, the defendant being then and there sailing in a certain boat or vessel, the name of which is to the plaintiffs unknown, then and there, with force and arms, made an assault on the aforesaid vessel called the Charles, owned by the plaintiffs as aforesaid, and fired and discharged at the said vessel, and master and crew therein, a musket or fire-arm loaded with gunpowder and lead, and with the same grievously and dangerously wounded the said Charles Adams, master of the plaintiffs’ vessel, so that, for the preservation of the life of said Charles Adams, the crew on board the plaintiffs’ vessel were compelled to return therein to K. aforesaid, and the plaintiffs’ intended voyage aforesaid has been broken up and defeated, and the plaintiffs have thereby lost all the freight-money which they might have earned and gained in the intended voyage aforesaid, together with the passage-money for sundry passengers, who had then and there taken and engaged a passage to P. in said vessel; and other outrages the defendant then and * there committed on the plaintiffs’ [ * 146 ] vessel, against the peace, &c.”</p>

<p>This was an appeal from a decree of the judge of probate for this county.</p> <p>The appellants were the grandchildren of Nathaniel Foster, deceased, who, on the 7th day of May, 1791, made his last will and testament, at which time the mother of the appellants,- Terry, and daughter of the testator, was dead; and the appellants claimed, before the judge of probate, to have an equal proportion assigned them in the estate of their grandfather, the testator, as though he had died intestate, alleging that they had no legacy given them in the will. The judge was of opinion that they had a legacy given them in the will, and decreed that they were not entitled to come in for such proportion of their grand f * 147 ] father’s * estate as they claimed, but that the will should stand.</p> <p>The appellees were the sons and the principal devisees of the testator, and to whom he gave all his ■ real and most of his personal estate; they being appointed his executors, and charged with the payment of divers small legacies to his children and grandchildren.</p> <p>After the usual preamble, the testator says, “As to my temporal estate, which God hath given me, after all my just debts shall be paid by my executors, whom I shall hereafter name, I give as followeth.”</p> <p>He then devises his real estate to his two sons, the appellees; then follows a bequest to the children of his son John Foster, deceased, namely, to William Foster 20 dollars, to Peter Foster 12 dollars, to Elizabeth Denham, daughter to his son, deceased, 20 dollars. He next bequeaths to his daughter Mary Foster 15 dollars. Then follows the clause upon which the question in this case arose, and which is in the following words :—“ Item, I give to my daughter Mary Russell five dollars, and. to my daughter Bushop five dollars, to my grandchildren of my daughter Terry’s, deceased, to be paid to them when the youngest of them come of age.”</p> <p>He next bequeaths to his daughter Martin 10 dollars. Then “ to his dear daughter Abigail Foster, who then lived with him, and had been a kind and tender nurse in his lonesome state of widowhood, night and day, in his long confinement,” divers articles specified, £30 in money, and the use of a part of his dwelling-house and garden, and an annuity of twenty dollars while she remained unmarried, &c.</p> <p>He then gives to his two sons, the appellees, his farming tools, and the stock on his farm, &c., to pay debts and legacies.</p> <p>* Finally, he appoints them his executors and residuary [ * 148 J legatees ; and concludes by saying that “ as he has now done what he thinks absolutely necessary for the good of his dear family, and for the peace and welfare of their temporal good and happiness, he recommends to them, as their dying father, to live in love and peace, &c. &c.”</p>

<p>This was an action of assum/psit upon two promissory notes, made by the defendant to the plaintiff, dated the 16th day of January, 1798, one of which was payable the first day of March, and the other the first day of April next after the date; and the declaration alleged that the notes were made at A., in this county.</p> <p>The defendant pleaded in bar that, at the time of making the notes declared on, and from thence until the first day of August, in the same year, he was an inhabitant of the state of Connecticut, and that, upon his petition to the legislature of that state, bearing date the 11th day of April, 1798, the said legislature did, at their session begun and holden the second Tuesday of May, in the same year, pass a special resolve that, if the defendant should, on or before the first day of August then next, deliver up, upon oath, to A, B, and C, trustees in the said resolve named, all his property (except such articles of clothing and household furniture as in the opinion of said trustees should be necessary for the defendant and his family) in trust, for the benefit of the defendant’s creditors, in proportion to their respective demands, he, the said * defendant, should be and- thereby was discharged from all debts due and owing from him at the date of his said petition ; that the said trustees were thereby directed, as soon as it could conveniently be done, and as soon as the defendant should have delivered and conveyed to them as aforesaid his estate, (they being first qualified by oath,) to give public notice, for three weeks successively, in certain newspapers (mentioned) printed in that state, in the state of Massachusetts, and in the city of New York, of their appointment as aforesaid, and that the defendant had conveyed to them his estate as aforesaid; and, as soon as said trustees should have received said estate, disposed of, and received the money for the same, they should, in the newspapers aforesaid, give public notice thereof, and appoint a time and place at which they would attend upon the creditors to adjust their respective demands upon the defendant, and to pay to them their respective proportion of such money, &c. The plea then averred that the trustees accepted, and • were qualified, &c., and that the defendant afterwards, on the 3d day of May, in the same year, at Hartford, in the state of Connect icut, viz., at C., in the county of Middlesex aforesaid, did assign on oath all his property, as required by said resolve, to the said trustees; and concluded with a verification.</p> <p>There was a replication to the plea, a demurrer to the replication, and joinder in demurrer.</p>

<p>The appellant, Anna Dana, was the executrix of the last will and testament of Samuel Dana, who was formerly the executor of the last will and testament of John Bulkeley, Jun.; and the appellee, Abel Prescott, was the administrator, de bonis non, with the will annexed, of said Bulkeley. At the Probate Court in this county, in October, 1799, the third account of Samuel Dana, (then deceased,) as he was executor of said Bulkeley, was presented for settlement and allowance by Anna Dana, executrix of Samuel Dana; and the heirs at law of said Bulkeley, and others concerned, having been duly notified to appear, the appellee, administrator as aforesaid, and one of the legatees in the will of Bulkeley, for himself and divers other of the legatees in the same will named, appeared and objected to the allowance of the account exhibited by the appellant; “ where upon the said Anna, for the accountant, and said Abel, who is adversely interested as aforesaid, refer the settlement of said account, and all demands which said Samuel * might have had, as executor, upon the estate of said Bulkeley for moneys paid or service done — and the said Abel all claim he might have had upon said Samuel, deceased, as executor, for any estate of said Bulkeley, which he ought still to account for, to the award, &c of referees [named.] ”</p> <p>The referees reported that there was due from the estate of Bulkeley to the estate of S. Dana, $8 and 22 cents, which appeared by their report to be thus made out, viz.:—</p> <p>They charged the accountant with Samuel Dana’s note to Bulkeley, $36 42</p> <p>And also by moneys received by him for debts and sales of land, &c., 725 2</p> <p>- $761 44</p> <p>They allowed the accountant the balance of his last administration account, 757 49</p> <p>And divers sums since paid by him as executor, 12 17</p> <p>$769 66</p> <p>Which left a balance of 8 dollars 22 cents, as above stated. The report of the referees was accepted by the judge of probate, and his decree made in conformity thereto; from which decree, Anna Dana, the executrix, appealed, and filed her reasons of appeal, of which only the two following were material, viz., First, the said account appears to be founded upon a report of certain referees, and to be a part of the same, when there is no law authorizing the submission of an administration account to referees, nor had the referees any jurisdiction thereof; and, secondly, the decree upon said account appears to have been wholly founded upon the report of said referees, and not * upon the investigation, adjustment, and allowance thereof by the judge, as by law it ought to have been.</p>

<p>Where an action is brought on a statute to recover double damages, the jury are to assess single damages, and the Court double them. What is reasonable notice to the inhabitants of a town of a defect in a bridge or highway.</p>

The defendant was indicted for forging a thirty-dollar bill of the Bevetly bank, and for uttering the same. In both counts, the bill was laid to be of the tenor following, viz., [and set out the bill.] The defendant pleaded not guilty.

<p>Administration bond does not oblige tire administrator to inventory real estate Court cannot compel the execution of a trust. Real estate of a deceased person not inventoried by his executor or administrator, may be attached and taken in execution by the creditors. The Court will not inquire as to errors in fact which are not assigned in the reasons of appeal from a decree of the judge of probate.</p>

<p>Collateral undertaking.</p>

This was an action of trespass, quare clausum fregit, brought by the plaintiffs against Rogers, in which it was alleged that the defendant, on the 20th of July, 1800, and on divers days, and times between that day and the 20th of August then next ensuing, broke and entered the close of the plaintiffs, (described and bounded,) and carried away their hay, &c. The defendant pleaded not guilty, reserving liberty to give any special matter in evidence, as though the same had been…

<p>This was an action of trover, in which there was a plea in abatement, stating, in substance, that, previous to the commencement of the action, the parties had entered into a rule of reference, before a justice of the peace, pursuant to the statute, in which the demand now sued for was submitted to the referees in the same rule, which was now pending before them, &c.</p> <p>To this plea there was a replication, a general demurrer thereto, and joinder in demurrer.</p> <p>It was suggested by Parsons, as amicus curice, that it appeared by the plea that one of the referees named in the rule was the justice himself before whom the rule had been entered into and acknowledged ; whereupon the Court said there must be judgment of respondeat ouster; that it had been frequently decided that the justice who takes the acknowledgment of the parties to the rule of reference, could not be one of the referees.</p>

<p>A public agent, contracting as such, is not personally liable. Costs not allow ed upon reversal of judgment, when judgment below ought to have been arrested.</p>

This was a real action, in which Alexander demanded divers parcels of land. He declared upon his own seisin within 30 years, and the disseisin of the tenant within that time.

<p>A party objecting to a witness cannot examine him on the voir dire after an attempt to prove his interest otherwise. Estoppel: A deed which on the face of it purports to be a defeasance, and to be executed at the same time with the other, estops both parties to say the contrary. The Court will effectuate the intention of the parties to a deed, if it can be done consistently with the rules of law. A deed in which there were no words of grant in the premises held sufficient to pass a fee from the words used in other parts of the deed.</p>

Error from a judgment of the Court of Common Pleas in this county, rendered the third * Tuesday of [ * 168 J September last.

<p>Apprentice cannot be assigned by the master, he having a mere personal trust. Parole evidence inadmissible to prove a right to the service of a servant, where the declaration states a title to the service by indenture. Guardians of the Marshpee Indians cannot bind the children of those people, except by indenture.</p>

<p>The 30 cents taken by officers for levying executions, in addition to the poundage, is not authorized by the statute. Semb. But where it has been customary to take it, the demand and receipt of it by the officer is not, of itself, evidence of a corrupt intention.</p>

<p>Petition for leave to enter an action appealed from the Court of Common Pleas to the last term of this Court, in this county, which, as was stated in the petition, was, by accident and mistake, not entered at the proper term.</p>

<p>Trespass for breaking and entering the close of the plaintiffs in Charlestown, on and adjoining to Charles River there, and cutting down piers, &c., by the plaintiffs therein erected.</p> <p>Plea, (with a reservation to give any special matter in evidence,} the general issue, which (consenting to the reservation) was joined; and there was also filed in the case an agreement of the parties that either of the defendants might give in evidence any special matter which might have been pleaded in justification.</p> <p>The plaintiffs proved their title and possession to a tract of land in Charlestown, adjoining to Charles River there, in which the tide ebbs and flows; and that the piers alleged in the declaration to have been destroyed by the defendants, were erected by the plaintiffs in the close aforesaid, between high and low-water marks, and were cut down by the defendants.</p>

Assumpsit on a promissory note, dated April 13, 1789, for the sum of $ 100, payable on demand, with interest, made by the defendant to the testator.

<p>Quiere, whether an administrator can, under the general issue, give In evidence the insolvency of the estate of his intestate. The Court will not grant a continuance to an administrator, defendant, who has been grossly negligent in bringing his administration-account to :a close.</p>

<p>The Court will not grant a new trial where substantial justice has been done by the verdict, nor where the party has a right to review, unless he will relinquish such right. '</p>

<p>This was an action of trespass for taking divers goods, &c., specified in the declaration, on the 5th day of July, 1803.</p> <p>The action came into this Court by appeal from the judgment of the Court of Common Pleas. In that court, the defendants pleaded as follows, viz.:—</p> <p>And the defendants come into court, and defend, when, &c., and alleging that they are now, and, at the time when the trespass in the plaintiff’s writ and declaration is alleged to have been committed, were parish assessors, duly and legally appointed and qualified to act in said office, and that the supposed trespass aforesaid respects the conduct and doings of them, the defendants, in their said office, as assessors aforesaid, and that the said defendants, by leave of the court, and by direction of court, now here in court file, in said cause, a brief .statement of the special matter of their defence, for plea, agreeable to the statute in such cases made and provided, entitled, “An act for giving liberty to plead the general issue, and give the special matter in evidence in certain cases,’" passed the twenty-fifth day of February, A. D., one thousand seven hundred and ninety-three, (stat. 1792, c. 41,) say they are not guilty in manner and form as the plaintiff has declared against them in his said writ and declaration, and of this they put themselves on the country.</p> <p>The plaintiff joined the issue, thus, viz.,</p> <p>And the said Benjamin Bangs, protesting that the defendants were not parish officers, nor assessors, nor acting in an official capacity at the time they committed the trespass aforesaid, and protesting that the said Bangs is not an inhabitant in the town or parish of Brewster, as alleged by the defendants in their plea and statement attending the same, and reserving to himself equal [ * 182 ] * liberty to give special matter- in evidence as the defendants claim, for replication likewise puts himself on the country.</p> <p>This Court directed the pleadings to be struck out, and a proper general issue to be entered. The counsel for the parties accordingly had the same entered as follows, viz., And now (the parties in this action by agreement waiving the pleadings made at the Court of Common Pleas) the said defendants come and defend the force and injury when, &c., and filing in this case the same brief statement that they did at the Court of Common Pleas, agreeable to the statute in such case made and provided, for plea say they are not guilty in manner and form as the plaintiff has declared against them in his said writ and declaration, and thereof put them selves on the country—and the plaintiff’ likewise.</p> <p>The brief statement filed in the case was as follows, viz., The said defendants say they now are, and at the time said supposed trespass is alleged to have been committed in the writ and declaration of the said plaintiff, they were, the parish assessors, duly and legally appointed and qualified to act in their said office, in and for the Congregational parish in the town of Brewster; and that they, on the 17th day of March, in the year 1803, made a tax in a legal and proper manner, by and in which tax the plaintiff was duly assessed the sum of 22 dollars and 44 cents, as in and by said tax is expressed; and afterwards, viz., on the said 17th day of March, the said defendants made and executed legally their warrant directed to jDavid Foster, then and now a collector of taxes in said parish, then duly qualified to execute said warrant; that the plaintiff was one of the inhabitants of said parish, and assessed in said tax as aforesaid, and that the plaintiff refused to pay his said tax; and to pay and discharge the same, the said Foster, by * virtue of said warrant, took and sold, in a legal man- [ * 183 ] ner, the said articles mentioned in the writ and declaration of the plaintiff, and from that sale paid and discharged said tax.</p> <p>A question was made who was to open and close.</p>

<p>This action was commenced on the 8th day of Feb. 1802, and was for the use and occupation, by the defendant, of a dwelling-house, which belonged to the testator, from April, 1782, to October, 1801, alleged to be reasonably worth 487 dollars.</p> <p>Pleas — First, the general issue, and secondly, the statute of limitations.</p>

<p>This was a libel for a divorce from the bonds of matrimony, for the cause of adultery, alleged *to have been committed by the husband. The libellee did not appear.</p>

<p>Pleadings in review cannot be altered without consent. Heirs of a warrantor competent witnesses to prove the boundaries of land, if they have a release from the grantor. Qu.</p>

<p>This was an indictment against the defendants, charging that they feloniously broke and entered the dwelling-house of John Colby, and feloniously stole therefrom one chest of the value of two dollars, thirty Spanish milled dollars, ten French crowns, and one hundred and sixty dollars in other cash, consisting of quarters, eighths, and sixteenths of a dollar, of the goods and chattels of the said John Colby, &c., against the form ofx the statute, &c.</p> <p>The defendants pleaded not guilty. The jury acquitted them of the breaking, &c., and found them guilty of the simple larceny only.</p> <p>Jackson moved in arrest of judgment, on the ground that the value of the money stolen ought to have been alleged in the indictment.</p> <p>* He said that, if the coins mentioned in the indictment were, by law, made current as money, and a legal tender for the payment of debts, it might, perhaps, be unnecessary to aver the value in the indictment; but it was clear, by the act of congress, passed February 9, 1793, that French crowns were not legal current money, and had ceased to be a legal tender; and although in the act there is an exception of Spanish milled dollars, and parts of such dollars, which, under certain circumstances, are still a legal tender, yet the act is express that no foreign coin which had been, or might be, issued subsequent to the first day of January, in the year 1792, should be a tender, until samples thereof should have been found, by assay, at the mint of the United States, to be conformable to the standard required by the act, and proclamation thereof made by the president of the United States; non constat that the other coins mentioned were issued previous to 1792; and therefore the value of the whole, as well of the Spanish milled dollars, and parts of a dollar, as of the French crowns, ought to have been averred.</p>

