Volume 15 — Massachusetts Reports

<p>An action lies for a breach of a promise of marriage.</p> <p>Ill such action, evidence of an express promise is not required; but it may be inferred from circumstances usually accompanying such a relation between the parties.</p>

<p>This was an action of debt upon a bond given to the plaintiff, judge of probate for the county of Suffolk, dated the 14th of February, 1797, executed by the defendant’s testator, Joseph Shed, as surety for Josiah Bacon, administrator of the estate of John Bacon, and conditioned for the due administration of the said estate by the said John.</p> <p>After oyer had of the bond and of the condition, the defendants plead a general performance of the condition of the bond, by the said Josiah, the principal.</p> <p>The replication states the following breach substantially, viz : That in the year 1816 a judgment was recovered, at the Boston Court of Common Pleas, by Thomas Leach, and Nathan Webb, administrators of the estate of John Leach, deceased, against the said Josiah Bacon, as administrator of the said John Bacon, on which judgment execution had duly issued and been returned unsatisfied; the said administrator not having shown to the officer any estate of his said intestate, whereon the same might be levied.</p> <p>The rejoinder alleges, in substance, that the action, of the said Leach and Webb was not commenced until long after four years had elapsed from the time of the said Josiah’s giving public notice of his laving taken upon himself the trust of administrator.</p> <p>* The surrejoinder, to avoid the ground of the rejoinder, avers that, within four years after administration was granted to the said Josiah, and notice thereof given by him, the bond which was the subject of the suit against him was exhibited to him, that he paid part of the interest thereon, and that he has ever since acknowledged the same to be due.</p> <p>To this surrejoinder the defendants demur generally, and the plaintiff joins in demurrer.</p>

<p>This was an action of the case against the defendant, as sheriff of the county of Washington. In the first count of the declaration, the plaintiff recites that he sued out an original writ, bearing date the 16th of September, 1812, against one Kennedy, then an inhabitant of Eastport, in the said county, as was the plaintiff also ; that the said writ was, on the same day, duly served by John Wood, one of the defendant’s deputies, by attachment of certain merchandise ; that final judgment in that action was obtained at the June term of this Court, at Castine, in 1816; that the plaintiff duly sued out his execution thereon, dated the 24th of the same June, which was delivered to the defendant on the 15th of July following, to be served, being within thirty days after judgment; — yet the said Cooper, nor any of his deputies, did not safely keep the said merchandise, so attached as aforesaid on the original process, nor take the same in execution.</p> <p>* The second count was like the first, except in alleging that the said Wood did not keep safely the goods attached, that they might be taken in execution.</p> <p>The third count charged the defendant with a false return of the execution, that he could not find the said Kennedy, nor any of his goods.</p> <p>At the trial.of the action, upon the general'issue, before the Chief Justice, at the last November term in this county, the facts were sufficiently proved; and in excuse the defendant showed that, on the 14th of July, 1814, the said John Wood resigned his commission, as one of the defendant’s deputies, in consequence of the capture of Eastport by the British; that no civil officer of this, or any other of the United States, had been permitted to exercise any jurisdiction, or to serve any process or precept whatever, from that time, on Moose Island, on which Eastport is situated; that, upon application to the British commandant, Wood was forbidden to serve any process, and, that no assessment of a county tax has been made upon the town of Eastport, nor any jurors been summoned therefrom to serve at any court, since its capture; — and the defendant relied on these facts as a legal defence.</p> <p>The plaintiff then proved that Wood had delivered the goods so attached on his and two other original writs, being the same merchandise, on the 24th of September, 1812, to two persons, a certified copy of whose receipt to him was produced; and he proved also that, on the 20th of July, 1816, the said Wood made a demand of the said merchandise of one of the persons to whom it had been so delivered. It appeared that personal property was not confiscated by the enemy.</p> <p>The Chief Justice instructed the jury that the plaintiff had made out a prima facie case, on which he would be entitled to recover, unless the matter offered in evidence on the part of the defendant was sufficient excuse. If he could not, by reason of the occupation of Eastport by the enemy, go thither and serve process there, this was sufficient for * himself; but that it might be a different case with his deputy, who lived at Eastport, and co'tld peaceably enjoy possession of the property attached ; and that, as he had delivered over possession to responsible persons on a contract which, after the peace and before the issuing of the execution on the plaintiff’s judgment, could have been enforced, his not producing it when the execution was delivered was a default, for which the defendant was liable ; and that interest should be computed on tnc judgment, from the fourth day after the delivery of the execution to the defendant.</p> <p>Under this instruction, the jury found a verdict for the plaintiff oi the second count in the declaration, which was to be set aside, and a nonsuit entered, if it should be the opinion of the Court that the defendant was not liable to this action.</p>

<p>One who has given bonds, as principal, to the United States for the duties accruing on the importation of merchandise, has no lien on the merchandise in consequence of his giving such bonds.</p>

