Volume 13 — Massachusetts Reports

<p>Assumpsit for money had and received. The can?” was submitted to the determination of the Court upon the following facts agreed by the parties.</p> <p>On the 22d of April, 1811, Russell, at that time and ever since a merchant in the city of JV*eto York, was indebted to Blanchard in the sum of $ 1470.94, according to an account adjusted between them on that day, for the proceeds of goods consigned by said Blanchard to, and sold by, the said Russell at New York; Blanchard being at that time and ever since a merchant in Boston. After the day aforesaid, Russell became insolvent, and, in pursuance of certain statutes of the State of New York, entitled “An Act for the benefit of insolvent debtors and their creditors,” passed on the 3d of April, 1811, and “An Act extending the time for the remission and commutation of certain quitrents, and for other purposes,” which were to *be considered as in the case, the said Russell presented a petition to the recorder of the city of New York, praying that his the said Russell's estate might be assigned for the benefit of his creditors, and he be discharged from all debts due from him, contracted before or at the time of the said assignment. In consequence of this petition, the said recorder directed an assignment of the estate of said Russell to be executed to certain assignees, for the benefit of his creditors. And the said recorder did afterwards, on the 28th of October, 1811, in pursuance of the provisions of the statutes aforesaid, by a public instrument under his hand and seal, order and adjudge that the said Russell should be and was discharged from all debts due from him, contracted at the time of said assignment or before that time, although payable afterwards ; and also from all liabilities which he might thereafter incur or be subject to, by reason of any bill, indorsement, covenant, obligation, or engagement (other than covenants of warranty on the sale of real estate), which he might before that time have drawn, made, entered into, or sealed and executed.</p> <p>On the 19th of June, 1813, the said Russell, being within this Commonwealth, was arrested by virtue of the original writ in this action. The plaintiff was not, at the time said debt was contracted, nor hath been since, within the State of New York; nor had he any notice of the said assignment, or of the proceedings subsequent thereto, other than what he may be presumed to have had under the provisions of the statutes aforesaid. He made no claim, and received no dividend of Russell's effects, and did no act approving or assenting to said proceedings.</p> <p>If, upon these facts, the plaintiff, in the opinion of the Court, was entitled to recover, the defendant agreed to suffer judgment by default; otherwise the plaintiff was to become nonsuit.</p>

Assumpsit for $264.02, the balance of an account current between the parties. The declaration also contained, besides the usual money counts, a count upon a special promise and undertaking, made at Boston on the 14th of March, 1812.

Assumpsit upon a promissory note for $ 1000, dated the 20th of August, 1812, made by the defendants, and payable to the plain tiff or his order. In a statement of facts, upon which the action was referred to the decision of the Court, the same facts were agreed as in the next preceding case, except that the plaintiff and defendants, at the date of said note, were, and ever since have been, citizens of Pennsylvania, and * resident in the city of Philadelphia.

<p>Assumpsit by the indorsees against the drawer of a Bill ot Exchange.</p> <p>The action was submitted to the determination of the Court, upon the following facts agreed by the parties, namely. The bill set forth in ttie declaration was drawn in the island of Jamaica, on the 29th of August, 1811, by the defendant, a citizen of this Commonwealth (who had been resident in Jamaica for fifteen years previous to this transaction, doing business as a merchant), payable to W. Torrey, an American citizen, then being at Jamaica, but never an inhabitant thereof, upon John Ferrers of the city of New York. The bill was duly transferred, within the United States, to the plaintiffs, American citizens, and never * having been inhabitants of Jamaica. On the 4th of January, 1812, the bill was duly protested at New York, for want of funds of the defendant in the hands of the drawee.</p> <p>On the 29th of November, 1809, an Act or Law was made by the government of the island of Jamaica, entitled “ An Act for the relief of insolvent debtors, imprisoned for debt ” ; a copy of which Act came up in the case. By the several provisions thereof, any person, imprisoned for debt in the island, was entitled to be “ for ever released and discharged from his imprisonment and debts,” upon subscribing, in open Court, a schedule of his effects and credits, and delivering the same to the provost-marshal, and taking a certain oath prescribed in the Act. The said effects were then to be assigned by the Court to some creditor or creditors of the insolvent person ; whose duty it was made to divide the same, or the proceeds thereof, among such of the creditors of such prisoner as should, within one month after notice of such dividend, in certain public papers in the Act mentioned, produce the legal evidence of their demands. The Act was to continue in force until the end of the year 1812.</p> <p>The defendant, in August, 1812, having complied with the requisitions of the said Act, was permitted to take the benefit of it, and was discharged from his imprisonment and debts, as was therein provided; after which he returned into this State, and this suit was instituted against him.</p> <p>The plaintiffs never took any measures for the recovery of this demand in Jamaica ; nor had they been parties, or any way or manner assented, to the proceedings under the Act aforesaid; or claimed or received any benefit therefrom ; or had any knowledge thereof, until after the commencement of this suit.</p> <p>The defendant, since his return to this country, acknowledged the debt, and said that it ought to be paid ; but that he was then unable to discharge it.</p> <p>If the Court should be of opinion, that the discharge, * obtained by the defendant pursuant to the Act aforesaid, is a sufficient bar to this action, the plaintiffs were to become nonsuit; otherwise the defendant was to be defaulted.</p> <p>The cause was argued, at the last March term in this county, by Sohier, for the plaintiffs, and Prescott, for the defendant.</p>

<p>A. license, which is to protect a ship from capture and condemnation by an enemy, is a sufficient legal consideration for a promissory note for the payment of money.</p>

<p>(l. conveys land to B. with warranty, and B. gives A. a bond, reciting the said conveyance, with condition to reconvey the same to him on .payment of a sum of money within three years; after the expiration of the three years, C. agrees to purchase the land of B., who thereupon conveys it to A., by whom it is at the same time conveyed to C. Both these deeds are immediately registered.—Previous to the execution of these two deeds, D., a creditor of A., had caused A.’s interest in the land to be attached on mesne process, and after the deeds were registered, having recovered judgment in his suit, caused his execution to be extended on the land, as the estate of A. — It was holden, that the said two deeds were to be considered as parts of one contract and that A.’s instantaneous seizin could not be the subject of an attachment.</p>

<p>This was a writ of entry, in which the said Baldwin demanded possession of three undivided fourth parts of a lot of land in Boston. The action was submitted to the decision of the Court upon the following facts agreed by the parties.</p> <p>On the 25th of September, 1809, the demandant attached the estate of one Daniel Pepoon in the flats lying between Long wharf and Lewis’s wharf so called ; and in April, 1810, he recovered judgment in the said action, and levied his execution on a part of Pepoon’s interest in the said flats, which levy was made in the following manner, namely ; “ Suffolk ss. May 29, 1810. We, the subscribers, having been appointed and sworn, according to law, faithfully and impartially to appraise such real estate as should be shown to us, to satisfy the within execution and all fees, have appraised and set out the following described estate ; being three undivided fourth parts of the following described lot of land, situate at the northerly part of said Boston, adjoining Lewis’s wharf so called, there measuring twenty-three feet,” &c. [describing the whole by specific boundaries], “ and all the privileges and appurtenances to the same belonging; and we do hereby appraise and set out the above-described estate, by the metes and bounds above-mentioned, in full satisfaction of this execution.”</p> <p>The piece of land thus levied upon is part of a large tract of flats, formerly owned in common by one Undrew * Dexter, jun., and one Thomas Lewis; the said .Dexter owning three undivided fourth parts, and the said Lewis one undivided fourth part thereof. At the time of the extent of the said execution, the said flats still remained in common and undivided ; the said fourth part thereof still belonging to the said Lewis, and the three undivided fourth parts thereof being in the possession of Whiting and Spear, two of the tenants in the present action ; the said Whiting claiming to hold twelve undivided twentieth parts of the whole of said flats, and the said Spear three undivided twentieth parts thereof (together making said three undivided fourth parts), by levies made on the same, by virtue of executions sued out on judgments by them severally recovered against the Berkshire Bank; and the said Whiting also claiming to hold the said three undivided fourth parts of said flats, by virtue of a deed from said Pepoon, dated January 27tb, 1810, but subject to a mortgage of the same premises, made by the said Pepoon to the Northampton Bank in November, 1809.</p> <p>Previous to the commencement of this action, the said Lewis conveyed to the present tenants and one Miel Wood, in different proportions, his undivided fourth part of said premises ; of which the tenants and the said Wood were in possession at the commencement of this action. Previous, also, to the commencement of the present action, the Northampton Bank brought an action against the said Whiting, founded on the said mortgage of Pepoon; in which they demanded the three undivided fourth parts of said flats ; and the said Whiting, after disclaiming all but his own interest therein, defended his right under the title by him acqu .red, by virtue of the levy of his execution against the Berkshire Bank; it being a question, whether the legal estate in the said flats was in said Pepoon, or in the said Bank. In that action the Court determined the said legal estate to be in said Pepoon. (1)</p> <p>Previous, likewise, to the commencement of this action, the tenants and the said Wood began to fill up the said * flats ; and that part claimed by the demandant was partially filled up, when notice was given by the demandant to the tenants to desist from so doing. But they proceeded and filled the same up, and they are now of more value than when the levy was made thereon.</p> <p>If, upon this statement, the Court should determine, that the levy of the demandant did not pass any estate to him, he was to become nonsuit, and the tenants to have judgment for their costs ; otherwise the demandant was to have judgment, &c.</p>

<p>This was assumpsit upon a policy of insurance, dated the 19th of February, 1813, by which the defendants cause the said “ Joseph Locke, by John Barnard, to be assured $ 2300, on property on the sloop General Greene, at and from Boston to Albany.” A total loss is averred by capture by the public enemy on the 8th of March, 1813.</p> <p>The cause was tried upon the general issue, November term, 1814, before Jackson, J., when it appeared, that the plaintiff, in February, 1813, was about purchasing a quantity of fish to be sent to Albany for sale, and applied to the said John Barnard for</p> <p>a loan of money, to enable him #to make the said purchase. It was thereupon agreed between the plaintiff and the said Barnard, that the latter should advance about $ 2300 for that purpose ; that the plaintiff should purchase, in Boston, fish to that value, to be sent to Albany, and that the property should be assigned to Barnard, and shipped in his name, as security for said loan. This sum, with interest, and the amount of the premium upon this policy, and Barnard’s commission, were to be repaid him by the consignees at Albany; and, in case of a loss, he was to receive the sum insured towards the same object.</p> <p>The assignment and insurance were to be merely a pledge or security for his debt; and, if he did not realize the whole amount from those sources, the plaintiff was to pay him the balance ; if the goods should produce at Albany more than sufficient for that purpose, the plaintiff was to receive the residue for his own use.</p> <p>In pursuance of this agreement, the plaintiff purchased fish to the amount of $ 2315, and received that sum from Barnard to pay for it. He then shipped it on board the said vessel, and took from the master a bill of lading of the fish, as shipped by Barnard. This bill of lading was dated the 22d of February, 1813. The invoice, also, which accompanied the goods, purported that they were shipped on the account and risk of Barnard. The plaintiff also made a bill of parcels of the fish, purporting to be an absolute sale thereof to Barnard, for the price above mentioned, with a receipt therefor. There was no document or paper accompanying the goods by which it could appear that the plaintiff had any interest in them ; but it was known to the master of the vessel, that he was interested therein, and the agreement above mentioned was known to other persons, at the time when it took place.</p> <p>After the proof of the facts above stated, the plaintiff offered Barnard as a witness. He was objected to by the defendants, as interested in the cause. In order to prove his interest, the defendants produced the secretary of the * company, who testified that Barnard applied to the defendants to effect this insurance, and that the terms had been agreed on, all parties understanding that the policy was to be made for Barnard, and in his name, in the usual form. When the witness was about to write the policy, he inquired of Barnard, if he was the owner of the goods, who asked, in return, if it made any difference who was the owner. Being answered, that it did, and that the policy must be in the name of the owner, he, after a little consideration, directed the witness to make it in the name of the plaintiff, and it was so done.</p> <p>After intelligence of the loss arrived, the company was summoned as the trustee of the plaintiff by a creditor. Barnard went to demand the sum insured, and, on hearing of that process, said, that the plaintiff had no interest, except in the profits of the goods insured. .</p> <p>The judge then overruled the objection, and Barnard was sworn and examined as a witness. He confirmed the testimony of the other witnesses as to the agreement between himself and the plaintiff, as above stated. He confirmed substantially the testimony of the secretary, as to the transactions and conversations at the time of effecting the policy. He further testified, that he had no interest in this suit, and that the plaintiff was equally bound to pay him the amount of his demand, whether he prevailed in this action or not. He also testified, that he had not often had occasion- to make insurance, and did not know, until informed by the said secretary, that it was of any importance in whose name the policy should be made ; that, after that information, he ordered it made in the plaintiff’s name, considering him as the real owner of the goods. But he made no representation or statement whatever, as to the nature of the plaintiff’s interest in, or title to, the goods ; and no inquiry on that subject was made by any of the officers of the company. He expected, when settling the terms of the insurance, that the policy would be made in his own name ; and nothing was said by either * party respecting the plaintiff, or his interest in the transaction, excepting only the direction which he gave, in the manner above mentioned, to have the policy made in the plaintiff’s name.</p> <p>It appeared, that, on the 17th of March, 1813, Barnard made an offer in writing to the defendants to abandon to them the property insured by the policy, which offer they did not accept.</p> <p>A verdict was taken by consent for the plaintiff, for $ 2566 88, subject to the opinion of the Court, on the facts appearing at the trial, as reported by the judge. If the Court should be of opinion, that the plaintiff was not entitled to recover, the verdict was to be set aside, and a verdict entered for the defendants. If the opinion of the Court should be, that the plaintiff might recover upon the evidence reported, but that the said Barnard was an incompetent witness, the verdict was to be set aside, and a new trial granted. If the opinion of the Court should be for the plaintiff on both points, the verdict was to stand, and judgment be rendered upon it.</p>

<p>A vessel was insured from Gibraltar to the United States, with liberty to proceed to the Cape de Verd Islands for salt. On her arrival at the Isle of May, she found so many vessels there that she must have waited four or five weeks for her turn to take a cargo of salt. On the proposal of the governor, she went to two other of the islands, and brought for him a cargo of provisions, he engaging, that, on her return, she should be immediately despatched, and by this means she was expedited sooner than she otherwise would have been. She was after-wards lost, and this was holden to be a deviation which avoided the policy.</p>

This was a writ of Entry sur disseizin, in which the demandants counted on their own seizin, and on a disseizin by the tenant.