<p>This was an action of covenant. The declaration stated that the defendant, on the-day of-, at-, by his deed of that date, duly executed, acknowledged, and registered, in Court to be produced, did, as administrator of the goods and estate of T. T., deceased, with his last will and testament annexed, in consideration of ] 050 dollars paid by the plaintiff, bargain and sell a certain tract of land, (described,,) to have and to hold the same to the plaintiff, his heirs and assigns, to his and their use forever; and that the defendant, by the same deed, did, among other things, covenant to and with the plaintiff that, at the time of executing the deed aforesaid, he, * the defendant, had full right, power, and authority to convey all the interest and right which the said T. T. had, at his decease, in the land aforesaid, to the plaintiff and his heirs, to his and their use; and that he had pursued the directions of the law in the sale of the same, and that the plaintiff, his heirs and assigns, should, by force of said deed, hold the same against the claims of all persons claiming the same under the said T. T., but not against any other claims. Breach alleged as to all the above covenants, and in the words of the same.</p> <p>The defendant pleaded in bar, that, on the-day of-, the said T. T., at-, was seised of the tenements aforesaid, with the appurtenances, in his own demesne, in fee-simple, and that, being so seised, he then and there made his last will and testament in writing, duly executed, and therein appointed one E. R., executor of the same will; that the said T. T., thereafterwards, viz., on the —:— day of-, died so seised of the lands, &c., and afterwards, at a probate court, holden at-, on the-day of --, before the honorable S. H., Esq., judge of the same court, the said will was duly proved, approved, and allowed; and the said E. R., appointed executor as aforesaid, then and there, in the said court, refused to accept of the said appointment, and to execute the said will; whereupon administration of the goods and estate of the said T. T., with his will annexed, was then and there, in the said court, by the said judge, committed to him, the said E. M., the defendant, who then and there accepted the said trust, and gave bonds to the said judge, with two sufficient sureties, conditioned for his, the said E. M.’s, faithful administration of the said goods and estate of the said T. T., according to the form by law in that behalf provided; all which, by the records thereof in said Probate Court remaining, appears. And the * said E. M. further says, that the personal estate which was of the said T. T., at the time of his death, was insufficient to pay all the debts which he then owed, by a large sum, viz., the sum of 5880 dollars; wherefore, at a Court of Common Pleas, holden at-, upon the petition of the said E. M., showing the said insufficiency, it was ordered by the same court that the said E. M. be empowered to sell, and to make and execute good, sufficient deed or deeds to convey so much of the real estate of the said T. T., deceased, as should amount to the sum of 5900 dollars, for the payment of the just debts of said deceased, and incidental charges, the said E. M. to be under oath, as the law directs, and to give public notice of the time and place of sale, by causing a notification thereof to be published three weeks successively in the Newburyportpaper, and to account for the proceeds of said sale with the judge of probate of the said county, as by the record of the said petition and order in the same Court of Common Pleas remaining appears. And the said E. M. further says, that afterwards, and before the fixing of the time and place of sale hereinafter mentioned, viz., at-, on the 15th day of April, in the same year, he made oath before JST. P., Esq., a justice of the peace of the said county, duly commissioned and qualified to execute that office, that, in disposing of the estate lately belonging to the said T. T., deceased, he, the said E. M., would use his best skill and judgment in fixing on the time and place of sale, and that he would exert his utmost endeavors to dispose of the same in such manner as would produce the greatest advantage to all persons interested therein, and that without any sinister views whatever; (a) a certificate of which oath, under the hand of the said justice, he, the said E. M., * afterwards, at-, on the-day of-, returned to the said judge of probate. And the said E. M. further says, that afterwards, viz., on the-day of A pril aforesaid, at-, he, by virtue of the order aforesaid, proposed to sell the tenements aforesaid at public auction, for the payment of the just debts of the said deceased, and fixed on the 9th of May then next, at ten of the clock in the forenoon, for the time of selling the same as aforesaid, and the sale to be on the premises; and then and there caused a notification thereof to be published in the New bury port paper, called the Newbury port Herald, which toas published on the 16th day of April aforesaid; and further caused the same notification to be again published in the same paper, on the 23d day of the same April; and further caused the same notification to be again published in the same paper, on the 30th day of the same April; and, further caused the same notification to be again published in the same paper, on the 1th day of May then next. And the said E. M. further says, that, on the ninth day of the same May, at ten of the clock in the forenoon, on the premises, he caused the same to be sold at public auction, and the same were then and there struck off to the plaintiff, for the sum of 1050 dollars, that being the highest sum offered for the same; whereupon he, the said E. M., thereafterwards, on the 13th day of the same May, executed the deed mentioned m the plaintiff’s -declaration, as he well and lawfully might; and the said plaintiff, then and there, by force of the said deed, entered into the said tene ments aforesaid, with the appurtenances, and became seised thereof in his own demesne in fee-simple, and still quietly and peaceably holds the same as aforesaid ; and all this the said E. M. is ready to verify. Wherefore, &c. T. Parsons. To this plea, the plaintiff, protesting that he, by virtue of said deed, did not become seised of *the premises in his own demesne in fee-simple, and. that he does not quietly and peaceably hold the same, demurred generally. And the defendant joined in demurrer.</p>

This was an action of covenant, in which the declaration was, in substance, as follows, viz.:— Oliver Parker, Peter Gilson, and Nathaniel Blanchard, were at tached to answer to Joel Lawrence, in a plea of covenant broken, for that the said [defendants], at--, on the 18th day of March, 1799, in consideration that the plaintiff had procured Joseph Moors and Isaac Lawrence to give said Parker security to pay him 100 dollars on or before the first day of April then next, by…

This was an action demanding a certain tract of land [described;] and the declaration stated that, on the 25th day of May, in the year 1799, one James O'Neil was seised of the demanded premises in his demesne as of fee, and being so seised, *at -, on the same day, by his deed of mortgage of that date, duly executed, acknowledged, and recorded, (proferí in Cur.) for a valuable consideration therein mentioned, conveyed the same to the demandant in fee and in mortgage, whereby…

<p>An order to give notice by publishing in a newspaper three weeks successively is complied with by publishing in such paper in three successive weeks, although there be not an interval of a week between either the first and second, or second and third publications.</p>

This was an appeal from a decree of the judge of probate estab» lishing a certain instrument as and for the last will and testament of Offin Boardman deceased. The appellants were heirs at law of the deceased. The appellee was also one of his heirs at law, and named executor and principal and residuary legatee in the instrument.

<p>Statutes of bankruptcy of one of the United States do not bind persons not inhabitants of that state unless the contract was there made.</p>

Assumpsit on a policy of insurance, for a total loss, which wax stated in the declaration to have happened, by the ship and cargo being attached, arrested, taken, detained, and carried away to Portsmouth, in Great Britain, by a British frigate. The cause was submitted to the Court upon the following state of facts, viz., That the defendants made and subscribed the policy of insurance described in the plaintiff’s declaration.

<p>Reference entered into before the judge of probate by an executor or administrator of any demand which the executor or administrator, as such, has against tie estate of the deceased, is void.</p>

This was an action of debt upon a judgment recovered by the plaintiff’s testator against the defendant for $50 and 32 cents damages, and $22 and 71 cents costs, at the term of this Court, in Worcester, September, 1800. The defendant pleaded in bar that the executor had released.

The defendant was indicted for forging a thirty-dollar bill of the Bevei ly bank, and for uttering the same. In both counts, the bill was laid to be of the tenor following, viz., [and set out the bill.] The defendant pleaded not guilty.

<p>Administration bond does not oblige the administrator to inventory real estate Court cannot compel the execution of a trust. Real estate of a deceased person not inventoried by his executor or administrator, may be attached and taken in execution by the creditors. The Court will not inquire as to errors in fact which are not assigned in the reasons of appeal from a decree of the judge of probate.</p>

<p>A public agent, contracting as such, is not personally liable. Costs not allow ed upon reversal of judgment, when judgment below ought to have been arrested.</p>

<p>An action pending against a bankrupt, at the time he obtained his certificate, for a demand which was or might have been proved under the commission, cannot afterwards be prosecuted to judgment, except in the two instances mentioned in the statute. Bail of a bankrupt are discharged, if not fixed previous to the certificate.</p>

<p>This was a real action, in which Bridge demanded 75 acres of land, lying in L., and declared that, on the 2d day of Dec. 1799, one Jonathan Bridge was seised of the demanded premises in fee, and on that day, by his deed of that date, conveyed the same to the demandant in fee, &c., and that, on the 1st day of April, 1802, the defendant entered and disseised the demandant, &c.</p> <p>Plea—the general issue.</p> <p>To prove his title, the counsel for the demandant offered in evidence the deed of Jonathan Bridge, mentioned in the declaration. Upon inspection, it appeared that the deed was in substance as follows, viz., “ Know all men, &c., that I, Jonathan Bridge, in consideration of 666 dollars and 66 cents to me paid by John Bridge, a certain tract of land in L., (describing it)—Habendum to John Bridge in fee—a covenant that he, Jonathan Bridge, [ * 220 ] * was seised of the granted premises in fee, and had good right, &c., to convey the same as aforesaid, and that he and his heirs would warrant and defend the said granted and bargained premises to the demandant, his heirs and assigns, against the lawful claims and demands of all persons.”</p>

<p>On the 13th day of June, 1800, the General Court passed the following resolve, viz. — “ Whereas, it hath been represented to the General Court that Elias Norberg, otherwise called Elias Newbury, formerly of Sweden, and a naturalized citizen of the United States of America, is now dead, intestate; that administration on his goods and effects, rights and credits, has been duly committed by the judge of probate for the county of Suffolk, to Ebenezer Dorr, of Boston, in the same county; that there is in the hands of said administrator a large sum of money, the estate of said intestate, to which no person has yet entitled himself as next of kin to said intestate, and that the same money, in defect of heirs of said intestate, doth and will belong to the commonwealth. Therefore, resolved, that the Attorney-General be, and hereby is, authorized and directed to take all due measures to obtain a decree of the said Probate Court, that the same money be paid to the treasurer of the commonwealth, in order that the same may be retained by the said treasurer, to and for the use of the commonwealth, until some person or persons shall be entitled to receive the same as next of kin of the said intestate, or in some other legal way and manner. And, also, that said Attorney-General cause such decree, when obtained, to be carried into effect.”</p> <p>The Attorney-General (Sullivan) appeared before the judge of probate, and prayed for a decree, pursuant to the resolve. On the 14th day of July, 1801, the judge accordingly decreed that the administrator should pay the balance of his administration account, that day rendered, amounting to the sum of $8824 12 cents, to the treasurer of the * commonwealth, to be disposed of in the manner provided by the resolve aforesaid.</p> <p>From this decree the administrator appealed to this Court. The cause (as I have been informed) was argued at a former term, by the Attorney-General for the commonwealth, and Dexter for the appellant. At this term, it was said, by the Attorney-General, that, in his opinion, the property belonged to the commonwealth; and as much so as real estate of an intestate dying without heirs does. The legislature, however, had not undertaken to decide that by the resolve, which only provided that it should be paid into the treasury, to be there kept for the heir, or whoever might show himself legally entitled. There was no reason for the opposition of the administrator to the decree; that his right of retaining extended to those cases only where there are heirs here. And that a foreigner claiming in this case ought to petition to the government for the money.</p>

<p>The certificate of a witness is usually conclusive on the Court in taxing costs for his travel and attendance ; and if the certificate be false, the remedy for the party injured is by action; but if the certificate .itself appears suspicious the Court will require an affidavit of the witness in explanation.</p>

This was an action on a promissory note, bearing date the 24th day of April, 1800, for the sum of $4122 68 cents, payable on demand; to which the defendant pleaded the. general issue. The cause was tried before Dana, C. J., at the last term in this county.

This case was an appeal from a judgment of the Court of Sessions, rendered upon an indictment against the defend- [ * 228 ] ant, which charged that he, * being a deputy sheriff under the sheriff of this county, on the-day of-, at -, and then and there having a writ of execution in his hands, committed to him to serve and execute according to the precept thereof, which writ was directed to the said sheriff or his deputy, and which was in favor of one F. B. against J. B., with…

<p>Practice.—The mistake or accident which prevented the entry of an appeal at the usual term, must be specified in a petition to enter the appeal at a subsequent term.</p>

<p>Trespass for breaking and entering the close of the plaintiffs in Charlestown, on and adjoining to Charles River there, and cutting' down piers, &c., by the plaintiffs therein erected.</p> <p>Plea, (with a reservation to give any special matter in evidence,) the general issue, which (consenting to the reservation) was joined ; and there was also filed in the case an agreement of the parties that either of the defendants might give in evidence any special matter which might have been pleaded in justification.</p> <p>The plaintiffs proved their title and possession to a tract of land in Charlestown, adjoining to Charles River there, hi which the tide ebbs and flows; and that the piers alleged in the declaration to hav.e been destroyed by the defendants, were erected by the plaintiffs in the close aforesaid, between high and low-water marks, and were cut down by the defendants.</p>

Assumpsit on a promissory note, dated April 13, 1789, for the sum of $>100, payable on demand, with interest, made by the defendant to the testator.

<p>This was an action of debt on a bond, bearing date the 3d day of November, 1797, in which the defendants were jointly and severally bound to the plaintiff in the penal sum of $5000; to which there was a condition, that whereas the said Harris and Clap had, on the day of the date of the bond, mutually chosen A, B, and C, to arbitrate, determine, and award, concerning the demands of said Clap against said Harris for the carpenter’s work done on his new house in Boston, and concerning other matters between the said parties, specially stated in writing and annexed to their agreement of reference by them respectively acknowledged the same day before S. B. Esq., a justice of the peace for Suffolk county; and, therefore,- that if said Clap, his executors, or administrators, for his and their parts, should, and did, well and truly abide and perform the final determination and award of. the aforesaid referees, or the major part of them, in all acts and things concerning the said demands submitted as aforesaid; and, further, if the said Clap should pay, or cause to be paid, such balance or sum of money as said referees should award, within one hundred and twenty days after the making of such award, unto him, said Harris, his executors, administrators, or assigns, with interest * there- . for after said one hundred and twenty days, then the said obligation to be void- — otherwise to be and remain in full force.</p> <p>Upon hearing^ the parties to the rule of reference, the referees awarded that Clap should pay to Harris the sum of $4618 62 cents, in full satisfaction of the demands submitted, which award was returned to and accepted by the Court of Common Pleas for this county at January term, 1798 ; and judgment there rendered that Harris recover against Clap that sum in damages ; and costs of suit. At the then next term of the Supreme Judicial Court hoitien at Boston in Feb. 1798, Clap petitioned this Court for a review of the cause, and the Court ordered the report to be recommitted to the same referees for their reconsideration ; one of whom refusing to sit again in the cause, the order was rendered ineffectual. Thereupon Clap) applied to the legislature, and obtained a resolve authorizing this Court to grant a review of the cause, if they thought proper. On a petition to the Court for the purpose of obtaining a review, entered several terms since, and continued to this term, it was determined that no review should be granted. Upon which the defendants confessed the forfeiture of the bond declared on ; and the question for the consideration of the Court was, what sum the plaintiff was entitled to recover against the defendants.</p> <p>For the plaintiff it was contended that he was entitled to recover the amount of the sum awarded, with the interest thereof after the expiration of one hundred and twenty days from the time of the acceptance of the award in the Court of Common Pleas. It is true the sum awarded with interest will exceed the amount of the penalty of the bond ; but this Court have in divers instances gone beyond the penalty — giving judgment for the penalty, in debt; and for the excess in the name of damages * for the detention of the debt. This has been frequently done also by the courts in England. 2 Term Rep. 388, Lord Lonsdale vs. Church, and the cases there cited. The case now before the Court is at common law, and the Court do not proceed in it under our own statute relative to penalties or forfeitures confessed; for although the defendants have confessed the forfeiture, yet they have not prayed to be heard in chancery. But if this be not so, yet as the Court are authorized by the statute to enter up judgment for what is due in equity and good conscience, they may go beyond the penalty, so far, at least, as to the amount of legal interest on it, which is sufficient, and more than sufficient, to cover the equitable demand of the plaintiff in this case. On the other hand, if the sum equitably due falls short of the penalty, the Court will reduce the penalty, and enter judgment for the sum only which is equitably due. The cases in which the courts have refused to go beyond the penalty are those of bonds conditioned for the performance of a collatera. act, in which the party had no rule, no certain measure by which he could determine what sum he ought actually to pay : that is not the present case ; for although, at the time of entering into the bond, it was uncertain what the award would be, yet long before the commencement of the present action, which was the 13th day of June, 1798, the award was made, what was before contingent had been made certain, and the defendants, as to their precise duty, were in the same situation as if the sum to be paid by them had been expressed in the condition of -the bond itself.</p> <p>For the defendants it was insisted that there had been no case in which a surety had been holden beyond the penalty; whether the condition was for the payment of a-sum of money, or for the performance of a collateral act. But in this case the award has *not been established and accepted by the Court until the present term, two'days since: if the plaintiff asks for interest, on the sum awarded, for those two days, the defendants do not contend against the allowance. There was no duty, no obligation on the surety, until the final acceptance .and establishment of the award by the decision in this Court — he has not been in fault — he had nothing to do with the applications for a review of the decision of the referees; all the proceedings relative to the subject, excepting in the present action, have been between Clap and Harris. At the moment it is determined that the award is binding, the forfeiture of the bond is confessed; and if Clap, the principal, ought to be holden to pay the sum awarded with interest, as contended for by the plaintiff’s counsel, it by no means follows that Whittemore, the surety, is also holden. It is indeed true that whatever judgment is entered in the present case must bind the surety as well as the principal, the action being against them jointly. But the plaintiff has a remedy for his whole claim; if he cannot obtain it in this action, he may bring an action of debt on the judgment which was rendered in the Court of Common Pleas, on the award, .and in that action he will recover against Clap whatever may remain due after deducting the sum recovered by this action on the bond. To that judgment the plaintiff must resort to recover the costs there adjudged to him; it not being pretended that those costs can be recovered in the present action. And by a statute of our own upon the subject, he will be entitled, in such action of debt, to recover interest both on the damages and costs of the former judgment.</p> <p>In reply it was said, as before, that the debt accrued by the acceptance of the award in the Court of Common Pleas; and at the expiration of 120 days from that time it was equally the duty of the * principal and surety to pay the sum awarded; and, therefore, in this action against them jointly, interest ought to be computed from that time; that the surety, as much so as the principal, was bound to the extent of the penalty of the bond; that the extent of the penalty .was the sum of it in debt, and interest at the rate of 6 per cent, for the detention.; that the surety was as fully answerable in equity and good conscience as the principal; that the proceedings to get rid of the award could not affect the rights of the plaintiff upon the bond ; that if, as is conceded, an action of debt may be brought on the judgment in the Common Pleas against Clap, and the whole amount thereof recovered of him, with interest; it follows, of course, that the award is to be considered as established by its acceptance in that Court — and if so, the bond was forfeited at the moment after 120 days had elapsed from the time it was so accepted. The proceedings in this Court have not been had by the plaintiff, for the acceptance and establishment of the award; by the acceptance in the court below, he was in possession of a good, valid award, and a judgment upon it. The proceedings have been had by Clap for the purpose of avoiding the award and judgment; and after all the delay which has been occasioned by the defendants, the parties are precisely in the situation they would have been liad no objection ever been made to the award, or any attempt made to vacate the judgment of the Common Pleas upon it.</p>

