Volume 12 — Massachusetts Reports

This was an action of debt, brought upon a recognizance acknowledged by the defendant before a justice of the peace, conditioned for his appearance in the Municipal Court for the town of Boston, as a witness for the Commonwealth. The declaration alleges the return of the recognizance, the default of the defendant, and that the recognizance was duly removed and filed of record in the Court of Common Pleas, before the commencement of the action.

<p>Indebitatus Assumpsit on an account annexed to the writ, with the usual money counts, to recover the balance due to the plaintiff for disbursements and expenses on the ship, belonging to the defendant, a merchant at Wiscasset, and which was addressed to the plaintiff, a merchant living in Charleston, South Carolina.</p> <p>The cause was tried, November term, 1813, before the present Chief Justice, from whose report it appeared that the several items of the account were well proved ; but certain charges on account of the sickness, death, and funeral of Whitmarsh, the master of the ship, were disputed as not properly made against the defendant.</p> <p>Soon after the arrival of the ship at Charleston, Captain Whitmarsh was seized with the smallpox, of which he soon after died. When taken sick, he went to a boarding-house, and never returned to the ship, the care of which appeared to be in the plaintiff. He was attended during his sickness by two physicians ; whose bills, as also the expenses of his board and funeral, the plaintiff paid ; all the said charges being proved to be customary and reasonable. It was also proved by the testimony of a Mr. Crocker, a merchant of Charleston, that it was the practice of merchants there, to whom vessels were consigned, if the master fell sick, to supply him with every thing necessary, to pay the expenses incurred, with funeral expenses, and to charge them to the ship.</p> <p>If the said expenses were a proper charge in this action, the verdict, which was for the plaintiff, was to stand ; unless the Court should be of opinion that the lawful interest of South Carolina, which is seven per cent., ought to have been allowed by the jury ; in which case the verdict was to be altered so as to give that interest. But, if the Court should be of opinion that the charges attending the sickness and death of Captain Whitmarsh ought not to have been allowed, the verdict was to be altered, by deducting the amount [*5] * of those charges from the damages found, and judgment to be entered accordingly.</p>

<p>Notice given to the indorser of a promissory note payable at a bank was held sufficient, being given on the day it fell due, although it stated the note to have fallen due three days before, and although the name of the promissor was mistaken in the notice ; it being in evidence that the indorser was liable on ne other note payable at such bank.</p>

<p>Since the treaty of 1794, between the United States and Great Britain, alien enemy cannot be pleaded in bar of a personal action upon contract, brought by a British subject, during a war between the two countries ; the right of action being only suspended during the existence of hostilities.</p>

<p>The owners of a private vessel of war, valued by them at $ 25,000 dollars, divided the same into twenty-five shares; and, having paid to their agent the said amount, were informed by him that the money was spent, and had proved insufficient to fit out the vessel for sea. They directed him to dispose of additional shares, and get her to sea immediately. Shares could not be sold. He. advanced his own money, and sent her to sea. The owners were held liable to reimburse his expenditures over the $ 1,000 per share.</p>

Assumpsit upon the defendant’s indorsement of the fallowing promissory note, namely; “ Boston, March 23, 1809. For value received, I promise to pay Mr. Andrew H. Prince, or, order, on demand, the sum of two hundred and ninety-eight dollars, with in terest until paid. Stephen D. Turner.” Indorsed thus, “ Boston, March 25, 1809. I guaranty the payment of this note within six months.

<p>Where a mortgage is made to an infant having a legal guardian, and the moltgagor or his assignee would redeem, it is proper to join the infant and the guardian in a bill brought for that purpose. The Court will, however, appoint some other suitable person, who has no interest in the business, as guardian to the infant, to defend his interest in the suit.</p>

<p>An action lies against one who fraudulently induced the plaintiff to enter into a general copartnership with one who was the insolvent debtor of the defendant, and afterwards induced the copartners to assume all the debts due him from his said insolvent debtor, and then seized the plaintiff’s property in satisfaction of the said debts; — and in such action the insolvent debtor is a competent witness for the plaintiff.</p>

The original action was in case against the defendant, late sheriff of the county of Hancock, for a false return upon an exe [* £3 ] cution.

[* 25] *This was an action of debt upon a judgment recovered in the State of Vermont in February, 1806. The defendant pleaded four several pleas in bar. The second plea alleges, that, when the process in Vermont was served on him, and when the judgment was rendered, he was an inhabitant of Newton, in the county of Middlesex, and Commonwealth of Massachu setts, and not an inhabitant of any place in the State of Vermont.

<p>This action was brought to recover a moiety of certain tenements, which the defiiandant claims, as having been mortgaged by one Edmund Haynes, and as having come to his hands by sundry mesne assignments, which are set forth in the declaration.</p> <p>The cause was tried upon the general issue before Jackson, J., at the last November term, in this county; when it appeared that the said Edmund Haynes, on the 30th of June, 1802, by his deed of that date, mortgaged the whole of the said tenement to Catherine Williams and Margaret Williams, to secure the payment of $500 to the said Catherine, and $1000 to the said Margaret, in one year from that date. The demandant, who claimed under the said Catherine, produced an office copy of the said mortgage deed ; and the tenant objected to its going in evidence to the jury ; but, it being admitted that the original deed was in possession of the tenant, who holds all the estate which the said Margaret had in the said tenements, the judge allowed the said copy to be used. The note for $500, given by Haynes to said Catherine with the mortgage, was produced by the demandant. It was not a negotiable note ; but had on *it the indorsement of the said Catherine, and [*27] also of the assignee hereafter named.</p> <p>The demandant then produced a deed of the said Catherine, dated December 22d, 1804, for assigning her interest in the premises to one John Williams. This deed was objected to by the tenant, as not sufficient and effectual in law, even if duly executed, to convey the interest of said Catherine, and as not comporting with the declaration. But the judge overruled the objection, and the deed was filed in the case for the consideration of the Court. It contains a condition that the assignment shall be void, and the said note for $500 shall be redelivered to the said Catherine, on the payment by her of $500, with lawful interest, to the said John within two years. One of the subscribing witnesses, being called to prove the execution of the deed, testified, that, the said Catherine being desirous to borrow some money, the said John Williams agreed to lend her about $500 for two years at the interest of twelve per cent, a year, and to take this assignment as security; that the said Catherine promised to repay him that sum, with the usurious interest, unless he should receive the money from the mortgage ; in which case he was to retain the sum lent, with said usurious interest, and to pay over the balance, if any ; that the said Catherine did not give to the said John Williams any note for the said money lent, nor any security, except the said assignment and Haynes's note, which she indorsed as before mentioned, with an order to pay the contents to the said John Williams, but without expressing it to be for value received. The demandant’s counsel objected to the admission of evidence of usury in said assignment, under this issue ; which objection was overruled.</p> <p>The demandant then produced a deed from the said John Williams to him, bearing date the 5th of February, 1806, acknowledged on the 19th of April following, and registered on the 17th of June, 1807. This purported to be an absolute conveyance to the demandant of all the interest of the said John Williams in the [*28] premises. One of the subscribing witnesses to * this deed was dead. The deposition of the other was taken, to prove the execution and delivery of the deed.</p> <p>The tenant contended, that this was not a bona fide conveyance, and that the testimony of the said subscribing witness did not prove the deed to have been delivered at the time when it was signed. And he produced evidence to prove that the demandant had not received the deed, and had no knowledge of its existence, until some time after its date, and after the attachment, hereafter mentioned, of the said Catherine as trustee of the said John Williams; also to prove, that, when the demandant received the deed, he took the estate in trust for the said John Williams, and was bound to account with him for whatever he should receive by reason thereof.</p> <p>The tenant then produced the said original mortgage deed ; also a deed bearing date July 15th, 1807, of the executors of the last will of the said Margaret Williams to John Heard, assignee of the said Haynes, who had been declared a bankrupt, purporting to convey to the said Heard all the interest which the said Margaret had in the premises ; also a deed, bearing date November 16th, 1807, of the said Heard, as assignee of said Haynes to the tenant, purporting to convey to him all his interest in virtue of the last-mentioned deed, and as assignee of Haynes. He then produced the record of a judgment of the Supreme Judicial Court in this county, at the November term, 1806, between one Abraham Tucherman, plaintiff, and the said John Williams, defendant, and the said Catherine, as his trustee. The original writ in that suit was served on the said Catherine on the 21st of March, 1806 ; and in her disclosure, made in that case, she stated the transactions above mentioned between her and the said John Williams, excepting that she did' not state the agreement to pay usurious interest; but she stated in her answers that she had notice of the assignment from the said John Williams to Hills after the service of the trustee process upon her, and before judgment was rendered against her, namely ; some time in the summer following, so far as appears by her said answers. * The said [*29 ] Tucherman recovered judgment against the said John Williams for $ 1451.47, and had execution against his effects in the hands of the said Catherine.</p> <p>On the 23d of January, 1811, the said Catherine, by her deed of that date, released to the tenant all her right in the premises, upon an agreement that he should pay the sum, due on said mortgage, to the demandant or to the said attaching creditor, whichever of them should prove to have a legal right thereto.</p> <p>The demandant produced a release from said Tucherman to the said Catherine, of the judgment recovered as aforesaid against her as trustee of the said John Williams, which release bears date on the 28th of January, 1811.</p> <p>The counsel for the tenant contended, that the assignment by Catherine Williams to John Williams was void in his hands, on account of the said usurious contract; and that the said conveyance to the demandant was not bond fide, and that he held the premises in trust for the said John Williams, so that the assignment was also void as to him ; and secondly, that, if the said assignment by Catherine Williams was not void on account of usury, the said attachment of the debt due from her to the said John Williams, and for which she mortgaged the premises to him, did, under the circumstances of this case, defeat the said conveyance by the said John Williams to the demandant.</p> <p>The judge, intending to reserve these questions for the consideration of the whole Court, instructed the jury, that, if the facts testified by the said witness respecting the agreement between the said Cath erine and John Williams were true, the said assignment by her to him was void, in his hands, on account of usury ; but that the same would not be void on that account, as against a bond fide purchaser and grantee of the said John Williams; and that, if the jury believed the facts so testified, and were also satisfied from the evidence that the said conveyance to the demandant was not bond fide, and that he held the premises in trust for the said John Williams, they should find a verdict for the tenant.</p> <p>[* 30] * As to the second point, the jury were instructed, that, if the said Catherine was legally bound to repay the money lent by said John Williams, as she was if the contract was not usurious, and if the other facts testified in that respect were true, and if the said assignment was only collateral security for that debt, then it was a debt attachable in her hands as trustee of the sa'd John Williams, and that the discharge of her said debt, oy means of said attachment, would defeat her assignment to the said John Williams, according to the condition therein contained ; and that in this case also they would find a verdict for the tenant.</p> <p>The jury returned a verdict for the tenant, which was taken subject to the opinion of the Court upon the foregoing report; and, if the Court should be of opinion that the demandant was entitled to recover, the verdict was to be set aside, and a verdict entered for the demandant.</p>

<p>Assumpsit for money had and received, money laid out and expended, &c.</p> <p>The cause was tried upon the general issue before the Chief Justice, at the last November term in this county, when the plaintiff proved that he, being a broker, and dealing in the exchange of bank notes and other mercantile paper, took from Henry Jackson, Esq., the defendant’s testator, ten thousand dollars to be used and employed in the aforesaid business by the plaintiff, on the joint account of himself and the said testator, and for their joint profit and advantage ; that for the capital thus advanced he gave two several promissory notes to the testator on interest; and it was agreed that he should settle his accounts, and pay over to the testator one half of the profits semiannually ; that, accordingly, the plantiff rendered his accounts for several years successively, and paid over the testator’s share of the profits, which were very large. This continued until the death of the said Jackson, when the connexion was * discontinued by his executor, who demanded of the plain- [ * 35 ] tiff the whole amount of the notes aforesaid, and interest from the last dividend. The plaintiff then stated to the executor, that he paid over the profits on the actual state of the accounts at the time of each dividend, without reference to any losses which might arise upon debts due to him on account of the concern, and offered to pay $8000, reserving the balance until an adjustment should take place, and the exact amount of loss be ascertained. This was refused by the defendant, who threatened him with a suit upon the notes ; to avoid which he paid the whole amount as above stated, and instituted this action to recover back the sum he had overpaid in the dividends, having regard to the debts supposed to be bad.</p> <p>At a former term, auditors were appointed by consent of the parties, who, having examined the books and accounts, reported the sum due to the plaintiff on account of bad debts and other losses ; and, their report having been read to the jury as evidence, and there being no evidence to impeach or contradict it, a verdict was returned for the sum so found to be due.</p> <p>The defendant’s counsel objected to the verdict ; — because, upon the evidence reported, the contract was usurious, and no action could be founded upon it; — also, because this action would not lie on account of the partnership subsisting between the plaintiff and the defendant’s testator.</p>

<p>This was an action of assumpsit, originally commenced in the Court of Common Pleas for the county of Nantucket, whence it came to this Court by appeal. In the writ, the defendant is named of the city of New York, and the plaintiff and the supposed trustees are called of Nantucket. * The sheriff returned [ * 37] a service on all the trustees, and also on Benjamin Whitman, Esq., as the agent of Barker, the principal defendant.</p> <p>At the first term of the Common Pleas, the defendant pleaded, in abatement of the writ, “ that the several supposed trustees are not, and never were, the trustees of the said Jacob, neve»- laving bad any goods, effects, or credits of him the said Jacob in their hands or possession ; nor had any goods or estate of him, the said Jacob, been attached by virtue of the said writ,” &c.</p> <p>To this plea in abatement the plaintiff demurred, assigning for cause, that the said trustees ought to have answered in court, whether they had any goods, effects, or credits of the said Jacob in their hands at the time of the service of the process upon them ; and that the want of such goods, &c., could not be pleaded in abatement by the said Jacob.</p> <p>Afterwards, at the same term, the several persons summoned as trustees came in and discharged themselves.</p>

<p>This action was case upon a promise to procure insurance, auu was tried upon the general issue before the Chief Justice at the last November term in this county.</p> <p>* The vessel intended to be insured was bound on a [_*41] voyage to St. Domingo, with letters of marque. She was owned by C. Coolidge Co., before the contemplated voyage ; but, with her cargo and outfits, was divided into ten shares, of which the plaintiff had agreed to take one share. The evidence of property in the plaintiff was contained in a certain certificate, signed by Coolidge fy Co., formed on a letter from the plaintiff to them of his assent to take one share, and also the books of said Coolidge Co., verified by their clerk, showing that the plaintiff had been charged with one tenth part of the value of the vessel and outfits. This evidence was objected to, it being admitted that Coolidge Co. then had the interest, which they had before assigned to the plaintiff, in themselves, in consequence of the insolvency of the plaintiff.</p> <p>The plaintiff wrote to the defendant in New York, requesting him to procure insurance to' the amount of $2500 on this vessel, &c., which letter was received by the defendant. The letter was dated at Middleton, in Connecticut, April 21st, 1813, and states, that the vessel would sail as soon as the frigates, “ calculating to take advan toge of their protection,” there being then frigates in the harbour of Boston, destined for sea.</p> <p>The vessel had sailed on the 19th of April, and was captured on the 20th, the frigates not having sailed. There was no evidence that the plaintiff knew that the vessel had sailed, he not being in Boston.</p> <p>The jury were instructed, that this was in the nature of a representation, which was material ; and that a policy of insurance, if effected according to the desire of the plaintiff in his letter of the 21st of April, would not have been binding on the underwriters ; and upon this direction a verdict was returned for the defendant. If this direction was wrong, and the evidence above stated, of property in the plaintiff, was sufficient, the verdict was to be set aside : otherwise, judgment was to be entered on the verdict.</p>

<p>Where a recovery was had upon a writ of formedon, and the tenant had, before such recovery, demised the premises by indenture, the lessee covenanting tc pay rent; and the lessee afterwards assigned the lease, the assignee covenanting to pay the rent to the lessor ; and the lessee had been compelled to pay rent accruing after the assignment and before the recovery against the lessor, the assignee was holden to indemnify him for such payment.</p> <p>Where there are covenants by a lessee to pay rent, the lessor may have his action on the convenant, notwithstanding an assignment of the lease by the lessee, and an acceptance of a portion of the rent by the lessor from the assignee ; but in such case debt for the rent in arrear will not lie for the lessor against the lessee.</p>

<p>Where the parties to an action have entered into a rule of court, submitting the action and all demands to certain referees, with an agreement that the referees may proceed ex parte, and that judgment shall be entered on their report; neither party can rescind such rule; nor can the plaintiff discontinue the action, pending the rule.</p>

<p>If an indorser of a negotiable promissory note, with the knowledge that no demand has been made on the promissor, undertakes to pay the same notwithstanding, he is holden; and the jury may presume such knowledge from circumstances in evidence.</p>

<p>One general partner has authority to sell a ship belonging to the copartnership ; but where such a sale was made while the ship was abroad, and under the management and control of another partner, and the partner abroad sold the ship for the purpose of paying a copartnership debt, and delivered possession immediately to the purchaser ; such sale and delivery abroad, though posterior to the other, but being made without notice of that other, was holden to transfer the property in the ship, notwithstanding the prior sale at home.</p>

<p>A sale by one assuming to be an agent, but not having sufficient authority to make it, may be rendered valid by a subsequent act of the owner, amounting to an adoption of it.</p>

