Volume 14 — Massachusetts Reports

<p>Assumpsit upon a policy of insurance upon effects on board the ship Volant, from her port of lading in France to her port of discharge in the United States. The policy was in the usual form, dated July 9, 1812, and the subscription of the defendant was for 1000 dollars. The declaration contained several counts. A trial was formally had on the count in which the plaintiffs aver a loss by capture. Upon that trial, the stopping and recapturing an American vessel, which was in possession of the British, as a prize, was held to be a deviation which discharged the underwriters. (1) There was also a count for a loss by the barratry of the master in so stopping and recapturing the said vessel. Upon this last count a trial was had before Parker, C. J., at the last November term, in this county.</p> <p>* The facts proved at this trial were as follows: The Volant was captured, on her homeward voyage, by the British, carried to Halifax, and there, with her cargo, libelled and condemned as prize; war at that time existing between the United States and Great Britain. Before the ship sailed from Bayonne, where she had been a long time detained, from the difficulty of obtaining permission to unlade her outward and take on board her homeward cargo, the master applied for, and obtained from the American minister, a commission and letter of marque, and increased his armament from four to fourteen guns, and his crew from twenty-five or thirty to seventy men.</p> <p>The ship ana outward cargo were addressed to the house of Morton &/■ Russell, merchants in Bourdeaux, and they were con suited by the master and a Mr. Bartlet, who went out as joint supercargo of the Volant, (but was not the agent or consignee of the plaintiffs,) as to all important proceedings concerning the ship or voyage, and particularly as to the propriety and expediency of taking the commission aforesaid. Their advice was, to take the commission, it being understood, as was testified by the master and the said Bartlet, that the commission was to be taken, and the armament increased, for .the purpose of defence only. There were, however, no written directions, tending to restrict the use of the commission; there being no other orders than those which were given at the commencement of the outward voyage, which were to proceed home from France, on the return voyage, as expeditiously as possible.</p> <p>After being out three or four days from France, a vessel was ■ descried, which was supposed to be standing for the Volant; and attempts were made to avoid her. But the two vessels having approached so near to each other as to enable the master of the Volant to ascertain that -the supposed enemy was of little force, he wore ship, and demanded a surrender, which was made, and possession of the vessel, which proved to be the American brig</p> <p>Criterion, lately captured by the British, * was taken by the master of the Volant, who took her crew on board of his ship, manned the prize, and ordered her for France, where she arrived, and was condemned. The time consumed in taking and manning the brig was between two and three hours ; which was the delay which, on the former trial, was held to be a deviation. There was no cruising, and no chase, other than what is above stated.</p> <p>The jury were instructed by the chief justice, that the taking of a commission, and arming the ship, was not barratry, as it was dofle with the advice and consent of the merchants in Bourdeawc, who were the agents of the owners of the ship, and also with the consent of Mr. Bartlet, who was joint supercargo; and that there being no cruising and no chase, the stopping to take a prize, which came in the way, of the Volant as aforesaid, although a deviation, because not authorized by the policy, was not barratry; it not appearing that the master was prohibited from so using his commission, or that he had intended to prejudice the interest of the owners of the ship, or that it was contrary to his duty to them.</p> <p>A verdict being returned for the defendant, the plaintiffs moved for a new trial, on account of the said direction.</p>

<p>Where a ship was insured on a mercantile voyage only, it was holden that the stopping to take possession of a prize, although there was no chasing, was sufficient to avoid the insurance; although it was known to the underwriter, at the time of subscribing the policy, that the ship was armed, equipped, and commissioned, as a letter of marque.</p>

<p>This was an action of debt, to recover the penalty of fifty dollars given by the statute of 1796, c. 85, entitled “ An Act in addition to an Act entitled an Act for regulating pilotage in the several ports in this commonwealth, and for otherwise regulating the pilot-age of the port of Boston.”</p> <p>The action was submitted to the determination of the Court upon the following facts agreed by the parties:—</p> <p>The defendant, on the 28th of July, 1815, was master of the brig (Economy, of Boston, then lying in the harbor of Boston, ready for sea, and drawing more than ten feet of water, and not being a fishing vessel. The plaintiff was on that day, and long before, a branch pilot, duly appointed and qualified; and on that day went on board said brig, and informed the said Farrow, that he was such branch pilot, and was ready to carry the said brig to sea; and produced his branch, and the law imposing a penalty on any person who should conduct a vessel to sea without a pilot. The said Farrow refused to take the plaintiff, or any other person, as pilot, saying he knew the law, and intended to be his own pilot; and he did, on the same day, pilot the said brig to sea from the port of Boston, having no pilot on board, nor having himself a branch, or acting under one. The said brig was registered at the port of Boston and Charlestown, cleared at the custom-house of that port for the port of Alexandria in Virginia, and sailed to that port, it being her first voyage. From Alexandria she proceeded to a port in Europe.</p> <p>If, on these facts, the Court should be of opinion that the said brig was not a coasting vessel, within the meaning of the act declared on, the defendant was to be'defaulted, and judgment to be rendered for the plaintiff for the penalty. If the opinion of the Court should be, that she was a coasting vessel, and not bound to take a * pilot, the plaintiff was to become nonsuit, and the defendant to recover his costs.</p>

<p>This was a real action, in which the said Williams demanded of the tenant Amory possession of a certain piece of land in Boston; and it was submitted to the decision of the Court upon the follow ing facts agreed by the parties:—</p> <p>On the 5th of April, 1780, Benjamin Sault was seised in fee of the demanded premises, and on that day granted the same to Margaret Williams for life, with remainder in fee to Benjamin S. Williams, the father of the demandant; anfd thereupon the said Margaret entered upon the premises, and she and the said Benjamin iS., the father, became seised thereof according to their respec live estates therein.</p> <p>On the 7th of November, 1788, one Jerathmeel Bowers caused the said remainder of the said Benjamin S. to be attached in a suil, wherein he recovered judgment in September, 1789, for £285 12s. 9d. damage, with costs. Immediately after the rendition of the said judgment, the said Bowers sued out his execution thereon, and directed it to be extended (among other things) upon the remainder of the said Benjamin S. in the demanded premises. This was accordingly done, in the manner and at the time certified by the then sheriff of this county, in his return upon the execution, a copy of the same being filed in the case.</p> <p>The execution was in legal form, and was dated September 15, 1789. On the back thereof is written, first, a certificate of Israel Keith, a justice of the peace, dated October 7, 1789, that Benjamin Waldo, Benjamin Davis, and Joseph Bussell, were sworn faithfully and impartially to appraise, &c. Then follows a certificate, that the subscribers thereto, being duly chosen and sworn, &c., did, by direction of the creditor, repair to a certain lot of land situate in Boston, and * having carefully viewed and examined the same, did, upon their oaths, appraise and value the same premises at the sum of, &c., in part satisfaction of the execution. Dated October 9th, and signed Benjamin Waldo, Edward Davis, Joseph Bussell. Then follows the sheriff’s return : “ Boston, October 9, 1789. Pursuant to the within writ of execution, I caused Edward Davis, on my part, to be appointed ; the creditor, on his part, appointed Benjamin Waldo, and Jacob Williams, attorney to the said Benjamin»S'. Williams; the debtor, he being absent, appointed Joseph Bussell, on his part, to appraise such real estate as should be shown by the said creditor to satisfy the same, and all charges intervening; and they being duly sworn faithfully and impartially to appraise the same, the said creditor’s attorney did show a certain lot of land, as the property of the said Benjamin S. Williams in remainder in fee, bounded, &c., [including the demanded premises;] the said appraisers, considering the premises as the estate of the said Benjamin S. Williams in fee, in. remainder after the life of Margaret Williams, valued the premises, after being duly sworn, at the sum of, &c.; and so far, in part, I return this execution satisfied, by direction of the creditor.” Lastly, The creditor certifies that the sheriff had so extended the execution by his direction that he is therewith content, has received possession of the premises from the sheriff, and orders him to return the execution in part satisfied accordingly. The execution and the return thereon were duly recorded within three months thereafter, and were to .be considered as part of the case.</p> <p>The said B. S. Williams, the elder, died on the first day- of June, 1791, intestate, leaving the demandant, an infant, his only child and heir, having been born in the same year.</p> <p>The said Margaret, tenant for life, died on the second day of August, 1794; upon whose death the said Bowers entered, by virtue of his said extent and levy of his execution, and took actual possession of the demanded * premises; and he, or his assigns, of whom the tenant, by sundry mesne conveyances, is one, have continued seised and possessed, and have ever since continued to hold the same, by force of the attachment, judgment execution, levy, and extent aforesaid.</p> <p>Judgment was to be rendered by nonsuit or default, as the opinion of the Court should be upon the facts stated.</p>

<p>Assumpsit upon a policy of insurance, underwritten by the defendants upon the brig Sally-Ann, on which the plaintiff declared for a total loss. The trial was had upon the general issue, before the Chief Justice, November term, 1815, when a verdict was returned for the plaintiff, subject to the opinion of the Court upon the follow ing statement of facts :—</p> <p>The defendants executed the policy declared upon, on the 24th of December, 1806 ; wherein is contained that the plaintiff caused 6000 dollars to be insured by the defendants on the said brig, valued at 8000 dollars, from Newburyport to every port or place to which she may proceed, (excepting the West Indies,) during the term of twelve calendar months, to commence on the day of departure from Newburyport, at noon. A part of the usual printed form was as follows: “ beginning the adventure upon the said vessel as aforesaid, and to continue and endure during the voyage, and until said vessel shall be arrived and moored twenty-four hours in safety,” or until the expiration of twelve months aforesaid. At the foot of the policy, there follows this memorandum in writing: “ Should this vessel be at sea at the expiration of the above period, the rislc is to be continued until her arrival at a port of discharge. It is understood the company are not liable for any loss or expense arising from the violation of the existing laws or regulations of any of the bellige-ent powers restricting neutral commerce.”</p> <p>The risk under this policy commenced on the 30th of December, 1806; and afterwards, and within twelve * months thereafter, viz., on the 14th of November, 1807, the said vessel sailed from Beverly for Amsterdam, and while proceeding on said voyage, under the protection of said policy, she was, on or about the 14th of December, 1807, captured by a British private armed ship, under pretence that she was bound to an enemy’s port. The master and all the hands, except the mate, were taken out, and the vessel ordered to Bristol, where she arrived on the 25th of the same December. The letter of marque, on board of which was the master of the Sally-Ann, arrived on the 28th. On his arrival the vessel was restored to him by the prize agents, and his papers delivered to him. The master then applied to the custom-house for a clearance to Amsterdam; but the collector, being doubtful of his right to clear vessels for that port, wrote to the admiralty for instructions, and in the mean time the master went himself to London, to consult with the plaintiff’s correspondent, to procure a clearance for the vessel. He remained there about twelve hours, and on his return to Bristol, he found that permission had arrived there to clear the vessel for Amsterdam.</p> <p>Immediately on his return to Bristol, the vessel was cleared ou,, and he proceeded to sea about the 20th of January, 1808; but was obliged to put back on account of contrary winds, and returned inte the outer roads for a few days, until a fair wind, when he sailed direct for the Texel, not having been on shore' after thus putting back. On receiving his papers from the prize agents, there was an endorsement on them, warning them not to proceed to an enemy’s port; against which he protested at the time. After sailing from Bristol for Amsterdam, he was boarded by an English frigate and a letter of marque, and permitted to proceed, after an examination of his papers.</p> <p>After the vessel arrived off the Texel, and while about taking a pilot on board to go up to Amsterdam, she was captured by a French privateer, and sent into a place called New Dieppe. The vessel, and the cargo on board thereof, were shortly after libelled as prize, in * the prize court at Baris, for having been captured and carried into England by a British cruiser, and departing thence for Holland, and being spoken by British cruisers on her voyage from Bristol to Holland. The vessel and cargo were immediately claimed by the master, and the consignees, and also by the Dutch government. Immediately on his arrival at Amsterdam, and before the vessel was injured the master applied to the captors to release the vessel on bond, and to deliver her without the cargo; but they refused.</p> <p>After remaining a long time in Holland and at Paris, where the libel against the vessel and cargo was pending, and believing there was no chance for a successful termination to his claim, the master of the said vessel, with the approbation and aid of the consignees of the cargo, and by advice of their counsel, made a compromise with the captors, by which it was agreed that the vessel and cargo should be sold, that the captors should retain two thirds of the neat proceeds thereof, and should restore the residue to the master and consignees, and that each party should bear their own cost and expenses. The said compromise was made bona fide, and was a reasonable one ; and it was for the best interest of all the parties concerned, that such compromise should be made; and it was the best that could be obtained. In making it, the vessel was not sacrificed for the benefit of the cargo; but it was as favorable for one as the other.</p> <p>Neither the master, nor any of his crew, were permitted to go on board the vessel, while under detention. When the master returned from Paris, he found that the sails and rigging were cut and destroyed, her boats gone, and the vessel a mere wreck, of very little value, and she was sold for as much as she was worth. The cargo brought a good price at the time of the compromise. Many American vessels, captured under similar circumstances, were condemned ; and in no case was a better compromise made than this. The said master did not know of the existence of the Milan decree, until after he was so captured by the French * privateer; although it was published in the London papers of the 6th of January.</p> <p>The plaintiff was interested in the vessel to the amount insured; and he abandoned to the defendants his interest therein, immediately after he received notice of the said compromise; but never before, although he had seasonable information of the previous events; and he claimed a total loss, and also a general average for expenses incurred in England, Holland and Paris, in prosecuting his claims for the vessel, evidence of which was filed in the action.</p> <p>The foregoing facts were all agreed by the parties, except that the question, whether the master knew of the existence of the Milan decree at the time of his sailing from England, was submitted to the jury, who found that he was ignorant thereof, as above stated.</p> <p>The verdict, in other respects, was taken pro forma only ; and if the plaintiff was entitled to recover any thing, it was agreed that the Court should direct the amount for which the verdict should</p> <p>stand ; or might appoint assessors, for any purpose they might think necessary or convenient.</p> <p>The cause was argued at the last March term, by Prescott and Hubbard for the plaintiff, and by Gorham for the defendants.</p>