<p>This was an action of assumpsit for the use and occupation of certain real estate of the plaintiff’s wife, by the testator, Philemon Chandler, in his lifetime.</p> <p>The defendant pleaded the general issue, which was joined ; and Ward, for the defendant, stated the defence to be, that the estate of the deceased was insolvent; that the claim for which the present action was brought had been exhibited to the commissioners of insolvency, and by them rejected ; and that the plaintiff had not, within twenty days after the report of the commissioners, given notice at the probate office, and brought his action in due time. To show that the defence stated might be given in evidence under the general issue, he read the 9th section of the act of March 10, 1784, (sta-t. 1783, c. 38,) which provides “ that executors and administra tors shall not be compelled to plead specially to any action or suit at law, brought against them in their said capacity, but may, under the general issue, give any special matter in evidence.”</p>

Assumpsit for use and occupation. Genera! issue pleaded, and a verdict for the plaintiff at October term, 1803.

<p>This action was commenced on the 8th day of Feb. 1802, and was for the use and occupation, by the defendant, of a dwelling-house, which belonged to the testator, from April, 1782, to October, 1801, alleged to be reasonably worth 487 dollars.</p> <p>Pleas—First, the general issue, and secondly, the statute of limitations.</p>

This was a libel for a divorce from the bonds of mat- [ * 241 ] rimony, for the cause of adultery, alleged *to have been committed by the husband. The libellee did not appear.

<p>The Court of Probate will not determine upon a claim set up by deed, it being exclusively determinable at common law.</p>

<p>Pleadings in review cannot be altered without consent. Heirs of a warrantor competent witnesses to prove the boundaries of land, if they have a release from the grantor. Qu.</p>

This was a real action, commenced against William Pearson and William Tyler, by John Gordon and Hannah, his wife, in her right, Nathaniel Norcross, Elisha Norcross, Jonas Woods and Rebecca, his wife, in her right, the demandants, for four undivided seventh parts of one moiety of a certain cellar, or piece of land, in Boston, (describing the bounds of the cellar,) with the privileges and appurtenances.

This was an indictment against the defendants, charging that they feloniously broke and entered the dwelling-house of John Colby, and feloniously stole therefrom one chest of the value of two dollars, thirty Spanish milled dollars, ten French crowns, and one hundred and sixty dollars in other cash, consisting of quarters, eighths, and sixteenths of a dollar, of the goods and chattels of the said John Colby, &c., against the form of the statute, &c. The defendants pleaded not…

<p>Notifications of real estate by an executor or administrator, printed three weeks successively, are sufficient, although neither of the notifications was published thirty days previous to the sale.</p>

<p>Practice. — On the question of sanity of a testator, the party who is for establish ing the will opens and closes.</p>

This was an indictment which came into this Court by an appeal from a judgment rendered in the municipal Court for the town of Boston. On the plea of not guilty, the defendant had been convicted by the verdict of a jury in both the courts. The charge was for stealing from the person of A. B. “one bank-note, of the value of. ten dollars, of the goods and chattels of the said A. B,”

<p>This was an action demanding a certain tract of land [described;] and the declaration stated that, on the 25th day of May, in the year 1799, one James O'Neil was seised of the demanded [ * 257 ] premises in his demesne as of fee, and being so seised, *at -, on the same day, by his deed of mortgage of that date, duly executed, acknowledged, and recorded, (profert in Cur.) for a valuable consideration therein mentioned, conveyed the same to the demandant in fee and in mortgage, whereby the demandant became seised, &.C., in his demesne as of fee, and ought to hold the same; yet that the said Mary has since, viz., on, &c., without judgment or right, unlawfully entered, &c., disseised the demandant, and still holds him out, &c.</p> <p>Plea in bar. That, at the time w'hen the said deed of mortgage mentioned in the demandant’s declaration was executed, viz., at ->, on the-day of-, the said James O'Neil was an alien, and not within the allegiance of this commonwealth, or of any of the United States, but born in Ireland, within the United Kingdom of Great Britain and Ireland, and did at the time aforesaid, at-aforesaid, owe exclusive faith and allegiance to George the 3d, king of the said United Kingdom of Great Britain and Ireland; and this she is ready to verify, &c. Wherefore, &c.</p> <p>General demurrer and joinder.</p> <p>This action was brought in the county of York, for lands there situated, and was, as I have been informed, argued at the court holden in that county, in May last, at which were present, Dana, C. J.,' Strong, Sewall, and Thacher, justices. The three former were then of opinion that the plea in bar was bad. Thacher, J., then doubted, but is since satisfied, and is of the same opinion.</p>

<p>This was an application to sell real estate in the absence of the husband, (a) The entry was at a former term of the Court, and the order of notice was to be published in a newspaper [specified] three weeks successively. The notice was inserted in the paper pointed out, (it happening to be a paper which was issued from the press twice weekly,) first in the paper of. Saturday, June 30th, secondly, Saturday, July 7th, and thirdly, Wednesday, July 11th.</p> <p>It was made a question whether the order had been complied with, because there was not an interval of a week between the second and third publications.</p>

<p>This was a writ of error upon a judgment of the Court of Common Pleas in this county, rendered at their term in April, 1803.</p> <p>It appeared by the record of the judgment and process that an action was commenced by Wild against Blanchard on a promissory note, bearing date the 9th day of June, 1801, by which Blanchard promised to pay to one E. Willard, or his order, 484 dollars and 8 cents, within thirty days from the date, with interest thereafter; and that the same was endorsed to Wild; that the writ was returnable to the same term of the Court of Common Pleas, at which the judgment was rendered; that the officer’s return of the service of the writ was, that he had attached certain real estate of Blanchard, and left a summons at the place of his abode, as the law directs; and that the judgment was rendered upon the default of Blanchard.</p> <p>The error assigned was in substance, “ that judgment was rendered by default in the first term without any continuance ; and that Blanchard, at the time of the service of the original writ, was not within the commonwealth, and did not return before the rendition of the judgment; which ought to have been noted and suggested on the record, and suit thereupon continued to the then next term of the Court of Common Pleas.”</p> <p>The defendant in error (protesting that if the said Blanchard was out of the commonwealth at the time of the service of the original writ, and of rendering the judgment, he, the said Wild, was totally ignorant thereof) demurred, specially, to the assignment of errors; and, for the causes of demurrer, stated, First, that the fact of the absence of the said Blanchard from the commonwealth, if real, does not appear on any part of the record of the said * suit; and secondly, that, if such were the fact, the proper remedy for the said Blanchard is by petition to the Court here to grant a review, as by the law is in such case provided, and not by writ of error. The plaintiff joined in demurrer.</p>

<p>Tars was an appeal from a decree of the judge of probate establ. filing a certain instrument as and for the last will and testament of tnTin Boardman deceased.</p> <p>The appellants were heirs at law of the deceased. The appellee was also one of his heirs at law, and named executor and principal and residuary legatee in the instrument.</p> <p>The appellants filed the following reasons of appeal, viz.:—</p> <p>First, that the deceased was not, at the time he signed the said instrument, of sound and disposing mind, but his mind was then greatly impaired and weakened by reason of old age and sickness.</p> <p>Secondly, that the said deceased, at the time of signing said instrument, supposed and believed it to be a common deed of bargain and sale for the conveyance of certain land, and did not know or suppose that the said instrument purported to be his last will.</p> <p>Thirdly, that the said instrument, and signature of the deceased thereto, was obtained and procured by fraud and circumvention ; and the said deceased, at the time of his signing the said instrument, being then of weak and unsourid mind, was made and suffered to suppose and believe, that the said instrument was a common deed for the conveyance of certain land. [ * 259 ] * And fourthly, that the said deceased never pub lished the said instrument as and for his last wil and testament.</p> <p>At the term of this Court holden in this county in April, 1803, Sewall and Thacher, justices, sat in the trial of this appeal, and their report is made as follows, viz.:—</p> <p>“ The appellants opposed the probate of a certain instrument exhibited as the last will of Offin Boardman, late of Newburyport, deceased ; having appealed from a decree of the judge of probate establishing it, and having filed their reasons of appeal.</p> <p>“The appellee, repelling and denying each of the reasons of appeal, exhibited this instrument for probate in this Court. Two of the subscribing witnesses, and the deposition of a third subscribing witness, to this instrument were produced. From their testimony, • and the testimony of several other witnesses who were examined for the parties, and from the consent of the parties in esome circumstances, the justices of this Court, who sat in the trial of this appeal, have collected the following state of facts, viz.:—</p> <p>“ The appellee, who, in the instrument offered for probate, is named principal and residuary legatee and executor, went, in the lifetime of his father, about the 12th of April, 1802, to a Justice Pike, and gave him certain minutes, according to-which Mr. Pike was requested, by the appellee, to prepare a will for his father, the deceased Offin Boardman. One article of the minutes stated a bequest to the wife of the deceased, whereby one third of his personal estate, and one third of his real estate, for her life, were to be given her in lieu of her dower. Upon these minutes, the instrument exhibited was prepared by Justice Pike, and about the 13th of April was delivered to the appellee. The *in- [ * 260 ] strument appeared conformable to the minutes, excepting that the provision was entirely omitted.</p> <p>“ According to the testimony of Justice Pike, this omission happened by his entertaining an opinion that the widow of the deceased would be entitled to the same provision as the minutes directed, notwithstanding the will.</p> <p>“ On the 21st of April, the appellee was seen at his father’s. He passed by a resident in the same family, went abroad to two of the subscribing witnesses, who lived or worked in the neighborhood, and applied to the other subscribing witness, a woman, who resided in a distinct part of the father’s house. To each of these witnesses the appellee expressed a request to go to his father’s house or room, and witness the execution of a deed. They accordingly attended. One of them, John Tufts, arrived before' the others, and was with the deceased about five minutes during the absence of the appellee. Tufts, when he entered the deceased’s room, saw a paper, folded up, lying on the table, and the deceased sitting about two yards from it. He asked the witness, at his going in, whether he was not named Tufts, and desired him to sit down. The other subscribing witnesses came in with the appellee, who immediately took a pen and put it into his father’s hand, saying, ‘ Now, sir, if you will sign it or this.’ The deceased then rose from his chair, and, taking it with him, placed himself at the table where the folded paper lay, and, without reading or examining it, signed it with his name, being the instrument exhibited. The three subscribing witnesses then wrote their names upon the same paper, and at the same table, while the deceased remained at or near it. The instrument was left on the table. The deceased said nothing * during the transaction. The subscribing witnesses [*261 ] had no notice that they had written their names to a will. Nothing was said at the time, in their hearing, of the nature of the paper which had been executed by the deceased. One of the subscribing witnesses suspected, from the circumstance of three witnesses, that the instrument was a will. The subscribing witnesses had no other conversation with the deceased, and could not testify as to any particular observation of the state of his mind, and almost immediately after the transaction withdrew from the room. The deceased, at the time of this transaction, was nearly eighty years of age. For more than a year preceding it, he had discontinued business, and had given up his concerns to his partner. For all that period, the deceased had been distressed with a painful swelling in his head, near his neck, of which he at several times complained that it almost distracted him; and he had been otherwise infirm and sick, was very deaf, abstained very much from conversation, and omitted reading his Bible, as he had been accustomed to do, especially at his family prayers. There was no evidence that, within a month of his death, he had been seen to read any book or writing. But in that period, the deceased conversed several times with his brother, and his partner, who paid the deceased several sums of money, arising in the course of their business, upon statements made by the partner, but which the deceased did not attempt to examine.</p> <p>“ Some testimony was also received by the Court, from which it appeared that an application had been made to the deceased, by a Mr. Cutler, for the purchase of a piece of land belonging to the deceased, adjoining, or parcel of, his homestead, who [ * 262 ] agreed to sell it to him. * Afterwards, the deceased told Mr. Cutler that the land was W'anted by his son, the appellee; and, on the 18th of April, two days before the execution of the supposed will, Cutler and the appellee were with the deceased, and it was concluded between them that Cutler should not have the land he had applied for, because the appellee had determined to become the purchaser of it from his father. On the 26th of April, on the Saturday next after the execution of the instrument exhibited, the supposed testator was more violently seized, became very sick, and on the 28th died.”</p>

<p>In a kbel for a divorce, confessions of the libellee, as to the fact of adultery, not admissible, unless corroborated.</p>