<p>This was an action of trespass upon the case, the plaintiff’s declaration containing three counts.</p> <p>The first count sets forth, that the plaintiff was seized, on the 1st day of January, 1807, of certain closes, with the dwellinghouses thereon, situate in Boston, and described in the declaration ; and that there was a certain well and pump in a certain close of the defendant, and “ that, from the time whereof the memory of man to the contrary does not exist, the plaintiff and those under whom he holds his said closes, and whose estate he has, used at all times freely ‘o use the said well and pump, and to draw and take water from said •veil by said pump ; the plaintiff, and those whose estate he holds, paying for the repairs of said pump, and the cleansing of said well, their proportion, when thereto requested ; ” and that the said Elisha, and those whose estate he had, paid accordingly ; that the well was in a good state of repair, * and well cleansed ; and [ * 66 ] that the defendant, on the said first day of January, cut up and removed the pump, and enclosed the well, and prevented the plaintiff from taking water therefrom.</p> <p>The second count alleges, that the plaintiff was seized of a certain close in Boston; and, as in the first count, that he and those whose estate he holds used to take water from the well in the defendant’s-close ; and that the defendant shut up and enclosed said well from, the said first of January until the date of the plaintiff’s writ.</p> <p>The third count alleges, that the plaintiff was, on the first of January, 1807, seized of a close in Boston ; and that he, and those-under whom he holds, used to take water from a well situated in the-defendant’s close ; and that the defendant had erected a building over said well, and deprived the plaintiff of the use thereof. The original: writ was dated the 16th of June, 1808.</p> <p>The general issue being joined, the action was tried upon review nefore the late Chief Justice Parsons, at the sittings here after March term, 1813.</p> <p>The plaintiff, to maintain the issue on his part, produced in evidence the division of John Marshall's estate among his heirs on the 28th of May, 1733 ; also a division among the heirs of Thomas Marshall, on the 22d of November, 1746.</p> <p>It was proved that the defendant’s title was derived from Christopher Marshall, and that the well was within the land set off to him. The plaintiff’s title was proved to be derived from the other heirs of the said Thomas Marshall. The assignment to Christopher Marshall was, “ reserving the privilege of well and pump to the children and heirs hereafter mentioned.” The assignment to the other heirs of Thomas Marshall was, “ with a right and privilege in the well and pump, they paying at all times hereafter their proportional part of the charge in the maintenance of said well.”</p> <p>* The plaintiff proved that the well had existed, and was [ * 67'] used, more than sixty years before the commencement of the action ; and that Samuel Bangs, who owned the estate now owned by the defendant, made some repairs of the well and pump in the years 1785 and 1786 ; since which there was no evidence of any repairs having been made.</p> <p>The defendant proved, that, when he purchased the land in which the said well and pump were, namely, on the 30th of October, 1801, the pump had been suffered to decay, and could not then be used; that the water was bad and unfit for drinking ; and that the occupants of the houses owned by the plaintiff had used other wells and pumps in the neighbourhood, to get water to drink and for cooking.</p> <p>The plaintiff did not offer any evidence, to prove that the well and pump were in good repair and well cleansed on the 1st of January, 1807, as alleged in his first count. But the defendant proved that the well and pump were not in such repair as that water could be had at said well and pump at any time after the purchase of the premises by him, or for some time before.</p> <p>Upon this evidence the jury were instructed by the judge who tried the cause, that the purchase of the estate by the defendant, incumbered with the right of those persons who claimed under other heirs of Thomas Marshall, as set forth in the deed of partition, required of the defendant to keep the well and pump in repair, notwithstanding the same were out of repair and unfit for the purpose of drawing water when he purchased, without any previous demand upon him by the plaintiff or his tenants ; and that the jury were to estimate the damage which the plaintiff had sustained by the defendant’s neglect to make repairs.</p> <p>The jury returned a verdict for the plaintiff, and assessed his damages at $100. The defendant contended, that the words of the partition deed, dated November 22d, 1746, did not oblige him to repair the well and pump, they being in a ruinous condition at the time of his purchase, the pump incapable of being repaired, and the water in tlie well being known to be bad and unfit for [*68] family *use; that he, being disposed to abandon any right or benefit which he might have from the well, was not bound to repair the well and put a pump into the same, without the request of the tenants of the estate to which the said well and pump had been made appurtenant; and that, no such request having been made, the defendant had a right to presume that the said well and pump had been abandoned by the common consent of the parties interested in them ; and the jury ought to have been so instructed; and that, without such request and notice to repair, made on the part of the plaintiff, he was not entitled to maintain this action.</p> <p>If the Court should be of opinion that the plaintiff’s evidence did not support either count in his declaration, or that the direction of the judge to the jury was erroneous, a new trial was to be granted otherwise judgment was to be rendered on the verdict.</p>

<p>An insurance was for $ 11,000 on certain specific articles, valued in the policy at $ 11,400, at and from the United States to Europe, for the purpose of disposing of the outward cargo and procuring a return cargo, and at and from thence to the port of discharge in the United States. — A memorandum was attached to the policy, in the following words; “ It is understood that the risk is to attach to the proceeds of the articles mentioned in this policy in the return cargo.” The ship arrived at Cronstadt, where, the markets being dull, the cargo was consigned to a mercantile house there, and a return cargo taken on credit, before the said outward cargo was sold. A total loss happening on the return voyage, the underwriters were holden liable. But it was holden necessary that it should appear that the return cargo was intended as a substitute for the outward cargo, and might fairly be considered as the proceeds of the same.</p>

[*78] *The plaintiff declared in assumpsit, as indorsee of a promissory note, dated February 1st, 1809, in which the defendant promised one Jeremiah Clark to pay him, or his order, $2500, in four months, with interest, and on an indorsement by Clark to one Daniel Carlisle, who indorsed it to the plaintiff.

<p>This was an action of assumpsit brought upon a policy of insurance upon the brg Eliza and cargo, underwritten by the defendant, in which the plaintiff declares for a total loss.</p> <p>The cause was submitted to the opinion of the Court upon the following facts.</p> <p>The policy declared on was executed on the 31st of January, 1810, and states, that “ Mr. Samuel Davis, or as agent, doth make insurance, and cause to be insured, lost or not lost, the sum of $ 3000 on the hull and appurtenances of the brig Eliza, and $ 1000 on her cargo from Bath to Cork.” The policy is in the usual form, and at the foot thereof is the following memorandum, namely, “ Should this vessel and cargo be insured in England, in time to attach, this policy is to be cancelled on the assured’s producing a copy of the policy, or the original, and paying one half per cent.”</p> <p>The brig Eliza sailed from Bath, for Cork on or about the 17th of December, 1809, and has not been heard of since. It is believed that she foundered at sea ; and an abandonment was made in due season. The vessel and cargo were owned by the plaintiff, John Richardson, and Chapin * Weston ; one eighth part [*81] being the property of Weston, and the remainder the property of Richardson and the plaintiff. The insurance was made for the benefit of Richardson and the plaintiff, and they were, from the commencement of the risk until the time of the loss, jointly interested in the vessel to the amount insured thereon, and in the cargo to the amount of $707.31. On the 5th of March, 1810, the agent of said Davis and Richardson in London caused insurance to be made on the vessel to the amount of £900 sterling, “ from Bath to a port of discharge in the United Kingdom, with leave to touch and stay at Fayal, or any place in Spain or Portugal.” The assured have received nothing from the underwriters upon this policy. Neither the original policy underwritten in London, nor a copy thereof, has been produced ; nor the half per cent, paid .by the plaintiff, for the purpose of enabling him to vacate the policy declared on.</p> <p>When” the plaintiff applied for this insurance, he stated that he had given orders to the correspondent of himself and Richardson in London to effect insurance there ; but, in consequence of the uncertainty of his letters going to London, he wished a conditional insurance made here, and the memorandum relative to the same at the foot of the policy.</p> <p>It was also agreed, that, if the plaintiff had produced evidence that his order for insurance had been executed in London, his premium would have been returned bv the insurance broker, without reference to the date of said English policy.</p> <p>If, on these facts, the Court should be of opinion that the plaintiff was not entitled to recover, it was agreed that he should become nonsuit. If the Court should be of opinion that he was entitled tc recover for a total loss, the defendant was to be defaulted, and judgment to be rendered for a total loss on the policy and costs, deducting the premium note and one per cent. If the Court should be of opinion that the plaintiff was entitled to recover for a loss [*82] on the * cargo only, then the plaintiff was to have judgment for that loss and costs, and the defendant might file in offset certain specified premium notes.</p>

<p>Where the maker of a promissory note dies, and an administrator is appointed before the note falls due, a demand upon the administrator is not necessary, in order to charge the indorser, so that notice of the death and non-payment be duly given to him ; unless the maturity of the note happens more than a year after the appointment of the administrator.</p>

<p>A promissory note, whose days of grace expire on Sunday, must he demanded of the maker on Saturday, and notice given to the indorser accordingly.</p> <p>The known insolvency of the maker of a promissory note, for six months previous to and at the time of the making of the note, does not excuse the holder from a seasonable demand on the maker, and due notice to the indorser.</p>

<p>This was an action of trespass quare clausum fregit, and was submitted to the determination of the Court upon the following facts,, stated and agreed by the parties.</p> <p>John Peck, on the 22d day of November, 1800, being seized in his demesne as of fee, of thirty-eight sixty-fourth parts of the milli, with the land and appurtenances, described in the plaintiff’s writ, did, by his deed of that date, duly delivered, acknowledged, and recorded, “ in consideration of one thousand dollars, to be paid whenever the said deed should take effect, and not otherwise,” grant, bargain, sell, and convey to the said Welsh, his heirs and assigns, the same thirty-eight sixty-fourth parts of the said mill, land, and appurtenances ; “ provided, always, that said deed should not take effect, or be made any use of, until the said mill-pond should cease to be employed for the purpose of carrying any two mill-wheels ” ; and the said Peck did, in and by said deed, make the usual covenants for warranty and assurance of title to the said Welsh, his heirs and assigns.</p> <p>The said John Peck and his wife, together with Mary Gilman, by their deed, bearing date the 18th of March, 1804, duly delivered, acknowledged, arid recorded, did release, grant, bargain, sell, confirm, and quitclaim to the Boston Mill Corporation, all their right, title, interest, and estate in and to the same thirty-eight sixty-fourth parts of the said mill and appurtenances, subject to the terms and conditions contained in said Peck’s deed to the plaintiff; and the said Boston Mill Corporation, by virtue of the said deed, and of a deed from Benjamin Hichborn, entered in and upon the whole of the said mill, land, and appurtenances. The * plaintiff had [*94] notice of the several conveyances to the said corporation befoie the first day of Julv, 1812.</p> <p>On the first of July, 1813, the said mill-pond ceased to be employed for the purpose of carrying any two mill-wheels ; and the plaintiff afterwards, on the same day, tendered to said Peck said sum of one thousand dollars, who refused to accept it. The plaintiff afterwards, on the same day, entered upon the said premises.</p> <p>The defendants, on the 13th of said July, by order and consent of the said Mill Corporation, pulled down and carried away the said mill and appurtenances, as charged in the plaintiff’s declaration.</p> <p>If upon these facts the plaintiff was, in the opinion of the Court, entitled to recover, the damages were to be assessed by a jury ; if not, he was to become nonsuit, and the defendants to recover their costs.</p>

<p>Indebitatus assumpsit for money paid by the plaintiff for the use of the defendant ; and for money had and received by the defendant for the use of the plaintiff.</p> <p>The cause came before the Court upon a statement of facts made by the parties, and an agreement therein, that the Court should decide whether the plaintiff was entitled to recover any thing upon the facts stated in any form of action of trespass upon the case, and, if any thing, to what amount; and, as the opinion of the Court should be, the defendant was to be defaulted, or the plaintiff become non suit; and judgment be rendered in either case accordingly.</p> <p>The facts stated were in substance as follows. In October and November, 1810, the plaintiff and defendant made two bonds to the United States, in both of which Samuel Bridge, of the house of Barker & Bridge, was principal, and the plaintiff and defendant were sureties. These bonds were entered into at the custom-house for the port of Boston, to secure the duties upon certain merchandise, which had been imported by the plaintiff, but consigned to the said Bridge, entered by him, and taken into his possession, he being, with his partner, an auctioneer and commission-merchant.</p> <p>Upon making the bond, Bridge charged the plaintiff with the whole amount of the duties ; and when payment was made by the plaintiff, which was upon an execution in favor of the United States against all the obligors in the said bonds, he was a creditor to the house of Barker Bridge, to a greater amount than the whole sum for which the said bonds were given, and without any security.</p> <p>* Savage, the co-surety and defendant in this action, was [*99] partner in the house of Rice & Savage, who were, at the time the bonds were made, indebted to the house of Barker Bridge in a larger sum than the amount of the said bonds. Before the bonds became due, the two houses of Barker & Bridge and Rice & Savage became insolvent ; and the former house assigned their demands against the latter to Robert G. Shaw, without any reservation on account of ,these bonds, or any covenant or engagement on the part of Shaw to pay them. Shaw commenced a suit against Rice & Savage, in the name of Barker &r Bridge, and. having obtained judgment for the whole sum due, entered into bond with the judgment debtors, not to enforce the judgment within two years, for so much thereof as should be equal to the whole amount of bonds given by them, on account of Barker Bridge, to the United States; and also to indorse on the execution, which might issue on said judgment, whatever sum they should, within the said term, pay on account of such bonds.</p> <p>Afterwards Barker fy Bridge assigned all their remaining property to certain of their creditors, in trust, among other things, to pay all nonds to the United States, on which they, or either of them, were holden; and the said creditors executed their trust, as far as they had obtained funds from the effects assigned to them. But a large amount remained unpaid, which they did not expect to be able to discharge from said effects.</p> <p>Since the execution of the said bonds, and before the same became due, Rice fy Savage assigned all their property and effects to such of their creditors as had agreed to discharge them from their debts, comprehending most, but not all, of the said creditors ; retaining, however, by the agreement of the said creditors, property which was specified, and the value of which was more than $7000, for the purpose of paying and discharging all revenue bonds, on which they, or either of them, were holden ; with a view to discharge a [*100] lien supposed to exist in favor of the United * States upon the effects assigned. And they covenanted to apply the property so retained to that object. Among other bonds, the payment of which was so provided for, were those, for the payment of which by the plaintiff he commenced the present action.</p>

[*104] * This was a writ of entry sur disseizin, and was tried upon the general issue, November term, 1813, before the present Chief Justice ; from whose report of the trial it appears, that, before the first day of February, 1809, Andrew Dexter was lawfully seized in his demesne as of fee of the demanded premises, which consisted of flats in the town of Boston.

<p>An insurance was on property on board a ship of the United States, then at peace, from Europe to her port of discharge in the United States, it being agreed in the policy, that the underwriters should be exempted from all loss and expense that might arise from the ordinary damages and perils of the seas ; and that the assured should not abandon, in case of capture, until condemnation or ninety days after capture. The ship was captured and sent for Halifax, but was, on her passage thither, and before the expiration of the ninety days, totally-lost by an ordinary peril of the seas. The assured offered to abandon within the ninety days. It was holden, that the underwriters were not liable.</p>

<p>Assumpsit on a policy of assurance, made for $5000, in favor of the plaintiff, upon the life of Jabez Lord, her brother, aged thirty-three years, bound on a voyage to South America, or any other place he might proceed to from Boston, commencing the risk on the 16th of December, 1809, at noon, and to continue until the 16th of July, 1810, at noon ; for a premium of seven per cent. The defendant underwrote the sum of $500. „</p> <p>At the trial of the cause upon the general issue, at the last November term, before the Chief Justice, it was proved, that the said Jabez had died, on the coast of Africa, before the expiration of the time for which his life was insured, and not from any of the causes excepted from the risk.</p> <p>It was also proved that the said Jabez sailed from Boston, after the making of the policy, to Fayal, as supercargo of a vessel called the Mount JEina, at which place she was converted into a Portuguese vessel, called the Vincidero, still belonging to the former owners, but sailing with Portuguese papers, and under Portuguese colors. From Fayal the vessel sailed to Madeira, and from thence •to the coast of Africa, * for the purpose of procuring [*116 ] slaves, with intention to carry them to South America; the said Jabez acting as supercargo, and having purchased some of the slaves himself.</p> <p>The objections made at the trial to the plaintiff’s recovery were,</p> <p>1. That she had no insurable interest in the life of the said Jabez. But, it being in evidence that she was a person of no property at the time, depending altogether upon the said Jabez for her support and education, and he having for several years paid her board, provided her with clothing, and paid for her education ; all which he continued to do at the time the policy was effected ; this objection was overruled, but reserved for the consideration of the whole Court</p> <p>2. That there was a concealment of the intention of the said Jabez to go to the coast of Africa. This was left to the jury, with directions, if they were satisfied that there had been such concealment, to find for the defendant.</p> <p>3. The third objection was, that the policy was void, it being to secure the life of the said Jabez, while in the execution of an unlawful enterprise.</p> <p>It was not made certain, whether the said Jabez originally designed to go to the coast of Africa, or whether that voyage was conceived after the vessel left Boston. The jury were instructed, that, if they hi lieved that he had such intention originally, and knew that the vessel was so bound, there could be no doubt, from the evidence in the case, that such intention and knowledge were concealed. The question, therefore, which the judge states to be reserved for the consideration of this objection, was, whether the actual going upon a voyage for the purposes aforesaid, by the party whose life is insured, avoids the policy.</p> <p>The said Jabez Lord gave his note for the premium ; and there was no evidence that the plaintiff knew where the said Jabez was bound.</p> <p>If the Court should be of opinion that the plaintiff had [*117] not an insurable interest, or that the policy was void on * account of the illegality of the voyage, the verdict returned for the plaintiff was to be set aside, and she was to become nonsuit; otherwise, judgment was to be rendered on the verdict.</p>

*Assvmpsit upon the following contract, originally [*121] made with the plaintiff, Baker, but assigned by deed, for a valuable consideration, by him to one Thomas Darling, for whose use this action was brought; — Boston. 31 May, 1808.

[*127] * This was an action of the case, brought against the defendant, former sheriff of the county of Middlesex, for the default of Peter Edes, formerly one of his deputies, in taking insufficient bail. The defendant pleaded, that the cause of action did not accrue • within four years, &c.; which plea was traversed, and issue joined thereon.

This was replevin for sundry articles of household furniture described in the writ. The defendant pleaded, that the property of the chattels was in one Van Schaick. The [ * 132 ] * plaintiff replied property in himself; and issue was joined on the plea.

