Volume 11 — Massachusetts Reports

<p>This was an action of the case upon a policy of insurance, in which the plaintiff declares for a total loss. There was also a count for 1000 dollars, money laid out and expended, and other money counts.</p> <p>The cause was tried on the general issue, before the present chief justice, November term, 1812.</p> <p>It appears, from the judge’s report of the trial, that the defendants made the policy declared on, dated the 6th of June, 1807, for 25,000 dollars, on the cargo of the ship Jenny, at and from Boston, to and from every port and place to which she may proceed, backward and forward, until her return to Boston, the time not exceeding twenty-four calendar months from the date of the policy; [ * 2 ] beginning the * adventure upon the said cargo at Boston, at the premium of eight per cent, per annum, warranting eight per cent. By a memorandum at the foot of the policy, it is declared that the company take no risk of illicit trade, nor of trading from one belligerent port to another.</p> <p>This policy being on the same voyage with that in the action of this same plaintiff against the Union Insurance Company, reported in the eighth volume of these Reports, (p. 494,) it is sufficient to refer to that report for a detailed history of the voyage. It is necessary here only to note that, in the case referred to, the policy being made on the 9th of June, 1807, did not expire until the 9th of June, 1809; whereas, in the present case, the policy was dated the 6th of June, 1807, and expired on the 6th of June, 1809, the vessel and cargo having been condemned on the 7th of June, 1809.</p> <p>A verdict was taken for the plaintiff for a total loss, subject to the opinion of the Court; and it was to be set aside, and a new trial granted, if the Court should be of opinion, upon the facts reported, that the plaintiff was not entitled to recover a total loss • otherwise judgment was to be entered upon the verdict, with interest from the finding of the same.</p> <p>The cause was argued, at the last March term in this county, by Prescott and Jackson for the plaintiff, and Dexter and Gorham for the defendants.</p> <p>For the defendants, it was contended that the policy had ceased to protect the subject of the insurance at the time of the condem nation. No total loss had happened at the expiration of the policy. If the plaintiff relied on the capture, as constituting a total loss, it was necessary for him to abandon within a reasonable time of his being advised of it. Nothing occurred after the capture, and before the expiration of the policy, to change the rights of the parties, or that authorized the plaintiff to abandon. He did not abandon until advised of the condemnation; and before that took place, the policy had expired. The premium had then ceased, and of course the risk undertaken by the defendants had also ceased. If the plaintiff had insured this property, * with a stipulation that [ * 3 ] the risk should commence from the 6th of June, 1809, the insurers on such policy would have been liable for a total loss by the sentence of condemnation, which was passed on the next day. (1)</p> <p>The opinion of the Court was delivered at this term by</p>

<p>A contracts to sell to B twenty-five hogsheads of rum, at an agreed price, and to furnish the casks, nothing- being said concerning the size of the casks, the customary size being from 108 to 132 gallons. No rum was delivered, no payment was made, nor any memorandum of the agreement in writing. Nine days after-wards, the price of rum having risen in the mean time, A called on B, informing him that the rum was ready, and presenting a bill of parcels of twenty-five hogsheads of rum, averaging ninety-seven gallons, for which he requested payment. B then paid 1000 dollars in part of the bill, remarking that the casks were small, hut making no objection to receiving them; and the next day he sent for and received the rum. Afterwards, expressing his dissatisfaction with the quantity of rum delivered, A offered to take it back and to pay the expenses which had arisen'; but the offer was not accepted. In an action by B for the amount of the difference in price of the deficient gallons, it was holden, that the delivery of the bill by A, tire payment of the money by B, &c., took the case out of the statute of frauds; and that the bargain might be considered as then made, and as the only one of which there was legal evidence; and, consequently, that B had no ground of action.</p>

<p>A debtor taken m execution procures his discharge from the arrest by giving security to the officer: afterwards, and before the return day of the execution, the officer again arrests him, and commits him to prison, making return on the execution that he had so done. The debtor gives bond, with surety, for the liberty of the yard; and in an action on such bond, it was holden good against principal and surety.</p> <p>One attending court, as a party to a process then pending, may avail himself of the protection which the law affords in that case to prevent or defeat an arrest; but if he submits, he cannot afterwards object to the imprisonment as for that reason unlawful.</p>

<p>A transfer in a merchant’s leger of the balance of his account against a firm to the private account of one of the copartners, without the privity of any of them, was holden not to conclude tire merchant, and his recharging the firm to be good and sufficient to hold them.</p>

At the last term of the Circuit Court of Common Pleas in this county, the complainants obtained a judgment against the said Hubhard, that Julia Ann Griffin, a minor,,and an apprentice, bound to the said Hubbard, according to the provisions of the “ Act for the relief and support, employment * and re- [ * 25 ] moval, of the poor,” &c., (1) for the abuse, ill-treatment, and neglect, of the said Hubbard, should be liberated and discharged from her said master.

<p>T'he voluntary assignee of an insolvent debtor in another state cannot maintain an action in his own name against a debtor of the assignor in this state.</p>

To an action of assumpsit in the Common Pleas, July term, 1812, the defendant filed the following plea jotezs darrein continuance, viz.; “ And now the said P., by his attorney, comes and defends, &c., and says that the said S. to his said action ought not to be answered, because he says that, since the last imparlance of the said action, viz., on the 18th day of June, in the year of our Lord 1812, the United, States of America declared war against his majesty George the…

<p>Assumpsit upon three several promissory notes. The several counts in the declaration state, in substance, that the defendant made the several notes declared on, by Cook Sf Foster in one instance, and by Zebedee Cook in the others, as his agent.</p> <p>At the trial of the cause, which was had upon the general issue before Parker, J., at the last November term in this county, the potes offered by the plaintiff in support of his declaration were objected to, because they were not signed by the defendant, nor did they purport to be signed by any person on his behalf. Z. Cook, of the house of Cook &f Foster, and the person who made and subscribed the notes, was offered as a witness for the plaintiff, and was objected to ; but having been released by the plaintiff from all de mands on account of the notes in question, the objection was over ruled. He testified that all the notes were given for premiums upon policies of insurance procured by him in the office kept by the plaintiff, at the request and for the use of the defendant, on property belonging to him; that the said Cook &/ Foster were commission merchants, and had done business for the defendant; that the said policies, all which were produced at the trial, were effected by them, in pursuance of instructions from the defendant, (some of which were contained in letters produced by the witness,) who was advised of their having been effected, and made no objection thereto ; that he, the witness, acted merely as the factor of the defend ant, and intended to bind him by the premium notes; [ * 28 ] and that he had never * charged the premium upon those policies in any account with the defendant.</p> <p>Upon this evidence, the notes were permitted to go to the jury; and no evidence being offered by the defendant, the jury were instructed, if they believed the notes to have been made and signed for and in behalf of the defendant, that their verdict ought to be for the plaintiff, for the amount of the notes and interest. The verdict being so returned, a new trial was moved for by the defendant, on account of the admission of the evidence as above stated, and on account of the said direction to the jury.</p> <p>The cause was argued upon this motion, by W. Sullivan for the defendant, and Selfridge for the plaintiff.</p>

<p>Assumpsit for 423 dollars 4 cents, for sundry repairs done upon the ship William Tell by the plaintiff, who is a rigger, residing in the city of New York.</p> <p>At the trial of the action, which was had upon the general issue before Parker, J., at the last November term in this county, the plaintiff, to maintain the issue on his part, proved that, m [ * 35 ] December, 1810, he was employed by Messrs. * John W. &f Gilbert Russell, who were the agents of the owners oJ the ship. It was shown, likewise, that the defendants were at the time, and for some time afterwards, owners of the ship.</p> <p>The defendants proved, by the deposition of Gilbert Russell, one of the said firm, and which was not contradicted by the plaintiff, that the said house of J. W. Of G. Russell had usually employed the plaintiff to make necessary repairs on vessels consigned to them; that, at the time of this transaction, an open account existed between the plaintiff and the said Russells; that the plaintiff rendered his account to the said Russells for said repairs on or before the 2d of February, 1811; and on the 16th of that month, the said Russells gave the plaintiff their negotiable promissory note for 450 dollars, and on the 4th of April following they gave another like note for 500 dollars ; that the credit side of the plaintiff’s account, ending April 9, 1811, in the books of the said Russells, amounted to 3223 dollars, and the debit side of said account, ending the 5th of the same April, (which included the said two notes,) amounted to 1610 dollars 62 cents; that the said Russells stopped payment on or about the 12th of the same April; that, since that time, they have paid, or caused to be paid, to the plaintiff 1665 dollars 38 cents, in discharge of sundry items in said account, leaving a balance due from the plaintiff to said Russells of 52 dollars 29 cents ; that said note of 450 dollars was negotiated by the plaintiff, and after-wards taken up by him as endorser, the said Russells failing to pay the same; that said notes have never been paid by said Russellsv and the plaintiff still holds the same; that, on the 2d of Feb ruary, 1811, the said Russells stated their account against the said ship William Tell to the defendants, in which the plaintiff’s bill is charged as paid him, by which there appears a balance due to said Russells of 4256 dollars 95 cents, which balance includes their charge for commissions, amounting to 315 dollars 70 cents; that, on the 2d of February, 1811, the said Russells drew a bill on the defendants for 1500 dollars at *five days’ [ * 36 ] sight, which was paid at maturity; and on the 7th of the same February, they drew another bill on the defendants for 2500 dollars at ten days, which was also paid at maturity, which two drafts were paid on account of the said ship, and the balance of 256 dollars 95 cents has never been adjusted. But the said Russells are largely indebted to the defendants, in consequence of their being compelled to pay a second time one of the bills on the ship aforesaid, which is charged in the said account of said Russells, and they acknowledge themselves to have been paid in full by the defendants.</p> <p>The plaintiff also proved that, in September, 1811 he came to Boston, and demanded payment of the account, which was refused by the defendants. The plaintiff claimed to be allowed the amount of his account, with interest from the time of the demand, calculated at seven per cent., being the New York interest.</p> <p>The judge directed the jury to return a verdict for the plaintiff, in order to save the question for the whole Court. If the verdict was right, the plaintiff was to have judgment, with additional damages to be assessed by the Court. If the verdict was wrong, it was to be set aside, and a general verdict for the defendants was to be entered, and judgment accordingly.</p> <p>The cause was argued by Thatcher for the plaintiff, and Hubbard for the defendants.</p>

<p>Of pleading a discharge.</p> <p>[Defendants pleaded in bar to an action upon a promissory note, that it was agreed by the plaintiffs and defendants, and other creditors of the defendants, by a writing under the hands and seals of the plaintiffs and said creditors, that G. and D., agents and attorneys appointed by the subscribers to the instrument, to receive the boob accounts, notes, and other property of defendants, and to collect what might be collected, and divide the same ratably among the cred-. itors, provided the defendants should conduct with integrity, and permit their demands to be collected without interference, were by said instrument authorized to discharge the defendants from the demand of said subscribers, thereby ratifying whatever their said agent should do in the premises, and that G. and JO. received said notes, accounts, and property, as well as the demands of plaintiffs and the other creditors, and proceeded to collect the same, &c., and make dividends, Sec. ; and that defendants conducted with integrity, and permitted, Sec. ; and G. and D., agents as aforesaid, before the commencement of the suit, discharged the defendants from the said demand of the plaintiffs, as they were lawfully authorized to do, and that the plaintiffs, and said other creditors, then and there ratified the same. Plaintiffs demurred, and assigned for cause of demurrer that there was no profert of the writing under the hands and seals of the plaintiffs set forth in the plea. Held, that the plea for this cause was bad; and also because tire discharge by the agents was not specially set forth, and shown to be, by an instrument under seal, duly executed. A discharge of any contract after it is broken, or of a debt that is due, which is to have operation by its own validity, without any regard to the consideration upon which it was made, must be’ by writing under seal.]</p>

<p>By a deed of charter-party, the hire of the vessel was at an agreed price per ton per month, on a voyage from Boston to Savannah, thence to the West Indies, and back to a port of the United States, and thence to Boston. The vessel, having performed the first passages, was captured on her return to Boston; and the hire was held due to the discharge of her cargo at the port from which she last sailed for Boston.</p>

This was a real action, in which the said Ritchie, as he is administrator cum, testamento annexa of Duncan Ingraham, deceased, demands possession of sundry pieces of land described in his writ; and his title to the same .was submitted to the opinion of the Court upon the following facts, stated and agreed by the parties: —

<p>This was an action of assumpsit, upon eight several bills of exchange, drawn by the defendant at New Orleans, at the several times they bear date, on Higginson, Hodge Co., a mercantile house in New York, of which Stephen Higginson, Jun., of Boston, was the principal. The bills were payable to the plaintiffs, or their order, and by the tenor of them were to be placed to the debit of the said S. H., Jun.</p> <p>At the trial, which was had on the general issue, November term, 1812, before Parker, J., it was in evidence that the bills were seasonably presented to the house in New York, and were protested for non-acceptance, and due notice thereof given to the defendant.</p> <p>The defence set up was, that the defendant was a mere agent of the said H. S., Jun., for whose use and on whose account the bills were drawn ; and that the plaintiffs knew that the defendant acted in that capacity in drawing the bills. It was alleged that this appeared by the tenor of the bills themselves, and by the letter of instructions from N. H., Jun., to the defendant, authorizing him to draw the bills, which letter was admitted to have been shown to the plaintiffs by the defendant before the bills were drawn. It was also proved that the agent of the plaintiffs in Boston, to whom the bills were sent on for collection, called on Mr. Higginson for payment, who paid about one half of the amount; and that Prince, the drawer, was a young man of little property, beginning business under the patronage of Mr. Higginson, having had committed to him the purchase of the cargoes of two vessels at New Orleans, for which the bills in question were drawn.</p> <p>If these facts would constitute a good defence for the drawer of the bills, the verdict taken for the plaintiffs was to be set aside, and the plaintiffs to become nonsuit; otherwise judgment was to be rendered upon the verdict, with additional interest.</p> <p>[ * 55 ] * The cause was argued at the last March term, by</p>

<p>The death of one of several demandants in a real action pending the suit abates the writ; and the fact being suggested on the record by the surviving demand-ants, the tenant has no occasion to plead it; but in such case the tenant is not entitled to costs.</p>

<p>The defendant was attached to answer to the plaintiff in a plea of the case, for that the plaintiff, at, &c., on, &c., was travelling with his horse and chaise upon a certain highway, and the defendant’s horse and chaise, of which he then and there had the management, was then passing upon the same highway ; and the defendant so carelessly and negligently managed his chaise that his horse, which was then and there drawing his said chaise, drew the same upon and against the plaintiff’s chaise with such force and violence that the same was thereby broken and shattered, and rendered altogether unfit for use; and the plaintiff was thrown out of his said chaise with great violence upon the ground, and thereby greatly bruised, and his life endangered. In a second count a similar injury is charged, except only that the plaintiff alleges that the defendant’s horse and chaise were under the care, government, and direction, of a certain servant of the defendant, and that the defend ant, by his said servant, so carelessly, negligently, and improperly, drove his said horse, that, by and through the mere carelessness, negligence, and improper conduct, of the defendant, by his said servant in that behalf, his chaise struck with great force the plaintiff’s chaise, &c., as in the first count, et alla enormia, &c.</p> <p>After a general verdict for the plaintiff upon both counts in the declaration, the defendant moved in arrest of judgment, on the ground that the action should have been trespass, and not case; and that causes of action are joined, which in their nature cannot be joined.</p>

This was an action of the case founded upon the same wrong complained of in the last action.