<p>This was a writ of error upon a judgment of the inferior Court of Common Pleas rendered in this county, in the year 1781.</p> <p>The record of the judgment was certified to be as follows, viz.:</p> <p>“ Suffolk, ss. At the inferior Court of Common Pleas holden at Boston, within and for the county of Suffolk, on the first Tuesday of October, in the year of our Lord one thousand seven hundred and eighty-one, Robert Treat Paine, Esq., Attorney-General for the commonwealth of Massachusetts, and in their behalf, complains of William Martin, late of Boston, in the county of Suffolk, Esq., and Anna Martin, his wife, and gives the Court here to understand and be informed, that the said William Martin and Anna Martin, since the nineteenth day of April, in the year of our Lord one thousand seven hundred and seventy-five, viz., on the twentieth day of the same April, being inhabitants and members of the late province, now state of Massachusetts Bay, levied war, and conspired to levy war against the government and people of this province, colony, and state, and then and * there adhered to the king of Great Britain, his fleets and armies, enemies of the said province, colony, and state, and then and there did give to them aid and comfort; and that the said William Martin and Anna Martin, since the said nineteenth day of April, viz., on the thirtieth day of March, in the year of our Lord one thousand seven hundred and seventy-six, without the permission of the legislative or the executive authority of this or any other of the United States of America, did withdraw themselves from this province, colony, and state, into parts and places under the acknowledged authority and dominion of the said king of Great Britain, and into parts and places within the limits of some of the said provinces, colonies, and United States, being in the actual possession and under the power of the fleets and armies of the said king; viz., to Halifax, in the province of Nova Scotia, and to New York, in the province, colony, and state, of New York; and that said William Martin and Anna Martin have not since returned into any of the said United States, and been received as subjects; and that the said William Martin and Anna Martin, by means of all and singular the offences aforesaid, have freely renounced all civil and political relation to each and every of the said United States, and have become aliens; and the said Attorney-General further alleges that the said William Martin and Anna Martin, since the said nineteenth day of April, viz., on the twentieth day of the same April, were seised and possessed, and entitled to be seised and possessed of, and to have and demand to Ms own use, the following lands situate in the said county of Suffolk, viz., a lot of land in Boston, aforesaid, (described,) and its appurtenances to him the said William Martin, during his natural life, and to the said Anna Martin and her heirs; also a lot of land lying in the south precinct of Braintree, in the * county of Suffolk, (described,) and about one acre and half an acre of land, ([described,) and the appurtenances of the same two pieces of land to him the said William Martin during his natural life, and to the said Anna Martin and her heirs; also a piece of land lying in said Braintree, in the south precinct, (described,) and the appurtenances to him the said William Martin during his life, and to the said Anna Martin and her heirs. And said Attorney-General further alleges that, by force of the premises, and of the law of this state, entitled “ an act for confiscating the estates of certain persons commonly called absentees,” the above-described lands and appurtenances ought to escheat, enure and accrue to the sole use and benefit of the commonwealth aforesaid, and they accordingly ought to be in the possession thereof. Wherefore the said Attorney-General, in behalf of the commonwealth aforesaid, prays the advice of the Court here in the premises and due process in this behalf to be made. This libel or complaint was filed at the inferior Court of Common Pleas held at said Boston on the second Tuesday of July last, when and where notifications were ordered to be issued agreeable to law, and from thence the same was continued unto this term by order of court. And now proclamations being made agreeable to law, but no person appearing to defend this suit, it is therefore considered by the Court, that the above-described lands and appurtenances escheat, enure and accrue to the sole use and benefit of the commonwealth. Hab. fac. pos. issued February 5, 1781. (a)</p> <p>The plaintiff" in error, at Feb. term, 1801, presented his petition to this Court for a writ of error on the judgment aforesaid, in which he alleged that he was the only son and heir of William and * Anna Martin, both deceased; and assigned errors, (that being the usual practice here.) It was suggested in the petition for the writ of error, that William Bosson was tertenant of that part of the premises which is in Boston, and Levi Thayer and Paul Thayer of those parts which are , in Braintree On the original petition on file is minuted — “ Notice to the Attorney Generalato show catise why a writ of error should notissue. Writ prdered.”</p> <p>The writ of error issued June 27th, 1801, and was returnable to the then next term of this Court, to be holden on the second Tuesday of August, 1801, and the sci. fa. of the same date, with the writ of error, reciting that errors had been assigned, was to James Sullivan, the Attorney-General, on behalf of the commonwealth, to William Bosson, Levi Thayer, and Paul Thayer, the ter-tenants of the real estate described in the information, to appear at the same term to hear and rejoin to the errors aforesaid, if they should think fit, &c.</p> <p>The sci. fa. was served on the Attorney-General, on the 8th of -July, 1801, and on the ter-tenants at or soon after the same time.</p> <p>The errors assigned were—</p> <p>' First. It doth not appear, in the rendition of said judgment, that any offence was charged upon the said Anna■ Martin, to whom the reversionary right of the estates aforesaid belonged, or that any fact, matter, or thing, was alleged against said William or Anna Martin sufficient to warrant said judgment.</p> <p>Secondly. It doth not appear, in the process or judgment aforesaid, that any notification was issued or given to the said William and Anna, as by the law aforesaid is provided, or to either of them, or to any other person or persons whomsoever, that the information or complaint was filed or suit commenced against them b.y the commonwealth aforesaid, * concerning the estates aforesaid, or to recover the right to and the possession thereof.</p> <p>Thirdly. It doth not there appear but that some person or persons appeared and claimed the lands and estates aforesaid, mentioned and described in the said information and complaint, and showed cause why the same should not escheat and enure to the commonwealth aforesaid, and to their use and benefit; nor doth it appear that there was ever any trial in the premises according to law.</p> <p>Fourthly. Because, by the information and complaint aforesaid, it doth appear that the said William, Martin was owner of the estates aforesaid, during his natural life only, and that the fee simple thereof belonged to the said Anna Martin, then said William’s wife, who, by the act or law aforesaid, referred to in said information, was not liable to have her estates confiscated as aforesaid, and against whom the process and judgment aforesaid could not by law extend.</p> <p>And, Fifthly, The general error.</p> <p>The writ of error was entered at August term, 1801, and the cause was continued to Feb. term, 1802; but I could not find by any entry or minutes on the dockets or files in the case that the Attorney-General then {viz., at August term) appeared to answer to the writ of error.</p> <p>At Feb. term, 1802, the Attorney-General appeared and filed a suggestion of diminution of the record; in which he stated that, being notified by order of this Court, and directed by the legislature to appear in this suit, it was contained in the original records of the cause, that notification was duly issued to the said William and Anna Martin, and that the sheriff had returned that he had left an attested copy thereof at the last usual place of abode of the said William Martin and Anna Martin, at the mansion-house on said lands, and had also posted the same up in some public place in * Boston, thirty days before the term of the said inferior Court of Common Pleas holden in October, 1781; and praying that no further proceedings might be had until the exemplification of the judgment, &c. should be completed, (a)</p> <p>Afterwards, in the same term, (Feb. 1803,) the Attorney-Genera, filed a motion, the entry whereof is as follows, viz., “ The Attorney General, having been notified of this writ of error, and having been directed by the legislature to appear against the same, moved that the writ might be quashed, because the judgment was rendered in a court of inferior jurisdiction, from which judgment an appeal lay tó this Court.” And the cause was continued to August term, 1803, from thence to Feb. term, 1803; and from thence to Nov. term, 1803, at which term, the Court decided “ that the Attorney General should take nothing by his motion, it appearing to the Court, from the same record, that the ancestor, under whom the plaintiff in error claims, was, at the time of the rendition of the judgment, a feme-covert.”</p> <p>The cause was then continued to March term, 1804, at which term, or at the November term preceding, (but at which of those terms does not certainly appear,) the Attorney-General offered to file a plea * of alienage of the plaintiff in error, in abatement of the writ of error; which, being objected to, the Court refused to receive, it being after a general imparlance.</p> <p>Thereupon the Attorney-General, in March term, 1804, pleaded in bar that the plaintiff in error is an alien ; and the cause was continued to August term, 1804 ; at which term the counsel for the plaintiff in error demurred, specially, to the plea in bar, and the cause was continued to the present term, March, 1805, for the Attorney-General to join in demurrer.</p> <p>On Thursday, the third day of this term, the Attorney-Genera, moved to amend the plea in bar, he not having joined in demurrer, which was objected to by G. Blake for the plaintiff in ei -or; but the Court permitted the amendment.</p> <p>On the next day, Friday, the Attorney-General said that he waived the plea in bar, and should plead in nullo est erratum. The clerk was directed to make an entry accordingly. On the next day, Saturday, the Attorney-General moved to file a plea in abatement, which had been offered at a former term, and rejected by the Court, because after a general imparlance ; merely, he said, that it might appear on the record, there having been no minute thereof made on the record at any time heretofore.</p> <p>The Court said they were willing to hear another argument on the question.</p> <p>Attorney-General. The general rule that a plea in abatement cannot be made after an imparlance is not denied ; but it is believed that the rule does not extend to writs of error, from the nature of the proceedings. Besides, in this case, the commonwealth had no notice until after one imparlance, and as the legislature meet but twice in a year, and as the Attorney-General had no authority to appear, except by a special resolve for that purpose, * he could not appear for the commonwealth till after an imparlance was had. (The Court seemed to think that he might appear ex officio in all cases in which the commonwealth is concerned ; but however that may be, they said that in the present case the plea in abatement was not offered until after he had appeared ami an imparlance had.)</p> <p>Attorney-General. In England, the person bringing a writ of error must either be a party, privy to or injured by the judgment; all pleas of alienage, in abatement, in the books, are of personal actions, which always must allege that the plaintiff is an alien enemy.</p> <p>(Some of the Court said, that in a real action they thought alienage of the plaintiff might be pleaded in bar, without averring that the plaintiff was an alien enemy, because no alien can maintain a real action ; the disability is perpetual.)</p> <p>Attorney-General. The questions we wish to have determined are, first, whether the rule as to not pleading in abatement after an imparlance applies, generally, to writs of error ; and secondly, if the rule be so, then, whether there be not an exception in favor of the government.</p> <p>The Court decided that they would hear an argument on the question whether the plea in abatement should be received.</p> <p>On Monday the Attorney-General, in support of his motion for filing the plea in abatement, said: — The case is not before the Court until the whole record is before them, and the party is not obliged to appear and plead till then ; and then he is authorized to plead any thing whatsoever. At Nov. term, 1803, the motion to quash the writ of error was overruled; it is uncertain when the plea in abatement was offered, whether at that term, or the term following, (Feb. 1804 ;) no plea in abatement could have been filed till the Court had decided upon the motion to quash the writ. If * this case is within the rule respecting pleas in abatement, so often mentioned, it was then too late ; and the same objection lay then that there does now. But it did not belong to the Attorney-General to appear without a special resolve of the legislature ; he could not know what interest the government had in the suit; whether it had conveyed the lands, or, if it had, whether with warranty or by a mere release of its right; and until all the proceedings mentioned had been had, the commonwealth had a right to plead in abatement.</p> <p>But it is a question whether the rules, even in cases of private persons, as to pleading in abatement, extend to writs of error. In writs of error, a plea to the jurisdiction of this Court would not be allowed, because the Supreme Judicial Court has, necessarily, jurisdiction in all cases of error in inferior jurisdictions. As to pleas of misnomer and the like, from-the nature of them, they cannot be to a writ of error; there are no authorities to be found which are in point. The reason why I do not wish to risk the cause on a plea of alienage in bar is, that Anna Martin, the mother of the plaintiff in error, might have died since Jay’s Treaty ; and upon a plea in bar, the judgment would be final; but if the plea in abatement is allowed to be entered, and it should be determined to be bad, there would be judgment of respondeat ouster, and then I will plead in nullo est erratum; I do not choose to risk the interest of the government without first trying the plea in abatement. But admitting that the rules extend to private persons, these rules do not bind the government. The commonwealth, by their prerogative, may plead this plea at any time ; we have adopted, and practised upon, the maxim, Nullum tempus occurrit regi.</p> <p>[Parsons, for the plaintiff in error, here read for the consideration of the Attorney-General divers * passages from Com. Dig. Prerogative, D. 85: “ The king may amend his declaration in the same term; but not in another term.”</p> <p>“ So after issue joined the king may waive the issue and demur, in the same term.” “ Or take another issue in the same term, though not in another term,.”</p> <p>“ But if the king joins issue upon a traverse of his title, he cannot afterwards waive it, to traverse the title of the defendant.”</p> <p>“ Neither can he waive the issue after a verdict.”</p> <p>Ibid. D. 86. stat. 9 G. III. c. 16. (nullum tempus act.)</p> <p>Ibid. Abatement, I. 23. “A plea in abatement shall not be after errors assigned.”]</p> <p>Attorney-General here read, from Mac. Abr. tit. Prerogative, E. 6. a variety of cases, to show that laches were not imputed to the king; but he said, if the government, by the Attorney-General, have been guilty of laches, it ought to be bound ; on the other hand, if the plea in abatement was in fact offered as soon as, from the nature of the case, it could have been, then the record ought now to be amended to show when it was offered. (Sedgwick, J. The writ of error was returnable in 1801, the Attorney-General appeared in 1802, and there was a general imparlance.) Attorney-General. If the government has not prerogative, and the rule as to pleas in abatement extends to writs of error, then undoubtedly the govern ment is bound, otherwise not. As to the prerogative of the government, I do not wish to argue it; but am content to rely on what has been mentioned as to the difference between writs oi error and common actions.</p>

Assumpsit on a policy of insurance, for a total loss, which wax stated in the declaration to have happened, by the ship and caigo being attached, arrested, taken, detained, and carried away to Portsmouth, in Great Britain, by a British frigate. The cause was submitted to the Court upon the following state of facts, viz., That the defendants made and subscribed the policy of insurance described in the plaintiff’s declaration.

<p>An action pending against a bankrupt, at the time he obtained his certificate, for a demand which was or might have been proved under the commission, cannot afterwards be prosecuted to judgment, except in the two instances mentioned in the statute. Bail of a bankrupt are discharged, if not fixed previous to the certificate.</p>

<p>On the 13th day of June, 1800, the General Court passed the following resolve, viz.—“ Whereas, it hath been represented to the General Court that Elias Norberg, otherwise called Elias Newbury, formerly of Sweden, and a naturalized citizen of the United States of America, is now dead, intestate ; that administration on his goods and effects, rights .and credits, has been duly committed by the judge of probate for the county of Suffolk, to Ebenezer Dorr, of Boston, in the same county; that there is in the hands of said administrator a large sum of money, the estate of said intestate, to which no person has yet entitled himself as next of kin to said intestate, and that the same money, in defect of heirs of said intestate, doth and will belong to the commonwealth. Therefore, resolved, that the Attorney-General be, and hereby is, authorized and directed to take all due measures to obtain a decree of the said Probate Court, that the same money be paid to the treasurer of the commonwealth, in order that the same may be retained by the said treasurer, to and for the use of the commonwealth, until some person or persons shall be entitled to receive the same as next of kin of the said intestate, or in some other legal way and manner. And, also, that said Attorney-General cause such decree, when obtained, to be carried into effect.”</p>

<p>This was an action of trover for a writ which had issued in favor of Cook vs. Holmes in an action of assumpsit, to which writ was annexed an account of Cook vs. Holmes.- The plaintiff had recovered in this action in the county of Middlesex, and the clerk of this court in that county had taxed the costs; to whose laxation the counsel for the defendant objected, and now moved the Court that the same might be set aside so far as respected certain allowances made to Walter M’Farland, Esq., for fees as a witness for the plaintiff.</p> <p>It appeared that the cause had been long pending in Court and that in several of the subpoenas the name of M’Farland had been interlined; and it was suggested, and not denied, that the interlineations had been made by M’Farland himself, at the time he certified his travel and attendance on the subpoenas as a witness; and upon inspecting the subpoenas it appeared from the complexion of the ink, and the signatures on the subpoenas that the several interlineations were probably made by the witness in the manner .suggested.</p>

<p>A judgment recovered in another of the United States is not, in all cases, conclusive evidence of a debt, in an action of debt brought here, on such judg- ' ment Although the mode of authenticating such judgments has been provided for by the act of congress, yet the effect of such authentication is not declared by the act.</p>

This was an action on a promissory note, bearing date the 24th day of April, 1800, for the sum of $4122 68 cents, payable on demand; to which the defendant pleaded the general issue. The cause was tried before Dana, C. J., at the last term in this county.

This was an action of debt on a bond, bearing date the 3d day of November, 1797, in which the defendants were jointly and severally bound to the plaintiff in the penal sum of $5000; to which there was a condition, that whereas the said Harris and Clap had, on the day of the date of the bond, mutually chosen A, B, and C, to arbitrate, determine, and award, concerning the demands of said Clap against said- Harris for the carpenter’s work done on his new house in Boston, and…

<p>The report of referees upon a rule of reference entered into before a justice of the peace must be made to the Court of Common Pleas holden next after the award made. If the Court had commenced its session previous to making the award, the report of the referees cannot be returned to and accepted at that term; if it be, and judgment is rendered thereon, such judgment will be reversed on a writ of error. Costs not allowed where judgment is reversed for error in law.</p>

<p>If the plaintiff in replevin becomes nonsuit, the defendant recovers damages to the amount of six per cent, on the penal sum of the bond; as well when the taking was on mesne process, as on execution.</p>

<p>This was a writ of error brought upon a judgment of the Court of Common Pleas in this * county, rendered on the verdict of a jury upon the complaint of Lowell for damages done by flowing his land. The substance of the record of the Court of Common Pleas is as follows, viz.:—</p> <p>“ Sylvanus Lowell complains of Seth Spring, for that he, the said Lowell, is the owner, and seised of a certain tract of land in Biddeford, (describing it,) and that the said Spring, on the first day of September, 1794, built a certain mill-dam across Saco River, (on which the premises bounded,) to raise a head of water sufficient to work a certain saw-mill standing on the land of said Spring, and by so doing, he raised the water of said river to the height of foui feet, and caused it to flow over a large part of the said farm of said Lowell, and essentially to injure it, and in many parts totally to ruin it; and also to destroy entirely an excellent spring of cold water; and though the complainant has received satisfaction (as the same has been adjudged to him) to the 10th day of April, 1800; and though a jury have viewed the lands and returned their verdict as to the sum the said Lowell was, in their opinion, entitled to receive as compensation for said flowing — yet the complainant is dissatisfied with said verdict and appraisement; wherefore, for an increase of such yearly compensation, he prays, that the sheriff of said county may be directed to empannel another jury to appraise the said yearly damage occasioned by said dam and flowing, and the continuance of the same.” The complaint was entered October term, 1801; when it appeared that Spring was notified of the same ; thence continued to April term, 1802, when Spring did not appear, but made default: a warrant was then granted, at the prayer of the complainant, as the law directs; and the complaint continued, from term to term, to August term, 1803, to receive the return of the sheriff. The warrant directed the sheriff to summon and * empannel a jury of twelve good and lawful men of said county, which jury were to be sworn to make a true and faithful appraisement of the yearly damage done to the complainant, and how far the same is necessary, and what proportion of the year the said lands ought not to be flowed, and when public convenience and the circumstances of the case do not justify such flowing ; and whether the yearly damages assessed by a former jury ought to be increased, and if any, how much; which jury were to try the cause and make return of their verdict therein. At August term, 1803, the sheriff returned, that on the 22d June, 1803, pursuant to his precept, he had notified the parties, and had summoned a jury of twelve good and lawful men, who had been sworn, which jury he had conducted on the premises mentioned in the complaint, who heard the parties and their evidence, and that he had kept the jury by themselves until they had agreed and sealed up their verdict, which he returned with his precept into court. The verdict was, “ that after carefully viewing the premises mentioned in the complaint, and diligently attending to the evidence produced by the parties, the jury found Spring guilty of flowing a part of the land described in the complaint, and appraised the damage, for the injury done, at forty dollars each and every year since the 10th day of April, 1800, up to which time the complainant had received damage as awarded by a former jury, as appeared by the warrant; and further that the public convenience and the circumstances of the case do not justify such flowing from the 20tli day of April to the 20th day of November in each year.” And the complainant, by his attorney, in court, before the allowance of the verdict, remitted to Spring alt that part of the damage appraised and estimated, which the jury allowed as compensation for said flowing from * the said 10th day of April, 1800, to the 10th day of October, 1801, [the time the present complaint was filed in court,] and consenting to take judgment on the verdict, claiming "damages as therein appraised - and estimated, and at the rate aforesaid, from the said 10th day of October, as mentioned in the verdict, and onward ; Spring moved in arrest of judgment; [see afterwards j] the motion was overruled, and judgment rendered that the return of the sheriff, together with the verdict of the jury, be allowed and recorded ; and thereupon ordered that the said sum of forty dollars be considered as the measure of the yearly damages to the complainant; and that he recover costs, &c.</p> <p>The errors assigned; being, substantially, what were alleged as reasons for arresting judgment, were—</p> <p>1. That it doth not appear that the jury were sworn according to law, which requires that they should be sworn to make a true and faithful appraisement of damages, and how far the flowing complained of might be necessary.</p> <p>2. That the jury appraised the damages sustained by the said Lowell from the 10th day of April, 1800, to the 10th day of April, 1803, whereas the verdict of a jury formerly had and judgment thereon is the measure of the yearly damages until an increase or decrease of said damages shall, by legal process, be obtained.</p> <p>3. That the jury, in the present case, in the verdict by them returned, say that the said Spring is guilty of flowing part, but do not say what part of the land mentioned in the complaint.</p> <p>4. That it doth not appear by the return of the sheriff, on the precept from the said court to him directed and delivered to be executed, by whom the jury, by virtue of said precept to be empannelled, were sworn ; nor what was the nature of the oath to them administered.</p> <p>* The defendant in error pleaded in nullo est erratum.</p> <p>As this Court, in giving their opinions, confined themselves (principally) to the first error assigned, it is not thought necessary to state the arguments of the counsel as to the other errors.</p>