<p>This was an action of covenant broken, brought upon a charter-party, bearing date the 4th of February, 1812, by which the plaintiff let to freight to the defendant the brig Federal, and appurtenances, for a voyage to be made by the defendant “from Boston to the coast of Africa, and *back to the United States, where she was to be discharged ”; and covenanted, among other ■ things, that the defendant or his agents might lade on board the said brig, “ as well at Africa as at Boston,” any goods they should think proper, contraband goods excepted. The defendant covenanted to pay, for the freight or hire of the said brig, the sum of $2.50 per ton, per month ; “ commencing with the sixth day of February aforesaid, during the voyage aforesaid, and time employed, and so in proportion for a less time, as the said brig shall be continued in the aforesaid service, in thirty days after her return to Boston” ; to pay all port charges, &c., and to deliver the vessel, on her return to Boston, to the plaintiff, the danger of the seas excepted.</p> <p>The cause was submitted to the determination of the Court upon an agreed statement of facts, to the following effect. The vessel was taken into the employment of Swan on the said 6th of February, and after being loaded with his own goods and those of other persons upon certain agreements, sailed for the coast of Africa, and after touching and trading at Goree, Sierra Leone, and several other places on the coast, sailed for Prince Island, where, after careening, she took in wood, water, &c., and there finished trading, a small part of her outward cargo remaining on board. The whole time thus occupied in trading was three or four months ; in the course of which, a return cargo was made up, consisting of gold dust and various other productions of the country, with about $ 300 in specie, which, on the capture of the vessel, hereafter mentioned, was distributed among the crew. On the 17th of September, 1812, being on her return voyage from Prince Island for Boston, she was captured, as prize of war, by the British frigate Acasta, and was carried to Halifax. The defendant was permitted to be on shore on his parol, a mulatto servant of his being the only one of the original crew remaining on board. While the brig lay at Halifax, the defendant; with the aid of the said mulatto, succeeded in secreting and * getting into his possession gold dust to the value of $4000 ; which he brought home with him, and sent to Philadelphia, where it was sold. He wat allowed a salvage upon this, by those interested in the voyage ; and the net proceeds of the sale, $ 2795.73, were divided among the owners under an award of arbitrators, to whom the defendant and the other owners had submitted the question. The plaintiff was one of the owners or shippers of the cargo, and received his proportion of the said proceeds. The vessel and the residue of the cargo were condemned as prize at Halifax.</p> <p>If, upon the facts stated, the plaintiff, in the opinion of the Court, was entitled to any freight or charter by reason of the hire of the vessel, or to recover any thing by reason of the loss of the vessel, the defendant was to be defaulted, and judgment rendered for the plaintiff, for such sum as the Court should assess, with costs ; otherwise, the plaintiff was to become nonsuit.</p>

This was a scire facias, brought against the defendants, Packard Gowen, to have execution against them as * the trustees of one Benjamin Butters. The original writ was served upon Packard, who is a merchant living in Boston; but was not served upon Gowen, who is a merchant residing in the Havanna.

<p>'Trespass for taking and carrying away one printing-press, of the value of $75 ; 560 pounds of long primer types, of the value of $ 366 ; 530 pounds of brevier types, of the value of $ 397 ; and 34 wooden cases, of the value of $ 34 ; and converting the same to the defendant’s use.</p> <p>The defendant, besides the general issue which was joined, pleaded a special justification in bar, that, as a deputy sheriff of this county, by virtue of a writ of attachment sued, out of the Court of Common Pleas for this county, and directed to the sheriff or his deputy, commanding them to * attach the said Buckingham’s goods to the value of $ 4000, he attached and took the said chattels, and afterwards duly returned the said writ, &c.</p> <p>The plaintiff replied, that the said chattels are tools necessary to him for the carrying on and doing the business of his trade, art, and occupation, as a book-printer ; and that, by the law of the Commonwealth, entitled “ An Act to exempt certain goods and chattels of debtors from attachment and execution,” (1) they are and were altogether exempt from attachment on mesne process and execution</p> <p>The defendant, in his rejoinder, traversed, that the said chattels were the tools of the defendant necessary to his trade or occupation, &c., on which an issue to the country was joined.</p> <p>The jury found a special verdict, namely, that the plaintiff is and was, at the time of the trespass complained of, a printer, within the town of Boston, carrying on business extensively in printing books of various descriptions ; that the articles mentioned in the declaration were taken by the defendant out of the possession of the plaintiff; that they were his property, and were implements and machines, namely, types, printing-press, and cases, commonly used in the exercise of that art; that the defendant, as is set forth in his plea at bar, and in the capacity he has therein set forth, took the articles by virtue of the precept which he has described in his plea, and duly returned the said precept ; that, to carry on the business of the plaintiff, in the extensive manner he was accustomed to exercise it in, and to be ready for all employments in the line of book-printing which might offer, the articles taken were necessary ; but that many common school-books, works particularly the copyright of which is commonly secured, newspapers, and many other works, might be executed with the implements and materials which were not taken, but suffered to remain with the plaintiff, and which were of the value of $ 1600 ; and that the want of the articles taken would render it more difficult for the * plaintiff to procure employment in his trade and occupation in the town of Boston, where there is a competition ■ among printers. If, upon the whole matter above found, the taking of the articles described in the declaration was unlawful, the jury find the defendant guilty, and assess damages for the plaintiff in the sum of $ 705-50. Otherwise they find the defendant not guilty.</p>

<p>The declaration, which was in assumpsit, contained nine counts, all grounded on a contract, on the part of the defendants, to purchase of the plaintiff a quantity of cotton.</p> <p>The cause was tried on the general issue at the last November term, before the Chief Justice.</p> <p>* At the trial, the plaintiff relied upon the deposition of one Alexander Jones, to which was annexed an original memorandum in these words and figures, namely :</p> <p>“ Hartshorn and Arnold, of Providence.</p> <p>December 13, ) I sold to the above gentlemen 39 bales upland 1813. ) cotton, at 40 cents, — 60 days for approved</p> <p>security. Silas Pekniman.</p> <p> Bill to be made out in the names of Hartshorn fy Arnold, </p> <p>. Weeden Billings, and Andrew Taylor.”</p> <p>Jones testified, that the words of the said memorandum, printed in italics, were in the handwriting of the defendant, Hartshorn, and the residue in the handwriting of the plaintiff. No part of the cotton was delivered, and no money was paid.</p> <p>To prove the state of the memorandum on the day of its date, the plaintiff relied on the testimony of one Hopkins; which was that he was a clerk in the counting-room of the plaintiff, and on that day saw in his hands, at a distance, a paper which had writing on it; that the witness did not read the writing ; but that the plaintiff read it in the hearing of the witness and of the defendant Hartshorn, and the witness believed the words of the above memorandum were the same which were then read by the plaintiff; that the cotton lay, part of it in the plaintiff’s store, and part of it in that of a Mr. Hill; that it was not weighed on that day; that it is not the usage in Boston to weigh cotton before the sale, but to sell by invoice ; that the invoices of the thirty-nine bales were not, to the knowledge of the witness, shown to Hartshorn; nor was the invoice weight thereof stated to him. Other witnesses testified to the same effect as to the usage.</p> <p>Of the said bales, thirty-eight were sold at public auction, b) order of the plaintiff, on the 1st day of March, 1814 ; and the remaining one was attached in this suit as * the property of the defendants. It was in evidence, that bales of upland cotton varied in quantity.</p> <p>The defendants objected to the admission of testimony as to usage ; of any testimony not in writing on the 13th of December, and signed by the parties or their agents, to show either the weight of the cotton, or what particular bales were then in the contemplation of the parties. They also objected, that, under the statute of frauds, the evidence of Hopkins, to prove what on the said day were the contents of the said memorandum, was improper to go to the jury.</p> <p>The points in defence were, that, on the 13th of December, no bargain was made ; that, if made, it was not binding, from the insufficiency of the memorandum ; that it was void for fraud ; and, if not, that it was subsequently rescinded by mutual consent.</p> <p>The jury were instructed, that, if they were satisfied that a bargain was made on the thirteenth of December ; that the contents of the memorandum were the same then as at the trial; that there was no fraud ; and that the bargain, if made, had not been subsequently rescinded ; they should find for the plaintiff; and the questions of law would be reserved; — that, as to the damages, the measure might be taken from the sales of the first of March, if those sales were fair ; — that, although one of the bales had been attached in this suit as the defendant’s property, that circumstance did not affect the law upon the question ; that the property in the cotton was not to be considered as shifted by what passed on the thirteenth of De comber ; and, supposing the plaintiff to have made out his case, the purchase was still not absolute ; but the action was brought for not completing the purchase. The one bale was, therefore, to be considered as in the plaintiff’s possession, and he to be charged with it at the rate the others sold at on the first of March, should they return a verdict for the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, for a sum * equal to the difference between the price agreed on and the actual sales.</p>

<p>'ll is no bar to a scire facias against bail, that the principal, since the arrest, was duly enlisted as a non-commissioned officer in the service of the United States, and is holden to do duty as such.</p>

<p>insurance was effected upon a ship and her freight from Calcutta to the United States by an agent of the assured, who delivered to the broker a written memorandum, that the assured was the owner of one half the ship and freight, and that the policy was to take effect, if no insurance were made by the owner elsewhere. This memorandum, not being inserted in the policy, nor annexed to it, was not evidence to control the contract of the parties.</p> <p>The owner of a ship, mortgaged by him for her full value, has still an insurable interest in her.</p> <p>Where, upon a valued policy effected abroad to the amount of the valuation, the assured, upon a capture and recapture, had abandoned to the underwriters, who accepted the abandonment and paid a total loss, and the assured after-wards offered an abandonment to the underwriters here ; it was holden, that, having in fact no interest to abandon, and the loss being constructively total only, he could recover nothing upon the policy, on account of the loss.</p>

The said trustee, upon his examination upon interrogatories, disclosed sundry loans and other transactions between him and Roe, the principal defendant, and,, among the rest the purchase by him of a certain dwellinghouse in Boston.

Trover for sundry certificates of shares in the stock of The New England Mississippi Land Company.

This was an action of the case upon a policy of insurance on the Swedish schooner Sara, her cargo and freight, from her port of lading m the West Indies to a port of discharge in the United States. The policy was in common form, except that it contained an agreement, that, in case of loss, no proof of property was to be required, and no return of premium to be made for want of interest. In case of capture, the assured agreed to claim as Swedish property.

Assumpsit on a policy of insurance, dated November 2, 1813 ; by which the plaintiffs, as well in their own names, as for and in the names of any other person or persons, are insured the sum of $500, on the Spanish brig San Pedro, and $2000 on her cargo, from Boston to the Havanna. There was a stipulation in the policy, that, in case of loss, no proof of property should be required, and that there should be no return of premium.

<p>This was an action of the case against the defendant, as sheriff of the County of Suffolk, for the misfeasance of Luke Baldwin, one of his deputies. The declaration contained three several counts, all reciting in substance the following facts.</p> <p>The plaintiff, on the 26th of August, 1814, sued out a writ of attachment against one Selden Brainerd, his debtor, and delivered the same to Bradish Billings, one of the deputies of the sheriff, who, at five o’clock of the same day, went into Brainerd's store, and attached his goods to the value of $ 1500, which had been previously attached by said Baldwin at the suit of Carnes 8f. Rhodes against Brainerd, and Billings, after making a return of his said attachment, delivered the plaintiff’s writ to Baldwin, who completed the service by giving Brainerd a summons, and returned the writ. Previous to the attachment made by Billings, and after that made by Baldwin at the suit of Carnes fy Rhodes, a writ had been put into the hands of a servant of Baldwin, who was left in the charge of the goods attached ; upon which writ Baldwin returned an attachment of the goods, as second to that of Carnes fy Rhodes. This writ was sued by one Adams. The plaintiff, having obtained a judgment against Brainerd for $559.62 damage with costs, sued out his execution thereon, and delivered it to Billings; who applied to Baldwin to deliver over to him the surplus of goods attached by him upon the suit of Carnes Rhodes, more than sufficient to satisfy the execution, which they had sued out against Brainerd upon the attachment made by Baldwin, *or to pay him the surplus arising from the sales of said goods, which surplus was more than adequate to the satisfaction of the plaintiff’s judgment. Baldwin refused to comply with this requisition, and applied the said surplus to the satisfaction of an execution recovered by Adams in a suit wherein the said goods of Brainerd had been attached by Baldwin, as above stated.</p> <p>The cause came on for trial at the last November term, before Parker, C. J., who directed a nonsuit, subject to the opinion of the whole Court, on the ground that the declaration showed no sufficient cause of action.</p> <p>Thurston moved to set aside the nonsuit; and he argued, that it was Baldwin’s duty to have delivered over to Billings the surplus of the goods attached, after satisfying the execution of Carnes fy Rhodes. ■</p> <p>The sheriff and his deputies constitute but one officer; (1) and the action being against the sheriff himself, the plaintiff is well entitled to recover, if he can show that he has suffered a wrong and injury by the refusal of Baldwin to retain the surplus property in his hands after satisfying Carnes Rhodes, or to deliver it over to his co-deputy, that it might be applied to the satisfying of the plaintiff’s judgment. (2)</p>

<p>A vessel, insured from her port of lading in France to the United States, in at tempting to come out of the harbour of Bayonne, struck upon a bar, and, being necessarily carried back to repair, most of her cargo was unladen, and carried by land to Passage in Spain, whither the vessel afterwards went and took it on board, and sailed thence for the United States. It was holden, that this was no unjustifiable deviation.</p> <p>The taking a letter of marque by a merchant vessel does not seem sufficient to avoid a policy on an expedition merely mercantile; since it only affords a temptation to deviate.</p> <p>But .the capturing of a prize, although the least possible time he spent in taking possession of it, and exchanging crews, is such a deviation as will discharge the underwriters on an adventure merely mercantile.</p>

<p>For the attachment of a pew in a meeting-house, upon mesne prouess, it is not necessary for the officer to enter the house.</p>