<p>Assumpsit for a quantity of slates sold by the plaintiffs to the defendants.</p> <p>At the trial of the cause on the general issue before Parker, J., at the last November term in this county, it was agreed [ * 61 ] * that the plaintiffs were duly incorporated, and that Joseph Eckley and David J. Eckley, of Boston, are the agents of the said company, appointed under its corporate seal, to sell for said company on a del credere commission of seven and a half per cent. The slates, for the price of which this action was brought, were sold to the defendants by the said Eckleys, who delivered them a bill of parcels in their own names. The defendants afterwards made a payment of 200 dollars, for which the said agents gave a receipt in their own names. There was in the case a release executed by Joseph Newton, styling himself sole agent and treasurer of said company, and to which the seal of the company was affixed, discharging the Eclcleys from all demands of the company on account of the slates sold to the defendants, assigning as the reason, that the Eckleys were material witnesses in the present action, and to qualify them to give evidence therein. There was also a letter of attorney from the company to the Eckleys, verified in the same manner, authorizing them to prosecute this suit in the name of the company.</p> <p>The plaintiffs offered the said Joseph Eckley as a witness, to prove the sale and delivery of the slates to the defendants, whose counsel objected to his admission as a witness on the ground of interest, which he offered to prove by the deposition of Luther Bradish. The plaintiffs’ counsel objected to the admission of said deposition. The judge rejected the evidence of Eckley on the ground of interest, as appearing in said deposition.</p> <p>. The deposition states, among other things, that Newton is well known as a principal proprietor and general agent of the company; and that, in conversation with the witness, Newton told him that' the Eckleys had fully paid and satisfied the company for the slates sold to the defendants, that the company had no interest or concern ii the present action, or the moneys that might be recovered therein, but that the same were wholly the concern and interest of the Eckleys.</p> <p>* If the said Joseph Eckley’s evidence was rightly re- [ * 62 ] jected, and said deposition rightly admitted, the verdict-found for the defendants was to stand, and judgment be rendered accordingly; otherwise the verdict was to be set aside, and a new trial granted.</p>

<p>A writ of habeas corpus issued to the defendant, commanding him to bring into court the body of George Ribkin, to do and receive, &c.</p> <p>The defendant returned upon the writ that the said George Rib-kin, on the 12th of March current, was duly enlisted as a private soldier in the army of the United States, by the name of Elipkm Church. And it appeared, by a copy of the enlistment, that he had sworn that he was twenty-one years of age.</p>

This was an action of the case by the assured in a policy of insurance against the defendant as underwriter. The declaration, besides a count for the loss, had also a count for money had and received, and another for money laid out and expended. At the trial the defence was the want of seaworthiness of the ship; and the jury returned a general verdict for the defendant.

<p>This was a writ of habeas corpus, directed to General Cushing, to bring into Court the body of William Bull, with the day and cause of the taking and detaining him, to do and receive, &c.; to which the respondent returns that the said W. B., being a soldier in the 6th regiment of' infantry, at Burlington, in the state of Vermont, deserted from the service of the United States, as appeared by his own confession before a general court-martial, holden on the 11th of March, instant, (an extract of the record of which court is annexed, and referred to in the return,) and that the said W. B. is in his custody under the proceedings of the said court, is detained by him for no other cause, and is here present in court, in obedience to the said writ.</p>

This was a writ of scire facias, to have execution against the defendants, for the amount of a judgment recovered by the plaintiff against one Constant Benson, in an action wherein the defendants had been summoned as his trustees.

Assumpsit upon a promissory note, dated November 3, 1803. for 100 dollars, made by one Cyrus Whitney, payable to the de fendant, and by him endorsed to the plaintiff..

<p>After the decision of the Court upon, the issues in law joined in this action, (vide, ante, vol. ix. p. 522,) verdicts were taken before the late chief justice upon the issues in fact, which were mentioned in the former report to have been joined. Those issues arose out of the following pleas: —</p> <p>First, plea to the first count. “ And now the said Lyman comes and defends, &c., when, &c., and as to the first count in the plaintiff’s declaration, prays oyer of the agreement in writing declared on, and it is read to him in these words, viz.: ‘ Memorandum of an agreement made and concluded on the 8th day of June, one thousand eight hundred * and seven, by and between [ * 77 ] Messrs. James 8f Thomas H. Perkins on one part, and Theodore Lyman, of Boston aforesaid, merchant, on the other, viz.: The said James 8f Thomas H. Perkins agree to buy of said Theodore Lyman a certain ship now lying in the harbor of Boston, called the Vancouver, and to pay therefor, at the end of one year from the date, eight thousand dollars; and whereas the said James &f Thomas H. Perkins have this day executed a promissory note of hand, payable to said Lyman in one year, for the sum of eight thousand dollars ; now, in consideration of receiving said note, the aforesaid Theodore Lyman covenants and agrees with the said James 8f Thomas H. Perkins, that, provided they well and truly pay, or cause to be paid, the aforesaid sum of eight thousand dollars at the period it may fall due, that he will not, in his own name or iii the name of any other person for him, directly or indirectly, be interested in any voyage to the north-west coast of America, or in any adventure to that coast, or any species of traffic with the natives of that country, for the term of seven years, to be reckoned from this day ; and he, the said Theodore Lyman, doth bind himself, his heirs, executors, and administrators, in the penal sum of eight thousand dollars, for his faithfully adhering to this contract. Provided, and it is fully understood by the parties, that it is not in any way to affect the trade of. any vessels the said Lyman may now have on that coast, or on their way there.’ Which being read and heard, the said Lyman saith that the said James fy Thomas H. Perkins their action aforesaid ought not to have and maintain against him, the said Lyman; because, by protesting that he did not load or fit out the said ship called the Hamilton in the said count mentioned for a voyage to the north-west coast of America, and that he was not directly or ind rectly concerned in the loading or fitting out of the same; he for plea saith that, at the time of the departure of the said vessel and cargo for the said north-west coast of America, or at any time after, during the said voyage in the [ * 78 ] * plaintiff’s said first count of their declaration described, he was not the owner, in whole or in part, of the said ship called the Hamilton, and the cargo on board the same; and therefore he puts himself on the country.” “ And the plaintiffs likewise.”</p> <p>Second plea to the first count. “ And for a further plea in this behalf, as to the said supposed breach of covenant above in the said first count in the plaintiff’s declaration assigned, the said Lyman, by leave of the Court here for this purpose had and obtained, saith that the said James fy Thomas H. Perkins their action aforesaid thereof against him ought not to have or maintain, because he saith that the said ship called the Hamilton, in the plaintiff’s said first count of their declaration mentioned, and the cargo on board the same, or either of them, were not at any time after the making and executing of the agreement in the plaintiff’s said first count of their declaration mentioned, and before the bringing of the said action, engaged or employed by him, or by any other person in his, the said Lyman’s, behalf, or for his account or profit, in trade or traffic with the natives of the north-west coast of America; and thereof he puts himself on the country.” “ And the plaintiffs likewise.” The jury returned verdicts upon each of the issues thus joined in favor of the plaintiffs, and also upon similar issues joined on like pleas to the second count, which charged the defendant with owning and fitting the brig Lydia. ■</p> <p>At this term the plaintiffs moved the Court for judgment on the verdicts, for the sum of 8000 dollars, the sum demanded in their writ, together with the further sum of 2360 dollars, being the amount of interest for additional damages, the interest being computed from the day of the last breach of covenant alleged in the declaration to this time.</p> <p>The defendant prayed a hearing in chancery, pursuant to the statute of 1785, c. 22, § 1, for giving remedies in equity. [ * 79 ] * Otis and Bigelow, for the defendant, contended that</p> <p>the sum of 8000 dollars, mentioned as the penal sum in the agreement, was a penalty or forfeiture, and not to be taken as liquidated damages, (1) and therefore came expressly within the provision of the statute referred to, which makes it expressly the duty of the Court to make up judgment for the plaintiff, to recover so much as is due in equity and good conscience. And if the Court should be of opinion that this sum, instead of being a penalty or forfeiture, was in nature of liquidated damages, still it is believed the Court has an equitable jurisdiction to reduce them. It was on this ground that the late chief justice, at the trial of the issues, refused to permit evidence to be given to the jury as to the quantum of damages, his opinion being that the consideration thereof belonged exclusively to the Court. What goes strongly to support the motion is, that the penal sum was to protect the plaintiffs for seven years from the date of the agreement; and as the term has not yet expired, the judgment is to stand as security for further breaches, pursuant to statute of 1798, c. 76, <§> 6.</p> <p>In the opinion of the Court, given upon the demurrers joined in this action, it is said, “ The fact of the plaintiffs afterwards purchasing a part of the vessel fitted by the defendant, may properly be considered by the jury, when estimating the plaintiffs’ damages.” It is very plain that the Court considered that the damages were yet to be ascertained; and as this was not permitted to be done by the jury, it must remain for the Court upon a hearing in equity. If the defendant has the opportunity, it is in his power to satisfy the Court, or any other forum, that the plaintiffs are entitled to no more than .nominal damages.</p>

Caleb Coggeshall made application to the Court for a writ of habeas corpus, to be directed to the said Chandler, a lieutenant in the army of the United States, requiring him to bring in the body of Henry H. Coggeshall, whom the said Caleb stated to be his son, a minor, and under his care, and whom the said Chandler detained under pretence of an enlistment into the army of the United States.

<p>The usages of a bank, at which the parties to a promissory note are accustomed to transact business, respecting the time of demand and notice on such notes, may be shown, not as forming rules for the decision of the Court, but as evidence of the assent of the parties to such usage, and of their waiving their legal claims.</p>

This was an action of the case against the defendant, as sheriff of the county of Middlesex, for taking insufficient bail, upon the arrest of one Thomas Kitteridge, on mesne process, at the suit of the plaintiff, by one Stephen Reed, one of the plaintiff’s deputies. It appeared that the deputy took one M. R. Bartlet only as bail, and that he had avoided on the scire facias, as had Kitteridge, the prin cipal debtor, on the original suit.

A. P. Cleveland and four others, who were summoned as trustees of the principal defendants, made their disclosure, in [ *91 ] answer to the usual interrogatory, to the * following effect, viz.: That, in June, 1811, the defendants, with divers other creditors of Hull &/■ Hyde, entered into an agreement, under their respective seals, to which the said Hull Hyde were parties, and thereby empowered the said Cleveland and others, as their agents, to receive from the said H. &/■…

<p>Upon a libel for a divorce a vinculo for adultery, where a second marriage of the respondent was to be proved, the Court would not receive the usual certificate of the officiating minister as evidence, but required his testimony upon oath.</p>

<p>The defendant was indicted for that he, with one other person . to the jurors unknown, on, &c., at, &c., with force and arms had in their possession a certain false, forged, and counterfeit promissory note for the payment of money, purporting to be a promissory note of the president, directors, and company, of the Mechanics and Farmers’ Bank, in the city of Albany, a corporation by law there established, and purporting to be signed by, &c., which false, &c., promissory note is to the following purport and effect, viz., &c., and the said M. A. and the said other person to the jurors, &c., at, &c., on, &c., with force and arms did utter and publish as true the said false note to one A. E., he, the said M. A., and the said other person then and there well knowing, &c., with intent to injure, &c., against the peace, and the form of the statute, &c. In a second count, the indictment charged that the said M. A. did bring into, and had in his possession, within this- state, a great number of, viz., ten false, forged, and counterfeit bills and notes, in the similitude of the bills and notes payable to the bearer thereof, issued by and for the president, directors, and company, of the Mechanics and Farmers’ Bank, in the city of Albany, a corporation by law there established, of the denomination of twenty dollars, and others in the similitude of the bills and notes issued by the president, directors, and company, of the Boston Bank, a banking corporation by law established within this commonwealth, and of the denominations of ten dollars and five dollars, for the purpose of rendering them current as true, and with intent to pass the same, he, the said M. A., well knowing, &c., against the peace, and the form of the statute, &c.</p> <p>The jury returned a verdict of not guilty on the first count, and of guilty on the second count, in the indictment.</p> <p>The defendant moved in arrest of judgment, because, in the averment of the defendant’s possession of bills and notes in the similitude of those issued by the president, &c., of the * Boston Bank, it is not -averred that they were false, [ * 94 ] torged, and counterfeit.</p>

Assumpsit on a promissory note for 2000 dollars, dated April 23, 1808, made by the defendant, jointly and severally with two others, to the president, directors, and company, of the Coos Bank, or their order, by them endorsed * to one J. H. [ * 95 1 Crane, or his order, and by him to the present plaintiffs.

Assumpsit on the following promissory note, viz.: “ No 273, $301. Boston, 17th March, 1812. For value received, I promise to pay Mr. Edward J. Long, or order, on demand, three hundred and one dollars, with interest after four months. Pro William Gill,—■ J. S'.

Assumpsit against the defendant, as owner of the ship Laura.

This was an action of the case upon a policy of insurance, dated July 1, 1800, and subscribed by the defendant for 2000 dollars, upon the cargo of the ship Diana, at and from Boston, to every port and place to which she might proceed, except the West Indies, and until her arrival at her port of discharge in the United States, the time not exceeding twenty months, against restraints and detainments of kings, &c., and against the other risks usually expressed in policies of…

This was an action of assumpsit, brought to recover the sum of one hundred dollars, being the sum which the defendant subscribed towards the erection of an academy in the town of Limerick, in this county. This cause was tried, October term, 1812, at Alfred, before Thatcher, J., upon the general issue.

<p>Where a plea was filed by a wrong Christian name of the defendant, and the plaintiff demurred generally to it as the defendant’s plea, it was held, that the plaintiff had waived any exception for that cause, and that the defendant was entitled to amend the name.</p> <p>The articles in the treaty of 1794, between the United States and Grreat Britain, do not prevent or cure the disability of a British subject as an alien enemy.</p> <p>The plea of alien enemy being but a temporary disability of the plaintiff; its effect is not to abate the writ or defeat the process entirely, but to suspend it In form it is a prayer whether the plaintiff shall be further answered; and the judgment upon it is, that the writ remain without day until, &c.</p>