<p>In this case the appellants were Edward Proctor and Hannah, his wife, Martin Gay and Ruth, his wife, and Catharine Lombard; the said Hannah, Ruth, and Catharine, being three of the children and heirs at law of Thomas Atkyns, who died intestate in the year 1787 ; the appellee, Gibbs Atkyns, was a son and one of the heirs of the said Thomas Atkyns. The estate of the intestate, excepting what was assigned to his widow as her dower, had been long since divided and distributed to and among his children ; after her death, which was in 1798, application was made to the judge of probate for this county, for a division and distribution of the estate set off to the widow as dower, (being a brick mansion house and land, situate in Boston,) among the heirs at law of the intestate,- and on the 6th day of July, 1802, the judge passed a decree assigning all the real estate of the intestate, which remained to be distributed or divided, to the appellee, Gibbs Atkyns, the only surviving son of said intestate, he having given bond to pay to the other heirs, or legal representatives of the * intestate their [ * 322 J ratable parts or proportion of said estate. &c</p> <p>From this decree the appellants appealed, and filed the following reasons, viz., First, That the said Gibbs Atkyns, subsequent to the decease of the said Thomas Atkyns, viz., on the 22d day of April, 1795, by deed, duly executed, acknowledged, and recorded, conveyed to Sarah Atkyns, Timothy Atkyns, Robert Marrable, Sally Marrable, Jones Marrable, Mary Atkyns, the said Martin Gay and Ruth, his wife, the said Edward Proctor and Hannah, his wife, Ephraim Lombard, and the said Catharine Lombard, his wife, all his right, title, interest, and claim, in and unto all the estate of the said Thomas Atkyns, both real and personal, for a valuable consideration in the said deed expressed.</p> <p>And, secondly, because the aforesaid assignment is contrary to law.</p>

This was a real action, commenced against William Pearson and William Tyler, by John Gordon and Hannah, his wife, in her right, Nathaniel Norcross, Elisha Norcross, Jonas Woods and Rebecca, his wife, in her right, the demandants, for four undivided seventh parts of one moiety of a certain cellar, or piece of land, in Boston, (describing the bounds of the cellar,) with the privileges and appurtenances.

<p>This was an action for a legacy, (a) The plaintiff’s father, by his last will and testament, bequeathed to him the legacy for which the action was brought. The defendant was named executor in the will, and had certain real estate devised to him, which was charged with the payment of the legacy. The action was brought against the defendant as executor, on the supposition that he had accepted the trust; but since the commencement of the action, the plaintiff having discovered that the executor had refused the trust, his counsel (Holmes) now moved fot leave to amend the declaration so as to charge the defendant as devisee.</p>

<p>This was an action of debt on a judgment recovered by the plaintiff against the defendant at April term, 1799, for the sum of $293 68 cents, including damages and costs. The declaration was in common form, and did not set out that any execution had ever issued on the judgment.</p> <p>The defendant pleaded in bar that on the 22d of November, 1799, he paid $300 in full satisfaction and discharge of the said judgment, executions, and * costs, and that the plaintiff accepted and received the same sum in full satisfaction, &c. The plaintiff replied that the defendant did not pay, &c.; on which issue was joined.</p> <p>On the trial of the cause at last term, before Thacher, J., the defendant produced and offered in evidence, in proof of payment, an alias execution, which had issued on the judgment on which was the following endorsement, viz., “ Received, Poland, November 22, 1799, of Joseph Gardiner Andrews, two notes of hand for ten dollars each, and fourteen notes of hand of twenty dollars each, signed by Jesse Wolcott, of Poland, payable to said Andrews; said notes dated the 27th day of August, 1799, and delivered this day to me by said Andrews, with his power of attorney to collect the same, which notes, when paid to me, shall be in full satisfaction for this execution; Jonathan Sherburne, attorney to Richard Hart”</p> <p>The judge, being of opinion that the execution and endorsement thereon were not admissible without proof that Sherburne was the attorney of Hart, rejected the evidence, and directed the jury to find a verdict for the plaintiff.</p> <p>The counsel for the defendant moved for a new trial, insisting that as the execution was in the hands of Sherburne at the time he made the endorsement above mentioned, and was by him delivered over to the defendant, it was sufficient evidence that he had authority to control it; and ought to have been admitted to the jury in proof of the issue on the part of the defendant.</p> <p>Bbr the plaintiff, it was said that the direction of the judge was right; and that the authority of Sherburne, who assumed to act as attorney of the plaintiff, ought to have been made out by direct and positive proof; otherwise that infinite mischief would result to creditors. Besides, in this case, * the receipt was conditional, being for notes of hand which were to be a satisfaction when paid. The defendant offered no evidence that they had been paid; and the execution and endorsement, with no accompanying or corroborating circumstances, were no evidence at all, and, therefore, were properly rejected.</p>

This was an action upon a policy of insurance effected the 7th day of August, 1797, upon the ship Paulina, and appurtenances, and cargo, (being lumber,) from Biddeford to port or ports in the West Indies, and at and from thence to her port of discharge in the United States, beginning the adventure upon the vessel and cargo from Biddeford, and to continue during the voyage aforesaid, and until the vessel should be arrived and moored at anchor twenty-four hours in safety at…

The plaintiff in error, being the clerk of a company in the militia, entered his complaint against the defendant, with a justice of the peace, in conformity to the statute of June 22d, 1793, (stat. 1793, c. 14, § 23,) for the neglect of the defendant to appear upon a muster day, as notified; whereby he had forfeited, &c.: the defendant appeared before the justice according to the summons which issued upon the complaint, and pleaded in abatement that he ought not to be holden…

<p>Practice.—On the question of sanity of a testator, the party who is for establish ing the will opens and closes.</p>

<p>This was an indictment which came into this Court by an appeal from a judgment rendered in the municipal Court for the town of Boston. On the plea of not guilty, the defendant had been convicted by the verdict of- a jury in both the courts. The charge was for stealing from the person of A. B. “ one bank-note, of the value of ten dollars, of the goods and chattels of the said A. B.”</p>

This was a libel for a divorce a mensa et thoro, for the cruelty of the husband; praying for alimony out of his personal estate, &c. The husband appeared, by his counsel, to defend ; and the Court directed the counsel to file a plea in the case, saying that, in all these cases, where there is an appearance, if a defence is intended to be made, there must be an answer in writing.

<p>A judgment rendered in the Court of Common Pleas at the first term against a person who was absent from the commonwealth is erroneous. Costs in error where judgment is reversed for error infiact.</p>

<p>Assumpsit. The declaration contained two counts. First, Indebitatus assumpsit for money laid out and expended. The Second stated, that on the tenth day of December, 1802, one E. J., being an inhabitant of the said town of Édgecumbe, and having a lawful settlement therein, but then found in and residing in the said town of Freeport, in distress, and standing in need of immediate relief, the plaintiffs, as they were obliged thereto, then and there provided for her relief, &c., from the said 10th day of December to the 10th day óf June following; that they gave notice to the defendants on the 22d day of April, 1803; and that, having so provided, the defendants became liable to pay, &c., and promised to pay accordingly; and that, by force of the statute, action had accrued, &c.</p> <p>The defendants pleaded. First, the general issue; and Secondly, protesting that the said E. J. was not an inhabitant of Edgecumhe, and that she had not a lawful settlement therein, for plea said that the said E. J. was not a pauper, and that she had *an estate, and was of sufficient ability to maintain herself, &c.</p> <p>To this plea there was a general demurrer, and joinder.</p>

<p>This was a libel for a divorce a vinculo, for the cause of adultery alleged to have been committed by the wife.</p>

<p>An action upon the covenant of warranty in a deed of land cannot he maintained without showing an eviction.</p>

<p>This w’as a writ of error upon a judgment of the inferior Court of Common Pleas rendered in this county, in the year 1781.</p> <p>The record of the judgment was certified to be as follows, viz.:</p> <p>“ Suffolk, ss. At the inferior Court of Common Pleas holden at Boston, within and for the county of Suffolk, on the first Tuesday of October, in the year of our Lord one thousand seven hundred and eighty-one, Robert Treat Paine, Esq., Attorney-General for the commonwealth of Massachusetts, and in their behalf, complains of William Martin, late of Boston, in the county of Suffolk, Esq., and Anna Martin, his wife, and gives the Court here to understand and be informed, that the said William Martin and Anna Martin, since the nineteenth day of April, in the year of our Lord, one thousand seven hundred and seventy-five, viz., on the twentieth day of the same April, being inhabitants and members of the late province, now state of Massachusetts Bay, levied war, and conspired to levy war against the government and people of [ * 348 ] this province, colony, and state, and then and * there adhered to the king of Great Britain, his fleets and armies, enemies of the said province, colony, and state, and then and there did give .to them aid and comfort; and that the said William Martin and Anna Martin, since the said nineteenth day of April, viz., on the thirtieth day of March, in the year of our Lord one thousand seven hundred and seventy-six, without the permission of the legislative or the executive authority of this or any other of the United States of America, did withdraw themselves from this province, colony, and state, into parts and places under the acknowledged authority and dominion of the said king of Great Britain, and into parts and places within the limits of some of the said provinces, colonies, and United States, being in the actual possession and under the power of the fleets and armies of the said king; viz., to Halifax, in the province of Nova Scotia, and to New York, in the province, colony, and state, of New York; and that said William Martin and Anna Martin have not since returned into any of the said United, States, and been received as subjects; and that the said William Martin and Anna Martin, by means of all and singular the offences aforesaid, have freely renounced all civil and political relation to each and every of the said United States, and have become aliens; and the said Attorney-General further alleges that the said William Martin and Anna Martin, since the said nineteenth day of April, viz., on the twentieth day of the same April, were seised and possessed, and entitled to be seised and possessed of, and to have and demand to his own use, the following lands situate in the said county of Suffolk, viz., a lot of land in Boston, aforesaid, (described,) and its appurtenances to him the said William Martin, during his natural life, and to the said Anna Martin and her heirs; also .a lot of land lying in the south precinct of Braintree, in the * county of Suffolk, (de- [ * 349 ] scribed,) and about one acre and half an acre of land, ('described,) and the appurtenances of the same two pieces of land to him the said William Martin during his natural life, and to the said Anna Martin and her heirs ; also a piece of land lying in said Braintree, in the south precinct, (described,) and the appurtenances to him the said William Martin during his life, and to the said Anna Martin and her heirs. And said Attorney-General further alleges that, by force of the premises, and of the law of this state, entitled “ an act for confiscating the estates of certain persons commonly called absentees,” the above-described lands and appurtenances ought to escheat, enure and accrue to the sole use and benefit of the commonwealth aforesaid, and they accordingly ought to be in the possession thereof. Wherefore the said Attorney-General, in behalf of the commonwealth aforesaid, prays the advice of the Court here in the premises and due process in this behalf to be made. This libel or complaint was filed at the inferior Court of Common Pleas held at said Boston on the second Tuesday of July last, when and where notifications were ordered to be issued agreeable to law, and from thence the same was continued unto this term by order of court. And now proclamations being made agreeable to law, but no person appearing to defend this suit, it is therefore considered by the Court, that the above-described lands and appurtenances escheat, enure and accrue to the sole use and benefit of the commonwealth. Hab. fac. pos. issued February 5, 1781. (a)</p> <p>The plaintiff in error, at Feb. term, 1801, presented his petition to this Court for a writ of error on the judgment aforesaid, in which he alleged that he was the only son and heir of William [ * 350 ] and *Anna Martin, both deceased ; and assigned errors, (that being the usual practice here.) It was suggested in the petition for the writ of error, that William Bosson was tertenant of that part of the premises which is in Boston, and Levi Thayer and Paul Thayer of those parts which are in Braintree On the original petition on file is minuted—“ Notice to the Attorney General, to show cause why a writ of error should not issue. Writ ordered.”</p> <p>The writ of error issued June 27th, 1801, and was returnable to the then next term of this Court, to be holden on the second Tuesday of August, 1801, and the sci. fa. of the same date, with the writ of error, reciting that errors had been assigned, was to James Sullivan, the Attorney-General, on behalf of the commonwealth, to William Bosson, Levi Thayer, and Paul Thayer, the ter-tenants of the real estate described in the information, to appear at the same term to hear and rejoin to the errors aforesaid, if they should think fit, &c.</p> <p>The sci. fa. was served on the Attorney-General, on the 8th of July, 1801, and on the ter-tenants at or soon after the same time.</p> <p>The errors assigned were—</p> <p>First. It doth not appear, in the rendition of said judgment, that any offence was charged upon the said Anna Martin, to whom the reversionary right of the estates aforesaid belonged, or that any fact, matter, or thing, was alleged against said William or Anna Martin sufficient to warrant said judgment.</p> <p>' Secondly. It doth not appear, in the process or judgment aforesaid, that any notification was issued or given to the said William and Anna, as by the law aforesaid is provided, or to either of them, or to any other person or persons whomsoever, that the information or complaint was filed or suit commenced against them by [ * 351 ] the commonwealth aforesaid, * concerning the estates aforesaid, or to recover the right to and the possession thereof.</p> <p>Thirdly. It doth not there appear but that some person or persons appeared and claimed the lands and estates aforesaid, mentioned and described in the said information and complaint, and showed cause why the same should not escheat and enure to the commonwealth aforesaid, and to their use and benefit; nor doth it appear that there was ever any trial in the premises according to law.</p> <p>• Fourthly. Because, by the information and complaint aforesaid, it doth appear that the said William Martin was owner of the estates aforesaid, during his natural life only, and that the fee simple thereof belonged to the said Anna Martin, then said William’s wife, who, by the act or law aforesaid, referred to in said information, was not liable to have her estates confiscated as aforesaid, and against whom the process and judgment aforesaid could not by law extend.</p> <p>And, Fifthly, The general error.</p> <p>The writ of error was entered at August term, 1801, and the cause was continued to Feb. term, 1802; but I could not find by any entry or minutes on the dockets or files in the case that the Attorney-General then (viz., at August term) appeared to answer to the writ of error.</p> <p>At Feb. term, 1802, the Attorney-General appeared and filed u suggestion of diminution of the record; in which he stated that, being notified by order of this Court, and directed by the legislature to appeal- in this suit, it was contained in the original records of the cause, that notification was duly issued to the said William and Anna Martin, and that the sheriff had returned that he had left an attested copy thereof at the last usual place of abode of the said William Martin and Anna Martin, at the mansion-house on said lands, and had also posted the same up in some public place in * Boston, thirty days before the term of the said [ * 352 J inferior Court of Common Pleas holden in October, 1781; and praying that no further proceedings might be had until the exemplification of the judgment, &c. should be completed, (a)</p> <p>Afterwards, in the same term, (Feb. 1802,) the Attorney-Generai filed a motion, the entry whereof is as follows, viz., “The Attorney General, having been notified of this writ of error, and having been directed by the legislature to appear against the same, moved that the writ might be quashed, because the judgment was rendered in a court of inferior jurisdiction, from which judgment an appeal lay to this Court.” And the cause was continued to August term, 1802, from thence to Feb. term, 1803; and from thence to Nov. term, 1803, at which term, the Court decided “that the Attorney General should take nothing by his motion, it appearing to the Court, from the same record, that the ancestor, under whom the plaintiff in error claims, was, at the time of the rendition of the judgment, a feme-covert.”</p> <p>The cause was then continued to March term, 1804, at which term, or at the November term preceding, (but at which of those terms does not certainly appear,) the Attorney-General [ * 353 ] offered to file a plea *of alienage of the plaintiff in error, in abatement of the writ of error; which, being objected to, the Court refused to receive, it being after a general imparlance.</p> <p>Thereupon the AttorneyrGeneral, in March term, 1804, pleaded in bar that the plaintiff in error is an alien ; and the cause was continued to August term, 1804; at which term the cóunsel for the plaintiff in error demurred, specially-, to the plea in bar, and the cause was continued to the present term, March, 1805, for the Attorney-General to join in demurrer.</p> <p>On Thursday, the third day of 'this term, the Attorney-Generai, moved to amend the plea in bar, he not having joined in demurrer, which was objected to by G. Blake for the plaintiff in ei -or; but the Court permitted the amendment.</p> <p>On the next day, Friday, the Attorney-General said that he waived the plea in bar, and should plead in nullo est erratum. The clerk was directed to make an entry accordingly. On the next day, Saturday, the Attorney-General moved to file a plea in abatement, which had been offered at a former term, and rejected by the Court, because after a general imparlance ; merely, he said, that it might appear on the record, there having been no minute thereof made on the record at any time heretofore.</p> <p>The Court said they were willing to hear another argument on the question.</p>