<p>In order to charge the indorser of a negotiable promissory note payable on demand, a demand must be made within a reasonable time, and notice of nonpayment immediately given to the indorser.</p> <p>A demand and notice, eight months after the date and indorsement of sucn a note, all the parties living in the same town, were holden not to have been made and given within a reasonable time.</p> <p>[By the Supplement to the Rev. Stat. of Massachusetts, c. 121, $ 2, it is provided, that demand shall be made within sixty days of the date of a note on demand, in order to hold the indorser. — Ed.]</p>

<p>Assumpsit on divers special counts, to recover the difference in value between two casks of cloves, alleged to be sold by sample to the plaintiff, and the cloves actually delivered in virtue of the sale.</p> <p>At the trial, which was had on the general issue, before the Chief Justice, at the last November term in this county, the plaintiff produced a bill of parcels of 602 pounds of cloves, at $ 1.50 per pound, on which payment was acknowledged by the defendant to have beer, received in the plaintiff’s note, payable in sixty days. He then produced a witness, who testified, that on the 4th of January, 1814, dm defendant came to the plaintiff’s store, with a sample of cloves in a paper, and asked the plaintiff if he wished to purchase some cloves. The witness examined the sample, and found the cloves to be of the best quality of Cayenne cloves ; and the defendant said, at a subsequent time, that the sample he showed was of fair cloves. On the same day that the purchase was made and the bill of parcels given, the casks were removed to the plaintiff’s store, the price being that of cloves of the best quality.</p> <p>It was in evidence, that the sample was not taken from * the casks sold, but from an open barrel, out of which those casks had been filled, they not being before quite full ; but the defendant did not know from whence the sample came. The market price of this article having fallen immediately after the sale, the plaintiff made no attempt to sell the cloves ; and the casks were not opened, until May, 1815, when, there being some application for the purchase of them, they were opened, and were found to contain a mixture of Cayenne cloves and an inferior and distinct species of the same article, the growth of the East Indies, in the proportion of one third of the latter, which was worth from a fifth to a quarter less than the former. Whether the casks had been opened, or exposed, or mixed, while in possession of the plaintiff, were questions duly submitted to the jury. Before instituting this suit, and after the defect was discovered, the plaintiff offered to return the cloves, but the offer was not accepted.</p> <p>The defendant objected to the admission of any evidence, other than the bill of parcels (which was of cloves generally without designating the kind), to prove that any distinct species or quality of the article was sold. But the objection was overruled, and the jury were instructed, that, although no fraud was proved or suggested, and no express warranty, other than what might be inferred from the exhibition of the sample, was proved ; yet, if they believed, from the evidence, that the purchase was made upon the confidence that the whole quantity was represented by the sample ; and that it was the intention of the defendant so to represent by exhibiting the sample ; and that the article, when sold and delivered, was materially different in quality and value from that which was shown in the sample ; they ought to find a verdict for the plaintiff, and assess in damages the difference . value at the time of the sale.</p> <p>The jury returned a verdict for the plaintiff, having found the facts specially as above stated, and having also found that there was no fraud in the sale on the part of the defendant. The defendant excepted against the * direction of the judge, and moved for a new trial on that ground, and also on account of the admission of parol evidence to prove the contract.</p>

<p>A n assignment of all his effects, by an insolvent debtor in Pennsylvania, in trust for such of his creditors as should within four months release all their demands against him, the surplus to be distributed, pro rata, among his other creditors, and the remainder, if any, to be paid over to the assignor, was holden to be void as against a creditor here, who, after such assignment, and after notice thereof to a debtor here, summoned such debtor as the trustee of the insolvent.</p>

<p>To an action against two on a joint promise, the defendants pleaded a former judgment against one of them upon the same promise, and held a good bar.</p> <p>If two defendants plead severally, where they might and ought to have joined, they shall not have several costs; although the plaintiff does not demur for such cause, but pleads over to issue.</p>

<p>In an action by the indorsee of a promissory note against the maker, he pleads in bar a judgment rendered against him by a county court in the State of Georgia, having jurisdiction of the cause, as the garnishee or trustee of the - promissee, the defendant having in the said cause disclosed the said note; the action, in which such judgment was rendered, having been commenced after the actual indorsement of the note to the present plaintiff; and the plea was holden to be a good bar. f</p> <p>t Parker vs Darnforth Sf Trustees, 16 Mass. Rep. 304.</p>

<p>Assumpsit in several counts, all founded on a writing in the following words and figures, namely, “ Boston, 15th May, 1810. Good for one hundred and twenty-six dollars on demand. Gilman Hoyt.'’</p> <p>It was admitted, at the trial, which was bad before the Chief Justice, at the last November term in this county, that the said writing was made and signed by Hoyt, one of the defendants ; and that, at the time it bears date, he was in copartnership with Abigail H. Gil-man, the other defendant, they keeping an English goods retail shop in Cornhill, Boston. The plaintiff also kept a similar shop in the same neighbourhood.</p> <p>No evidence, other than the writing itself, was produced by the plaintiff; and, it having been proved by the defendant ‘Gilman, that the said Hoyt, before the time of signing said writing, was in habits of gaming for money, and that he had been seen gaming for money with the plaintiff, and, further, that he had given, for money lost at play, papers similar to that on which this action was brought, * signed with his own name only, although he had not been known to sign the name of the firm ; and it appearing, also, that the said Hoyt had been absent for several years past, being in low circumstances, and there being no evidence of any demand upon the defendant Gilman, although she had been ever since in business and able to pay; the plaintiff was called on for evi dence that the writing in question was given to him, and for some consideration ; which he failing to do, a nonsuit was directed, which was to be set aside, and a new trial granted, if the nonsuit was not properly ordered.</p>

<p>The Court refused to grant a license to an administratrix to sell the real estate of her intestate for the payment of his debts; it appearing, that the only debt due from the estate of the intestate was secured by a mortgage, that the mortgagee had obtained possession of the mortgaged premises, that he had net vt demanded the debt, that more than four years had elapsed since the granting the administration, and that the heirs offered to save her harmless from all damages and costs by reason of such debt, and although such mortgaged premises had been assigned to the administratrix as her dower in the estate of the intestate.f</p> <p>t Ex parte James Mien, Esq., 15 Mass. Rep. 60.</p>

This was an action of the case against the defendant, as sheriff of this county, for the malfeasance of Bradish Billings, one of his deputies, in one count, for falsely returning, upon an original writ in favor of the plaintiff against one Nathaniel Ingraham, that he had arrested Ingraham's body and had taken bail; and, in another count, for not returning the execution which issued upon the judgment recovered by the. plaintiff in the same suit.

<p>Imminent danger of capture is a justifiable cause of a delay of sailing, and does not avoid an insurance.</p> <p>Where the assured, at the time of effecting the policy, said, that the vessel was to sail in five days, and the underwriter said he would not be bound if she did not then sail; and in fact she did not sail until more than a month after; and in the mean time the rate of premium on such risks had considerably increased; it was holden, that such declarations, not being part of the written contract, did not affect the insurance.</p>

This was assumpsit upon a policy of insurance, dated December 25th, 1809, in which William Swan, as well in his own name, as for and in the name or names of any other person or persons whom it m.ight concern, was insured the sum of $ 5000 on the Spanish schooner Nostra Señora Del Rosario, and $ 5000 on her cargo, from Perth Amboy, in New Jersey, to Curagoa, at a premium of six per cent.

<p>Sureties in an administration bond are liable for the amount of any chattels which have come to the administrator’s hands, as well before as after the execution of the bond and granting of administration.</p>

<p>Of the authority of factors and agents to bind their principals, f</p> <p>t See Odiorne vs. Maxcy ^ al.} 15 Mass. Rep. 39.</p>

<p>The embargo laws gave to the United States an election of the forfeiture of any vessel guilty of a breach of those laws, or to recover a pecuniary penalty of the owner. It was holden, that the forfeiture did not attach until actual seizure ; and, therefore, that a bona fide purchaser of such a vessel, after the offence and before the seizure, could have successfully defended and claimed in the courts of the United States against a forfeiture; and, having neglected so to defend and claim, he was not entitled to damages from the vendor, on his covenant against incumbrances.</p>

Trespass quare clausum fregit. The defendant pleaded, that the locus in quo was, at the time of the supposed trespass, the soil and freehold of the First Congregational Society in the first parish in said Shapleigh; upon which issue was joined. - Trial at the last October term, before Wilde, J. It appeared, that the original proprietors of the 'town of Shapleigh, at a legal meeting on the 9th of January, 1775, divided a portion of the township into lots of 300 acres, and…

This was an action of the case, in which the plaintiffs, by the name ofic The Inhabitants of the Fourth School-District in the Town of Rumford in the County of Oxford,” declared upon a promise and undertaking of the defendant, to erect a schoolhouse for the use of the plaintiffs upon the defendant’s land, and to make a lease of the same land to the plaintiffs, for the consideration of $ 170, paid him by the plaintiffs.

This was a writ of replevin, brought against the defendant, a deputy sheriff for this county, for twenty-one * barrels of oil, which the defendant had attached as the property of John Page, jun., at the suit of Thomas Green, then and for some months before a creditor of the said John Page, jun. The defendant pleaded, that the said oil, when attached by him, was the property of the said John Page, jun., and Elijah Stearns ; and traversed the plaintiff’s property.

Case upon four several promissory notes made to the plaintiffs by Edward Anderson, the defendant’s intestate.

<p>fi minor being possessed of a promissory note, payable to himself and not negotiable, exchanged it with A. for a watch which was worthless. The next day he tendered the watch to A. and demanded the note, to neither of which A. acceded. The maker of the note, being informed of the transaction, and receiving a discharge from the minor’s father, gave a new note for the debt. A afterwards passed the first note to B. assuring him that it would be paid. B. sued the maker in the name of the minor, and the Court held, that the note was void from the rescinding of the contract by the minor.</p>

<p>A. and B., having indorsed sundry promissory notes for C., and the latter having given them a mortgage for their indemnity, the notes were afterwards paid by A. and C., who thereupon released all his right in the mortgaged premises to A. It was holden, that B. had no interest in the land, after the mortgage and before the release, which was subject to attachment by his creditors.</p>

Assumpsit for money had and received, tried at the last October ■ term, in this county, before Wilde, J. The plaintiff proved, that, on the first of June, 1807, one D. Hale was reappointed cashier of the said Maine Bank, and that the plaintiff, with two other persons, on the same day executed a bond with Hale, as his sureties, in the penal sum of $ 15,000, conditioned, that the said Hale should ever thereafter, during his continuance in said office, well and truly perform,…

This was a petition for partition, in which the petitioner alleges himself seized of certain lands in the County of Oxford, in common with others to him unknown, and was originally presented to the Circuit Court of Common Pleas, in that county, who ordered notice in some public newspaper, pursuant to the provision of the statute of 1783, c. 41, § 3.

Scire facias against the defendant, as bail of one Charles Shaw. In a case stated, for the opinion of the Court, it appeared, that the principal was an inhabitant of Bath, in the county of Lincoln, and, being accidentally in this place, was arrested by a constable of Portland, at the plaintiff’s suit, upon an original writ, returnable to the Court of Common Pleas for this county, and the defendant, an inhabitant of Portland, became his bail.

<p>In this case, Porterfield, in his answer to interrogatories, acknowledged himself to be the debtor of Webb; and disclosed a number of circumstances going strongly to show an assignment of the debt to one Pierce, previous to the service upon him of the writ in this suit.</p>

<p>Assumpsit for money had and received by the defendant, to the use of the plaintiff. The facts agreed by the parties were as follows. The defendant, .having shipped as a prizemaster on board an American privateer, duly commissioned to capture British property on the high seas, and, as such prizemaster, being entitled to several shares of the property that might be captured, on the 9th of February, 1815, in consideration of $25, sold to the plaintiff one quarter of a share of all captures that might be made by the privateer during the cruise on which she was then bound. On the 12th day of the same February, news of the peace concluded between the United States and Great Britain arrived at Brunswick, where these parties resided. Hereupon the intended cruise was abandoned, and the officers and crew of the privateer were discharged, although, by the terms of the treaty, captures that should have been made within seven days from the receipt of the news at .Portland. where the privateer lay, would have been lawful prize. This action was brought to recover back the money paid by the plaintiff for the said quarter of a share.</p> <p>Judgment was to be entered by nonsuit or default,, as the opinion of the Court should be on the facts stated.</p>

Assumpsijt for money laid out and expended, and for money had and received. The defendants. were defaulted at the last October term, and the action was continued for judgment.

<p>A new trial was granted, because the plaintiff’s son-in-law said to one of the jurors, that the cause was of great consequence to him; that he should have to pay the costs, if the cause should go against the plaintiff; and that the defence of the action was a spiteful thing on the part of the defendants.</p>

<p>The respondent, being duly warned, neglected to attend a review of the regiment of militia in which he was regularly enrolled ; and, being prosecuted before a justice of the peace, he was fined $ 4, notwithstanding it was proved, that the place appointed for the review was more than fifteen miles from his home.</p>

This was a writ of error, brought to procure the reversal of a judgment heretofore rendered in this Court, in favor of the Commonwealth against these plaintiffs in error, upon an information filed by the Attorney-General, October term, 1814, against them and another person, for intruding upon lands of the Commonwealth in Brownfield, in the County of Oxford, and cutting down and carrying away sundry trees thereon growing.

<p>In a conveyance of land by a married man, words of release by the wife are necessary to bar her of her dower. It is not sufficient that she executes and acknowledges the deed, her name being introduced only in the conclusion, and the purpose of her signing and sealing not being declared.</p>

This was an action of the case, brought by the plaintiff, as admin istratrix of the estate of David Learned, Esq., deceased, late sheriff of the County of Oxford, against the defendants, upon a receipt and promise made by them, by which they acknowledged to have received of him sundry articles of the value of $ 220, which he had attached on a writ against one Nathaniel Sawtell; and which they promised to deliver to the said intestate when he should call for the same, towards…

<p>One possessed of an equity of redemption conveyed the premises in fee, the grantee agreeing to pay to the mortgagee the amount due on the mortgage, and the balance to the grantor; which was done accordingly. The wife of the grantor was holden entitled to dower in the premises.</p>

This was a libel for a divorce a vinculo, and contained a prayer that dower might be assigned to the libellant of the estate of the respondent, if the divorce should be had. A divorce being decreed, Bond, for the libellant, inquired whether the Court would now appoint commissioners to set off the dower.

