Volume 10 — Massachusetts Reports

<p>Assumpsit on two bills of exchange, of which William Levereti, the defendant’s intestate, was the first endorser.</p> <p>The action was tried on the general issue, at the last November term in this county, before Parker, J., from whose report of the trial the following facts appear: —</p> <p>. The bills in question were drawn by Robert Fields, on the 9th of January, 1809, upon Frederick Dawson, of Mile-End-Road, London, payable, in sixty, days after sight, to said William Leverett or order, and, on the 19th of January aforesaid, sold to the plaintiff in New York, through the agency of a Mr. Willard, of Boston, who transmitted them to the plaintiff, the said Leverett having endorsed them, and having received five per cent, advance on the face thereof.</p> <p>On the 27th of the same January, the plaintiff remitted the [ * 2 ] * bills to his correspondents in London, who received the same on the 25th of the ensuing March; and on that and the succeeding day, the clerks of the merchants in London made diligent search for Lawson, the drawee, but were unable to gain any intelligence of him : on the contrary, they ascertained that there had been no such person as Frederick Lawson at Mile-End-Road. On the 1st of April, the bills were carried to a notary, who noted the same for non-acceptance; but there was no evidence that any protest for non-acceptance was ever made, except what arises from a letter to the plaintiff from Messrs. Holford &/■ Gonne, merchants of London, to whom the said bills had been remitted, dated the 5th of April, 1809, stating, among other things, that, in the course of their inquiries, they had called on Messrs. Thomas Murdock &/■ Co., who offered to take up the bills, at their maturity, for the honor of the plaintiff, and had delivered to them the protest in form, &c. This letter was received by the plaintiff on the 9th of June, 1809, and the contents thereof immediately communicated to Mr. Willard in Boston, and by him to Leverett, the endorser. On the 3d of June, 1809, the bills were duly protested for non-payment, and were taken up and paid by said Murdock 8f Co.</p> <p>On the 19th of June, Murdock &f Co. wrote the plaintiff that the bills had been protested for non-payment, and that the bills and protest were forwarded ; and upon receipt of this letter, information was immediately communicated to Mr. Willard, and by him to Leverett. No protest came to hand with said letter; and the only evidence that a protest was forwarded, except what arises from said letter, was contained in the deposition of John P. Glen, clerk to" Messrs. Murdock Sf Co., stating that it appeared by their letter-book, and was verily believed by the witness, that on the said 19th of June, a letter was written by them to the plaintiff, enclosing the said bills, and regular protests, and advising that the said bills had been paid by them under protest, for the honor of the plaintiff; and that the said letter was sent to the general post-office in London, [ * 3 ] in duplicate, * one to be forwarded by the packet, and the other by a private ship ; and that the said Murdock Co., on the 5th of December, 1809, having learned, by a letter from the plaintiff, that the said bills and protests had not been received by him, duplicates thereof were then immediately forwarded to him by the packet.</p> <p>It was in evidence that the usual intercourse between the United States and Great Britain was interrupted at the time the bills were taken up as aforesaid ; but that a packet, carrying a mail, sailed every month from England, being advertised for the first Wednesday of each month, and usually sailing within a week or ten days after that time. It was also proved that none of the monthly mails from England by the packets had been missing.</p> <p>The duplicate of the bills and protest forwarded on the 5th of December, 1809, was received in March, 1810, by the plaintiff, sent to Mr. Willard, and by him communicated to Leverett.</p> <p>The bills, when drawn by Fields, were negotiated by Benjamin Leverett, brother of the deceased, and one half of the amount was paid to Fields, the other half being retained, with a view to ascertain whether they would be accepted. The money so received had been paid over to the plaintiff, upon an agreement that the payment should not affect the question between the parties.</p> <p>Fields, the drawer, was insolvent before the drawing of these bills, although at that time he had some property, and a credit at one of the banks in Boston. In November, 1809, his furniture was attached, and his credit totally gone. Soon after the bills were negotiated by Leverett, he expressed some apprehension that they would not be accepted; as other bills drawn by Fields had been '•eturned protested.</p> <p>The defendant’s counsel insisted, 1. That the plaintiff ought not to recover, without producing a protest for non-acceptance, and notice thereof to the endorser; and, 2. That the delay in notifying the endorser of the non-acceptance and non-payment had discharged him from all liability.</p> <p>* The jury were instructed that any unreasonable delay [ * 4 ] m notifying the non-acceptance or non-payment was fatal to the plaintiff’s claim, notwithstanding the bill had been taken up for his honor; that a protest for non-acceptance was not necessary to be produced, if the endorser had otherwise due notice that the bills were not accepted; but that the delay from the 3d to the 19th of June, before any letter or other information was sent of the nonpayment, was laches, which discharged the endorser; unless they were satisfied that such delay was occasioned by difficulties in com munication, which could not be removed.</p> <p>The jury returned a verdict for the plaintiff, which the defendant moved to set aside, as being against law and evidence.</p>

This was a petition for partition, in which the petitioners allege that they are seised in fee, and as tenants in common, of the undivided lands in the Island of Nantucket, which they state to consist of about 19,440 acres of land, and to constitute the whole of said island, except such parts thereof as have heretofore been [ * 6 ] assigned to sundry * persons in severalty, and except alsc a part of the island, known by the name of Quaise.

<p>A bail bond was holden sufficient, although the Christian names of both the plain tiffs were mistaken in the bond.</p>

<p>insurance was from Liverpool, m Great Britain, to Savannah, in Georgia. The master, after arriving off Savannah River, put away for Amelia Island, in the Spanish dominions, to avoid a seisure, &c., under the non-importation law of the United States; and, after learning that he might safely so do, returned to Savannah. This was held a deviation which discharged the underwriters</p>

<p>Case upon promises made to the plaintiff, and one Currie, whom the plaintiff has survived. The defendant pleaded in bar that, after making the promises declared on, and before the commencement of this suit, he became a bankrupt, and a commission duly issued against him, &c.; that he conformed in all things, &c.; that all his estate and effects were surrendered, &c., and such proceedings were had, as that all his estate and effects were assigned to one John CooTce, the special agent and attorney of the plaintiff appointed to recover and receive said debt, and who was chosen assignee under the said commission by the said Currie Sf Whitney, and the other creditors who had proved their debts under the com- ■ mission, the whole amount of said debts being 7344 dollars 14 cents; that the said Currie Sf Whitney proved before the commissioners the demands sued in this action, which were allowed by the commissioners; that the said John CooTce afterwards received into his possession the whole estate and effects of the defendant, for the use of the said Currie Whitney, and his other c; editors who had proved their debts under the * com- [ * 24 J mission, which estate and effects so received amounted to the sum of 8000 dollars; that the said John CooTce hath never rendered any account of the said estate and effects, either to the creditors or the commissioners, but neglects and refuses so to do, and hath unlawfully wasted and embezzled the whole of said estate and effects; and that by reason of the said CooTce1 s neglect and refusal to render any account as aforesaid, and of his waste and embezzlement aforesaid, the said commission is yet unclosed, and now remains in full force against the defendant.</p> <p>To this plea the plaintiff demurred generally, and the defendant joined in demurrer.</p>

Thomas Brewer, one of the trustees summoned in this process, was absent on a voyage to South America at the time the suit was commenced, after which more than a year elapsed before his return into the commonwealth. The service upon him was by the officer’s leaving a copy of the process at Mr. Brewer’s last and usual place of abode. The action being continued in the Court of Common Pleas, he appeared at the first term after his return, and submitted to examination.

<p>Evidence of custom and usage is useful, in many cases, to explain the intent of parties to a contract; but the usage of no class of citizens can be sustained in opposition to principles of law. Therefore, where insurance was “ on cargo from Boston to Archangel, and back to Boston ,” the assured was holden to pay the whole note given for the premium, although no properly was returned in the ship; and it was proved to be the universal usage in Boston, where the insurance- was effected, to return a portion of the premium in such cases.</p>

<p>This was an action of the case upon a promissory note made to the plaintiff by the defendant. The declaration also contained the common money counts.</p> <p>The defendant pleads in bar, “ that the cause or causes of action in the said counts supposed did not, at any time within six years next before the commencement of the said action, accrue to the plaintiff. And this he is ready,” &c.</p> <p>The plaintiff replies, that he ought not to be barred, &c., because he says, “ that at the time of making the several promises in the declaration mentioned, the plaintiff and the defendant were in parts beyond sea, viz., at Paris, in the kingdom or empire of France ; and the plaintiff further says, that he never was, at any time thereafter-wards, in the United States of America, at the same time that the defendant was also within the same, or at the same time that he, the said defendant, had any property in this commonwealth to be attached by the common and ordinary process of law, until within six years before the commencement of this action, viz., until the 1st day of September, 1808. And this,” &c.</p> <p>To this replication the defendant demurs generally, and the plaintiff joins in demurrer.</p> <p>The demurrer was argued at the last March term in this county, by Savage for the defendant, and Prescott and Selfridge for the plaintiff.</p>

Replevin of twenty-four hogsheads of rum. Issue being joined on the property of the plaintiffs, the same ws tried at the last November term in this county, before Parker, J., and a verdict found for the plaintiffs, subject to the opinion of the Court upon the following facts reported by the judge, who sat at the trial.

<p>The indictment alleged that the defendant, with force and arms, at, &c., on, &c., had in his custody and possession a certain bank bill or promissory note, payable to the bearer, signed in behalf of the president, directors, and company, of the Hallowell, and Augusta Bank, by law licensed and authorized as a bank within this commonwealth, and having the said bill so as aforesaid in his possession and custody, with force and arms tore or cut out a piece of the said bill, and thereby altered the same ; — with intent, with said bill so altered, and with the piece so cut or torn out of the same bill, together with other pieces of similar bank bills, altered, cut, and torn out, to form other bank bills, with intent to utter and pass the same, and thereby to injure and defraud the said president, directors, and company, against the peace, and the form of the statute, &c.</p> <p>The defendant was tried during this term, before Thatcher, J., upon his plea of not guilty, and after conviction moved in arrest of judgment for the insufficiency of the indictment, assigning the following reasons in support of his motion, viz.: —</p> <p>1. Because the defendant is not charged with falsely making, iltering, forging, or counterfeiting, any bank bill or promissory note in the indictment described.</p> <p>2. Because it is not an alteration, within the meaning of any law of the commonwealth, to tear or cut out of any bank bill or promissory note to the defendant belonging, any piece thereof in the manner described in said indictment.</p> <p>3. Because the defendant is not charged with altering the said bill with intent to utter or pass the same ; nor is it alleged that he did in fact pass the same.</p> <p>*4. Because the indictment concludes against the form [ * 35 ] of the statute in such case made and provided; and the defendant, as advised, says that the facts set forth in said indictment, and the allegations therein contained, are not contrary to the provisions of any statute of this commonwealth.</p>

This was a writ of error to the Court of Common Pleas for this county, brought to procure the reversal of a judgment recovered by the said Hayt against the plaintiff in error.

<p>Assumpsit on a promissory note for 700 dollars, dated the 13th of August, 1811, payable to Obádiah Huse or order, in four months, with grace, purporting to be signed by the defendant, and endorsed to the plaintiffs.</p> <p>* At the trial, which was had on the general issue, [ *40 ] before Parker, J., at the last November term in this county, it appeared that the note was endorsed by O. Huse, in the course of trade. The genuineness of the endorsement was not contested; but the plaintiffs were required to prove the signature of the maker, and for that purpose read the deposition of Zopkar Hayden, which came up in the case.</p> <p>The purport of the deposition is, that, in October, 1811, the wit ness, Hayden, accompanied the plaintiff, Hall, at his request, to Dorchester, with a view to ascertain whether the defendant woulci acknowledge the signature of a note which Hall then had, and which the witness believed to be the note sued in this action. On their arrival, Mr. Hall got out of the chaise, and calling the defendant out, had some conversation with him, which the witness did not hear. The witness, being then called by Hall, went to him, and the latter presented the note to the defendant, and inquired if the signature was his. He said it was, and requested Hall not to distress him, for that he expected the arrival of a vessel soon. The witness thought that the defendant took the note into his hands, examined it, and pronounced it to be good.</p> <p>The plaintiffs rested on the acknowledgment of the signature by the defendant, as stated in Hayden’s deposition, and on evidence that the said O. Huse continued to reside in Boston, until late in the month of November, 1811, when he absconded. It did not appear at the trial that the defendant did, at any time after Hall’s application to him, and prior to O. Huse’s absconding, apprize the plaintiffs that the signature was not genuine ; nor that he did anything whereby the plaintiffs might have been induced to attempt the obtaining from the said O. Huse any further security prior to his departure.</p> <p>No evidence was offered by the defendant to impeach the testimony of Hayden, or to show that the acknowledgment stated in the deposition was obtained under any unfair circumstances. But it appeared that the defendant was seventy years of age, and [ *41 ] that he had written his name on several * blank pieces of paper, and given them to the said O. Huse, to be filled up as he should want them. It further appeared that, as early as September, 1811, it was known in Boston, that the said O. Huse had forged the name of one Allen; but it did not appear that this was known to the defendant, at the time of the interview between him and Hall, or at any time afterwards. To prove that the signature was not genuine, the defendant offered several witnesses, to testify that they were acquainted with his hand-writing, and that, in their opinion, the signature was not genuine; and also the signature of the defendant, which was proved to be genuine. The plaintiffs objected to the admission of this testimony, on the ground that the defendant’s, acknowledgment, as proved in said deposition, was conclusive. But the judge overruled the objection, and the testimony was admitted, (a)</p> <p>The judge instructed the jury that, notwithstanding the testimony of Hayden, if they believed, from the evidence in the case, that the signature was not genuine, they ought to find a verdict for the defendant, which they accordingly did.</p> <p>The plaintiffs moved for a new trial, which was to be granted them, if, in the opinion of the Court, improper evidence was admit ted at the trial, or if the direction of the judge to the jury was wrong in point of law.</p>