<p>In dower, where the demand is against the defendant, as being in possession of the .and, it is a good plea in bar, that he is not the tenant in possession.</p>

<p>The defendant Whittemore was a sailor ; and at the time of the service of the writ on the supposed trustee, was in his service, as a sailor, upon a voyage on board a vessel which had not then arrived at any port of unlading. And the question was, whether, under the statute of foreign attachment, (stat. 1794, c. 65, § 1,) here was such a demand or debt existing, as could be attached and holden by this process, for the benefit of the plaintiff, who was a creditor of the sailor.</p> <p>For the trustee, it was said that, in this case, there was no debt; that although the statute extended to those cases where the debt was payable at a future day, which might, undoubtedly, be attached and holden, yet the debt must be absolute in itself; and not like the present case, in which it is altogether uncertain whether any thing will ever become due ; that depending upon the contingency of the vessel’s arriving at some port of unlading.</p> <p>[Sevvall, J. Suppose the sailor had died on the day the process was served, would not his whole wages up to that time have been due ?] — Counsel. If the vessel had ifterwards arrived, they would have been due, because the contingency would then have happened, but otherwise, there would have * been nothing due. Could this demand, at the time of the service of the process, have been proved as a debt under a commission of bankruptcy ? It is believed that it could not; because at that time, it was contingent — wholly uncertain whether any thing would become due ; if so, then the present process cannot-hold the person summoned as trustee ; for whether he be trustee or not, depends on the existing facts at the time of the service of the writ: if he were not so then, nothing subsequent can make him so — at least so as to hold him in the present action.</p>

<p>Indictment for a conspiracy.</p>

The indictment charged that Philip Trimmer, Susanna Trimmer, the wife of said Philip, and Patience Whitney, broke and entered the store of Joseph Haley, with intent to steal, and that they did steal therefrom, the goods, &c., of said Haley, of the value, &c., against the statute.

<p>An infant defendant must appear by guardian. On a writ of error brought to reverse a judgment recovered by default against an infant upon a promissory note, the judgment must be reversed, but the Court will not give costs unless it appear that the plaintiff knew the defendant to be an infant</p>

<p>The surviving promisee cannot join with the administrator of the deceased promisee in an action. A writ of error may be returned and determined in a county other than that in which the original judgment was rendered.</p>

<p>The plaintiffs in review were original defendants ih this action, which was trespass quare clausum fregit. Upon the first trial, there was a verdict for the original plaintiffs — one dollar, damages, and judgment accordingly, and for costs.</p> <p>Emerson purchased and prosecuted the writ of review in the name of all the original defendants. And upon the trial of the review, there was again a verdict for the original plaintiffs — damages, seventeen dollars. After the verdict, the three defendants, who did not prosecute the writ, were called and did not appear. Upon which the question was, How ought the judgment to be entered?</p>

<p>The printed book of the printers to the General Court is not evidence of private acts, as it is of public statutes. An agent, who has an appointment in writing must produce it, and cannot testify as to its contents, unless it is lost or destroyed. In trespass qu. clau^freg., if the defendant sets up in defence adverse possession, to prevent the plaintiff from recovering damages, he must prove a continued, open, visible, actual possession, or his defence will not avail.</p>

This was an indictment against the defendants, Samuel Foster, David Page, and one Richard Foster, for an assault and battery upon one Philip Weaver, he, the said Philip, being, as was alleged, duly and lawfully appointed to serve and execute a certain warrant legally issued against the said Richard Foster; and the said Philip being in the due and lawful execution of the same warrant.

<p>Plea in abatement of a former action must show that it is pending, and must also refer to the record. Want of form in a plea in abatement may be taken advantage of, on a general demurrer.</p>

<p>This was an action of covenant, brought against the intestate, Samuel Goodwin, in his lifetime, and had been continued upon a suggestion *of his death, for the purpose of notifying his executor or administrator to defend the suit. At June term, 1804, Rebecca Goodwin came in as administratrix, accordingly. It was then continued at her motion, and has since been further continued to the present term. And now the counsel for the defendant moved for a further continuance, on the ground, that since the death of Samuel Goodwin, pending this suit, Ins estate had been represented insolvent, and that a commission had thereupon issued from the Court of Probate, for the examination of the claims of his creditors, which is now depending. And it was argued in support of the motion, that a representation of insolvency, is, in every case, a suspension of all proceedings at the common law, until the report of the commissioners shall have been made, and by which it will appear, whether the estate is insolvent, or not; and it seemed to be also understood by the counsel for the defendant, that a decree of insolvency would be eventually a bar of this action, and the plaintiff without remedy, if he should neglect to lay his claim before the commissioners. And the act of June 15th, 1784, (stat. 1784, c. 2, $ 1,) was relied on, as giving, in express words, the right of continuance to the defendant in this case.</p> <p>On the other side, it was said that the practice, since that act, had been to permit the plaintiff to proceed in his action, and have his damages ascertained in the common mode, for which, however, he was not to have execution of course, but the amount of his claim, thus ascertained, was to be added to the commissioners’ report — as in the other cases of disputed claims, respecting which, there is no provision to that purpose in the statute.</p>

<p>This was an action on the case, commenced originally by the bankrupt, against the defendant as sheriff of this county for the default of his deputy.</p> <p>The declaration stated that the bankrupt had recovered a judgment against one Samuel Millet Martin for the sum of 189 dollars and 74 cents, including damages and costs, on which an execution had issued, which was delivered to Samuel Sevey, one of the deputies of the sheriff, and that Sevey delivered the same over to Abner Kean, another of the deputies of the sheriff, and that neither of the deputies had served, executed or returned the same according to the precept thereof; by means whereof Frost had wholly lost the benefit of his said judgment and execution against Martin, and that the defendant thereby became liable, and was bound by law to pay Frost the amount of the judgment and execution.</p> <p>*The defendant pleaded that the said Sevey and Kean, or either of them, were not guilty in manner and form, &c., on which issue was joined ; and the jury, at the trial of the issue in October term, 1803, found that Sevey was not guilty, and that Kean was guilty in manner and form, &c., and assessed damages at 189 dollars and 74 cents, the whole amount oí the judgment and execution.</p> <p>Previous to the trial, file assignee of the bankrupt had been admitted to prosecute the action; and the counsel for the defendant immediately after the verdict had moved in arrest of judgment, and assigned therefor two reasons; viz.: First, That the supposed cause of the action is not by law assignable to the said William, Sullivan in his capacity aforesaid, nor has the same ever been assigned to him by the commissioners named in the commission of bankruptcy against the said Ichabod Frost, the same not having been an existing debt at the time of such assignment by the said commissioners And, Secondly, that the plaintiff’s declaration is not sufficient in law for him the said Sullivan to have judgment upon the same on the verdict aforesaid.</p> <p>The cause had been formerly argued, and continued for consideration. And now,</p>

<p>An indictment for breaking a store, cannot be supported under ,the act of March 15, 1785, (stat. 1784, c. 66,) unless it be averred in the indictment that the store is a building.</p>

<p>The declaration in this case contained three counts. 1. Indebitatus assumpsit, in the sum of 68 dollars and 2 cents, according to an account annexed to the writ. 2. A count for labors, &c., done and performed, and moneys expended at the request of the defendants in relieving, supporting and burying one S. G., a pauper of the said town of Harpswell, upon a quantum meruit. 3. An indebitatus assumpsit, in 62 dollars and 2 cents, for moneys laid out and expended, for the use of the defendants and at their request, in the support, relief and burial of one & G., a pauper of said town of Harpswell.</p> <p>The account annexed to the writ contained the several items of charge, making the said Bum of 62 dollars and 2 cents, for the relief of S. G., a pauper of said town of Harpswell, from the 4th day of Sept. 1802, to the 3d day of Oct. following — and moneys paid for attendance, &c., in his feat sickness, and for his funeral expenses</p> <p>The defendants pleaded the general issue; and on trial at the last (December) term, in this county, before Thacher, justice, the jury found a verdict for the plaintiffs; damage 62 dollars and 2 cents.</p>

<p>A copy shall not be read where the original may be had. A copy of an order by which money has been drawn from the treasury of the commonwealth, thou gh sworn to be a true copy by the treasurer, is not admissib. e; the original must be produced.</p>

<p>This was an appeal from a decree of the judge of probate for this county, settling the estate of Nathaniel Scott, deceased, intestate. The appellants and the appellee were sons and heirs at law of the said Nathaniel, and the judge by his decree settled the whole real estate of the deceased upon his son, the appellee, he paying to the others their equal shares of the value thereof as appraised And the eldest son was considered by the decree as entitled to an equal share therein with the other heirs. From this decree the appellants appealed, and filed the following reasons of appeal viz. : First, Because the deceased in his lifetime executed a deed in fee simple to the said John Scott, for the consideration of love and affection, of fifty acres of land in Deer Isle, which the appellants say ought to have been considered by the judge of probate as an advancement to the said John according to the value thereof; and, Secondly, * because the said John, not being entitled to any part of the estate, ought not to have had the whole assigned to him, but it should have been assigned to the next eldest son.</p> <p>The deed mentioned in the reasons of appeal bore date the 29tb day of May, 1793, and expressed that in consideration of the love and affection the deceased bore to his son John Scott, and in further consideration of five shillings paid by the son to the father, he gave, granted and sold the land mentioned ; and contained the covenants that he was lawfully seised in fee of the premises; that he had full power and lawful authority to dispose of the same as aforesaid, and that he and his heirs would warrant and defend the same to the said John Scott, his heirs and assigns forever, against the lawful claims and demands of all persons.</p> <p>The question in this case was whether, under the act of March 9th, 1784, (stat. 1783, c. 36,) this deed was to be considered as an advancement, and to be estimated in the apportionment of the estate of the deceased as part of the share of the appellee. By the 7th sect, of the act, it is enacted, “ that any deed of lands or tenements made for love and affection shall be deemed and taken an advancement to a child within the intent of the act.”</p> <p>At the last term of the Court holden in this county, the cause was continued, that the appellee might prove that a valuable consideration had been paid by him for the land. And now, the Court, after hearing the testimony of divers witnesses, delivered their opinions.</p>

<p>This was an action of trespass against the defendant, (who was sheriff of this county) for breaking and entering the plaintiff’s sloop, and taking and carrying away the cargo thereof, and converting the same to his own use, &c.</p> <p>The defendant pleaded the general issue ; and gave notice that he should justify the supposed trespass, as sheriff of the county of Hancock, in the due execution of a writ of replevin in favor of John Hunter against the plaintiff, (bearing date, &c., and returnable to the Court of Common Pleas,) by John Clarke, then and now one of his deputies.</p> <p>Upon the trial of this cause, at July term, 1804, the jury found the defendant guilty, and assessed damages at $71 76 cents. The verdict was taken subject to the opinion of the Court whether, upon the declaration in the plaintiff’s writ, and the notice of justification by the defendant, the acts of John Clarke, a deputy of the defendant as sheriff as aforesaid, not especially known or consented to by him, are competent to be given in evidence against him, to maintain the issue for the plaintiff.</p> <p>For the defendant it was said that this action would not lie against the sheriff for the act of his deputy, unless there had been some recognition of the act by the sheriff. 2 Rol. Abr. 552, pl. 9, 10. Laicock’s case, Latch, 187 ; Saunderson vs. Baker & Al. 3 Wils 309; and that there had been no recognition in this case. But if it should be admitted that the action lay without such recognition, yet the declaration ought to have been special, it ought to have stated who was the deputy that did the act complained of as a trespass, that it might appear, by the record, for whose default or * misconduct the sheriff was sued, so that the sheriff might know against what he is to defend; and also, in case of a recovery against him, that he might have his action over against his deputy. There is a difference between the office of sheriff in England and here. There the writ is directed to the sheriff only, and is of course always returned by him; here it is directed to the sheriff and his deputies, and is returned by the deputy who serves it. It does not appear, from the report of any of the cases, where trespass has been brought against the sheriff, there, for the act of his deputy, whether the declaration was general, or stated the particular circumstances of the act complained of; but even admitting that in those cases the declaration was general, the rule will not apply; because there the sheriff must know what he has to defend; for be makes a special warrant for each case ; here, the deputation being general, he cannot know what he is to answer to unless the declaration specifies.</p> <p>The statute of Feb. 25, 1793, (stat. 1792, c. 41,) authorizing officers to plead the general issue, and to give the special matter in evidence, provides, “ that in any action wherein the defence intended to be set up by the defendant is, that he was a sheriff, deputy sheriff, &c., and that the act for which he is sued, is an act or thing done by him, by virtue or in execution of his office, he may plead,” &c. The statute supposes the act to have been done by the defendant, personally, as is obvious from the words, “ an act done by him; ” the deputy is named in the statute, and, to this purpose, is put on the same footing with the sheriff. But the statute does not contemplate nor has it authorized the sheriff to justify the acts of his deputy. The notice, therefore, by the sheriff in this case, was a nullity ; it is no evidence of the recognition by him of the act of the deputy, and * can have no effect upon the question before the Court.</p> <p>For the plaintiff, it was said that the action would lie, on two grounds. First, that the sheriff is answerable, generally, for the act of his deputy, without any recognition whatever. And, secondly, that if, to the maintenance of the action against the sheriff, such recognition is necessary, the defendant has, in the present case, completely recognized the act of the deputy. He has come into Court, taken upon himself the defence of the suit, and justified the act complained of as a trespass, as the act of his deputy in the ex ecution of a writ.</p> <p>In Saunderson vs. Baker & Al., it is true that, from the report of that case in Wilson, it would appear that it was decided on the ground of the recognition by the sheriff of the act of his bailiff But in Ackworth vs. Kempe, (Doug. 40,) it was decided that the sheriff is liable in trespass, vi et armis, for the act of his deputy, without any recognition of the act; and it is there said that the case of Saunderson vs. Baker & Al. is inaccurately reported by Wilson. And it is to be noticed that in that case the act of the bailiff was not recognized by the sheriff; the recognition was by his clerk, the under-sheriff, and therefore was not the act of the sheriff, unless the act of his deputy is his act. It is said on the other side that there is a difference between the office of a sheriff in England and here. It is true that there is a difference in one particular; there the sheriff always returns the writ; here the deputy may do it. But in every thing else there is no essential difference. By the whole scope of our laws it appears that the sheriff, and he only, is the officer respecting whom the law has made particular provision. By the constitution, sheriffs are to be appointed by the executive. Aral the statute (a) requires them to * give bonds to the treasurer of the commonwealth for the faithful performance of the duties of their office, and to answer for the malfeasance, &c. of their deputies. But the sheriff appoints his jwn deputies; they have no authority but what is derived from him; he chooses such persons as he thinks fit; takes such security of them as he thinks proper; and they hold their offices at his pleasure. And unless he were, in all instances, accountable for the acts of his deputies, done by color of their office, the person injured might have no remedy at all; it very frequently being the case, that the deputy is wholly unable to make compensation for his torticus acts</p> <p>Then as to the declaration; wherever the action is trespass, vi et armis, it must, from the nature of it, be in the present form ; and it cannot set out the act of the deputy. There is no necessity nor use in having it appear, by the record, that the sheriff is sued for the act of his deputy. A recovery in such case against the sheriff would not conclude the deputy in an action brought against him by the sheriff; because the deputy was not a party to the suit. And if the record would not, of itself, be conclusive evidence against the deputy, the objection fails. Besides, the sheriff could more easily prove his case here against his deputy than could be done in England; because here the service of the writ appears by the return on it made by the deputy himself.</p> <p>The law considers the sheriff and his deputies as one person; the authorities are clear and decisive. Both the cases cited were trespass, m et armis; and the only objection, which seemed to weigh with the Court, in one of the cases, was, that the sheriff had not made the act his own by some recognition. But that objection can have no weight in the present case, because the sheriff has, on record, recognized the act. And there is no * authority to show that any other action can be maintained against the sheriff, in a case like the present.</p> <p>It has been said that by the statute authorizing officers to plead the general issue, the sheriff has no authority to justify the doings of his deputy ; and therefore that the notice by the sheriff in this case was a nullity, and can have no effect upon the question before the Court. But the statute has not undertaken to determine what shall be considered as the act of the sheriff, or to ascertain how far or in what cases he shall be accountable for the acts of his deputies; these are all left, as before, to be decided on the principles of the common law. And if by those principles the act of the deputy is, in this case, the act of the sheriff, then he is justifying his own act; and it comes to the same point, whether it was done personally by the sheriff or by the instrumentality of his deputy.</p> <p>In reply, it was said, that in all the precedents of declarations, here, the malfeasance of the particular deputy, by name, was stated ; (a) that from ¿lie dangers and ill consequences to the sheriff, unless he had notice, in this way, to prepare for trial, the practice had been adopted; and that there could be no necessity of varying from it. The statute must be taken as it is. The sheriff may justify his own doings ; the deputy-sheriff his ; but it does not say that the sheriff may j ustify the acts of his deputy.</p>