<p>A paroi submission to arbitrators, and a performance of their award, is a good bar to an action founded on simple contract.</p>

<p>Where a lease was made to two, reserving rent, and one of the lessees with the lessor executed it; a guaranty of the payment of the rent, indorsed on the lease by a third party was held to be binding on the guarantor, although he stated, at the time of signing, that the instrument was not binding without the signature of the other lessee.</p> <p>The permitting the lessees to occupy the premises demised by such lease, in consideration of such guaranty, was sufficient to raise a consideration for the undertaking of the guarantor.</p>

<p>The only question in this action arose upon the answers of Ruggles Whiting, one of the supposed trustees, to the usual interrogatories. The facts disclosed by him are succinctly stated in the introduction to the opinion of the Court upon the question as delivered by</p>

<p>This action, which was indebitatus assumpsit for the rent of a dwelling-house in Boston, was submitted to the decision of the Court upon the following case stated by the parties.</p> <p>John White died seized of the tenements described in the plaintiff’s declaration, having made his last will and testament on the 26th of June, 1794, which was duly proved on the 30th of September following.</p> <p>In the said will, the testator devises to his wife Sarah, in lieu of her dower, the use of the said house with the appurtenances, with ibis household furniture, during her natural life ; and an annuity of £200 lawful money.</p> <p>The remainder of his estate, real and personal, including the said house and appurtenances, and the capital stock from which the annuity was to be raised, after his wife’s decease, he devises and bequeaths to his sister Helen Maxwell, to his sister Janet, [*144] wife of William Jaffrey, to his sister * Matilda, wife of David Chambers, to his sister Barbara, wife of David Black, all of Dundee or its vicinity, in the kingdom of Scotland, and to the children of his sister Jane Fox, deceased, and to their several heirs and assigns. No other devise or disposition of real property is contained in said will.</p> <p>The widow of the testator entered after his decease, and was seized of her life estate until her death, which happened in the year 1811.</p> <p>After her death, the said John Fox, the plaintiff, entered ; and, on the 15th of August, 1811, an agreement in writing without seal was made between his agent and the defendants, whereby the said house and appurtenances were demised to the defendants for the term of one year. The defendants entered into and occupied the demised premises, until this action was commenced. On the 15th of February, 1812, the sum of $40 became due for one quarter’s rent of the said premises, and the same was in arrear on the 30th of March following.</p> <p>On the day last mentioned, John Tappan, being the attorney duly authorized of such of the said original devisees as were then alive, and of the heirs or devisees of such as had deceased, excepting the plaintiff, did, on behalf of his said principals, notify, the defendants of their title, or claim of title, and forbade the defendants to pay the rent claimed by his said principals to any other person than himself for their use and benefit.</p> <p>The children of the said Jane Fox were Thomas, Margaret, and John, the plaintiff in this action, who is a citizen of the United States, and was, at the decease of the said John White, his sole heir at law.</p> <p>All the devisees, excepting the plaintiff, were aliens, subjects of Great Britain, and have never been naturalized in the United States. Barbara Black is the only surviving sister of the said John White. Janet Jaffrey has deceased since the 31st of December, 1796. Helen Maxwell has deceased since the 17th of July, 1804. Thomas and Margaret, children of Janet Fox survive. Matilda Chambers left * a daughter Matilda, now surviving. Ja- [ * 145 ] net Jaffrey, by a will duly executed and proved according to the laws of Scotland, devised all her share in the said testator’s estate to the said Matilda Chambers, the daughter, and to the said Thomas and Margaret Fox; the said devise being signed by the direction and in the presence of the said Janet, and attested in her presence by three subscribing witnesses.</p> <p>All the persons who now claim title by virtue of the said will of John White, as devisees or as heirs of devisees, are aliens, subjects of Great Britain; and, before the commencement of this action, had never been in actual possession of the premises ; unless the possession of the plaintiff, since the death of the said Sarah White, was-their possession.</p> <p>If the Court should be of opinion, that the said aliens, their heirs- or assigns, subjects of Great Britain, or any of them, at the time of giving notice to the defendants as aforesaid, were seized of, or had: right to, an undivided share or shares of the said house and appurtenances, or of or to any estate therein, which they could claim and hold against the said John Fox; then it was agreed, that judgment should be rendered for the plaintiff for so much only of the rent demanded in this action, as the Court shall think to be his share and' interest in the said house and appurtenances, with full costs. If the Court should be of opinion, that the said aliens had not, nor any of them had, any such title or interest in the said house and appurtenances, the defendants agreed to be defaulted, and that judgment be rendered against them for the sum demanded with costs.</p>

<p>One tenant in common of real estate, who occupies the whole estate, without claim on the part of his cotenants to he admitted into possession, and without hinderance by him, is not liable to an action of account by his cotenants.</p>

This was an action of assumpsit, to recover the sum of $ 1659.38 for certain goods sold and delivered by the plaintiffs to one Augustus Trask, at the request of the defendants, and upon his promise to be responsible to them for the payment therefor.

<p>The plaintiff declared in case, “ for that whereas, before and at the time of committing the grievance hereinafter mentioned, he was, and from thence hitherto has been, and still is, lawfully possessed of a certain building or store, with the appurtenances, situate in said Boston, on Dock-Square, so called ; in which said building there were, and still of right ought to be, divers, to wit, two windows and two doors, through which the light and air, during all the times aforesaid, ought to have entered, and still of 'right ought to enter, into the said building, for the convenient and wholesome use, occupation, and enjoyment thereof. Yet the said Odin, well knowing the premises, but contriving and wrongfully and unjustly intending to injure the plaintiff, and deprive him of the use, benefit, and enjoyment of the said building and its appurtenances, on, &c., wrongfully and unjustly erected and raised a certain wall and building near to the said windows and doors, and wrongfully, &c., kept and continued the said wall and building so erected and made, for a long time, to wit, from the day and year aforesaid, hitherto. By means of which said premises, the said building with the appurtenances, during all the time aforesaid, was, and still is, greatly darkened, and the light and air were, and still are, hindered and prevented from coming and entering into and through the said windows and doors into the same building, and the same hath thereby been rendered, and is, close and uncomfortable, and the plaintiff entirely deprived of the use of the said doors ; and the plaintiff hath thereby been, and still is, greatly annoyed and incommoded in the use, possession, and enjoyment of his said building and the appurtenances ; and * also [ * 158 ] by means of the premises hath been obliged, for the obtaining light in his said building, to lay out and expend a large sum of money, namely, &c., in and about altering the roof of said building,” &c.</p> <p>The cause was tried upon the general issue, at the last November term in this county, before the Chief Justice.</p> <p>ft was in evidence, that the plaintiff, in the year 1795, less than twenty years before the commencement of this suit, purchased of the town of Boston the land on which he erected the buildings described in his declaration ; and that there was then standing on said land a two-story building, with a door in each story opening into a vacant lot of ground then owned by the town, and encompassed by the building thus sold to the plaintiff, and by other -buildings then owned by the town, but open on the side facing the market; which vacant lot had been, by permission of the selectmen, from time to time occupied and used by the several tenants of the surrounding buildings, as a yard, for the purpose of depositing therein empty casks, boxes, &c., and sometimes used as a passage-way, from whence they received goods into their several stores.</p> <p>The yard continued vacant, or occupied as before mentioned, until it was sold by the town, in the year 1812, to the defendant, who soon after erected a building upon it, covering the whole ground, and adjoining the back wall of the said building belonging to the plaintiff; and thus obstructed the air and light, which used to pass into the back doors aforesaid ; and also obstructed the light of two or three windows, which were fixed in the plaintiff’s new building, corresponding to windows which were in the building standing upon the ground purchased by the plaintiff when he bought it of the town. It was also proved and found by the-jury, that the plaintiff’s new building covered the same ground which had been covered by the old one, being erected on the same foundation ; and that the old building had been standing, with the doors and lights aforesaid, more than sixty years before the commencement of this action.</p> <p>[*159] * If, upon these facts, the action was maintained, judgment was to be entered upon the verdict found for the plaintiff; otherwise, the verdict was to be set aside, and a new trial to be granted.</p> <p>The defendant filed a motion for a new trial, on the following grounds.</p> <p>1. That the plaintiff has not declared for an ancient and prescriptive right to the windows and doors in his declaration mentioned. — 2. The plaintiff purchased the land and building, in which said doors and windows are, within twenty years before the commencement of his action. — 3. The defendant purchased the land, upon which he erected his said buildings, from the same proprietor who conveyed to the plaintiff. The defendant insists, that, as the plaintiff proved the origin of his right and interest in his estate to be within twenty years, and has not prescribed for an ancient right, he is not entitled to maintain this action against a proprietor who is grantee of the adjoining estate, on which the said building is erected, and holds the said estate from the same grantor who granted to the defendant with n twenty years as aforesaid.</p>

[* 161] * This was an action of trespass, brought against the defendants for illegally assessing the plaintiff, whereby his property was seized, &c., and it was submitted to the decision of the Court, upon the following facts stated and agreed by the parties. The defendants were assessors for the town of Charlestown, duly chosen and sworn for the year 1813.

<p>In an action against the sheriff for the default of his deputy, the letters and confessions of the deputy are competent evidence ; and the jury may prefer them to the testimony of witnesses.</p> <p>It is not competent for an officer, who has returned an attachment of cattle, and who had, in fact, delivered them to a third person for safe-keeping, when sued for his neglect in not procuring satisfaction of the execution issued in the same suit, to show, either in bar of the action or in mitigation of damages, that the expense of keeping the cattle between the attachment and the execution would have exceeded the value of the cattle.</p> <p>In such action against the officer, the value of the cattle at the time the execution should have been levied, and not at the time of the attachment, forms the true measure of damages.</p> <p>It is not competent for the officer, in such action against him, to show, in mitigation of damages, that the judgment debtor is solvent.</p> <p>But he may show that a part of the chattels attached by him were not the property of the debtor.</p>

*This was an action of assumpsit on a policy of in- [*170] surance, dated the 5th of March, 1812, by which the defendants insured for the plaintiff against the usual risks, the sum of $5000 on the ship Laura and appurtenances, at and from Boston, to a port or ports in the river of Plate, and at and from such port or ports to Boston, or port or ports of discharge in the United States, with liberty to touch and trade at a port or ports in Brazil, on the outward and homeward…

<p>*The declaration, which was in assumpsit, contained a [*172J special count upon a promissory note, and a count for money had and received by the defendant to the use of the plaintiffs</p> <p>It was agreed by parties, ed, and that judgment should be rendered for the plaintiffs upon the first count in the declaration, for the amount due upon the note therein described ; and also upon the second count in the declaration, to the amount of another promissory note, which the plaintiffs held against the defendant, as indorser of the following paper, namely, “ Boston, 4th August, 1814. For value received, I promise to pay Mr. Benjamin Hurd or order five hundred dollars in forty-seven days and grace at the State Bank.” Signed, Joseph Larkin. In dorsed, Benjamin Hurd. Provided the said last-described note could legally be given in evidence to a jury under the said second count. Notices according to the forms of banks were left for the promissor, and for the defendant, as indorser, at one Metcalf’s shop in Cornhill, Boston, by direction of the said Larkin and Hurd respectively. No other notice or demand was made, although the said parties both lived and did business in Boston The parties agreed that judgment should be rendered, as the law should direct, upon the default of the defendant, or the nonsuit of the plaintiffs.</p>

This was an action of assumpsit upon the following contrac , namely ; “ It is mutually agreed between William Ladd and Andrew Arfridson, that the said Andrew Arfridson shall proceed to Alexandria, District of Columbia, to act as flag-captain of a schooner belonging to J. G. Ladd, which is to be immediately fitted and sent to sea ; and the said William Ladd agrees to allow the said Andrew Arfridson for his services on board said vessel sixty dollars per month, to commence the…

<p>The having on board a ship bound to a neutral port a British license is not sufficient to avoid a policy of insurance on the voyage.</p>

* Replevin† for 8756 sides of sole leather, of the [*180] value of $ 29,000. The defendant pleaded, 1. Property in himself; upon which issue was joined. 2.

<p>A. having consigned certain merchandise to B. for sale, and B. having transferred them to C., this latter promising to account to B. for the proceeds ; C. sold the merchandise, and, on demand of A., promised to pay the proceeds to him ; it was holden, that A. was entitled to recover of C. notwithstanding his promise to B.</p>

<p>Assumpsit to recover $421.79, the amount of a quantity of w'indow glass, alleged to have been sold and delivered by the plaintiffs, proprietors of the glass manufactory in Boston, to the defendants. The declaration contained three counts. The first was indebitatus assumpsit upon the account annexed. The second was quantum valebant for goods sold and delivered. And the third was upon a promissory note for $ 341, dated April 25th, 3 808, payable to the plaintiffs in six months, with interest after * [ * 186 ] sixty days ; which note was alleged to have been signed by Peter T. Vose in behalf of the defendants.</p> <p>The plaintiffs proved, at the trial, which was had before the Chief Justice, at the last November term, that, on the 25th of April, 1808, one Peter T. Vose, applied to Kupfer, agent of the glass manufactory in Boston, to purchase a quantity of glass for a meetinghouse, which was building in the South Parish in Augusta, representing himself, at the time, as one of the committee of the parish for that purpose.</p> <p>The said Vose requested and obtained a longer credit than was usual, for the sake of enabling the parish, as he said, to raise moneys from a fund, which was appropriated by them for the purpose of defraying the expense of the building; the usual term of credit given at the glass-house being sixty days, and the credit obtained in this case being six months.</p> <p>A quantity of glass was delivered to Vose on his said application, amounting to $ 341, which was at the time charged by Kupfer, to “ Peter T. Vose, of Augusta, one of the committee for building the meetinghouse in said place ” Vose gave a note for the same, which was in the following terms, namely ; — “ Boston, April 26, 1808. For value received I promise to pay (in behalf of the committee foi building a meetinghouse at Augusta) to Charles F. Kupfer, or order, three hundred and forty-one dollars in six months from date, with interest after sixty days. Peter T. Vose.” At the same time he received from Kupfer a bill of parcels of the glass, made out to him as one of the committee, as above charged ; on which Kupfer ac knowledged to have received payment by a note of the above description.</p> <p>On the 27tb of May, 1809, a further quantity of glass, amounting to $ 80.79, was delivered to Vose for the said meetinghouse, and charged as in the former case.</p> <p>Both parcels came to the parish, and were used upon the building. No glass suitable for the building could be procured at Augusta; and it was known to the other members of the committee that [* 187 ] Vose was to procure the glass from * Boston ; but it did not appear that any thing was said to him at the time, as to the manner in which it was to tie procured, or with what funds it should be paid for.</p> <p>The plaintiffs then read certain votes of the said parish, as April 21st, 1806, that it was expedient to have a new meetinghouse, &c. — August 11th, 1806, that Peter T. Vose, Solomon Vose, and Samuel Coney be a committee to superintend the building of the meetinghouse, &c.—November 17th, 1806, requesting the said committee to make sale of the pews, and investing them with such discretionary powers in and about the premises as to them should appear necessary to carry the object into effect. —January 5th, 1807, authorizing the committee, when the sales of the pews in the proposed meetinghouse should amount to $ 10,000, to proceed in the business of erecting the same without further delay, &c.—June 25th, 1807, choosing T. Hamlen superintendent of the building, to see the contracts of the committee executed, and to fulfil engagements already entered into. — June 25th, 1810, appointing a committee to settle with the committee for building the meetinghouse, and,—July 20th, 1810, accepting the report of the committee, appointed June 25th.</p> <p>The plaintiffs then produced an account current, dated January 10th, 1810, settled between Vose and the committee or agents for building the meetinghouse, wherein Vose had charged the price of the glass purchased of the plaintiffs, and interest thereon from sixty days after the purchase. This account was allowed against the parish by the committee appointed to settle the accounts ; and it appeared, that the said committee, in performing their duty, required vouchers, among which was exhibited the plaintiffs’ bill of the glass.</p> <p>For the defendants, it was alleged that Vose had no authority from the parish, to purchase the glass on their credit; and that they never subsequently ratified his acts as their own.</p> <p>In support of this defence, it appeared that the purchase was made by Vose as one of a committee consisting of * [*188] three ; that it was the practice of that committee among themselves, that the credit of the parish should not be given without the assent of at least two of their number, and that, when individuals of the committee furnished materials, they did so as private persons, and their bills were allowed in the same manner as bills of other individuals ; and that Vose had no authority from the committee to use their names in the purchase of the glass, or to buy it on the credit of the parish ; but that, on the contrary, it was understood between him and the other members of the committee, that he should himself supply the glass, to pay his notes for pews to the parish.</p> <p>It did not appear, that the committee, or the parish, ever knew that Vose had used the name of the committee, or that the credit of the parish was supposed to have been given, until September or October, 1811 ; unless the contrary ought to be inferred from the settlement of accounts, when the bill of the glass was exhibited among other vouchers, three years after the purchase, and several months after the known insolvency of Vose, which took place in January, 1811.</p> <p>Notice was given by the plaintiffs, that they looked to the parish for payment of the balance due for the glass. But all responsibility was constantly denied.</p> <p>It appeared, also, that the plaintiffs received partial payments for the glass from Vose, after the credit had expired, without calling on the parish.</p> <p>The plaintiffs contended, that there was no material fact in this case, exhibited on the part of the defendants, which could in law exonerate the parish from the acts of Vose; that his acts were within the reasonable meaning of the authority vested in the committee ; that the parish had ratified the doings both of Vose and of the committee ; and that, therefore, the jury should find a verdict for the plaintiffs.</p> <p>The jury were directed, that there did not appear to be anj evidence that any one of the committee was authorized *to bind the parish for any articles purchased on account [*189] of the meetinghouse, although they would be liable in consequence of the glass having been received and used by them, if no loss had intervened by the failure of Vose; also, that, if the parish had known and adopted the act of Vose, in purchasing upon credit in then name, they would be liable, as having ratified an act which was originally done without authority ; that it was, therefore, a matter of fact for the jury to decide, whether there had been any adoption of the act of Vose in assuming to be their agent and procuring the glass upon their credit; and that, if they believed there was, they ought to find for the plaintiffs ; otherwise, for the defendants.</p> <p>The verdict was for the defendants ; and the plaintiffs moved for a new trial, for the misdirection of the judge, and because the verdict was against law and evidence.</p>

<p>Sundry persons agreed to lend to the editors of a newspaper the sums set against their respective names, the same to be paid to one of their number as agent, &c. He advanced money to the editors on the ground of the subscription; and it was holden that he had a right of action against a subscriber who refused to pay the sum he had subscribed.</p>

* This was assumpsit, brought to recover the proceeds [ * 193] of certain property, consigned by the house of Goodwin fy Whiting, of which the plaintiff is surviving partner, to the defendant in Russia, to be by him sold and accounted for. A trial was had before the Chief Justice, at the last November term.

<p>Where a judgment creditor is evicted from lands on which he had extended his execution, for defect of title in the judgment debtor, he may maintain debt on the judgment to recover the value of the land from which he has been so evicted.</p> <p>This Court will set off a smaller judgment against a larger between the same parties, although the smaller judgment is on a demand which had been assigned, the assignee having had previous notice of the demand on which the larger judgment was founded.</p>

<p>[ * 199] * This was an appeal from a decree of the Judge of Probate for this county, removing the said Winship from the office and trust of one of the executors of the last will and testament of Edward Tyler, deceased, at the instance of the respondents, devisees of the estate of the said testator.</p>

[ * 206 ] * In an action of assumpsit for a sum over one hundred dollars, the defendant filed his demands by way oí set-off; by means whereof the plaintiff recovered a verdict in this Court, for no more than the balance of eighteen dollars, he having brought the action here by appeal.