<p>Of stoppage m transitu.</p> <p>[Where goods were ordered from an English house by a merchant here, .but before the order was executed, it was countermanded, and a bill of lading of a part of the goods was subsequently sent and received by the merchant here, and part of the goods were accordingly shipped, yet on notice thereof, after the removal of the goods, the merchant here, being insolvent, refused to receive them, and endorsed the bill of lading to a friend of the English house for their use, and requested him to receive the goods for them, which he could not obtain, they then being under attachment by a creditor of the merchant here; held, in replevin by the English house, that the property had not vested in the merchant here, and might be reclaimed by them, as in transitu. — Ed.]</p>

<p>A demand made by copartners, annexed to a submission to referees pursuant to Stat. 1786, c. 21, signed by one of the copartners, is a sufficient compliance with the statute.</p> <p>When referees under such a submission awarded a sum certain, as due from one to the other of the parties, in full of all demands; and to such award they added certain directions, concerning merchandise belonging to the debtor, and in the hands of the creditor, that the same should be sold, and the proceeds placed to the credit of the debtor, and the balance, after deducting the sum awarded, paid over to him; this was holden not to vitiate the award.</p>

<p>Of the right of way over the land of another by prescription. (1) [Sixty years, adverse possession is necessary. If the owner of two adjoining estates permit an easement for the use of one in the other, the time of enjoyment, under this permission, cannot be added to subsequent adverse possession of an after owner of the estate, enjoying the easement to make up the requisite time for a prescription. A way of necessity exists only where there is no other way into a public street - -Éd.]</p>

<p>This was a scire facias, brought to obtain an alias execution upon a judgment heretofore recovered by the plaintiff against the defendant, upon a suggestion that the original execution had been levied upon real estate, which did not belong to the debtor; pursuant to the provisions of the statute of 1785, c. 6.</p>

The plaintiff declared in assumpsit, “ for that the said corporation at Boston, on the 1st of January, 1814, by sundry promissory notes or bank bills, made in the name of the said corporation, and subscribed by Benjamin J. Porter, their president, among other things, for value received, promised sundry persons to pay them, or bearer, sundry sums of money, a schedule whereof is hereto annexed, amounting in the whole to the sum of 2000 dollars ; and the said corporation, by…

<p>The remission of the penalties of recognizances, provided by the Stat. 1810, e. 80, was intended to apply only to cases of irresistible necessity or unavoidable accident, and for the relief of unfortunate sureties. .</p>

This was an action of covenant broken, brought upon a charter-party, dated the 9th of September, 1812, whereby the plaintiffs let to freight to the defendants the brig Mentor, on a voyage from Boston to Alexandria in Virginia, and thence to a port or ports in Spain or Portugal, thence to St. Ubes or Tortugas, and back to Boston or New York, at the rate of three dollars a ton, per month, and so in proportion for a less time, as the said brig would be continued in the service…

<p>This was an appeal from an order or decree of the judge oí probate for this county. The facts in the case were as follows: — Ebenezer Seaver, deceased, made his last will on the 24th of December, 1784, appointing his wife and his son Ebenezer, the appellant, executors. After declaring it to be a disposition of his whole estate, he directs all his just debts and funeral charges to be paid by his executors, and then adds; “ And to enable them to discharge the same, if possible, without disposing of the stock on the farm, I do hereby will and empower my said executors to make sale of all my lots of wild and unimproved land in the county of Hampshire, and to give and execute a good deed or deeds thereof in the law.” He then devises to his two sons, Ebenezer and ■Joshua in fee, all his houses and lands in Roxbury, and all his wearing apparel, stock, and other personal estate, except what is otherwise disposed of in the will, to be equally divided between them. And after giving to his two daughters, Hannah and Mar goret, one hundred pounds lawful money each, he adds this pro vision : 11 And my will further is, that, in case there should be a surplusage of money arising from the sale of my unimproved lands in the county of Hampshire, after all my debts are paid, such surplusage shall be equally divided between my four children, Ebenezer, Joshua, Hannah, and Margaret.”</p> <p>Upon an administration account rendered by the said Ebenezer, and allowed by the judge of probate, there remained in the said Ebenezer’s hands, as executor, the *sum of £226 10s. 6d., after the payment of all debts and legacies ; which sum included the proceeds of the sale of the said lands in Hampshire, they having produced a greater sum than the said balance.</p> <p>The respondents, in right of the wife, who is the testator's daughter Hannah, claimed one fourth of the said balance, alleging that it was due to her,.as the surplusage arising from the sales of the Hampshire lands after payment of the debts as directed in the will.</p> <p>The appellant insisted that the said balance belonged to him and his brother Joshua, in virtue of the gift to them of the personal estate, alleging that the said lands ought to be first applied to the payment of debts in relief of the personal estate; and that, the said lands not having produced a sum sufficient for the payment of the debts, no surplusage had come to his hands for distribution, within the intent of the testator.</p> <p>The judge of probate having ordered the said Ebenezer to account to the respondents for the said fourth part of the said sum in his hands, he appealed from the said order to this Court.</p>

<p>In this action, which was assumpsit for the use and occupation of certain real estate, the parties agreed that Samuel Whitney, grandfather of the plaintiff, died on the 1st of July, 1808, having before made his last will, after his death duly approved and allowed, in which will he devised and bequeathed to his wife, Abigail Whitney, the use, occupation, improvement, and income, of all his estate, real and personal, so long as she should, live and remain his widow, except the bequests thereinafter mentioned; she to pay any debts he might owe at his decease, and to support and maintain the family, in the same manner it was supported by the testator. After several other provisions, directions, and legacies, not material to the question submitted to the Court, there is the following residuary clause, viz.: “ All the remainder of my estate, both real and personal, after the decease or marriage of my said wife, I will and desire may be distributed in the same manner as though it had not been devised.” His wife, Abigail, is therein appointed sole executrix, which trust she declined; and Samuel A. Whitney, the defendant, was afterwards appointed administrator, with the will annexed.</p> <p>The testator left several children, one of whom was Joseph Whitney, father of the plaintiff. The said Joseph died after his father, and before his mother, leaving the plaintiff his only child and heir.</p> <p>The said Abigail Whitney continued in the use and occupation of the real estate of the testator, by virtue of the said will, until her death, which was in July, 1813, she never having been married after the testator’s death.</p> <p>The said Joseph Whitney, the plaintiff’s father, died insolvent, and indebted to the estate of his father; and the defendant is administrator of his estate.</p> <p>* After the decease of the said Abigail Whitney, the defendant, as agent of the heirs of the said Samuel Whitney, the testator, entered upon the real estate, of which the said testator died seised, and received the rents and profits thereof.</p> <p>If, in the opinion of the Court upon these facts, the plaintiff was entitled to a share in the distribution of his said grandfather’s estate, after the decease of the said Abigail Whitney, the defendant agreed that judgment should be rendered upon his default; otherwise, the plaintiff was to become nonsuit.</p>

<p>Tms action was assumpsit for the use and occupation of certain real estate, and was submitted to the determination of the Court, upon the following facts stated and agreed by the parties: —</p> <p>The said estate was formerly the property of Anne Austin, the late wife of John Austin, and the plaintiffs are her heirs at law. After the death of the said Anne, who died without ever having had issue by her said husband, the said John being in possession of the premises, claiming them as his own, and having been in pas session thereof more than twenty years, and ever after his intermarriage with the said Anne, did, on the 15th of August, 1803, make a lease of the premises to the defendant, for the natural life of the said John, at the yearly rent of twenty dollars. On the 4th of August, 1807, the said John conveyed the said estate to the plaintiffs, by a deed of release or quitclaim. The said John is yet alive, and the defendant claims to hold the premises by virtue of the said lease, having never been dispossessed. The plaintiffs were never in possession of the said estate, except constructively by the said deed of the said John, or otherwise as heirs of the said Anne. The defendant never paid the rent, * which, by the said lease, he covenanted to pay, to the said John, or to the plaintiffs, but has always been ready to pay the same to his lessor, according to the terms of the lease, though he has never tendered the same, either to the said John or to the plaintiff; nor has he ever made any express promise to pay the same to the plaintiffs. At the date of said lease, the premises were pasture land ; and the defendant, since the making of the lease, has built a house thereon.</p> <p>Upon these facts it was agreed that judgment should be entered, agreeably to the opinion of the Court, by the default of the defendant, or the nonsuit of the plaintiff, as the case might be.</p>

<p>This was a writ of entry sur disseisin, in which the demandant counts upon a mortgage deed from the tenants to one Stephen Plaice in fee, an assignment of the premises to the demandant, and a disseisin by the tenants. Upon oyer had of the mortgage, the condition was, “ Provided, nevertheless, that if the said Jesse Chapman and Peter Mair, their heirs, &c., pay to the said Stephen Baker, his heirs, &c., the sum of 600 dollars in carpenter’s work, at the rules of work, and 300 dollars in carpenter’s work and stock at the rules, and the sum of 300 dollars in painting and stock, at the rules of work, and interest on the whole from date, on demand, he giving twenty days’ notice, then this * deed, as also three certain notes of hand bearing even date, &c., shall be void.” Dated the 31st of May, 1808.</p> <p>The defendants plead, in bar, that, at the commencement of the action, they had paid all the said sums except 261 dollars L5 cents, and that they had always been ready to pay that sum in painting work, whenever thereto requested; but that the demandant had never, before the commencement of this action, requested or demanded of them, or either of them, to pay the same in painting work and stock, according to the true intent and meaning of the said ^ condition.</p> <p>The demandant, in his replication, avers a demand on 11th of December, 1812, of the said Mair, to pay the said sum in painting work and stock.</p> <p>The tenants, in their rejoinder, allege that, on the 16th of the same December, the said Mair, for himself and the said Chapman, was ready, &c., and offered, &c., but that the demandant waived the said request, and refused to receive the said sum, or any part thereof, in painting and stock, or to suffer them, or either of them, to perform the said work and find the said stock.</p> <p>To this rejoinder the demandant demurs generally, and the tenants join in demurrer.</p> <p>In a second plea in bar, the tenants plead omnia performaverunt. The plaintiff replies, that they have never paid the said sum of 300 dollars in painting work and stock, as mentioned in the said condition. To this replication the tenants demur, and for causes of demurrer, suggest that no demand is therein alleged to have been made, nor is it alleged that the demandant gave twenty days’ notice, &.c. The demandant joins in demurrer.</p> <p>No argument was had, and the opinion of the Court was delivered by</p>

<p>Debt on an administration bond. After oyer of the bond and condition, the defendants plead performance generally. The plaintiff replies a decree of this Court, as the Supreme Court of Probate, ordering a balance in the hands of the administrator to be paid over to the person entitled, and avers that the same has never been paid, and that the decree is still in force.</p>

Case upon a policy of insurance. The article insured was described as “ the plaintiff’s commissions on the cargo of the Swedish brig Sophia.” It was proved, at the trial before Jackson, J., at the last November term in this county, that the vessel was captured by the British on the voyage insured, and with the cargo condemned, on the ground that she was not a Swedish vessel; and the only question was, whether she was warranted by the policy to be Swedish.

The plaintiff declared in debt upon a bond made by the defendant to one John Somes, his heirs, executors, administrators, or assigns, and upon an assignment thereof by the said John to the plaintiff; and avers notice to the defendant, and a demand and refusal. The defendant demurs generally to the declaration, and the plaintiff joins in demurrer.

<p>Where a bona fide purchaser of a vessel could have successfully defended and claimed against a forfeiture thereof for a breach of t.he embargo laws, committed before the sale, and on this ground the vendor was held not to be liable in damages to the purchaser, on the covenant against encumbrances, on the condemnation of the vessel, it was also hoi den, that the absence from the United States of both the parties, from the sale to the condemnation of the vessel, did not excuse the purchaser from his obligation so to defend and claim, or give him a better title to damages for the breach of such covenant</p>

Assumpsit on a policy of insurance, dated February 8, 1814, whereby the defendant insured for the- plaintiff 600 dollars on the brig Maria Francisca and cargo, at and from the port of Havana to Boston, or port of discharge in the United States not blockaded.