<p>Covenant broken, in which the plaintiffs declare upon a deed duly executed by the defendant on the 20th of July, 1801, whereby, for the consideration of 300 dollars, he bargained, sold, and conveyed to the plaintiffs a small parcel of land in Biddeford; and wherein he covenanted with the plaintiffs, that, at the time of the execution of the deed, he was seised in fee of the granted premises, had good fight to sell and convey the same, and that he would' warrant and defend the same to the plaintiffs against the lawful claims of all persons. The plaintiffs then allege that the defendant was not so seised, &c., had not good r’ght to sell, &c., and had not warranted the same to the plaintiffs: but that, at the time of the execution of said deed, one Aaron Porter was seised of the same premises by elder and better title, and afterwards, being so seised, commenced an action against one Charity Perkins, the tenant at will of Mark Tucker, to whom the plaintiffs had conveyed the premises aforesaid with warranty, by deed dated the 29th of June, 1803, in which said action the said Mark was made a defendant with the said Charity; and that in said action the said Aaron recovered judgment against the said Charity and Mark for possession of said premises, at the Supreme Judicial Court, May term, 1809, and was put into possesion of the same by writ of execution on the 16th of June, 1809.</p> <p>The defendant pleaded two several pleas in bar: —</p> <p>1. That he was seised in fee of the premises, as was alleged in his deed; on which plea issue was joined.</p> <p>2. That said Aaron Porter was not seised of the premises by elder and better title, as the plaintiffs allege; and issue was also joined on this plea.</p> <p>These issues were tried before Thatcher, J., October term, 1812, at Alfred, in this county.</p> <p>* At the trial it was admitted that the judgment, re- [ * 126 ] covered by the said Aaron Porter against the said Charity Perkins and Mark Tucker, was rendered upon an agreed statement of facts made between the parties to that suit, without the privity or consent of the said Pitts.</p> <p>To prove the defendant’s seisin at the time of his deed to the plaintiffs, he read a deed from John Tyng to Ezekiel Bradstreet and Benjamin Nason, Jun., dated July 5, 1783, conveying to said Bradstreet and Nason a large tract of land in said Biddeford, of which the premises sold by the defendant to the plaintiffs was a part; also a deed from said Bradstreet and Nason to said Tyng dated July 7, 1783, conveying the same premises to the said Tyng in mortgage, to secure the payment of £2100 to said Tyng, with interest, within seven years from the date, according to the condition of a bond by them given to said Tyng of the same date ; also a deed of release from said Bradstreet to said Nason, bearing date February 8, 1785, whereby said Bradstreet released to said Nason all his right to the tract of land so mortgaged as aforesaid ; also a deed from said Nason to James Sullivan, dated August 1.4, 1800, conveying to said Sullivan all his, the said Nason’s, right to the premises mortgaged as aforesaid; also a deed from the said Sullivan to said Pitts, dated August 15,1800, conveying to said Pitts all his, the said Sullivan’s right, to the same premises; also an execution, dated November 21, 1796, duly issued upon a judgment recovered by the said Tyng in his lifetime, on the bond aforesaid, against the said N'.son; also a discharge on said execution, dated August 15,1800, signed by the said Pitts, whereby he, as executor of the said Tyng’s last will, and in that capacity, acknowledged full satisfaction of the contents of the said execution.</p> <p>The plaintiffs then read to the jury a deed from said Bradstreet to Jeremiah Allen, dated August 28, 1783, conveying to the said Allen the land described in the defendant’s deed to the [ * 127 ] plaintiffs; immediately on the execution * of which deed the said Allen entered upon the land so conveyed to him ; also a deed from said Allen to said Porter of the same land, dated January 15, 1788. All the deeds before mentioned appear to have been recorded soon after their respective dates.</p> <p>It appeared, by the testimony of the said Aaron Porter, who was' admitted as a witness for the plaintiffs, although objected to, that Bradstreet and Nason had made an agreement with said Tyng for the Allen farm, so called, described in said Tyng’s deed of July 5, 1783, and had entered into possession of it the preceding spring, and possessed it in severalty ; that, in two or three days from the date of Tyng’s said deed to Bradstreet and Nason, they came to a division of the land so purchased by them, as they had before possessed it; that a deed of division was made by them and duly executed, and was then delivered by them to Nason’s father, with written directions to keep it for the benefit of the concerned, and not to deliver it up without the consent of both parties; in which deed Bradstreet released to" Nason all his right and estate in and to the premises south-west of the town road and the mills; and Nason released to Bradstreet all his right and estate in and to the premises north-east of said road. About two years afterwards, the said Bradstreet failed in business, and the witness applied to the father of Nason to procure him to record the said division deed ; but he could not find the same, though he searched for it. It further appeared, from the testimony of the witness, that, by the terms of the said division deed, the lands conveyed by the defendant to the plaintiffs were, among other parts of the mortgaged land, assigned and released to Bradstreet, and the residue to Nason; and that the parties possessed according to the said division; that the witness entered under his said deed from Allen, and continued in possession of the lands conveyed to him by the said deed until some time be fore the execution of the deed declared on in this action; when the plaintiffs disseised him, and they continued and were in [ * 128 ] possession of * the lands in said deed mentioned at the time when the defendant conveyed the same to them, as is alleged in the declaration.</p> <p>A verdict was taken for the plaintiffs, for the sum of 500 dollars, being the amount of the consideration expressed in the deed dedared on, and interest thereon to the time of the trial. And if the Court should be of opinion that the plaintiffs were entitled by law to maintain their action upon the facts reported, and that the said facts were proved by legal evidence, judgment was to be rendered on the verdict; otherwise the verdict was to be set aside, and a new trial granted.</p> <p>The cause was argued, at the last May term, by Emt'-y for the plaintiffs, and Mellen for the defendant; and being continued for advisement, the opinion of the Court was delivered at this term by</p>

This was an indictment for passing a counterfeit bank note to one Joseph Bradbury.

<p>The distinction between an action of trespass and an action of the case sometimes depends on the degree of caution or carelessness with which the act complained of was attended on the part of the defendant.</p>

<p>In an action against two defendants upon a simple contract, a demand of one ol them against the plaintiff cannot be given in evidence by way of set-off.</p>

<p>Where one returned as a grand juror was not present to hear the charge, he was sworn in the form prescribed, and then generally charged to aid the jury in their inquiries into any offences which had been before stated in detail to the jury in the charge of the Court.</p>

<p>Where the owner of a vessel hound on a voyage had drawn an order in the plaintiff’s favor, payable on the vessel’s return, in part payment for the cargo, and the plaintiff had given him a receipt in full for the goods sold, — it was holden, that he might still recover for the goods, notwithstanding his receipt, the vessel not having returned, and being much out of time, unless the defendant could prove that the plaintiff was to take the risk of the voyage.</p>

<p>It is no defence to a scire facias against bail that their principal has enlisted into the army of the United States since their becoming bail for him, and before judgment against him in the principal action.</p>

<p>This was an action of assumpsit, wherein the plaintiff declares “ that the said James Weeks, [the defendants’ testator,] in his lifetime, to wit, on the 15th of March, 1808, by his note, in writing, of that date, by him signed, in consideration of the sum of 2195 dollars, paid by the said Jackson to the said James Weeks, the said J. W. then and there undertook and faithfully promised the plaintiff to account with and pay over to Margaret Jadcson, the daughter of the plaintiff, the said sum on his arrival at Portland; and the plaintiff avers that said James Weeks arrived in Portland with said sum, but did not pay over said sum to [ * 148 ] said Margaret, the plaintiff’s daughter * aforesaid, on his arrival in Portland, nor at any time afterwards in his lifetime, though thereto often requested; neither have the said Ebenezer and Lemuel, executors as aforesaid, ever paid over or accounted for with the said Margaret or the plaintiff said sum since the decease of the said James, but unjustly neglect and refuse so to do.”</p> <p>The cause was tried upon the general issue, October term, 1812,, before Thatcher, J.</p> <p>The plaintiff, to support his action, offered and read in evidence a paper signed by the said James Weeks, of the tenor following, viz.: “ Balize, 15th March, 1808. Received of William Jackson the sum of twenty-one hundred and ninety-five dollars, which I promise to account with his daughter, Margaret Jackson, now in Portland, for. James Weeks.” This paper was objected to by the defendants, on the ground that it did not support the promise set forth in the declaration; but the objection was overruled.</p> <p>The defendants then showed that the estate of their testator was insolvent, and that, at the date of the above promise, viz., March 15, 1808, he was a minor, not having arrived at full age until the middle of July, 1809.</p> <p>The plaintiff read in evidence the last will and testament of the said J. W., executed by him on the 5th of August, 1809, and after he became of age, duly approved, and containing the following clause, viz.: “ I do give and bequeath unto my beloved brothers and sisters [naming them] all and every part of my real and personal estate, goods, and chattels, of what kind or nature soever, to be divided in equal shares amongst them, after my just debts shall be paid therefrom, which I direct first to be done.”</p> <p>The plaintiff also offered the deposition of William Harper, a copy of which came up in the case, as evidence of a promise on the part of the said J. W. to pay the sum demanded, after full age. This evidence was objected to by the defendants, but admitted by the judge.</p> <p>The testimony of Harper was, in substance, as follows: About the 4th of August, 1809, he informed J. Weeks that he had understood that he had received of William Jackson [ * 149 ] * about 2200 dollars, which he had agreed to deliver to his daughter Margaret, then the witness’s wife; ask ing him if it was then convenient to him to pay it Weeks replied that it was not convenient for him to pay it at that time, hut that he was then hading a vessel for Jamaica, where he intended to sell his cargo for cash, and proceed to the Bay of Honduras, and that, on his arrival there, he should, pay Mr. Jackson the money due him on account of the said sum so received as aforesaid. The witness then requested him to pay to a Mr. Martin a bill, which was due him for the schooling of Jackson’s children, out of the money of Jackson in his hands ; and he engaged to pay a part, if not the whole, of that Dill. Some time afterwards, and after Weeks’s death, the defendant Mayo handed the witness the testator’s account against Jackson, and desired him to allow it out of the money which the testator had received of Jackson, and for which a claim had been filed before the commissioners on the said Weeks’s estate. In the account was a charge of 100 dollars, as having been paid by Weeks to Martin; but the witness had been afterwards informed that that sum was in fact paid by the testator’s father, and by him charged in the testa tor’s books.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the Court upon the foregoing facts, as reported by the judge.</p> <p>The cause was argued, at the last May term in this county, by Todd for the plaintiff, and Hopkins for the defendants.</p> <p>The deposition of Harper shows an express promise, or what amount to one; which, however, it is not now necessary to establish, since it is the province of the jury to determine whether a new promise was proved or'not. (3) A confirmation of an infant’s acts may be implied from trivial circumstances, as where an infant had made a lease for years, and at full age said to the lessee, “ God give you joy of it; ” ■— this was held a good affirmation of the lease. (4)</p> <p>Harper had no interest in this action. His wife has no claim for the money demanded. Her father demands it, and there is nothing in the case from which to infer that he will ever give the money, when recovered, to his daughter. x</p> <p>The cause was continued to this term for advisement; and the opinion of the Court was now delivered by</p>

<p>The assignment of a judgment and execution, afterwards extended on land which had been attached on the original writ, and a release thereof by the judgment creditor to the assignee after the extent, was held to convey a title in the land to the assignee, good against a creditor of the judgment creditor who attached the same after the extent, and before the execution of the release.</p>

This was an action of debt, brought by the plaintiff, as surviving partner of the late firm of Gilman, Langdon, Company, against the defendant, as sheriff of the county of Cumberland, in which he sets forth that the said Gilman, &c., at a Court of Common Pleas holden at Portland on the first Tuesday of March, 1809, recovered judgment against one Ebenezer Storer for the sum of 5279 dollars 70 cents debt or damage, and 26 dollars 97 cents costs; on which judgment, on the 3d…

<p>It is a rule of construction that general words are not restrained by restrictive, added ex majori cautela, or by affirmative words more restrictive, but which have no tendency to render a general description ambiguous or uncertain: therefore, where the return of an extent was of two rights or shares in a certain township, (including certain specified lots,) with the common lands to be laid out to the original rights of A and B, and, in fact, one of the lots specified belonged to the original right of C, — it was liolden, that the extent was intended to pass only such lands as had been or should be laid out to the original right of A and B.</p>

<p>This was a writ of entry sur disseisin, in which the demandant counted upon a seisin in himself within thirty years, and of a disseisin by the tenant, of lots numbered 7 and 8 in the 24th range, and "first division of lots in Bridgeton. The writ bears date May 11,1810.</p> <p>The general issue being joined, a trial thereof was had before Thatcher, J., October term, 1812.</p> <p>The demandant, to support his title, read in evidence, although objected to by the tenant, the deed of John Farnurn and others, styling themselves a committee of the proprietors of Bridgeton to make sale of the delinquent proprietors’ lands in said township, pursuant to an act or law of the General * Court [ * 170 J of the province, (a) dated January 1, 1771, acknowledged the next day, and recorded April 12, 1794, purporting, in consideration of £5 17s. Ad. paid by Samuel Johnson, to convey to him in fee all the original right of Joseph Hate, including the lots Nos. 7 and 8 in the 24th range, and No. 9 in the 9th range, with the share of undivided land that might thereafter be laid out to the said right, reserving the right of redemption to the original proprietor, his heirs or assigns; also the deed of Samuel Johnson to Moody Bridges, dated May 21, 1773, and recorded April 12, 1794, conveying the demanded premises in fee; also the deed of Moody Bridges to Thomas Porter, dated May 4, 1778, and recorded June 22, 1779, also conveying the demanded premises m fee; also the deed of Thomas Porter to William Creed, dated June 7; 1780, and recorded July 3, 1783, conveying the demanded premises in fee; also the judgment, execution, and extent, in favor of the demandant and against the said Creed, which are recited in the preceding case of this demandant against" Joseph Burnell.</p> <p>The demandant also produced an authenticated copy of a paper referred to in a statute of the commonwealth, passed March 13, 1783, (2) relative to certain records of the proprietors of Bridgeton, which liad been, destroyed by fire October 2, 1780, from which it appeared that the lots Nos. 7 and 8 in the 24th range, and No. 9 in the 9th range, were drawn and set off, prior to the year 1769, to Joseph Wale.</p> <p>The tenant, to disprove the seisin of the demandant within thirty years, offered the testimony of two of the appraisers, named in the proceedings upon the execution against Creed above referred to, to prove that neither the sheriff *nor the [*171 l appraisers viewed or entered upon either of the lots demanded ; but that all the said proceedings under said execution ■were had upon another lot, being one of the lots named in said proceedings, and upon that only. This testimony was rejected by the judge.</p> <p>The tenant then proved that Isaiah Ingalls, Enoch Perley, and Robert Andrews, were duly chosen a committee of the proprietors of Bridgeton, to make sale of the lands of delinquent proprietors for taxes; that said committee were duly sworn, and that sundry taxes had been previously voted by said proprietors upon each and every lot, severed and located as aforesaid in said plantation of Bridgeton, to the amount of £ 1 14s. in the whole. No particular assessment was shown ; but it appeared that an equal sum was voted to be raised upon each lot located and severed as aforesaid ; and it did not appear that any taxes were voted upon the lands, which still remained in common and undivided amongst the said proprietors.</p> <p>The tenant also proved that the said committee gave notice that said taxes had been voted, in the newspapers mentioned in the said act of 1768, and that the lands of delinquents would be sold according to law; but it appeared that the last notification was only two months and twenty days next before the day appointed for the sale : whereas the act required three months’ notice.</p> <p>The tenant then offered in evidence a deed of the last-mentioned committee, dated November 18, 1788, and recorded, conveying the lots Nos. 7 and 8 in the 24th range, and No. 9 in the 10th range, to Enoch Perley in fee, subject to the right of the delinquent proprietor or owner to redeem the same ; also the deed of the said Enoch Perley to Thomas Perley, the tenant, dated August 13, 1791, and recorded October 22, 1794, conveying the demanded premises in fee; also the last will of Joseph Hale, the original proprietor of the lots demanded, proved November 22, 1778, by which he devised the residue of his estate (the demanded premises not being specifically devised in the said will) to Joseph Hale, his son; also the last will of Joseph [ * 172 ] * Hale, the devisee in the will before mentioned, which was proved July 7, 1795, by which he devised the residue of his estate (the demanded premises not being specifically devised) to Joseph Hale, his son ; also the deed of the last-mentioned Joseph Hale, dated February 8, 1811, and recorded the 15th of the same month, since the commencement of this action, releasing the demanded premises to Thomas Perley, the tenant; — all which were rejected by the judge, who directed the jury, upon the foregoing evidence, to return their verdict for the demandant, which they did accordingly.</p> <p>The tenant filed his exceptions to the said opinions and directions of the judge, and to the admission of the said deed of Farnum and others, and to the rejection of the evidence offered on his part; praying that the verdict might be set aside, and a new trial granted.</p> <p>The cause was argued, at the last May term, upon the exceptions, by Hopkins for the tenant, and by Mellen and Whitman for the demandant; and the action being continued for advisement, the opinion of the Court was delivered at this term by</p>

<p>Processes served by a deputy sheriff, where another deputy of the same sheriff is a party, are not for that cause void. On motion or plea the proceedings will be set aside; but if the defendant appears and answers, it is not error.</p> <p>A deputy sheriff may lawfully serve a writ upon a deputy jail-keeper under the same sheriff.</p>