<p>This was an action of assumpsit, brought by the plaintiff as administrator of the estate of Samuel P. Abbot, to recover the money due for the freight of certain merchandise transported m the ship Rebecca, whereof the said Abbot was owner and master.</p> <p>It appeared, at the trial, which was had at the last November term in this county, before Jackson, J., upon the general issue, that the merchandise was shipped at London, on the 1st of July, 1812, and consigned to the defendant in Boston, to which place the ship was bound. On her passage, she was captured by an American private armed vessel, and carried into New London, in the State of Connecticut, about the 1st of September, 1812, where her cargo was libel »ed as prize to the said captors. The ship and cargo were also seized, on entering that port, by the officers of the customs there, and immediately libelled as forfeited to the United States.</p> <p>* The cargo was released on or about the 9th of No- [*207] vember, 1812, and the goods consigned to the defendant were on that day delivered to him. The ship was not released until some time afterwards. The said goods were immediately sold by the defendant to some merchants of New York, who carried them to that city.</p> <p>It did not appear that Abbot offered to carry the goods from New London to Boston, nor that the defendant required him to do so.. There would have been great danger of capture by the public enemy, in proceeding at that time from New London to Boston by water :: and it was in evidence, that, in consequence of that danger, and the-corresponding high rate of insurance, it would have been cheaper to> carry the goods by land.</p> <p>The defendant did not dispute that freight had been due according: to the rate specified in the bill of lading, deducting the expense of transporting the goods in the cheapest manner from New London to. Boston. The defence was, that he had paid the whole amount in a bill of exchange, drawn on him by the said Abbot.</p> <p>It appeared that Abbot, while in London, being indebted to Henry Bromjield, of that city, in about £ 380 on the balance of their accounts, drew sundry bills of exchange in favor of said Bromjield to the amount of that balance, on several of the consignees of goods on board said ship ; and, in passing those bills to his credit in the account, which came up in the case, they are said to be “/or account of freight and primage, payable to said Abbot on cargo per Rebecca.” Among those bills of exchange was one drawn on the defendant, for the whole amount of the freight and primage on his said goods, according to the terms of the said bill of lading. The said Bromjield indorsed this bill of exchange to D. D. Rogers, of Boston, and sent one of the set by the Rebecca. All the papers on board the ship having been delivered to the clerk of the Court of Admiralty in Connecticut, it appeared that Rogers did not receive the said bill until a long time after its arrival; and it did not * appear that either he or the defendant knew of the ex- [*208] istence of the bill, until about the 21st of January, 1813, on which day Rogers presented it to the defendant for acceptance.</p> <p>On the 17th of December preceding, the defendant had been summoned by one Samuel Dorr, as the trustee of said Abbot,- for an amount far exceeding the said freight, and he had also paid to Abbot fifty dollars on account of the freight, before he knew of the existence of the said bill of exchange. He therefore refused to accept it, when presented as aforesaid.</p> <p>The said Abbot died suddenly, on the 26th of January, 1813, and administration of his estate was committed to the plaintiff on the 8th of February following ; and, on the 12th of the same month, the usual notice was published by him.</p> <p>On the 16th of the same February, the defendant made a special acceptance in writing on the said bill, to pay the same, provided he should not be holden to pay it to the said Dorr, by virtue of his said process, nor to the said administrator; and saving also any rights which tne said Dorr might have to said freight, or any part thereof, by reason of any interest he might have in said ship ; also with a deduction of the said $ 50 paid by the defendant to Abbot, as above mentioned.</p> <p>On the 12th of July, 1813, the defendant paid to the said Rogers :he amount of said bill, deducting the said $ 50 ; and, on the 14th of September following, the present action was commenced. The said Rogers gave the defendant an indemnity on receiving the said payment.</p> <p>In the bill of exchange, after inserting the sum, it is added, “ being umoimt of freight and primage on goods to your consignment in the Rebecca, bound from London to Boston, under my command.”</p> <p>A verdict was taken for the plaintiff, by consent, subject to the opinion of the Court on the question, whether the plaintiff, [*209] under the circumstances of the case, was entitled * to recover ; and verdict was to stand, or to be altered, according to the opinion of the Court.</p>

<p>Indebitatus Assumpsit with the usual money counts. A verdict being found for the plaintiff, the defendant moved for a new trial for the misdirection of the judge.</p>

<p>Assumpsit upon a policy of insurance underwritten by the defendants, dated the 2d of February, 1813, for $2250, on a Sidmouth license on board the ship William and Henry, from Boston to Alexandria, the said license valued at $2000. The policy was in the usual printed form, having also the following memorandum attached to it, namely, “ Proposal of Samuel G. Perkins, $2250 on a Sid-mouth license on board the ship William and Henry, Prior, from Boston to Alexandria. The ship is in ballast, and is chartered or hired to take in a cargo for the Peninsula ; but the license is not filled up at all. The insurance is to be against its loss, not only by capture by the British or Americans, or other power, but [*215] against its being destroyed or rendered useless, by the * ordinary perils of the seas, fire, or otherwise.” The policy also contained this clause, namely, “ And it is hereby agreed, that, if the assured shall have made any other assurance upon the license aforesaid, prior in date to this policy, then this Insurance Company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property at risk.”</p> <p>The cause was tried upon the general issue, before the present Chief Justice, November term, 1813, when the following facts appeared in evidence, or were admitted by the parties.</p> <p>The defendants made the policy as declared on ; prior to which, namely, on the 26th of January preceding, the plaintiff, and the owners of the ship William and Henry, entered into certain articles of agreement, which contained, among other things, as follows, namely, That the said Perkins shall furnish to said owners a Sid-mouth license, to accompany said ship from Boston to Alexandria, free from expense to the ship-owners, when said license is to be returned to said Perkins free from indorsement or other blemish, which may injure the validity of such license for any other vessel the said Perkins may choose to use it for ; it being understood and agreed upon by the parties, that the said Perkins is to take no risk of said license, except such as may arise from capture by the British, or violence of our own vessels, and sea risk. And it is further agreed between the said parties, that, in case the said license shall be otherwise lost or injured, so as to render it useless to the said Perkins for any other vessel, or in case the said ship shall arrive safe, and the master thereof shall refuse or neglect to return the said license to the said Perkins,' or his agent or order, then the said owners agree to pay the said Perkins, or his order, on demand, the sum of $2000, with interest till paid.”</p> <p>This agreement was in full force when the policy declared on was made, and has never been cancelled ; and the amount covered by the agreement was the same which was * covered by [*216] the policy, deducting the premium note. In pursuance of the said agreement, a license for Lisbon was furnished the owners by the plaintiff, being the same insured by the policy declared on.</p> <p>The said ship, on or about the 8th of February, 1813, sailed from Boston for Alexandria, with the said license on board not filled up. On the 14th of the same month, at the entrance into Chesapeake Bay, she was boarded from the British ship of war Maidstone, and Prior, the master, was ordered on board the said ship of war, with his papers. After the papers were examined, the commanding officer of said ship indorsed the said license as follows, namely, “ In pursuance of orders from the Right Hon. Sir John Barlose Warren, Baronet, commander-in-chief, &c., &c., &c., to place the Chesapeake and its rivers under strict and rigorous blockade, you are hereby required and directed to put to sea in the William, and Henry, under your command, and quit this anchorage, being under blockade ; and should you be found violating this order, you will be seized and sent in for condemnation. Given under my hand, on board H. M. S> Maidstone, the 15th February, 1813, in Lynnhaven Bay. Geo. ,Burdett, sen. officer.”</p> <p>Several witnesses testified that a license so treated could not be used for any other vessel, and would not sell for any thing in the market.</p> <p>In consequence thereof the master of said ship did not attempt to violate the blockade ; but on the following day sailed for Philadelphia, where she arrived on the 27th of February, after meeting with sundry impediments in going up the Delaware. Notice of the blockade of the Chesapeake was first had in Boston by its publication in the Columbian Centinel of the 20th of the same month. At the same time, or within a few days, notice was had of the blockade of the Delaware ; and both continued to the time of the trial of this action.</p> <p>On the 27th of the same February, the plaintiff, having heard that the ship had been turned away from the Chesapeake, *and the license indorsed as above, made his offer of [*217] abandonment, and on the 10th of March following, having then received certain advices of the turning away of the ship, and the indorsement of the license, he again abandoned to the defendants, who then, as well as before, refused to accept the same.</p> <p>The plaintiff had never had said license in his possession since making said insurance ; but it appeared that on the 15th of March he demanded it of the ship-owners, according to their agreement; who answered that they had written for it, and should receive it in a few days, and would then deliver it to him. The plaintiff then demanded of them the $2000, which they refused to pay.</p> <p>On the 27th of March the ship-owners tendered the license, indorsed as aforesaid, to the plaintiff, which he refused to receive, alleging as reasons, that they did not deliver it when he demanded it, and also that by the indorsement it was rendered useless for any other vessel. Neither the plaintiff nor the defendants had, after the abandonment, ever exercised any right of ownership over the said license, except the demand made by the plaintiff, as above stated ; but the license had ever since remained with the owners of the ship.</p> <p>In order to save the questions of law arising on these facts for the consideration of the whole Court, the judge directed the jury that the loss, if any, was not within the prior agreement between the plaintiff and the ship-owners ; and also, that, if they found that by the indorsement the license was rendered useless for any other vessel, or, by the indorsement and the blockade of the Chesapeake, useless for a voyage from Alexandria, they should find for the plaintiff as for a total loss ; which they did ; and if, upon the foregoing facts, the plaintiff ought to recover, the verdict was to stand, and judgment to be rendered thereon, with additional damages for interest from the time the verdict was returned; otherwise, the verdict was to be set aside, and the plaintiff to become nonsuit.</p>

<p>Where jne built a house on his own land within two feet of the boundary line of his land, and ten years after the owner of the land adjoining dug so deep into his own land as to endanger the house ; and the owner of the house, on that account, left it and took it down, it was holden that no action lay for the owner of the house for the damage done to the house ; but that he was entitled to an action for the damage arising from the falling of his natural soil into the pit so dug.</p>

<p>Assumpsit on a policy of insurance, dated January 5th, 1810, for $4000 on the hull and appurtenances of the brigantine Ocean, and $6000 on her cargo, at and from Boston to a port or ports ir. Europe, for the purpose of discharging her outward and procuring a return cargo, and at and from thence to her port of discharge in the United Slates, with liberty of going to any of the usual places for salt ; at a premium of six per cent., and an addition of one per cent. if she went within the Straits of Gibraltar. The vessel was valued at $6500. The defendant subscribed $1000. It was agreed in the policy, that, in case of capture or restraint, the assured were not to abandon until the property was condemned, or until it should be proved to have been under restraint for-days. The perils in the policy were restricted by the following note at the foot of the policy, “ The underwriters, in case of restraint, are exempted from plunder, waste, and expense, and from capture and condemnation by all powers ; but they agree to take the dangers of the seas, and the perils in the policy not excepted, even while detained and after-wards.”</p> <p>The plaintiffs declared in the first count for a total loss by perils of the seas, storms, and tempests ; and in the second count, by restraints and detainment by persons under the authority of the supreme government of the empire of France. They declared for [*231 ] a loss by general average, in the third * count, by cutting away much of the tackle, apparel, and furniture of the vessel; and throwing overboard a large part of the cargo, to preserve the lives of the crew, and to save the residue of the vessel and cargo ; and they aver that by such loss the residue was saved. A fourth count alleged the loss in the same manner as the third ; but does not aver that the residue was saved by such jettison.</p> <p>At the trial of the action, which was had before the late Chief Justice Parsons, November term, 1812, a verdict was found for the plaintiffs as for a total loss, by consent of the parties, subject to the opinion of the Court, whether any, and, if any, what loss was proved by the facts as agreed by the parties ; and if the opinion of the Court should be, that any loss was proved, assessors were to be appointed by the Court, to ascertain the amount and particulars thereof, and assess the plaintiffs’ damages upon such principles as the Court should prescribe ; and the verdict was to be set aside or amended accord ingly.</p> <p>The facts agreed were the following ; namely, the defendant subscribed the policy, and the plaintiffs were interested in vessel and cargo, as alleged. The vessel sailed from Boston on the 6th of January, 1810, and on the 9th, 10th, and 20th of the same month, by tempestuous weather and the dangers of the seas, the master and crew were compelled to throw overboard nearly one third of the cargo, all the cables and anchors, and sundry appurtenances, to lighten the vessel, and to preserve their lives, and the residue of the cargo and vessel.</p> <p>They saw no vessel to take them off the wreck, until their arrival in the Bay of Biscay, near St. Sebastian’s, and then only a pilot boat. It being unsafe to go to St. Sebastian’s or St. Andero without cables and anchor, the pilot sent his boat into St. Jean de Luz for them, himself remaining on board the ship, and promising, as the master testified, if he procured cables and anchors, to carry the ship to St. Sebastian’s the next morning. It being impossible to keep off the shore that afternoon, in the shattered state of the hull * and sails of the vessel, or to go to St. Sebastian’s or to St. [ * 232 ] Andero, when the pilot-boat had the cables and anchors ready, the ship came to in the harbour of St. Jean de Luz, and was there moored about four o’clock in the afternoon of the 12th of February.</p> <p>The next morning, at ten o’clock, she was seized by certain officers of the French government, who sealed up the hatches, took the crew on shore to be interrogated, and sequestrated the Ocean and her cargo, summoning the master to appear before the council of prizes at Paris, as appeared by the proces verbal of seizure, dated the 21st of February. The vessel and cargo were detained until sold, as hereafter mentioned, and the proceeds still detained by the said officers ; and they have never been condemned by the council of prizes aforesaid.</p> <p>The vessel was injured, by the violence of the seas and tempestuous weather on her voyage, to the amount of three fourths of her value, in the opinion of the master, who thought her not worth repairing. On the 20th of March, he applied to the French officer who had the custody of the vessel, requesting that surveyors might be appointed to examine her ; to which he replied, that the request appeared to him very singular, and that he could not perceive the utility of such a measure, and accordingly refused it. In April and May following, the vessel was examined by certain French carpenters and others, and also by three American shipmasters, appointed by the American vice-consul at the request of the master of the Ocean, who reported, that, in their opinion, the ship was not worth repairing.</p> <p>On the 31st of March, a small part of the cargo was sold, being damaged ; and the residue, undamaged, on the 9th of June.</p> <p>The master gave intelligence of all these facts to his owners at Boston, by letter of the 21st of July, and a duplicate of the same date, by two vessels, which, having compromised with their captors, sailed for Marblehead and New York.</p> <p>* On the 12th of September, 1810, the plaintiffs season- [ *233] ably abandoned their interest in the vessel alone, and their interest in the cargo on the 8th of May next following ; no change having taken place since the letter from the master. The cargo produced 98,000 francs. The vessel was sold, on the 25th of July, for 2400 francs. The master remained in France long after, prosecuting the claim for vessel and cargo, but had never obtained any determination from the council.</p>

<p>Where an instrument under seal purports to have been executed by an attorney, and the authority of the attorney is disputed, before the instrument goes to the jury, the letter of attorney must be produced to the Court, who are to judge of its competency.</p> <p>But in all simple contracts, made by agents or attorneys, in which the authority may be proved by oral testimony, the fact of signing and the power to sign being both questions for the jury, the order in which they shall be proved is matter of indifference.</p> <p>Although a general agent of a trading company, being himself also one of the company, may have authority to make promissory notes binding on the company, yet a sub-agent appointed by him would not have such authority. But such sub-agent, appointed to purchase stock and sell goods for the company, may buy on credit, if not prohibited ; and the company will be bound by such purchase ; and the promissory note of the sub-agent given on such purchase, not being binding on the company, will not extinguish the implied promise of the company raised by the law on the purchase.</p>

<p>The rescue of a neutral ship from a belligerent, she being detained for an alleged justifiable cause, is such a breach of neutrality as will exonerate the underwriter in case of a loss. But, if a belligerent does not make known his character and the cause of such detention, the neutral is not bound to know him as lawfully commissioned.</p>

This was an action of trespass, and was submitted to the decision of the Court upon certain facts agreed. The plaintiffs were incorporated by statute, 1799, c. 4, with the powers and privileges usually granted to banking corporations.