<p>Bail may surrender the principal in court by attorney.</p> <p>After a defendant is defaulted, judgment is entered of course, unless there be good reason for postponing it, as a prior attachment of property by other ' creditors.</p>

<p>Assumpsit on a bill of exchange, drawn by the defendants, merchants at New York, for value received, in favor of E. D. Corn-stock, also of New York, on White Andrews, merchants of Boston, for 700 dollars, payable at thirty days’ sight, dated at New York, May 13, 1810, and endorsed by Comstock to the plaintiffs.</p> <p>Trial was had on the general issue, at the last November term before the Chief Justice.</p> <p>The bill was presented in the morning of the 16th of May, the day of its arrival by mail, and was refused acceptance; the drawees stating that they had been served with a foreign attachment in favor of Howland &f Burns, who were creditors of the defendants to a greater amount than the funds in their hands.</p> <p>On the same morning, and within an hour after the opening of the mail from New York, the plaintiffs commenced the present suit, and attached property.</p> <p>White f Andrews, the drawees, wrote to the defendants, by the mail of that day, informing them that they had refused to accept their bill in favor of Comstock, and stating the reasons for their refusal.</p> <p>It was admitted, at the trial, that no notice was ever given by the plaintiffs themselves to the defendants themselves,- of the nonacceptance of the bill, or of the plaintiffs’ intentions to resort to them for payment. The only evidence on this point was contained in the deposition of one Rogers, testifying to a conversation between the defendant Blossom and Comstock, the payee of the b'll, in July, 1816. Comstock inquired if Blossom had not received due notice of the non-acceptance * of the draft on White &f Andrews; to which Blossom answered, that it was so long since the transaction, that he could not recollect, but he presumed he had; that his letter-book would show; but that he had received information from Comstock and others. Being asked whether he had funds in the hands of White 8f Andrews, to the amount of the draft, Blossom answered, that he had in property, but not realized.</p> <p>No evidence was offered that the drawees acted as the agents of the plaintiffs in giving notice, nor that Comstock, if he gave any such notice, acted as such agent.</p> <p>The drawees, at the time of the presentment of the bill to them, had property of the drawers in their hands on consignment, to a greater amount than 700 dollars ; but a short time before the presentment, and on the same morning, they had been summoned as the trustees of the drawers in the manner above mentioned.</p> <p>The defendants objected to any evidence of notice from the drawees, or from the payee of the bill; and contended that it was incumbent on the plaintiffs to prove notice from themselves, as the holders of the bill, to the defendants ; that the testimony of Rogers was not sufficient to prove legal notice from the payee ; and that the notice proved must be prior to the bringing of the action.</p>

This was an action of assumpsit upon the policy sued in the action of this plaintiff against John Eaton, reported, ante, vol. xiii. p. 108. The declaration in this case contained also a count for money had and received. It appeared, from the report of the assessors appointed in that action, that the property of the plaintiff insured by the policy, on which this action was founded, was fully covered by subscriptions prior to that of the defendant.

<p>Of the rights of individual members of the JVezy England Mississippi Land Company, in the fund created by the act of Congress of March 31, 1814, entitled, “ An Ad for the indemnification of certain claimants of public lands in the Mississippi Territory; ” and of the authority of the commissioners appointed by the said act.</p> <p>]Where the company entered into articles to the effect that the title to the whole lands should be vested in three of their number, who were to issue certificates to each for his proportion, transferable by a blank endorsement of the name of the person to whom they should be issued, and to be complete evidence of such person’s right, and the plaintiff became the bona fide holder of certificates thus issued to one of the company, and was admitted to be a member of the company, and to vote at their meetings; and the company authorized five directors, or any agents of the company, to convey to the United States the whole or any part of the land, for a consideration in money or in parts of the land, in confirmation of the title to the rest, as the parties should agree, and the directors were authorized to release the whole or any part of the lands on such terms as had been offered by the United States, and to require the trustees to make a sufficient deed therefor; any certificate, or other consideration, to be received by the treasurer of the company, and disposed of by the directors for the claimants, according to their respective interests, after the just claims of the company should have been discharged, and under the act of Congress, commissioners were appointed to determine upon the sufficiency of releases and assignments, and upon all such claims as might be found to conflict with each other; and after nine tenths of the land had been released, the president was to issue certificates to the several claimants, and the persons claiming were to receive indemnity in proportion to the amount of their claims, and the commissioners, upon hearing the parties, deducted the amount of stock, for the proportion of land of the original holder of the plaintiff’s certificate from the amount they reported to be due to the company; — held, that the decision of the commissioners was conclusive; and that the plaintiff, and not the company, must sustain the whole loss.—Ed.]</p>

<p>This was an action of assumpsit, commenced at the Court of Common Pleas in Boston, April term, 1816. The plaintiffs, and Robert Sáfford, who was summoned as one of the trustees, are described in the writ as of Boston; the defendant Mellen is named of Keene, in the state of New Hampshire; and the other two trustees, Wheeler If Gay, are said to be of Cambridge, in the county of Middlesex. The three trustees were duly summoned ; but there was no other service on the defendant.</p> <p>The defendant Mellen pleaded, in abatement, that Safford, at the time of the service of the writ, and long before and after, had not in his hands any goods, effects, or credits of the defendant; that the plaintiffs, at the time of the purchase and service of their writ, well knew this fact, but inserted the name of Safford as a trustee collusively, for the purpose of giving jurisdiction to the court in Boston; — wherefore, as the other two supposed trustees lived in Middlesex, the writ ought to have been brought in that county, &c. This plea appears to have been filed at the said April term.</p> <p>No replication was then made to the plea; but, at the ensuing term in July, the plaintiffs had leave to amend the writ, by striking out the name of Safford, as one of the trustees; and at the October term following, they replied that, by leave of the court, obtained at the said July term, they had so amended their writ, and struck out the name of Safford, and concluded with an offer to try it by the record.</p> <p>* The defendant rejoined; that the plaintiffs did not so amend the writ at the said July term, and prayed that the record might be inspected, &c.</p> <p>The record contained other matter, not bearing upon the point, afterwards decided by the Court here.</p>

<p>Of fraudulent conveyances. The possession of land by a fraudulent grantee will not render invalid a title from the fraudulent grantor to a subsequent purchaser, with knowledge of the former conveyance.</p>

<p>In covenant broken, on a conveyance of land with a covenant that the premises granted were free of encumbrances, it was agreed that, prior to the conveyance, a creditor of the grantor had attached the same land on mesne process, and after the conveyance had extended his execution on a part thereof.</p>

Error upon a judgment of the Court of Common Pleas for this county, rendered June term, 1814, upon the report of referees appointed pursuant to the statute of 1786, c. 21, commonly called The Referee Act, and which was accepted at that term. From the record it appeared that the rule of reference was en tered into on the 15th of November, 1813. The report commenced thus : “ Cumberland, ss. Brunswick, November 30, 1813.

Trespass quare clausum fregit. Issue was joined on the plain tiff’s seisin, which was tried before Thatcher, J., at the last October term in this county.

Assumpsit on. a policy of insurance, whereby the defendant insured 200 dollars for the plaintiff, on “ property on board tht Spanish brig New Constitution, from the Havana to her port of discharge in the United, States.” in a case stated for the consideration of the Court, it was agreed that the plaintiff was interested to the amount insured by the policy in property on board the American brig Stranger, of Portland, which was at the Havana when news of the war between the…

Assumpsit on a promissory note for 394 dollars 22 cents, made by the defendants March 11, 1809, and payable to the plaintiff or his order.

<p>This was a special action on an accountable receipt, given by the defendants to the plaintiff, then a deputy sheriff.</p> <p>The cause was submitted to the decision of the Court upon certain facts agreed, in substance as follows: One Augustus Patrono, commenced a suit against the defendant William Jewett, in which the plaintiff, by * direction of the creditor, attached a vessel, of which the said William was a part owner. The plaintiff retained possession of the vessel a few days, and then delivered her to the defendants, taking the receipt therefor, with a promise to deliver the same to him on demand. The vessel was afterwards sent to sea and was lost. Patrono recovered judgment in his said suit, and delivered his execution to one Swett, then a deputy sheriff, for service, the plaintiff having before that time gone out of office. Swett demanded and received the said receipt from the plaintiff, and on the same day applied to the defendants with it, and demanded of them the said brig, that he might levy the execution thereon. All this was done within the thirty days from the said'judgment. Swett returned the execution unsatisfied. Afterwards Patrono sued an alias execution upon his said judgment, upon which the said William was committed to prison, from which he afterwards obtained a discharge by taking the poor debtor’s oath.</p> <p>Judgment was to be entered in the action, upon the default of the defendants or the nonsuit of the plaintiff, as the opinion of the Coutt should be upon the facts stated.</p>

<p>The plaintiff declares in debt on a judgment recovered by him against the said Owen, at the Court of Common Pleas for this county, June term, 1811, for the sum of 536 dollars 16 cents damage, and 16 dollars 99 cents costs; which judgment he alleges to be in full force, not reversed, annulled, or satisfied, although a writ of execution had issued thereon; whereby an action has accrued to him, to recover the said sums, with 16 dollars 69 cents more, for the execution and expenses in the service thereof.</p> <p>The defendant pleads in bar, that the plaintiff delivered his said execution to a deputy sheriff, who, on the 13th of August, 1811, in virtue thereof, took the body of the said Owen, and committed him to prison in execution of said judgment, as by the said execution he was commanded to do.</p> <p>The plaintiff replies to this plea, alleging that, after the recovery of the said judgment, and after the issuing of the said execution, he discovered goods, effects, and * credits, of the said Owen in the hands and possession of the said Russell Stoddard, which could not be attached by the common and ordinary process of law ; whereupon, on the 30th of May, 1812, he sued out the original writ in this case; and within seven days after the service thereof on said Stoddard, viz., on the 4th of June, 1812, he discharged the body of said Owen from prison, by a note or memorandum in writing, directed and delivered to the officer who had him in custody, stating the reason and occasion of the said discharge, pursuant to the form of the statute in such case made and provided.</p> <p>The defendant, in his rejoinder, avers that, long before, and on the day of, the commitment of him, the said Owen, in execution of the judgment aforesaid, he had deposited in the hands of said Stoddard certain effects and credits of his, viz., the rents of a certain tenement in Brunswick, to the amount of 487 dollars and 50 cents, secured by deed indented ; which said rents were all the effects or credits which the said Owen had ever deposited in the hands and possession of the said Stoddard before the date of the plaintiff’s said writ, of which the plaintiff then and long before, and on the day when the said Owen was committed to prison as aforesaid, had due notice from the said Owen; which effects and credits the plaintiff, before and on the day of said commitment, might have attachment in the hands of the said Stoddard; and the same continued in the hands and possession of the said Stoddard until the 20th of September, 1811, when the said deed, and all the rents therein secured to be paid as aforesaid, were, for a good and valuable consideration, duly and legally assigned to one Mary Owen; of all which the plaintiff, at the time of suing out the writ in this action, had notice.</p> <p>To this rejoinder, the plaintiff demurs, and assigns for cause, that it is double in this, that it is therein alleged that before and on the day of the said commitment, the said Owen had deposited, &c., of which the * plaintiff had notice, &c., and that the plaintiff might long before have attached the same; and also that the said Owen had, for a good and valuable consideration, assigned the same, &c., and that the plaintiff had notice of said assignment, &c.</p> <p>The defendant joins in demurrer.</p> <p>The defendant, in a second plea in bar, alleges that, at the time of suing out the plaintiff’s writ against the said Owen and the said Stoddard as his trustee, the said Stoddard had not in his hands and possession any goods, effects, and credits, of the said Owen.</p> <p>To this plea the plaintiff replies, that, at the time of the date, &c., of the said writ, he had good and sufficient reason to believe, and did in fact believe, that the said Stoddard had in his hands goods, effects, and credits, of the said Owen, which could not be attached by the common and ordinary process of law.</p> <p>The defendant, in his rejoinder, sets forth the purport of the said indenture of lease between him and the said Stoddard; and avers that, after the said judgment, and before the commencement of the present suit, he offered the plaintiff to assign and transfer to him the said indenture, and all the sums of money covenanted thereby to be paid, upon and towards the said judgment; which the plaintiff refused to accept; and which was all the effects the plaintiff had good and sufficient reason to believe were deposited, &c.; of all which the plaintiff was ever well knowing, &c.</p> <p>To this rejoinder the plaintiff demurs generally ; and the defendant, joins in demurrer.</p>

<p>This was an action of debt upon a bond made by the defendants, John North, Joseph North, Jun., Jonathan Pollard, and James Noj-th, payable to Peleg Coffin, Esq., treasurer of the commonwealth, and his successors in office, for 2000 dollars, and dated July 1, 1799; with condition that the said John should well and truly execute the office of a coroner in the county of Kennebeck, to which he had been commissioned on the 28th of February preceding.</p> <p>On the trial, which was had upon the general issue of' non est factum, before Thatcher, J., at the last October term in this county, it appeared in evidence that the writing declared on was signed and sealed by the defendants on the day of its date, and was delivered to * and taken by Joseph North, Esq., the subscribing witness, into the Court of Common Pleas for the county of Kennebeck, of which he was the first justice, for approbation according to the provisions of law; but the same was never approved by said court, one or more of the justices doubting the sufficiency of the sureties. And at December term, 1801, of the said court, the same bond was found on the files of the clerk of the Court of General Sessions of the Peace, and was then delivered by said clerk to the said Joseph North, Esq., or taken by him, from the clerk in court, and carried out by him, he observing at the time that it had not been approved, and was of no validity. On the same day he returned it to John and Joseph North, Jun., stating that the court would not approve of it. Thereupon the said Joseph North, Jun., tore off his name and seal from the bond, and the said John took it and kept it. The bond was afterwards, in a former trial of this action, produced by the said Joseph North, Esq., and has since remained on file in this case.</p> <p>Upon this evidence the judge instructed the jury that, if they believed the facts as disclosed in evidence, they ought to find a verdict for the plaintiff; and a verdict being so returned, the defendants filed their exceptions to the said direction.</p>

<p>One subscribed a paper with others, each engaging to pay a certain sum of money for raising a fund for the establishment of an academy; and trustees were afterwards incorporated: the said subscriber, on application of the trustees for payment of a portion of his subscription, furnished some materials towards the finishing of the building which the trustees had erected; and he was held liable to the trustees for the remainder of his subscription, on the ground of money laid out by them for his use.</p>

This was a writ of entry on the demandant’s own seisin. Trial was had upon the general issue, October term, 1815, before Thatcher, J. The demandant’s title was derived from a source not questioned by the tenant, who claimed to hold the demanded premises under a collector’s sale, for non-payment of taxes assessed thereon in the year 1799.