<p>This was an action of the case upon a policy of insurance upon the cargo of the brig Caroline, at and from Boston to the Island of Sicily, effected in the office kept by Charles Bradbury, on the 30th of March, 1809. The policy was effected in the names of the plaintiffs, for 14,500 dollars, and the defendant subscribed 3,500 dollars.</p> <p>The action was tried on the general issue, November term, 1811, before Parker, J., from whose report it appears that the vessel and cargo, on the voyage to Messina, in Sicily, were seized and taken possession of by a French privateer, and carried into Naples, a place within the control and under the influence of the French government.</p> <p>* The captors had instituted their process against vessel [ * 43 ] and cargo in the imperial council of prizes in Paris, the vessel and cargo remaining at Naples. Ralph J. Reed, who went out in the vessel as supercargo, and was owner of one fourth part of the same, proceeded to Paris to look after the property, and, while there, believing it to be for the interest of all concerned, he made a compromise with the captors, by which he was to receive back the vessel, allowing the captors two thirds of the estimated value thereof at Naples, and was to receive one third of the value of the cargo, estimated at 33,000 ducats; certain proceedings of the council of prizes having been gone through for the purpose of executing more perfectly the contract between the parties. The said Reed actually received on the said compromise the whole of the vessel, and 32,000 ducats, for the use of the owners of the cargo, and also the private adventures of the master and others.</p> <p>This action was brought to recover two thirds of the sum insured by the defendant, and also his proportion of expenses, consequent upon the capture, and in effecting the compromise.</p> <p>It was in evidence from a person who was in the Mediterranean about the time of this voyage, that the market was very high, at Naples, for such articles as composed the cargo of the Caroline, and that in Sicily they were very low, so that the same articles would bear no profit.</p> <p>A verdict was taken for the plaintiffs, which was to be set aside or altered, as the Court should determine the right to recover upon the facts reported. A question was also reserved, whether all the interest of the plaintiffs had not been insured by prior policies, and prior subscribers to this policy, before the defendant subscribed, which depending in some measure upon a question of law, it was agreed that it should be determined by the Court; and for this purpose, all other policies upon this cargo were to be considered as in the case.</p> <p>* There were three policies, including that on which this action was brought. The first was effected in the name of the plaintiffs, the said R. J. Reed and David Sawyer, for 10,000 dollars, dated March 28. The second was effected in the name of the plaintiffs only, for 8,500 dollars, dated March 29. The third, being the one in question, was also effected in the name of the plaintiffs alone, for 14,500 dollars, dated March 30, to which the defendant was the last subscriber.</p> <p>It also appeared that the plaintiffs had received the whole of the money, which became due for the loss on the two policies first above mentioned; they being interested five eighths, the said Reed two eighths, and the said Sawyer one eighth, of the vessel and cargo. And as the plaintiffs refused to produce their books, to show how they had appropriated this money, the defendant contended that this was evidence, from which it was to be presumed that the plaintiffs had retained a proportion of it, according to their interest in the subject insured. The judge reserved this, also, as a question of law</p> <p>The cause was argued at this term by Amory and Dexter for the plaintiffs, and Prescott for the defendant.</p> <p>Prescott contended that Reed had no authority to enter into this compromise, so as thereby to bind underwriters. It is a very dangerous power to intrust with supercargoes, and particularly so, when, as in the case at bar, they are part owners of the property at risk. But if this loss be properly chargeable on the underwriters, it is a general average, to be apportioned on the ship, her freight and cargo, including the private adventures. The cargo, in adjusting this average, is not to be estimated at its value in Naples, but either by its original invoice price, or by its value at Messina, the port of destination. If two thirds were given up to save the remainder, it availed also to procure for that remainder the high prices at Naples.</p> <p>* Further, the defendant contends that the plaintiffs were over-insured. The first policy must be presumed to attach according to the respective interests of the assured. If it were otherwise, their books, which they refused to produce at the trial, would show it. If it be so, then the plaintiffs were fully insured previous to the defendant’s subscription.</p>

<p>Debt on bond for 3000 dollars, conditioned that whereas the plaintiff had that day sold and conveyed to the defendant a certain house and land in Boston, subject to a mortgage thereon to one W. P., and the defendant had agreed to satisfy and discharge the said mortgage, — if the said Dana or his assigns should discharge the said mortgage, and, within such time as he may choose, cause the deed to be discharged, and the notes therein described to be paid, satisfied, or cancelled, and should, moreover, indemnify the said Fish, his heirs, &c., against the said mortgage and notes, and from all costs, trouble, damage, or charge, to * which they [ * 47 J may ever be subject on account of said deed or notes, then the said obligation to be void; otherwise, &c.</p> <p>On oyer of the bond declared on, and of the condition, the defendant pleaded in bar, that he had well and truly observed, performed, and kept all and singular the agreements, covenants, and contracts, in the same condition mentioned, on his part to be kept and performed, according to the form, tenor, force, and effect, of the same condition.</p> <p>The plaintiff replied that the notes mentioned in the said condition being payable to the said W. P., he had sued the plaintiff upon one of them, and had recovered judgment in such suit against the plaintiff, of which the defendant had had notice; which judg ment was still in force against him, and unpaid by the said Dana.</p> <p>The defendant rejoined that the plaintiff never gave him notice of the suing said action, or of the prosecution thereof to final judgment, as the plaintiff had alleged, and tendered an issue to the country.</p> <p>To this rejoinder the defendant demurred generally, and the plaintiff joined in demurrer.</p>

This action, which was in assumpsit upon an account annexed to the original writ, was tried before Parlcer, J., November term, 1811, when a verdict was taken for the defendants, subject to the opinion of the Court upon the following facts agreed by the parties: — [ * 48 ] * The three defendants, Durant, Maynard, and Lamb, were owners of a vessel called the Louisa; one moiety thereof belonging to Durant, and the other moiety to the other two defendants; these latter having…

Assumpsit upon a promissory note, by the endorsee against the promisor. At the trial, which was had at the last November term in this county, it was agreed that the note in question, which was dated November 5, 1807, for 150 dollars, payable to Henry Dyer oi order on demand, was signed by the defendant, and endorsed by Dyer to the plaintiff six months after it was due.

This was assumpsit on a promissory note, dated December 31, 18U7, for 284 dollars 19 cents, payable to the defendant or order in six months with interest and grace, and endorsed by the defendant. It appears from the report of Parker, J., before whom the cause was tried, that the note was originally given to Messrs. Gardner Downer in renewal of another note signed by S'.

<p>The plaintiff declares in case, that John Taylor and William Hall, at, &c., on, &,c., by their note of that date, signed by their copartnership name of John Taylor if Company, for value received, promised the said Eaton to pay him or order the sum of one hundred and eighty-one dollars and fifty cents on demand with interest. Yet though requested, &c.</p> <p>At the trial of the cause, which was had before Parker, J., at the last November term in this county, the evidence offered by the plaintiff was a note of hand in the words and figures following, viz: —-</p> <p>“ Boston, March 25, 1809. For value received, we promise to pay Mr. David S. Eaton or order one hundred eighty-one dollars fifty-nine cents on demand with interest.</p> <p>“ For John Taylor if Company.</p> <p> “John Taylor.” </p> <p>Endorsed, “ Boston, February 15, 1810. Received on the within one hundred dollars, of Mr. Hall.”</p> <p>It was in evidence that John Taylor, who signed the note, and the said Hall, had been in partnership, and had done business, during the partnership, with the plaintiff; that the partnership had been dissolved more than a year * before the [ * 55 ] note in question was signed ; that this note was given in lieu of another, or other notes, which had been given during the partnership; but whether the notes taken up were the notes of Taylor &f Hall, or of Taylor alone, the witness did not know There was no proof of any authority given to Taylor to sign notes lor the company, or for Hall, after the dissolution of the partnership ; but there was evidence that Hall, being called upon to pay, did pay one hundred dollars, which, with his knowledge, was endorsed on this note; and that he declared he had taken securities from Taylor to collect, and that he had collected the one hundred dollars which he had paid to Eaton on this note.</p> <p>The judge instructed the jury, if they were satisfied that Hall had adopted and sanctioned the act of Taylor in signing the note for himself and Hall, they ought to find for the plaintiff, notwith • standing the partnership had been dissolved before the signing of the note, and although no direct authority was given at the time of signing. A verdict was accordingly returned for the plaintiff; and a new trial being moved for by the defendant, the action stood over to this term.</p>

<p>This was a review of an action of trespass, in which the plaintiffs in review were original defendants, and the defendant in review original plaintiff.</p> <p>The declaration alleged that the defendants, with force and arms, broke and entered the plaintiff’s close in Shapleigh, and “ cut down, tore away, and destroyed, the plaintiff’s mill-dam, then and there being and standing across Ossipee River, and let out the water of the pond above said dam; whereby the plaintiff’s timber, stones, gravel, and other materials for another dam below said dam, were wholly swept away and destroyed.”</p> <p>The action was tried before Thacher, J., at the last October term in this county, upon the general issue; when it was proved that the plaintiff owned and possessed the close described, and the dam within said close, which was * torn down and de- [ * 57 ] strayed. It also appeared, from the testimony of witnesses, that the dam, which had been torn down and destroyed, was erected across the said river by the plaintiff, for the purpose of stopping the water above, while the plaintiff should repair his mill-dam by his mill; that the dam thus destroyed was always called a false dam, and was never called the mill-dam; that the dam by the mill was called the mill-dam, and that only; that the false dam, so called, was situated about thirty-three rods above the mill-dam, and was never designed or used for any other purpose, but that of stopping the water, while the mill-dam was under repairs, for which purpose it was necessary; and that both said dams were within the said close.</p> <p>These facts appearing, the defendant’s counsel objected to the admission of any evidence as to the destroying the false dam, so called, as not comporting with the declaration.</p> <p>But the judge, before whom the cause was tried, admitted the evidence objected to, and, on the evidence produced after said objection was overruled, instructed the jury, if they believed the defendants guilty, to assess damages equal to the injury sustained by the plaintiff by the destruction of the dam as alleged, which they accordingly did. The counsel for the defendants excepted to the said opinion, decision, and direction, of the judge; and the action was continued for the consideration of the said exceptions.</p> <p>Mellen, in support of the exceptions, argued that the verdict and recovery in this action would be no bar to another action, in which the defendants should be charged .with destroying the false dam. (1)</p>

Debt upon a judgment of the Court of Common Pleas for this county, September term, 1807. The defendant pleaded, 1. Nul tiel record, on which issue was joined to the Court. — 2.

This was a real action, in which Prescott demanded possession of a certain lot of land in Shapleigh, in this county, with the appurtenances, containing one hundred acres; and he counts upon his own seisin within thirty years, and on a disseisin by the tenant. The tenant pleaded as to forty acres, parcel of the demanded premises, that he never disseised, &c., on which issue was joined; and as to the residue he disclaimed, the truth of which was admitted by the demandant.