<p>An insurance was effected for $ 9000 on a ship valued in the policy at $ 18,000, at a premium of forty-five per cent., the assured making no representation of his proportion of the vessel, but being, in fact, owner of one third only ; a total loss happening, he claimed the whole sum, on the ground that he intended to insure the premium ; and he was holden entitled to recover.</p>

<p>If a person chosen into the office of constable is compulsorily removed from the town within the year, as, by being committed to prison in another town, so that he is not able to discharge the duties of the office, he gains no settlement by virtue of such choice. '</p> <p>The year, intended by the statute in that case, is a municipal year, or from one election to another.</p> <p>When a pauper falls into distress in a place other than that of his settlement, as, by commitment to prison, he is to be relieved ; and it does not lie with the town of his settlement to object, in an action against them for his support, that he ■was able, but unwilling, to provide for-himself.</p>

<p>A judgment was rendered by default on a contract including usurious interest, and the judgment debtor gave a new security by mortgage for the amount of the judgment; and it was holden, in an action upon the mortgage, that it was no-competent for the debtor to object the usury.</p>

<p>One committed to prison, on a judgment against him for a penalty incurred under the act for regulating the militia, is entitled to the benefit of the act for the relief of poor prisoners, &c.</p>

[*274] * The indictment in this case alleged, that, at a justice’s court, holden before G. E. Vaughan, Esq., one of the justices of the peace, &c., at, &c., on., &c., a certain issue duly joined in the court aforesaid, between Lucy Fogg, of, &c., as plaintiff, and Joseph Griffin, of, &c., defendant, in a certain plea of trespass, wherein the said Joseph Griffin was charged with having, by force and arms, broken and entered the close of the said Lucy Fogg, and with having cut…

<p>This was assumpsit for money had and received. The declaration contained also a special count upon the following agreement, as signed the 12th of February, 1808, namely ; “ This may certify that I, Jabez Cushman, of, &c., do hereby promise and engage to give and execute a deed of a certain piece or parcel of land bounded, &c., to Michael Frazier, provided he, the said Michael, pay me, the said Jabez, one hundre 1 and sixty-three dollars and fifty cents within eighteen months from the date hereof, with the interest thereof from this date. I say, on his the said Michael’s paying me the said sum and interest as above mentioned, and at the day, I will give him a deed,” &c.</p> <p>At the trial of the action, which was had before Thatcher, J., at the last October term, upon the general issue, the [ *278] * plaintiff produced the said agreement, and proved by witnesses, that, within the eighteen months named in the agreement, he called on the defendant, and informed him that he could then procure of a Mrs. Ilsley the money stipulated in the agreement, and so obtain from the defendant the deed therein promised, and that he would then get the money, if the defendant wanted it, or wished for it. The defendant told him he had belter not hire the money, and, as he must pay interest for it, he had better go to work and earn it; that the land was safe in bis, the defendant’s, hands, and the plaintiff might pay the money mentioned in the agreement at any time after the expiration of the eighteen months ; that he would take no advantage of him for not paying it within the said term ; and that, upon such payment, he, the defendant, would give him a deed of the land in the same manner as if the money were paid before the expiration of the term. It was further proved on the part of the plaintiff, that, in June or July, 1812, he tendered to the defendant $ 207 in satisfaction of the sum mentioned in the agreement and the interest, and demanded of the defendant a deed of the land ; and that the defendant refused to accept the money or to give the deed.</p> <p>The defendant proved, that, after the expiration of the eighteen months, namely, in 1811, the plaintiff called on the defendant, and told him that he had given up all hope of being able to pay the money mentioned in the agreement, and considered the land as belonging to the defendant ; and he solicited the defendant’s son to intercede with his father and induce him to make the plaintiff a present, as he said he thought the land was worth more than the consideration mentioned in the agreement.</p> <p>The jury returned a verdict for the plaintiff, subject to the opinion of the Court upon the foregoing facts ; and judgment was to be rendered upon the verdict, or a new trial granted, as the opinion of the Court should be.</p> <p>Mellen, in support of the verdict, cited the authorities in the margin. (1)</p>

This was a petition for partition of the real estate, of which John Motley, father of the petitioners, died seized and possessed. The respondent, who entered her appearance pending the petition, was the widow of the said deceased, and opposed the partition on the ground that she was entitled to dower in the premises, and that the same had not been assigned to her.

<p>Assumpsit on a promissory note and an agreement, copies of both which came up in the case.</p> <p>The note was made by said Todd to one Samuel Fisher or order, dated June 8th, 1813, for fifty dollars on demand with interest, and indorsed by Fisher m blank. The agreement was as follows, namely ; “ Portland, June 8th, 1813. This may certify, that I, Samuel Todd, do agree to pay my proportional part of the ransom given in St. John's, December 9th, 1812, for the schooner Ospray, by Captain Samuel Fisher, it being two hundred and sixty-one dollars and sixty-one cents, with interest after this date, when it appears that the said ransom is to be paid, as witness my hand. Samuel Todd.” On the back of this agreement * was written [*282] the following, namely; “For value received, I hereby transfer all my right and interest in the within promise, being myself solely interested, to Jabez Mowry.”</p> <p>At the trial, which was had upon the general issue, before Thatcher, J., at the last October term in this county, the signing of the said note, and its indorsement to the plaintiff, were admitted, as was also the signing of the said agreement.</p> <p>The plaintiff read in evidence the deposition of James Savage, Esq., of Boston, testifying, that some time in July or August, 1813, having in his possession, as attorney to the plaintiff, the note and agreement declared on, the witness gave notice to the defendant, then in Boston, that the same were left with him for collection, the one being indorsed by said Fisher, and the other assigned by Fisher, as the witness supposed, at the same time the first was indorsed, the witness having drawn the form of an assignment on the back of the agreement, and Fisher having agreed to execute it ; that it was understood by all parties that the plaintiff paid the ransom money for the schooner Ospray, having for the owners’ benefit made himself liable, with the said Fisher and Dr. J. M. Baxter, for the sum mentioned in a writing attached to the deposition, and hereafter described; that the defendant then promised to pay the said two notes, or to give the witness security before he should leave Boston, which he failed of doing ; that the defendant knew and acknowledged that the plaintiff had paid the said money, and made no objection to the portion for which he was liable as part-owner of the schooner ; that the de fendant observed to the witness that Fisher owed him on another account, and that he would obtain from him the balance before leaving Boston, to enable him to make up the money for the plaintiff; wishing the witness to deduct what Fisher owed him, but, on the witness objecting to that course, he undertook to satisfy the full amount of the plaintiff’s claim.</p> <p>The paper annexed to the said deposition was signed by one Thomas Millidge, jun., as agent to the schooner Bream, [* 283] * certifying that he had received a note of hand, signed by said Fisher and Baxter, payable in three months from the date, for £262 10s., current money of New Brunswick, which sum was to be paid by the said Millidge, to Lieutenant C. Hare, of His Majesty’s schooner Bream, being the sum charged by him for the ransom of the schooner Ospray and cargo.</p> <p>The defendant produced a note signed by said Fisher, dated October 3d, 1812, for $ 150.89, payable to the defendant, on which $. 100 was indorsed as paid on the Sth of June, 1813 ; and also an order drawn by Fisher on J. M’Lellan, for $ 247, payable to the defendant, dated on the said 8th of June, which was dishonored by M’Lellan, and which Fisher acknowledged to be good against himself.</p> <p>A verdict was taken for the plaintiff by consent, subject to the opinion of the Court on the foregoing evidence. If the Court should think the action maintained as to both the plaintiff’s demands or causes of action, judgment was to be entered on the verdict; otherwise, the verdict was to be amended as to the damages, and to stand only for the principal and interest due upon the note first described.</p>

<p>Of the seizin of a predecessor, necessary to enable a minister to maintain a writ of entry for ministerial lands. [A seizin within thirty years must be proved. And an entry into, and claiming distinctly of, part of the lands without any intention of claiming the whole, will not give a constructive seizin of the whole ; where the entry into, and occupation of, a part, was under a vote of the town, assigning that part to their predecessor, and the rest to another.]</p>

<p>Assumpsit on a policy of insurance, for $7000, on the ship Neptune and appurtenances, $ 1000 on her cargo on board, and $2000 on freight, at and from Charleston, South Carolina, to Tonningen or Hamburg.</p> <p>[*289] *The interest of the plaintiff in the ship, cargo, and freight, the seaworthiness of the ship, and the facts stated in the deposition of J. B. Osgood, which came up in the case, were admitted by the parties ; and if the Court should be of opinion, on those facts, that the plaintiff was entitled to recover for a total loss on the sum insured on the freight, the defendants were to be default ed ; otherwise, the plaintiff was to become nonsuit, and the defendants to recover costs ; they having paid into court the amount of the general average loss on ship, cargo, and freight.</p> <p>The following facts are stated in the said deposition. The ship Neptune, of which the deponent was master, sailed about the 1st of September, 1807, from Charleston, South Carolina, bound to Tonningen, having a cargo principally on freight, and, in case the blockade of Hamburg should have been raised, she was to proceed to that place. On or about the 4th of October, she was taken possession of by an English vessel of war, and carried into Plymouth, in England, where she was detained until the fore part of November, and was then liberated. She then proceeded up the Channel, and was overtaken by a violent gale of wind, whereby she lost a cable rnd two anchors.</p> <p>Proceeding to Dover in order to repair damages, the master received a letter from the agent of the owner of the cargo in London, acquainting him .with the British Orders in Council having been issued and ordered to be carried into execution, and requesting him to come to London, to consult about the destination of the ship. At the same time the master received also a letter from the consignee of the cargo at Hamburg, informing him that the French decrees were rigidly enforced there, and therefore requesting him to proceed to Rotterdam, stating that the decrees might more easily be evaded there, but that at Hamburg the ship and cargo would inevitably be sequestered.</p> <p>After replacing the anchors, the master proceeded with the ship to Sheerness, as the nearest place of safety, and, going himself to London, was informed by Mr. Lyman, Consul of the United [ * 290 ] States, that he had received a letter from Mr. * Forbes, American Consul at Hamburg, requesting him to caution all Americans not to enter France, Holland, or Germany, after having been in a British port, and informing him that fines and imprisonment would be the consequence of false representations. Experienced merchants and learned lawyers, being consulted by the master, all concurring in opinion that he might lawfully terminate the " oyage in London, he took the ship there, tendered the cargo to the agent of the owners of it, and demanded his freight; which being refused, he landed the goods and retained them for freight. Shortly after, the agent, upon an application to the Court of Chancery, obtained an order for the delivery of the cargo, on paying into court £ 2000 sterling, as a pledge to secure the payment of the freight. But it was afterwards decided, in a suit commenced for the recovery of the freight, that none was due, because the terms of the charter-party had not been fulfilled.</p> <p>The cause was argued, at the last term, by Longfellow, for the plaintiff, and Whitman, for the defendants, and, being continued nisi from this term for advisement, judgment was rendered at the succeeding September term in Berkshire.</p>

<p>This was an action of the case upon a policy of insurance, dated March 20th, 1812, for $6000, upon the brig Lydia, valued at $7000, at and from Portland to one or more ports in the West Indies, and at and from thence to her port of discharge in the United States, against capture and condemnation only. The plaintiffs declared for a total loss by capture, in the first count, by a vessel unknown belonging to citizens of Hispaniola ; and, in the second count, by pirates, rovers, &c., on the 19th of April, 1812.</p> <p>On the trial before Putnam, J, at the sittings here by adjournment of the last October term, it appeared that proof of the loss was made, and an abandonment offered, on the 14th of May, 1812. The policy and interest were admitted.</p> <p>The plaintiffs proved, that, at the time of making the insurance, it was stated to the defendants that the vessel was bound to Port au Prince. They also read the deposition of Elisha Sawyer (a copy of which came up in the case), stating that he was master of the said vessel on the voyage insured ; that, on arriving in sight [*292] of Port au Prince, he was * hailed by an armed brig be longing to the King of Hayti, and ordered to come on board. The captain then informed the witness that he was fighting against Petion, who had possession of Port au Prince, that the King of Hayti wanted his provisions, and that if he, the witness, would go to St. Mark's, he should have a good price for his cargo ; but that, if he refused, he should send him. On the witness’s refusing, a prize-master and five men were put on board the' brig, and an armed schooner accompanied her to St. Mark's. On his arrival there, he was ordered on shore, and was carried before the Prince Gonaive, who said he wanted the cargo, and would pay the witness for it. The prince then, ordered the sails taken from the brig and brought on shore, and twelve men were placed on board. The witness then went on board the vessel, and on the third day after was, with all his crew, ordered on shore ; and being carried before the minister of justice, so called, he read to them a condemnation of the vessel and cargo. The next day the vessel was sold, and the cargo taken out and put into the King’s warehouse. The vessel was purchased by Messrs. Dodge and Myers, of Philadelphia, for the master, at the price of $ 4000, and he went in her to Philadelphia, where he sold her. He had never heard of the blockade of Port au Prince before his capture. The King of Hayti and all his officers were blacks, except his Majesty’s interpreter, who was a mulatto. The principal facts in the master’s deposition were confirmed by the testimony of the mate of the vessel. The defendants produced a copy of the condemnation,† which came up in the case, and contended that it thereby * appeared that the brig was condemned for [ * 293 ] a violation of the blockade of Port au Price, by the Emperor of Hayti, and that the decree was to be considered as conclusive evidence of the facts thereby decided.</p> <p>There was no evidence that Port au Prince was in fact blockaded at the time of the capture, other than what arises from the said decree of condemnation. Nor was there any evidence that the brig was notified of any blockade, or warned not to enter for that cause, prior to the capture. The collector of the customs for the district of Port land testified, that, since the expiration of the law of the United States prohibiting intercourse with St. Domingo, many clearances had been made from the United States for Port au Prince, and many clearances from Hayti to the United States. It was in evidence, that Christophe, or Henry, was the sovereign defacto of Cape Frangois and of that part of the island ; and that Petion was the sove- [ * 294 ] reign de facto of Port au Prince ; * that Petion and Christophe are at war with each other, each declaring the other to be in rebellion against France; but each claiming to have authority in his own dominions ; that they have their customhouses, and custom-house officers ; and ships of many nations, English, Spanish, American, &c., trade there, and business is regularly transacted ; that the United States have had a consul at Cape Frangois, since the government has been in rebellion against France ; particularly, that Colonel Lear was consul there when Toussaint was regent ; that protests, decrees, and other proceedings of the admiralty courts from Cape Frangois are frequently seen in the United States ; and that a proclamation of the blockade of Port au Prince by Christophe, or King Henry, was published here in June, 1812.</p> <p>The defendant further contended, if the decree of condemnation in this case was not conclusive, or did not prove that there had been a violation of blockade, that the purchase of the brig by the master wás for the benefit of the owners, and in the nature of a ransom ; and, therefore, that in any event the defendants were not liable for more than a partial loss.</p> <p>The plaintiffs replied to this, that the vessel was not bought for their account, and that neither the vessel nor the proceeds thereof had directly or indirectly come to their hands or possession. And there was no evidence produced by the defendants to controvert that statement.</p> <p>The plaintiffs objected to the admission‘,of the decree of condemnation, as conclusive evidence of the facts it decided ; contending that Henry, and those under him exercising the government of Cape Francois, were rebels, and their.proceedings not to be regarded as the acts of civilized nations ; and further, if they were so received, yet that there had been no decision, which necessarily involved the brig Lydia in the violation of a blockade.</p> <p>The judge, intending to reserve the questions of law in the case, overruled the objection, and, for the purpose of the trial, instructed the jury, that the decree must be considered * as conclusive evidence that the vessel was condemned for [* 2953-violation of blockade.</p> <p>The jury accordingly returned a verdict for the defendants, which, was taken subject to the opinion of the Court in the premises. If that opinion should be, that the said decree does decide and is conclusive evidence of a violation of blockade by the vessel, the verdict was to stand ; otherwise, the defendants were to be defaulted, and: judgment was to be rendered for a total or partial loss, in such sum. as, upon the facts before stated, the Court should determine the plain?tiffs ought to recover.</p>

<p>A., being imprisoned for debt, placed in the hands of B. sufficient property for his indemnity, who thereupon solicits C. to become bail for A., and promises, but not in writing, to save him harmless. This was holden to be an original and not a collateral promise for the debt, &c., of another, and therefore not within the statute of frauds.</p>

<p>Of the delivery of chattels, as necessary to transfer the property in them.</p> <p>Tt is a good delivery of timber in rafts in a river, to go within sight of it, and show it to the vendee as the timber conveyed. And it is not necessary that the vendee, in such case, should immediately take any other possession of the same than the possession they constructively give ; but he may suffer them to remain as they were when delivered, until he may have occasion to use them.</p> <p>A liability for another on a contract in force is a sufficient consideration for a mortgage or pledge; and the ratio of the consideration to the value of the thing pledged is of no importance.</p>

<p>A., having mortgaged land to B., conveys the same to C. with a covenant against incumbrances. C. conveys the same land to D. B. recovers possession under the mortgage, and the equity of redemption is foreclosed. C. brings his action against A. And it was holden that he was entitled to damages ; but, as A. was also liable to D., and might thus be twice charged, and as he had not paid off the mortgage, and had not been called on for damages by D., he was entitled to nominal damages only.</p>

<p>Assumpsit for the support of Betsey Savage, wife of James Savage, and Esther, their daughter.</p> <p>The cause was submitted to the decision of the Court, upon a statement of facts, in which it was agreed by the parties that the paupers had a legal settlement in flugusta, derived from the said James, and that the plaintiffs had duly expended the sum demanded in this action, in the support of the said paupers, within three months previous to the following notice, sent by the overseers of the poor of Embden to the overseers of the poor of Augusta.</p> <p>“ Gentlemen, — You are hereby notified that the family of James Savage, now residing in the town of Embden, in the county of Somerset, have become poor, and have applied to the overseers of the poor of said town of Embden for relief ; and, understanding that the legal settlement of said Savage is in the town of Augusta, in the county of Kennebec, you are hereby required to make immediate provision for the support of said family, or remove them to said town of Augusta, and pay the charges that have already accrued for their support.” Signed by the overseers of Embden, and dated April 28th, 1813.</p> <p>To this notice the overseers of Augusta replied as follows, namely ; — “ Gentlemen,— We hereby inform you, that the family of James Savage, whom you describe in your letter, are not inhabitants of this town, and have no legal settlement therein ; and that we utterly refuse to contribute any thing towards their support, or to remove them from your town, or to pay any charges that have already accrued * by their being supported at the expense of the [*308] town of Embden.” Signed by the overseers of Augusta, and dated May 3d, 1813.</p> <p>If, upon the facts stated, the Court should be of opinion that the defendants were chargeable in this action, they were to suffer judgment to go against them by default ; otherwise, the plaintiffs were to become nonsuit.</p>

<p>A sheriff, having an execution which he has not begun to execute, cannot seize goods which belonged to the judgment debtor at his death, he having died after the issuing of the execution.</p>

<p>Case against the defendant for building a dam across the stream called Cobbissee, by means whereof the water of the said stream was flowed back upon a dam built by the plaintiff across the same stream above the dam erected by the defendant, so as to prevent the working the plaintiff’s mill.</p> <p>The defendant pleaded, first, the general issue, which was joined by the plaintiff. Second, in bar, that the plaintiff was never possessed of the close mentioned in his writ and' declaration, in which the said mill therein mentioned is situated ; and tenders an issue to the country, which was joined by the plaintiff.</p> <p>In a third plea in bar, the defendant alleges, that he is seized in fee of one half of the land over which the said stream flows, namely, the northeasterly side thereof, and of the close at the northeasterly end of the dam erected by the plaintiff; that the plaintiff, at the time of erecting his said dam, or at any time since, had and hath no right of entry, but, without right or authority of law, and against the will of the defer iant, erected said dam, and the same hath continued, against the will and consent of the defendant, to the time of the commencement of this action ; and that he *is [*312] seized in fee of all the land flowed by said stream on the northeasterly side of the centre line thereof, between his, the defendant’s, said mill-dam and the dam erected by the plaintiff, and of the land on each side and adjoining his, the defendant’s, said mill-dam ; wherefore the defendant rebuilt his said dam, &c-, which he lawfully might do, and which is the same building, &c., complained of by the plaintiff, &c.</p> <p>To this plea the plaintiff demurs generally, and the defendant joins in demurrer.</p>

<p>This was a libel for a divorce from the bonds of matrimony, for the cause of adultery, in which the domicil of the libellant is [*313] stated to be in Farmington, in this county, *and it is alleged that the respondent has removed from thence to a place called Lyons, in the State of New York.</p>

<p>The defendants were jointly indicted and tried for a larceny, and the jury, after having been some time withdrawn, returned into Court, and suggested that they were agreed in a verdict as to one of the defendants, but could not agree as to the other, their opinions differ ing as to the weight of the evidence.</p> <p>The Attorney- General objected to receiving" a verdict, unless on the whole matter committed to them.</p>

* This was an action of trespass for the mesne profits [*314] of the lands and tenements described in the writ, during the time therein set forth.