This was assumpsit by the plaintiffs, a banking company, incorporated by an act passed June 23, 1812, in * which they declared upon a promissory note made and subscribed by the defendants, dated February 25, 1811, for 549 dollars, payable in fifty-seven days, with grace, to the president, directors, and company, of the Hallowell and A.ugusta Bank, incorporated by an act passed March 6, 1804, and upon an en dorsement thereof to the plaintiffs by the corporation last named,…

Trespass for breaking and entering the close of the plaintiffs, being the building where their banking business * is transacted, and taking and carrying away 1000 Spanish milled dollars, the property of the plaintiffs. Trial was had upon the general issue before Thatcher, J., at the last October term in this county.

The original action was assumpsit for the support of one Ephraim Burgess, a pauper, having his legal settlement in Harwich from the .31st of October, 1808, to the 15th of November, 1810, the date of the original writ. Notice was given on the 31st of January, 1809. *The only point adjudged in the cause is stated in the opinion of the Court, as delivered at this term by

<p>Expenses incurred in the support of a pauper, more than two years before action brought, cannot be recovered, although the same plaintiffs have, in a former action, recovered from the same defendants expenses incurred for the support of the same pauper; nor without a new notice.</p>

<p>On the attachment of personal property on mesne process, it is necessary that such possession thereof be retained by the officer as shall make the attachment notorious; or the attachment will be vacated, as respects future attaching creditors, or purchasers without notice.</p>

This action was assumpsit upon the receipt and undertaking of the defendant, which is recited in the report of the preceding case of Bridge vs. Wyman 8f AL, and was referred to the determination of the Court, upon certain facts agreed and stated by the parties.

This was a writ of right, in which the demandants counted on the seisin of Francis Waldo, within sixty years from the 31st of December, 1811, being the date of the writ, and a descent to them from him as their ancestor.

To this action of assumpsit, besides the general issue, the defendant pleaded that he did not make the promises alleged by the plaintiff at any time within six years before the commencement of the plaintiff’s action.

<p>It is a good cause of challenge to a juror, in the trial of a real action, in which the jury are to inquire into the value of the land, had no buildings or improvements been made by the tenant, and the increased value of the same, by reason of such improvements, that such juror is interested in a similar question; but if the party neglects to take the objection before the trial, and to put the juror on the voir dire, the exception comes too late after the trial, unless it appears that the party made the requisite inquiry, and failed of discovering the fact before the trial.</p>

The said Leighton was brought from the prison of the county, upon a writ of habeas corpus, on which the keeper of the prison had returned that he was committed on an execution issued upon a judgment against him in a civil action, a copy of which accompanied his return.

<p>One deaf and dumb may be convicted of larceny.</p>

<p>An instrument purporting to be a last will and testament, revoking all former wills, must have the same attestation, &c., to operate as a revocation, as is requisite to give it validity as a will.</p>

This was an action of trespass, for. taking and carrying away twenty-one oxen, one cow, and one steer, the property of the plaintiff. The general issue was pleaded, and liberty reserved and allowed to give in evidence any special matter in justification, as it pleaded.

<p>This was an action of assumpsit for a yoke .of oxen, sold and delivered by the plaintiff to the defendants.</p> <p>The cause was tried on the general issue before Thatcher, J., at the sittings here after June term, 1815.</p> <p>The evidence at the trial was, in substance, as follows: In the early part of September, 1814, there being then an open war between the United States of America- and Great Britain, a detach ment of the British army and navy took possession of the-town of Castine, lying at the entrance of Penobscot River; and having the command of the river, they exacted certain contributions- of cattle and vegetables for their support, from the town of Frankfort with other towns adjoining the river, threatening violent treatment if their demands were not complied with. At the request of the selectmen of the town, and some others who had been appointed, by a voluntary meeting of a number of the inhabitants, a committee to treat with the British forces, the plaintiff furnished the yoke of oxen, for which he demands payment in this action, as part of the said contributions; and the same were delivered, with others, in compliance with the said exactions. There was no act of the town, in its corporate capacity, authorizing the said contributions, requesting individuals to furnish them, or recognizing the act of furnishing them, as done in behalf of the corporation.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the Court upon the evidence reported by the judge; and if, in the opinion of the Court, the plaintiff had maintained his action, judgment was to be entered on the verdict; otherwise the plaintiff was to become nonsuit.</p>

Assumpsit for the support of a pauper. The defendants pleaded, in abatement, that Robert Nevers, one of the inhabitants of Neiv Gloucester, was, at the time of the service of the original writ in this case, a deputy sheriff, under Richard Hunnewell, Esq., the’ sheriff of the county of Cumberland, and that the said Hunnewell served the said writ on the said inhabitants. The plaintiffs demurred generally to this plea; and the defendants joined in demurrer.

<p>The defendant was indicted for stealing an ox, the property of which was alleged in the indictment to have been in one Cromwell Leonard.</p> <p>At the trial, which was had before Wilde, J., at the last October term in the county of Bristol, it was in evidence that the general property in the ox was in one Olive Morse ; that, the day before it was taken away by the defendant, it was attached by one of the deputy sheriffs of the county of Bristol as the property of the said Olive Morse, at the suit of the said Cromwell Leonard, and delivered by the deputy sheriff to the said Leonard, who gave to the deputy sheriff his receipt for the same, thereby promising to be accountable for the ox, and to redeliver the same on demand; and * that the ox was taken by the defendant from the said Leonard’s barn-yard.</p> <p>The judge instructed the jury that this was evidence of a special property in Leonard, sufficient to support the indictment; and they thereupon found him guilty. The judge ordered the cause to stand continued; that, if this direction to the jury should, in the opinion of the full Court, be deemed incorrect, the verdict might be set aside.</p>

In this action, the said Alice, styling herself late the wife of Pardon Davol, demands her dower in a certain parcel of land; and alleges that the said Pardon, formerly her husband, was seised in his demesne as of fee of the premises during the coverture of the said Pardon with the demandant; that she has been divorced from the bonds of matrimony, for the cause of adultery committed by him: and that, since the said divorce was had, and a month before the purchase of her writ…

<p>[t is the duty of the judge of probate, before the appointment of a guardian to one as a lunatic, non compos, &c., to give notice to the party, that he may be heard on the question, whether such appointment be necessary or proper.</p> <p>Of proceedings in Courts of Probate.</p> <p>[When a commission issues from the Probate Court to take an inquisition, it should contain an order that notice be given to the party who is the subject of it, that he may appear before the selectmen. All orders and decrees of tho Probate Court must be recorded. — Ed.]</p>

<p>Tins was an action of assumpsit, for sundry supplies furnished by the plaintiffs to Rebecca Turner, the defendant’s wife, for her necessary support and maintenance.</p> <p>Trial was had upon the general issue, before Wilde, J., at the last October term at Plymouth. The plaintiffs proved the defendant’s marriage with the said Rebecca, and that they lived together some years in the said town of Hanover, until about the year 1804 or 1805, when the said Rebecca left the defendant, and has since lived separate. They then proved that the defendant had grossly abused and cruelly treated his * said wife while she lived with him, which was the cause of her leaving him; and that the supplies mentioned in the plaintiffs’ declaration were furnished at the expense of the plaintiffs, and at the request of the said Rebecca, who, in her application to the selectmen or overseers of the poor of said town of Hanover, informed them that her husband, who before that time had removed to Townsend, in the county of Middlesex, was of sufficient ability to repay the said town for such supplies, and ought to do it.</p> <p>The defendant proved that, previously to the time of furnishing said supplies, he had gained a settlement in said Townsend; and that the overseers of the poor in Hanover, immediately after furnishing the supplies, notified the overseers of the poor in Townsend that the said supplies had been so furnished to the said Rebecca, she being in need of relief, and residing in said Hanover, and having her legal settlement in said Townsend; and they called upon them to refund to the plaintiffs the amount of said supplies.</p> <p>The defendant further proved, that, in January, 1808, he removed from said Townsend to Rockingham, in the state of Vermont, where he resided (except that he twice returned to said Townsend for short times) until February, 1809; that, at the January term of the Supreme Court of Judicature, in the county of Rutland, and state of Vermont, he obtained a decree of divorce from the bonds of matrimony between him and the said Rebecca.</p> <p>Upon this evidence the judge instructed the jury, if they were satisfied by the evidence of the defendant’s gross abuse of his wife, and that she could not live with him in safety, that any one had a right by law to furnisli her with necessary supplies and maintenance at the expense of the defendant, and that he was bound by law to pay for the same; that the plaintiffs, having furnished such supplies, might recover the amount of the defendant, notwithstanding their notification to the overseers of Townsend, and although they might also be * entitled to an action against that town; the judge being of opinion that the plaintiffs might maintain their action upon an implied assumpsit at common law.</p> <p>As to the decree of divorce, the judge instructed the jury, that, if they were satisfied that the defendant removed to Vermont merely for the purpose of procuring a divorce; and that the pretended cause for divorce arose, if it ever did. arise, within this commonwealth, and not in the state of Vermont; and that the said Rebecca was never within the jurisdiction of said Supreme Court of Vermont; then, and in such case, the said decree of divorce must be considered as fraudulently obtained, and that it could not operate so as to dissolve the marriage contract between the parties.</p> <p>If these instructions to the jury were right, judgment was to be entered upon the verdict returned for the plaintiffs; but if otherwise, the plaintiffs were to become nonsuit.</p>

<p>This was an action of debt on bond, given by the defendant, as surety with one Gerrish, to the plaintiff, a deputy sheriff of the county of Bristol. Upon oyer of the bond, with its condition, it appeared to be a replevin bond, in the form prescribed by the statute, * with the condition that Gerrish should prosecute the suit.</p> <p>The defendant, in his plea in bar, sets forth the entry of the action at the Court of Common Pleas, to which it was returnable, and a judgment of that court, from which an appeal was regularly claimed by the said Gerrish, plaintiff in replevin, and allowed. He then avers that, before the sitting of the court to which the appeal was made, the plaintiff in replevin, who was principal in the bond, died.</p> <p>To this plea in bar the plaintiff replies in a general demurrer, which is joined by the defendant.</p>

<p>A judgment in an action of debt, brought upon a former judgment which was erroneous, cannot be reversed for the error in the former judgment.</p>

<p>Evidence of the testimony given by a witness in a former trial of the same cause, the witness having in the mean time been convicted of an infamous crime, is not to be received.</p>

<p>This was an action of debt on a judgment of the Circuit Court of Common Pleas for the county of Plymouth. The defendant pleads in bar, that, after the recovery of the judgment declared on, the plaintiff sued out his writ of execution thereon, which was returned unsatisfied ; whereupon he sued out a writ of scire facias against the defendant’s bail, who surrendered the defendant, who was thereupon, by order of court, duly committed to prison, there to remain for the space of thirty days, to be taken in execution if his creditor should think proper so to take him; that he continued in prison the said thirty days; that, while he was so a prisoner, the plaintiff wantonly and oppressively, and with a design to injure and oppress the defendant, and to subject him to great expense and damage, and further hold him in imprisonment, purchased the wril in the present action, and wantonly and oppressively arrested his body thereon ; when the plaintiff was entitled by law to sue out an execution upon the same judgment, and when the defendant was liable to be arrested, or to have his property taken upon such execution.</p> <p>The plaintiff replies, that he purchased his said writ *in the present suit for the purpose of securing and enforcing the payment of the money due to him on the judgment declared on, and traverses the defendant’s allegation, that he wantonly and oppressively, and with a design to injure and oppress the defendant, and to subject him to great expense and damage, purchased his said writ, and wantonly and oppressively arrested the defendant’s body thereon, &c.</p> <p>To this replication the defendant demurs, and the plaintiff joins in demurrer.</p>

This was a writ of dower} to which the tenant had pleaded in the Circuit Court of Common Pleas, with the usual reservation ; and the action was brought into this Court by appeal, at the last October term in Barnstable.