<p>This was a writ of error brought to reverse a judgment of this Court in this county, September term, 1802, rendered upon a review of a real action, brought by the present plaintiff in error against Thomas Rummery, the testator of the defendant in error.</p> <p>In the original action, the tenant pleaded, as to part of the land demanded, that he was not guilty; on which issue was joined by the demandant. And as to the residue of the land, he pleaded in bar, that at the date of the original writ he was not, nor had been since, in possession of the same; and he disclaimed all right and title to the same. This being traversed by the demandant, an issue was also joined thereon to the jury; who returned their verdict, that they found the defendant not guilty; whereupon judgment was rendered that the tenant recover against the demandant the costs of his suit, taxed at, &c.</p> <p>The errors assigned were, —</p> <p>1. That two distinct and independent issues in fact were joined</p> <p>in said cause, and were both before the jury for trial; [ * 65 ] * but that the jury found a verdict upon one of the said issues only, and left the other issue wholly undetermined and unnoticed.</p> <p>2. " That the said Thomas Rummery, in one of his pleas, pleaded non-tenure to a part of the land demanded against him, and disclaimed all right and title thereto ; yet no judgment was rendered in favor of the demandant, for his seisin and possession of the part so disclaimed, as it ought to have been.</p>

<p>The Sessions having no authority to locate a road across a navigable river, a bridge erected in pursuance of such location is an obstruction, which any citizen, having occasion to use the river for the passage of his vessel, may lawfully remove, although a bridge has been maintained at the same place more than fifty years.</p>

The said Staple, in an application to the Common Pleas for this county, alleges that he is owner of a tract of land, which he describes, and that, in the year 1794, the said Spring and one other of the respondents erected a mill-dam, of the height of six feet, across Saco River, for the purpose of working certain saw-mills, whereby the water of the said river is caused to flow back upon the complainant’s said land; that the said saw-mills are now owned by the respondents,…

The defendants were indicted at a former term for neglecting to repair a certain bridge within their town. Since the indictment was found, the legislature, by an act passed on the 22d of.January, 1812, altered the name of the town from Phillipsburg to Hollis. The defendants at this term suggested the above alteration, and, upon the ground of it, moved the Court to quash the indictment.

Assumspit for the wages of a seaman. In a cáse stated by the parties, it was agreed that the plaintiff shipped on board the brig Cornelius, at York, on the 25th of April, 1810, for the monthly wages of twenty dollars, the defendant being the master thereof. The brig was bound for Gottenburg and a market, and back to the United States. On her return from St. Petersburg, she touched at Elsineur, where were several American vessels, also bound home.

This action was before the Court at the last May term in this county. There being at that time a prospect of an adjustment, the Court intimated an opinion on the point, which then appeared most to labor between the parties. (1) That adjustment not having been effected, and the action still standing for a decision upon the judge’s report, the Court now gave an opinion on the several points. A more particular report of the facts is therefore necessaiy, than was before given.

<p>Case upon a promissory note made by Ebenezer Storer, payable on the 20th of June, 1807, to the defendant or his order, and by him endorsed to the plaintiff.</p> <p>The parties submitted the action to the decision of the Court upon the following facts agreed: —</p> <p>At the time the note fell due, the plaintiff, as well as the maker of the note, lived in Portland, and the defendant at Cape Elizabeth, four miles from Portland. Payment was demanded of the maker on the 20th, and on the 28th of June notice was sent to the endorser, by the cashier of the Portland Bank, (with whom the note had been left for collection,) and was received on the 29th. There is no post-office in Cape Elizabeth, nor any mail establishment between that town and Portland; but persons are constantly passing from one town to the other. Soon after the defendant received notice of the non-payment of the note, he called on Eleazar Greely, (by whom the note had been negotiated,) in Portland, and inquired if the note had been paid; to which Greely replied that he did not know, but * presumed it had been paid, as [ * 85 J Mr. Storer had always paid attention to his notes punctually. The defendant then requested him to see if it was paid. The note was not then in Greely’s possession, and Hussey, the holder of it, was out of town. The morning after Hussey’s return, which was about the 1st of August, Greely asked him if-the note was paid. He answered that he did not know, but would go to the bank and inquire. Greely then requested Hussey, if the note was not paid, to get it and bring it to him; and at the same time informed him that Freeman had been over, and requested him to see if the note was paid. Hussey brought the note to Greely, who called at Storer’s counting-room, and received 120 dollars, which he endorsed on the note. Storer at that time promised to pay the residue on the following Tuesday, but on Monday night he failed. Hussey refused to take the 120 dollars of Greely, observing to him that .he had not gotten it at his request, to which Greely assented, saying that Freeman had requested him to collect it. On Tuesday morning, Greely, hearing of Storer’s failure, gave notice of it to Freeman, who came over and inquired of Greely if he knew of any property of Storer's which he could get at; and Greely told him he did not. After Storer’s failure, Greely returned the note, with the money he received of Storer, to Hussey, who received the same. Whatever Greely did, it is agreed, was done at the request of Freeman.</p> <p>If the Court, upon this statement, should be of opinion that the plaintiff is entitled to recover, the defendant agreed to be defaulted ; otherwise the plaintiff agreed to become nonsuit, and judgment in either case to be entered accordingly.</p>

Assumpsit on a promissory note signed by James M. Ingraham and John Goold, on the 18th of November, 1809, payable to the defendant or order, and by him duly endorsed to the plaintiff, for the sum of 225 dollars, payable in one year with interest.

To this action of trover the defendants pleaded, in abatement 01 the writ and declaration, “ that the Portsmouth Livery Company is not a body incorporated by the legislature of this commonwealth, or under any law enacted by said legislature, or any authority of said commonwealth, and are not, by the laws of this commonwealth, authorized to sue this action, in and by the said name of the Portsmouth Livery Company, in manner and form as they have declared in the action…

This was a writ of entry sur disseisin, in which the demandant, as minister of the first parish in North Yarmouth, in this county, demands one hundred acres of land in Freeport, in the same county, described as lot number thirty-three in range B; and he counts upon his own seisin in fee in right of said parish within thirty years, and upon a disseisin by the tenant.

<p>Seals are not essential to warrants issued by selectmen for calling town meetings. Town clerks have authority to swear town officers, as well after the expiration of seven days from the meeting at which they are chosen, as within that time.</p> <p>If one chosen constable and collector of taxes be sworn only as constable, he is qualified to collect taxes, constables being ex officio collectors of taxes, when none others are appointed.</p> <p>Where assessors, before the statute of 1785, c. 50, assessed for the state and county taxes a greater amount than was required by the warrants therefor, the assessments were not for that cause void.</p> <p>Where the question was on the validity of a title to land derived under a collector’s sale of more than thirty years’ standing, the jury were properly instructed to consider every thing as proved, which mightbe reasonably and fairly presumed from the facts and circumstances proved, as to the regularity of the tax bills, valuations, warrants, &c.</p>

<p>Where a debtor, after the service of an original writ upon him, and before its return, satisfied the demand; yet the creditor afterwards entered the action, recovered judgment, and caused his execution to be levied on the debtor’s property; it was holden that the debtor was entitled to his writ of audita querela.</p>

<p>Case by the endorsee against the maker of a promissory note for 500 dollars, dated February 26, 1810, payable on demand to one Seivall Lancaster or his order, and by him endorsed to the plaintiff.</p> <p>In a statement of facts, upon which the parties submitted the action to the decision of the Court, it was admitted that the note was endorsed to the plaintiff for a valuable consideration, and that he, at the time of the endorsement, was. ignorant of the circumstances under which the note w'as given. These circumstances were as follows : —On the 17th of April, 1806, the defendant, being indebted to said Lancaster and one T. Robie, then copartners in trade, in the sum of 874 dollars 15 cents, made his promissory note to them for that sum, payable on demand with interest, and agreed with them to pay them interest thereon at the rate of twelve peí cent, per annum. After having made sundry payments on said note, the defendant called on Lancaster, (the said copartnership having been previously dissolved, and the books and papers of the company being in the possession of Lancaster,) for the purpose of a settlement on the 7th of October, 1807, when the defendant and Lancaster calculated the interest on the note at the rate of twelve per cent, per annum, and added it to the principal sum. They then added 124 dollars 32 cents, due from the defendant to Lan caster on another -account, and cast the interest on this sum at the same rate, being 5 dollars 38 cents, the whole amounting to 1158 dollars 26 cents. They then added the payments endorsed on the note, and cast the interest on them at the same rate, and also added another sum of 31 dollars 98 cents then paid, amounting in the whole -to 283 dollars 24 cents, leaving a balance of 875 dollars 2 cents due on the adjustment thus made. For this sum the defendant gave his promissory note to Lancaster, and cancelled the former note. The defendant continued to make payments at various times upon the note last given ; and on the said * 26th of February, 1810, the parties thereto again met, [ * 122 J and, casting the interest thereon at the rate of six per cent., and deducting sundry payments which had been endorsed thereon, the sum then appearing due was 500 dollars, for which the defendant gave the note declared on in this action.</p> <p>Upon those facts, it was agreed that, if the Court should be of opinion that the plaintiff was by law entitled to maintain his action, the defendant should be defaulted, and judgment rendered against him, fc'r the sum of 467 dollars 45 cents damage, with costs; otherwise, that the plaintiff should become nonsuit, and the defendant have judgment for his costs.</p> <p>The cause was argued at the last May term in this county, by Todd for the plaintiff, and by Mellen and Adams for the defendant.</p> <p>Todd cited the cases of Ellis vs. Warnes, (1) Outhbert &f Al. vs. Haley, (2) and Turner vs. Hulme. (3)</p>

Trespass for taking and carrying away four hundred tons of timber, on the 23d day of March, 1810. The defendant pleaded the general issue, which was joined.

This is a writ of right, in which the said Enoch Poor, Caleb Poor, Thomas Poor, Hannah Whittier, Phcebe Plummer, Sarah Poor, Nancy Robinson, Susan Frye, and Polly Lovejoy, demand two lots of land in Bridgetown, in this county, numbered seven and eight.

This was an action of assumpsit, in which the plaintiff declares upon a promissory note made and subscribed by James Weeks, the defendant’s testator, for value received, on the 31st of December, 1808, promising the plaintiff to pay him the sum of 147 dollars 16 cents on demand with interest; — also upon a promise of said James, on the same day, in consideration that the plaintiff had shipped from Portland to Charleston, S. C., and consigned to said James, upon an agreement…

<p>This was a writ of error to the Court of Common Pleas for this county, brought upon a judgment of that court, June, 1811, upon the report of referees appointed by an agreement of the parties entered into before a j'ustice of the peace, pursuant to the statute of 1786, c. 21.</p> <p>The demand annexed to the agreement, which was made by Ward against Bacon, for the non-performance of a certain contract, was without date. The submission was dated, “ Town of Gorham, in the county of Cumberland, 1811.” There was no date to the certificate of the justice. The referees date their report, “ Cumberland, April 5, 1811;” and they certify that they had met and fully heard the parties; and the report is otherwise in good form.</p> <p>The errors assigned are, that it does not appear, from the record, on what day or month the original agreement was f * 142 ] * made; nor when it was acknowledged; nor that it was so acknowledged before the report of the referees was made..</p>

<p>This was an action of the case, for- the plaintiff’s wages as a mariner, on board the schooner Albert, owned by the' defendants, from the 16th of June, 1811, to the 7th of January, 1812.</p> <p>The general issue being pleaded and joined, the same was tried at the last October term, in this county, before Thatcher, J.</p> <p>The plaintiff, to support the issue on his part, proved that he shipped as a seaman, June 16, 1811, on board the schooner Albert, of which the defendants were owners, to perform a voyage to one or more ports in the West Indies and back to the United States, at the monthly wages of twenty dollars ; that he proceeded in said vessel on said voyage, arrived at the Island of Trinidad, and completed the delivery of the outward cargo on the 15th of August, 1811; that there were received, at that place, on board the schooner nineteen hogsheads of molasses, and a quantity of lime juice, together with one hundred barrels of flour on freight, with which the vessel proceeded to La Guayra, on the Spanish Main, and about the 15th of October, 1811, the said flour was there landed, fifty cents per barrel being received as the freight thereof; that the vessel thence returned to Rio Grande Ray, where she was anchored within a quarter of a mile from the shore, being about four leagues east of La Guayra. Here the vessel lay several days, receiving on board the residue of her homeward cargo, consisting of sugars and other prohibited articles, * which were brought [ * 144 ] in other vessels from Trinidad, where the same could not, by the laws of the place, be taken on board. The vessel went from Trinidad for the express purpose of taking said articles on board, because they could not be laden on board there, without violating the laws of that island. While lying at Rio Grande Bay, after she had received her said cargo on board, and while she was there waiting for the supercargo to come on board from Trinidad, which was distant about seventy miles, the schooner, with her cargo on board, was seized by an officer of a British ship, and carried to Grenada, where she was libelled in the Court of Admiralty, and condemned for a breach of law. The plaintiff, being discharged about the 1st of December, 1811, arrived in the United State* about the 7th of January, 1812.</p> <p>Upon these facts, the judge directed the jury that the plaintiff was entitled to the full amorfnt of his wages until the said 7th of January; and the jury found their verdict accordingly. — The defendants filed their exceptions to the said direction, which being allowed, the action was continued for the consideration of the same.</p>

<p>Where an ancient location or grant by the proprietors of a township bounded the land granted by a way, which way adjoined the sea-shore, the ordinance of 1641 did not pass the flats on the other side of the way to the grantee.</p> <p>Where the proprietors of the common and undivided lands in a township, at a regular meeting, voted a general acceptance and confirmation of the locations reported by their committee, without designating each location in particular, this being proved to be the general course of their proceedings in all locations, one so accepted and confirmed was held good and sufficient.</p> <p>In every case of a mixed possession, the legal seisin is according to the title.</p>

The defendants, being husband and wife, were indicted, at the last October term in this county, for an assault and battery. Upon a trial, which was had at the same term before Thatcher, J., the jury found the said John guilty; and as to the said Elizabeth, they found specially, — “ that she committed the assault and battery charged in the indictment, in company with, and commanded by the said John Neal, her husband.