<p>When, in consequence of a notice to the overseers of the town in which a pauper has his legal settlement, they provide for him ; if the pauper afterwards receives aid from the same town which gave the notice, a new notice is necessary in order to charge the town of the pauper’s settlement.</p>

<p>[*317] * This was assumpsit for the reimbursement of expenses incurred by the plaintiffs for the support of one Ann Crouch, who was a pauper and in distress at Readfield ; but whose legal settlement was in Dresden. The action was commenced in August, 1811.</p> <p>A verdict was taken before the present Chief Justice, October term, 1813, by consent, for $280.90, subject to be reduced by the Court to the sum of $80, with interest from April 10th, 1811, if the Court should determine that no more was, by law, recoverable upoP the following facts.</p> <p>“It is agreed, that no other notice was given by the overseers ft Readfield to the overseers of Dresden of any expenses incurred ba fore April, 1811, than that which was given in August, 1808 ; which it is agreed was sufficient at that time. But the defendants contend, that, no suit having been commenced until more than three years after the date of that notice, the plaintiffs have lost their remedy for any expenses then incurred.</p> <p>“ It is also agreed, that all the expenses beyond the sum of $ 80 were incurred by one Constant Norton, an inhabitant of the town of Readfield, after notice to the overseers of that town, and a request that they would support the pauper, who refused or neglected so to do. The said Norton afterwards commenced an action against the inhabitants of Readfield, for the money due to him on account of said expenses, and, in October, 1810, recovered judgment for the same, which has been satisfied. On the 15th of January, 1811, further notice, sufficient in point of form, was given to the overseers of Dresden.</p> <p>“ If the Court should be of opinion that the defendants are liable for the sum so paid to Norton by the plaintiffs, the ver[*318] diet is to stand ; otherwise, to be so altered as to * stand for the sum of $ 80, with interest as before stated, and judgment rendered accordingly.</p>

<p>Since the statute of 1805, c. 100, a certificate of two magistrates, that a debtor has taken the oath prescribed in the statute of 1787, c. 29, will not protect such debtor from a forfeiture of a bond given by him for the liberty of the yard.</p>

<p>One having a mortgage made to secure a debt due to himself, and another debt due to a third person, engaged, that, when he could, by any sale or appraisement of the mortgaged premises, realize a sum equal to both the debts, he would dispose of the same, and apply the proceeds to the payment of the debt due to said other creditor. Having sold the premises for the most they would fetch, but not for enough to pay both debts; it was holden, that he might lawfully first satisfy his own claim, and pay the residue only to the other creditor.</p>

* This was a writ of entry sur disseizin, to which the [*325] tenant, at the return term in court below, pleaded in abatement that he was not tenant of the tenements demanded as of freehold ; and averring that John Peters and Sabin Pond were tenants thereof as of freehold.

<p>A pauper is not liable to the action of the town, wherein he is lawfully settled, for any moneys paid on his account in character of a pauper.</p>

<p>The act of 1807, c. 74, for the limitation and settlement of real actions, does not extend to a case where one is in possession under a contract for a title from the owner of the land, although the time has expired within which he could demand a title from the owner.</p>

* Assumpsit for the support of Lydia Dow, a pauper, [*333] which was tried on the general issue, before Thatcher, J., at the sittings here after June term, 1813.

This was a writ of entry of the demandants’ own seizin within thirty years of a parcel of land in the town of Ellsworth. * The tenant as to a part of the demanded premises [*335] pleaded the general issue, and disclaimed as to the residue. The cause was tried at the sittings here after the last June term, before the present Chief Justice.

<p>An ordained minister, not settled in any particular parish, is not exempted from taxes by the statute of 1811, c. 6.</p>

This was a petition for partition of a certain lot of land lying m Hampden in this county, in which the said Mayo fy al. alleged themselves to be seized of a certain share in common with persons to them unknown.

[* 348] * This was a petition for partition of a certain tract of land situate in Plympton, in the county of Plymouth, of a moiety of which the petitioner alleges himself to be seized in fee, as tenant in common with the respondent, who pleads that he is sole seized of the premises, and traverses the tenancy in common of the petitioner, on which issue is joined.

This action, which was brought to recover the amount of certain expenses incurred by the plaintiffs in the support of Humphrey Mien, Perry Trip, and Lydia Trip, was tried upon the general issue before the Chief Justice, at an adjourned session of the last October term in the county of Bristol, holden at Taunton in May last.

<p>This was an appeal from a decree of the judge of probate of the county of Barnstable, approving and allowing the last will and testament of Thomas Snow, late of Harwich, in said county, deceased.</p> <p>The reason assigned for the appeal, pursuant to the statute,(1) was, that the said testator was not, at the time of executing -the supposed will, of sound and disposing mind and memory. All the requisites of the law having been complied with on the.part of the appellant, and the appeal having been entered October term, 1813, at Barnstable, an issue was directed by the Court and joined by the parties, to try by jury the sanity of the testator ; but, the original will not being then produced in court, the cause was continued to the next term, October, 1814, when it proceeded to trial.</p> <p>The said John Dillingham was a subscribing witness to the will, and, with Thomas Snow, Junior, appointed executor thereof.</p> <p>Before the trial came on, doubts having been suggested of Dillingham's competency to testify on the trial, although he had no bequest or devise to him in the will ; he moved for leave to surrender and resign his appointment and trust of executor to said will.</p> <p>* But it was determined by the Court, that, having ac- [*3591 cepted the trust, and given bonds faithfully to perform it, he could not afterwards be permitted to renounce.†</p> <p>At the trial, the said Dillingham was offered, on the part of tht, executors and devisees, as a witness to prove the execution of the will and the sanity of the testator ; but, on motion of the appellant, he was rejected as incompetent, on the ground of his being a party to the process liable to the payment of costs, if the decree of the judge of probate should be reversed.(2)</p> <p>Upon the testimony of the two other subscribing witnesses, and much other evidence, a verdict was returned upon the issue, that the said testator was of sound and disposing mind and memory at the time of executing the said will.</p> <p>An objection was then taken by the counsel for the appellant, that the will was not authenticated pursuant to the statute of 1783, c. 24, § 2, which requires the attestation of three credible witnesses.</p>

<p>One, not having sufficient understanding to be able to make a valid contract respecting property, or to deal with discretion in the common affairs of life, cannot contract matrimony ; and a supposed marriage with such an one by a female does not change the place of her lawful settlement.</p>

<p>Where, on the hiring of a cow for a year, a promise was given in writing by the borrower to return the cow, in a year, with six dollars in cash, and, if not then delivered, to pay six dollars a year until delivered ; it was holden that the promissee was entitled to the six dollars for one year only, and legal interest afterwards on that sum and on the value of the cow until the delivery, and on the sum so due until payment.</p>

<p>A bond given to the Judge of Probate, by one to whom the whole of the real estate of his ancestor had been assigned, conditioned to pay to the other heirs their respective proportions of such estate, is extra-official, and not such a probate bond as authorizes an original suit upon it in this Court.</p> <p>Upon the abatement of a suit so brought, the Court awarded costs for the defendant.</p>

<p>This was an action of replevin, to which the defendants pleaded property in a stranger ; replication, property in the plaintiff, and issue thereon.</p> <p>This issue was tried at an adjournment of this Court for the county of Bristol, held at Taunton, in May, 1814, before the present Chief Justice.</p> <p>The facts proved at the trial, as reported by the judge, were as follows. On the third of February, 1812, the defendants, being owners of a certain ship, entered into a charter-party with one E Brown, as agent of the company of Brown and others, merchants of Plymouth, in England, by which charter-party the defendants were bound to send the said ship to Savannah, in Georgia, there to take in a cargo of timber and other wood, and proceed to Plymouth, or some other port in England. The ship proceeded to * Savannah, and there took in a cargo, pursuant to the [* 371 charter-party ; which cargo was purchased for and in behalf of the said house in England, by the said E. Brown, their agent. After the ship was loaded, and before she could go to sea, the act of the United States laying an embargo had passed, and, on the 15th of April, 1812, notice of it reached Savannah ; which prevented the ship from sailing. An agreement in writing was then made, by the said E. Brown and the master of the ship, that the ship should be carried to New Bedford, there to remain until the embargo should cease. Before this, the master of the ship had signed bills of lading in the usual form, one of which had been sent by the said agent to the house in England. After the ship arrived at New Bed-ford, war was declared between the United States and Great Britain. The said E. Brown testified, that his principals in England had, by letter, authorized him to dispose of the cargo in America, on account of the war, and that, in pursuance of said authority, he sold the same to the plaintiff for a valuable and sufficient consideration, of which he gave immediate notice to the defendants. After the purchase, the plaintiff came on to New Bedford and claimed the cargo, and tendered to the said Delano the sum of $ 220, for the expenses of unlading the cargo, dockage, &c. But the defendants refused to deliver the cargo, alleging that they ought to be paid their freight, at least from Savannah to New Bedford, and that they had a right to retain the property until the bill of lading, which had been sent on to England, was returned or cancelled. The defendants also offered evidénce to show that the plaintiff, as owner, had derived an advantage from the removal of the timber from Savannah to New Bedford, which was rejected ; and the jury were instructed, if they believed that the sum tendered was sufficient to indemnify the defendants for unlading the cargo, and for the charge of dockage, &c., to find a verdict for the plaintiff, which they did.</p> <p>The defendants moved for a new trial, because E. Brown was admitted as a witness, and because the jury were misdirected in matter of law.</p>

<p>This was a writ of entry sur disseizin, wherein the demandant claims the possession of the land described in her writ, and situated in Bridgewater, in the county of Plymouth, having counted upon her own seizin within thirty years, and a disseizin by the tenant; and issue was joined upon the plea, which denies the disseizin.</p> <p>At the trial of this issue, which was had at an adjournment of the last October term, in Plymouth, holden here by the Chief Justice m April last, it was admitted that one James, a native Indian, or aboriginal, was formerly seized of the land demanded, and that he died seized thereof, leaving a son, and a daughter named Hannah, who was the mother of the demandant; the said Hannah having been lawfully married to one Dunbar, and the demandant being the lawful issue of that marriage. The said Dunbar was a negro or mulatto, and the said Hannah was an Indian of. the whole blood. The demandant was born in the town of Stoughton, in the county of JVorfolk ; and from thence, soon after her birth, her father and mother removed to Randolph, in the same county. From thence they removed to the State of Vermont, carrying the demandant, then very young, with them. Her father and mother are since dead. She has continued to reside in the State of Vermont, and has never [ *374] been in Bridgewater, except on a visit before the * commencement of this suit, when she entered upon the demanded premises.</p> <p>The tenant defended under two resolves of the legislature, passed February, 1811, and February, 1814. The first of the said resolves appoints him guardian of all the Indians residing in Bridgewater and owning lands therein, with all the powers which are, by the laws of the Commonwealth, given to guardians in other cases ; provided he first gives sufficient bonds to the judge of probate, &c. The second of the said resolves recites, by way of preamble, that doubts had arisen, whether his power extended so far as to authorize or require him to take care of the land situated in Bridgewater, but not owned by Indians actually residing therein ; and thereupon provides that he be, and shall be considered to have been, made and appointed guardian by virtue of his former appointment, over all the Indians residing and owning lands in said town, and also over all the Indian lands situated therein, whether the owners thereof reside there or not ; provided, that such persons have not other guardians within this Commonwealth, and that he give bonds, &c., as before. The last resolve passed on the application of the tenant, after the commencement and during the pendency of this suit. The tenant had no other claim to the land demanded, but under said resolves.</p> <p>A verdict was taken for the demandant by consent, which was to be set aside, and the demandant to become nonsuit, if, in the opinion of the Court, the tenant ought by law to hold said land in virtue of the said resolves ; otherwise, judgment to be entered according to the verdict.</p>

<p>A father, having a minor son, agreed that he should have the benefit of his ow t earnings; but from time to time received those earnings, and, being then in good circumstances, he purchased land to an equal value, which the grantor conveyed by deed to the son, the, father paying the consideration for the same. The title of the son was maintained against the creditor of the father, who had levied his execution thereon as the father’s, he having absconded insolvent.</p>

<p>Where a judge of probate recovers judgment upon an administration bond, for the benefit of sundry persons entitled to distributive shares of the estate, but one bill of costs is to be taxed.</p>

<p>This was an action of ejectment upon a mortgage of an undivideu moiety of certain lands in Taunton, alleged to have been made by one Nehemiah Liscome to Henderson Inches, the plaintiff’s intestate, dated September 24th, 1773, acknowledged and recorded the same day, conditioned for the payment of £ 87. 16s. 10d., lawful money, in three months from the date, with interest, according to the tenor of a promissory note of the same date from the mortgagor to the mortgagee.</p> <p>* On the trial of the action, which was had upon the [ * 380 j general issue, before the Chief Justice, at an adjourned session of the last October term in Bristol, holden at Taunton in May last, the plaintiff produced, in evidence, a certified copy of the mortgage deed declared on. No note was produced ; but there was testimony, on which the plaintiff relied, that, during the possession of the town of Boston, of which the said intestate was an inhabitant, by the British troops in the Revolutionary war, the shop and counting-room of the said intestate, in which many of the papers were kept, were exposed, and many of his papers were lost.</p> <p>There was no evidence of possession or demand of possession, until within a few weeks before this suit was brought ; nor any evi- * dence of demand of payment of the note of hand. But the plaintiff proved, that, in the year 1776, the said Liscome, the mortgagor, left Taunton in embarrassed circumstances, and went to New York, then held by the British, where he acted as a suttler to the troops, and was, during that year, assassinated by some of the troops.</p> <p>The defendants produced, in evidence, an attested copy from the registry of a deed from the said Liscome, conveying one moiety of the same land to Edward Church in fee, dated May 26th, 1773, and acknowledged and recorded on the same day ; also a deed of release and quitclaim from the said Liscome to the said Church, datsd April, 1774, acknowledged and recorded on the 9th day of said April, conveying the other moiety of the said land, being the same moiety which was conveyed to the plaintiff’s intestate, as before mentioned ; also, an original deed, conveying one undivided moiety of said land from said Church to Samuel Leonard, under whom the defendants hold, dated October 14th, 1779, acknowledged on the same day, and recorded on the 22d day of the same October ; under which deed the said Leonard entered and took possession of the whole tract, and the same had been holden by him and his legal representatives until the time of the trial.</p> <p>[* 381] * A nonsuit was directed, with liberty to set it aside, in order that the opinion of the whole Court might be taken, whether the copy of the mortgage deed, under the circumstances aforesaid, could be legally admitted in evidence ; and, if it could, whether the plaintiff’s action could be maintained, without further evidence to encounter the presumption, that the debt, secured by the mortgage, had been paid, and also whether the right of action was not gone by lapse of time. If the Court should be of opinion with the plaintiff, the nonsuit was to be set aside, and a new trial granted</p>

<p>The laws of the province, previous to April, 1767, which required the warning of persons out of a town, to prevent their acquiring a settlement, did not extend to minors although illegitimate ; nor did the provisions of the statute of 1809, c. 14, relative to the same point, establish a new rule on the subject.</p>

<p>Entry sur disseizin, to recover possession of a certain parcel of land in Somerset, in the county of Bristol.</p> <p>The action was referred to the decision of the Court upon certain facts agreed, to the following effect. The tenant, Beers, on the 11th day of June, 1810, being seized in fee of the demanded [*388] premises, mortgaged the same to John Winslow, *as collateral security for the payment of a sum of money. On the 8th day of August, 1811, the right in equity to redeem the demanded premises, remaining in Beers, was duly sold by a deputy sheriff, upon an execution against him, and was purchased by one Robert Slade. Afterwards, on the same day, another deputy sheriff undertook to sell the same right upon another execution against Beers, and, accordingly, made a deed thereof to one William Mason. On the 13th day of the same August, the same right was again taken upon an execution against Beers, in favor of Lettice Lawton, then sole, but since married to the demandant, Kelly, and the officer made a deed for the conveyance thereof to her.</p> <p>If, upon the facts agreed, the demandants were entitled, in the opinion of the Court, to recover possession of the demanded premises against the tenant, Beers, he was to be defaulted, and the demandants to have judgment for possession and costs ; otherwise, the demandants were to become nonsuit.</p>

<p>Where a legacy shall he taken to be in satisfaction of a debt due from the testator ; and where not.</p> <p>[Where the testator gave a bond conditioned to pay a certain sum of money on marriage of the obligee or the testator’s death, and also agreed in writing to pay the obligee a certain sum annually, besides necessaries, while she should serve in his family, and afterwards, by will, bequeathed to her, in consideration of her meritorious services, a pecuniary legacy less than the sum mentioned in the condition of the bond, and household furniture, rents, and specific articles much exceeding that sum, and devised over all the residue of his property, after payment of his debts and legacies ; held, that the legacies should not be taken to be a satisfaction of the bond-debt.]</p>