<p>If, in the course of pleadings, the party who relies on matter of estoppel has no opportunity to plead it, he may show it in evidence; but when the matter to which the estoppel applies is distinctly averred or denied by one party, and the other takes issue on the fact, instead of pleading the estoppel, he waives the estoppel, and the jury are at liberty to find the truth.</p>

<p>This was a complaint of the inhabitants of Ncmtucket, under the provision of the statute of 1793, c. 59, § 3, to the Court of Common Pleas for the county of Plymouth, praying the said court to assess upon the respondent a reasonable sum for the support of his son, who had become chargeable to the town of Nantucket. That court, after hearing the parties, assessed a certain sum; and the respondent, conceiving that his ability had been overrated by the court, and finding himself aggrieved thereby, appealed to this Court from the order of the Common Pleas.</p>

<p>This was a writ of entry, in which the demandant counted upon his own seisin of the estate demanded within thirty years, and upon a disseisin by the tenant.</p> <p>Trial was had upon the general issue before Putnam, J., April term, 1816. The demandant claimed under an execution, which he levied upon the demanded premises, as the property of Joseph Goodwin, on the 15th- of November, 1811, in due form of law. The tenant claimed to hold the premises under a deed of conveyance from the same Goodwin, dated the 6th of October, 1809, acknowledged and recorded.</p> <p>The demandant undertook to prove that the said deed was made without a good and valuable consideration, and was not bond fide, but made to delay or defeat the creditors of the said Goodwin.</p> <p>* It was admitted that the demandant, on the 6th of October, 1809, and long before, was a creditor of said Goodwin; his claim originating in consequence of the liability of Goodwin and other directors of the Berkshire Bank, in their individual capacity. The demandant proved that the said bank stopped payment in August, 1809; and he was permitted to give in evidence the confessions of Goodwin, made when Eggleston was not present, prior to the said 6th of October, provided the knowledge thereof was brought home to Eggleston before that time; the tenant objecting to the admission of such evidence.</p> <p>One witness testified that, in the spring of 1809, Goodwin told him that the bank would fail; that there was not much property belonging to the directors ; that he had an idea of their individual liability, and that was the worst of all; that it would be a question with him, whether he should give up all his property and pay as much as he could, or save what he could to live on and pay as little as he could ; that he seemed to think. it would be best to pay as little as he could; that it would be a question whether he should go to jail here in Albany, or in some other place.</p> <p>Another witness testified that, in August, 1809, he conversed with Eggleston, who told the witness that the directors could not pay twenty-five cents on a dollar. A third witness swore that, in August, 1809, Eggleston said to the witness, that the failure of the directors would be the consequence of the failure of the bank ; adding, that it would take every cent they had. A fourth witness testified that he was present at a conversation between Goodwin and Eggleston in August, 1809, when Goodwin observed that the notes of the bank were not worth a cent on a dollar, nor were the directors worth a cent. It was in evidence that Eggleston was present at a meeting of the directors of the bank on the 4th of October, 1809, and that he observed that the directors had long faces.</p> <p>There was evidence that Eggleston gave two promissory notes, dated on the same day with the deed, * for 5000 dollars each, payable respectively in three and six years, as a consideration for the land conveyed to him by Goodwin; and that one of these notes had been sued by Robert Center, an endorsee, and that the judgment recovered thereon was satisfied bj an extent on Eggleston's real estate.</p> <p>The judge instructed the jury that a deed made to delay or defraud creditors was void against them, unless made for a good and valuable consideration, and bond fide to a purchaser, without notice of the fraud ; that the confessions of Goodwin, after the date of his deed to Eggleston, were not to prejudice this latter; nor the confessions before, unless the knowledge of the fact were brought home to Eggleston before the date of the deed ; that negotiable notes were to be considered as payment, if delivered and accepted according to their import; that, if they believed that Eggleston bought the estate innbcently, he should be protected, although the grantor was endeavoring to place his property in a situation to keep it from his creditors ; because a man in failing circumstances might lawfully sell his estate with a view to pay his debts; but that, if Eggleston paid the money for the estate, and did it with a knowledge of the circumstances of the grantor, and with the intent to aid and assist him to delay or defraud his creditors, the deed would be void against them.</p> <p>The jury returned a verdict for the demandant; and the tenant moved for a new trial, on the ground that evidence of the confessions of Goodwin, admitted as aforesaid, ought to have been rejected ; and if that should be the opinion of the Court, a new trial was to be granted.</p>

This was a writ of error, brought to reverse a judgment of the Circuit Court of Common Pleas for this county, rendered upon the report of referees, appointed by the parties by a rule entered into before a justice of the peace, pursuant to the statute of 1786, c. 21. It appeared, from the record brought up, that the report had been once made to the court, and recommitted to the same referees ; and being again made at a subsequent term, was accepted by the court.

<p>A pauper had a derivative settlement m a part of the town of A, which was annexed to the town of B; but being of age, and out of the commonwealth at the time of such annexation, his settlement continued in A. Afterwards the town of C was incorporated, and contained within its limits the tract of land in right of which the settlement was held, In the act incorporating C. it was provided that persons who had gained a settlement in the part of B which by the act was made a part of C, and who should thereafter need support, should be supported by C. This latter town was holden liable for the support of the pauper, although never, in fact, settled in B.</p>

<p>This action, the decision of which upon certain agreed facts has already been reported, (vide ante, vol. xii. p. 400,) came on again for trial upon a review granted by the Court, upon the petition of the inhabitants of Stockbridge, who were original plaintiffs, (vide ante, vol. xiii. p. 302,) before Jackson, J., at the last April term in this county.'</p> <p>The action was brought to recover the money expended by the plaintiffs for the support of Frank Duncan, a negro man, whose settlement they allege to be in West Stockbridge. The only question made at the last trial was, whether the said Duncan was formerly the slave of Elijah Williams, Esq., late of West Stockbridge, so as to have gained a settlement from the said Williams, as his master.</p> <p>The said Williams, who was deceased before the trial, had given his deposition, which was taken for the original action, and was again used on the trial by review. *He therein states that, in the year 1770, the said Duncan being a slave in New Jersey, he, the said Williams, bought the time or services cf the said slave for the term of ten years, and paid therefor the sum of £100 ; that he was from principle averse to holding a slave, but was willing to purchase his services as aforesaid, if the negro consented to it; that he supposed there was a deed or writing between him and the former owner, but had no particular recollection about it. It did not appear that he considered himself bound to restore the slave to his former master at the end of the ten years.</p> <p>The said Williams died in June, 1815; and in the following October, his son, looking over a large quantity of his father’s old papers, accidentally found an instrument purporting to be a bill of sale from one William Bott, of New Jersey, to the said E. Williams, of a negro slave, called Frank. The instrument, a copy of which came up in the case, bears date on the 2d of April, 1770; the consideration expressed in it is £100; and it purports to convey absolutely the whole title and interest in the said slave for his life.</p> <p>The plaintiffs offered this paper in evidence at the trial. The defendants objected to its going to the jury; but the judge admitted it, leaving it to the jury to be considered in connection with the said deposition, if they should believe it to relate to the purchase mentioned in the deposition.</p> <p>It appeared that the said bill of sale was in the hand-writing of the said Williams ; that the owner of the said slave was one Joseph Firman, of New York, of whom the said Bott had hired him; that Firman, at the request of the slave, had written a letter to Bott, requesting him to sell the slave, or to find another master for him; that Williams came there to procure a man to work at his furnace in Stockbridge, and, upon Bott’s recommendation, Frank consented to go with him, he agreeing with Frank that, if he would serve him faithfully for ten years, he would then give him his time, and would also give him a yoke of steers and ten acres of land; * saying that he did not keep slaves any longer than till they had earned what he paid for them. Williams then paid Bott £100, and Bott undertook to sell and convey the slave to him. The said Frank returned with Williams to Stockbridge, and continued in his service seven years, and paid him £30 for the other three years of the ten years before mentioned; which sum he paid out of his wages and bounty given him as a soldier in the army of the United States.</p> <p>The defendants objected to the admission of the said bill of sale in evidence, because its execution was not proved by the subscribing witnesses; and also because it did not a.ppear that Bott had ány right or authority to sell and convey the slave in this manner. Both these objections were overruled.</p> <p>Upon the foregoing facts the judge instructed the jury that, by the purchase and conveyance made as above mentioned, the said Frank became the slave of the said Williams; and that his intention or his agreement above mentioned, to give him his time at the end of ten years, upon the condition of his good behavior for that time, would make no difference in the case.</p> <p>A verdict being returned for the plaintiffs, the defendants moved ■ for a new trial, on account of the admission of said evidence, and of the said direction given to the jury.</p>

<p>A demand annexed to a rule of reference under the statute of 1786, c. 21, is sufficiently made, if in the hand-writing of the party making it, as, “ A B demands,” &c., without being subscribed by him. And it is competent for the Court of Common Pleas to receive evidence that it is in the hand-writing of the party.</p>

<p>A person having a discharge under the insolvent laws of the state of New Yortt was holden liable for money received by him for the use of another, after his petition and before the date of his certificate.</p>

<p>This was an action of assumpsit, brought to recover one half ot the value of a dwelling-house, built by the plaintiff upon the land of the defendant. The declaration contained counts for work- and labor, for goods sold and delivered, for money had and received, and money laid out and expended, and also for the price or value of a house sold by the plaintiff to the defendant, (a)</p> <p>* The facts which the plaintiff undertook to prove, in support of his action, at the trial had at the last April term in this county, upon the general issue, before Jackson, J., were, that, in the year 1807, the defendant agreed to sell to the plaintiff and his father a small piece of land, on which they proposed to build a house. The price of the land was one hundred dollars. No precise time was fixed for the payment; but the defendant was to give them a deed for conveying the land, whenever they should pay that price, with lawful interest; and he agreed that they might immediately take the land, and proceed to build their house. They proceeded accordingly, the defendant being occasionally present, advising them how to proceed, and fully apprized of their doings. They finished the house in November, 1807, and then removed into it. The plaintiff continued to occupy it until December, 1810, when he removed into another house in the neighborhood, where he had ever since resided.</p> <p>Nothing more appeared to have taken place between the plaintiff and the defendant until September, 1816, just before the commencement of this action ; when the plaintiff made a formal demand of the defendant, for payment of one half the price or value of the house, and of the rent of it, or to be permitted to use it himself.</p> <p>In 1810, the plaintiff’s father had given to the defendant a common deed of release or quitclaim of the same land, which,-however, the father alleged was intended only as a mortgage, or security for moneys borrowed of the defendant by him. In 1813, the plaintiff’s father proposed to settle with the defendant for the moneys sc borrowed, and to pay all that was due therefor, and also the whole that was due for the land, and demanded a deed for the conveyance thereof to himself and the plaintiff. But the defendant refused to look into the accounts, or to make any settlement, or to give any deed. The plaintiff’s father did not at that time make a formal tender of the money; but he testified that he had made provision to procure it, and should have procured it, as soon as the amount due had been liquidated.</p> <p>* The judge, being of opinion that the action could not be maintained upon these facts, directed a nonsuit, subject to the opinion of the whole Court.</p>

<p>This was an action of trover for a horse. The plaintiff, being a deputy sheriff of this county, had attached and taken the horse on mesne process in August, 1815, as the property of one Taggart. The defendant Marsh, being also a deputy sheriff for this county, took the same horse in execution, as the property of the said Taggart, in March, 1816, from the bailee or servant of the plaintiff. The other defendant was interested in the said execution, although not nominally a party to it; and he went with Marsh and showed him the said horse, as the property of the said execution debtor, and directed him to take it as such.</p> <p>These facts being in evidence at the trial of the cause before Jackson, J., at the last April term in this county, the defendants’ counsel objected that this action would not lie under such circumstances, for one deputy sheriff against another. The judge, intending to reserve that question for the consideration of the whole Court, permitted the trial to proceed; and the plaintiff obtained a verdict.</p> <p>If the Court should be of opinion that this action was * maintainable under these circumstances, the verdiet was to stand ; otherwise the verdict was to be set aside, and the plaintiff to become nonsuit.</p>

The .question which came before the Court in this case was, whether the said Roys, upon his answers to the usual interrogatories, was chargeable as the trustee of Brown, the principal debtor. Held: and was owner of, said note and hides ; that Brown had, in April, 1816, assigned the same to him; and he showed him the note, which Roys says he thinks contained an endorsement by Brown, transferring the same.

The writ of error in this case was brought to reverse a judgment of the Circuit Court of Common Pleas for this county, in an action of assumpsit for goods sold and delivered, originally commenced and tried before a justice of the peace, and brought to that court by appeal; the plaintiffs in error having been original plaintiffs and the said Root original defendant.

The declaration in this action was for slanderous words; alleging that the defendant had, at various times, charged the plaintiff with the crime of perjury.