The defendant was indicted for breaking a store in the nighttime, and committing a larceny therein, against the form of the statute, &c. After a conviction, he moved in arrest of judgment, on the ground that there was no statute provision for the [*154] offence * charged in the indictment; and Storer, in support of the motion, cited the case of Commonwealth vs. M’Monagle. (1)

The indictment in this case charged, that the defendant, being a married man, with force and arms, did unlawfully and lasciviously associate and cohabit with one Emily Kimball, a single woman, against the peace, in violation of his marriage-covenant, in evil example to others, &c., and against the form of the statute, &c. It was admitted by the defendant that one act of criminal intercourse, between him and the woman named in the indictment, could be proved; and it was…

The defendant, being indicted for a larceny, was tried during this term before Sewall, J., and, being convicted, he moved for a new trial, for the misdirection of the judge. The judge reported the evidence that the goods were stolen in Boston, in the county of Suffolk, and brought from thence to this place by two persons, who had been committed on the same charge, but had escaped from prison.

This was the same information for an intrusion by the defendants on certain lands, therein alleged to belong to the commonwealth, the substance of which is recited in the report of a former judgment rendered thereon. (Ante, vol. vii. p. 399, &c.) It was tried on the general issue, at the last October term, in this county, before Thatcher, J., and a verdict returned for the respondents.

This was a writ of error, brought to reverse a judgment of this court, rendered February term,’ 1802, between these parties, a report of which was given in the supplement to the second volume of these reports, (p. 565.)

This was a writ of entry sur disseisin. The general issue being joined, was tried before Thatcher, J., at the last October term in this county.

This was a petition for partition, in which Ramsdell, the petitioner, alleged that he was seised of five eighth parts of two third parts of the land described in the petition, in common with certain persons unknown to him.

This was an action of the case against the defendant, as sheriff of this county, for the default of one Joshua Gould, his deputy, and was commenced on the 26th of April, 1810, for the Court of Common Pleas then next to be holden on the third Tuesday of the ensuing May. The default complained of was alleged to have been committed in March, 1809.

<p>This was an action of debt, brought by the plaintiff, as treasurer of the county of Kennebeck, upon a bond given to his predecessor in that office, by the defendant Gannet, as principal, and the other defendants as his sureties, conditioned that the said Gannet, as clerk of the Court of General Sessions of the.Peace, should account for on oath, and pay to the county treasurer, from time to time, the sums paid by innholders for their licenses, pursuant to the statute of 1795, c. 80, <§, 2.</p>

This was an action of the case for slander. The plaintiff laid his damages at 1000 dollars, and on a trial in the Common Pleas recovered one dollar damages. Of course his costs were taxed at 25 cents only. From this judgment he appealed to this Court and, failing to enter his appeal, the defendant filed his complaint, praying to be allowed his costs. A question was made, to what costs he was entitled.

<p>This was a writ of right, brought by sundry heirs to recover certain lands alleged to have descended to them from a common ancestor.</p> <p>The tenants, at the last October term, pleaded, in abatement, “ that, since the last continuance of the writ, viz., on the 1st day of July last past, the said Caroline Fox, one of the . demandants in the said writ, intermarried with John Potter, Esq., and is now covert of the said Potter, her husband, who is yet living, viz., at Augusta aforesaid, and this, &c.; wherefore, inasmuch as the said J. P. is not joined in said writ, the said proprietors pray judgment of the said writ, and that the same may be quashed, and for their costs.” To this plea the demandants demurred generally, and the defendants joined in demurrer ; and the last term being holden by one judge only, the cause was continued to this term for judgment on the demurrer.</p>

<p>The prisoner was indicted for altering an order drawn by one Sturtevant on one Rufus Page in favor of Stevens, the original order being for five dollars, and altered to fifteen dollars. There was a second count for uttering and publishing the order thus altered; but the attorney-general had entered a nolle prosequi to this last count during the trial.</p> <p>Trial was had at this term, before Sewall, J.</p> <p>The evidence in support of the first count in the indictment was1 the testimony of Sturtevant, who swore that he gave the prisoner the order for five dollars, and that it had been altered. Jonathan Currier testified that the prisoner, in a conversation with him, said that the alteration was made by one Palmer, but that he, the prisoner, was knowing and assenting to it, and that he had been led to the commission of this and many other crimes by Palmer.</p> <p>Upon this evidence the prisoner being found guilty, Wilde, on his part, moved for a new trial, as on a verdict against evidence. The confession of the defendant, as it was introduced by the government, must be taken as true. Then he neither altered the order, nor caused or procured it to be altered. If he is chargeable upon this evidence with any crime, it must be with aiding or assisting, in the words of the statute, (1) upon which the indictment is grounded.</p>

This was an action of the case, wherein the plaintiff declares that, on the 13th of May, 1807, and long before, and ever since, she was possessed of a certain farm in Bath, formerly owned by her late husband, Joseph White, deceased, bounded on one side by land of the defendant, and on another side by High Street: and that she then had, and still ought to have, a drift and cart-way through the defendant’s land to the High Street aforesaid, for herself, horses, cattle, and…

<p>The yard of a prison, enclosed with a picket fence twelve feet high, containing the only necessary-house for the accommodation of the'prisoners, is not an apartment of the prison within the meaning of the statute of 1784, c. 41, § 8, not having been assigned as such.</p>

<p>An action for deceit in a sale, whether of provisions or other articles, can only be maintained where an affirmation or representation wilfully false, or some artifice, is proved, or is necessarily to be presumed from the circumstances and nature of the bargain, and the situation of the parties.</p>

<p>As sump fit against the defendants, as owners of the brig Mary, for sundry bills of repairs paid by the plaintiff, at Liverpool, in England, in February and March, 1808.</p> <p>At the trial of the cause, which was had upon the general issue, at the last September term in this county, before Thatcher, J., the plaintiff read to the jury a charter party under his own hand and seal, and under the hands and seals of the defendants, Tucker and Purringion, who executed the same “ for themselves and the other owners,” dated November 5, 1807, in which the said Tucker and Purringion covenanted that the vessel, in and during the voyage to be made by the plaintiff, should be tight, stanch, and strong, and sufficiently tackled and apparelled with all things necessary for such a vessel and voyage. The repairs were admitted to be neces sary, and payment of the bills was proved.</p> <p>The defendants called on the plaintiff to prove them to be the owners of the vessel at the date of the charter party, and when the supplies were furnished; and he examined divers witnesses, whose testimony raised a presumption of the fact. To rebut this presumption, the defendants read, in evidence, a bill of sale, dated October 4, 1807, duly executed, for a valuable consideration therein expressed, by Actor Patten, Jun., conveying his part of the vessel to one John Haley, Jun.</p> <p>The plaintiff then offered to prove that the last register of the vessel, previous to the commencement of this action, '* 193 ] * was dated December 31, 1806; that in that register the defendants are named as sole owners; that no register has ever been taken out, in which the said John Haley’s name is mentioned as an owner; and that the said bill of sale was first lodged in the office of the collector of the customs April ' 28, 1808.</p> <p>But the judge who sat in the cause overruled the motion, and rejected the evidence; and thereupon instructed the jury, that, as the said Actor Patten, Jun., had sold his part of the vessel before the execution of the charter party, and the advancements made by the plaintiff, the promise alleged by the plaintiff was not proved, and that their verdict must be for the defendants; and it was accordingly so returned.</p> <p>The plaintiff excepted to the opinion of the judge, and the action stood continued to this term.</p> <p>Though covenant undoubtedly lies in the case, it might be questionable whether, in that form of action, the plaintiff could have recovered for the special damages alleged in this case. The gist of the present action is, that, by being obliged to advance his own money in a foreign port, the defendants having provided no funds for the purpose, the plaintiff lost so much of the profits of his voyage as was reasonably to be expected from that sum applied to the purchase of a return cargo. This was a consequential damage, for which case lies, and is not a direct breach of the covenant. An action of covenant accrued to the plaintiff, when the supplies became necessary by the deficiency of the furniture: the right to assumpsit accrued when those supplies were furnished.</p>

<p>A B, being the younger of the same name in the same town, brought an action by the name of A B only, omitting the addition of junior. The Common Pleas refused to allow him to amend his writ by making the addition, and to give in evidence the written promise of the defendant, made to the plaintiff; by the name of A B, junior.</p> <p>Upon error brought in this Court, the judgment rendered against the plaintiff; upon a verdict taken in the court below, was reversed, and a new trial ordered.</p>

<p>Debt on a bond, with condition that the defendant, Taylor, a prisoner in execution at the suit of the plaintiff, in the jail of Wiscasset, should continue a true prisoner, &c.</p> <p>Upon oyer had, the defendants pleaded in bar that, on the 9th day of December, 1809, the plaintiff recovered judgment against the said Taylor for the sum of twenty dollars and twelve cents, including debt and costs of suit; that, on the 11th day of December, 1809, he purchased his writ of execution on the judgment, but never caused it to be levied on Taylor, although he might well have so done; that, on the 2d day of February, 1810, said Tayloi enlisted as a soldier in the United States army, and was stationed at Edgecomb, in this county; that, on the 3d day of August, 1810, the plaintiff purchased his alias execution on said judgment, and on the same day the said Taylor was committed to prison thereon, and the defendants executed the bond declared on; that, on the 1 Oth day of the same August, while Taylor was still a true prisoner, and within the limits of the prison, he was seized and arrested by a party of soldiers from the garrison at Edgecomb, and forcibly, and against his will and consent, conveyed to the said garrison, and there forcibly kept in close confinement, against his consent, until after the commencement of this action; and that he has never since been permitted to leave said garrison, except upon duty, accompanied with other soldiers, and closely watched, to prevent his escape.</p> <p>To this plea in bar the plaintiff demurred, and the defendants joined in demurrer.</p>

This was an action of debt, brought against1 the- defendant, a deputy sheriff for this county, for the penalty of thirty dollars, given by the sixth section of the statute of- 1795, c; 41, commonly called the fee bill, for demanding and: receiving of the plaintiff ' a- greater fee than by that statute is allowed: The declaration charged- the defendant with corruptly and wilfully demanding and receiving of- the plaintiff,.for the service of an original writ of attachment…

<p>This is an action brought by the plaintiff, as treasurer of the town of Orrington, to recover a penalty supposed to be incurred by the defendant, by a breach of .the third section of the private statute of 1806, c. 33, entitled “An Act to prevent the destruction of the fish called shad and alewives in their passage up and down the river, and other streams in the town of Orrington, in the county of Hancock, and for regulating the taking and disposing of the said fish.”</p> <p>The cause was tried on the general issue, and, a verdict being returned for the defendant, the plaintiff moved that it be set aside, and a new trial granted; because, as he alleges, from the facts proved in the case, the direction of the judge ought to have been, that the issue was fully maintained on his part, and the verdict ought by law to have been in his favor.</p>

<p>This was a review of an action of the case for slander, in which Hall was plaintiff, and Wolcott defendant. The plaintiff laid his damages at 4000 dollars. The defendant, at the first term in the Common Pleas, had leave to plead double; and after one continuance, “ reserving the right of waiving his demurrer and pleading double at the Supreme Judicial Court, and agreeing that the plaintiff shall have the benefit of a verdict at that term, said that the declaration aforesaid was insufficient, and thereof prayed judgment. And the said Lyman, consenting to said reservation, said that the declaration aforesaid was sufficient, and thereof prayed judgment.” The plaintiff had judgment, of course, for the damages alleged by him, and the defendant appealed. Upon the appeal being entered in this Court, the defendant waived his demurrer, and pleaded the. general issue, which was joined by the plaintiff, and also a special justification, on which an issue in fact was also joined. On the trial of these issues the jury returned a verdict for the plaintiff, * assessing his damages at twelve dollars, for [ * 219 ] which sum judgment was entered, with six dollars costs.</p> <p>In the writ of review the plaintiff says that he is greatly aggrieved by the said judgment, and is deprived of a large sum in damages and costs, which he ought to have recovered of the defendant, and that no verdict has been given against him in said action, and two years have not elapsed, &c.</p> <p>The defendant in review pleads in abatement of the writ, and in his plea recites the history of the proceedings in the original action alleging that the plaintiff, by consent of the defendant, had the benefit of a verdict. To this plea the plaintiff demurs, and the defendant joins the demurrer.</p>

<p>The writ of review in this case was in common form, and was brought to reverse a judgment rendered in this Court, in this county, May term, 1811, in favor of the defendant in review, for his costs. This action was entered at the last September term, in this county, when the defendant in review moved the Court that this writ of review be dismissed, because a former writ of review was sued out by the now plaintiff in review upon the same judgment, and by him entered in this Court, at the last May term, in this county; and the same was afterwards in the same term discontinued by the now plaintiff in review. The action was ordered to stand continued to' this term, for the opinion and decision of the full Court upon the said motion.</p> <p>* Dewey and Whiting, in support of the motion. [ * 222 ] The Court have decided, in the case of Ruggles & Al. vs. Freeland, (1) that they have no authority to grant a second review, which this certainly is. Indeed, great inconveniences will arise from the practice, where the costs, as is often the case, are great, and the damages small.</p>

The original action was upon a promissory note, and for money had and received. The defendant, seven days before the return of the original writ, filed in the clerk’s office, by way of set-off to the plaintiff’s demands, his account, the three first articles of charge therein being for the plaintiff’s board, finding him a room, washing and mending, and the remainder of the account being for articles of merchandise sold and delivered by the defendant to the plaintiff.