<p>This was an appeal from a decree of the Judge of Probate for this county, allowing the administration account of the respondents, as executors of the last will and testament of Jacob Smith, deceased; the appellant being guardian of the said testator’s chil dren.</p> <p>One of the reasons of appeal, filed in the Court below, was, that the Judge of Probate had not charged the executors with interest upon the cash balance in their hands, from the time they received it, or from some short period afterwards ; several years having intervened between the receipt of the money by them and the settlement of the account in the Probate Court. There was no evidence, that this money had been employed by the executors, or that it had been demanded of them, or that they had refused or neglected to render an account upon a citation for that purpose. They had credited a gross sum as the amount of interest received by them of the debtors to the estate, without showing at what times it had been received, or the amount received of each debtor respectively.</p>

<p>Debtors to a banking company cannot set off the bills or notes of such companv in an action by the company against them.f</p> <p>[t This is still (1843) the law in Massachusetts. But in Meto York the contrary is law; see Miagara, Bank vs. Roosevelt, 9 Coioen. 409; Bruvn vs. Receiver, fyc., 9 Coroere, 413 .note.— Ed.]</p>

<p>Trover for certain cattle. At the trial upon the general issue, at the last September term, before Thatcher, J., the defendant admitted that he took the cattle, by virtue of a writ of execution, as the property of one James N. Lithgow. It was admitted by the plaintiffs, that the said Lithgow owned the cattle ; and it was proved by him, that the same were afterwards conveyed to one Thomas Butler, who sold them fairly to the plaintiffs. It was in evidence, that the plaintiff, Clap, was, at that time and until the trial, the legal guardian of <A. J. S. G. Lithgow, a minor ; and the said minor, being called as a witness for the plaintiffs, testified, that, immediately after the plaintiffs purchased the cattle as aforesaid, they were put into his possession, and he considered them as his own ; that the plaintiff, Oliver, was then indebted to him, the said minor, and agreed that * his part of said cattle should go in part payment of the said debt; that the plaintiff, Clap, agreed that he, the said minor, might take his, Clap’s, part of the cattle, and account to him for their value when he should arrive at the age of twenty-one years ; but, in the disposition of them, he was to consult his said guardian ; and that he, the said minor, considered himself as holding the cattle, when they were taken by the defendant. The said Lithgow, the minor, further testified, that he afterwards did dispose of a part of the said cattle, having first obtained the consent of his said guardian so to do. But there was no evidence that the said guardian was consenting to any arrangement, made between the said minor and the plaintiff, Oliver, that the debt of the latter should be cancelled by the cattle going in part payment as aforesaid.</p> <p>Upon these facts the judge instructed the jury, that the plaintiffs in his opinion, had such a property in the cattle, at the time of the -taking of them by the defendant, as would authorize them to maintain this action ; and, a verdict being returned for the plaintiffs, the defendant’s counsel filed exceptions to the opinion and directions of the judge, and moved for a new trial on that ground.</p>

Entry sur disseizin. Trial upon the general issue, at the last September term, before Thatcher, J. The title of the demandants being admitted, the tenant alleged that he, and those under whom he claims, held the demanded premises by virtue of a possession and improvement for more than six years previous to March, 1808, and prayed that the jury should ascertain the increased value thereof, by virtue of the improvements made by him, &c., agreeably to the statute in that case…

Debt on bond. On oyer, it appeared to be a bond of the defendant and sundry other persons, and amongst them “ John Cox, as administrator of the estate of George Cox, deceased ” ; by which they severally acknowledged themselves indebted to the plaintiff in the sum of $ 3000 each.

<p>The defendants were indicted, at the last June term in this county, for assaulting, beating, wounding, and ill-treating one Mary Gove, so that her life was put in great danger; et alia enormia, fyc.</p> <p>At the last September term, the defendants pleaded in bar and set forth a process issued by a justice of the peace for this county against them, upon the complaint of the said Mary, and Elijah Gove, her husband, for the same assault and battery, upon which, after a full hearing, they were acquitted by the justice, and discharged of the said complaint, to go without day ; and they made a profert of a copy of the justice’s record ; with an averment, that the assault, &c., in the said complaint and process, and those set forth in this indictment, are the same, and not other nor diverse ; that the said justice of the peace had full jurisdiction of the said complaint, and of the matters therein set forth ; and that they, the now defendants, are the same persons named in the complaint and proceedings before the justice.</p> <p>The Attorney-General, after oyer of the proceedings * before the justice, and protesting, that the said assault and battery, complained of to the said justice of the peace, was of a high and aggravated nature, and not within the jurisdiction of a justice of the peace to determine, and that the said complaint was made for the sole purpose to have the defendants duly bound by recognizance to appear at the then next Supreme Judicial Court or Circuit Court of Common Pleas to be held in said county, and to /equire them to find sureties for their keeping the peace, &c., demurred to the plea of the defendants, who joined in the demurrer.</p> <p>At this term, the Solicitor- General, in support of the plea, observed, that he had not been informed by the Attorney-General on what ground he expected to maintain the demurrer ; but he argued, that the indictment, by alleging that the woman’s life was put in great danger, show's this to have been an assault and battery of a high and aggravated nature, of which a justice of the peace has no jurisdiction by our statute, except to bind the offenders to theit appearance before this Court, or some other competent tribunal. (1) This was the only ground, the Solicitor- General observed, on which he could conjecture that the Attorney-General had thought fit to demur to the plea.</p>

<p>This was an action of the case for slander, in which the plaintiff declares, “that, whereas he is a good and faithful. citizen of this Commonwealth, and for more than eight years now last past has been, and now is, a minister and preacher of the gospel, legally settled and ordained over the congregational church and society in Hanover, and was always of good reputation and character for temperance and sobriety among, &c., and is, and ever has been, free from the odious and criminal offence of drunkenness ; nevertheless, the said Jllden, not being ignorant of the premises, but maliciously and wickedly contriving and intending to blacken and defame the plaintiff in his good name and reputation, injure him in his ministerial office aforesaid, and put him in danger of losing the same and the profits accruing to him therefrom, on, &c., at, &c., in the presence and hearing of divers good citizens, &c., did openly speak, * utter, and publish, of and concerning the plaintiff, so being such minister and preacher of the gospel as aforesaid, the following false, scandalous, malicious, and defamatory words, namely; 1 Old Chaddock’ (meaning the plaintiff) ‘■stayed at our house last night, and ivas pretty devilish drunk. He was so drunk he could not find his keg. He made out to stagger up to the house. He was drunk.' And at, &c., on, &c., in the presence and hearing of, &c., and with the intention and for the purposes aforesaid, did openly speak, &c., of and concerning the plaintiff, so being such minister, &c., these other false, &c., words, namely ; ‘Mr. Chad-dock ’ (meaning the plaintiff) ‘ has had a drunken frolic this week. He and a party went out a getting hay, got back to our house, and he got so drunk he could not get home, but stayed and slept with me.’ By means of speaking and publishing which said several false, &c., words, the plaintiff has been unjustly suspected to have been guilty of the crime of drunkenness, and has been put in danger of being deprived of his ministerial office aforesaid, and losing the profits ac^ cruing to him from the same ; and likewise has undergone great pain and distress in body and mind ; and has been greatly injured and prejudiced in his good name, and in his religious character arid usefulness. To bis damage $2000.”</p> <p>A verdict being found for the plaintiff, the defendant moved an arrest of judgment, because the declaration did not show a sufficient cause of action.</p>

<p>One conveys land, reserving a highway across the same to be kept open for ever; the heir of the grantee conveys parcels thereof bounded on the highway; and, in an action for the land covered by the way, by. the last grantor against one of his grantees, to which the tenant pleaded mil disseizin, the demandant recovered ; but it was said, that, if the tenant had pleaded a special non-tenure in abatement, claiming only a right of passage over the land, he might have prevailed.]</p> <p>t See Sta.ckpole vs. Healy, 16 Mass. Rep. 33.</p>

<p>The bond given by a clerk of the Court of Common Pleas is no security for the fees of the crier of the Court, which by law are to be received by the clerk tod by Mm paid over to the crier.f</p> <p>t [By Rev. Stat. (c. 122, § 4) of Massachusetts, the crier receives $2 per day, to be paid out of the County Treasury. — Ed.]</p>

<p>This was an action of debt, founded on a decree of this Court made and passed October term, 1804, at Taunton, wheieby the present plaintiff was divorced a vinculo from the defendant, who had been her husband ; and, by the same decree, the sum of $ 50 was allowed her, to be paid annually by the defendant. The plaintiff avers that six years of her said alimony are in arrear.</p> <p>The defendant, after reciting the decree in hcec verba, pleads, in substance, that the same is void as it respects the said alimony, for want of authority in the Court to pass it. To this plea there is a general demurrer, which is joined by the defendant.</p>

The original action was brought before a justice of the peace for the County of Plymouth, by Keen against the defendant in error, upon certain promises made by his testator. The plaintiff recovered judgment, from which Turner appealed to the Circuit Court of Common Pleas.

<p>Assumpsit on a policy of insurance, dated the 26th of December, 1812, by which the sum of $ 1200 was insured on the schooner Industry, of which the said Goodwin was master, “ at and from her port or ports , of loading in North Carolina to Boston or Plymouth, lost or not lost.” The defendant underwrote $ 300. The premium 15 per cent., two and a half to be returned in case of safe arrival.</p> <p>At the trial, which was had at Plymouth, October term, 1814, before the late Justice Dewey, the plaintiffs, to prove that they had an insurable interest in the vessel, offered in evidence an agreement in writing, by which one Clark Finney, owner of the said schooner, chartered her to the plaintiff Goodwin, from North Carolina, where she then was, to Boston or Plymouth; and Goodwin agreed to pay for the hire $ 150, to pay all expenses of victualling and manning, and port charges, and also “to insure, or cause to be insured, $ 1200 on said schooner against all risks whatever, the same as is expressed in policies of insurance in Boston.” On the back of said agreement was a certificate indorsed, of even date with the agreement, signed by the plaintiff Bartlet, that he had agreed with Goodwin “ to take and be equally concerned in the within agreement.” It was proved, that both the said agreement and indorsement were made about the time of their date, which was the 1st of November, 1812.</p> <p>When the insurance was effected, the verbal representation of the plaintiffs’ agent was, that the vessel was at North Carolina for a cargo of corn ; and nothing was said of the particular manner in which they were interested.</p> <p>The defendant contended, that, upon this evidence, the plaintiffs had no insurable interest in the vessel; that, if they had, it was not insured as such particular or * contingent interest as was disclosed by the evidence ; and that the concealment of the fact, that they were not the owners, vitiated the policy.</p> <p>A verdict was taken for the plaintiffs by consent, subject to the opinion of the whole Court upon all the facts reported by the judge. Upon those facts several other points arose at the trial, as, that the master was guilty of fraud, or, at least, such gross negligence, in not giving timely notice of the state of the vessel, when stranded in North, Carolina, to the other charterer, who lived at Plymouth, as amounted to barratry ; that the policy never attached, the voyage not having been commenced at the time of the loss ; and that the plaintiffs had waived their right to abandon, by unreasonable delay.</p>

The Court below having refused permission to the officer to amend his return upon the original writ [ Vide ante, vol. xi. page 413],

<p>An administrator may maintain trespass against assessors for an illegal assessment on his intestate, f</p> <p>1 See Saxton vs. Nimms et at., 14 Mass. Rep. 315.</p> <p>Towns have no authority, in time of war and danger of hostile invasion, to raise money to give additional wages to the militia and for other purposes of defence,</p> <p>Assessors, who assess a tax by force of such an unauthorized act of the town, are liable in trespass to the individuals whose property is taken to satisfy such tax ; and this, notwithstanding there may be included in such assessment other sums lawfully voted and raised by the town.</p>

The aclion was in assumpsit, Robbins being plaintiff, and Rider defendant.

<p>Trespass, for breaking and entering the plaintiff’s dwellinghouse in Troy, in the county of Bristol, and taking and carrying away his goods, &c. Plea, not guilty, with liberty to give any special matter in evidence. Trial before the Chief Justice, at the last October term at Taunton.</p> <p>The entry and taking the articles described in the declaration were admitted ; and the defence set up was, that the defendants, as inspectors of the revenue, having cause to suspect a concealment of goods which had been imported into the United States contrary to law, under a warrant from a justice of the peace, entered the house, and seized the goods, as part of the appurtenances of the sloop Patty, which had been seized, libelled, and condemned, in the District Court of the United States, for the district of Massachusetts, for a violation of the embargo laws.</p> <p>A copy of the warrant came up in the case. It was directed to the sheriff or his deputy, or any constable of Troy, and recited that a complaint and information on oath had been made to the justice by JV*. W., Esq., collector of the port of Dighton, that “certain goods, wares, and merchandise were lodged or deposited in the houses or stores of Messrs. Thomas Sandford fy Company, of Troy, &c., the duties on said goods, &c., to which they are subject, not having been paid or secured agreeably to the laws of the United Statesand requiring the sheriff, &c., “in * the daytime only, taking suitable aid, to enter into, and make diligent search in, the aforesaid houses and stores, for the goods, wares, and merchandise, above mentioned, and, when found, to delivei the same to the said </V*. W., to be proceeded with and disposed of as the law in such cases has provided.” The officer returned, that he had made search in the house of the said Thomas Sandford, and there found a number of sails and a quantity of rigging, which were claimed by the defendants.</p> <p>The plaintiff objected to the warrant’s being read in evidence, or as justifying the entry, without showing a complaint in writing, under oath, as the foundation of the warrant. This objection was overruled ; and, if the warrant was improperly admitted, or would not justify the entry into a dwellinghouse, without proof of a written complaint as aforesaid, the verdict, which was returned for the defendants, was to be set aside, and a new trial granted.</p>

<p>Prizes captured by private armed vessels being required by law to be sold by the marshal, and the proceeds of the sales, after certain deductions, to be paid over by the marshal to the agents; it was holden, that the shares of seamen in such prizes were not assignable, so as to authorize an action in the name of the assignee against the agent.</p>

The defendants were indicted for neglecting to open, make, maintain, and keep in repair, a certain highway, alleged to be in the said town, and to be incumbered with rocks, &c., so as to be impassable.