<p>The writ of error in this case was brought to reverse a judgment rendered in the Circuit Court of Common Pleas, holden for this county in November, 1812.</p> <p>The original action was brought by Haskell against Walker, as a deputy sheriff for the county of Oxford, and was in case for not arresting the body of one Jeremiah Glidden, upon an execution against him, and in favor of the said Haskell.</p> <p>The action was tried in the court below upon the general issue of not guilty, and a verdict returned for the plaintiff for the amount of his judgment against Glidden. A bill of exceptions, filed by the defendant and signed and sealed by the chief justice of the Circuit Court, contains a detailed statement of the testimony of the several witnesses, and of the instructions of the court to the jury-</p> <p>The evidence was in substance as follows: The execution was delivered to the defendant, and the messenger who delivered it called on him some time afterwards, by desire of the plaintiff, to inquire whether he had collected the * amount. [ * 178 ] The defendant made no direct reply, and seemed disinclined to say much about it; and on being asked whether he had seen Glidden, he told the witness that he must not be too inquisitive ; and at last said he would settle the business, or send the money by th.e witness' the next time he came round, the witness being a mail carrier. C. Holland testified that, when Glidden was arrested on Haskell’s original writ, he became his bail, receiving for indemnity from Glidden a promissory note of one Hosley for 60 dollars, payable to Glidden, and not negotiable. After learning that the execution was in Walker’s hands, he carried Glidden to him, and surrendered him in discharge of his bail bond, and at the same time delivered Hosley’s note to Walker, who did not then arrest Glidden; being told by him that he could not then satisfy the ex ecution, and that he would see the creditor, and settle the business with him, or deliver himself to Walker and go to prison before the return day of the execution. The witness supposed Hosley’s note to be good when he delivered it to Walker, but had since learned that it had at that time been principally paid. Some time before the judgment was rendered against Glidden, he was possessed of a chaise and horse, worth 100 dollars; but the witness did not know that he possessed any property after the judgment, except Hosley’s note. The witness told Haskell what had taken place respecting the execution, who replied that he was glad Walker had the execution, and desired the witness to tell him to do the lest he could with the execution, and that he would take no advantage; and the witness told him accordingly. Hosley testified that Glidden had boarded with him, had made a partial settlement, and agreed to let him have a horse in part payment, and that he owed Glidden nothing.</p> <p>The defendant produced several witnesses, and amongst them Glidden, the debtor, from all whose testimony it appeared that he was very poor, and, if committed on the execution, would have sworn out of jail.</p> <p>* The Court instructed the jury that Glidden, at the time when Holland brought him to Walker, being in possession of a note, not discredited, for 60 dollars, that fact was evidence that he had property to that amount, and was a strong presumption that, if he had been committed to prison, he would have paid the debt; and that it appeared Walker so believed, by accepting the note in the manner testified; that Haskell, when he told Holland that he wished Walker to do the best that he could with the execution, and would take no advantage of him, evidently alluded to the taking of said note, and to what Holland had stated to him ; that it was Walker’s duty to have returned the note to Glidden or to Haskell by the return day of the execution; and that, having taken the note, and kept it, and called on Hosley for payment, if it was of no value, it was his own fault, and not Haskell’s; and it was not competent for Walker to say that it was good for nothing; that it was evident that Walker did not rely on any orders from Haskell to him respecting the execution; and that his declarations to the mail carrier proved this, and amounted to an admission and acknowledgment of his liability; that Glidden having credit for his board, it was a fair presumption that, if arrested, he might have obtained credit enough to secure the debt of Haskell; and that Haskell had a right to insist on his arrest for that purpose ; and that, upon this view of the facts, if the jury should be of opinion that it was the duty of Walker to have taken Glidden in execution accordingly, it would be their duty to give Haskell in damages the amount of his demand and interest; but that the jury must decide as they thought just.</p> <p>The assignment of errors applied to the several points of the said directions from the Court to the jury.</p>

<p>The defendants, Thomas Johnson, Edmund Merrill, and William Merrill, were attached to answer to the plaintiff in a plea of trespass for taking and carrying away eight tons of hay, the property of the plaintiff.</p> <p>The following facts were stated in a case agreed by the parties for the opinion of the Court: —■</p> <p>The said Edmund and William Merrill, on the 12th of January, 1813, sued out against the now plaintiff, who was indebted to them, two several writs of attachment, returnable before a justice of the peace for the county of Cumberland, * and [ * 185 ] delivered the same to said Johnson, then and yet a deputy sheriff, to be by him served and returned.</p> <p>On the next day, the said Johnson, by virtue of said writs, and by the express command of the said William and Edmund Merrill, and with the personal aid of the said William Merrill, attached five tons of hay, then being in the barn of the said Campbell, and his own property, and removed part thereof about two miles, to the barn of the said Edmund Merrill, and part thereof to the barns of two other persons, for custody.</p> <p>On the 6th day of February, 1813, the present action was commenced.</p> <p>On the 26th of the same February, judgment was rendered against said Campbell by default in each of the said actions. On the next day, executions were issued upon each of said judgments, and were delivered to the said Johnson for service; who sold said hay, by virtue of said executions, at public vendue, on the 3d day of March following, for the sum of 24 dollars 60 cents; the current price of hay at the time and place of the said attachment being 8 dollars per ton. When the said hay was attached, Campbell was absent from his home; and he never at any time consented to, or acquiesced in, the said attachment. The expenses charged by Johnson for attaching and removing the hay are 5 dollars 75 cents; and for advertising and selling the same on said executions 1 dollar 68 cents, exclusive of his other fees.</p> <p>If, upon these facts, the Court should be of opinion that the plaintiff was entitled to recover, the defendants agreed to be defaulted; and that the plaintiff’s damages should be assessed by the Court; otherwise the plaintiff agreed to become nonsuit, and that the defendants should have judgments for their costs.</p> <p>The cause was submitted without argument, and the opinion of the Court was delivered by</p>

This was an action of the case against the defendant, a deputy sheriff for the county of Kennebeck, for taking insufficient bail, upon an original writ in favor of the plaintiff against one Samuel Aspinwall.

Debt on a bond, dated October 3, 1804, made by the defendants to the plaintiff, as judge of probate for the county of Cumberland, conditioned for the said Mary Anderson’s faithful administration of the estate of Edward Anderson, deceased, intestate.

<p>Grantees of land from the government are concluded by the boundaries assigned by judgment of law to any prior location, as privies, although not parties to a judgment between the commonwealth and the proprietors of such former grant or location.</p>

Entry sur disseisin. The demandants claimed an undivided third part of a certain tract of land in Minott, (formerly part of Bakerstown.) A new trial being had, (vide vol. x. p. 164,) at the last October term, before Thatcher, J.,a verdict was returned for the demandants, subject to the opinion of the Court upon the judge’s report of the facts in evidence.

<p>In computing the thirty days, from a judgment during which property attached on mesne process is holden, the day after the last day of the term is the first of the thirty.</p>

<p>This was an action of the case against the defendant, as sheriff of the county of Cumberland, for the neglect of his deputies in the service of an execution. The declaration alleges that the plaintiff, in the Supreme Judicial Court, October term, 1807, recovered judgment against one Joshua Dunn for the sum of 178 dollars 30 cents, as by the record, &c., and on the 18th of November in that year sued his execution on the said judgment, and delivered the same to one Jacob Thurlo, a deputy of the pla.intiff, to be by him served, &c., and directed him to levy the same on certain land of the said Dunn, which had been attached by the said Thurlo on the original writ in that case. The said Thurlo, on the 23d of the same November, caused ninety-six acres of the said land to be appraised and set off to the plaintiff for the amount of the said judgment, together with the costs of the levy; which costs the said Thurlo demanded and received of the plaintiff. But the said Thurlo, regardless of his duty in this behalf, did not return the said execution, either to the registry of deeds, or to the clerk’s office of the said Court, within three months, as by law he ought to have done, but wilfully neglected so to do; by means whereof the plaintiff lost the benefit of his said judgment, the said Dunn being wholly'insolvent, &c.</p> <p>At the trial of this action before Thatcher, J., at the last October term in this county, the plaintiff produced evidence of the judgment recited in his declaration, and the delivery of his execution to Thurlo, who had attached the land afterwards levied upon, on the 7th of May, 1807, upon the plaintiff’s original writ against Dunn.</p> <p>The appraisers were sworn on the 23d of November, 1807, and on the same day signed the certificate of their appraisement, within thirty days from the rendition of the judgment. The dep.ity dated the return of his extent on the 23d of December, and on the same .day the plaintiff acknowledged full satisfaction of the judgment. But * W. Campbell, one of the appraisers, [ * 208 ] swore that the plaintiff received seisin and possession upon the same day on which the appraisers were sworn. The execution, &c., was received and recorded in the office of the register of deeds on the 11th of April, 1808, but did not appear to have been returned at any time to the clerk’s office. There was evidence of an acknowledgment, on the part of Thurlo, that he had received three dollars of the plaintiff, to pay for the recording of the execution.</p> <p>The plaintiff also proved that Dunn conveyed the land, on which his execution was extended, to one Edmund Pulcifer, by deed dated March 18, 1807, but not recorded until May 27 of that year; that the said Pulcifer had recovered judgment for possession of the said land in an action against the plaintiff; and that Dunn had been reputed to be insolvent ever since the year 1807.</p> <p>On this evidence, the judge instructed the jury that it was a part of the official duty of the deputy sheriff to procure the execution and levy to be returned and recorded within three months after the levy was made ; and that, if he had neglected to do it, the sheriff must be answerable for the neglect; that, although the land levied upon was conveyed by Dunn to Pulcifer before the attachment on the plaintiff’s original writ against Dunn, yet, as the deed was not recorded until after the attachment was made, and as the levy was made within thirty days after the judgment, the title to the land would have been good under the levy, if the execution had been returned and recorded within three months after the extent of it upon the land ; and that, if the execution was not returned and recorded within that time, the jury ought to assess damages for the plaintiff to the full amount of his execution against Dunn, with the charges of levying the same. And the jury returned their verdict accordingly.</p> <p>The defendant filed exceptions to the said directions of the judge, and the cause stood over to this term for the consideration of the said exceptions.</p>

<p>Of the property of sheriff in goods attached by him on mesne process.</p> <p>[Where goods attached were delivered by the officer to a bailee, upon his receipt to redeliver them on demand, and before the return day of the writ were demanded by the officer, who thereupon returned an attachment of them upon another suit in favor of another creditor, although the goods were never redei livered to or seen by the officer after the bailment, but were taken in satisfaction of an execution upon a judgment recovered by the first attaching creditor in another suit, the first suit having been abandoned, —held, that an action by the officer against the bailee might be maintained:]</p>

This was a writ of entry sur disseisin, brought by the demand-ant as assignee of a mortgagee, in which he complains of a disseisin by Swan, the tenant, who pleads in bar that he is not tenant of the freehold of the demanded premises, nor was at the time of the commencement of the plaintiff’s action aforesaid against him ; but that T. A. at that time was, and still is, tenant of the freehold in said premises; and that the said F. S. was only tenant at will under the said T.…

<p>This was an action of debt brought by the plaintiff, as treasurer of the county of Kennebeck against Gannett, as clerk of the Court of Sessions for the same county, and the other defendants as his sureties, upon a bond prescribed by the statute of 1795, c. 80, $ 2, dated July 18, 1799, conditioned that the said Gannett should account for on oath, and pay to the treasurer of said [ * 218 ] county, from time to time, the * sum of four dollars for each person who should be licensed to be an innholder in the county, within one month after he, the said clerk, should receive the same.</p> <p>It was agreed, in this case, that the defendants duly executed the bond declared on ; that Gannett was appointed clerk of the Sessions at the term next preceding the execution of the bond, and continued in the office until December term, 1807; that, during that time, six hundred and forty-nine licenses to innholders were granted; that G. duly paid to the county treasurer, from time to time, within a month after each term, four dollars for each of four hundred and thirty of said licenses, leaving two hundred and nineteen not so paid ; that afterwards, in the month of May, 1810, and before the commencement of this action, he paid to the plaintiff four dollars for each of said two hundred and nineteen licenses, which was then received and credited by the plaintiff as treasurer, and included all the licenses for which the said G. was then accountable; that no interest was paid or demanded at the time, for the long delay of payment of the principal, sums due; nor was there any agreement or understanding, on the part of the plaintiff, to waive the claim for interest.</p> <p>If, upon these facts, the Court should be of opinion that at the time of the commencement of this action the said bond was by law forfeited, and the forfeiture not waived, and that the plaintiff was entitled to judgment for the penalty, the defendants agreed to be defaulted, and prayed to be heard in chancery; otherwise the plaintiff agreed to become nonsuit.</p>

<p>This was an action of assumpsit, brought upon the following receipt, viz.: “ Bath, July 7,1811. Received of Jesse Jewett, deputy sheriff, English and West India goods to the amount of one hundred and fifty dollars, attached on a suit of John Getchel vs. Jesse Emerson; which goods I promise to deliver said Jewett on demand. Wm. Torrey.”</p> <p>The action was submitted to the decision of the Court upon a case agreed by the parties.</p> <p>The plaintiff, being a deputy sheriff, having a writ of attachment in favor of John Getchel against Jesse Emerson, went to the store of Emerson, containing English and West India goods more than sufficient to respond Getchel’s demand; Emerson being then absent, and the store being under the management of his apprentice or clerk. Upon the plaintiff’s making his object known to the clerk, and desiring him to procure some person to receipt for the amount, the clerk went into the street, and saw the defendant passing along in haste, whom he requested so to receipt. The defendant promised to call and sign a receipt on his return. In the mean time, the plaintiff wrote the receipt, which the defendant signed on his return, and immediately left the store, desiring the clerk to see what he had signed, and to take a copy of it.</p> <p>Neither the plaintiff nor defendant removed the goods or took any account of them; but the same remained in Emerson's store, and were afterwards sold for his benefit.</p> <p>In January, 1812, Getchel recovered judgment, and sued out execution against Emerson, and delivered the execution to one Wyman, then a deputy sheriff; who within thirty days demanded of Torrey the goods mentioned in his said receipt, offering to deliver him the receipt upon his delivering the goods, which Torrey refused.</p>

This was an action of the case against the defendants, as assessors of the town of Pittston, for unlawfully assessing the plaintiff in divers taxes for the year 1812, and causing him to be arrested therefor, and compelling him to pay the sums so illegally assessed.