<p>A child under nine years of age was sworn as a witness.</p> <p>The prisoner, being capitally indicted for a rape, was tried before the whole Court. The Solicitor-General produced one Alfred Hadlock, and moved,, that he should be sworn as a witness. The counsel for the prisoner objected to his being sworn, on account of his youth, it being ascertained that he was between eight and nine years of age.</p>

<p>Debt upon a judgment recovered in this Court in May, 1803, by the plaintiff and one William Jenkins, whom the plaintiff hath survived, against the defendants.</p>

Tiie plaintiffs declared, in case that a certain writ of execution in their favor, and against one Joseph Barney, was in the hands of T. Hinsdale, a deputy sheriff, which the said Barney was unable to satisfy; and that the defendant, by his written note, undertook and promised the plaintiffs, in consideration that they would delay the service of said execution until the first Monday of June then next; and, in consideration of value received by the defendant of said Barney,…

The declaration was in case, “ for that whereas, on the 14th day of November last, at Lenox aforesaid, the said Lyman was seised in fee of two certain tracts of land lying, &c., which he held subject to the encumbrance of a certain mortgage, made and executed by one Jeremiah Root to the president, &c., of the Boston Bank, bearing date on the 15th day of July, 1803, and given to secure to the said mortgagees the payment of the sum of 500 dollars, on the 15th day of July next…

<p>A venire facias de novo having been awarded in this case, (see vol. ix. p. 208,) a new trial was had, at the last May term of this Cour< in this county, before Parker, J.</p> <p>Before the trial came on, the plaintiff moved for leave to amend his declaration, and also to alter the writing on the back of the original note, over the name of the defendant, which was an order to pay the contents of the note to the plaintiff or order. The defendant objected to the motion, which was, notwithstanding, granted upon the common rule, the defendant electing his costs. The plaintiff then erased the said order, and, instead thereof, inserted over the name of the defendant these words: “ For value received by a horse, I guaranty the payment to David Hutchinson, Jun.” The plaintiff also added three new counts to his original declaration.</p> <p>A verdict being found for the plaintiff, the defendant moved for a new trial, on the ground that the Court had improperly permitted the said alteration and amendment.</p>

This was a writ oí error, by which a judgment of the Circuit Court of Common Pleas, holden in this county in April last, rendered in an action wherein the said Shaw was plaintiff and the said Forseth was defendant, was brought before the Court.

<p>A judgment creditor levied his execution on the rents and profits of lands holdee by the judgment debtor in right of his wife, as her dower in the estate of het former husband ; and it was holden that the creditor’s interest in the lands was determined by a decree of divorce a vinculo obtained in the state of Vermont, at the suit of the wife of the debtor, although the marriage had been contracted in this state; the parties, at the time of the divorce, having had tlieir domicile in ■Vermont.</p>

This was an action of covenant broken. The plaintiff alleges that the defendant, on the 22d day of September, 1796, by his' deed, duly executed and registered, and in court to be produced, in consideration of the sum of 4000 dollars paid him by the plaintiff, bargained and sold to the plaintiff a certain tract or township of land, bounded, &c., containing 16,000 acres of land, known by the name of Oston, except 1300 acres, lying and being in said township, then occupied by…

<p>Of the seisin necessary to maintain a writ of right</p> <p>[Where lands were devised to four brothers, one of them a minor, and the three of age agreed to divide the whole lands between them, and one of them, the ancestor of defendant, having received from the others a certain sum of money, agreed to purchase other lands for the minor, and satisfy him for his portion, according to the judgment of indifferent men, and save the executors harmless from all claim of the minor when of age ; and the defendant’s ancestor took possession of the d manded premises devised as aforesaid, and he and his heirs occupied them for more than sixty years without any claim ever having been made by the minor before or after coming of age, or by his heirs, till the bringing of the suit after this lapse of time; and the minor, when of age, having received certain lands and money in part compensation for his portion, and a conveyance of other lands having been awarded to him for the residue, which had never been conveyed; — held, that his heirs, the demandants, were barred by the possession of defendant and his ancestor for more than sixty years. — Ed.]</p>

<p>An incorporated banking company loaned a sum of money at a discount of six per cent, with an agreement, on the part of the borrower, to redeem the identical bank notes received by him on the loan, if they should be returned to the bank during the continuance of the loan, with specie, and also to purchase of the company, with specie, during the loan, a certain amount of other bank notes not current at par— this was held to be a lawful agreement, and the note given to secure the loan not usurious.</p>

<p>The declaration in this case, besides several uncontested counts on promissory notes, contained an indebitatus assumpsit for two hundred dollars, in consideration of work and labor performed for the defendant by the plaintiff, and at his request, and a quantum meruit for the same work and labor.</p> <p>The evidence in support of these counts, given at the trial of the cause upon the general issue before Parker, J., at * the last April term in this county, was, that the father of [ * 288 ] the plaintiff, when the latter was about fourteen years of age, placed him in the service of the defendant, upon an agreement that the plaintiff was to remain in that service until he should arrive at the age of twenty-one years ; during which time the defendant promised to support him in food and clothing, and, at the end of the term of service, that he would pay him two hundred dollars in money, or convey to him a certain lot of land in Vermont, if the plaintiff should choose to take it. It was agreed that the plaintiff had served out his time ; and it was in evidence that he had been to Vermont to examine the land, and before the commencement of this suit had signified to the defendant his refusal to accept it. The defendant objected that this evidence could not support either of the counts ; 1st. Because it proved a special contract, which ought to have been set forth. 2d. Because the promise, as proved, was made to the father, and not to the plaintiff. Both these objections being overruled by the judge, a verdict was returned for the plaintiff; and the defendant moved for a new trial on the above grounds.</p>

<p>Where the solicitor-general, in an information against one for usurping a public office, recited an order of the House of Representatives, requesting him to file such information, and stated that he filed the same by virtue of the authority of, and in compliance with, the said order, the Court refused to quash the information, as not having been duly filed, considering that it was, notwithstanding such recital and statement, filed by the solicitor-general ex officio.</p> <p>Where the legislature had created a new county, and in the act had provided that it should not take effect until a future day mentioned, it was holden that an appointment, by the executive of the commonwealth, to an office for such county, before such day, was void.</p>

<p>This was a writ of formedon in remainder, brought for the recovery of two hundred and fifty acres of land lying in Charlton, in this county; fifty-two acres of which the tenant disclaimed, and as to the residue, the parties submitted the action to the determination of the Court on the following facts agreed, viz.: —</p> <p>“ Edward Kitchin, formerly of Salem, in the county of Essex, on the 5th day of July, 1765, was seised of the demanded premises in fee, and, being so seised, made his last will and testament; and therein devised, among other things, as follows, viz.: “ I will and bequeath to my kinsman, Josiah Wolcott, of Oxford, all my lands in Oxford, in the county of Worcester, and all my lands in Charlton.” The demanded premises are part of the lands mentioned in said clause. After several legacies, the concluding clause of said will was in these words, viz.: “ I will and bequeath the remainder of my estate, both real and personal, of what nature or kind [ * 304 ] soever, to my kinsman, John Turner, Esq., * whom I constitute and appoint to be sole executor of this my last will and testament.”</p> <p>“ On the 16th day of August, 1766, the said Edward Kitchin died so seised; and on the 1st day of September, 1766, the said will was duly proved. Afterwards, on the same day, the said Josiah Wolcott entered upon the demanded premises, which then, as well as at the time of making said will, were in a state of nature, uncultivated, and covered with woods and brush.</p> <p>“ The said Wolcott continued seised of the premises until the 25th day of December, 1792, on which day he conveyed the same to the tenant in fee simple, by deed of bargain and sale duly executed, acknowledged, and recorded; and the tenant has ever since continued in the possession of the premises.</p> <p>“ The said Edward Kitchin, at the time of his decease, was also seised of a farm in Danvers, in the county of Essex, and of other real estate than his lands in Oxford and Charlton.</p> <p>“ The demandants are the only surviving heirs of the said John Turner, Esq., and he died on the 19th day of December, 1786, and the said Josiah Wolcott died on the 9th day of December, 1796.</p> <p>“ If, upon the foregoing facts, the Court shall be of opinion that the demandants are entitled to recover in this action, it is then agreed that a jury be impanelled to inquire as to the value of the premises in a state of nature, and as to the value of the improvements made by the tenant and the said Wolcott, and to return a verdict according to the statutes in such case made and provided; and that judgment be rendered for the demandants to recover the demanded premises, not disclaimed, upon the conditions and subject to the provisions of said statutes, with costs. But if the Court shall be of a different opinion, then the demandants agree to become nonsuit, and that judgment be rendered for the tenant for his costs.”</p> <p>The cause was opened at the last October term, in [ * 305 ] this * county, by Dexter and F. Blake for the demand-ants, and Bigelow and Lincoln for the tenant; and, being continued nisi for further argument, was again spoken to by the same counsel for the demandants, and Bigelow alone for the tenant, nt the last March term in Suffolk.</p>

<p>Uf the possession of chattels necessary to maintain trespass for them.</p> <p>[Where the plaintiff, a creditor, took certain bricks, in part payment of a debt, which were set off to him from a kiln, and not removed at the time; it being agreed that the debtor might sell the whole or any part, if he secured or paid the debt, or the amount of any sale he should make, to the agent, appointed by the creditor to take charge of the bricks; and a lease of the brick-yard being given to the creditor, till the bricks should be sold, which was held by the agent who took possession openly and kept possession for the creditor; and the debtor continued in the use and occupation of the yard, and daily sold bricks from the kiln, and sometimes, but without the consent of the agent, from the part set off; — held, that the property passed, and that the sale and possession were sufficient as against other creditors; that the conditional authority to sell weis not inconsistent with plaintiff’s ownership; and that an action of trespass could be maintained by the plaintiff against an attaching creditor of the debtor . for taking and carrying them away. —Ed.]</p>

This was a writ of error, brought to reverse a j'udgment of the Circuit Court of Common Pleas, rendered at the term of said court holden in this county in June, 1812, in an action wherein the said Putnam was plaintiff, and the said Geer defendant. The original action was assumpsit upon a promissory note, dated March 7, 1812, by the defendant, for 85 dollars, payable to the plaintiff or his order on demand.

<p>The return of a sheriff, that dower had been set forth on a writ of seisin of dower by three disinterested freeholders, is conclusive; and, if not true, he is liable to an action for a false return.</p> <p>[The husband having warranted against all encumbrances, Sz.c., and his widow after his death, having claimed and obtained her dower in the premises, — held, that an action for breach of this covenant might be maintained by the assignee of the grantee against the executor of the grantor. — Ed.]</p>

<p>An assignment by A to B of a sum of money due from C to A, an assent, on the part of C, and an express promise by him to B to pay accordingly, is sufficient to maintain assumpsit by B against C. Although the sum due from C to A be an unliquidated balance of account, if the promise be to pay what shall appear to be due, so, if the assignment be of a sum to become due to A at a future day, C is liable when the money falls due. Such assignment may be effected by a verbal agreement, without writing.</p> <p>A supercargo of a ship promises to pay a sum of money to a creditor of a seaman shipped for a voyage, “ if there should be so much due to him from the ship: ” after a verdict for the promisee, it was holden, that these words expressed merely a limitation of the extent of the undertaking, and not a condition precedent to the performance of it</p>

<p>Pews m meeting-houses are considered as real property.</p>

<p>One subscribed an engagement to take a certain number of skates m a turnpike, and to pay on demand to J. G., or order, all assessments; certificates of the said shares were delivered him m consequence of his said subscription, which he received and retained; — it was hoi den that he was liable in an action of assumpsit brought by the corporation for the assessments.</p>

<p>A discharge of a citizen of Rhode Island, under the insolvent laws of that state, is not a bar to an action of debt brought in this state against such citizen, upon a judgment rendered in Rhode Island, the creditor being a citizen of this state.</p>

<p>Where a part of a town was incorporated as a new town, a pauper having a previous settlement in the old town, and whose place of residence at the time of the incorporation could not be ascertained, was holden to be chargeable to the old town.</p>

The plaintiff in this action is named of Providence, in the county of Providence; the defendant, of East Greenwich, in the county of Kent; and Gardner Daggett, the supposed trustee, of Providence, aforesaid, — all within the state of Rhode Island.