<p>This was an action of debt on a judgment recovered in the state of New Hampshire. The defendant was, in the present action, described as of Poland, in the county of Cumberland, in the commonwealth of Massachusetts.</p> <p>The defendant prayed oyer of the record of the judgment mentioned in the declaration, (which was as follows, viz., “ State of New Hampshire, Rockingham, ss. At the inferior Court of Com mon Pleas, holden at Exeter, within and for the county of Rocking-ham, on the second Tuesday of August, Anno Domini one thousand seven hundred and ninety-one. Present the Honorable Timothy Walker, John Calfe, and William Parker, Esqrs., justices of said court. Thomas Bartlet of Nottingham, Esq., plaintiff, against Abraham Knight, Jun., late of Nottingham, aforesaid, yeoman, defendant, in an action of the case, for that the said [ * 402 1 Abraham, at said Nottingham, on the * twenty-first, day of September, Anno Domini 1784, by his note of that date by him signed, for value received, promised' to the plaintiff to pay him or his order the sum of twenty-eight pounds, ten shillings, lawful money, to be paid in good merchantable Indian corn, at or before the 20th day of December, Anno Domini 1785, delivered at the said Bartlet’s house, at cash price, with interest till paid. Yet, though said time is past, and though requested, the said Abraham has not paid said sum, or the interest in corn as aforesaid, nor has he in any other way paid the same, but neglects it. To the damage of the said Thomas, as he says, the sum of forty-five pounds. This action was commenced at the inferior Court of Common Pleas, for said county of Rockingham, February term last, and continued from term to term, until this term ; and now, at this term, the said Abraham Knight, Jan., being three times solemnly called, appeared not, but made default; and the plaintiff appearing and proving his declaration, it is therefore considered by the Court that the plaintiff recover against the said Abraham, Knight, Jan., £40 2s. Id. damage, and costs of suit, taxed at £3 Is. 3d., by the plaintiff in that behalf expended. Execution issued August 29,1791, and returned satisfied in part, viz., for the sum of £27 9s.”) and then pleaded in bar that, at the time of signing the note, mentioned in the judgment, and at the time of making the promise therein mentioned, he was an infant, under the age of twenty-one years, viz., of the age of fourteen years, and no more.</p> <p>The defendant, by the leave of Court, pleaded a second plea in bar, in which he alleged that, at the time of making the promise, and at the time when the said judgment was rendered thereon, and during all the time between the time of making the note and promise, and the recovery of said judgment, and ever since, he was, has been, and still is, * an inhabitant of and [ * 403 ] resident in said town of Poland, and at the time of signing the note and making the promise, and at the' time of the recovery of the judgment, that he was a minor, under the age of twenty-one years ; that is, at the time of the recovery of said judgment, of the age of twenty years, and no more.</p> <p>General demurrer to both the pleas, and joinder.</p> <p>This case was argued at a former term. And it was now said, by the counsel for the plaintiff, that by the constitution of the United States, and by the law of congress, the judgment was conclusive evidence of a debt, and could not be called in question in the manner attempted by the pleas of the defendant. In sect. 1 of the 4th article of the constitution, it is declared that “ Full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings, of every other state. And the congress may by general laws prescribe the manner in which such acts records, and proceedings, shall be proved, and the effect thereof.” That the act of congress (a) having, pursuant to the article in the constitution, prescribed the mode in which the acts, records, and judicial proceedings, in each state, shall be authenticated, and having declared that the said records, &c., so authenticated, “ shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are or shall be taken,” has by necessary implication declared the effect of a judgment to be the same in every state that it has in the state where it was rendered. The faith and credit that in the state of New Hampshire would be given to the judgment on which the present action is brought, would be such [ * 404 ] that it would be absolutely incontrovertible * evidence of a debt; and nothing which tended to impeach the validity of the re.covery of the judgment, would there be permitted to be pleaded in bar to an action of debt upon it; and therefore a plea of that sort cannot be allowed here. By the constitution and the act, these judgments have the same force and effect, so far as respects the question now before the Court, as one of our own domestic judgments; and consequently the pleas in ba,r are bad.</p> <p>For the defendant, it was said, that congress had not declared the effect; but had merely prescribed the mode in which records, &c., should be authenticated ; that, declaring they should have, when so authenticated, such faith and credit given to them as by law or usage they have in the state where rendered, extended no further than to make them incontrovertible evidence of every thing that appeared by the record, viz., that the judgment was recovered, by and against the parties named, for the sum and for the cause of action expressed; in the manner stated, i. e. whether upon default or trial, &c. &c.; that, in every other respect, they were on the footing of foreign judgments ; which are prima facie evidence of a debt; but it is competent to the defendant to show that such judgment was unduly or irregularly obtained.</p>

<p>On the 17th of March, 1804, the overseers of the poor of the town in which the appellant lived, made a representation to the iudge of probate that the appellant was incapable of taking care of himself, he being non compos, (a) Thereupon the judge directed the selectmen “to make inquisition thereinto.” And the selectmen having adjudged him to be incapable of taking care of himself, and having certified the same to the judge, he, on the 4th of April, 1804, appointed the appellees the guardians of the appellant. Since that time the appellant made application to the judge to have the letters of guardianship set aside and his estate returned * to him, because, as he alleged in his application, he was restored to the use of his reason. The judge decreed that the application be dismissed; from which decree the appellant appealed, and filed as the reason of the appeal that he is compos mentis. (b)</p> <p>For the appellees it was said that the statute had not authorized the judge of probate to remove guardians by him appointed ; and therefore that his decree could not have been other than it was. But however that may be, this Court ought not to sustain the appeal, because bonds have not been given as required by the act of March 12th, 1784, (stat. 1783, c. 46.) By the 4th sect, of that act, it is provided that bonds shall be given and filed in the probate office by the appellant from any decree, &c. of the judge of probate, for the prosecution thereof to effect, and for paying costs, &c. No bonds have been given in this case; the Court therefore cannot sustain the appeal. The words of the statute are general, and make no exception.</p> <p>For the appellant it was insisted that although there is no provision in the statute as to the power of removal, yet it was necessarily incident; that the cause ceasing, the appointment ought to be vacated. And it would be, not only absurd, but unjust in the extreme, that where an appointment of this kind had been made, an appointment, as the case may be, for a mere temporary inability, that the authority of the guardian should continue forever. As to the bond ; while the appellant was under guardianship his botid would be void ; it would therefore have been idle and nugatory to have given it, which was the reason why he did not give any. The appellees have, by their appointment as guardians, the custody and care of both the person and property of the appellant if they prevail in this case, they will continue to hold * his property, and can indemnify themselves ; if the appellant succeed, the bond, had erne been given, would, of course, be at an end. The statute, therefore, was never intended to extend to a case like the present.</p> <p>In reply it was said, that giving bonds was at least an essential form, and expressly required by the statute. And although, in this particular case, the necessity or use of giving bond could not be discerned by the Court, yet the statute having required bonds to be given in all cases, the presumption is that it is useful ; and the Court will not undertake to make an exception, when none is made by the legislature. A minor must procure some person to give bonds for him, and so might the appellant have done in this case. But if the allegation of the appellant, in his petition, be true, his own bond would have been good ; for he there says that he is now compos mentis; and in either case there is no reason why bonds should not have been given. There is another objection, as to the form of proceedings Can the appellant be a proper person to bring forward this suit ? It is conceived that while he was under guardianship, his capacity of acting was so taken away that he could not prosecute in person, but that he ought to have appeared by his next friend.</p>

This was a writ of error brought upon a judgment of the Court of Common Pleas in this county, rendered on an award of referees to whom the parties had submitted their disputes under a rule entered into and acknowledged before a justice of the peace, as provided in the statute of July 7, 1786, (stat. 1786, c. 21.) It appeared by the record and process that the parties entered into the rule on the 24th day of October, 1801; that the referees met and heard the parties on the…

<p>This was an action of replevin, in which the plaintiff was non-suited. The goods had been attached, on mesne process, by the defendant, who was an officer; and the only question now before the Court was, what damages the defendant was entitled to recover.</p> <p>For the defendant it was said that he ought to recover six per cent, on the penal sum of the bond; the statute of June 25, 1789, (stat. 1789, c. 26, § 9,) having enacted that “ in case the plaintiff in replevin shall neglect to enter and prosecute the suit, the defend ant may have judgment for a return, &c., and the damages for the taking, to the amount of six per cent, on the bond.”</p> <p>For the plaintiff it was said that in cases of taking on mesne process, the damages were to be ascertained by an inquiry into the particular circumstances of each case, (not, however, in any case, going beyond six per cent, on the penal sum of the bond,) which was implied by the expression in the statute, “ may ” have damages to that amount. In case the taking had been on execution, the statute has provided that “the interest of six per cent, on tne penal sum of the bond shall be taken as the rule for estimating the plaintiff’s damages ; ” and the reason is obvious; for in that case there is an ascertained debt; but in the case of taking on mesne process, the plaintiff in such suit may have no cause of action ; or he may not recover, ultimately, more than ten dollars, when the bond was given for two thousand; and, therefore, the damages to be recovered by the defendant in this action were dependent, and ought to be, upon the particular circumstances of the case.</p>

<p>This was a writ of error brought upon a judgment of [ * 423 ] the Court of Common Pleas in this * county, rendered on the verdict of a jury upon the complaint of Lowell for damages done by flowing his land. The substance of the record of the Court of Common Pleas is as follows, viz.:—</p> <p>“ Sylvanus Lowell complains of Seth Spring, for that he, the said Lowell, is the owner, and seised of a certain tract of land in Biddeford, (describing it,) and that the said Spring, on the first day of September, 1794, built a certain mill-dam across Saco River, (on which the premises bounded,) to raise a head of water sufficient to work a certain saw-mill standing on the land of said Spring, and by so doing, he raised the water of said river to the height of four feet, and caused it to flow over a large part of the said farm of said Lowell, and essentially to injure it, and in many parts totally to ruin it; and also to destroy entirely an excellent spring of cold water; and though the complainant has received satisfaction (as the same has been adjudged to him) to the 10th day of April, 1800; and though a jury have viewed the lands and returned their verdict as to the sum the said Lowell was, in their opinion, entitled to .receive as compensation for said flowing—yet the complainant is dissatisfied with said verdict and appraisement; wherefore, for an increase of such yearly compensation, he prays, that the sheriff of said county may be directed to empannel another jury to appraise the said yearly damage occasioned by said dam and flowing, and the continuance of the same.” The complaint was entered October term, 1801 ; when it appeared that Spring was notified of the same ; thence continued to April term, 1802, when Spring did not appear, but made default: a warrant was then granted, at the prayer of the complainant, as the. law directs; and the complaint continued, from term to term, to August term, 1803, to receive the return of the sheriff. The warrant directed the sheriff to summon and * empannel a jury of twelve good and lawful [ * 424 ] men of said county, which jury were to be sworn to make a true and faithful appraisement of the yearly damage done to the complainant, and how far the same is necessary, and what proportion of the year the said lands ought not to be flowed, and when public convenience and the circumstances of the case do not justify such flowing ; and whether the yearly damages assessed by a former jury ought to be increased, and if any, .how much ; which jury were to try the cause and make return of their verdict therein. At August term, 180-3, the sheriff returned, that on the 22d June, 1803, pursuant to his precept, he had notified the parties, and had summoned a jury of twelve good and lawful men, who had been sworn, which jury he had conducted on the premises mentioned in the complaint, who heard the parties and their evidence, and that he had kept the jury by themselves until they had agreed and sealed up their verdict, which he returned with his precept into court. The verdict was, “ that after carefully viewing the premises mentioned in the complaint, and diligently attending to the evidence produced by the parties, the jury found Spring guilty of flowing a part of the land described in the complaint, and appraised the damage, for the injury done, at forty dollars each and every year since the 10th day of April, 1800, up to which time the complainant had received damage as awarded by a former jury, as appeared by the warrant; and further that the public convenience and the circumstances of he case do not justify such flowing from the 20th day of April to the 20th day of November in each year.” And the complainant, by his attorney, in court, before the allowance of the verdict, remitted to Spring all that part of the damage appraised and estimated, which the jury allowed as compensation [ * 425 ] for said flowing from * the said 10th day of April, 1800, to the 10th day of October, 1801, [the time the present complaint was filed in court,] and consenting to take judgment on the verdict, claiming damages as therein appraised and estimated, and at the rate aforesaid, from the said 10th day of October, as mentioned in the verdict, and onward ; Spring moved in arrest of judgment; [see afterwards;] the motion was overruled, and judgment rendered that the return of the sheriff, together with the verdict of the jury, be allowed and recorded ; and thereupon ordered thaf the said sum of forty dollars be considered as the measure of the yearly damages to the complainant; and that he recover costs, &c.</p> <p>The errors assigned, being, substantially, what were alleged as reasons for arresting judgment, were—</p> <p>1. That it doth not appear that the jury were sworn according to law, which requires that they should be sworn to make a true and faithful appraisement of damages, and how far the flowing complained of might be necessary.</p> <p>2. That the jury appraised the damages sustained by the said Lowell from the 10th day of April, 1800, to the 10th day of April, 1803, whereas the verdict of a jury formerly had and judgment thereon is the measure of the yearly damages until an increase or decrease of said damages shall, by legal process, be obtained.</p> <p>3. That the jury, in the present case, in the verdict by them returned, say that the said Spring is guilty of flowing part, but do not say what part of the land mentioned in the complaint.</p> <p>• 4. That it doth not appear by the return of the sheriff, on the precept from the said court to him directed and delivered to be executed, by whom the jury, by virtue of said precept to be empannelled, were sworn ; nor what was the nature of the oath to them administered.</p> <p>[ * 426 ] * The defendant in error pleaded in nullo est erratum.</p> <p>As this Court, in giving their opinions, confined themselves (principally) to the first error assigned, it is not thought necessary to state the arguments of the counsel as to the other errors.</p>

<p>This was an appeal from a decree of the judge of probate for this county, distributing the estate of Amos C. Adams to and among those creditors who had made out their claims before the commissioners. The appellant was one of the creditors, and the appellees were other creditors of the estate, whose claims had been allowed by the commissioners. The appellant, being dissatisfied with the allowance to the appellees, appealed from the decree of the judge establishing the report of the commissioners, and directing distribution to be made accordingly; and filed the following reasons of appeal, viz.:—</p> <p>1. That the claims of the appellees against the estate aforesaid were unjust and not recoverable bv law ; they all being on promises or contracts of the deceased made during his minority, and therefore void.</p> <p>2. That the administrator, whose duty it is to litigate any claims offered against said estate against which any legal objec- [ * 432 ] tion lies, did neglect *and refuse to oppose said claims before the commissioners, and before the judge aforesaid, upon the return of their report.</p>

This was an action of debt on a judgment recovered by the plaintiff against the defendant at April term, 1799, for the sum of $293 68 cents, including damages and costs.