<p>This was an action of debt upon a bond made to the plaintiff, as sheriff of the county of Berkshire, by the defendants, as sureties for one Root, whom the plaintiff had appointed to be one of his deputies.</p> <p>In a case agreed by the parties, the bond was recited, bearing date the 30th of January, 1812, and conditioned, among other things, to indemnify and save harmless the plaintiff, his heirs, &c., from all actions, suits, judgments, and executions, which might be commenced or recovered against him, by reason of any neglect, misfeasance, nonfeasance, or misdoing of the said Root in his said office of deputy sheriff.</p> <p>It was also agreed in the case, that four warrants ot * distress, issued by the treasurer of the Commonwealth, against delinquent collectors of taxes in this county, all dated the 16th of March, 1812, were delivered by the plaintiff, on the 1st of April then next, to the said Root, to be by him collected and returned, according to the precepts thereof; the amount thereof being $489.83, the whole of which was collected by said Root; who neglected to return the warrants, converted the money to his own use, and absconded from the Commonwealth.</p> <p>In May, 1812, the plaintiff resigned his office of sheriff; and Ihnry C. Brown, Esq., was thereupon duly appointed to the said office, and on the 27th of the same May appointed the said Root his deputy.</p> <p>It appeared that Root had collected, on the said warrants, the sum of $236.32, before the said 27th of May, and the residue he collected after said day.</p> <p>The treasurer of the Commonwealth had called on the plaintiff, and held him accountable for the money so collected by Root; and it was agreed by the defendants, that the plaintiff’s claim in this action should be considered by the Court in the same manner as if the treasurer had obtained a judgment against him for such sum as he in law would be holden to pay for Roofs misdoings in this respect.</p> <p>Judgment was to be entered in this action according to the opinion of the Court upon the facts agreed, upon a nonsuit of the plaintiff, or the default of the defendants.</p>

<p>Officers commanding the militia at musters are answerable for damage accruing to citizens from firing guns in or near the highway by the soldiers under their command.</p> <p>By the statute of 1809, c. 107, § 19, the commanding officer of militia on duty may not include any highway within the parade ground, so as to prevent travellers from passing upon it.</p>

<p>The prisoner was indicted at the last May term in this county, for the murder of one John Richards; and, on his arraignment, at this term, discovering strong' marks of mental derangement, though he pleaded not guilty to the indictment, a jury was impanelled by the direction of the Court, to try and determine whether he were sane or not.</p>

This was a petition for a review of an action which was decided between these parties at the last September term. {Vide Ante, voi. xii. page 400.] The petitioners set forth in their petition, that Mr. Williams, whose deposition was used in the former hearing, was, at the time of his testifying, a very aged 'and infirm man, and since that time has died ; that, since his death, and since the judgment in the original action, there had been found among his papers, by his…

<p>A negotiable promissory note is assigned by delivery only, without writing, for an adequate consideration; and the assignee may recover judgment in the name of the promissee, notwithstanding payments made by the maker to the promissee after notice of the assignment, f</p> <p>t Dunn vs. Snell et al., 15 Mass. Rep. 481.</p>

This was a bill in equity, brought to redeem certain lands heretofore mortgaged by William Scott, ancestor of the plaintiffs, to John Southgate, the defendant’s intestate. An argument was had at the last September term in this county, by Bliss and Áshmun, for the plaintiffs, and by Blake and Mills, for the defendant. The points arising in the cause will be seen in the decree of the Court, as pronounced at this term by

This was a writ of certiorari to Samuel Lathrop, Esq., a jus tice of the peace for the county of Hampden, grounded on a conviction and sentence of the respondent for unnecessarily neglecting to appear at a muster of a company of militia, in which he had beer enrolled.

<p>Debt on a judgment recovered September, 1807, for $209.47, debt and costs. The defendants pleaded, 1. Nul tiel record, the issue upon which the Court determined for the plaintiffs. 2. Satisfaction, upon which issue was joined to the country, which was tried at the sittings here after the last September term, before Putnam, J.</p> <p>To prove satisfaction, the defendants produced an execution thd issued on the judgment declared on, and a return thereon dated the 20th of April, 1808, whereby it appeared, that J. Taylor, Esq., attorney for the plaintiffs, certified, that he had received a promissory note, signed by Gideon Chapin, payable to Baldwin Potter, one of the defendants, for $ 300 with interest, dated the second of December, 1807 ; which the said Taylor was to endeavour to collect, and in consideration of which he consented that the execution should be returned unsatisfied.</p> <p>The defendants offered evidence to prove, that, when Mr. Taylor received the said note, the said Chapin was in good credit, and continued so until 1810; and that Mr. Taylor did not use his endeavours to collect the money due on the note, and that the same was lost by his neglect. The judge rejected this evidence as irrelevant ; and a verdict was returned for the plaintiffs. If the evidence which was thus rejected ought to have been admitted, a new trial was to be granted; otherwise, judgment was to be entered on the verdict.</p>

<p>The defendant was indicted, at the last May term of this Court, in the county of Franklin, for assaulting and beating one Samuel Rich, when performing the duty of an assistant or aid of-Bates, a deputy sheriff in that county, when in the execution of the duty of his office ; and for rescuing Warren JL. Field, who (as was alleged) had been arrested upon an execution in favor of Messrs. Jackson fy Waimoright, for $ 99.64.</p> <p>At the trial before Putnam, J., it appeared, that the defendant was the brother of the execution debtor ; and it was proved, that Rich had the execution, to collect the money due thereon for the use of the creditors, and delivered it to Bates to be served. He then proposed to be appointed an aid or assistant of Bates in the business To this Bates assented, and verbally appointed him his aid. Rich then stated, that he was acquainted with the debtor ; who possibly migh. be willing to pay, or compromise the matter, without further trouble ; and therefore proposed, that he should go forward and converse with the debtor, who was at the house of the defendant To this Bates assented, and agreed to follow ; and he testified, that he expected that Rich would not permit the debtor to escape, but would arrest him, if he should attempt to get away. Rich then went forward, and Bates followed. The defendant was at his house. The debtor, alarmed at the approach of these men, ran out of the door of the defendant’s house towards the woods. Rich then beckoned to Bates, who was in sight, and called to him to “come on.” The debtor ran into the woods, Rich pursuing him, the defendant pursuing Rich, and Bates following them. As Rich was pursuing, he told the debtor to stop, saying that he had nothing against him but what he could meet or settle. • On this the debtor looked round, but continued running. At last Rich overtook the debtor, -who defended himself with a *club, giving to Rich a blow on the head. Rich then seized the debtor, telling him, at the same time, that he was his prisoner. The debtor made no demand by what authority Rich acted. Nothing more was said than is above stated. A violent struggle then ensued between Rich and the debtor, which was continued until the defendant came up with them ; who, without demanding of Rich by what authority he seized his brother, immediately gave Rich several severe blows upon his head with a club, which stunned him. He hallooed, Murder ! which was heard by a man at work in the woods about thirty rods off, who immediately ran, with the intention of preserving the peace, and separated them. At that instant the debtor ran off, and has not since been heard of in this Commonwealth. Immediately afterwards Bates arrived, but not in season to arrest the debtor. There was no written appointment of Rich to be an aid or assistant of Bates.</p> <p>The jury were instructed, that a verbal request was sufficient ; that, if they believed the facts testified and before stated, Rich might be considered as acting as an aid or assistant of the officer, although not in his sight; provided the jury believed, that they were both pursuing one business or object; — that an arrest by the aid or assistant, under such circumstances, would be, to all intents and purposes, as valid as if the same had been made by the sheriff’s proper hand; — and that the aid or assistant would be under the same protection of the law as the sheriff himself.</p> <p>The jury found the defendant guilty ; and he moved for a new trial for misdirection. If, upon these facts, the Court should be of opinion that the defendant ought not to have been convicted, the verdict was to be set aside, and a new trial granted. Otherwise, &c.</p>

This was an action of trespass originally brought in the County of Hampden, of which the plaintiff is an inhabitant, for an assault and battery and imprisonment of the plaintiff, who alleged his damages at $ 500.

This was an action of trespass quare clausum, fregit, originally brought before a justice of the peace ; and the defendants there pleaded not guilty, and also soil and freehold. The cause was carried to the Common Pleas according to the statute, and thence came tc, this Court by appeal.

<p>A devisee of real estate, which is taken from him by a title paramount to the testator’s, has his remedy for the value of the estate upon the bond given by the executor, being also the residuary legatee, for the payment of debts and legacies ; and this without a previous demand upon, or action against, the executor. f</p> <p>t Prescott, Judge, fyc., vs. Parker al., 14 Mass. Rep. 428.</p>

<p>A deed for the conveyance of land, acknowledged and recorded, if obtained by duress, may be avoided by the entry of the grantor or his heirs, within twenty years.</p> <p>A gift or devise of land to the inhabitants of a town, in their corporate capacity is not void.</p>

<p>Assumpsit against the defendant, as the drawer of an order on John Kimball to deliver to the bearer sixty-five dollars’ worth of best selected lowland cotton, at the market cash price, dated February 3d, 1814; with an averment of a request of payment on the next day, by the plaintiff, of Kimball, and of a refusal by him to pay, &c. There was another count, averring that Kimball had no funds of Willard, &c., and the usual money counts.</p> <p>Trial was bad upon the general issue, at the last April term in this county, before Putnam, J. The only evidence produced was the deposition of Joseph Richards, jun., the objection of the defendant’s counsel to its admission having been overruled by the judge. He testified, that he was employed by the plaintiff to drive a team for him, about the * 1st of February, 1814 ; and, in that occupation, carried a load of fish belonging to the plaintiff to the county of Worcester for sale ; that, on or about the 3d of that month, being at Fitchburg, he met with Willard at an inn, who told the witness, that he was about collecting a load of merchandise to go to the westward with, and that he should be glad to purchase some of the fish to carry with him ; that the witness agreed to sell him a quantity of fish, and to receive payment in cotton, for which Willard said he could give him an order, to be answered at Waltham; that on this the witness delivered him fish to the value of sixty-five dollars, and received from him the order declared on. There was proof that the order was presented to Kim-ball, and acceptance refused by him, because he had no funds of the diawer.</p> <p>A verdict was returned for the plaintiff; which was to be set aside, and a new trial granted, if the said deposition ought to have been rejected ; otherwise, judgment was to be rendered on the verdict.</p>

Assumpsit for the support of Nancy Boioker, a pauper, from the 20th of August, 1814, to the 20th of April, 1815. At the trial, which was had on the general issue, at the last April term, before Putnam, J., there was evidence of notice to the defendants, and a denial on their part that the settlement of the pauper was in their town.

<p>No action lies by virtue of the statute of 1788, c. 66, § 5, (which gives a remedy against heirs, &e., after the executor or administrator has ceased to be liable,) against the husband of one who inherited personal property from the covenantor after the death of the wife.</p>

<p>Where a minor son hired a chaise to carry home his sick brother, and the father directed him to pay the hire out of his wages, which belonged to the father; it was holden, that the father had sufficient property in the chaise to enable him to maintain an action against one who upset and broke it, while the son, who had hired it, was returning with it; and in such action the hirer was holden to be a competent witness.</p>

<p>Trespass for taking and carrying away six oxen, four cows, and four steers, the property of the plaintiff, and converting them, &c.</p> <p>It was agreed by the parties, that the defendant, being a deputy sheriff of this county, on the 27th of January, 1815, and having in his hands a writ of attachment in favor of one George Dutch against the said Bond, returnable on the third Monday of March then next, by virtue of that writ attached the said cattle ; and, without removing them, took an accountable receipt from one Stephen Flagg for the same, who then was, and had still continued to be, of sufficient ability to respond to Padelford for the value of the cattle, which were permitted to remain in Bond's possession, with the knowledge of Padelford, and without any objection on his part. Afterwards, on the 7th of February then next, the said cattle being found in the possession of Bond, and Padelford still having the said writ in his hands, he retook the cattle ; and afterwards returned the said w:it to the court to which it was returnable, and where it was duly filed, with the following return, namely, — “ Worcester ss. Jan. 27, 1815. By virtue of this writ I attached six oxen, four cows, and four steers, the property of the within-named John Bond, and at the same time gave him a summons in hand. Harry Padelford, Deputy Sheriff."</p> <p>*If, upon this statement, the Court should be of opinion that the action could be maintained, the plaintiff’s damages were to be assessed by a jury ; otherwise, he was to become nonsuit.</p>