<p>This was an action of assumpsit, brought in the county of Sontr erset, upon sundry orders drawn by a committee appointed by the Court of Common Pleas for the county of Somerset, in June, 1811, to superintend the making a highway through certain unincorporated lands in said county, upon the county treasurer, in the plaintiff’s favor, dated March 24, 1813, and by him refused.</p> <p>The cause was tried upon the general issue, at the last October term in this county, before Parker, J., when a verdict was taken for the plaintiff, subject to the opinion of the Court, upon two objections made by the defendants, viz.: 1. That the action was not rightly brought in the county of Somerset, upon which they moved that the action should be dismissed; 2. That the orders declared on were drawn by a committee appointed by the Court of Common Pleas, in June, 1811, and the powers of that court, [ * 222 ] touching the subject of * roads having been transferred to the Court of Sessions, before the said orders were drawn, the said committee had no authority to draw the same.</p>

<p>This was a writ of entry sur disseisin, in which the demandant counts upon his own seisin, and upon a disseisin by the tenant.</p> <p>The parties agreed to submit the action to the decision of the Court upon the following facts: On the 7th of November, 1810, one Ephraim Dutton, being seised in fee of the demanded premises, mortgaged the same to Joshua Gage; and on the 29th of June, 1811, for a valuable consideration, conveyed the same by deed with warranty to *B. and N. Tucker, referring [ * 223 ] to and excepting the encumbrance thereon to Gage; which deed was duly acknowledged and recorded on the same day.</p> <p>On the 11th of October, 1811, Dutton being in possession of the premises thus conveyed to B. and N. Tucker, and at that time erecting a house thereon, the demandant attached them as Dutton’s property, by virtue of a writ, upon which judgment was rendered against him in May, 1812.</p> <p>On the 7th of November, 1811, the tenant, Childs, agreed to purchase the premises, subject to the mortgage to Gage, and gave his promissory note for 900 dollars, and placed the same in the hands of Mr. Bridge, as attorney to B. and N. Tucker, and took from him an obligation to procure a deed of the premises from said Tuckers to the tenant, or to return him the said note, in case of their refusal. On the same day, the tenant took from said Dutton his deed with warranty of the premises, in which his wife joined to release her right of dower therein, which deed was duly acknowledged and recorded on the same day; and the tenant entered upon the premises on the 15th of the same November, and continued seised until the levy of the demandant’s execution.</p> <p>On the same 7th of November, the said Bridge wrote to his partner, then in Boston, stating to him the arrangement he had made with the tenant, and requesting him to procure from the said Tuckers their release of the premises to the tenant; and on the 11th of November, the Tuckers, being informed of the arrangement made.by their attorney, acquiesced therein and made a release of the premises to Dutton, his heirs and assigns, instead of the tenant; which was thereupon forwarded to Mr. Bridge, who delivered the same to the tenant and took up his said obligation, and the tenant caused the said release to be recorded on the 5th of December following, he having no notice of the attachment made by the demandant.</p> <p>Within thirty days after the demandant recovered his judgment against Dutton, he levied his execution upon the demanded premises, and the same were regularly set off to him as the estate of Dutton, and the execution and return were seasonably recorded.</p> <p>* If it should be the opinion of the Court, upon these facts, that the demandant was entitled to recover in this action, the tenant agreed to be defaulted; if not, the demand ant was to become nonsuit.</p> <p>The cause was argued, at the last May term in this county, by Wilde for the demandant, and by Williams for the tenant; and, being continued for advisement, the opinion of the Court was delivered at this term by</p>

<p>This was a writ of entry sur disseisin, and was submitted to the decision of the Court upon a statement of facts agreed by the parties.</p> <p>The demandant claimed under a conveyance from O. C. Williams and A. Smith, administrators of the estate of O Williams, Esq., deceased, intestate, duly executed, acknowledged, and recorded.</p> <p>The estate of said deceased being represented insolvent, commissioners were appointed, by whose return of claims allowed by them, added to the charge of administration, it appeared there was a deficiency of personal estate to meet the said claims and charges, to the amount of 3039 dollars 93 cents. This being certified by the judge of probate, with his opinion that it was necessary that the whole of the real estate should be sold for the purpose of satisfying the said claims and charges, a license was granted to the said administrators, by the Court of Common Pleas for this county, August, 1806, to sell the whole real estate accordingly, of which the de manded premises were part.</p> <p>The administrators being dissatisfied with the allowance by the commissioners of a certain claim, the same was settled by an action at law, and was thereby so reduced that the amount of the claims, as finally allowed; together with the charges of administration, left a charge upon the real estate of 1740 dollars 78 cents only, which was less than the value of the real estate, as appraised in the inventory.</p> <p>The administrators, in pursuance of the license aforesaid, sold divers parcels of the real estate of the deceased, before the sale of the demanded premises, for the payment of the debts of the deceased and incidental charges ; the sum of 129 dollars 94 cents being left for said charges, after paying all the debts and the administrators’ charges.</p> <p>The administrators took the oath prescribed by law, previous to the sale of the said real estate; but they gave no bond, according to the statute in such case provided.</p> <p>* The tenant derived his title to the demanded prera- [ * 228 ] ises by conveyance from one of the children and heirs of the deceased, and was in possession thereof at the time of the sale thereof by the administrators, and also at the commencement of this action.</p> <p>If, in the opinion of the Court, the demandant had disclosed a good title to the demanded premises, the tenant agreed that judgment should go against him by default; otherwise the demandant was to become nonsuit.</p>

<p>Where the master of a chartered vessel was prevented from delivering the cargo by a seizure for the default of the freighter, the owners were held entitled to the hire, as upon an actual delivery.</p> <p>A deposition, taken in perpetuara, cannot be used in evidence, if not recorded within three months from its caption.</p>

Trover for the conversion of a horse. The action was submitted to the decision of the Court on the following facts agreed by the parties: — Isaac Clark, Jun., the plaintiff’s intestate, in his lifetime, commenced an action against one Daniel jLllen, and pending that suit died.

This was a writ of scire facias against the defendant as bail of one David Herrin.

<p>This was an action of the case against the defendant, late sheriff of this county, for the misfeasance of his deputy, (a)</p> <p>In a statement of facts, upon which the action was submitted to the decision of the Court, the parties agreed that the plaintiff, in October, 1810, recovered judgment in this Court against one Enos Jewell for the sum of 40 dollars damage and 107 dollars 50 cents costs; that Nathaniel Perley, Esq., commenced and prosecuted said suit, as attorney to the plaintiff; that, on the 16th of January, 1811, an execution was issued on said judgment, which Perley retained in his hands at Jewell’s request, and, on the 21st of March, 1811, Jewell paid to Perley, as the creditor’s attorney, 100 dollars, for which Perley gave his receipt; that, on the 9th of July, 1811, the said execution was returned in no part satisfied, the said receipt still remaining in Jewell’s possession; and on the 17th of the same July an alias execution was issued, and on the 1st of October following was also returned unsatisfied ; that, on the 29th of April, 1811, [ * 237 ] the plaintiff * drew an order upon said Perley for the sum recovered by the plaintiff in damages against Jewell, which order was paid on the 2d of May following; that Perley, as the plaintiff’s attorney, paid and engaged to pay the witnesses used in said suit against Jewell; that, on the 21st of October, 1811, Perley sued out a pluries execution on said judgment, which he delivered to Henry Snow, a deputy of the present defendant, with direction to levy and pay over the amount due thereon to him, the said Perley, after allowing and deducting the said sum of 100 dollars; that, upon Snow’s applying to Jewell with the execution, Jewell produced Perley’s receipt, and also an execution in favor of himself against the. plaintiff, Baker, on .which was due the sum of 66 dollars 49 cents; which receipt and execution Snow carried to Perley, by whom he was informed that he had long before paid Baker the sum recovered by him in damages, and that the balance due on his execution was due to him, Perley, as the attorney in the suit; and he was directed by Perley not to set off the executions against each other, and was promised an indemnity if he collected the balance due on the execution against Jewell; that Perley then endorsed the said 100 dollars on the said execution, and delivered the same to Snow, with directions to collect and pay over to him the balance due thereon ; that Snow afterwards delivered over both the executions to one John Smith, another deputy of the defendant, who discharged the plaintiff’s execution by endorsing the amount remaining due thereon upon Jewell’s execution against the plaintiff; and that no evidence exists that Snow communicated to Smith the said directions of Perley.</p> <p>If the Court, upon these facts, should be of opinion that the plaintiff was entitled to recover, the defendant agreed that judgment should be rendered against him on his default; otherwise the plaintiff agreed to become nonsuit.</p>

<p>A soldier enlisting into a volunteer corps of light infantry, is no longer obliged to muster in the standing company of militia, within whose limits he may belong, although at the time of his enlistment such standing company consist of less than sixty-four privates.</p>

<p>Of the competency of an attorney, as a witness for his client, and Of the liability of a sheriff for the misconduct of his deputies.</p> <p>[An attorney in the cause is a competent witness to prove the delivery of the execution and instructions to the officer in due time and manner to charge him. The officer is supposed to have in his custody all goods and chattels attached on mesne process until thirty days after judgment in the action, and if he part with them it will be at his peril. And a delivery of the execution to the officer will be unnecessary if the property is carried away so that he cannot levy upon it]</p>

Error upon a judgment of the Circuit Court of Common Pleas holden here in August, 1812, rendered in an action brought into that court by appeal from the judgment of a justice of the peace for this county.

Assumpsit upon a policy of insurance dated February 13, 1812, whereby the defendants insured the sum of 5000 dollars upon the ship Commerce, belonging to the plaintiff, and her appurtenances, from Wiscasset to her port óf discharge in Great Britain, and at and from thence to her port of discharge in the United States; vessel valued at 20,000 dollars.

This was an action of assumpsit upon several promissory notes, made by the defendant to David Tibbals, the plaintiff’s intestate. The declaration contained also counts for money had and received, and money laid out and expended. [*257] *The defendant, besides the general issue of non assumpsit, which was found for the plaintiff, pleaded two several pleas in bar.

This was a writ de homine replegiando, commanding the sheriff of the county of Berkshire, or either of his deputies, to cause the plaintiff to be replevied, suggesting that he was detained by th¿ duress of the defendant, an ensign in the army of the [ *272 ] United States, that the plaintiff might appear at * the Circuit Court of Common Pleas, then next to be holden, &c., to demand right and justice against the defendant for the duress and imprisonment aforesaid, &c. The…

The defendants were indicted, at the Circuit Court of Common Pleas holden in this county September, 1812, for neglecting to open, and maintain in repair, a certain highway, described in the indictment as lying partly in the town of Stockbridge, “ to the great injury and nuisance of all the citizens of this commonwealth having occasion to pass over said way, in evil example to others in like case to offend, against the peace, dignity, and authority, of the commonwealth…

This was an action of debt, in which the plaintiff declared upon a bond as lost by time and accident, setting forth substantially the whole bond, with the condition, and averring a breach. The defendants pleaded, first, that they did not make any such writing; secondly, that the writing mentioned was not their deed, on both which pleas issue was joined ; and, thirdly, that the writing mentioned in the declaration was not lost by time and accident.

Assumpsit on a promissory note, made by the defendants on the 26th of August, 1808, for the sum of 303 dollars 11 cents, payable by them jointly and severally to Asenath Tohy, or bearer, in four years from the date, with interest after one year, payable annually.

<p>The directors of an incorporated banking company have power to authorize one of their number to assign over any securities belonging to the company.</p> <p>A blank endorsement, in pursuance of such authority, by such attorney, is sufficient to transfer a negotiable security.</p>

<p>It is not a trespass for the owner of land to take away the fence separating it from the land of another, for the purpose of rebuilding the fence of other materials. Where owners of adjoining lands establish a division fence varying from the line described in their respective title deeds, and each has held and occupied up to his side of the fence, claiming to hold accordingly, for twenty years, neither can maintain a possessory action against the other.</p>

<p>It is no defence to a demand of dower that the demandant has released her right to a stranger.</p>

In this case it appeared that one Silas Pepoon, on the 1st day of May, 1807, mortgaged the premises demanded in the plaintiff’s bill, together with another tract of land, to * the [ # 301 ]' respondent, upon condition to be void upon payment of five several promissory notes, made by the said Pepoon to the respondent; that the plaintiff in equity, by certain deeds of assignment, which were exhibited in the case, had acquired the right in equity which the said Pepoon had to…

This writ of error was brought to reverse a judgment rendered by a justice of the peace for this county, in an action upon promises, wherein the plaintiffs in error were original defendants, and the defendants in error were original plaintiffs. The error assigned was the minority of one of the original defendants.

<p>Of the maimer of declaring in covenant; and what shall be deemed a breach. [Where plaintiff declared that defendant authorized him, by an instrument under seal, to use defendant’s name in any suit or suits which plaintiff might think necessary to bring to accomplish the object mentioned in said writing, namely, to pay, or cause to be paid, certain executions against the Berkshire Bank, and covenanted to transfer to plaintiff such judgments as he might recover against said bank in defendant’s name; and that plaintiff did recover nine judgments in Common Pleas, from which the defendants therein appealed; and, pending the appeal, the defendant released the actions to those defendants. Held, on demurrer, the declaration was good, and that the release was a breach of defendant’s covenant]</p>

<p>The subscribing witness to a promissory note being out of the commonwealth, other evidence was holden to be admissible, and this before proving the hand-writing of such witness.</p> <p>Comparison of the contested signature of a party to a written contract with other writings proved to be genuine is, by the common law of this commonwealth, proper evidence.</p> <p>The procuring of a person not present at the malting of a promissory note, after wards to put his name thereto as a witness is a material alteration of such note.</p>

This was an action of debt upon a judgment -of this Court, and came up by appeal from the judgment of the Circuit Court of Common Pleas upon a demurrer with reservation, and was entered in this Court April term, 1813, when the defendant filed three several pleas in bar of the action, which resulted in issues to the country.

This was an action of assumpsit upon a written promise of the defendants to deliver to the plaintiff, upon demand-, certain personal chattels, which he, as a deputy sheriff, had attached as the property of one Joseph D. Lyman, at the suit of William, Boardman. The action was tried upon the general issue, April term, 1813, before the present chief justice.

The declaration in this case was in assumpsit, and contained, besides a special count, a count also for money had and received. The action was tried upon the general issue, April term, 1813, before the present chief justice.

<p>This action was brought to recover from the defendants a sum of money, expended by the plaintiff in repairing a dam across a stream, of which four fifth parts were claimed and used by the defendants, they having a saw-mill and grist-mill carried by said stream, and the plaintiff having a blacksmith’s shop, with a trip-hammer, and other works, moved by the same stream.</p> <p>At the trial of the cause, which was had, upon the general issue, before the present chief justice, April term, 1813, it was proved by the plaintiff that, the dam being out of repair, he and the defendant Ferre began to repair the same; and, before they had proceeded far, they sent for Wallis, the other defendant; and it was then agreed by the three that each one should furnish labor and materials in repairing the dam, in proportion to his share in the stream; and that, if any one should fail to perform his part, he should pay to the other, who should have done more than his proportion, his deficiency in money. The two defendants, Ferre and Wallis, held the said mills by separate titles, each one moiety, and * they used them alternately by weeks. The plaintiff [ * 326 ] expended two hundred dollars in the repairs beyond his proportion, owing to the neglect of Wallis in performing his part. Ferre having completed his part.</p> <p>The judge, being of opinion that the agreement was several in its nature, and that it destroyed any implied assumpsit of the defendants jointly, as owners of the mills, so instructed the jury nd a verdict was returned for the defendants.</p> <p>The plaintiff moved for a new trial, on the ground of a misdirection of the judge in matter of law.</p>

<p>If one appears by record and possession to be the lawful owner of an estate of the yearly income of three pounds, taking the profits thereof three years successively, he thereby gains a settlement; although his title may be defeasible. If one possessed of a sufficient estate to give him a settlement, mortgage the same to his surety for the purchase money, to indemnify him against the effects of his suretiship, he will gain no settlement by the possession of such estate.</p> <p>In an action for the support of a pauper, a charge for the expense and trouble of the overseers in providing for the abode and support of the pauper cannot be recovered.</p>

This was an action of assumpsit on a promissory note, made by the defendant to the plaintiff, on the 4th of November, 1809, for 97 dollars 87 cents, payable, with interest, in two years from the 16th of said November, in neat cattle.

This was a scire facias brought against the defendant upon a recognizance certified by a justice of the peace for the county of Franklin conditioned for the defendant’s personal appearance at some former term of this Court in this county, to answer to such matters and things as should be objected against him on behalf of the commonwealth, and especially to the complaint of J. C., of, &c., for Trilling J. C., Sen., late of, &c.

<p>The plaintiff brought an action against the defendants by the name of “ The Proprietors of a Bridge over Connecticut River, between Montague and. Greenfield, late in the county of Hampshire, and now in the county of Franklin.” On motion to the Court at the last April term, which was holden by one judge, the plaintiff was permitted to amend his writ by altering the name of the defendants to that of “ The Proprietors of Connecticut River Bridge.” The defendants objecting to the said amendment, the question was reserved for the consideration of the Court at this term.</p> <p>And now Mills, of counsel for the plaintiff, stated that, by an act passed in 1792, (1) certain persons were incorporated for the purpose of building a bridge over Connecticut River, by the name by which the defendants were sued in this action ; but the time having expired within which the act authorized the building of the bridge, another act was passed in 1796 for the same purpose, in which the corporation created thereby was called by the name of “ The Proprietors of Connecticut River Bridge.” (2) The person who made the writ in this case was not aware of the second act, and used the first name of the corporation, which had become extinct. The writ was, however, well served by leaving a copy with the clerk of the corporation, so that río inconvenience could follow from the amendment.</p>

<p>Form of a judgment upon an information in nature of a quo warranta</p>

This was an action of the case against the defendant, for negligently keeping his fire on his own ground, by which the plaintiff’s trees, &c., were burnt; ad damnum. 300 dollars. The action was commenced May 6, 1811.