<p>An insurance was made upon a ship from New Bedford to Charleston, with liberty to touch at Savannah, and at and from thence to a port or ports ir. Great. Britain, to the policy was annexed this stipulation, — “ In case of capture or detention, the assured shall not abandon short of six months after notice thereof shall be given to the underwriters, unless sooner condemned; ” while the ship lay at Savannah, a law of the United States imposed an embargo on all ships and vessels for ninety days; and, before the ninety days expired, war was declared by the United States against Great Britain • after the embargo took place, the assured gave notice thereof, and in six months afterwards abandoned to the underwriters, having in the mean time returned to JYew Bedford; — it was holden that the assured was not entitled to recover for a total loss.</p>

This was an action of trespass, brought against the defendant, as a justice of the peace, and was tried before Parker, J., at an adjourned session of the last October term in this county, upon the general issue.

<p>An endorser of an original writ is liable to the defendant for his costs, where the plaintiff becomes nonsuit</p>

<p>The declaration was in case for that the said Fisher Adams and William Adams, by their promissory note, &c., promised the said Medway Cotton Manufactory, by the name of Richardson, Metcalf, &/• Co., to pay them or their order, &c.</p> <p>The defendants demurred to the declaration, and assigned for cause of demurrer, “ that the plaintiffs have declared on a promise made to Richardson, Metcalf, fy Co., which is the proper style of a firm; and yet have averred that said promise was made to the plaintiffs, who are a corporation; so that it appears on the record, that the promise might have been made to other and different persons than those who form the corporation; as it clearly appears that it was made to them, if at all, in a different capacity from that in which they have commenced, and now prosecute, their said action.”</p>

<p>A purchases of B his right m lands previously mortgaged by B to C; A further mortgages the same lands to C, and afterwards releases to him his equity of redemption; — it was holden, that A was never seised of an estate in those lands, of which, by law, his wife was dowable.</p>

Case on several promises. The plaintiff declares, 1st, as endorsee of a promissory note for 6000 dollars, made by William Smith to the defendant, payable to him, or his order, in four months, &.C., and avers the requisite demands and notice to the defendant; 2dly, that the defendant being indebted to the plaintiff 7000 dollars, for money laid out and * expended, &c.; 3dly, [ * 367 ] as endorsee of a promissory note for 6000 dollars, made by William Smith to the defendant,…

<p>Where a statute creating a turnpike corporation had provided that the corporation should be liable for all damages which might arise to any person by taking his land'for the road, and the Sessions had passed an order awarding such damages to A B, — it was holden, that an action of debt lay for him against the corporation fbr the sum so awarded.</p>

This was an action of debt, brought in the name of the judge of probate for the county of Norfolk, against the defendant, who was surety in an administration bond, for the benefit of a creditor of the intestate, whose estate was insolvent; the creditor’s demand having been allowed by the commissioners upon the estate, and a distribution decreed by the judge; the administrator, who was principal in the bond, having died insolvent soon after the decree of distribution was made.

This was an action of debt on a bond given to the plaintiff by the defendant as surety for one Nutting, conditioned that the latter should continue a true prisoner, &c., and is the same cause which was heretofore sent to a new trial. (1) It was again tried at the sittings after the last November term, in this county, before Parker, J., upon the same issues as before.

<p>This was a complaint under the statute of 1795, c. 74, for the support and regulation of mills. The complainant alleges that he is seised of a certain parcel of land in Woburn, and that the said Symmes, being owner of a certain water-mill, to work which he had found it necessary to raise a suitable head of water, in doing which he had overflowed the said land of the complainant, &c.; wherefore he prays for a warrant to the sheriff to impanel a jury to appraise the yearly damage done to him as aforesaid, and to determine how far the same may be necessary.</p> <p>The respondent pleads, in bar, that he was and is seised in fee and in common of one undivided fourth part of a certain mill, &c., with a right there to build and construct a mill-dam, and the same . to keep up and maintain; one Josiah Symmes, now in full life, being seised in fee and in common of the other undivided three fourths of said mill, &c.; that the said mill, &.C., is an ancient mill, and that he, the said John, and all those whose estate [ * 378 ] he hath, on, &cc., had, and for a time * beyond which the memory of man doth not extend, have had, and by law ought to have, a right to build and maintain a mill-dam as aforesaid, and to the same height and extent to which the dam complained of has been raised, &c.; wherefore the said John, as tenant in common, &c., did build and maintain the said dam, &c., as he lawfully might do, by which the waters of the said stream are restrained "and flowed back, and so, and not otherwise, were flowed over the land of the complainant, &c.</p> <p>To this plea the complainant replies, that the said John, and those whose estate he has, &c., and the said Josiah, and those, &c., had not a right to build, &c., in manner and form as the said John in his said plea has alleged; and tenders an issue to the country, which is joined by the respondent.</p> <p>This issue being found for the complainant, the respondent moved in arrest of judgment, on the ground that it is apparent on the record that the complaint should have been brought against the two owners of the mill, <fcc.</p>

<p>The owners of several parcels of land, through which was a private way having a gate across it, entered into covenants, by indenture, for widening the way, &c.; to the indenture was subjoined the following memorandum, viz., “The gate above mentioned is to be kept up, except by the consent of the parties; ” — it was holden to be the intent of the parties in the memorandum, that the gate should be upheld until, by agreement, it should be taken down, and then that it was to remain down forever. [It was also held, that the condition of the premises and the acts of the parties, at the time and immediately subsequent to the execution of the instrument, were admissible in evidence to explain the meaning of the memorandum. — Ed.]</p>

<p>Where one had engaged to take certain shares in a turnpike road, and to pay ail assessments thereon, and afterwards the course of the road was altered by law, it was holden that he was not bound by his engagement to pay the assessments, notwithstanding he had acted in several offices of the corporation, and had. as one of the directors thereof, petitioned the legislature for such alteration.</p>

This action was similar to the preceding one by these plaintiffs against Sivan, and was tried at the sittings here after the last November term, which were holden by Parker, L, whose report of the evidence states that the facts in the two cases were the same, except that Walker was a subscriber for three shares only, and that lie did not sign the petition referred to in the last case ; but he was chosen and acted as a director of the corporation for the year 1807, which was…

The defendant was indicted, for that “ on the 10th day of May, 1811, and on divers other days, &c., with force and- arms, at Brighton, &c., in and across the channel of Charles River, he did set, make, and erect, a certain disturbance and encumbrance, commonly called a seine, or net, thereby stopping, obstructing, and straitening, the natural and usual course of the fish in said river, in their seasons, up and down the same, without the allowance and approbation of the Court…

<p>Assumpsit for the support of one Jotham Farmer, a pauper, alleged by the plaintiffs to have had his settlement in Chelmsford.</p> <p>The action was submitted to the decision of the Court upon the following facts stated and agreed by the parties: —</p> <p>The said Farmer was born in Chelmsford, and at the time when the supplies were furnished by the plaintiffs had, and still has, his legal settlement in Chelmsford, unless he has acquired a settlement in Billerica.</p> <p>In the year 1793, he came from Chelmsford to Billerica, where he resided until the autumn of the year 1795, when he removed, with his family and effects, to Chelmsford, (in which place his father then lived,) not expecting or intending ever again to return to reside in Billerica. After living about three months in Chelmsford, he again removed, with his family, to Billerica, where he has ever since resided.</p> <p>He was taxed for his poll, and paid the tax, in the years 1794, 1795, 1796, 1797, 1803, and 1805, except that in 1805 a part of his tax was abated.</p> <p>If, from the foregoing facts, the Court should be of opinion that the pauper had not acquired a settlement in Billerica, the defendants agreed to be defaulted, and that judgment should be rendered against them for the sum demanded by the plaintiffs, with costs ; otherwise the plaintiffs agreed to become nonsuit, and that the defendants should have judgment for their costs.</p>

The declaration was in case, and consisted of three counts: 1. Indebitatus assumpsit on an account annexed for labor, &c., in making the said turnpike. 2. Quantum meruit for the same labor, &c. 3.

<p>This was a writ of certiorari, issued at the motion of the respondent, commanding E. Wood and A. Heywood, Esquires, justices of the peace for this county, to certify their doings upon a certain process of forcible entry and detainer, had before them on the 30th of June, 1812, upon the complaint of Caroline Dudley and others against the respondent, pursuant to the provisions of the statute of 1784, c. 8.</p> <p>* The proceedings were in the form prescribed by [ * 404 ] the statute, and the facts in evidence to the jury are recited in a bill of exceptions offered by the defendant, which was allowed and sealed by the justices, and came up as part of the record.</p> <p>The facts were, in substance, as follows: In the year 1789, one Habalckuk Stearns, then seised in fee of the land in controversy, made, executed, and delivered, a conveyance thereof, with covenants of warranty, to the said Benjamin Dudley, who thereupon entered upon, and continued in the exclusive possession of, the premises, until the year 1802, when he applied to one Hobbs to write a conveyance of the same land from said Stearns to Samuel Dudley, his son, observing to Hobbs that he had sold the land to said Samuel, and wished in this method to save the expense of recording two deeds. When Hobbs had written the deed, and it had been executed and acknowledged by Stearns, the former°deed was destroyed by the said Benjamin, or some other person, in his presence. From the delivery of the deed last mentioned to the said Samuel to the time of his death, in 1812, he and his father continued to live, with their respective families, in a house upon the same land; and during that period the said Benjamin labored on the land, principally under the direction of the said Samuel, and the families of both used the productions thereof. Since the death of said Samuel, his widow and children have continued to occupy the said house, with the said Benjamin and his family. After the decease of the said Samuel, Isaac Fiske, Esquire, was duly appointed guardian of the said Caroline and others, who are the children and heirs of the said Samuel, who died intestate. Before the said complaint was made, the said Fiske, guardian as aforesaid, ordered the said Benjamin to deliver to him the possession of the said land, which the said B jamin refused to do.</p> <p>Upon these facts, the jury returned a verdict for the complainants.</p>

This was an action of trespass quare clausum, fregit, and was commenced in the Court of Common Pleas for this county on the 26th of August, 1811. It stood continued to the December term following of the then newly-established Circuit Court of Common Pleas, when the plaintiff appealed to the next term of this Court.

<p>A settlement is not lost until another is gained within the commonwealth; therefore where A, having a settlement derived from his father, removed into New Hampshire, and there had a son born, who afterwards came into this state, and had children,— it was holden, that these children had a settlement in this - state derived from their great grandfather.</p> <p>Where notice was given of a pauper’s becoming chargeable in March, 1811, and again in October, .1812, and an action was commenced in May, 1813, the defendant town was holden liable only for the expenses incurred for three months before the last notice.</p>

<p>Assumpsit on a promissory note made by the defendant to the said Sarah, dated August 24, 1809, for 343 dollars 75 cents, payable, with interest, on the 1st of April, 1812.</p> <p>The cause was tried before Parker, J., at the sittings here afte the last October term, and a verdict taken for the plaintiffs for 206 dollars 46 cents, subiect to an agreement, on the part of the defendant, that the verdict might be altered by the Court, as their opinion should be upon the following facts: —</p> <p>The defendant admits the signature of the note, but alleges, as to 200 dollars, part of the sum therein mentioned, with the interest of it from the 31st of July, .1812, it is without adequate consideration ; because one Seth Clark, deceased, was seised of certain lands, and died so seised, leaving Ebenezer Clark and the said Sarah Sanger, children of the said Seth, and one Tisdale, a grandchild of said Seth, his heirs. On the 2d of June, 1807, for settling the estate of Seth, it being then supposed that there would be personal estate sufficient for the payment of his debts, the said Ebenezer executed a bond to the said Sarah, in the penal sum of 1000 dollars, conditioned that he, the said Ebenezer, who was administrator of his said father’s estate, should pay all the debts and mortgages due from the deceased, out of the personal estate; [*416] and if that * should prove insufficient, should pay the residue out of the obligor’s own estate, and should also procure a decree of the judge of probate for the county of Norfolk, assigning to the said Sarah, the obligee, and her heirs, all the real estate of which the said Seth died seised, which was described in the inventory in the probate office. On the day of the date of the note declared on, instead of causing said real estate to be settled on the said Sarah, according to the condition of the said bond, the said Sarah, with her husband, the present plaintiff, and the said Tisdale, made and executed a deed of quitclaim of all their right and title to the- said real estate to the said Ebenezer, who, at the request of the said Sarah, conveyed the same to the present defendant, with covenants of warranty. The defendant, in consideration thereof, made the note declared on, and also another note for 500 dollars, which has been since paid. Thereupon the said Sarah’s agent, by a memorandum on the back of the above-mentioned bond, acknowledged the said deed of the said Ebenezer to the defendant to be equivalent- to the procuring a decree of the judge of probate, &c., assigning and settling her father’s real estate upon her. Afterwards the said Ebenezer died insolvent, and one Amos Woodward was appointed administrator de bonis non of the said Seth; and a certain demand having been unexpectedly recovered against him in his said capacity, he represented the estate of the said Seth insolvent, and obtained a license from the Circuit Court of Common Pleas holden at Dedham in April, 1812, authorizing him to sell the whole of the real estate of said Seth, for the payment of his debts; pursuant to which license, the said Woodward sold and conveyed the said real estate to the defendant, for the sum of 200 dollars.</p>