<p>The declaration was in covenant broken, upon a lease, made on the 1st of May, 1800, between the plaintiffs and John Smith, since deceased, of about four acres of land in Dedham, belonging to the plaintiffs, for the term of 999 years, upon a yearly rent of $ 13.71, for the first seven years,—and for the remainder of the said term to pay annually such rent as three or five disinterested arbitrators of Dedham or adjoining towns, as might be chosen equally by the parties in the eighth year from the said date, shall award and indorse thereon. that they, or a major part of them, should think equitable and just, taking into consideration solely what the premises would then lease for, &c. • There were averments, that the said John Smith, * for himself and his assigns, covenanted to pay the rent; — that he hath deceased ; — that the said Grace hath been duly appointed administratrix of bis estate, and hath entered and occupied, and thereby become the assignee of the said John;—that, after the expiration'of the first seven years, the said Grace, being assignee as aforesaid, and the plaintiffs, mutually agreed upon three disinterested arbitrators, who awarded, that, after the first seven years, the rent should be sixty-five dollars by the year, for the remainder of the term;—and that five years’ rent was in arrear, at sixty-five dollars per annum. The writ was dated the 7th or September, 1812.</p> <p>The defendant pleaded, — 1. That she had not broken her covenant ; upon which issue was joined; and, 2. That the arbitrators, on the 28th of August, 1809, awarded the rent to be at forty dollars a year, for the residue of the term ; setting forth their award in hoce verba ; and that she has always been ready to pay after that rate, but that the plaintiffs refused to accept it.</p> <p>The plaintiffs replied, that the arbitrators did estimate and fix the said rent at sixty-five dollars by the year, and traverse the averment of the defendant, that they awarded forty dollars a year, concluding to the country ; and the defendant joined that issue.</p> <p>At the trial of these issues, which was had before Putnam, J., October term, 1814, the plaintiffs, to maintain the last issue on their part, offered an award on a separate paper, signed by all the arbitrators, dated August 28th, 1809, fixing the rent at sixty-five dollars a year ; — and another paper, signed by all the said arbitrators, reciting their appointment to arbitrate in the premises on the 20th of June, 1809, and stating that they had awarded as aforesaid. They also offered George Zeigler, one of the said arbitrators, as a witness, to prove that the said arbitrators undertook to arbitrate between the plaintiffs and a Mrs. Gay, and also between the plaintiffs and the defendant; — that they made several awards, namely, that Mrs. Gay should * pay the plaintiffs forty dollars a year, anil that the defendant, Smith, should pay them sixty-five dollars a year, rent, and that they annexed to one part of the lease between the plaintiffs and the said John Smith the award for forty dollars a year, which should have been indorsed upon the lease between the plaintiffs and the said Gay; but that, in truth, the said arbitrators fixed the rent, which the defendant ought to pay, at sixty-five dollars a year ; and that they intended to have put that award upon the lease between the plaintiffs and the said Smith. The defendant objected to the admission of these papers, as evidence of any award ; because the award was not indorsed upon the original lease, but was set forth in separate papers;—and also objected to the admission of the said witness for the purpose aforesaid, on the ground, that such parol evidence ought not to be received. Both the objections were overruled.</p> <p>To maintain the issue on the part of the defendant, she produced the original lease, a copy of which came up in the case. Jt purports a lease by the rector, churchwardens, and vestry of the said church to John Smith, his heirs, and assigns ; -— reserves the rent to ne paid to the said rector, or to said churchwardens ; — and provides, on failure of the payment of the rent, an election to the said rector, churchwardens, and vestry to distrain for the same, or to reenter, &c., with the said award of forty dollars a year upon a paper annexed thereto ; to which the plaintiffs objected, because said paper was not necessarily connected with the lease ; because it did not refer to the lease; because the award on said paper was not consistent with the conditions of the said lease ; and because an indorsement of a sum as rent on said paper was not of a sum equal to the sum of the annual rent mentioned therein ;—but which was admitted notwithstanding.</p> <p>The jury gave a verdict for the plaintiffs for the rent for five years, at sixty-five dollars a year, with interest upon the arrears ; which was taken by consent subject to the * opinion of the Court, upon the report of the judge. If the Court should be of opinion that the evidence aforesaid was properly admitted, and that, upon such evidence, the plaintiffs were entitled to recover, the verdict was to stand ; otherwise, the verdict was to be set aside, and a new trial granted.</p> <p>The cause was argued at the last October term in this county, by Whitman and Worthington for the defendant, and Richardson and Metcalf for the plaintiffs.</p>

<p>Debt on an obligation, dated February 5th, 1808, for $ 10,000, to be paid on demand.</p> <p>The defendants pleaded, 1st, non est factum; on which issue was joined.</p> <p>2. They pray oyer of the deed declared on ; — which purports to be an indenture made on the said 5th of February, 1808, by and between the defendants, Joseph Newell, Ebenezer Niles, and Abner Gardner, in behalf of The Commercial Point Bridge Corporation, of the one part, and the plaintiffs, Thomas Tileston and Ebenezer Tileston, of the other part; and, after reciting that the defendants and their associates, by an act of the General Court, passed the 19th day of June then last past, had been incorporated by the said name, for the purpose of building a bridge. over Smelt-brook creek, so called, in Dorchester ; — and that the said corporation had it in contemplation to obtain liberty from the General Court to build a dam, instead of a bridge, across the said creek, which, if granted, would be a detriment to the plaintiffs’ mills ; — and that the plaintiffs had agreed with the said corporation upon the terms, upon which they would release and convey all their right in the said mills to said corporation, and for ever relinquish all opposition to the proposed project; — witnesses, that, in case the General Court should authorize the corporation to build such dam, the plaintiffs, in consideration of five dollars paid them by the defendants, and of the covenants of the * defendants thereinafter contained, covenanted with the defendants, that they would sell and convey to the said corporation, on demand of the defendants, the said mills, with their appurtenances in fee, by a sufficient deed with covenants of warranty. And the defendants, in consideration of the premises, and of five dollars paid them by the plaintiffs, for themselves and their heirs, covenant with the plaintiffs, that the said corporation shall build a mill upon the contemplated dam, of certain dimensions, and with certain fixtures and appurtenances, the materials of the old mill to be used, as far as suitable, in building the new one, and shall convey the same to the plaintiffs on demand, with certain privileges', &c., and that the corporation shall put them in possession of such new mill in sixty da vs after the old mill shall be stopped from grinding, or sooner, if possible ; and that the dam, &c., shall be for ever kept in .epair; — and the parties bind themselves, each to the other, in the sum of ten thousand dollars, for the faithful performance of the indenture. Whereupon the defendants plead in bar, that they have faithfully kept and performed all the covenants, in the said indenture mentioned, on their part to be performed, &c.</p> <p>The plaintiffs reply, that the defendants, with their associates, obtained liberty from the General Court to build a dam, &c., and built such dam ; and have not built a mill upon the dam.</p> <p>To this replication the defendants demur ; assigning the following causes.</p> <p>1. That the covenant, of which the plaintiffs have assigned a breach, is a dependent one, and they have not averred, in their replication, that they had conveyed to the said corporation the plaintiffs’ mill, &c.</p> <p>2. That the plaintiffs have not alleged, in their replication, that their old mill had been stopped from grinding.</p> <p>3. That it is not alleged that the plaintiffs ever requested the said » corporation to build a mill upon the said dam, &c.</p> <p>* The. plaintiffs joined the demurrer.</p> <p>Under the general issue joined as aforesaid, the parties agreed upon the following facts ; namely, That the deed declared was. duly executed ; that, at the time of such execution, the defendants were the only members of the said corporation ; that before and at the time of commencing this suit, the plaintiff, Thomas Tileston, was a member of the said corporation, and, being so a member, on the 6th of September, 1809, was appointed one of a committee of five, by the corporation, for certain purposes expressed in their commission ; and that he, with all the others of the said committee, reported to the corporation, at a legal meeting thereof on the same day, that the corporation should “ adopt and ratify the contracts made between the plaintiffs and the defendants, on behalf of the said corporation, in said deed recited ”; and that the corporation, on the same day, voted to accept the report of said committee. The parties further agreed, that, under this issue, by leave of the Court, the question, whether the defendants were or were not bound by said deed in their private capacities, may be decided upon the foregoing facts, and an inspection of the said deed.</p>

<p>This was a libel for a divorce from the bonds of matrimony, for the adultery of the husband.</p>

<p>This was a petition for partition, in which the petitioners alleged, that they were seized as tenants in common, namely, Nathan Pond of two ninth parts, and Ziba Pond, a person non compos mentis, under the guardianship of Nathan Pond, of one ninth part, of the real estate described in their petition, whereof Benjamin Pond lately died seized in fee, and intestate ; and they pray that their shares may be assigned to them, to hold in severalty.</p> <p>The respondents, Jlmos Pond, Leonard Pond, and Ichabod Pond, brethren of the petitioners, severally pleaded, that they were sole seized of certain parts of said estate, describing them.</p> <p>The commissioners replied, that they were seized in common, as aforesaid, and traversed the sole seizin of the respondents, upon which issue was joined.</p> <p>This issue was tried before Putnam, J., March term, 1815, when the respondents, to prove their sole seizin, produced in evidence a warrant from the Judge of Probate of this county, and certain pro ceedings had thereon, making partition of the said estate among four of the children and heirs of the said deceased, namely, the said Amos, Ichabod, Leonard, and Nathan, they paying to said Ziba $421.55, in equal shares, in full for his part of said estate. * The said warrant was dated the 22d of April, 1812, the report of the dividers on the 9th of May, and the acceptance thereof by the Judge of Probate on the 2d of June following.</p> <p>The said deceased left nine children and heirs. There had been no payment to Ziba, according to the decree aforesaid ; but the respondents had given bonds in the probate office, to pay their several parts, one third in one year, one third in two years, and one third in three years, with interest.</p> <p>The petitioners proved, that Benjamin Partridge and Milcah, his wife, in her right, by deed, dated March 5, 1812, conveyed to Benjamin Pond their right in the estate of her father, the said Benjamin Pond, deceased ; also, that Abijah P. Clark and Melatiah, his wife, in her right, by deed, dated May 6, 1812, conveyed to the said Nathan Pond all her right in the estate of her father, the said deceased ; that the whole estate was divided into four parts, one to the said Nathan, and one to each of the respondents ; and, on their part, the respondents proved, that they and the said Nathan respectively entered into possession, and occupied the parts assigned to them in severalty, the said Nathan occupying only in the year 1812, and none of the parties having made any division fence.</p> <p>The respondents also contended, that the report of the dividers was accepted by the Judge of Probate, with the consent of all the parties, as is also stated in the record of the proceedings in the probate office. But the fact was denied by the petitioners ; and the respondents produced no other evidence of their consent; the petitioners not having been present when the report was accepted.</p> <p>The respondents also produced a memorandum of an agreement not sealed, but signed by the said Ichabod, Amos, Leonard, and Nathan, for himself, and as guardian to said Ziba, and the said Benjamin Pond, dated the 9th of April, 1812, reciting that they had settled the personal estate, and agreeing that Elias Cook, C. Kollock, and A. Morse, * should be referees to divide the estate of the said Benjamin, deceased, into four equal parts ; and that the said Amos, Ichabod, Leonard, and Nathan should pay equally alike to the other heirs, and have their parts by choice, agreeably to a former agreement.</p> <p>The said agreement had reference to certain bonds, dated the 37th of February, 1813, of the penalty of $10,000, stating that the said Jlmos and Leonard of the one part, and the said Ichabod, Nathan, and Benjamin, of the other part, had chosen the said Cook, Kollock, and Morse, to divide the said real estate into four equal parts, and conditioned to abide by their award, to be made before the first day of May then next, “ the four parts to be taken by four of the sons, each of them to choose his part according to his age.”</p> <p>The said Cook, one of the referees and dividers, was sworn, at the request of the respondents, and testified, that he and the other referees made the division ; and that it was suggested, that it would be better to have the business go through the probate office ; that all the heirs were notified when the report of the referees would be made to the Judge of Probate.</p> <p>The petitioners contended, that the partition set up was not, and was not pretended to be, according to the agreement between the parties ; that the proceedings in the probate office were void, because the estate did not remain in the heirs as it had descended to them, but had been assigned by some to others of them, which ousted the Probate Court of its jurisdiction in the premises ; that the right of the said Ziba, the non compos, especially, could not be thus divested ; that the several occupation of the said Nathan, being under an ignorance of his rights, ought not to prejudice him ; that no consent of the parties could give the Judge of Probate jurisdiction in the premises ; and, if it could, the non compos was not able to give it ; and that, if the Judge of Probate had jurisdiction, such * proceedings had not been had as to give effect to the pretended partition.</p> <p>Intending to reserve the questions of law, the judge directed the jury from this evidence to give a verdict for the respondents ; which they did. And, if the Court should be of opinion, upon a consideration of the whole of the case, that the' petitioners were seized in common of the said real estate, the verdict was to be set aside, the respondents defaulted, and judgment rendered for partition, accord ing to the prayer of the petition ; otherwise, the verdict was to stand, and judgment to be rendered thereon.</p> <p>The cause was argued, at the last October term in this county, by Haven, for the petitioners, and Hastings, for the respondents ; and, at the last February term, the opinion of the Court was delivered by</p>

Trespass for breaking and entering the close of the plaintiffs, and destroying a certain water-gate, &c. The parties submitted the action to the determination of the Court upon the following case, namely ; — The plaintiffs are seized and possessed of the meadow described in their declaration, through which runs an ancient watercourse ; and about seven years since, for the purpose of irrigating and fertilizing their said meadow, they erected a dam, and placed a gate, at a…

Assumpsit by the'promissee against the maker of a promissory note. The note was described as dated the 23d of November, 1812, for $ 66-50, payable in six months with interest. There was also a count on an indebitatus assumpsit for labor ; and another count for money had and received. The cause was tried upon the general issue, before Putnam, J., at the last February term in this county.

Assumpsit on a promissory note for $70.82, made by the defendant, payable to the plaintiff or his order on demand with interest, dated September 1, 1808. The action was commenced on the 8th of April, 1814. The cause was submitted to the decision of the Court, upon - a statement of facts agreed by the parties.