<p>A, having received a conveyance of land from B, made a verbal promise that he would, on a certain day thereafter, make a defeasance thereof so that the same should operate as a mortgage. It was holden, that such promise was void by the statute of frauds.</p>

<p>Case against the defendants, for that, when acting and presiding as selectmen of the town of Petersham, at a meeting then duly convened and holden for the election of a representative, in May, 1812, they refused the plaintiff’s vote there offered, although a qualified voter, "entitled to vote in the said election, &c.</p> <p>A trial was had upon the general issue, before the late Chief Justice Seioall, April term, 1813; when it was proved that the plaintiff’s home and most usual residence were at Petersham, where he was born, and where he served an apprenticeship with his father until he came of age, in 1806 ; after which he had been for some time employed by his father upon wages, and had finally been taken into partnership with his father, in the same employment and business, their workshop being at Petersham, where the father lived, the son, plaintiff in this action, residing with him.</p> <p>It was further proved that, several years preceding, and also in the year when his right of voting was questioned, the plaintiff had been absent several weeks, to perform some work at [ * 351 ] Belchertown, and that year his absence had been *for ten weeks, going away in February, and returning in May, a few days before the election.</p> <p>That and the preceding year, being at Belchertown at the time of the April election for governor, lieutenant-governor, and senators, he had been recognized as a voter by the selectmen of that town, and had actually voted in the said election ; but the votes received of him had been restricted to the choice of governor and lieutenant-governor. It also appeared that the plaintiff’s name had been inserted in the list of qualified voters in Belchertown for governor, lieutenant-governor, and senators, particularly in the list used at the election of 1812. And his name, which had been borne on the list of qualified voters in Petersham, had been taken off by the defendants, when they regulated the list preparatory to the May meeting. As soon as it was known that the plaintiff’s name had been struck off the list by the defendants, they were applied to and remonstrated with upon the subject, and particularly by the plaintiff himself, on the morning of the day when the meeting was to be holden ; but the defendants persevered in refusing to restore his name, in the apprehension that his voting at Belchertown, at the April meeting, disqualified him as a voter in Petersham for that year, in the election of representatives.</p> <p>The refusal of the plaintiff’s vote was admitted on the part of the defendants; and the cause was left to the jury, with a direction from the judge to find a verdict for the plaintiff, if his home and residence had been proved to be at Petersham, notwithstanding his occasional absences at Belchertown, and his being permitted to vote there, and actually voting there at the April meetings. And the judge consented to reserve the question of the plaintiff’s qualification.</p> <p>The judge also ruled that evidence of malicious and injurious intentions was not necessary, in this case, to entitle the plaintiff to recover damages for the privation of his franchise by the [ * 352 ] act of the selectmen, if their conduct had not * proceeded from an unavoidable mistake of any fact, uncertain in the nature of the proof upon which it depended, but from a mistake of the law, they having undertaken to decide upon the rights of the plaintiff; and upon this point, also, the case was reserved by the judge. The jury returned a verdict for the plaintiff, which was taken, subject to the opinion of the Court upon the questions so reserved.</p> <p>The cause was argued, at the last September term, by Blake for the plaintiff, and Bigelow and Lincoln for the defendants.</p> <p>The jury in this case having assessed the plaintiff’s damages at the sum of 5 dollars only, his counsel moved that full costs should be allowed him, upon the ground stated in the statute of 1786, c. 52, <§> 3, that he had a reasonable expectation of larger damages than was within the jurisdiction of a justice of the peace to assess.</p> <p>The Court not thinking it a proper case for their interference, the counsel for the plaintiff moved that a new trial should be granted him, because of the smallness of the damages assessed by the jury ; and they argued that the jury having expressed, in their verdict, that the plaintiff should have full costs, although such expression could have no legal effect or operation, yet it was plain that, by rendering judgment for the plaintiff for 5 dollars damage, and one fourth of that sum as costs, the real intentions of the jury in finding their verdict would be wholly counteracted and frustrated. Instead of affording him compensation for the injury he had proved himself to have suffered, such a judgment would be a severe penalty upon him for seeking his legal remedy.</p>

<p>This was assumpsit for money received to the plaintiff’s use, for money lent and accommodated to the defendant, and for money laid out and expended for the defendant.</p> <p>At the trial of the action before the late Chief Justice iSewall, April term, 1813, in this county, the plaintiff proved that he and the defendant were joint sureties in a promissory note for 675 dollars, dated January 1, 1802, made jointly and severally with one Samuel Johnson to one William M’Farland. After the death of Samuel Johnson, the plaintiff and defendant gave a bond to M’Farland, conditioned to pay such part of the demand upon the note as M’Farland should be unable to obtain from the estate of Samuel Johnson, which was insolvent. The note and bond were afterwards taken up by the plaintiff, who discharged the balance then due, after deducting the payment received by M’Farland from the estate of Samuel Johnson. An adjustment afterwards took place between the plaintiff and defendant, and the defendant, being found, and acknowledging himself liable in the sum of 239 dollars 50 cents, for his part of the balance paid by the plaintiff upon the note and bond in which they had been jointly liable to M’Farland, then gave his note for that sum, with some addition to it in * consideration of forbearance; and the plaintiff en- [*860] dorsed upon the bond, in which he and the defendant had been bound to M’Farland, these words: “ Worcester, January 1, 1810. Received two hundred thirty-nine dollars fifty cents, part of this bond, by Micah Johnson.”</p> <p>The note of the same date, given by the present defendant, was made payable to one Holbrook, or his order, by the appointment of Timothy Johnson, the now plaintiff, and was afterwards put in suit by him as endorsee. And the defendant obtained a verdict in that suit, after giving in evidence at the trial the circumstance of usurious interest exacted of him, and included in the note; so that the sum, for which he was liable in the first-mentioned note and bond, has never been paid in money, but only by the note since de'eated and avoided by the defendant.</p> <p>Upon this evidence, the judge was of opinion that the acceptance of the note in payment, and the endorsement made upon the bond, must be considered a final discharge of the defendant from the demand proved in this action; and he directed a nonsuit, which was entered, subject to the opinion of the Court upon the report of the judge. The action was to be restored, if maintainable upon the evidence reported; and in that case the defendant was to be defaulted, and judgment rendered for the plaintiff for the sum of 239 dollars 50 cents, and interest from January 1, 1810.</p> <p>The cause was argued, at the last September term in this county, by Bigelow for the plaintiff, and Lincoln for the defendant; and being continued for advisement, the opinion of the Court was delivered at this term by</p>

<p>Since the statute of 1795, c. 74, no action at common law lies against a mill owner for flowing the land of another, unless, after a judgment under the statute, he refuses to give security to the complainant for the yearly damages which have been ascertained, or shall flow the land at a season of the yea* determined by the jury to be unsuitable.</p> <p>Upon the proceedings under the statute, the jury are to assess damages for the injury sustained before instituting the process, as well as to fix the future yearly damages.</p>

This was a writ of entry sur disseisin, in which the said inhabitants demand against the said Eaton certain described lands and rooms in a dwelling-house, &c., assigned to Betsey Flagg, widow of David F., for her dower, and by her conveyed to the demandants, who allege a * seisin of the freehold there- [ * 369 J of for her life, until disseised by the tenants.

<p>This was a writ of error to the Common Pleas of this county, upon a judgment of that court, in a cause wherein the inhabitants of Lunenburg were complainants, and the * in- [ * 880 J habitants of Shirley were defendants, upon an appeal from the judgment of a justice of the peace for this county.</p> <p>The application to the justice was for the removal of Polly Mills and her bastard child from Lunenburg to Shirley, alleged by the complainants to be the place of her legal settlement, and for the reimbursement of sundry charges which had been incurred by the complainants on account of the said paupers.</p> <p>Neither the record of the proceedings before the justice, nor that of the Common Pleas, showed that the said Polly Mills was sum maned or present at the hearing of the cause.</p> <p>The Common Pleas, after a statement of the facts upon which their judgment was founded, adjudge that the said paupers were the proper poor of the said town of Shirley, and order them removed thither accordingly; and also that the complainants recover against the defendants the sum of twenty-one dollars damage, and costs of suit taxed at, &c.</p> <p>The errors assigned are, the want of a summons to the pauper, or of her presence at the hearing; the informality of the judgment of the Common Pleas, in that they did not adjudge that the lawful settlement of the pauper was in Shirley, as the statute prescribes; its not appearing by the record that the said sum of twenty-one dollars was adjudged to the complainants for expenses incurred to that time in the support of the paupers, or for what cause the said damages were awarded; and that the issue in fact joined between the parties was heard and determined by the court without a jury; whereas, by the constitution and laws of this commonwealth, the said issue ought to have been tried and determined by a jury.</p>

This was a writ of certiorari, issued upon the application of the respondent, to a justice of the peace for this county, by whom the respondent had been adjudged to pay a fine of two dollars, with costs, for neglecting to attend a muster of the company of light infantry commanded by John W. Lincoln, on the 17th of September, 1812.

<p>In an appeal to this Court from a judgment of the Common Pleas, rendered upon a case stated by the parties for the opinion of that court, this Court will not inquire into the merits of that judgment, unless there is something in the record to show that it was erroneous.</p>

<p>Assumpsit for money had and received by the defendant’s intestate for the use of the plaintiff, for money laid out and expended, &e.</p> <p>The action was submitted to thq determination of the Court upon the following facts agreed by the parties: — •</p> <p>*On the 4th day of February, 1805, administration [ *39T ] of the goods and estate of Amos Ranger, who had deceased in the preceding December, was committed to Hannah Ranger, his widow, and to Jonas Eaton, Jun., at her special request. The plaintiff and one Richard Kelley were their sureties in the bond for their faithful administration, &c. On the 4th day of March, 1806, the said Jonas and Hannah, administrators as aforesaid, returned into the probate office an inventory of the estate of the said Amos. Within a year from the death of the said Amos, viz., on the 26th of October, 1806, the said Hannah died, leaving an only child and heir, Charlotte Ranger. On the 2d of December, 1806, administration of the estate of the said Hannah was granted to the defendant, who gave notice of his said appointment according to law. The defendant was also duly appointed guardian to the said Charlotte. On the 2d of February, 1808, the said Eaton, the surviving administrator of the estate of the said Amos, made a settlement of his administration account in the probate office, whereby it appeared that he had in his hands a balance of the personal estate of said Amos, amounting to 12,369 dollars 69 cents, which he was ordered by the judge of probate to pay over as follows, viz., one third part thereof to the defendant, administrator as aforesaid, to be by him accounted for, and the other two third parts thereof to the said Charlotte or her legal representatives. The said Eaton neglecting to pay over said sums decreed as aforesaid, a suit was instituted on the said administration bond, against him and his said sureties, at the term of this Court September, 1809, for the benefit of the said Charlotte. Pending said suit the said Eaton died; and at September term, 1810, judgment was rendered against the said Moses and Richard, the sureties, for the penalty of the bond; and execution awarded against them for the use of said Charlotte, for the sum of 8597 dollars 6 cents. On the 6th of November, 1810, the said Moses, the now plaintiff, paid upon the said execution the balance then due thereon, being 4298 dollars 66 cents, [ * 398 ] the remainder * due having been paid by the said Richard, the other surety. ' In July, 1810, commissioners were duly appointed to receive and examine the claims against the estate of the said Eaton, represented insolvent by the administrators thereof; who made their first report into the probate office on the 3d of July, 1811, and a second on the 14th of August following. On the 3d of December, 1811, the administrators on said Eaton’s estate settled their administration account in the probate office, and a dividend of 24 cents 9 mills was decreed to be paid to the creditors of the estate, whose claims had been allowed by the commissioners. The sum paid by the plaintiff as above mentioned was allowed him by the commissioners; but there being demands against him in favor of the estate, the balance found in his favor was 3373 dollars 96 cents; of which he received 840 dollars 12 cents, being the amount of his dividend, leaving a balance of 2533 dollars 84 cents. The defendant, on the 6th of August, 1811, settled the account of his administration of the estate of said Hannah; and the balance in his hands, of 3887 dollars 52 cents, he was decreed by the judge of probate to account for as guardian of the said Charlotte; of which sum there still remained in the hands of the defendant a sufficient sum to satisfy the claim of the plaintiff, but not sufficient also to satisfy the claim of the representatives of the said Richard, since deceased. Four years having expired from the time of the defendant’s acceptance of the trust of administrator of the said Hannah’s estate, upon the petition of the plaintiff to the legislature of the commonwealth, the following resolutions were made and ■passed February 15, 1813, viz.: —</p> <p>“ On the petition of Moses Holden, of Barre, &c., praying that the operation of the several statutes of limitation in suits against executors and administrators, as well as against heirs a.nd devisees, may be suspended as it respects certain claims which the said Holden has against the estate of one Hannah Ranger, deceased, for whom the said Holden had formerly been surety, and for whose default he has been * obliged to pay, and has paid, [ * 399 ] a large sum of money, — Resolved, for reasons set forth in said petition, that the said Moses Holden be, and he hereby is, authorized and empowered to commence and prosecute against the executor or administrator, or against the heirs or devisees of the said Hannah Ranger, all such actions, suits, or claims, as he has or may have against the estate of the said Hannah, in the same way and manner as he might or'could have done if the same had been commenced within the time prescribed by law; and that any court within this commonwealth, proper to hear and determine the said actions, suits, or claims, may proceed to hear and determine the same, and render the samé judgment therein as the said court might or could have done, if the said actions, suits, or claims, had been commenced within the time prescribed by law; any thing in any act or law of this commonwealth to the contrary notwithstanding. Provided, however, that the said actions, suits, or claims, shall be commenced within one year from the passing of this resolve.”</p> <p>“ And be it further resolved, that the operation of the several statutes of limitation of this commonwealth, so far as they may come within the purview of this resolve, be, and the same are hereby suspended ; and the same shall not operate as a bar to the several actions, suits, and claims, above mentioned.”</p> <p>Before the commencement of this action, which was within one year from the passing of the foregoing resolves, the defendant was requested to pay the plaintiff his said demand.</p> <p>If, on the foregoing facts, the Court should be of opinion that the plaintiff was entitled to maintain his action, the defendant agreed that judgment should be rendered against him, upon his default, for such damages as the Court should assess; otherwise the plaintiff was to become nonsuit, and the defendant have judgment for his costs.</p> <p>The cause was argued, at this term, by Lincoln and Lee for the plaintiff, and by Bigelow for the defendant; it being agreed that the case should be considered as if the statute [ * 400 ] * of limitations had been pleaded by the defendant, and the foregoing resolutions had been set forth in the.replic aticn. And at the following March term in Suffolk the opinion of the Court was delivered by</p>

<p>Tlie double interest secured'by a bond to review an action is to be computed only to the time of the judgment upon the review; after which simple interest is to be charged.</p>

This was an action of debt upon a bond, given by the defendants upon suing a writ of error to the Supreme Court of the United States, upon a judgment rendered against the said Otis in this Court, which had been affirmed.

This was a writ of scire facias, dated August 22, 1812, in which the plaintiff sets forth that, in May, 1807, he recovered judgment in this Court against one Earl Alden for the sum of 60 dollars 73 cents for his costs of a suit therein; that an execution issued on that judgment, upon which the said Alden was committed to jail, from whence he was afterwards liberated by taking the poor debt- or’s oath ; that the said judgment remains unsatisfied; and that the present…

This was a writ of error brought to reverse a judgment of the Court of Common Pleas for this county, recovered upwards of six years since by the defendant in error, in an action wherein the said Miller was plaintiff, and the said Thatcher fy Al. defendants.