<p>This was an action for a legacy, (a) The plaintiff’s father, by his last will and testament, bequeathed to him the legacy for which the action was brought. The defendant was named executor in the will, and had certain real estate devised to him, which was charged with the payment of the legacy. The action was brought against the defendant as. executor, on the supposition that he had accepted the trust; but since the commencement of the action, the plaintiff having discovered that the executor had refused the trust, his counsel (Holmes) now moved foi leave to amend the declaration so as to charge the defendant as devisee.</p>

<p>This was an action upon a policy of insurance effected the 7th day of August, 1797, upon the ship Paulina, and appurtenances, and cargo, (being lumber,) from Biddeford to port or ports in the West Indies, and at and from thence to her port of discharge in the United States, beginning the adventure upon the vessel and cargo from Biddeford, and to continue during the voyage aforesaid, and until the vessel should be arrived and moored at anchor twenty-four hours in safety at her port of discharge in the United States. The cargo warranted free from average under - per cent. The defendant was an insurer to the amount of 500 dollars, one moiety on the vessel and appurtenances, and the other moiety upon the cargo; at 25 per cent, premium. The declaration contained two counts:—1. on the policy, and, 2. indebitatus assumpsit for 200 dollars money had and received; and the case was submitted to the Court on the following state of facts, viz.: That the defendant under wrote upon the policy of assurance as set forth in the first count in the plaintiff’s declaration, and received the premium therein men tioned; that the said ship Paulina sailed from Biddeford on oi about the 18th of July, 1797, bound to Antigua and a market, with orders to proceed as far to leeward as Jamaica, unless a good market could be found beforehand arrived at Antigua on or about the 25th of August following; that, in the course of said voyage, said vessel sprung a-leak, and had a continual leak, which prevented her proceeding further without repairs; that at said Antigua the deck load was landed, and the vessel in part hove down, and her sides calked and repaired at great expense, with a view of proceeding further but not being able to stop the leak, her cargo (consisting *of lumber) was sold, and the vessel further exam- [ * 437 ] ijued, and two worm-holes were found through her bottom cff about three quarters of an inch diameter, which were stopped, and the vessel hove down and repaired at great expense; and after-wards sailed for Saco, and on the morning following fell in with a French privateer, and went into St. Bartholomews to avoid her, where the captain was under the necessity of reshipping the net proceeds of his cargo in another vessel, the brig Hope, to Portland, in the United States; after which said vessel proceeded to Norfolk in Virginia, instead of Saco, leaking badly on the passage; at Norfolk she was hove down several times, and a leak discovered in her stern-post, which was then supposed to be the principal leak ; after stopping said leak, a cargo of lumber was taken on board, and said vessel proceeded to Jamaica, leaking badly the whole passage; that after discharging her cargo, said vessel proceeded for said Norfolk in ballast, it not being judged safe to take a cargo of sugar on board; and in consequence of the leaky situation of said vessel, and stress of weather, the people on board were obliged to keep the pumps continually going to keep her from sinking, and she was compelled to put into Wilmington, in North Carolina, where, upon heaving her down, a bolt hole of one inch and a quarter diameter was discovered through her keel, passing up under her keelson; that said vessel was new at the time of her sailing, and built on contract; that the auger-hole and worm-holes were open at "the time of her sailing from Saco, (a) but of which neither party had any knowledge ; that if said vessel had proceeded from Antigua to Jamaica with her outward bound cargo, the same would have sold for double the price it was sold for at Antigua.</p> <p>* And if the Court should be of opinion, from the [ * 438 ] above state of facts, that the plaintiff is entitled to recover as for a return of premium, then the defendant agrees to be defaulted, and that judgment be rendered for a return of premium agreeably to said policy, and costs of suit; but if, from said statement, the Court should be of opinion that the plaintiff is not entitled so to recover, the plaintiff agrees to become nonsuit, and that judgment be rendered against him.</p> <p>This cause was argued at May term, 1804, in this county, by P. Mellen for the plaintiff, and Livermore for the defendant, before Dana, C. J., Strong, Sewall, and Thacher, justices. And now,</p>

<p>The plaintiff in error, being the clerk of a company in the militia, entered his complaint against the defendant, with a justice of the peace, in conformity to the statute of June 22d, 1793, (stat. 1793, c. 14, § 23,) for the neglect of the defendant to appear upon a muster day, as notified ; whereby he had forfeited, &c.: the defendant appeared before the justice according to the summons which issued upon the complaint, and pleaded in abatement that he ought not to be holden to show cause why a warrant of distress should not issue, because the summons was not issued by the justice, nor served on the defendant, within sixty days next after the time when the supposed offence was committed, &c. To which plea the complainant demurred generally, and the defendant joined in demurrer. The judgment of the justice, upon the demurrer, was, that the plea in abatement was insufficient, and that the defendant should answer over to the complaint; whereupon * the defendant, reserving to himself the issue on the de- [ * 444 ] murrer and plea aforesaid for trial at the Court of Common Pleas by way of appeal, which appeal from the judgment rendered as aforesaid, he, fhe said defendant, then claimed, pleaded the general issue, not guilty, which was joined ; and judgment rendered thereon, by the justice, that the defendant was guilty, and that the complainant recover against the defendant one dollar, sixty-six cents, debt or damage, and costs of suit taxed at seven dollars and sixty-six cents; and the justice refused to grant the appeal claimed by the defendant as aforesaid. At the then next term of the Court of Common Pleas, the same Court, on motion, did allow and sustain the appeal claimed by the defendant from the judgment rendered before the justice, (which appeal was so refused by the said justice,) in the same way as though the said appeal had been granted by the justice, and ordered the defendant to recognize to prosecute his appeal in that court, &c.; and he recognized accordingly; and further ordered notice to be given to the complainant to appear at the then ensuing term of that court, to prosecute his original action and abide the order of the court thereon ; at which term, the parties were heard upon the demurrer, &c., and the Court of Common Pleas adjudged the plea in abatement to be good and sufficient, and that the original summons be abated.</p> <p>To reverse which judgment, and establish the judgment of the justice, the complainant brought this writ of error, and assigned the errors following, viz.: First, that by law no appeal was given or allowable from the judgment, rendered by the said justice against the defendant; but that the right to an appeal was expressly taken away by a statute of the commonwealth.</p> <p>Secondly, that it appears, by the record and process [ * 445 ] aforesaid, that, although an appeal from the * judgment of the said justice was claimed by the defendant, and the same was then and there refused, yet it does not appear, by said record or process, that the defendant entitled himself to an appeal by recognizing or offering to recognize with sufficient surety or sureties to prosecute such appeal with effect.</p> <p>And, Thirdly, that said Court of Common Pleas adjudged the plea in abatement to be good and sufficient; whereas the judgment of the same court (if it had by law any power to sustain said appeal or any jurisdiction in the cause) should have been that the plea in abatement was insufficient, and that the defendant should answer over to the charges stated against him in the complaint.</p> <p>The defendant pleaded in nrllo cst '-"r atura.</p>

<p>Assumpsit. The declaration contained two counts. First, Indebitatus assumpsit for money laid out and expended. The Second stated, that on the tenth day of December, 1802, one E. J., being an inhabitant of the said town of Edgecumbe, and having a lawful settlement therein, but then found in and residing in the said town of Freeport, in distress, and standing in need of immediate relief, the plaintiffs, as they were obliged thereto, then and there provided for her relief, &c., from the said 10th day of December to the 10th day of June following; that they gave notice to the defendants on the 22d day of April, 1803 ; and that, having so provided, the defendants became liable to pay, &c., and promised to pay accordingly; and that, by force of the statute, action had accrued, &c.</p> <p>The defendants pleaded, First, the general issue; and Secondly, protesting that the said E. J. was not an inhabitant of Edgecumbe, and that she had not a lawful settlement therein, for plea said that the said E. J. was not a pauper, and that she had *an estate, and was of sufficient ability to maintain [*460] herself, &e.</p> <p>To this plea there was a general demurrer, and joinder.</p>

<p>An action upon the covenant of warranty in a deed of land cannot be maintained without showing an eviction.</p>

<p>This was a petition by the administratrix for the review of an action, in which a judgment was rendered in the Court of Common Pleas, upon the default of Knight, for the sum of 326 dollars 79 cents damages, stating that there was a mistake, in the computation, of thirty-four dollars and nineteen cents; and that, on discovering the mistake^ she had given notice thereof to Knight, and requested him to pay the sum, which he had refused to do Knight, having had regular notice of this petition, was called, but did not appear.</p> <p>L * 468 ] * It appeared, and was so alleged in the petition, that the. action was brought upon a note of hand, and the mistake originated from the mere error of the clerk in computing the interest on the note.</p>

The demand was for dower claimed by the demandant in a certain tract of land, described in the declaration, which set forth, in common form, the seisin of the husband during the coverture, and alleged that the said Hannah Russell had entered, into the premises, deforced the demandant of her reasonable and legal dower, and still held her out of the same ; and that on the 18th day of February, 1803, the dower was demanded in due form, &c. Plea in bar, as to part, that at the…

<p>Sailors’ wages not attachable under the trustee-law, unless the vessel has arrived at some port of unlading.</p>

<p>This was an indictment against “ Hiram Ward, Edmund Roberts, and Nathaniel Reed, all now residing in Portland, traders,” stating that they, being wicked and evil-disposed persons, and unjustly devising and intending to defraud one William P. Davis of said Portland, trader, of his moneys, goods, and merchandise, on the 13th day of April last past, at Portland aforesaid, in the county aforesaid, with force * and arms, falsely, fraudulently, and un- [ * 474 ] awfully, did conspire, combine, confederate and agree among themselves to obtain, acquire, and get into their hands and possession, of and from the said William P. Davis, his goods and merchandise upon credit, and then to abscond out of this commonwealth, and defraud him thereof; and the said Ward, Roberts, and Reed, in pursuance of, and according to the conspiracy, combination, confederacy, and agreement, so as aforesaid had between them, then and there falsely, fraudulently, unlawfully, and deceitfully, did pretend to the said William P. Davis, that they, the said Ward and Roberts, were about to open a retail grocery-store in the said town of Portland, for the vending and disposing of sundry goods and merchandise, in that business and employment, for the term of one year, next following the 13th day of April aforesaid, at least, and that they had contracted for and actually hired a convenient store in said town of Portland, for that purpose; and the said Ward and Roberts, in pursuance of the conspiracy, combination, confederacy, and agreement, aforesaid, so as aforesaid had between them and the said Reed, did then and there request the said William, P. Davis, to furnish them with the following goods and merchandise, upon credit, viz.: one pipe of Geneva, one pipe of Brandy, one barrel of Sugar, one barrel of Cherry-rum, and one hundred pounds weight of Copperas, all of the value of 320 dollars; that the said William P Davis, giving credit to the false, fraudulent and deceitful practices and affirmations of the said Ward and Roberts, did, then and there furnish and deliver to them the goods and merchandise aforesaid, upon credit, viz., one quarter part thereof to be paid for upon the delivery of the same, and the other three quarters to be [ * 475 J paid for in sixty days from the delivery of * the same • whereas, in truth and in fact, the said Wrard, Roberts, and Reed, or either of them, never intended to open a retail grocery-store, for the vending and disposing of goods and merchandise in that business in the said town of Portland, for the space of one year, or for any other length of time whatever; but were then and there idle, dissolute and vagrant persons, wholly unable to pay the said Davis for his said goods and merchandise, and then and there, in pursuance of and according to the conspiracy, combination, confederacy, and agreement, aforesaid, obtained the possession of and credit for the same as aforesaid, for the purpose of cheating and defrauding the said Davis thereof, and after having obtained the possession of said goods as aforesaid, to sell the same at an under price, and greatly below the real value thereof, and before the expiration of the said sixty days, falsely, fraudulently, deceitfully and secretly, to withdraw themselves out of the commonwealth, ana abscond to places unknown to the said William P. Davis.”</p>

<p>Feme-covert not chargeable for larceny jointly with her husband. Removing a plank which is loose, and is not fixed to the freehold, in a nartition wall of a ouilding, is not a breaking within the statute.</p>

This was a writ of error upon a judgment of the Court of Common Pleas for this county, rendered against Simeon Knapp, by default in an action upon a promissory note alleged to have been made by him on the 11th day of April, 1803, payable to one Simon Crosby or his order and by him endorsed to Flavel Crosby, the defendant in error.

<p>This was a writ of error brought by Matthias Smith, of W., in the county of Kennebeck, to reverse a. judgment recovered against him in the county of Bristol. The judgment complained of was rendered in the Court of Common Pleas for the county of Bristol, in June term, 1786, in favor of Lemuel Franklin of S., in the county of Bristol, and Jabez Barney of S. aforesaid, “ which said Jabez Barney is administrator of the goods and chattels, rights and credits, of Israel Barney, late of iS'., deceased,” against “ Matthias Smith of W., in the county of Lincoln, (a) on a note of hand made by Smith to the intestate, in his lifetime, and the [ * 481 ] said Franklin jointly. The judgment was * entered in this form, viz.: “ It is therefore considered that the said Lemuel Franklin, and Jabez Barney, in his said capacity, recove> against the said Matthias Smith the sum of,” &c.</p>

<p>■A judgment in review.</p>

<p>The printed hook of the printers to the General Court is not evidence of private acts, as it is of public statutes. An agent, who has an appointment in writing must produce it, and cannot testify as to its contents, unless it is losti or destroyed. In trespass qu. clau.freg., if the defendant sets up in defence ad- ' verse possession, to prevent the plaintiff from recovering damages, he must prove a continued, open, visible, actual possession, or his defence will not avail.</p>

<p>This was an indictment against the defendants, Samuel Foster, David Page, and one Richard Foster, for an assault and battery upon one Philip Weaver, he, the said Philip, being, as was alleged, duly and lawfully appointed to serve and execute a certain warrant legally issued against the said Richard Foster; and the said Philip being in the due and lawful execution of the same warrant.</p> <p>Samuel Foster and David Page, upon the plea of not guilty, were tried together; and the jury found that they were severally guilty, subject, however, to the opinion of the Court whether the warrant given in evidence and filed in the case was a lawful authority to the said Philip Weaver, and his assistants who acted under the same, in arresting and detaining the body of the said Richard Foster.</p> <p>The warrant was issued by a justice of the peace for [ * 489 ] the county of Kennebeck, (upon the complaint * of one John Price upon oath, which charged that Richard Foster, on the 15th day of September, 1803, committed an assault and battery on the complainant,) bore date the 16th day of the same month, and was directed “ To the Sheriff of the said County, or his Deputy, and to all or any of the Constables of the Town of Winthrop in said County, or to Philip Weaver, Jm.,” commanding them to apprehend the said Richard Foster, and bring him before some justice of the peace for said county, to answer to the foregoing complaint, &c. &c. •</p> <p>The verdict was found at June term, 1804, and the case was continued for consideration until the present term. And now, after argument by Wilde for the defendants, and the Solicitor-General (Dana) for the prosecution, the Court delivered their opinions.</p>

<p>Plea in abatement of a former action must show that it is pending, and must also refer to the record. Want of form in a plea in abatement may be taken advantage of, on a general demurrer.</p>

<p>This was an action of covenant, brought against the intestate, Samuel Goodwin, in his lifetime, and had been continued upon a suggestion * of his death, for the purpose of [ * 503 J notifying his executor or administrator to defend the suit. At June term, 1804, Rebecca Goodwin came in as administratrix, accordingly. It was then continued at her motion, and has since been further continued to the present term. And now the counsel for the defendant moved for a further continuance, on the ground, that since the death of Samuel Goodwin, pending this suit, his estate had been represented insolvent, and that a commission hud thereupon issued from the Court of Probate, for the examination of the claims of his creditors, which is now depending. And it was argued in support of the motion, that a representation of insolvency, is, in every case, a. suspension of all proceedings at the common law, until the report of the commissioners shall have been made, and by which it will appear, whether the estate is insolvent, or not; and it seemed to be also understood by the counsel for the defendant, that a decree of insolvency would be eventually a bar of this action, Eyid the plaintiff without remedy, if he should neglect to lay his claim before the commissioners. And the- act of June 15th, 1784, (stat. 1784, c. 2, § 1,) was relied on, as giving, in express words, the right of continuance to the defendant in this case.</p> <p>On the other side, it was said that the practice, since that act, liad been to permit the plaintiff to proceed in his action, and have his damages ascertained in the common mode, for which, however, he was not to have execution of course, but the amount of his claim, thus ascertained, was to be added to the commissioners’ report—as in the other cases of disputed claims, respecting which, there is no provision to that purpose in the statute.</p>

This was an action on the case, commenced originally by the bankrupt, against the defendant as sheriff of this county for the default of his deputy.

<p>This indictment charged that the defendant broke and entered the store of J. P., with an intent to steal, and that he stole therefrom divers goods, &c., against the statute, &c. Plea, not guilty Verdict, guilty.</p> <p>By the statute of March 15, 1785, sect. 8, (stat. 1784, c. 66,) it is enacted, “ that if any person shall break up any dwelling-house, in the day time, with an intent to steal, or commit any felony, or break up any warehouse, shop, mill, malt-house, barn, stable, out house, or any public building, or other building whatsoever, or any ship, or other vessel, being within the body of the county, by night or by day, with an intent to steal, or cpmmit any felony, and being thereof convicted, shall,” &c.</p>

The declaration in this case contained three counts. 1. Indebitatus assumpsit, in the sum of 62 dollars and 2 cents, according to an account annexed to the writ. 2. A count for labors, &c., done and performed, and moneys expended at the request of the defendants in relieving, supporting and burying one S. G., a pauper of the said town of Harpswell, upon a quantum meruit. 3.

<p>Assumpsit for money had and received. Plea, the general issue.</p>

This was an appeal from a decree of the judge of probate for this county, settling the estate of Nathaniel Scott, deceased, intestate.

This was an action of trespass against the defendant, (who was sheriff of this county) for breaking and entering the plaintiff’s sloop, and taking and carrying away the cargo thereof, and converting the same to his own use, &c. The defendant pleaded the general issue; and gave notice that he should justify'the supposed trespass, as sheriff of the county of Hancock, in the due execution of a writ of replevin in favor of John Hunter against the plaintiff, (bearing date, &c.,…

<p>On an appeal from a decree, of the judge of probate against the application oí one who had been put under guardianship as non compos, to have the letters of guardianship revoked, the appellant need not give bonds to prosecute ths appeal.</p>