<p>A tradesman’s book of accounts, verified by his own oath, was received in evidence, although kept in the leger form, and although it appeared, from his own showing, that he first made the charges upon a slate, and, after transferring them to his book, rubbed them oif from the slate, f</p> <p>[ t As to the admissibility of the party’s own books, and his own entries, see Green-on Evidence, pp. 137-143, and notes. — Ed.]</p>

<p>An action lies for a mortgagee of a remainder or reversion, to foreclose the mortgage living the tenant of the particular estate, f</p> <p>t Walcut vs. Spencer, 14 Mass. Rep. 412.</p>

<p>The commanding officer of a company of militia issued his orders to A. B., a private in the same company, commanding him to warn the company to appear, &c. The private made a written notification, signed A. B. only, without any declaration that it was made pursuant to the orders of the captain, which notification was left at the usual places of abode of the soldiers in legal time; and it was holden sufficient.</p> <p>Where an order of the major-general appointed one day for inspection, and the next for a review, it was holden, that but one fine of four dollars was forfeited by a private who neglected to attend, pursuant to orders, on both the days.</p> <p>Where a judgment brought upon certiorari consisted of two parts, the proceedings were quashed as to one part, and affirmed as to the other part.</p>

<p>This was a writ of entry sur disseizin. The tenant pleaded, as to three undivided seventh parts of the demanded premises, that he never disseized the demandant in manner, &c. ; upon which issue was joined. And, as to the residue of the demanded premises, namely, four undivided seventh parts thereof, he pleads in bar, that, at the time of the commencement of the demandant’s action, or at any time before or since, he did not claim any title thereto, but wholly disclaims to hold or claim title thereto ; and this, &c., wherefore, &c.</p> <p>To this plea the demandant demurs, and assigns for cause of demurrer, that, if the facts set forth in' the plea were true, the tenant ought to have pleaded, that he never disseized the demandant of any part of the demanded * premises ; the said facts amount ing to said general issue only. The tenant joined in demurrer.</p>

<p>This was a writ of entry, for sixty acres of land in Reading, on the seizin of the demandant within thirty years, and a disseizin by the tenant.</p> <p>The cause was tried on the general issue, before Jackson, J., November term, 1813.</p> <p>The demandant, to maintain the issue on his part, produced the deed of thé said Sheldon, the tenant, duly executed by him on the 12th of December, 1809, acknowledged on the same day, and registered on the 14th of the same month, in the registry of deeds for this county ; whereby, in consideration of five hundred dollars, he conveyed the demanded premises to the demandant in fee, with a covenant of general warranty. He also produced an indenture of lease between him and the tenant, dated on the same 12th of December, whereby he demised the same premises to said Sheldon for one year from that day.</p> <p>The tenant did not deny the execution of his said deed of conveyance ; but offered to prove, that, at the time of making the same, it was agreed between him and the demandant, that the latter should lend him three hundred dollars for one year, and should receive forty dollars for *the interest thereof for that time ; that he should give his note to Flint for the said forty dollars, payable in one year, and should execute the said deed, as security for the payment of that note, and also of the said three hundred dollars ; the said Flint agreeing to reconvey the said premises to him, on receiving the said three hundred and forty dollars in one year from that time ; and that, in the mean time, the said Sheldon should remain in possession of the premises, the said Flint not to receive any note or other obligation for the repayment of the said three hundred dollars. The tenant offered to prove further, that the said deed was made by him pursuant to the said agreement, and for no other consideration whatever; that the said Flint did, thereupon, lend to him the said three hundred dollars ; that he gave his note to Flint for the said forty dollars, payable in one year; that he had remained in possession of the premises ever since the said conveyance ; and that the value of the premises at that time was fifteen hundred dollars. He did not offer to prove, that the said agreement was made in writing, nor that any writings were made by either party in relation thereto, excepting those above mentioned.</p> <p>The judge rejected all this evidence ; being of opinion, that the said Sheldon was to be considered as the plaintiff or actor in this case, by claiming the premises and disseizing the said Flint thereof; that such entry and disseizin were substantially the same as an action brought by him to regain possession of the premises ; that a person who had paid money, or conveyed other articles on a usurious contract, could not, under these circumstances, reclaim the same, either by action, or by taking possession thereof in pais; and that the present was not an action brought by said Flint to enforce the performance of an executory contract, but was founded wholly on his own actual seizin of the demanded premises ; and, on these pleadings, the only question was, whether the said Sheldon had a right of entry after the making of his said deed.</p> <p>* A verdict was accordingly taken for the demandant, subject to the opinion of the Court, whether the said evidence was rightly rejected ; and, if the Court should be of opinion that the said evidence ought to have been admitted, the verdict was to be set aside, and a new trial granted.</p> <p>The cause was argued at the last October term, in this county, by J Prescott, for the tenant, and Bigelow, for the demandant.</p>

<p>This was an action of the case, originally commenced by the plaintiff against the said Goodenow, late a deputy under William Hildreth, Esq., late sheriff of this county, for a nonfeasance in neglecting to levy an execution for the plaintiff on the body of his debtor. The intestate, in his lifetime, pleaded not guilty, and died before a trial of the issue. At November term, 1814, the defendant, having sued out letters of administration on the estate of Goodenoto, came into Court, and moved that the action should be dismissed, on the ground, that it did not survive against him.</p>

<p>One pleaded in bar to an indictment, for an assault and battery a former conviction, before a justice of the peace, of the same offence. The record showed, that the justice first ordered the defendant to recognize for his appearance at the Common Pleas, and afterwards revoked that order, and sentenced him to pay a fine. The plea was held sufficient.</p> <p>In a plea of autrefois acquit or convict, it. is not necessary to plead over to the offence; for, if the plea be found against the defendant, he will be put to plead again to the indictment, and the trial will proceed as if no previous proceedings had been had.</p>

This action was assumpsit for the support of one Ephraim Flagg, a pauper, alleged by the plaintiffs to have his legal settlement in Waltham. The parties submitted the cause to the determination of the Court upon the following case. “ The said pauper was born in Waltham, and had his legal settlement there.

Assumpsit foi the support of one Jonathan Robinson and his family, paupers alleged by the plaintiffs to have had their legal settlement in, and to be chargeable to, the *town of Stow. The action was submitted to the determination of the Court, upon the following facts. The said Robinson had his lawful settlement in Stow until the year 1794, from which time to the commencement of this suit he resided in Sudbury.

<p>The said Hapgood and others demanded a moiety of a certain parcel of land in Stow. The action was submitted to the decision of the Court on a case agreed by the parties, in which the whole question was, whether by a certain deed, a copy of which was in the case, the tenant took the whole, or a moiety only, of the land in question. By that deed, the tenant’s father, in consideration of the love and affection he bore to his said son, and his desire to see him comfortably settled in the world, granted to him in fee “ the one half of the land hereafter described, both in quantity and quality, one half of all the land contained within the bounds hereafter mentioned, namely, beginning,” &c. [particularly reciting the boundary lines], “ the *one half of the whole of said land, and one half of the buildings on the same, except the dwellinghouse ; and also one other piece of land, being meadow and upland, containing seven acres, more or less, and bounded as follows, namely, beginning,” &c. ; the last-described piece being the land in question. And it was agreed, that, if, in the opinion of the Court, the whole of the said last-described piece passed by the said deed to the tenant, the demandants should become nonsuit; if one moiety only passed to him, he was to be defaulted, and the demandants have judgment for possession of the other moiety.</p>

This was an action upon the case, against the defendant, as one of the constables of Lynn in the county of Essex, for not serving and returning an execution ; and it was tried here, at the sittings after the last October term, before Jackson, J. It appeared at the trial, that the plaintiff, in June, 1813, took Out an éxecution on a judgment recovered by him against one Daniel Hitchins, of said Lynn, for $51.72 damage, and $15.50 costs.

Assumpsit for the support of a pauper, alleged by the plaintiffs to have her legal settlement in Boston. The action was submitted to the determination of the Court, upon the following facts agreed by the parties. Eliza Jackson, the pauper for whose support this action is brought, was daughter of Michael and Catherine Leonard, and was born in Nova Scotia, on the 23d of February, 1782.

<p>This was a writ of entry, brought for an undivided third part of a piece of land and a wharf in Charlestown, in which the demandants counted upon their own seizin within thirty years, and a disseizin by the tenants.</p> <p>. On the trial, which was had upon the general issue, at the sittings nere after the last October term, before Jackson, J., it appeared, that William Barber, the father of the demandant, Hannah, was seized in fee of the whole of the described premises in the year 1770, and continued to hold and occupy the same until 1773 or 1774, when he sailed on a voyage to England. He is supposed to have died on that voyage, as neither the vessel noi any of the crew have been heard of since their departure. His wife and family * continued to receive the rents and profits from the time of his departure until the commencement of the Revolutionary War, in 1775, when the wood-work of the wharf was burned by the British, whilst they occupied the '■own.</p> <p>The said William Barber left five children, all of whom are dead without issue, except the said Hannah Andrews, and William, who was the eldest son, and who removed many years ago to one of the Southern States, where he is supposed to have died. It is not known whether he left any children.</p> <p>The children of the said William Barber the elder let the wharf in the years 1778 and 1779, and received the rent ; but they never repaired it after the fire before mentioned ; and it remained in a ruinous and decayed state, and wholly unoccupied, from 1779 until the tenant, Hooper, entered upon and repaired it in 1788, as hereafter mentioned.</p> <p>The tenant, to maintain the issue on his part, offered in evidence a copy, from the registry of deeds, of a mortgage deed, dated October 13, 1770, from the said William Barber to one William Dennie, purporting to convey the whole of the premises, to secure the payment of £ 146 in nine months, according to the tenor of Barber’s note to Dennie of the same date. This evidence was objected to by the demandants, because the said note and the original deed were not produced ; but, the tenant stating that he expected to prove an entry under said mortgage, and an occupation of the premises for many years, the judge admitted the copy, reserving the question of its competency for the whole Court.</p> <p>The tenant then proved, that the said William Dennie died in 1783, leaving a will, which was duly proved and allowed. The premises in question are not mentioned in that will, but Mrs. H. C. Swan is made residuary legatee and devisee. On the 29th of December, 1787, a deed was made for the conveyance of the premises., by the said H. C. Swan and James Svjan, her husband, to David Wood. This deed was executed by Mrs. Swan herself, and by two persons as attorneys for the said James Swan; but no</p> <p>* evidence was offered of any power or authority given by James Swan to the said attorneys.</p> <p>The tenant also produced another deed, dated the second day of April, 1812, after the commencement of this action, executed by the said James Swan and his wife, acknowledged by the wife and duly registered ; by which they confirmed the said conveyance made in 1787 to the said David Wood, and released all their right in the premises to the said Hooper, who then held the same under the said Wood.</p> <p>Both these deeds were objected to by the demandants, but admitted in evidence, reserving for the consideration of the whole Court the question whether they were admissible.</p> <p>The tenant then produced a deed, dated August 14th, 1788, executed by the said David Wood, and purporting to convey the whole of the said premises to the said Hooper. It appeared, that the said Wood, after receiving his first-mentioned deed from the said James Swan and his wife, was repeatedly on the premises, and talked of repairing the wharf; but nothing was done with it until after the conveyance to Hooper, who immediately repaired the wharf, and continued to occupy it until the commencement of this action.</p> <p>It did not appear that the said Dennie, or any person claiming under him, made an actual entry on the premises, or exercised any act of ownership therein, until the said conveyance from Swan and his wife to Wood.</p> <p>Upon this evidence, the judge directed a verdict for the demand-ants ; because the tenant had not shown such an entry or possession, under and by virtue of the mortgáge, as would dispense with the production of the said original mortgage deed and note. A verdict was accordingly rendered for the demandants ; and, if the Court should be of opinion that the said direction was right, or that the said two deeds from the said Swan and his wife ought not to have been admitted in evidence, the verdict was to stand, *and judgment to be rendered accordingly ; otherwise, the verdict was to be set aside, and a new trial granted.</p>

This was assumpsit, to recover the rent of a certain fishery in Watertown, said to have been leased by the plaintiffs to the defendant in March, 1811, for one year.

<p>This was a writ of entry sur disseizin, wherein the demandant counted upon his own seizin within five years, and upon a disseizin by the tenant.</p> <p>At the trial, which was had upon the general issue by review before Putnam, J., at the sittings here after November term, 1814, the demandant, to prove his seizin, produced a judgment in his favor against one Amos Brown, jun., recovered at the Circuit Court of Common Pleas for this county, March term, 1804, for $ 348.29 ; and the execution which issued thereon, March 27th ; also the return of Peter Edes, then a deputy sheriff, of a levy of the same execution upon the right in equity of the said Brown to redeem the demanded premises.</p> <p>The tenant called upon the demandant to produce also the original writ, and the promissory notes in his suit against Brown; and he stated, that the said judgment had been obtained in consequence of a fraudulent alteration of one of the said notes ; and also that the judgment was recovered for a larger sum than was due upon said notes. The demandant objected ; but was required to produce, and he did produce, the said original writ and notes.</p> <p>The writ was tested the 21st of March, 1803, and the attachment was made on the 22d of the same month. The declaration was upon two promissory notes ; the first, dated the 29th of March, 1802, for $ 300.00, payable to said Wellington, on demand with .nterest, on which was indorsed $ 145.00 on the 1st of April, 1802 The date of this note, as to the month and day of the month, was evidently written upon an erasure. The second note was dated the 1st of April, 1802, for $ 300.00, payable by instalments of $ 150.00 in one year.</p> <p>The return of the officer upon the execution stated, that, on the 20th of April, which was admitted to be within thirty days from the rendition of the judgment, he took the right in equilj of which Brown \v as seized, and, “after * giving public notice of the time and place of sale agreeably to law ii such cases made and provided,” that he proceeded to sell at auction to the said Wellington.</p> <p>The tenant objected to this return, that it did not prove that the officer gave notice to the debtor, nor that he posted notifications of the time and place of sale, according to the statute. (1) The return was admitted. The demandant offered to prove, by parol testimony, that notifications were posted in one town, and that the debtor was actually and seasonably notified and present at the sale ; it being admitted, that the officer died before the review. The tenant objected to this evidence, and it was rejected.</p> <p>The demandant then offered the deed from Peter Edes, the deputy sheriff', dated the 31st of May, 1804, purporting to convey the said right in equity to the said Wellington. The tenant objected to ' its admission, because the proceedings of the officer, as before stated, did not appear to have been conformable to law. The deed was admitted.</p> <p>The demandant then offered a mortgage from Joel Harrington to Elijah Lawrence, dated the 24th of October, 1798, and acknowledged and recorded the same day, for £24 and interest. Also an assignment of the same, and of the bond, to secure the payment of which the mortgage was given, from Thomas Stearns, executor of the last will of the said Lawrence, the mortgagee, to the demandant, dated the 2d of November, 1809, and acknowledged and recorded the same day. To this the tenant objected, because it was procured by the demandant after the purchase of the writ in this suit ; and also, because executors, in such cases, have no authority, by law, to assign mortgages. The mortgage and assignment were admitted.</p> <p>The demandant also produced a release from the said Brow7i to him, dated the 1st of April, 1805, not acknowledged, but recorded the 8th of December, 1812, releasing bis right of redemption of the demanded premises, and also all errors in the rendition of the first judgment aforesaid. * This release was proved to have been executed about the time it bore date.</p> <p>The demandant then offered parol testimony, that he entered and took actual possession of the premises, after the sale of the equity of redemption by the officer as aforesaid. It was admitted, that Harrington, the mortgagor, was originally seized, and that from him the title passed to the said Brown.</p> <p>The tenant proved, by parol testimony, that he had been in the possession of the premises thirteen or fourteen years, claiming the same in fee ; but he produced no other evidence of title.</p> <p>The judge, intending to res'erve the questions of law arising in the case, for the consideration of the whole Court, charged the jury, that, T they were satisfied from the evidence that the demandant had obtained his judgment against Brown by fraud, they should find their verdict for the tenant. But that, if they believed from the evidence that the said judgment was obtained fairly and without fraud, it was not competent for the tenant to impeach it on the ground of an unintentional mistake or error in the calculation of the amount; and, in such case, the evidence aforesaid of the demandant ought to be considered as sufficient to maintain the issue on his part.</p> <p>The jury found a verdict for the demandant; and, if the Court should be of opinion, that the evidence produced by him was, in law, insufficient to maintain the issue on his part, the verdict was to be set aside, and the demandant to become nonsuit; otherwise, judgment was to be rendered on the verdict.</p> <p>The cause was argued, at the last October term, in this county, by Ward and Fay, for the demandant, and by Bigelow, for the tenant.</p>

The defendant in review, at the last October term in this county, at which term the writ of review was returnable, filed a motion to quash the writ, on the ground that no provision of law authorized the issuing it. The facts were as follows.