<p>This was an action of the case, in which the plaintiff declares on a promissory note, dated September 21, 1807, signed by one Benoni Webb, and payable to one Ebenezer Bartlet, or his order, on the 1st of April, 1803, with interest; and alleges that the defendant afterwards, being the owner of the said note, and being in possession of the same, by his endorsement thereon, acknowledged that he had sold and delivered the said note to the plaintiff, for value received, and promised him that the contents thereof, should be paid to him according to its tenor; and that, if it should not be so paid * by Webb, he, the defendant, would pay the said contents to the plaintiff on demand; that Webb never paid the same, nor the defendant, though he had notice, &c., and was requested, &c. The declaration also contained the usual money counts.</p> <p>In a case stated for the opinion of the Court, it was agreed that the note mentioned in the. declaration was executed by Webb, and that it was endorsed in blank to the plaintiff, by the defendant, for a valuable and adequate consideration. At the time the note fell due, the plaintiff and defendant lived within four miles of each other in this county. Before the note became due, the said Webb removed into the state of New York, had ever since resided there, and left no property within this commonwealth; both the parties to this action knowing where he resided at the time the note became due, and he being reputed to be a man of property. No demand was made by the plaintiff on Webb, nor any notice of non-payment given to the defendant, until about six weeks after the note fell due.</p> <p>Judgment was to be entered by default or nonsuit, as the opinion of the Court should be on the foregoing statement.</p>

<p>The action was assumpsit. The declaration contained several counts; one of which, and upon which the plaintiff relied, was upon a special contract to build a stone bridge, for the defendants, over a small stream of water running across a highway in Montague, for which the defendants were to pay one hundred and nine dollars and twenty-five cents; and the bridge was to be built in the manner particularly described in this count. There was also a count upon a quantum meruit for the same services.</p> <p>At the trial, which was had upon the general issue at Greenfield, in the county of Franklin, May term, 1816, before Putnam, J., the defence was, that the plaintiff had not performed his special undertaking, nor, in fact, done any meritorious service for the defendants.</p> <p>*It was proved that the plaintiff built the bridge in the autumn of 1810, but not in a workmanlike manner. It stood, however, until the spring of 1812, having been occasionally repaired during that period: then the eastern arch of the bridge fell down. The defendants then filled it up, and made it passable, relying upon the other arch as a sufficient passage-way for the water. The bridge stood afterwards until the autumn of 1814, when the other arch fell in. The defendants then determined to rebuild it the next year; and the selectmen in the mean time made some cheap, temporary repairs, which rendered the bridge passable until September, 1815, when it was all swept off by a flood, which occurred on the 23d of that month.</p> <p>Since that time the defendants have built a new bridge on the same site; but the stones and other materials, of which the bridge that had fallen down was constructed, were so entirely carried away by the -flood, that the defendants built their new bridge of . other materials and of other stones.</p> <p>It was proved that the abutments of the bridge which the plain tiff built were made principally of cobble stones, and that these were not well laid together ; in particular, that, in the eastern arch, which first fell down, the stones were not bound together at all from the bottom to the top.</p> <p>It was also in evidence, that, before the contract was made, a committee of the town viewed the place where the bridge was- to be built, and ascertained that stones of proper shape and size could be had near the place; and the parties made the contract with the understanding that stones of this description should be put into the work. But the plaintiff did not procure them, although he might have done it, for aught that appeared.</p> <p>The plaintiff proved that he laid the foundation of the abutments as low as was requisite, and that the bridge was as wide, as high, and as long, as it ought to have been. But it was proved that the stones were not of proper shape and size, and were not laid and bound together in a workmanlike manner.</p> <p>* The jury were instructed that, if they were satisfied</p> <p>from the evidence that the plaintiff had failed to perform his special contract, their verdict should be for the defendants; and that, under the circumstances of this case, nothing was to be allowed under the count for the quantum meruit, on the ground that the evidence in the case would not warrant a recovery on that count; inasmuch as the defendants had not received any benefit from the iii-directed labor of the plaintiff, but, on the contrary, had been put to expenses and inconvenience in consequence of the nonperformance of the contract on the part of the plaintiff.</p> <p>The jury found a verdict for the defendants ; and the plaintiff moved for a new trial for misdirection. If the direction was wrong, or if the plaintiff, under the circumstances of this case, ought to recover, the verdict was to be set aside, and a new trial granted ; otherwise judgment was to be rendered according to the verdict.</p>

This was assumpsit by the plaintiffs, a company incorporated for the purpose of manufacturing glass, against the defendant, a member of the company, to recover the amount of sundry assessments made by the company on the several shares of their capital stock. The action was submitted to the decision of the Court, on certain agreed facts.

<p>When the brigadier-general has endorsed a surgeon’s certificate of the inability of a private in the militia to do military duty, the court will presume that a previous application has been made to the commanders of the company and regiment</p>

<p>This action of assumpsit was brought upon a written memorandum signed by the defendant, hereafter mentioned, for the sum of 842 dollars 88 cents.</p> <p>A trial was had upon the general issue, before Jackson, J., at the last May term in the county of Hampshire.</p> <p>The evidence was, that, on the 21st of June, 1814, by certain articles of agreement, of that date, made between the plaintiff and one Sidney P. Brewster, the son of the defendant, it was agreed that the plaintiff should build and finish a dye-house, of a certain description, on land of the said Sidney, near to his woollen manufactory, and furnish it with vats, &c., and that the plaintiff should use and occupy the same, for two years from said date, free of rent; and that, at the expiration of the said two years, the said Sidney should pay the plaintiff all the cost of the building and its fixtures.</p> <p>The plaintiff built and furnished the dye-house; and afterwards, on or before the 30th of January, 1816, the defendant became the owner of the said factory and dye-house; and on the day last men tioned, he and the plaintiff undertook to adjust the accounts of the plaintiff, and the amount due to him according to the said agreement ; and the defendant on that day, by a memorandum in writing under his hand, reciting that the account was so settled, and that he found due to the plaintiff the sum of 842 dollars 88 cents, as would appear by the plaintiff’s books, promised the plaintiff to pay or account with him for that sum. on the 21st of June then next, according to the said articles of agreement between * the plaintiff and the said Sidney P.; and the plaintiff [ * 292 ] signed a receipt on the back of said agreement for the said sum, as in full for his expenses and labor in building and finishing the said works.</p> <p>This action was brought on the said memorandum, for the nonpayment of the said sum of 842 dollars 88 cents.</p> <p>It appeared on the trial that the plaintiff had, on the 2d of February, 1816, assigned the last-mentioned contract or memorandum, by his deed written on the back thereof, to two creditors, to secure the debts which he owed them, being 94 dollars 61 cents, and 350 dollars 90 cents; and he authorized' them to demand and receive the moneys due thereon, accounting to him for the balance of what they should receive, after satisfying their said debts with interest. The defendant had notice of the said assignment on the 3d of the same February; and he then said that, on a final adjustment, there would be nothing due to the plaintiff. The action was brought and prosecuted by the said assignees, for their own benefit, to the extent of their said demands.</p> <p>The defendant did not offer to prove that he had made any payment to the plaintiff, or any agreement with him, between the time of his making said memorandum and his receiving notice of its assignment; but he had duly filed an account in set-off, and offered evidence' in support of it, the charges therein being many of a prior and many of a posterior date to that of the said memorandum. He also offered to prove that, on the said 30th of January, it was agreed, between him and the plaintiff, that this account should be allowed against the demand of the plaintiff on the said written promise or memorandum ; and that the reason the said account was not adjusted at that time was, that there were certain bills then outstanding, the amount of which was not known.</p> <p>The said assignees objected to this evidence, and contended that they were entitled to recover upon the said memorandum, to the extent of their said demands; *and to prove that the said accounts had been adjusted and settled by the plaintiff and defendant, they read in evidence articles of agreement made between the plaintiff and defendant on the 25th of April, 1816, by which, after specifying certain acts to be done by each party respectively, it was declared and agreed that all book accounts between them were settled and closed, and that there was a balance due to the plaintiff of 1565 dollars 27 cents; and this, with a further sum of 500 dollars, which was also to become due in a certain event, was to be paid by the defendant in four equal annual instalments; and he was to give his note therefor to the plaintiff, who was to cancel the memorandum on which this action was brought.</p> <p>The defendant answered that the plaintiff had not performed the several things which, by the said last articles, he had agreed to; and he contended that, for that reason, he was entitled to prove his said account by set-off. He also offered to prove that, on the said 30th of January, 1816, it was agreed between him and the plaintiff that payment, on account of the sum demanded in this action, should be made in certain cloths, which were afterwards delivered, and were charged in the account so by him filed.</p> <p>The judge rejected all this evidence in support of the claims made by the defendant by way of set-off, reserving, for the consideration of the whole Court, the question, whether the same ought to have been admitted.</p> <p>A verdict was taken for the plaintiff, for the sum of 480 dollars 11 cents, the amount due to the said assignees, subject to the opinion of the Court on the afore-mentioned question ; the counsel for the plaintiff admitting that the said articles of agreement of the 25th of April, 1816, were a bar to this action, so far as it related to the interest of the plaintiff, and claiming to recover only to the extent of that sum. ■</p>

At the last May term of this Court at Greenfield, in the county of Franklin, this action came up by appeal from the Circuit Court of Common Pleas, where there had been a trial upon the merits, and a verdict. At that term the defendant pleaded the marriage of the plaintiff since the appeal in abatement of the suit. The plaintiff demurred to the plea, and the defendant joined in the demurrer.

<p>This was a writ of entry sur disseisin, which was tried upon the general issue before Putnam, J., at the sittings here after September term, 1815. To maintain the issue on the part of the demandants, they gave in evidence a deed of mortgage, made to them of the demanded premises on the 9th of February, 1802, by one Seth Ciarle, conditioned to pay his bond to them of that date for 1000 dollars, with interest in one year, acknowledged and recorded on the day of its date. The said * bond was also produced. The interest appeared to have been paid to the 2d of September, 1807.</p> <p>They also gave in evidence another mortgage deed for the same debt, made to them on the 6th of October, 1807, by one Laban Thurber, conditioned for the payment of 1000 dollars, on demand, with interest from the 2d of September preceding; and a bond of said Thurber for the said sum, payable to them as aforesaid. The said mortgage deed was acknowledged, and it was recorded on the 9th of April, 1808. '</p> <p>The tenant claimed under J. H. Dwight, mortgagees of said Thurber, and produced a deed from Thurber to said Dwights, dated the 7th of April, 1808, acknowledged on the same day, and recorded on the 8th of the same April, conditioned for the payment of several promissory notes from the said Thurber to the said Dwights, which were also produced; also an assignment from them to the tenant in due form of law, dated the 15th of April, 1809, acknowledged and recorded; also a copy of a deed of release, from the demandants to said Ciarle, of their right in the premises, referring to the first mortgage. This release was dated the 6th of October, 1807, and acknowledged; and it was recorded on the 9th of April, 1809.</p> <p>The demandants offered A. Kingsbury, Esq., the treasurer of the state of Connecticut, as a witness; and he was admitted, the tenant objecting. They also offered a letter from the said Dwights to the said Kingsbury, as evidence that the said Dwights knew of the mortgage of the said Thurber to the demandants before Thurber’s deed was made to the said Divights; which letter was admitted, notwithstanding the objections of the counsel for the tenant. There was no evidence offered that this was an original letter, excepting the testimony of said Kingsbury, that it was the same which he received in answer to one which he had addressed to them ; and nc notice was proved to have been given to the said Dwights, or to the tenant, to produce the original letter from said Kings-bury to them ; but no fraud in respect to the letter was suggested.</p> <p>* The judge instructed the jury that the tenant was in no better condition than the Dwights, his assignors; that if, from the evidence in the case, they were satisfied that the Divights knew of Thurber’s mortgage to the demandants, before they took their mortgage from Thurber, the demandants were entitled to a priority, and to recover in this action ; otherwise that tjie tenant ought by law to prevail.</p> <p>A verdict was given for the demandants. But if the said Kings-bury ought not to have been admitted as a witness, or the letter of the said Dwights .to him ought to have been rejected, or the direction to the jury was wrong, a new trial was to be granted; otherwise judgment was to be rendered upon the verdict.</p> <p>The cause was argued, at the last September term, by Bliss and Strong for the demandants, and Ashmun and Mills for the tenant.</p>

<p>Of demand on the makers, and notice to the endorsers, of promissory notes.</p> <p>The maker of a promissory note is not a competent witness for the endorser, in an action by the endorsee against the endorser, unless released.</p> <p>[The usage of the bank, where a note is made payable, as to demand and notice, is not binding on the holder, unless he be cognizant of it; in which case it is binding on him. The words >u for renewal,” written near the bottom of the note in the hand-writing of one of the makers, does not destroy the negotiability of the note, or necessarily affect the holder with such notice that the burden of proof is put upon him to show that he is a bond fide holder. A party who puts in evidence the deposition of a witness, cannot afterwards put in evidence, at the same trial, any other writing of the witness under his hand to contradict his testimony.—Ed.]</p>

<p>Replevin of a horse, attached by the defendant, a deputy sheriff of the county of Franklin. Issue was joined in the Common Pleas upon the property in the horse, and found for the plaintiffs. The action being brought by appeal into this Court at the last May term at Greenfield, a motion was made by the defendant to dismiss the suit, on the ground that the bond given by the plaintiffs was not sufficient, within the provisions of * the stat ute. (1) The cause stood over to this term, by direction of the judge, for the consideration of the said motion by the whole Court.</p> <p>[There were four plaintiffs, and the bond was executed by two of them only, and by two sureties. The bond was dated the 29th of October, 1816, and the writ, as appeared by the constable’s return, was served on the 28th of that month; and it was conditioned, among other things, to return the horse in like good order and condition as when replevied, in case such should be the final judgment in the action.]</p>

This was an action of trespass for taking and carrying away an ox, the property of the plaintiff.