<p>Debt on bond for 1200 dollars, the condition of which, upon oyer had, recites that the plaintiff, at the S. J. Court in this county, October term, 1809, obtained a verdict against the defendant for 740 dollars damage and 147 dollars 72 cents costs; and the defendant had moved for a new trial of the action ; “ if the said motion should be overruled by the Court, and a new trial be refused; if he, the said C., shall pay to the said B. the amount of such damages and costs, with interest; and in case a new trial shall be granted him, the said C., he shall prosecute the same, and shall answer and pay to the said B. such sum as he, the said B., shall recover in damages, together with costs, without fraud, &c.; — then this obligation to be void; otherwise to remain in full force.” Whereupon the defendant pleads, in bar of the action, that his motion for a new trial was not overruled; that such proceedings were had in said action, that, at April term, 1811, the plaintiff recovered judgment for 783 dollars damage, and costs of suit, taxed at 175 dollars 31 cents; that, on the 10th day of the same April, the plaintiff sued out execution upon the said judgment, returnable on the last Tuesday of October then next, which, being delivered to a deputy sheriff of the county, was, on the 29th of August, 1811, returned by the said deputy sheriff fully satisfied. To this plea the plaintiff demurred, and assigned for cause that “ it does nowhere appear, by said plea, that said Cutler paid, or caused to be satisfied, the sums aforesaid before the commencement of the plaintiff’s action; ” and the de fendant joined in demurrer.</p>

This was a writ of entry sur disseisin, in which the demandant counts on his own seisin within thirty years, and on a disseisin by the tenant.

<p>The said Packard sets forth in his petition that he is a partner, with one Gowen, in a commercial house in the Havana; that said Gowen, in the year 1812, received a sum of money from one Butters, for which he gave an accountable receipt of the said firm ; that afterwards, in the same year, he, the said Packard, was summoned as the trustee of said Butters by T. Kidder f Al.; and that judgment has been rendered against him on a scire facias for 1630 dollars 50 cents debt and 15 dollars 20 cents costs; upon which judgment execution hath issued. The petitioner further states that, since the rendition of that judgment, he has been informed, and verily believes, that the said Butters has drawn a bill of exchange upon the said firm in the Havana, which has been paid, and thereby a very small sum remains due to the said Butters from the pet'tioner, or from the said firm. Wherefore he prays for a supersedeas of the said execution, and for a review in the premises, that he may be enabled to answer as trustee in this Court, and be charged only for the sum actually in his hands. .</p>

<p>This was assumpsit, upon a promissory note for 100 dollars made by Sarah Thompson, the defendant’s intestate, to the plaintiff The cause was tried upon the general issue, before the late chief justice, at the sittings here after the last October term.</p> <p>The circumstances under which the note was made were stated in the deposition of a Mr. Duncan, of Haverhill, in the county of Essex, who testified that, in June, .1807, Mrs. Thompson, the intestate, belonging to Billerica, in this county, and then being on a visit at the witness’s house, several times expressed a wish to leave certain -egacies to certain of her particular friends and acquaintance, out of the money left her at her disposal by her then late husband, being about 2000 dollars; that she named the plaintiff, with two other females, as the persons in her mind; and wishing to avoid the expense attending a will, proposed to give the legacies by notes of hand; that the witness accordingly wrote the note declared on in this action, and two other notes to the two other persons named by the intestate, each of the notes being made payable in one year from the date, with interest after that time until paid ; that the intestate left the notes in the witness’s keeping, to be delivered, after her decease, to the persons to whom they were respectively made payable, which was accordingly done by the witness. The witness further said drat the intestate repeatedly expressed her desire to leave something to the plaintiff, as she had been very attentive to her; and from the intestate’s strong expressions of the obligation she felt herself under to leave something to the plaintiff, the witness concluded that she had frequently attended the intestate when out of health, &c.</p> <p>It was also proved that, in the last sickness of the intestate, and when her mind was unimpaired, she recognized the note in question and the two others above referred to; that she placed in the hands of a Mr.-personal securities to a large amount, directing him to see that her debts * and funeral ex- [ * 428 J penses were paid, and especially enjoined upon him to pay her legacies, which she explained to mean the notes she had placed in the hands of Mr. Duncan.</p> <p>There was an attempt to prove a consideration in the way of services and kindnesses performed by the plaintiff towards the intestate ; but it being clear that the note was intended in lieu of a legacy, and not in satisfaction of a debt, and it not appearing that the services were rendered in expectation of payment, the chief justice directed the jury to lay that evidence out of the case, and that a verdict might notwithstanding be found for the plaintiff. A verdict was so returned, and the defendant’s counsel moved for a new trial, alleging that the note, made under the circumstances aforesaid, was not recoverable at law.</p>

This was an action of assumpsit brought by the plaintiffs, as a committee and agents of the town of Marlborough, to recover a reimbursement of the expenses incurred by them in building a public meeting-house for the town, pursuant to the votes of the inhabitants.

<p>The tenant, in a real action, against whom judgment has been rendered, may, after a reversal of such judgment by writ of error, maintain assumpsit for the mesne profits against the original demandant or his executors.</p>

<p>The statute of 1805, c. 90, after prescribing what shall be evidence of an advancement to a child or grandchild, repeals all prior acts falling within its purview ; but it was holden that a deed made prior to that statute, and which, by the existing laws, would have been evidence of an advancement, should have that effect, the repealing clause notwithstanding, although the grantor died after the statute was in operation.</p>

<p>Debt on bond for 1000 dollars. On oyer, the bond, as written, purported to be the deed of the defendant, together with Royal Makepeace and Josiah Whittemore, jointly and severally ; but it was signed and sealed only by the two * first. [ * 443 ] The condition was to the following effect: Whereas complaints exist and are made against the said W. W., R. M., and J. W., by the said & C., for causing his soil to be dug up and subverted, and causing his mill-pond to be partly filled up, and other injuries to be done to the said /S'. C.; and whereas the said [the obligors and obligee] have agreed to submit to T. J., A. B., and D. H., to estimate and determine the damages which had been done to the said /S'. C.; now, if the said W., R., and J., shall abide by the award and determination of the said T.,A., and D., and shall well and truly pay, or cause to be paid, to the said /S'. C. such sum or sums of money as the said T., A., and Z)., or either two of them, shall award against them in the premises, together with the fees of the said arbitrators for estimating said damages, then this bond shal be void, and of no effect, otherwise remain in force.</p> <p>The defendant, after oyer had of the bond and condition, pleads, in bar,— 1. That the arbitrators, or any two of them, never made their award in the premises.</p> <p>To this plea the plaintiff replied, that the said arbitrators, after the making of the said writing obligatory, viz., on, &c., having taken upon themselves the burden of the said arbitrament, did in due manner make their award in writing under their hands, of and concerning the premises in said condition mentioned and thereby referred to them as aforesaid, which award was annexed to the bond mentioned in the plaintiff’s declaration, and is in the words and figures following, viz.: “ West Cambridge, December 5, 1810. We, named in the bond to which this is annexed, having given due notice to all parties named in the said bond, and having viewed the premises, are of opinion, and do award, that William Whittemore and Royal Makepeace, obligors named in said bond, pay unto Stephen Cutter three hundred and seventy-five dollars, in full of his damages mentioned in said bond, and twelve dollars and fifty cents for the referees’ time and travel, and also three dollars for their expenses. T. J.—A. B.—D. H.” Of which said award the said William and Royal there afterwards, on the same day, had due notice, &c.</p> <p>* To this replication the defendant demurred generally, and the plaintiff joined in demurrer.</p> <p>2. The defendant pleaded, in bar, “ that well and true it is that the arbitrators, named in the condition of the said writing obligatory, did make an award, purporting to be an award in the premises, in the words and figures following, [setting forth the award as in the replication to the first plea in bar,] which said award the said Whittemore says does not pursue the submission, and is not between the parties in the premises.”</p> <p>To this plea also the plaintiff demurred generally, and the defendant joined in demurrer.</p>

<p>The declaration was in assumpsit, and contained two counts. 1. The first was for 3000 dollars, laid out and expended by the plaintiff for the defendant’s use. 2. The second was a special count, setting forth a devise to the plaintiff of certain real estate in Charlestown, and another devise to the defendant of certain estate in Princeton, in and by the last will of Moses Gill, Esq., deceased ; and that the land devised to the plaintiff was taken to satisfy a judgment recovered by Ward Nicholas Boylston against the executor of the said last will; and then claiming contribution according to the statute of 1783, c. 24, ■§> 18, alleging a promise, &c.</p> <p>The cause was tried upon the general issue, at the sittings here after the last October term, and a verdict was returned for the plaintiff, subject to be altered, amended, or wholly set aside, and a nonsuit entered, according to the opinion of the Court upon the following facts, proved or admitted at the trial: —</p> <p>The late lieutenant-governor, Moses Gill, by his last will and testament, proved on the 3d day of June, 1800, devised to the plaintiff, in fee, certain real estate in Charlestown, in the county of Middlesex, of the value of 3140 dollars, into which estate the plaintiff, after the death of said Gill, and after the probate of his said will, entered and became lawfully seised thereof under the said will.</p> <p>The said Moses Gill, in and by the same last will and testament, devised to the defendant, in fee, certain real estate in Princeton, in the county of Worcester, into which the defendant, after the death of said Gill, and after the probate of his said will, entered and became seised thereof under the said will, and is now in the lawful and undisturbed possession thereof; which estate, together with legacies to him of personal estate, is of the value of 7630 dollars.</p> <p>In the year 1804, W. N. Boylston, as administrator of [*451 ] * Thomas Boylston, deceased, recovered, in the S. J. Court in the county of Suffolk, judgment against the estate of said Gill, the testator, in the hands of Moses Gill, the executor of said will, for the sum of 106,104 dollars 42 cents damage, and costs of suit; and having taken out execution thereon, caused the same to be duly levied on the estate so devised, as aforesaid, to the plaintiff; and-seisin of the same was lawfully given tc the said Boylston, in part satisfaction of said execution, the said Boylston still remaining in possession of the same, and no right of redemption remaining in the plaintiff.</p> <p>The defendant’s counsel objected, — 1. That, by law, the action could not be maintained against the defendant, one of the devisees in said will, but should have been brought against all the devisees and legatees, who, by the statute aforesaid, are liable to contribute.</p> <p>2. That, a bond having been given by the executor, to pay the debts and legacies, there should have been an application to the Probate Court for an apportionment upon the several devisees and legatees, before any action could be maintained.</p> <p>3. Because waste was committed by the executor, in suffering real estate to be taken to satisfy the debts of the testator ; and t! at the plaintiff’s remedy ought, therefore, to have been upon the bond.</p> <p>4. It was also objected that the damages were assessed upon a wrong principle ; the jury not having taken into the estimate all the legacies and devises, but having excluded therefrom those which had been given to persons who were dead, and who had become insolvent before the commencement of this suit; the sum so excluded amounting to the sum of 15,065 dollars, as would appear by the report of certain referees, appointed by a rale of this Court, to estimate the value of the estate, real and personal, left by said Gill, and the value of the gifts and legacies therein bequeathed.</p> <p>If the Court should be of opinion that an action cannot, undei these circumstances, be maintained against the defendant* alone, or that the plaintiff’s proper remedy was [ *452 ] upon the executor’s bond, and not by this suit, then the verdict was to be set aside, and the plaintiff to become nonsuit. But if the Court should be of opinion that the action is well maintained, but that the damages ought to have been assessed upon a principle different from that which was adopted by the jury, then the verdict was to be amended, so as to reduce the sum to what the Court shall deem just, having reference to the report aforesaid ; otherwise, judgment was to be entered on the verdict, with additional damages, equal to interest from the time of taking the verdict.</p>