<p>'1 his was an action of covenant broken, brought against the defendants, as children and heirs of Abraham. Burrell, late of Sheffield, deceased intestate. The plaintiff declares on a deed of the said Abraham for the conveyance of a certain piece of land to .the plaintiff in fee simple, with a covenant of general warranty ; and the breach alleged is an eviction by fVilliam Spaulding and others, by an elder and better title, since the decease of the said Abraham.</p> <p>[ * 396 ] * The defendant, David Burrell, pleads, first, that he has no lands by descent from the said Abraham. To which the plaintiff replies, that he has divers lands, &c. To which there is a rejoinder and issue. Secondly, that he has no lands by descent, except one eleventh part of three certain pieces, which are described in the plea. To which the plaintiff replies, that he has divers lands, other than those specified in the plea, sufficient to satisfy the plaintiff for his damages ; on which there is a rejoinder and issue.</p> <p>The other defendant, Jabez Burrell, pleads two like pleas, to which there are like replications, rejoinders, and issues.</p> <p>These issues were tried at the sittings here, after the last September term, before Jackson, J., when a verdict was taken for the plain tiff on all the issues, subject to the opinion of the Court ; and to be set aside in whole or in part, or to be altered, as the Court should direct upon the following case reported by the judge.</p> <p>The said Abraham Burrell died in November, 1798, leaving eleven children and heirs. In 1809, when the plaintiff was evicted, eight of those children lived in the State of Neiv York. The two defendants lived in this State, and the other child, who had also lived here, was then dead, leaving sundry children who then did and still do live in this State.</p> <p>The whole damage sustained by the plaintiff, including the value of the land conveyed to him, and his costs and expenses in the suit brought against him to recover it, were assessed by the jury at $ 1839.77 ; to which they added $529.26 for interest to the time .of their verdict ; making, in the wholej $ 2369.03. It was proved, that the said Abraham died seized of the three parcels of land mentioned in the second plea of the defendants, the value of which is $ 474</p> <p>There is another piece of land, called the home-lot, of the value of $ 1500, of which the said Abraham was seized in his lifetime, and which is now held by the said Jabez; as to which it appeared, that, some years before the death of the said Abraham, it was agreed between him and the said Jabez, that their business of waggon-making and farming * should be carried on by them [*397] jointly, until Isaac Burrell, the youngest son of the said Abraham, should arrive at full age ; the father to have two thirds, 'and the said Jabez one third, of the profits of the said business ; and that, when the said Isaac should come of age, the father should relinquish all concern in said business, and that he and his wife should be maintained by the said Jabez, who was to have the said home-lot as a consideration therefor. The said Abraham continued to labor and attend to the said business until about ten days before his death, and he died before his son Isaac arrived at full age. The said Jabez has ever since maintained his mother, the widow of the said Abraham, she still living with him.</p> <p>There was a deed made and signed by the said Abraham, as an escrow, for the conveyance of the said home-lot to the said Jabez ; but the deed was not produced at the trial, and there was no evidence of its delivery, nor of the time or manner of its execution by the said Abraham.</p> <p>The said Jabez has been in possession of the said lot ever since the death of his father.</p> <p>The defendants objected, that the action could not be maintained against them jointly, there being other heirs of the said Abraham Burrell within the State, who are not sued ; and that, if the action is maintainable in this form, they are liable only to the extent of two eleventh parts of the value of the said three pieces of land specified in their respective pleas. They also objected, that the declaration contained no averment, nor did it appear, that administration had been granted of the goods and estate of the said Abraham; and that the time prescribed by statute for the limitation of suits against administrators had not expired.</p> <p>At the present term, the parties agreed that no administration had ever been taken upon the estate of the said Abraham Burrell, and that this fact should be considered as if stated in the report of the judge.</p>

<p>Where the act incorporating a town could not be found, paroi evidence tending to show its existence and loss was admitted; and, after more than thirty years’ use of the powers and privileges of a town, such evidence was holden to be competent evidence of the incorporation.</p> <p>Where a citizen of the Province of Massachusetts Bay, for a valuable and sufficient consideration, purchased the use of a slave from his owner, living in New Jersey, for ten years, and the slave lived ten years here in the service of such citizen, it was holden, that he gained no settlement here in right of the purchaser, or as derived from him.</p>

<p>* Assumpsit to recover the contents of a promissory [ *403] note for $ 400, said to have been made by F. <y C. Dickinson, of Northampton, payable to the defendants, or their order, and by them indorsed to the plaintiffs, bearing date at Hartford, December 31st, 1812, and payable, in ninety days after date, at the Hartford Bank, in the State of Connecticut.</p> <p>At the trial of the action, before Jackson, J., April term, 1814, it appeared in evidence, that the promissors failed and stopped payment on or about the 25th of March, 1813. The note was, on the 29th of March, delivered by the plaintiffs, in Hartford, to an agent of theirs, who on the next day brought it to Northampton, and, on the 31st of said March, in conversation with one of the said promis sors, informed him, that he, the said agent, then had that [*404] note, with others signed * by the said F. Sf C. Dickinson. The agent testified, that he supposed he then told them that he had received the said note for collection ; but he did not recollect the particulars of the conversation. He did not then present the note for payment, nor make any demand thereof; nor did he then call on them for the purpose of making such demand.</p> <p>On the next day, being April 1st, 1813, the said agent presented "the note to one of the promissors in Northampton, and demanded payment thereof; and, not receiving payment, he went immediately to the defendants, who lived in Northampton, and gave them notice of this demand and refusal, and also notice that the holders would look to them, as indorsers, for the payment thereof.</p> <p>The judge, being of opinion that the demand of payment from the promissors, and the notice to the indorsers, were made and given too late, being after the expiration of the ninety days limited in and by the note, directed the jury to find a verdict for the defendants.</p> <p>The jury returned a verdict accordingly ; and the plaintiffs moved for a new trial on account of the said direction of the judge.</p>

<p>Of the damages to be assessed in suits of replevin bonds.</p> <p>[These damages should be composed of the damages and costs awarded in the re plevin suit, if unpaid, with lawful interest from the time of that judgment, and, in ordinary cases, of the value of the goods replevied, with six per cent, on that sum, from the time when the goods ought to have been returned on the writ of restitution ; and, if the goods have been seized on execution at the time when they were replevied, or if execution had afterwards issued in the suit in which they were attached, and had been delayed in consequence of the detention of the goods by the plaintiff in replevin, then the interest on the value of the goods is to be at the rate of twelve per cent, for the time of such detention, which is equal to six per cent, upon the penal sum of the bond, as provided by the statute.]</p>

This was an action of debt on a bond given to the plaintiff, as judge of probate for this county, by William Eaton as principal, and the defendant with Stephen Pynchon as sureties, conditioned for the said Eaton's faithful performance of the trust of guardian of Timothy Danielson and Eli Danielson, minors and children of the late Hon Timothy Danielson, deceased.

<p>This was a writ of entry, in which the demandants counted upon their own seizin within thirty years, and upon a disseizin by the tenant.</p> <p>At a trial upon the general issue, before Putnam, J., at the last April term, the demandants produced in evidence a copy of the votes and proceedings of the town of Springfield, at a town-meeting, held on the 3d of February, 1684, from which it appeared, that a tract of land, extending four miles in width from the eastern line of the township, and extending in length from the northern to the southern boundary thereof, including the demanded premises, was, by a vote of the town, “ granted, and agreed to be laid out in propriety, to each [then] present inhabitant and proprietor, his heirs, and assigns, for ever.”</p> <p>They further proved that a survey, and division of the same into three divisions, was made by the order of the grantees, under the name of “ the proprietors of the outward commons, so called,” June 4th, 1729 ; that the return thereof by a surveyor was by them accepted on the 23d of the same June, and afterwards on the 27th of March, 1738, ordered to be recorded in the books of the proprietors. It appeared, also, that, soon after the measuring and sur veying of the three divisions, the same were subdivided into lots.</p> <p>The demandants offered to show by paroi testimony, that there is an overplus, as it is called, between the lots of the first division and those of the second division ; which overplus had not, in fact, been allotted, and had not been occupied, until the tenant entered within thirty years, claiming the same. But they admitted that there had been no act or proceeding on the part of the town of Spring-[*416] field, since *the said allotment, until within twenty years, claiming said overplus land, or setting up any title thereto ; and no evidence was offered to show that the town of Springfield, or any person by their authority, had, since the year l^Sd, actually entered into or taken possession of the land demanded.</p> <p>The judge being of opinion that the demandants had not proved that they were seized within thirty years, he directed a nonsuit, subject to the opinion of the whole Court; and, if that opinion should be that such testimony ought to have been admitted, and that the demandants were seized within thirty years, the nonsuit was to be set aside, and a new trial granted.</p>

<p>An attorney, who has received money due to his principal, with directions to pay it over, pursuant to an agreement [between the principal and himself] with a third person, may be compelled to pay it to his principal at any time before he has paid it over to such third person [whenever the plaintiff may rescind the agreement],</p>

<p>This was an action of assumpsit, and was submitted to the determination of the Court upon the following facts agreed by the parties.</p> <p>[*426] * Samuel L. Scammell died testate, leaving two sons, John and Alexander, his only heirs at law. In the last will and testament of the said deceased, which has been duly proved in the county of Norfolk, was a devise in the following words, namely : — “ I give and bequeath unto my beloved daughter, E¡de Scammell, wife of my son, Alexander S., and to her heirs, namely, Samuel S., Daniel S., Lisle S., children of my beloved son, Alexander, and the said Ede, as also all the children which may be born of her the said Ede, while the lawful wife of my said son, Alexander S., all and singular my old homestead farm that 1 own in Milford, whereon my said son, Alexander, now lives, with all the woodland and meadow land thereto belonging, which he, the said Alexander, doth now improve, in manner following; that is to say, to the said Ede, the sole use and improvement of one third part of the same, so long as she shall live after the decease of my son, Alexander, if it should ever please God to order her to be left his widow ; and the other two thirds of said lands and buildings to be equally divided between my said grandchildren now born, and those that may hereafter be born to them, the said Alexander end Ede S., their heirs, and assigns ; as well the reversion of the third part, as the other part without reserve ; it being in full of what I heretofore intended to have given to my son, Alexander, as his share.”</p> <p>The said Alexander and Ede are now living. The defendant has been appointed guardian to their said children, and, in virtue of his said appointment, has entered into possession of the said premises so devised as aforesaid, taking the profits thereof for the benefit of his said wards.</p> <p>The plaintiff, having recovered a judgment against the said Alexander, for the sum of $ 347.65, levied his execution, which issued upon the said judgment, upon one moiety of the rents and profits of the lands and buildings aforesaid, for a term of years ; and this action is brought to recover of the defendant the said moiety of the rents and profits aforesaid. And if, in the opinion of the Court, the * said rents and profits could be lawfully so taken to [*427 ] satisfy the said execution, the defendant agreed that judgment should be rendered against him upon default, for the sum of -; otherwise, the plaintiff agreed to become nonsuit.</p>

This was a petition of the inhabitants of the town of Petersham for leave to review in this Court an action of assumpsit, heretofore prosecuted against them by the inhabitants of the town of Dana, for the recovery of expenses incurred in the relief and support of one Betsey Haven, and her four infant children, alleged by the plaintiffs in that action to have had their legal settlement in Petersham.

* This was a writ of scire facias against the defendant, [ *434] as bail of one Parley Rice, in which the plaintiff sets forth a judgment recovered by him, at the Court of Common Pleas for this county, holden in March, 1813, against the said Rice, for the sum of $23.50 debt, and $ 8.75 costs.

<p>The declarations of a grantor are not to be given in evidence, to defeat his deed.</p>

<p>An attorney of this court having money in his hands, collected by him in the course of his profession, is liable as the trustee of the party for whose use such money was received.</p>

<p>A Quaker, who claims an exemption from duty in the militia, must prove that he is a member of a society of that denomination, and that he frequently and usually attends with such society for religious worship.</p>

<p>The legislature has power to revoke an exemption from serving in the militia, before granted to a certain class of citizens, and to require them to do military duty.</p>

<p>Where the administratrix of a surety was sued for the debt, more than four years after taking administration, and, instead of pleading the statute of limitations, submitted all demands to referees, who awarded that she should pay the debt; the principal was held liable to the heirs of the surety, upon a mortgage made to them, conditioned to save them harmless from such debt.</p> <p>A grant “ to the heirs at law of a deceased person ” is good ; for the grantees may be ascertained by extrinsic evidence.</p>

<p>An action for a neglect of duty by a deputy sheriff may be brought either against the deputy or the sheriff.</p>

This action, which was in assumpsit, was submitted to the decision of the Court an agreed statement of facts. [*451] * From this statement it appeared, that the plaintiff was justly entitled to recover the sum of $ 190.25, demanded by him, except so far as the facts hereafter stated amount to a discharge. Prior to the commencement of this suit, the defendant paid to the plaintiff the sum of $ 147.80, for which he took the plaintiff’s receipt on account generally.

Assumpsit. The declaration contained three counts. The first was for supplies furnished to one Joseph Child, with his wife and children, found in Needham, and standing in need of immediate relief, from the 1st day of April, 1810, to the 24th day of March, 1812, the date of the writ, with an averment that Newton had notice within three months, namely, on the first day of June, 1810.

<p>In the appointment of commissioners to assign to a widow her dower, the judge of probate is not confined to freeholders of the county where the husband last dwelt.</p>

<p>Of fraudulent conveyances to defeat creditors.</p> <p>What shall constitute a defeasance. [It is not necessary that the dates of the two instruments should be the same, in order that one may be a defeasance of the other ; it is sufficient, if they were both delivered at the same time.</p> <p>An insolvent debtor conveyed, by an absolute deed, estate valued at $40,000 to one, who, with his partner, had become liable for him by indorsing promissory notes, and as sureties, in the whole, to the amount, as then estimated, of $ 20,000, and took back a writing, not under seal, whereby the grantee promised to reconvey the premises on being indemnified from loss by reason of such liabilities. Held, that this conveyance was valid against an attaching creditor of the grantors, in the absence of fraud. And the grantor having afterwards sold part of the premises, and the grantee released to the purchaser, and the grantor and grantee and his partner afterwards having come to an agree ment, pursuant to which, the written promise aforesaid was delivered up, and the lands held by the grantee under the agreement to pay for them at an esti mated value, in the notes indorsed as aforesaid, which had been taken up, and others also indorsed as aforesaid to be taken up, against which the grantee and his partner agreed to indemnify the grantor, and also, that, if the estimated value of the lands should exceed the amount which the grantee and his partner had paid and agreed to pay for the grantor, that the grantee should reconvey to the grantor a part of the lands equal to such excess. Held, that the conveyance was still valid against the attachment and seizure thereof in execution, subsequently, by a creditor of the grantor, no fraud being shown.]</p>

<p>Where the legislature authorizes the making a canal, and provides a special mode of redress for those who are injured in their property by the natural and necessary effect of making the canal, no action for such injury lies at the common law.</p>

<p>This was an action of covenant broken, brought upon a deed made to the plaintiff by the defendant on the 22d day of May, 1809, purporting to convey to him in fee, “ a certain piece of land in Cambridgeport, measuring on Worcester Street twenty-two feet and a half, and keeping the same width seventy feet, back to another way, with all the privileges and appurtenances to the said lot belonging, meaning to convey thereby the same lot which was conveyed to the said grantor by John M’Neil, by his deed dated October 29th, 1807, including one half of the brick wall mentioned in the deed last aforesaid.” The declaration sets forth two covenants, contained in said deed, namely, that the grantor was lawfully seized in fee of the premises, and that he had good right to sell and convey the same as aforesaid ; and alleges a breach of both these covenants.</p> <p>The defendant pleads that he was seized, and had good right to convey, &c., according to his covenants. The plaintiff replies, that, at the time of executing the said deed, one Benjamin Whitman was seized in fee of the premises, and that he alone had good right to convey, &c., and traverses the seizin and right of the defendant. The defendant rejoins, maintaining his plea, and tendering an issue, which is joined.</p> <p>This issue was tried at the sittings here after November term, 1813, before Jackson, J., from whose report of the trial it appears, that the action was brought to recover the value of one half the brick wall mentioned in the declaration, with the land under the same ; the grantor’s title to the residue of the premises being undisputed.</p> <p>[* 470] * It was in evidence, that Noah Porter, on the 8th of January, 1806, was seized of the lot in question, and of another adjoining lot of equal dimensions, and on that day conveyed the lot in question to Abijah Ruggles, and the other to Oliver Willet. On the 4th of March, 1806, Willet conveyed his lot to Martin Sikes. On the 18th of July, 1806, Ruggles and Sikes agreed to exchange their lots, and, at the same time, Sikes agreed to sell the lot, which he was to take on that exchange, to John M’Neil. Accordingly, Sikes, on that day, conveyed the lot which he then held, to Ruggles, and Ruggles on the same day conveyed his lot to M’Neil. Porter, at the time of the conveyances above mentioned, was the owner of a third lot .adjoining that sold by him to Willet, on which was a brick house ; and in his deed to Willet, he included m the premises granted, the one half of the wall of that house ad joining Willet’s lot.</p> <p>In July, 1806, there was no building on either of the other two lots ; but Ruggles then intended to build á brick house on the lot which he received in exchange, and, in his said deed to Af’AKZ, after describing the lot so conveyed to him by Porter, he added, “ I do also convey to the said JW’Neil, the one half of a brick wall that I hereby engage to erect on the adjoining lot now owned by Mr Sikes, which the said Sikes is this day to convey to me.”</p> <p>There was no money paid between Ruggles and Sikes, nor any other consideration for their two deeds, but the exchange aforesaid ; Sikes conveying to Ruggles one half the brick wall already built by Porter, and mentioned in the said deed to Willet; and Ruggles undertaking to convey to the said appointee of Sikes, one half the wall which he engaged to build as aforesaid. Both these deeds are subscribed by the same witnesses, acknowledged before the same magistrate, and registered on the day of their date ; and the said Ruggles testified that they were both executed at the same time. In October, 1806, Ruggles built a brick house on his lot, and, as he testified, he intended to place one half of the wall adjoining to McNeil’s lot on the land of JVPNeil. There was, at the time, a stake at the street on the * line between these two lots, and he [ * 471 ] endeavoured or intended to place the centre of said wall at that stake ; but it appeared by actual admeasurement, lately made by another witness, that the whole of this wall was within the boundaries of Ruggles's lot, as described in said deed. On the 29th of October, 1807, JW’Neil conveyed the lot in question to the defendant, Bancroft, describing it as before, referring to Ruggles's deed to him, and adding these words, “ including the one half of the brick wall mentioned in said deed.” On the 22d of May, 1809, the defendant conveyed the same lot to the plaintiff by the deed declared on, describing it as in the declaration.</p> <p>On the 17th of April, 1807, the said Ruggles conveyed the lot, on which he had built said house, to Phineas Brown, describing it as “ a certain tract or parcel of land lying in Cambridge, with a brick dwelling-house thereon, bounded and measuring as follows,” and then bounds it on one side by land formerly owned by himself, and which he had conveyed to M’Neil, and states the same courses and length of line as in the former deeds, and such as would include the whole of the wall in question in the premises granted. On the next day Brown conveyed the same lot, by a like description, to M. R. Bartlet. On the 20th of the same April, Bartlet conveyed the same lot, by a like description, to Benjamin Whitman, and on the 5th of August the said 'Whitman conveyed the same, by a like description, to the plaintiff, Makepeace.</p> <p>The defendant insisted, first, that, on this evidence, it appeared he was seized of the peace of land in question, and had a good and indefeasible title thereto, at the time of his conveyance thereof to the plaintiff; but if not so, then, secondly, that he was lawfully seized thereof in fact at that time, and had a good right to convey, and did convey the same by his said deed to the plaintiff; in which case, the plaintiff could not recover'in this action, but, if evicted, must bring his action on the covenant of warranty.</p> <p>The judge, intending to reserve these questions for the consideration of the whole Court, directed the jury to find a [*472] * verdict for the plaintiff, which was accordingly rendered, subject to the opinion of the Court on the two points above stated. And, if the Court should be of opinion with the defendant on either of these questions, the verdict was to be set aside, and a .verdict entered for the defendant.</p>