<p>This was a writ of certiorari, sued by the respondent, to reverse a judgment rendered against him by a justice of the peace for this county, for neglecting to appear at a muster for inspection of a company of militia, on the third day of May, 1814.</p>

This action was trespass against the defendants, assessors of the town of Charlestown, for an illegal assessment, by force whereof certain chattels of his were taken and sold ; and it was submitted to the consideration of the Court upon certain facts agreed by the parties.

This was assumpsit, brought by the plaintiff, as surviving partner of the late house of Harrison fy Wilby, to recover $ 897, for sundry goods sold and delivered, and moneys paid by said partners in the lifetime of the said Harrison, according to the account annexed to the writ. At the trial, which was had upon the general issue, before Jackson¡ J., at the sittings here after November term, 1813, all the items charged in the plaintiff’s account were proved or admitted.

This was a plea of land for one half of a farm in Pepperell, in this county, the demandant counting on his own seizin in fee and in mortgage within twenty years. The said Oliver Newhall pleaded non disseisivit, on which issue was joined. Ezekiel Newhall, the other tenant, was defaulted.

Assumpsit for the support of Josiah Raymond and Joseph Wheeler, paupers alleged to have their legal settlement in Charles-town. *The action was submitted to the determination of the Court upon the following facts agreed by the parties. £C The said Raymond is a citizen of the United States; and in the year 1803, being then more than thirty-one years of age, came to Charlestown, from the State of Vermont, where his family, consisting of his wife and several children, remained…

<p>Tenant in fee conveys an undivided moiety, in which also his wife releases her right to dower; partition is afterwards made by deed. It was holden, that the wife was dowable only in the moiety assigned to her husband in the partition.</p>

<p>Where there are mills on both sides of a water-course, and the mill-owner on one side has the exclusive right to use the whole of the water when there is not enough for the 1 'ills on both sides, he has not a right to erect a permanent dam to turn the water to his mill, but must rely on his legal remedy, if his right be infringed by the mill-owners on the other side.</p> <p>Jurors are to understand words spoken and given in evidence, according to the apparent intent of the speaker.</p> <p>When evidence given at a trial is objected to and rejected, if the parties after-wards comment upon it to the jury, as if it had been admitted, the objection will be presumed to have been waived.</p>

<p>A mortgage made upon an usurious consideration is void only as against the mortgagor, and those who may lawfully hold the estate under him; a purchaser of the mere equity of redemption cannot avoid the mortgage by plea or proof of usury, f</p> <p>t Bridge et at. vs. Hubbard, 15 Mass. Rep. 103.</p> <p>A mortgagee may declare generally on his own seizin, and have judgment for possession as at common law, as well after as before condition broken, and as well against the mortgagor as his assignee. j;</p> <p>[t See Rev. Stat. c. 107, § § 3, 4. — Ed.]</p>

<p>When the plaintiff, in his replication, confesses and avoids the material facts alleged in a plea in bar, he may not add a traverse, and tl ereby prevent the defendant from denying the facts which avoid his defence.</p> <p>A dwellinghonse is a protection from arrest upon civil process to the occupant, his children, and domestic servants, and to permanent boarders or lodgers, but not to strangers or visiters.</p>

<p>An officer, having in his hands cross executions, may not set off the costs for fees and disbursements due to the attorney in the suit, for which such attorney has a lien, recognized by the statute of 1810, c. 84. f</p> <p>ft By Rev. Stat., Chap. 17, § 76, it is provided, that set-off, on executions, shall not be allowed, as to so much of the first execution as may be due to the attorney in the suit, for his fees and disbursements there. —Ed.]</p>

<p>When two men have each apparently perfect title to the same piece of land, by which either might hold the whole, but for ah equally good title in the other, they take each a moiety. Thus, where two creditors caused the same land of their debtor to be attached by two officers ; one of whom returned, that he attached the land one minute after a certain hour; and the other, that he attached it immediately after the same hour, and the creditors caused their several executions to be duly levied thereon within thirty days after judgment; it was holden, that the officers severally intended, in their returns, the same instant of time, and that the creditors took each a moiety of the land so attached and levied upon.</p>

This was an action of the case for a malicious prosecution. The two defendants pleaded, jointly, not guilty. On the trial of that issue, the jury found one of them guilty, and the other not guilty. Cummings moved for costs for the defendant who had been acquitted, considering him as the prevailing party within the intent of the statute of 1784, c. 28, § 9 ; and he cited the cases of Hart vs. Fitzgerald, (1) and Galloway vs. Pitman fy al. (2)

The estate of David Woodward, the defendant’s intestate, having been represented insolvent, the plaintiffs presented their claim before the commissioners appointed by the Judge of Probate to receive and examine the several claims on the said estate.

<p>Assumpsit on a policy of insurance, by which the plaintiff, for whom it might concern, caused to be insured the sum of $5000 upon the ship Hyder Mi and her appurtenances, from Portland to her port or place of lading beyond the Cape of Good Hope, with liberty to cruise and capture. The policy contained a written * memorandum, by which it was agreed that the policy should terminate whenever the ship should arrive at her port in India or China, where the agent should determine to load for America; or at the time she might receive on board a cargo or effects, with the intention of proceeding to the United States, whichever should first happen. The policy was dated the 12th of February, 1814, and subscribed by the defendant for $400, at a premium of 33| per cent.</p> <p>The declaration contained an averment, that the policy was made by the plaintiff, as well for Charles Saunders as for himself, in certain proportions ; and that they were interested in the ship and appurtenances to the amount insured. It was then averred, that, whilst the ship was proceeding on her said voyage, and before her arrival at a port in India or China, where the agent had determined to load for America, and before her receiving on board a cargo or effects, with the intention of proceeding to the United States, namely, on the 12th of June, 1814, she was captured by a British cruiser, and condemned as prize. There was also a count for $300 had and received.</p> <p>At the trial, which was had upon the general issue, before Jackson, J., at the last April term at Ipswich, the defendant admitted the due execution of the policy ; and did not dispute the interest of the plaintiff and the said Saunders to the amount insured ; but he objected that the said Saunders ought to have been joined as a plaintiff in the action. This objection was overruled.</p> <p>On the production of the policy, it appeared, that, by a memorandum indorsed on it, dated September 19th, 1814, the defendant and the other insurers thereon agreed to continue the risk on the said ship and appurtenances until her arrival in the United States, for an additional premium of fifty per cent.</p> <p>The plaintiff claimed compensation as for a total loss on the outward passage, and also a return of the whole premium on the homeward passage; alleging, that the * second insurance, made by the memorandum indorsed as aforesaid, had never attached.</p> <p>The defendant contended that there had been a deviation, which discharged the insurers ; and secondly, that, if they were liable for any loss, it was upon the homeward passage, which could not be recovered in this action ; and that he was entitled to retain the whole premium on both insurances.</p> <p>It appeared, from the deposition of the master of the ship, that she sailed from Portland on the 27th of January, 1814, with instructions to the master to proceed to Manilla, and there procure a cargo by negotiating bills of exchange, for which he had letters of credit irom the owners to the amount of $50,000; and with further instructions to cruise for ships of the enemy ; and, if he should take out of any prizes- a cargo which he should think would make the voyage lucrative, to teturn with such cargo without going to Manilla. The ship had a commission as a private armed ship, and was armed and equipped for a cruise. After passing round the ‘Cape of Good Hope they fell in with, and captured, the brig Favorite, with a cargo of teas and dry goods. They put on board her a prize-master and crew, and ordered her to proceed to the United States. The ship then proceeded to the coast of Sumatra. In a harbour on that coast they captured the ship Jupiter ; and, after taking out of her, and lading on board their own ship, about one hundred bags of pepper, they gave her up in consequence of a large ship approaching the harbour. On the next day they arrived at Tramon roads, and there captured three other vessels. From each of these they took out a quantity of goods, which they laded on board their own ship. They then gave up one of the vessels as a cartel; and manned the other two, and ordered them to proceed to the United States. The ship convoyed these prizes off the coast of Sumatra, for eight or ten days. She then went to the island of Junkseilon for wood and water, their water having * leaked out, and that being the most convenient place to which they could go for that purpose. About the last of May they captured two other vessels, from which they took out all the valuable goods, and laded them on board their own ship, and then gave up the prizes. From these prizes they heard of two other British vessels, that had sailed for Sumatra ; and cruised for them till the 8th of June, when they were chased by a British frigate, from which they escaped after a chase of three days. On the 12,th of June they fell in with another British frigate, by which the Hyder JLli was captured, and carried into a British port; where she was libelled and condemned as prize.</p> <p>The Hyder Mi, when captured, had on board goods taken as aforesaid, to the amount of about one hundred and sixty tons ad-measurement. She could have carried nearly two hundred tons more. The master had no intention of returning home with only the goods then on board ; they being not sufficient to induce him so to do. But he intended to have cruised eight or ten days longer ; and, if he should not, in that time, have taken goods enough to induce him to return home with them, then to proceed to Manilla with what he had on board, and there complete the cargo by means of the said bills of credit.</p> <p>There were goods enough on board the vessels captured by the Hyder Mi, before she left Tramon roads, to have loaded the ship, including the pepper on board the prizes ; but there were not enough without the pepper; and the ship was not adapted to the carrying of pepper ; nor did the master think it of sufficient value to lade his ship with it.</p> <p>The master shipped from the prizes as many Lascars as he had sent of his own men on board the prizes which were ordered home ; so that his own crew was not weakened.</p> <p>There was only one question of fact, which, at the request of the parties, was submitted to the jury, namely, Whether the risk was in» creased, when the ship was sailing off the coast of Sumatra, by her convoying her prizes as * above mentioned.</p> <p>Two witnesses were produced by the plaintiff, and examined on this point; and the jury found that the risk was not increased.</p> <p>A general verdict was returned for the plaintiff, as for a total loss on the outward passage ; and also for a return of the premium for the homeward passage ; subject to the opinion of the whole Court upon the foregoing statement. The verdict was to stand, or be altered in any manner as the Court should think proper upon the facts as above stated.</p>

<p>This action was assumpsit for $499.65, expended by the plaintiffs in the relief and support of one Lewis Elisha, his wife, and four children.</p> <p>The parties submitted the action to the determination of the Court, upon certain facts stated, in substance as follows.</p> <p>The said Lewis Elisha was born in that part of the town of Stoughton which is now Canton, in the year 1773. His parents were Caesar Elisha and Abigail Moho, who were lawfully married in 1769. The said Caesar was, at the time of Lewis’s birth, and long before, a negro slave of Charles Wentworth, and so continued until bis death, in March, 1780. The said Wentworth had a legal settlement in that part of Stoughton now Canton, and died there in July, 1780. Abi gail Moho aforesaid was the daughter of an Indian father, of the Punkapog tribe, whose settlements and lands are within the limits of Canton ; and her mother was a white woman, but admitted by the guardian of said tribe as one of their number.</p> <p>The said Lewis Elisha left Canton about 1788 or 1789, and never returned. In 1803 he married Hannah Richardson, the daughter of a mulatto father and a white mother, having her settlement before marriage in Andover or Boxford.</p> <p>Before the- year 1765, and ever since, the Punkapog tribe of Indians have had guardians appointed over them, by the government of the Province and Commonwealth, who have had the management of their property and of their affairs, and whose accounts have from time to time been rendered to, and allowed by, the legislature.</p> <p>On the 7th of November, 1763, the General Court passed a resolve, that Joseph Billings, guardian of the said tribe, * be directed to take the same care of the mulatto children of the said tribe, as of the other Indians ; and to bind out the said mulatto children as other Indians ; and the mulattoes of the tribe have from that time been considered and treated according to said resolve ; and the charges for their support have always been duly allowed by the legislature. By a resolve passed on the 25th of February, 1783, the persons appointed guardians of the said tribe were empowered and directed to sell so much of the lands belonging to said tribe as might be sufficient to discharge all the debts which should be allowed by the committee, (the sale of the said land to be in the same manner as by law is prescribed for the sale oí the estates of persons non compos, and subject to guardianship,) and :o make and execute, in their said capacity, good and lawful deeds ot the same.</p> <p>• On the 6th of January, 1813, the overseers of the poor for the town of Andover notified the overseers of Canton, that Lewis Elisha was become chargeable to them as a pauper, requested his removal, or other provision for his support, and stated that they had charged the previous expense of his support to Canton, and should continue so to do. The overseers of Canton duly answered the said notice, and denied that the pauper had a settlement in that town.</p> <p>The parties agreed on the portion of the sum demanded, which had been expended by the plaintiffs in the relief and support of the said Lewis Elisha, and on the portion expended in like manner for the relief and support of his wife and children. If, in the opinion of the Court, the defendants were liable for any part of the sum demanded, they were to be defaulted, and judgment be rendered accordingly ; otherwise, the plaintiffs were to become nonsuit.</p>

<p>At the last September term, at Worcester, the said Woodbridge & al. presented their petition to the Court, stating, that, in an action brought by them against the said Brigham & al.,(1) although the verdict therein rendered had been set aside by the Court, upon the motion of the said petitioners, and a new trial ordered to be had ; yet, by mistake and misapprehension, judgment was entered for the said Brigham Sp al. according to the said verdict; upon which judgment an execution had been issued, and satisfied by the petitioners, and thereupon praying for a new trial of the said action.</p> <p>Upon the said petition, a rule was made upon the said Brigham 8p al. to appear at this term, and show cause why the prayer thereof should not be granted. And now it was ordered by the Court, that the petitioners take nothing by their petition ; the reasons of which decision were given by</p>