Assumpsit on a promissory note, given by the defendants to the plaintiff, dated December 14, 1815, for the sum of 300 dollars, pay. able in sixty days. At the trial of the action, which was had upon the general issue, before Jackson, J., at the last April term at Springfield, in the county of Hampden, the note appeared to have been written in the usual form of a cash note, and it was subscribed by two attesting witnesses.

Assumpsit on a promissory note, dated the 6th of November, 1812, made by the defendant to Paul Boyden, or order, for 120 dollars, payable in nine months, with interest, and endorsed by said Boyden; also counts for money had and received, and for money laid out and expended. The plaintiff, having filled up the endorsement to the bearer, avers that he is the bearer for a valuable con sideration.

<p>I.i an indictment for refusing to answer a tithingman on the Lord’s day, it is not necessary to allege that the tithingman was sworn into his office; nor that he had any wand or badge of office; nor that he was known to the defendant to be a tithingman.</p>

This was a writ of entry, in which the demandant, as minister of the first parish in the town of Worcester, in right of his parish, demands possession of a tract of land described in his writ; in which he counts upon the seisin of his predecessor, Thaddeus Maccarty, within thirty years before the 30th of April, 1814, the date of • the writ; alleging an entry by Thaddeus Maccarty, Jun., and Wih Ham G. Maccarty, by abatement within that time, under whom the tenant claims. *…

The judgment in the Common Pleas was rendered in favor of the defendants, upon the following special verdict returned by the jury upon the issue' of not guilty, joined between the parties : — “ The jury find that the defendants were the assessors of the town of Rutland for the year 1813, duly chosen and sworn ; and that, as such, they assessed the plaintiff to the support of the ministry, in the tax bills for that year, the sum of five dollars and fifty five cents ; that the…

This was a writ of dower, which was tried, at the last April term in this county, before Jackson, J. The facts in the case shortly were, that James Andrews and his wife, on the 7th of May, 1805, conveyed the premises, of which the demandant claims to be endowed, to William Clark, her late husband; and that the said William, by his deed, dated and executed at the same time, mortgaged the same premises to one James Winthrop in fee; both which deeds were acknowledged and…

<p>This was an action upon the case against the defendant, as sheriff of this county, for not keeping certain chattels attached by him, at the suit of the plaintiff against one W. Beaton; and for not taking the same on the execution, which was issued on the judgment recovered by the plaintiff in that suit.</p> <p>On the trial, which was had on the general issue before Jackson, J., at the last April term in this county, it appeared that the original writ, in the plaintiff’s said action against Beaton, was delivered to the defendant to be served; and that he went with the plaintiff to a certain wool-carding factory, then occupied by the said Beaton, and there attached, among other things, “ all the right which the said Beaton had in three machines for carding wool; ” as appears by his return endorsed on said writ. The said machines were not removed by * the defendant; but he at the same time attached, by virtue of the same writ, the right in equity of the said Beaton to redeem the said factory, which had been mortgaged by him as hereafter mentioned. This attachment was made on the 3d of February, 1816.</p> <p>On the 6th day of the same February, the same machines were attached by one of the defendant’s deputies, at the suit of certain other creditors of the said Beaton, and by their direction were removed from the said building, and kept in the possession of the said deputy sheriff.</p>

This was an appeal from an order or decree of the judge of probate for this county, accepting and allowing the report of commissioners, appointed by him to make partition of the real estate, of which Thomas Goss, deceased, died seised and possessed, among the devisees named in the last will of said deceased, according to the said last will.

<p>This was a petition for a review of a judgment rendered by the Circuit Court of Common Pleas for this county.</p> <p>The petition stated that the said' Davis &f Al. having a demand against the said Stone fy AL, the parties had, by an agreement entered into before a justice of the peace, pursuant to the statute of 1786, c. 21, submitted the same to the decision of certain referees, who had made a report, in favor of the respondents, to that court. The petitioners having paid the sum awarded against them, the respondents had acknowledged the payment thereof, by their receipt on the back of the report, which had been returned and recorded according to the statute. The petition states certain facts, which had come to their knowledge since the acceptance of the report, which, in equity and good conscience, would entitle them to a rehearing of the matter submitted to the referees.</p>

Assumpsit for the support of a pauper, alleged by the plaintiffs to have her legal settlement in Raynham.

This action was in case against the defendants, the selectmen of the town of Worcester in the year 1814, for refusing to place the name of the plaintiff upon the list of voters for that year, qualified to vote in the choice of governor, lieutenant-governor, counsellors, and senators; and for refusing to receive his vote, when duly tendered at the meeting, for the choice aforesaid.

This was a writ of certiorari, issued at the instance of Smith, the respondent, W. E. Green, Esq., a justice of the peace for this county, to bring up the proceedings had before the said justice, upon the complaint of Edward D. Bangs, clerk of a company of light infantry, against the said Smith, alleging him to have been duly enrolled in the said company, and to have unnecessarily neglected to appear at. a muster of the company on the 7th day of May 1816, although duly…

<p>This was an action of debt upon a judgment; to which the defendant pleaded payment in full satisfaction; on which issue was joined. She also pleaded that an execution, which was issued on the judgment, had been duly levied on certain real estate, and returned fully satisfied, setting forth particularly the execution, and the officer’s return thereon.</p> <p>By this return it appeared that the execution was levied, in part, on a certain dwelling-house and land, appraised at 4700 dollars, of which the defendant was seised in fee, and concerning which there was no question in this action ; and for the residue, “ on the dower which the said Hannah Atkins hath in the brick dwelling-house situate, &c., in which the said Hannah Atkins now dwells, together with all the rights and privileges belonging to the dower of the said Hannah Atkins in the said estate; ” which last was appraised at 1047 dollars 84 cents.</p> <p>* To this the plaintiff replied that, at the time of the supposed levy, the defendant was not endowed, and had not had any estate of dower assigned her in the last-mentioned dwelling-house, as was supposed at the time of the levy; that the plaintiff, having discovered this before the return day of the execution, directed the officer not to return the same; and that it never was returned into the clerk’s office; and so the execution was nol fully satisfied, &c.</p> <p>In the rejoinder, the defendant averred that the execution was fully satisfied, and tendered an issue to the country; to which there was a demurrer and joinder.</p> <p>On the trial of the issue of fact, joined as aforesaid, which was had before Wilde, J., at the last February term in this county, the same facts appeared which are set forth in the special plea and replication above mentioned; and the cause was argued upon these facts, at the last March term in Suffolk, by Bigelow for the plaintiff, and Whitman for the defendant.</p>

Assumpsit for the support of a pauper, alleged by the plaintiffs to be legally chargeable to the town of Braintree. It was agreed that the pauper was the illegitimate child of Sarah Blanchard, otherwise called Sarah French, and was born in Newton in the year 1790. Sarah Blanchard, the mother of the pauper, was the illegitimate child of Sarah Blanchard the elder, and was born in that part of Braintree which still retains the corporate name, on the 3d of March, 1767.

<p>This was an action of assumpsit for the reimbursement of sundry expenses, incurred by the plaintiffs in the relief and support of one Rachel Webster, whose settlement they allege to be in Wells.</p> <p>At the trial, which was had upon the general issue, before Wilde, J., at the last February term in this county, the only question was, whether the legal settlement of the said pauper was in the town of Wells, or in the town of Lyman.</p>

This was a writ of scire facias, returnable to the Circuit Court of Common Pleas for this county, in which the said Elizabeth recites that she preferred her complaint to the said court, at a former term thereof, upon which such proceedings were there had ; that the said Azariah was adjudged the reputed father of an illegitimate child of which she had before that time been delivered; and it was thereupon ordered by the said court that the said Azariah should pay, towards the…

<p>On the trial of the prisoner, who was indicted for a rape, the Attorney-General offered evidence that a female witness, who had testified on behalf of the prisoner, had been the mother of several bastard children, and was notoriously a common prostitute.</p>

The defendant, having been convicted of perjury in taking the poor prisoner’s oath, moved in arrest of judgment, because it was not alleged in the' indictment that the said oath was administered to him in the prison, or within the yard or liberty of the prison; and it did not appear thereby but that he was at large at that time.

The declaration was, “ In a plea of covenant broken, for that the said Erastus, at said Dedham, on the 7th day of December last past, by his certain writing of that date, sealed with his seal, and in Court to be produced, for and in consideration of 200 dollars, paid him by the said Joseph, did assign, transfer, and set over, to said Joseph, his heirs and assigns forever, one sixteenth part of the patent right to a certain new and useful machine for cutting files, which…

Harrington moved for a certiorari to bring ■ up the proceedings of a general court-martial, which had passed a sentence upon the said Dunbar, an officer of the militia, by which he was aggrieved. In support of the motion, Harrington argued from the powers vested in this Court by the statute establishing it.

This was a writ of certiorari, upon which were returned the proceedings had before a justice of the peace for this county, upon the complaint of a clerk of a company of militia, charging the respondent, Newcomb, with unnecessarily neglecting to appear at a muster of the company; for which offence the justice had adjudged him to pay a fine of two dollars.

<p>A surgeon, who had performed a difficult operation on a pauper, not resident in the town where he had his settlement, without the application of the overseers of such town, has no right of action therefor against the town.</p>

<p>This action was assumpsit for money had and received. At the trial, which was had on the general issue before Wilde, J., at the last February term in this county, the plaintiff proved that one Morse, wishing to make two carding-machines, applied to the plaintiff, previous to the year 1816, for assistance and advancements to enable him to accomplish that object; and that the plaintiff thereupon advanced to him sundry materials for the construction of said machines, of the value of 80 dollars 50 cents, he, the said Morse, then agreeing that the plaintiff should have a share in the said two machines, equal to that amount in value. Afterwards, on the 2d day of January, 1816, the said Morse signed a written agreement of that date for securing the plaintiff in the property and possession of one of said machines, the other having been by him previously sold; and at the same time he authorized the plaintiff to sell said machine, and after paying himself for said advances, to pay over the remaining proceeds of such sale to said Morse. Whereupon the plaintiff gave to Morse a receipt in full for said advances.</p> <p>At this time the said machine was in a house occupied by one Wheatly ; no formal delivery of it was made ; and it could not be removed from said place of deposit without taking it in pieces and considerably injuring it.</p> <p>After these transactions, the said Wheatly, having a just demana against the said Morse, caused the said machine to be attached as Morse’s property, and delivered his execution to the defendant, then sheriff of this county, with orders to levy the same on the said machine ; in pursuance of which orders the defendant sold the same for 130 dollars. Previous to the said sale, the plaintiff gave notice to the defendant of his interest in the machine, and forbade him to sell his share therein; and after the sale demanded of him his share of the money, and requested him not to pay over any' part of the money to Morse. The defendant had * executions against Morse at that time to a greater amount than 130 dollars.</p> <p>A verdict was taken for the plaintiff by consent of the parties ; and if the Court shall be of opinion, on the above facts, that the plaintiff had any property in the said machine, or any right to the possession thereof, as a security or pledge for his advances made to Morse, judgment was to be entered on the verdict; otherwise the plaintiff" was to become nonsuit.</p>

<p>This was a petition for partition, in which the said John alleges that he is seised of one eighth part of the * premises therein described, in common with the respondents, and prays to have the same set off to him in severalty. 0</p> <p>The cause was submitted to the decision of the Court upon the following facts agreed by the parties : —</p>

<p>If, pending a writ of entry, the tenant be ousted by a stranger having a better title, or the land is recovered against him by a stranger, the writ will abate ; but in both cases the fact must be especially pleaded, as having occurred pending the writ, or since the last continuance.</p>

<p>Ths provision of the act of the Congress of the United States, passed March 3, 1815, that, after final judgment in any state court in an action for any thing done, or omitted to be done, by the defendant, as an officer of the customs, it shall he lawful for either party to remove and transfer such decision, by appeal to the Circuit Court of the United States in the same district, is not warranted by the constitution of the United States.</p>

<p>This was an appeal from a decree of the judge of probate for this county, by which the last will and testament of Anna Winslow, deceased, was approved and allowed, and a writing, purporting to be a codicil to the same will, was disallowed, because attested by two subscribing witnesses only, and not appearing to have been read to the testatrix in the presence of three credible witnesses.</p> <p>The reason of appeal, filed by the executors, according to the statute, was that the said second instrument, not purporting to be a disposition of any real estate, but only giving certain pecuniary legacies, ought to have been approved and allowed by the said judge of probate, notwithstanding it was not read to the testatrix in the presence of, or attested by, three credible witnesses.</p>

Assumpsit for 750 dollars, had and received by Ebenezer Seaver, the defendant’s intestate, on the 10th * day of October, 1809. The original writ was dated the 21st day of February, 1816. The defendant pleaded, besides the general issue, which was joined by the plaintiff, that the said intestate did not make the supposed promise within six years ; and in a third plea, that the cause of action did not accrue within six years from the commencement of the suit.