<p>This was a writ of entry sur disseisin, brought to recover posses sion of a certain tract of land in Marlborough, wherein the demand-ant counts upon his own seisin within thirty years, and upon a disseisin by the tenants.</p> <p>A trial was had upon the general issue, at the sittings in this county after the last October term, before Parker, J., who reports that the demandant’s title is unquestioned, unless taken away by a certain deed, now cancelled, which purports to convey the same to his son, Abel Maynard, deceased, under whom the tenants claim to hold the same, the said Nancy being the widow, and the other tenants the children, of the said Abel.</p> <p>The deed, which purports to have been made by the demandant, for the consideration of 2000 dollars, and contains the usual covenants of warranty, was made under the following circumstances. In April, 1810, Hezekiah Maynard, the demandant, called upon Benjamin Rice, Esq., who is a subscribing witness to the execution of the deed, and the magistrate before whom it was acknowledged, and told him he wished to make some provision for his son Abel, and requested the witness to write a deed of the land, being part of the demandant’s farm, which is described in the deed. This was done by the witness, who read it to the demandant, and he was satisfied with it. A few days afterwards, he called *on the witness, and signed, sealed, and ac- [*457] knowledged, the deed; and he requested the witness to take it to the register’s office, and get it recorded. The witness carried it to the register accordingly, procured it to be recorded, and, in May following, received it back. The witness informed the demandant of this, who told him it was right, and requested him to keep the deed until it was called for. Abel, the son, was never present at any of these transactions, nor did it appear that he ever knew of the execution of the deed. About a year afterwards, Abel died, and, soon after he was buried, the demandant called upon the witness for the deed, which was given to him, he then saying that he supposed he had a right to do as he pleased with it; and then cut his name and seal from it. It was proved that Abel, the son, lived upon the farm with the demandant, his father, and carried it on with his labor, and supported his family upon it. It was also proved, by several witnesses, that the demandant, in conversation after the execution of the deed, considered the land as his son’s property.</p> <p>The judge instructed the jury that there were no facts proved in the case which, in law, could amount to a delivery of the deed to Abel; so that the conveyance was not perfect, and the demandant must recover possession. A verdict was accordingly returned for the demandant, which the tenants moved might be set aside, and a new trial be granted.</p>

<p>A conveys, with covenants of warranty, certain parcels of land, including one parcel which he had before conveyed to his son, by deed, duly executed and recorded, on which the son had erected a dwelling-house, and of which he was in the open and exclusive possession, of which the grantee was knowing; — in an action by the grantee upon the covenants, the jury gave nominal damages only, on the ground that the parcel so conveyed to the son was inserted in the deed to the plaintiff by mistake; and a new trial was refused.</p>

This was a writ of entry sur disseisin, wherein the said Mary demands against the said Eunice possession of one undivided sixth part of a piece of land in Woburn, in this county; and she counts upon her own seisin within thirty years, and upon a disseisin by the tenant. * October term, 1809, the parties entered into a rule [ *465 ] of court, by which they agreed to submit the action to the determination of Asahel Stearns, Esq., (counsellor of this Court;) and that he should…

<p>Case, in which the defendant, as sheriff of the county of Essex, is charged for the neglect and default of Jacob Cobum, his deputy. The plaintiff alleges that a writ of attachment and capias, sued out by himagainst one William, Hill, was delivered to Cobum, and that he neglected to serve it upon Hill, although in his presence, &c.; and that Cobum afterwards falsely returned upon the same writ, that he had arrested Hill, and taken bail for his appearance. The declaration also contains averments of a judgment recovered in the suit against Hill, of the loss of the fruits of the suit, expenses incurred, &c., in consequence of Coburn's neglect, his false return, &c.</p> <p>The action was tried upon the general issue, at the sittings here after the last November term, before Sewall, J.</p> <p>The defendant, at the trial, admitted a writ returnable to the Circuit Court of Common Pleas, June term, 1811, sued by *the plaintiff against Hill, and delivered to Coburn, [ *471 J when a deputy of the defendant, upon which Coburn returned an arrest of Hill, and bail taken, as set forth in the plaintiff’s declaration; also a judgment recovered in the same court, upon default, for 125 dollars 71 cents damages, and 9 dollars 14 cents costs, and an execution sued out thereon, returned unsatisfied by the defendant, and an alias execution, dated October 26, 1811, delivered to one West, a deputy of Robert Farley, then sheriff of Essex, upon which was returned non est inventus, and nulla bona.</p> <p>The plaintiff further proved, by the confession of Coburn, in a letter addressed to the plaintiff’s attorney, dated February 11, 1812, that no bail bond had been taken in the suit against Hill, excusing his neglect by stating Hill to have been in extreme sickness when the writ was served upon him, likely to be soon discharged by death, &c., and the determination of Coburn to take the risk upon himself, &c.</p> <p>The plaintiff resting his case here, the judge permitted the defendant to go into evidence in mitigation of damages; and the plaintiff’s objections to evidence of that kind were overruled.</p> <p>The defendant then proved the sickness of Hill, when he was served with the plaintiff’s writ; that he was then without property, having previously surrendered his effects, and had ever since continued in poverty, supported by his friends; and although he had recovered from his sickness, that he had never concealed himself, had remained at or near the residence he had when the original writ was served, known to Coburn, who had continued a deputy sheriff, and who had always had it in his power to have taken Hill, upon the plaintiff’s execution, if he had been employed to serve it, &c.</p> <p>Upon this evidence left to the jury, they returned a verdict for the plaintiff; but they assessed his- damages at one dollar only.</p> <p>If evidence in mitigation of damages was admissible in this case, and if, upon the evidence stated," it was competent for * the jury to reduce the plaintiff’s damages to one dollar, [ * 472 ] judgment was to be entered according to the verdict; but if evidence to that purpose was not admissible, or if the dam ages were improperly reduced, then the verdict was to be set aside and a new trial was to be granted.</p>

<p>The declaration was in case, and contained, besides amount foi 5000 dollars, money had and received to the use of the plaintilf, a special count to the following effect:—for that Dudley S. Bradstreet and William Story were indebted to Benjamin T. Reed.; and to reocver his demand, &.c., he caused 150 shares of the capital stock of said company, subscribed, &c., by the said Bradstreet 8f Story, to be attached; and the same having been afterwards levied and taken in execution, to satisfy the judgment recovered by the said Reed against the said Bradstreet Story, their said shares and interest in the said capital stock were sold, &c., and the plaintiff became the purchaser at the price of--per share; and notice having been given, &c., as the law requires, the defendants became obliged, and it was their duty, to admit the transfer, and to grant certificates of the said shares to the plaintiff; and in consideration thereof they promised, &c., but afterwards refused, &c.</p> <p>At the trial of the cause upon the general issue, which was had before Sewall, J., at the sittings here after the last October term, the attachment, judgment, execution, levy, and sale, were duly proved.</p> <p>The defence at the trial was the supposed interest of Isaac Story in the said 150 shares, originally subscribed in the name of Bradstreet Story, by a sale and transfer to him previous to the said attachment. A bill of sale, executed June 4, 1811, by Dudley S. Bradstreet, for himself, and in the name of William Story, as his attorney, and a certificate of the instalments which had been at that time paid on the said shares, endorsed and delivered over to the said Isaac Story, to transfer the said shares to him, for a consideration mentioned to be of 7500 dollars, w-ere given in evidence. [ * 477 ] * This, with other evidence of the circumstances of the sale, the consideration paid, &c., were left to the jury, with directions to find a verdict for the defendants, if an actual sale, bona fide, and for a valuable consideration, was proved to have been made on the 4th of June, 1811, according to the tenor and intent of those workings ; and the jury having returned their verdict for the defendants, the other questions arising in the cause were reserved upon the following state of facts agreed by the parties, or proved at the trial:—</p> <p>The shares of stock in question were subscribed by Bradstreet. in the name of Bradstreet Sf Story, that being the name and firm in which Dudley S. Bradstreet and William Story did business as general partners in trade; and the subscription was intended for their joint benefit and concern, and the instalments were paid from their joint stock in the management of Bradstreet, the other partner having been absent in Europe at the time of these transactions, and not having been particularly consulted, either respecting the subscription or the transfer. There was no particular or general power from W. Story to Bradstreet produced at the trial.</p> <p>On the 7th of June, 1811, after the said intended transfer to Isaac Story, and before the said attachment, he informed the secretary of the said insurance company of the transfer made by Bradstreet, and that a suit, which he had commenced against Bradstreet &f Story, upon which the said shares had been attached at the office of the defendants on the 13th of March preceding, had been relinquished. The attachment at the suit of Reed was made on the 8th of June, 1811, and the said Reed, and the officer claiming to attach the shares, were informed, at the time, that the same were claimed by the said Isaac Story as his property.</p> <p>Two or three months after the attachment, but before the sale under which the plaintiff claims, a copy of the bill' of sale, under which the said Isaac Story claims the shares in question, was left at the said office by him.</p> <p>In the statute (1) by which the said insurance company was in corporated, there is a provision to this effect, — that no * transfer of any share in said company shall be permit- [ *478 ] ted or valid until the whole capital stock shall have been paid in. And it was agreed that only fifty per cent, of the capital stock, subscribed for by Bradstreet for Bradstreet Story, had been paid in at the time of the contract with Isaac Story, and of the attachment by Reed.</p> <p>If the Court should be of opinion that the plaintiff was entitled, under the sale to satisfy Reed’s execution, to the shares of the stock in question, and that this action was maintained against the defendants upon the evidence, then the verdict was to be set aside, the defendants to be defaulted, and judgment to be rendered upon an inquiry of damages, or for such amount of damages as the parties should agree ; or a new trial was to be granted, as the justice of the case might require.</p> <p>The cause was argued at the last March term in Suffolk, by Dexter and Putnam for the plaintiff, and Prescott for the defendants.</p> <p>For the plaintiff, it was argued that the transfer to Isaac Story was void, inasmuch as it was made by one only of the original holders of the shares, and this by deed or instrument under seal, without authority from the other under his seal, either general or for this specific purpose, so that at most but half of each share was transferred; and also as the act incorporating the company expressly prohibits transfers of shares, until the whole stock should be paid in. And although, in strictly technical language, a transfer may include a taking by attachment and execution, yet, in the more popular use of the word, it is limited to a voluntary act of the owner. That this was the sense in which the legislature intended it in this case, may be understood from the language used in the statute — “ No transfer shall be permitted, or be valid,” &c. The transfer is not to be permitted by the company or its directors, nor shall it be valid, if so permitted. This construction completely fulfils what must have been the object of the legislature in the restriction, viz., to prevent speculation in the stock. It could never be [ * 479 ] desired to lock up the property of debtors, * and to place it out of the reach of their creditors Thus every supposable purpose of the provision would be answered, and it woylo not militate with the provisions of the general statute of 1804, c. 83, making this species of property subject in all cases to attachment on mesne process, and to a sale by execution.</p> <p>If this construction be the true one, there is no valid title against the plaintiff’s claim, and his title under the sheriff’s sale is complete. The claim of Isaac Story cannot certainly be supported as legal; nor can it be supported as an equitable one, since it is directly con trary to the express provisions of a positive statute.</p>

<p>The charterer of a vessel is bound to victual and man her, without any express stipulation in the charter-party to that effect, unless a different intention is apparent from the instrument</p> <p>Where the master of a vessel had received funds from the charterers for the payment of the seamen’s wages, and he, notwithstanding, suffered the vessel to be libelled for the wages, whereby the owners were obliged to pay them, in order to relieve their vessel, tire master was holden liable to them for the amount so paid by them, in an action for money laid out and expended, although the charterers were indebted to him to the amount so received of them by the master.</p>

<p>A student in the theological institution at Andover, being of age, and otherwise qualified according to the constitution, and being also emancipated from his father’s family, is entitled to vote in that town in the election of senators.</p>

Case upon a promissory note for 550 dollars, payable to Samue1. C. Ward, or order, in eight months from the date, signed by the defendant, and endorsed by the said Ward to Richard Manning, the plaintiff’s testator.

This was assumpsit for the support of Elizabeth Lamson, a pauper, and was submitted, to the opinion of the Court upon the following facts agreed by the parties : — Thomas Lamson, the father of the said Elizabeth, was, in the yeai 1754, lawfully married to Anna Redington, and lived in that part of the then town of Ipswich which is now Hamilton, and which was incorporated into a town by an act passed on the 21st of June, (1793, Stat. 1793, c. 10,) which act recites and…

<p>It was agreed, in a bill of lading, that the net proceeds in the foreign port of the goods shipped, after deducting freight and commissions, should be paid to the shipper in ninety days after the arrival of the vessel in the U. S.; the ship arrived in safety at her port of destination, where the goods were sold; on her return voyage she was stranded, and the cargo damaged fifty per cent.; the ship was afterwards got into port and repaired, so that she might have gone to her intended port of discharge, but did not; — it was holden, that the shipper was entitled to the net proceeds of the goods, without any deduction for the loss by stranding, although he had caused his interest to be insured for the voyage round.</p>

<p>A manufacturing corporation is taxable for its real property in the town where it lies, notwithstanding the individual corporators are liable to be taxed for their several shares thereof in the towns where they dwell; but the corporation is not so liable for its personal property, used in and about its manufactory.</p>

The indictment charges that the said Runnels, with five others named therein, “ together with a great number of other persons, to the amount of fifty or more, (to the jurors aforesaid as yet unknown,) on the 6th day of April, 1812, being the first Monday of the same month, in the afternoon of the same day, with force and arms, at Salem aforesaid, in the county of Essex aforesaid, unlawfully, riotously, and routously, did assemble and gather together, to disturb the peace of…