<p>Error to the Common Pleas for this county, to reverse a judgment of that court, rendered in favor of the said Snow in an action of trespass de bonis asjjortatis, in which Snow was plaintiff and Cowing defendant.</p> <p>The cause was tried in court below upon the general issue; and the facts proved at the trial appear in a bill of exceptions to the direction of the court to the jury, filed by the original defendant, which came up in the case.</p> <p>The plaintiff, Snoiv, was part owner, and agent for the other owners, of the sloop Flash, of which one Barstow was master, on a voyage from Rochester to New York and back to Rochester. When about sailing, the defendant advanced to Barstow eight dollars tc purchase for him a barrel of flour, it being agreed that, if the flour should cost more than the money so advanced, Barstow should make up the deficiency. On the return of the vessel to Rochester, several barrels of flour were brought, and among them one marked with the initials of the defendant’s name, which was landed, and carried to a warehouse owned by one Moore, which was used without expense by the inhabitants of the village, by the courtesy of the owner, whose permission for that purpose was not usually asked; nor was the store secured by a lock. The defendant’s boy coming for the flour, Snow was forbidden by the master to deliver it, until the freight and the balance due him on the purchase were paid, and was informed by the master that he should hold him, Snow, accountable. Of this the boy, and through him the defendant, was informed. Some days after, the defendant took the flour from the store and carried it away, without having seen Snow, but having called on another of the owners, and inquired for Snow, observing that he would pay what was due as soon as a bill should be presented. After the commencement of the action, the [ * 416 ] defendant * called on Barstow, and offered to pay him the freight, &c., but he refused to take it, and referred him to Snow. After this the defendant left with another of the owners one dollar seventy-five cents, requesting him to settle the bill, and engaging to make up any deficiency. Still the master refused to receive it. The amount actually due to the master for freight, &c., was one dollar eighty-five cents, and he had deposited the flour with Snow, to be delivered on payment of that sum, which it appeared that Snow had paid to the master before he brought his action against Cowing. The court below directed the jury that, if they believed that Cowing, at the time he took the flour away, knew of the directions of the master to Snow, not to deliver it until the freight, &c., were paid, such taking amounted to a trespass, and that they should in that case return a verdict for the plaintiff; which they accordingly did.</p>

This was an application to the Court for a certiorari to issue to the Court of Common Pleas, and suggesting certain errors in the record of a certain action or process under the act for the support and regulation of mills.

This was an action of trespass quare clausum fregit, in which the defendants were charged with entering upon the plaintiffs’ close, and setting fire to the trees thereon growing, &c. At the trial upon the general issue, it appearing that the plaintiffs were tenants in common of the locus in quo, in the proportion of two fifth parts of the whole, the other owners not being named in the writ, the defendants’ counsel objected to the action, and insisted that the plaintiffs…

This was a writ of entry sur disseisin, in which the said Bennett demanded seisin and possession of an undivided moiety of a tract of land, of which the tenants became possessed by force of the extent of an execution thereon, which issued upon a judgment duly recovered by them against Robert Bennett, father of the demandant.

<p>An elector of a representative in Congress must have had his home one full year previous to the election in the town where he would vote.</p>

<p>Case on a promissory note, dated January 1, 1810, for 355 dollars, payable in one year from its date.</p> <p>At a trial of the cause upon the general issue, before the late Chief Justice Sewall, at the sittings after October term, 1812, the plaintiff gave in evidence a note of the date set forth in the declaration made to the plaintiff, and promising to pay him, or his order, 355 dollars in one year, which was signed by one Benjamin Bird, whose signature was admitted. The defendant also admitted that his name had been signed in blank upon the back of said note.</p> <p>The cause stood over to this term, and now the opinion of the Court was delivered by</p>

<p>This was an action of debt for a penalty of twenty pounds given by the 15th. section of the “ Act providing for the relief and support, employment and removal, of the poor,” &c., (1) to be forfeited by any person who shall bring and leave within any town in this state a poor person not an inhabitant of such town. And the plaintiffs aver that the defendant brought one Freeman Fmerton, a poor person, into the town of Canton, and there left him, when not an inhabitant there, knowing him to be a poor person, &c.</p> <p>At the trial of the cause, which was had upon the general issue at the sittings here after October term, 1812, before the late Chief Justice Sewall, the fact that the defendant brought the said Fmerton into the town of Canton, knowing him to be a poor person, being admitted, his defence was, that the said Everton had his last legal settlement in that town.</p> <p>The plaintiffs admitted that Thomas Fmerton, the husband of Mehitabel Everton, had and has his legal settlement in Canton. The said Thomas and Mehitabel were married at Preston, in the state of Connecticut, and the said marriage has never been dissolved by any divorce. Since the intermarriage, the said Mehitabel has been the mother of four children. In 1810, Freeman, one of the said four children, was removed and brought by the defendant from Preston to Canton, as a person who had become chargeable to Preston. The said Freeman was born at Norwich, in Connecticut.</p> <p>The deposition of Thomas Fmerton was introduced by the plaintiffs at the trial, and came up in the case, and was to be considered as evidence of the facts therein stated, so far as his testimony might be competent to prove them. The deposition stated that he Was absent in the army of the United States for five or six years, computed from the June * preceding the defeat [ * 442 ] of General St. Clair in the western country, during which time he did not see his wife Mehitabel; that Freeman was not his son, having been not the first child born of his wife, after he so left her and enlisted into the army; during which absence of his she had been married to one Manning, supposing that her husband Everton had been killed.</p> <p>The plaintiffs also proved, by the testimony of a Mr. Downs, that, in the year 1809, when he was a selectman and overseer of the poor in Canton, the said Freeman, with his mother and sister, came to that town from Stoughton, and being poor and in need of relief, were provided for by the selectmen ; that the mother went away into Connecticut, and soon after returned to Canton, and wanted help to be enabled to go back again to Connecticut; and on that occasion the witness gave her eight dollars on the town’s account, and the mother and children went away in a wagon which came from Connecticut for them, the team which carried them away having been employed by Canton; and that, when Freeman was brought back by the defendant, in the autumn of 1810, he was warned not to leave him in Canton.</p> <p>A nonsuit was ordered by the judge, the defendant agreeing that it should be set aside, and judgment rendered against him for the penalty upon a default, if the Court should be of opinion, upon the facts proved, that the said Freeman Everton had not a legal settlement in Canton.</p>

Debt on a bond dated the 7th day of May, 1813, conditioned that the said Alden, who had been on that day committed to prison on an execution in favor of the plaintiff, should continue a true prisoner within the limits of the jail-yard, without committing any manner of escape.

<p>A second action cannot be maintained upon evidence once offered and rejected in the trial of a like action between the same parties.</p>

<p>This was a special action of the case, stating an agreement made, on the 29th of January, 1810, between the defendant and certain other abutters upon Exchange Lane, in Boston, so called, severally of the one part, and the plaintiffs of the other part, reciting that the plaintiffs agreed to widen the said lane; and mutually promising each other to submit to the award of certain arbitrators concerning what each should severally receive or pay on account of the premises, as they should, in the opinion of the arbitrators, be respectively damaged or benefited by the widening; that the arbitrators awarded that the defendant should pay 5000 dollars for the benefit he would receive thereby; and then aven-jmg that [ * 448 ] the plaintiffs had widened the lane; * but that the defendant, on notice and request, had refused to perform the award.</p> <p>The action was tried upon the general issue, before the late chief justice, at the sittings here after the last October term, and a verdict returned for the plaintiffs, subject to the opinion of the Court upon certain facts stated by the parties.</p> <p>The cause was argued, at the last March term in Suffolk, by Thatcher for the plaintiffs, and Dana for the defendant; and again, at Cambridge, by Otis and Thatcher for the plaintiffs, and Dexter for the defendant.</p> <p>The objections taken to the verdict by the counsel for the defendant were,</p> <p>1. That the agreement, for the non-performance of which the action is brought, was made between the subscribers thereto, and in consideration of their mutual promises; and, in truth, the same was never executed by the plaintiffs, but by C. Bulfinch and F. Wright, a committee of the selectmen, by which, it was contended, .those gentlemen might be bound personally, but not the plaintiffs; and therefore there was no consideration for the defendant’s undertaking.</p> <p>2. That the way had not, in fact, been widened according to the plan and proposal exhibited to the defendant at the time of his signing the agreement. [The plan came up in the case; and it was agreed that there was a variance of a few inches in the width of the lane, at one end thereof, from what the defendant might have contemplated from a view of the plan.]</p> <p>3. That the new part of the way, as widened, had not been recorded, and so, in fact, had not legally become á highway, or part of the lane.</p> <p>4. That the money being awarded in this case in part as a satisfaction to Henriy Sargent, one of the abutters, who was not a party to the submission or agreement, the defendant was not held to pay his proportion of that part.</p> <p>5. The award of the arbitrators was, that the defendant should pay the money awarded against him to certain other of the abutters, and not to the plaintiffs; so that the latter * acquired to themselves no right of action by virtue of [ * 449 ] the said award.</p> <p>The action being continued nisi for advisement, the opinion of the Court was delivered, at the following November term in Middlesex, by</p>

<p>A vote passed at a town meeting appointing a committee to “ settle the dispute ” between the town and the plaintiff, was held not to take the plaintiff’s demand out of the statute of limitations.</p>

<p>This ' was a writ of certiorari upon a conviction, before Aaron Everett, Esq., a justice of the peace for this county, of Smith, the respondent, for neglect of duty as a private soldier in the militia.</p> <p>The original complaint of the clerk of the company in which Smith was enrolled was for unnecessarily neglecting to appear on the 23d and 27th days of September, 1811, “for [#457] * company exercise,” and on the 3d day of October, 1811, “for inspection; ” and a fine of eight dollars was alleged to have been incurred by the said several neglects.</p> <p>Upon the hearing before the justice, the respondent rested his defence upon his inability to perform military duty; but it was proved, by the testimony of several witnesses, that he was able to do duty on the several days mentioned in the complaint. In further support of that defence, he also produced a certificate from the regimental surgeon, dated September 23, 1811, recommending that he should be excused from military duty for the term of four months; and it appeared that the said certificate had been shown to the brigadier-general, (without applying to the commanding officers of the company or battalion,) who endorsed thereon a discharge for four months from the said 23d of September.</p> <p>On the grounds that the certificate of the surgeon did not set forth the nature of the respondent’s disability, and that the same had not been presented to the commanding officer of the company or battalion, and because it appeared that the brigadier had not duly examined the case, the justice was of opinion that the said certificate was not sufficient to exempt the respondent from military duty. He therefore imposed a fine of two dollars for each of the two first delinquencies charged, of neglecting the company exercise, and four dollars for the neglect of appearance for inspection, making, in the whole, the sum of eight dollars.</p>

<p>This was a writ of certiorari to the Court of Common Pleas, issued on the application of the said Ellis, to bring before this Court the proceedings had upon the complaint of Timothy French against the said Ellis for overflowing the land of the complainant by erecting a mill-dam, under the “ Act for the support and regulation of mills.” (1)</p> <p>The complaint, which was entered in the Common Pleas, January term, 1806, alleged that the complainant, French, was “ seised of a certain tract of meadow land, situate in Needham, and on Charles River, containing about ten acres, more or less; ” that Ellis had erected a mill-dam, whereby the said land had been overflowed for six years then last past, to the annual damage of the complainant, fifty dollars; and prayed for a jury to appraise the yearly damage, &c., and how far the same flowing might be necessary, &c.</p> <p>Upon this complaint a warrant issued to the sheriff, to empanel a jury for the purposes aforesaid, who returned their verdict, “ that the respondent pay to the complainant the sum of seven dollars and fifty cents, as the yearly damage that has been done to his, the said Timothy French’s, land, in consequence of its being overflowed by the said respondent, Jonathan Ellis, by means of his raising the river; and the said respondent shall not raise the dam from its present state from the 10th of April to the 1st of September, each and every year, for the future, nor flow the water, by any other means, any higher than has been usual heretofore.”</p> <p>The said verdict being returned, allowed, and recorded, the Court adjudged that the said French should have his writ of execu tian against the said Ellis, for the sum of 52 dollars and 50 cents, “ being the amount of the yearly damages, for the time stated in the complaint, as assessed by the jury, to this 25th day of September, 1807, and costs taxed at,” &c.</p> <p>*The cause was argued, and judgment pronounced [ *463 ] on the certiorari, at the last October term in this county.</p> <p>After the Court had decided that the proceedings should be affirmed, Bigelow moved for costs to be taxed for French, who had been called on to maintain the judgment.</p>

This was a writ of entry, in which the demandants count upon their own seisin within thirty years, and upon a disseisin done to them by the tenant within that time. The demandants claim the land demanded, which lies in Boston, in the county of Suffolk, under the extent of two executions duly issued upon two judgments recovered by them against one John Coates, and extended upon the demanded premises, as his property.

<p>After the foreclosure of a mortgage made to two joint creditors, the mortgagees < are tenants in common of the land.</p>

<p>Trespass for taking and carrying away a quantity of iron, the property of the plaintiffs. The parties, October term, 1811, agreed to submit to the determination of the Court the following case: —</p> <p>The defendants justify as assessors for the district of Dover for the year 1808, and the plaintiffs compose a company known by the name of The Boston Iron and Nail Factory Company. Ruggles Whiting, who is one of the plaintiffs, is their known agent, and they are proprietors of, and liable to be taxed as non-residents, for the real estate set to “ Ruggles Whiting, agent for the Boston Iron and Nail Factory,” (by which name the plaintiffs had usually been assessed by the assessors of said district,) in the several tax bills, for the payment of which the property described in their writ was taken.</p> <p>The said tax bills, and the warrants annexed to them, were in legal form, and were committed to Henry Tisdale, collector of the said district, by the defendants; and the said property was taken by said Tisdale. The grants of money were duly made, and for purposes authorized by law.</p> <p>At a legal meeting of the inhabitants of said district, Jesse Draper was chosen clerk of said district for the year 1808; but the only record that the oath was duly administered to him, was originally the addition of the word “ sworn ” after the record of the choice ; and since the commencement of this suit, the following words have been added by the present clerk of said district, who is the same person, viz.: “ into office by the moderator in said meeting, no justice of the peace being present.” At the same meeting, the said Jesse Di'aper, not appearing to be qualified as clerk of said district, except as aforesaid, made the following entry in the district book, viz. : “ Chose Jonathan Battelle, Ephraim, Wilson, Jun., and Benjamin Guy, Jun., assessors,” and added the words,</p> <p>“ all sworn into office; ” * but after the commencement [ * 478 ] of this suit, the said Jesse added the following words to the record, viz.: “ by the clerk of said district on the evening of the day on which they were chosen.” But paroi evidence exists that the said Jesse Draper was sworn as clerk of said district by the moderator in open meeting, no justice of the peace being known to be present; and that the said Jesse Draper administered the oath in due form to the said assessors, on the evening of the day on which they were chosen. The invoice filed in the case, and copies of the several assessments, were duly filed in the office of the said Battelle, Wilson, and Guy, acting as assessors, prior to the commitment of the said tax bill and warrants to the said Tisdale for collection, and have been constantly and usually kept there.</p> <p>Now, if the Court should be of opinion that the said Jesse Draper is legally authorized to amend the said record for the year 1808 in manner aforesaid, or that paroi evidence is admissible to prove that the oaths of office were duly administered to the said clerk and assessors for the year 1808, or that the record under the circumstances aforesaid is sufficient evidence of these facts; and, furthermore, if the Court should be of opinion that the said invoice is in due legal form, and that the taxes on the property of the plain tiffs could be legally set to the said Ruggles Whiting, agent as aforesaid, and not make the defendants trespassers by the taking aforesaid, — then the plaintiffs agree to become nonsuit.</p> <p>But if the Court should be of opinion that the said Jest e Draper was not authorized to amend the record as aforesaid, and that paroi evidence is not now admissible to prove that the said clerk and assessors were sworn in due form1, and that the record, under the vircumstances aforesaid, is not sufficient evidence of these facts, or that the said invoice is not sufficient to satisfy the requirements of t.he law, or that the said taxes could not be legally set to the said Ruggles Whiting, agent as aforesaid, without making the defendants trespassers by the taking aforesaid, — then the de- [ * 479 ] fendants * agree to be defaulted, and that judgment be rendered for the plaintiffs for the sum of 67 dollars 20 cents damage.</p> <p>[The invoice made by the assessors, and which came up in the case, contained a column of the names of all persons taxable, and in a separate column, headed “ Real Estate,” was contained in figures what was understood to be six per cent, upon the valuation made by the assessors of the real estate of each person liable to be taxed therefor. The particular assessment complained of in this action was stated thus : “ Ruggles Whiting, agent for Boston Nail Factory, 480 dollars.”]</p>

<p>To entitle a town, which has supported a pauper belonging to another town, to recover an indemnification, it is not necessary that the pauper be actually resident in the town at the time of giving notice in the town in which he has a legal settlement It is sufficient that he is then supported at the expense of the town so giving notice.</p>

<p>An assignee of a chose in action, in order to avail himself of the assignment, in case the debtor should be summoned as the trustee of the assignor, must notify the debtor, and exhibit to him the evidence of the assignment, that the debtor may be able to disclose the whole matter to the Court.</p> <p>A lessee, who has covenanted to pay his rent quarterly, can be held as the trustee of the lessor for so many quarters’ rent only as are due by the covenant at. the time he was summoned.</p>

Assumpsit for money had and received by the defendant to the use of the plaintiff. The cause was tried on the general issue before the present chief justice, at the sittings here after October term, 1812.