<p>This was an action of debt on a bond given by the defendants to the plaintiff, as judge of probate for this county, conditioned for the faithful execution, by the said Jonathan, of the .trust of executor of the last will and testament of David Parker, deceased.</p> <p>The defendants pleaded in bar, that the action was brought and prosecuted for the sole use and benefit of one Ebenezer Parker; and that the said Ebenezer is not entitled to get any part of the estate of the said testator, nor had he any interest, claim, or demand, in or upon the said estate, or upon the said Jonathan, as executor as aforesaid, excepting a certain legacy of one hundred dollars bequeathed to him, the said Ebenezer, in and by the said last will and testament; which said sum the said testator required the said Jonathan, executor as aforesaid, to pay to said Ebenezer in one year after the said testator’s decease; and the defendants aver that the said executor lias always been ready to pay and deliver to him, the said Ebenezer, the said legacy, according to the testator’s said direction in his said last will; but that the said Ebenezer has never made any demand or claim of or for the said legacy, of or from the said Jonathan, executor as aforesaid.</p> <p>To this plea in bar the plaintiff demurred generally, and the defendants joined in demurrer.</p> <p>Locke was to have opened the demurrer for the plaintiff, but the Court called on</p>

This was a writ of right, in which the said Benjamin and Lucy, in her right, demanded six several parcels of land described in their writ. * The tenant pleaded the general issue, which, being joined by the demandants, was tried before Wilde, J., at the sittings here after the last October term.

<p>How far the declarations or confessions of a party are competent evidence in the trial of his right to real property.</p> <p>Of the seisin necessary to maintain a petition for partition.</p> <p>[Declarations of a party as to his title upon the faith of which no person has acted, are not conclusive where his title is clearly proved. An actual corporeal seisin of a tenant in common is not necessary to maintain a petition for partition : a constructive seisin is sufficient, there being no proof of an ouster. — Dn.l</p>

This was a writ of error to the Circuit Court of Common Pleas for this county, upon a judgment rendered by them in an action originally commenced before a justice of the peace for this county by the now plaintiff in error. The original action was trespass against the defendants, for taking and carrying away a cow of the plaintiff.

<p>This suit was brought by the plaintiff, to obtain relief from imprisonment upon an execution, which issued upon a judgment obtained by the defendants against the plaintiff in this Court, N ovem ber term, 1814, for 5723 dollars 15 cents debt, and 29 dollars 8 cents costs; upon which execution the plaintiff was arrested on the 4th of March, 1815, the execution being returnable to this Court at the succeeding April term.</p> <p>The plaintiff avers that the defendants, after the arrest on the same 4th of March, discharged him, and consented that he should go at large; and afterwards, on the 11th of the same month of March, caused him to be arrested and imprisoned again on the same execution.</p> <p>At the trial, which was had on the general issue, before Putnam, J., at the sittings here after November term, 1815, it was in evidence that, on the 4th of March, 1815, the plaintiff, (being then in prison on the said execution,) and the directors of the bank, and Moses S. Little, son of the plaintiff, and David Little, brother of the plaintiff, met at the prison in Newburyport; that the plaintiff wanted time, to make arrangements for the settlement of the execution; and it was finally agreed that the defendants should give the plaintiff one week, on condition that the said David and Moses S. would sign a note, with the plaintiff as principal, for the amount of the execution, payable to the defendants in one week ; which note was to be given up, if the plaintiff should be forthcoming in one week ; in which case the execution was to be in force against him in the same manner that it originally was; but otherwise the note was to be in force.</p> <p>The said note was accordingly made and signed as aforesaid, and put ■ into the hands of If. Bartlett, Esq., * the president of the bank, to be delivered up on the terms aforesaid; and the plaintiff was thereupon, by the consent of the defendants, permitted to go at large, upon the agreement aforesaid.</p> <p>The sureties gave notice to the defendants, within the week, that they should deliver up the plaintiff; and on the 11th of March, the sureties and the parties met at the prison. The plaintiff produced testimony tending to prove that the sureties delivered him up ; and the defendants produced evidence to prove that the plaintiff voluntarily surrendered himself. He was, in fact, recommitted on the execution, by .direction of the defendants, and detained in prison from the said 11th of March to the 25th of April following. There was some evidence in the case tending to prove that the plaintiff procured his said discharge from imprisonment on the 4th oi March by fraud.</p> <p>All the evidence was submitted tó the jury, with instructions from the judge to the following effect: That the general rule of law is that, when a debtor has been once arrested on execution, and after-wards, by the consent of the creditor, is permitted to go at large, he cannot be again arrested on the same execution; that this rule is subject to some limitations; as where the discharge was procured by the fraud of the debtor ; and if the jury, from the' evidence, believed that the discharge in this case had been so procured, they should find a verdict for the defendants.</p> <p>So, if the discharge was procured by the debtor, for his accommodation, under an agreement to surrender himself upon terms, which agreement the debtor should execute and carry into effect, he would not be entitled to any redress for such imprisonment: and the jury were instructed to inquire whether the plaintiff did voluntarily surrender himself, pursuant to the agreement aforesaid ; and if they should find that he did so, then their verdict should be for the defendants; that such debtor, having executed his agreement, cannot by law be permitted to contend that the service of the execution * is an act of oppression, and is not entitled to maintain an audita querela for such imprisonment.</p> <p>The jury found a verdict for the defendants, on the ground that the plaintiff did voluntarily surrender himself. They conversed about the question of fraud, but could not agree respecting it. The verdict was taken, subject to the opinion of the whole Court. If the direction to the jury was wrong, the plaintiff was to have a new trial; otherwise the verdict was to stand.</p>

This was an action of assumpsit for surgical aid rendered to one Thomas Dennett, a poor person belonging to the town of Newburyport, but having need of immediate relief in Newbury.

The plaintiff, in an action originally commenced in the Common Pleas, declares in debt upon a bond dated November 13, 1806, made by the defendant, and two others since deceased, payable to Samuel Holten, Esq., then judge of probate for this county, and to his successors in said office; and avers that he is the lawful successor of the said Holten in the said office.

Assumpsit on the following note of memorandum: “Boston, November 7, 1814. For value received I promise to pay Mr. Philip Bagley, or order, on demand, one hundred dollars, provided John Baptist does not render himself on board the private-armed schooner M’Donough, in the harbor of Boston, and proceed to sea, and perform his duty as a seaman on board said vessel.

<p>It seems that the laws of a foreign country may be proved by the testimony of witnesses.</p>

<p>An infant made his promissory note, and when of age, being applied to for payment, acknowledged that the money was due, and promised that, on his return to his home, he would endeavor to procure it and send it to the creditor. This was holden to be a sufficient ratification of the original promise.</p> <p>Of two copartners in trade one was an infant, and the other of full age: the adult, for a debt of the copartners, made a promissory note in the name of the copartnership or firm, and the infant, after coming of full age, ratified it; and it was holden good against him. •</p>

<p>[The opinion of the puisne justice of the Court, in the following case, was copied from a manuscript in the hand-writing of the late Hon. Increase Sumner, many years an ornament of the bench, from which he was called, by the suffrages of his fellow-citizens, to the office of governor of the commonwealth. Those of the profession who have learned, from the frequent mention of Judge Trowbridge in these Reports, to venerate his memory as one of our first jurisconsults, will require no apology for the insertion of this original argument in this place.]</p>

<p>Daniel Parker, by indenture, leased land, &c., to the defendant, who assigned the same to the plaintiff in these words: “ grant, bargain, sell, assign, and set over, to said Waldo, his executors, administrators, and assigns, the whole of the premises and appurtenances within mentioned; — to have and to hold during the term of time in said lease mentioned, he, the said Waldo, performing all covenants,” &c. Prior to making the lease, Parker, the lessor, had mortgaged the same lands, &c., to one Fitch, who, after the lease and the assignment, ejected Waldo, and took possession, by virtue of his prior mortgage. And for this eviction the plaintiff brings this action of covenant against Hall, his assignor, upon the said assignment, declaring thereon as [importing] a covenant, “ that he [Hall] had power to demise and assign the premises as aforesaid; and that the said Waldo should hold against all holding under Parker and Hall.”</p> <p>Upon general demurrer to the declaration and joinder, two exceptions were taken: —</p> <p>1. That this being but an assignment of a term, the action does not lie for the assignee against the assignor for any acts done by the lessor; but the action is good only against the lessor.</p> <p>2. For variance between the declaration and the words of the assignment. Vide the words of each, recited above.</p>

<p>Trespass for breaking and entering the plaintiff’s several fishery in Connecticut River, and taking thereout 300 shad and 50 salmon. This action came on to be tried in this county at September term, 1770, when a special verdict was found, in substance as follows, viz.: That Connecticut River is a certain ancient, navigable river; that there is an ancient custom among the inhabitants on said river, that when any one of them cleared a place for seine-fishing, he held it against every body during the fishing season ; and that, in the year 1767, the plaintiffs entered and cleared the place where the alleged trespass was committed, in front of the defendant’s upland, and prepared it for a seine-fishery; and had used it ever since at proper seasons. It was further found, that the defendant, at the time when, &c., took the fish specified, &c. And if on the whole matter, &c.</p> <p>This special verdict was first argued at Springfield. September term, 1773, before Oliver, C. J., Trowbridge, Hutchinson, Ropes, and Cushing, justices ; and was continued from term to term for advisement, until the dissolution of the provincial government; and after the reorganization of the judiciary, was argued again before this Court.</p>

<p>This was a real action, commenced in the year 1773; and on the trial at September term, 1780, an objection was taken to the admission of a deed from Daniel Cox to his son Daniel, of Trenton, granting to him in fee the demanded premises, in consideration of natural affection and of five shillings. The deed bore date in 1701, and was recorded in this county in 1755; but had never been acknowledged by the grantor. It appeared, by a memorandum on the deed, that, in 1726, before the mayor of Philadelphia, one of the witnesses swore to its execution in London by the grantor; and a record thereof was made at Burlington county court. It further appeared that the land had been in an uncultivated state, until within twenty or thirty years.</p>

<p>This was an ejectment for land in Middlesex, wherein a special verdict was found; that one J. Betton, on the 17th of July; 1776, being seised of the premises, made his last will, and devised to his wife Mary the income of his real and personal estate during life; and if not sufficient to support her comfortably, then power to sell any of his estate for that purpose ; and to will and dispose of all the wearing apparel, plate, and furniture, of which he should die possessed. It was further found that, on the 11th of December, 1776, the said Mary granted the premises in fee unto the defend ant, for a valuable consideration; and that, if evidence could be admitted (notwithstanding the deed to the defendant) to prove the income, &c., sufficient, &c.,- then that it was sufficient for her comfortable support. And whether, on the whole matter, the demandants could recover, the jury prayed the advisement of the Court, &c.</p>

<p>This was an ejectment, pending several years in this Court; and in June, 1771, a special verdict was found, and argued by Fitch for the demandant, and Adams for the tenant; at June term, 1779, the verdict was set aside, and a new one found, which embraced more particularly the facts upon which the cause turned.</p> <p>The verdict found that Gridley and one Thompson, deceased, being partners, brought their action against the now tenant at April term. 1768, to recover a debt, and attached the demanded premises by the original writ; that, having obtained judgment at November term of the same year, they sued out their execution against the tenant, and caused the premises to be set off to them in satisfaction thereof, and the sheriff duly gave them seisin and possession; and that Harraden afterwards entered on them.</p> <p>The jury further found that, after the commencement of said action against said Harraden, and during its pendency, and before trial, one A. Hall, a creditor of the said Gridley 8f Thompson, instituted a process against the said Harraden, as agent * and trustee ot the said Gridley 8f Thompson, they being then out of the province; and such proceedings were had thereon that judgment was recovered by said Hall against the goods, effects, and credits, of said Gridley &f Thompson, in the hands of said Harraden; which he afterwards paid to said Hall, on an execution duly issued. . And if upon the whole matter, &c.</p>

Trover for four hogsheads of rum. On the trial, the evidence appeared thus: Walker undertook to transport from Boston to Springfield the four hogsheads of rum for the plaintiff. At the time of the delivery to Walker, the rum was good; but on its arrival at Springfield, it was much adulterated and greatly lessened in value ; and whether it „was thus adulterated by the defendant himself, or by his servant the teamster, did not appear.

This was an action of traver for oxen. One Hutchins stole the cattle from the plaintiff, and sold them to Collins, who was not privy to the theft, nor had any knowledge of their being the property of the plaintiff. Hutchins was afterwards convicted of the theft, and sentenced, at the instance of the attorney-general, to pay threefold damages to the plaintiff, according to the statute.

<p>This was an ejectment, brought to recover possession of a certain messuage in Bristol county. The demandant counted on a seisin of his intestate; and that Valentine had unjustly entered, and now held him out from administering the same according to law. To this declaration there was a general demurrer and joinder at the last October term at Taunton, and the cause was continued nisi unto this term for advisement</p>