<p>This was a writ of entry, in which the demandant counted upon a mortgage hereafter described. The action was submitted to the determination of the Court upon the following case agreed by the parties.</p> <p>“ On the 9th of March, 1809, Eliphalet Fox, and Elizabeth, his wife, were jointly seized of three undivided fourth parts of the demanded premises in fee, and Peter Fox, their son, was seized in common with them of the residue. And on the same day, Josiah W. Coburn, a creditor of the said Peter, attached upon mesne process, ‘all his estate and interest in the tenements.’” [*475] *“ On the 10th of April, 1809, the said Eliphalet and Peter mortgaged about five acres, parcel of the tenements, to Daniel JLbbot, one of the tenants, in fee.”</p> <p>“ On the 13th of July, 1809, one Josiah Wood levied an execution, issued in his favor, against the said Peter Fox, upon the said Peter’s undivided quarter in a part of the tenements, and had the same set off to him by metes and bounds.”</p> <p>“ On the same day, and while the officer was upon the land, levying the said Wood’s execution, the said Eliphalet and Peter executed to the demandant the deed declared on, which was acknowledged on the same day, and recorded the day following.”</p> <p>“ On the 23d of September, 1809, judgment was rendered for the said Josiah W. Coburn, in the action before mentioned, on which he took out his execution against the said Peter Fox, and on the 21st of October following levied the same upon all the said Peter's undivided quarter part of the tenements, except what had been before mortgaged to the said Abbot, and set off to the said Wood; and both the said executions were recorded within three months.”</p> <p>“ The said Eliphalet Fox died on the 10th of August, 1809, and the said Elisabeth survived him until the 7th of April, 1812, and "then died, leaving the said Peter Fox, and the tenants, Charles and Stephen R. Fox, with eight other children, her heirs at law.”</p> <p>“ The tenants having severally pleaded the general issue as to several parts of the demanded premises, of which they are severally seized, and disclaimed as to the residue, it is agreed, that, if the Court shall be of opinion, upon the above facts, that the demandant is not entitled to recover against the tenants, or either of them, he shall become nonsuit, and the tenants shall severally recover their costs against him. But, if the .Court shall be of opinion that the demandant is entitled to recover against the tenants, or either of them, such tenants shall be defaulted.”</p>

<p>A promissor in a note of hand, after it was payable, at the request of the promissee, executed a bond to a third person as surety for the promissee, for a less sum than was due by the note ; and it was agreed between the promissor and promissee, that a balance should remain unpaid on the note, which should not be claimed by the promissee, if the promissor should be obliged to pay the bond. The promissee became bankrupt, and passed the note, with his other property, to the assignee ; after which the promissor paid the amount due on the bond ; and these facts being proved were held a good defence pro tanto in an action upon the note by the assignee.</p>

<p>A writ of dower lies only against him who is seized of an estate of freehold or inheritaii. t in the land.</p>

This was an appeal from a decree of the Probate Court of this county, disallowing a certain instrument, offered for probate as the last will and testament of Isaac Stone, deceased. The question being on the sanity of the testator, an issue was formed to the country, which was tried before the whole Court, pursuant to the statute. The will was dated the 1st of July, 1811.

<p>A. died seized in fee of land leaving an only child and a widow, the mother ot the child, who died under age, and not having been married ; it was liolden, that, on the death of the child, the land descended in equal shares to the surviving mother, and to her children by a former husband, brothers and sisters of the' .half-blood to the child.</p>

<p>An officer, attaching chattels upon mesne process, is not obligéd to remove them from the store or house where they were attached.</p> <p>Placing a keeper over them is sufficient. Nor does the use, by the debtor or hi« family, of such articles as will not lie injured by the use, if by the permission of the officer, vacate the attachment.</p>

<p>Case for slander. The declaration contained several counts, the first of which, after alleging the plaintiff’s good name, &c., and the defendant’s knowledge thereof, &c., recites that “ one John Fowle had been arrested upon a certain warrant, issued at the request and upon the complaint of the said- Robbins, by Abraham Bigelow, Esquire, of Cambridge, in the county of Middlesex, a justice of the peace for the same county, duly authorized, qualified, and empowered to grant and issue the same, which said warrant was made [*499] returnable *into the court of the said justice, and by which warrant the said John Fowle was charged with hay~ ing broken the peace of the Commonwealth, and with having committed an assault and battery upon the person of the said Robbins, and that said warrant was duly returned, &c., and, thereby, the said John Fowle had, before the said justice for trial, and that upon said trial the plaintiff was examined upon oath, and testified the truth, &c., touching the said complaint; yet the said Robbins, well knowing the premises, but contriving, &c., to injure the plaintiff in his good name, &c., on, &c., at, &c., in a certain discourse, which he, the said Robbins, then and there had with the plaintiff, of and concerning him, the plaintiff, in the hearing of, &c., falsely and maliciously spoke and published to, of, and concerning the plaintiff, these false, scandalous, malicious, and defamatory words, namely ; “ You ” (meaning the plaintiff) “ are a damned liar and swore false ” (meaning that the plaintiff had perjured himself) “ at the trial” (meaning the trial aforesaid, before Abraham Bigelow, aforesaid) “ of your brother John ” (meaning the defendant in said trial).</p> <p>A verdict having been returned against the defendant on this count, he moved in arrest of judgment;because there is no averment therein that the conversation alleged was of and concerning the testimony, which the said Jeremiah gave at the Court, before Abraham Bigelow, Esq., which averment is a material one in this case, and without which no judgment can by law be rendered.</p>

<p>Assumpsit against the defendant as indorser of a foreign bill ot exchange. The action was submitted to the decision of the Court, upon an agreed statement of facts to the following effect. The plaintiff, being the holder of the bill, upon receiving intelligence of the protest for non-acceptance, gave due notice thereof to the defendant and also to the drawer. Afterwards, and before it was known whether the bill would be paid at maturity, the plaintiff demanded, and received from the drawer, a bill of sale of a vessel, as collateral security for the bill of exchange. The plaintiff, being afterwards informed that a large part of the money would be paid by the drawee, and that it was probable the whole would be so paid, gave up the security which he had so taken. The greater part of the bill was so paid at maturity ; and it was regularly protested for the non-payment of the residue. The plaintiff gave immediate notice of the protest, to the drawer and indorser, and afterwards brought this action against the defendant, as indorser, for the balance.</p>

This was a writ of entry sur disseizin, brought by the demandants in right of the said Elizabeth, to recover two parcels of land situate in Stow, in this county ; and they counted upon their own seizin within thirty years in her right, and alleged a disseizin by the tenant. The action was tried here on the general issue before Jackson, J., November term, 1813, and a verdict taken for the demandants, subject to the opinion of the Court upon the following case.

Trespass for taking and carrying away “ mahogany tables, chairs, and bureau.” After a verdict for the plaintiff, Ward, for the defendant, moved in arrest of judgment, because the declaration did not state the number of the tables and chairs.(1)

*-The declaration was in trespass, “ for that the said [*506 ] Shed, Fletcher, B. Varnum, and W. Varnum, at, &c., o.i, &c., with force and arms did break and enter the plaintiff’s dwelling-house in Chelmsford, and then and there for the space of three hours rifled and searched said house against the will of the plaintiff, and took and carried away the plaintiff’s wearing apparel, of the value of $50, the plaintiff’s gun and bayonet, of the value of $15, and other necessary…

<p>* This was a bill in equity, brought by the plaintiff, as [*514] assignee of the equity of redemption, to redeem certain mortgaged premises described in his bill.</p> <p>The plaintiff alleges, that on the 5th day of March, 1798, one Jonathan Winship was seized in fee of sundry parcels of land in Brighton, in this county, particularly described in the bill, and on that day mortgaged the same to one Samuel Brown in fee, conditioned for the payment of $ 7000, with interest, in one year from the date ; that, on the 15th of September, 1805, the said Brown assigned the said mortgage with the mortgaged premises to the defendant ; and that, on the 14th of September, 1808, the defendant entered for condition broken. The bill then sets forth an attachment of the equity of redemption at the suit of one Thomas Williams against said Jonathan Winship, made by one J. Hildreth, a deputy shériff, on the said 14th of September ; and a tender on the same day by the said Williams and Hildreth severally, of the sum of $ 10,700 to the said Miel, in" full of the sum due on the mortgage, deducting the rents and profits received over and above the repairs and improvements, &c., which tender the said Miel refused to accept; also a judgment recovered in the suit of Williams for $ 1638.94 damage, and $35.11 costs of suit, and an execution issued thereon and delivered to one Z. Eastman, a deputy sheriff, with directions to levy the same upon the said equity of redemption ; that Eastman, on the 27th day of April, 1809, and within thirty days from the rendition of the said judgment, seized the said equity of redemption, and advertised the same to be sold on the 16th day of June then next at 3 o’clock, P. M., by posting notifications in said Brighton and in two next adjoining towns, and gave due notice thereof to the said Jonathan Winship, the judgment debtor; that at the time and place advertised, the said Eastman sold [*515] the * said equity of redemption at public auction to the now plaintiff, for the sum of $ 8000, he being the highest bidder for the same ; and, on the 11th day of September following, in consideration of that sum paid him by the plaintiff, made his deed thereof, subject to the right of the said Jonathan Winship to redeem the same by paying to the plaintiff the said last-mentioned sum ; that Eastman made due return of the execution and of his doings thereon on the day last mentioned ; by force of all which the plaintiff became seized of the right in equity of redeeming the said parcels of land, by paying to the defendant the sum due by the said mortgage ; of all which the defendant had notice. The plaintiff then avers, that the said T. Williams and J. Hildreth, from the time of making the said tender until the day of exhibiting this bill, have always been ready to pay the defendant the sum so tendered by them ; and that he, the said plaintiff, on the day of exhibiting this bill, in order to redeem said lands from the defendant, and to oblige him to make to the plaintiff a release thereof, tendered the defendant the sum of $ 11,000, for the sum due by the said mortgage, and demanded possession of the said lands, and a release and discharge of the mortgage, according to the form of the statute ; and that the defendant wholly refused to receive- the said sum, or to release the mortgaged premises, or in any way to discharge the said mortgage, and still holds the plaintiff out ; to his damage, &c., wherefore he brings this suit, and produces here in court the same sum of money for the defendant, that he may take and carry away such part thereof as shall be found in equity to be due to him ; and prays to be put in possession of the mortgaged premises, and for his costs.</p> <p>The defendant, in his answer to the bill, sets forth the mortgage from Jonathan Winship to Samuel Brown, and the assignment by the latter to the defendant, as alleged in the bill ; also a conveyance from the said Jonathan Winship to the defendant, of all his, the said Jonathan’s, interest in the premises, by deed dated the day [*516] after the mortgage, duly * acknowledged and recorded ; also a mortgage from the said Jonathan to one Amos Win-ship, dated the 29th of April, 1795, of twenty acres, parcel of the premises afterwards mortgaged to Brown ; an extinction of the equity of redemption in the said twenty acres, and a final conveyance in fee of the same to the defendant, of the 9th of June, 1809. The answer then denies the tender by Williams and Hildreth on the 14th of September, 1808, and avers, that, if any money was tendered, more was due than was so tendered ; also denies that the plaintiff made the tender alleged to have been made by him on the 17th of October, 1809, and avers that, if he did make it, more money was then due ; and that the defendant had then been in open and peaceable possession five years ; but does not allege that he ever entered or was in possession for condition broken ; avers that, if any right in equity to redeem existed on the 14th of September, 1808, or on the 17th of October, 1809, Eastman, deputy sheriff, did not sell such right; and that the plaintiff did not purchase such right, nor pay $8000, nor any other sum, therefor ; avers that Eastman allowed eighty-four days for the purchaser to consider of the bargain, and that he did not pretend to sell at the hour fixed in his advertisements, nor until several hours after, denies that the plaintiff had, on the 14th of September, 1808, or on the 16th of June or 17th of October, 1809, any right to redeem, &c. ; and demurs as to the right of Williams and Hildreth to tender and redeem.</p> <p>The plaintiff, in his replication, alleges that the deed from Jonathan to Jlbiel Winship, mentioned in the defendant’s answer, was made bond fide and for a valuable consideration ; but that the said Jonathan, at the time when the said deed is supposed to have been made, was justly indebted to the said Williams, and divers other persons, in divers large sums of money, and that the said Jonathan made the said deed with an intent to delay, hinder, and defraud the said creditors of the sums due to them as aforesaid ; all of which, &c. And the plaintiff says, that all the facts, matters, and things set forth in his bill are true and just, and sufficient to * en- [*517 ] title him to the relief prayed for in the same and that the several matters and things alleged and stated by the defendant, in his answer, are wholly false and untrue ; wherefore he prays judgment as before.</p>

This was 3.1 appeal from a decree of the judge of probate for this county, disallowing a certain instrument, which had been [*526] -presented by the said Osgood for probate, as the * last will of Mary White, late of Billerica, deceased, in which he was named executor.

* The plaintiffs demanded, in an action of debt against [*537] the defendant, as executor of the last will and testament of Mary Norris, late of Salem, widow, deceased, a legacy bequeath ed them in the following clause of said will, namely : “ I give and bequeath to William Bartlet, of Newburyport, in the county aforesaid, Esquire, Samuel Spring, of said Newburyport, Doctor in Divinity, and Samuel Worcester, of Salem, aforesaid, clerk, and to the survivors and survivor of…

This was an action of debt, brought by the plaintiffs against the defendant, as executor of the last will and testament of Mary Morris, late of Salem, deceased, in which they demand the legacy bequeathed to them, in the following clause of the said last will) namely. “ Item.

<p>A master of a ship having signed bills of lading, promising to deliver the merchandise therein mentioned to the owner or his assigns, “ the dangers of the seas, the laws of the country, and other unavoidable accidents excepted ; ” and having received orders from the shipper to manage as A. B. and C. D. had directed, with regard to goods shipped by them; it was holden, that a conformity to the directions of either A. B. or C. D. was sufficient to justify the master.</p>

<p>This was a writ of scire facias, in which the plaintiff sets forth that he, at the Circuit Court of Common Pleas at Salem, June term, 1812, recovered judgment against the goods and estate *of one Amasa Peabody, deceased, in the hands and [*571 ] under the administration of the defendant, for the sum of $ 189.30 damage, and $26.26 costs ; and on the sixth of July following sued out an execution thereon, and delivered the same to a deputy sheriff of the county of Middlesex, who made his return thereon as follows, namely, “ Middlesex, ss. Sept. 19, 1812. I have presented this execution to the within-named Hall for payment, which he refused ; and no goods or estate of the within-named Peabody, in the hands and possession of the within-named Hall, being shown or exposed to me nor found within my precinct, I return this execution in no part satisfied.”</p> <p>And the plaintiff further suggests that the defendant has wasted the estate of the said Peabody, sufficient to satisfy the said judgment ; and he prays for execution against the defendant de bonis propriis. The writ of scire facias was returnable and entered in the Common Pleas, December term, 1812.</p> <p>At a subsequent term of the Common Pleas, the defendant pleaded in bar of the scire facias, that, before suing out the same, the estate of the said Peabody was insolvent and insufficient to pay all the just debts which he owed at the time of his decease ; wherefore the defendant, before the suing out of the said writ, namely, on the 6th day of October, 1812, duly represented to the judge of probate for the county of Middlesex, the condition and circumstances of the said estate ; and the said judge on the same day duly issued a commission of insolvency, directed to A. B. and C. D. to receive and examine the claims of the several creditors of the said estate, and to report thereon ; who gave due notice, &c., and the said judge allowed to the said creditors the term of six months to carry in and prove their several claims. And the commissioners, at the end of the-said term made their report, and presented upon oath to the said judge a list of all the claims, &c., and among the rest the amount of [*572] the said damages and costs, as the claim of the plaintiff * against the said estate. Whereupon the said estate was afterwards and since the last continuance of this suit, namely, on, &c., at, &c., adjudged and decreed by the said judge to be insolvent and insufficient to pay the just debts of the said deceased ; and the said judge then and there ordered the said estate to be paid and distributed to and among the creditors who had proved their claims as aforesaid in proportion to the sums respectively due to them. And the defendant avers that the said judgment was not rendered for debts due for rates or taxes, nor for debts due to the Commonwealth, nor for debts incurred for the last sickness or necessary funeral expenses of the said deceased ; and traverses the suggestion of waste.</p>

<p>The successor of a judge of probate, who had resigned his office, was admitted, on motion, to prosecute a suit on an administration bond commenced by his predecessor.</p>

This was an action of trespass against the defendants for taking and carrying away certain chattels of the plaintiffs’. At the trial, which was had upon the general issue, before Jackson, J., at the sittings here after the last November term, a verdict was taken for the plaintiffs, subject to the opinion of the Court upon the report of the judge, and upon certain facts agreed by the parties.

<p>Id was agreed, by the officers and crew of a privateer, that any one guilty of certain offences should be punished at the discretion of the officers, even to the forfeiture of his share or shares; a petty officer, being guilty of such an of-fence, was kept in irons from the time of the offence to the end of the cruise, and afterwards sentenced to corporal punishment by a public court-martial, pursuant to law ; it was held, that he was entitled to his share of prize-money arising from captures made before his confinement, but not from those made after.</p>