This was an action of entry sur disseisin, and was tried on the general issue, before the present chief justice; from whose report of the trial, it appears that the demandant’s title was under the levy of an execution upon the premises demanded, to satisfy a judgment regularly obtained by him against one Samuel Haynes, who was formerly seised of the land.

<p>This was an action of trespass, for breaking and entering the close and dwelling-house of the plaintiff, and carrying away his goods, by the defendant, and converting them to his use, &c.</p> <p>The defendant pleaded, as to the force and arms, that he was not guilty; and as to the residue, a justification under mesne process sued out by the defendant against the plaintiff; by virtue of which the defendant entered the house, took the goods, &c.</p> <p>The plaintiff, in his replication, acknowledges the issuing of the said original writ; the delivery of it to the sheriff, * with written directions endorsed thereon, directing [*501 ] the sheriff to take the goods of the now plaintiff; and that the sheriff, by direction of Shed, and by color of the said writ, took the goods, and returned the writ according to the precept thereof; but he says further that, at the court to which the said writ was returned, he pleaded, in abatement thereof, that Shed had, before the suing out of the same, sued out another writ for the same cause of action, returnable to the same court, by virtue of which he had caused Hayden’s goods to be attached, to the value of 2000 dollars ; and that such proceedings were had upon the said plea, that the said writ and declaration were abated, and the said Hayden had judgment for his costs.</p> <p>To this replication the defendant demurred generally, and the plaintiff joined in demurrer.</p>

<p>Where the defendant, m an action for money had and received, has fraudulently obtained or wrongfully detained the plaintiff’s money, he is chargeable with interest from the time of his so obtaining or detaining the same.</p>

<p>This was a writ of entry, in which the demandant counted upon his own seisin of six several parcels of land within thirty years, and a disseisin by the tenant.</p> <p>The tenant pleaded the general issue, which was joined, and tried before Jackson, J., at the sittings here after the last November term; and a verdict was taken for the demandant by consent, subject to the opinion of the Court upon the following case: —</p> <p>One Israel Smith was seised of the demanded premises in fee, and died so seised in 1802, leaving no issue, but leaving four brothers and sisters, of whom the demandant is one. The demand ant claims only one undivided fourth part of the lands described in the count.</p> <p>The tenant claims to hold the premises in virtue of an assignment thereof hereafter mentioned, made by the judge of probate for this county.</p> <p>On the 6th of March, 1804, the said judge of probate awarded and issued a commission, in the form usually adopted for the partition of the estate of an intestate among his children, authorizing the commissioners therein named to appraise all the real estate of the said Israel Smith, and to divide the same among his children, or to assign and settle the whole among one or more of said children, as it would best accommodate them, without prejudice to the whole.</p> <p>The said commissioners were sworn, on the 29th of said March, before a justice of the peace, in the manner stated in l * 508 ] * his certificate endorsed on said commission; and after-wards made their return on said commission to the said judge of probate, which was accepted by him.</p> <p>In this return, they appraise the six parcels of land described in . the writ in this case ; they certify that the deceased left no children ; but left the present demandant, his brother, and three sisters, of whom Lucy, the wife of the tenant Benjamin Rice, was one ; and they assign the whole of said lands to the' said Benjamin Rice and his said wife, they paying to each of the other heirs the sum of 531 dollars 51 cents, being one fourth part of the said appraised value The two other sisters certified their assent to this assignment.</p> <p>The said judge of probate thereupon, on the 19th of June, 1804, decreed that the whole of said estate should be assigned to the said Lucy, wife of the tenant, she or her said husband, or her heirs, executors, or administrators, paying to each of the said other heirs respectively the aforesaid sum, on the 9th of April, 1805, with interest from the 9th of April, 1804.</p> <p>There was no evidence that any notice had been given to the demandant of these proceedings of the commissioners, and of the judge of probate; and no agent or attorney appeared therein for him; and it is agreed that he was at that time out of the commonwealth. The demandant never certified his assent to the said assignment, nor did he ever demand of the said Benjamin Rice, or his wife, the said sum of 531 dollars 51 cents, so awarded to him; and that sum was never paid by the said Rice, except in the manner hereinafter mentioned.</p> <p>At the Court of Common Pleas for said county, in December term, 1804, the inhabitants of the town of Sudbury recovered judgment against the said Peter Smith, and the said Rice as his trustee, for the sum of 1060 dollars; and upon the execution issued thereon, the said Rice paid 515 dollars 94 cents, by giving his bond for that sum to the treasurer of the town of Sudbury; and the said creditors remitted * the residue of said judgment, [ *509 J and the said execution was returned satisfied. The remainder of the said sum of 531 dollars 51 cents was paid by said Rice on another judgment and execution, in behalf of another creditor, against him as trustee of said Peter Smith.</p> <p>If the Court should be of opinion, upon the facts reported by the judge, that the demandant was not entitled to recover in this case, the verdict was to be set aside, and a verdict entered for the tenant, &c.</p>

<p>In extending an execution upon real estate lying in different parts of a county, different appraisers may be selected and employed.</p> <p>In the return of such an extent, a reference to deeds upon record may be a sufficient description of the lands. So it is enough if the sheriff return that he has delivered possession, instead of seisin, of the lands. And it is not necessary for him to certify that there was not personal estate, whereof the execution might have been satisfied.</p>

<p>This was an action of trespass quare clausum fregit. The first count in the declaration set forth that the defendant, on the 10th of September, 1811, and on divers other days, &c., broke and entered the plaintiffs’ close in Newton, and overturned and destroyed a small building thereon, broke down and removed a gate and fence, and ploughed up and subverted the soil, &c. The second was a general count for breaking and entering another close in Newton.</p> <p>The defendant pleaded, 1st. The general issue to the whole declaration, which was joined; 2d. To the first count, that the building, and the fence and gate, were on his own close, adjoining that described in the first count; and that he removed them, &c. To which the plaintiffs replied, traversing that they were on his close, and tendered an issue, which was joined. To the second count, the defendant pleaded, secondly, that the place in which, &.C., was his own close. The plaintiffs traversed this fact, on which issue was also joined.</p> <p>These several issues were tried at the sittings here after the last November term, before Jackson, J., and a verdict was found on all of them for the plaintiffs; the judge stating, in his report of the trial, that the only question in the case was, whether the plaintiffs had such a possession of the close mentioned in the first count, as would entitle them to maintain this action.</p> <p>As to this point, it appeared that, in May, 1812, one Hooker occupied the said close, and lived in the dwelling-house thereon, having hired the same of the plaintiff by a paroi lease not put in writing, and that he continued so to occupy until November, 1812.</p> <p>The defendant overturned the said small building in May, [ * 520 ] 1812, while the premises * were so in the possession of Hooker; and the building was soon after replaced in its former situation. In June, 1813, the defendant again overturned the same building, and removed it a few rods, leaving it on the plaintiffs’ land, and at the same time took up the fence and gate, and removed them off the land, and ploughed up and subverted the soil.</p> <p>On this evidence, the judge directed the jury, in case they were of opinion for the plaintiffs on the other points in the case, to find a verdict for the plaintiffs; and the verdict being so returned, the defendant moved for a new trial on account of the said direction.</p>

This was an appeal from a decree of the judge of probate for this county, disallowing an instrument offered by the appellant, purporting to be the last will and testament of Abigail Starr, deceased. [ * 528 ] * An issue was formed for the jury upon the sanity of the supposed testatrix, at the time of her making the said supposed last will; and after the examination of the subscribing witnesses, and other testimony in support of the will, the appellant offered the Rev. Mr.…

The petitioners claimed a-part of a certain tract of land in Watertown, in this county; their right to which was submitted to the decision of the Court upon the following facts : — John Cook, late of said Watertown, on the 9th day of August, 1792, being seised in fee of the land described in the petition, made his last will and testament, and therein devised as follows : — First.

<p>A claim of a right to enter upon the land of another, to repair a dam and embankment, necessary to the working of a mill, and originally erected with the consent of the owner of the soil, cannot be maintained but by showing a grant, or a prescriptive right</p>

<p>A soldier m the militia, prosecuted for not attending a military muster, may give evidence of his unfitness and inability to support tibe fatigues of such a muster; although he has not applied to his commanding officer for an excuse within eight days after the muster.</p>

<p>Assumpsit for a seaman’s wages against the defendant, master of the ship called the Volant.</p> <p>The parties submitted the action to the decision of the Court upon certain facts agreed.</p> <p>One Francis Moreal, an indented apprentice to the plaintiff, with his consent, shipped as a seaman on board the said ship, of which the defendant was master, on the 14th of January, 1812, foi a voyage to Europe and back to the United States, at the monthly wages of twenty-one dollars.</p> <p>The ship sailed from Boston, and on the 28th of March, 1812, arrived at Bayonne, in France, with her cargo, in safety. On the 16th of April, her outward cargo was unladen and completely discharged, on which day the master commenced loading with brandy for a return cargo, and on the 18th of May had laden on board 400 pipes of brandy. The ship was detained from this time to'the middle of September, waiting for a license from the emperor to depart with her cargo. The license being then obtained, and the lading completed, the ship was ready to sail on the last [ * 546 ] day of * September; but was detained by adverse winds and tides until the 5th of November, when she sailed from Bayonne, bound to Boston. In attempting to go to sea, she struck the bar, which obliged the master to take out part of her cargo, and to return to Bayonne to repair, where she was detained, partly by unfavorable winds and tides, and partly in making repairs, until the 12th of February, 1813, when she sailed for Boston, and on the 26th of March following was captured by a British vessel of war, and sent to Halifax, where she was afterwards condemned, with her whole cargo, as lawful prize, and thereby the ship, freight, and cargo, were wholly lost to the owners thereof. One month’s advance wages were paid to the plaintiff before the ship sailed from Boston, and sixty-five dollars more were paid him in France on-account of the wages due on the said voyage. The plaintiff’s said apprentice continued on board, and performed his duty as a seaman during the voyage, and until the ship was captured as aforesaid.</p> <p>If, in the opinion of the Court, the plaintiff was entitled to recover upon these facts, it was agreed that judgment should be rendered in his favor for such sum as should appear to the Court to be due to him; otherwise, that the defendant should have judgment for his costs."</p> <p>The cause was argued at the last March term in Suffolk, by French for the plaintiff and Prescott for the defendant.</p>

<p>This was a special action of the case, in which the plaintiffs allege that the defendants, on the 12th day of March, 1810, by their deed of that date, in consideration of 1050 dollars paid them by the plaintiffs, released to them all their, the defendants’, right in certain parcels or lots of land in Bridgeton, in the county of Cumberland, particularly described in the declaration, and also all the land in said Bridgeton which descended to them from their late father, Thomas Poor, deceased, which had been at any time sold at vendue for taxes, with the appurtenances, &c.; and the said defendants covenanted with the plaintiffs, that neither they, nor any other person claiming under them, should or could, by any means, have or claim the said released premises, or any part or parcel thereof; and on the 28th day of May, 1810, by another deed, the defendants constituted the plaintiffs their attorneys, in the name of the plaintiffs, to commence and prosecute any actions to recover possession of the said lands, and in and by said deed agreed to ratify whatever the plaintiffs, as such attorneys, should do in the premises.</p> <p>And the plaintiffs, confiding in the said deeds, *com- [ *550 ] menced actions, in the names of the defendants and others, for the recovery of possession of certain of the said lots or parcels of land, and expended large sums of money in procuring evidence and in prosecuting said actions; and should have recovered possession of the said lots; but the defendants, contriving to injure and defraud the plaintiffs in that behalf, on the 28th of September, 1811, by their deed, in their capacity of executors of the last will of their said father, Thomas Poor, conveyed all the rights of their said father in the same lots to Thomas Robinson and others, and their heirs and assigns; and by means thereof defeated the actions aforesaid, barred the plaintiffs from recovering possession of the said lots of land, and subjected them to the payment of large sums of money, by means whereof they deceived the plaintiffs, and defraud ed them of divers large sums of money.</p> <p>The action was submitted to the decision of the Court upon th* following facts: —</p> <p>The defendants, with others, heirs at law of Thomas Poor, de ceased, on the 12th of March, 1810, in consideration of 250 dol lors, by their deed conveyed to the plaintiffs all their right to certain lands in Bridgeton, which descended to them from the said Thomas, and which had been sold at vendue for taxes, being about 1000 acres, the parties then knowing that the title to said lands was disputed. The said Thomas was disseised thereof in his lifetime, and continued disseised until his death, at which time, and until the making of said deed, Thomas Robinson, and sundry others named,, were in possession, claiming by an adverse title. The plaintiffs when they purchased, expected to have a number of lawsuits with the persons in possession, but had no doubt of recovering, and ex pected a profit of 3000 or 4000 dollars by their bargain.</p> <p>The said Thomas Poor, by his last will, ordered all his outlands to be sold by his executors, and the money thence arising to be appropriated to the payment of his debts, and the remainder, if any, to be divided among certain of his children; and made the defendants his executors.</p> <p>[*551 ] * The defendants, with others, heirs of the said</p> <p>Thomas Poor, made a letter of attorney, under their hands and seals, dated March 28, 1810, empowering the plaintiff# to sue for the possession of the said lands in the names of the con stituents; and the plaintiffs executed a bond in the penal sum of 2000 dollars, to indemnify the defendants and the other constituents from all costs which might arise in such suits.</p> <p>The plaintiffs commenced suits, in the names of their said constituents, against the persons in possession of the said lands; and pending the same suits, the defendants made a deed to the tenants in possession, purporting to convey to them, in their said capacity of executors, and in virtue of the said will, all the right of which the said testator died seised in the said lands.</p> <p>The said tenants in possession claim the said lands under a sale at vendue for taxes, the validity of which title hath not been settled ; and they also defended in virtue of said deed from the defendants as executors ; and in said suits, it was determined by this Court that the said testator, not being in possession, could not devise the said lands, nor the right to recover them; and that the said executors had no right to convey in their said capacity; but that their said deed operated as a release of the personal right of the said executors, and thereby the said actions were defeated, and the tenants recovered their costs.</p> <p>If, upon the facts stated, the Court should be of opinion that the action was supported, it was agreed that the plaintiffs’ damages should be assessed by a jury, upon such principles as the Court should direct; otherwise, the plaintiffs were to become nonsuit, with costs for the defendants.</p> <p>The cause was argued at the last November term in this county</p>