<p>The declaration in this case was in debt, “ for that one Samuel Swett, heretofore, viz., on the 26th day of October, A. D. 1812, at Boston aforesaid, being seised in his demesne, as of fee, of and in a certain messuage and land situate in Boston aforesaid, demised the same messuage and land to the said Thompson for a certain term of years, viz., for, and during, and until the full end and term of, five years then next ensuing ; yielding and paying therefor, during the said term, the yearly rent of 660 dollars, in four equal and quarter-yearly payments of 165 dollars: by virtue of which said demise, the said Thompson entered into the said demised premises, with the appurtenances, and was possessed thereof from thenceforth until the 27th day of July, 1816, when a large sum of money, viz., the sum of 1155 dollars of the rent aforesaid, for the space of one year and nine months then elapsed, became and was due and payable. And after the making of the demise aforesaid, viz., on the 26th day of October, 1814, the said Samuel Swett, being seised in his demesne, as of fee, of and in the reversion of the messuage, land, and appurtenances, demised as aforesaid, by his, deed of bargain and sale of that date, duly executed, acknowledged, and recorded, and here in Court to be produced, for a valuable consideration therein expressed, did grant, bargain, sell, and convey, to the said Farley, among other things, the said demised premises, with the appurtenances, to have and to hold the same to the said Farley, his heirs and assigns, forever ; by virtue of which deed he, the said Farley, then * and there became, and was, seised of the reversion of the said demised premises, with the appurtenances, as of fee; whereby an action hath accrued to the said Farley, to demand and have, of and from the said Thompson, the said sum of 1155 dollars, for the rent thereof in arrear on the said 26th of July, 1816.” There was also a second count, in which the plaintiff demanded the same sum for the use and occupation of the premises for the same term.</p> <p>The defendant, besides the general issue of nil debet, pleads m bar that, “ before the making of the demise aforesaid by the said Swett to him, the said Thompson, viz., on the said 26th of October, 1812, at Boston aforesaid, a certain discourse was had and moved by and between the said Sivett and the said Thompson, of and con cerning the leasing and demising of the said messuage and appurtenances, by the said Swett to the said Thompson, and also of and concerning the loaning of the sum of 11,000 dollars, by the said Thompson to the said Swett; and upon that discourse it was then and there agreed, by and between the said Swett and the said Thompson, that he, the said Thompson, should loan to the said Swett the said sum on interest, and that the interest thereof should be paid to the said Thompson by even quarter-yearly payments, and that the said Swett should demise to the said Thompson the said messuage and appurtenances for the term of five years thence next ensuing, at and for the yearly rent or sum of 660 dollars, to be paid to the said Swett, by even quarter-yearly payments, on the same days and times in which the said interest should become due and payable as aforesaid ; which said last-mentioned sum was then and there equal to the yearly interest of the said sum of 11,000 dollars: and further it was agreed, as aforesaid, that, for so long time during the said term of five years as the said principal sum of 11,000 dollars should remain unpaid, the said interest, when and as the same should accrue, should be and operate as a payment of and for the said yearly rent of the said messuage, and appurtenances, when * and as the said rent should accrue, and that the said Thompson should be acquitted and discharged of and from the said yearly rent, and that the said Swett should be acquitted and discharged of and from the said yearly interest, when and as the said yearly rent and the said interest should respectively accrue. And the said Thompson avers that he, confiding in the said agreement so made, as aforesaid, between him and the said Swett, afterwards, viz., on the said 26th day of October, at Boston aforesaid, in pursuance of the said agreement, did loan to the said Swett the said sum of 11,000 dollars on interest, as aforesaid, and the said Suett then and there demised to the said Thompson the said messuage and appurtenances, at and for the yearly rent aforesaid, —■ into which said messuage the said Thompson thereafterwards on the same day entered, and hath ever since continued to occupy and. enjoy the same, the said term of five years being yet unexpired. And the said Thompson further avers, that no part of the said principal sum of 11.000 dollars hath ever been paid to him by the said Swett, nor by any other person ; but the said sum, on the day of the suing out of the plaintiff’s writ in this action, was, and yet is, wholly due and unpaid. And the said Thompson further avers that, during the said term of one year and nine months next preceding the said 27th day of July, 1816, there accrued and became due to the said Thompson several sums of money, for the interest of the said sum of 11,000 dollars, amounting in the whole to a sum equal to, and which then and there, in pursuance of the agreement aforesaid, was retained and applied to pay, and operated as a payment and discharge of, the said sum of 1155 dollars, which, during the same time, accrued for the rent of the said demised messuage and appurtenances ; and this he is ready to verify. Wherefore,” &c.</p> <p>The plaintiff replies, that “ the said Thompson ought not to be admitted or received to plead the said plea, by him secondly above pleaded, wherein he alleges,” &-c., (as in *the plea in bar,) because he says that the said demise, in the said declaration mentioned, was made by the said Swett to the said Thompson by an indenture of lease sealed with the seals of said Swett and Thompson in the words and figures following, viz. : “ This indenture, made the 26th day of October, in the year of our Lord 1812, witnesseth, that Samuel Swett, of, &c., doth hereby lease, demise, and let, unto Thomas Thompson, of, &c., his late dwelling-house, &c., with all the privileges thereto belonging; to hold for the term of five years from the date; yielding and paying therefor the rent of 660 dollars per year, during the time he shall occupy the same; ” with covenants on the part of the lessee to pay the rent quarter-yearly, to deliver up the premises at the end of the. term, to pay all taxes, and to commit no waste. One part of which said indenture being in the possession of the said Swett, and the counterpart thereof in the possession of him, the said Thompson, the plaintiff is unable to produce the same here in court; and this he is ready to verify. Wherefore, &c.</p> <p>To this replication the defendant demurs, assigning the following causes of demurrer, viz.: 1. That it begins and concludes as an estoppel, yet it contains no matter whereby the defendant is in law estopped from making the several allegations contained in his plea; 2. That by it no material allegation contained in the defendant’s plea is either denied or confessed and avoided, but the said plea, and the matters therein alleged, are left wholly unanswered.</p> <p>The plaintiff joins the demurrer; which was argued at the last March term here, by the Solicitor-General and Sohier for the plaintiff, and by Prescott and Gallison for the defendant.</p> <p>It was argued, for the defendant, that here was no repugnance between the lease and the facts set forth in the plea, and, therefore, no estoppel. The plea shows what is called, in the civil law, a compensation, (1) and amounts to an extinction of the debt. It being part of the original agreement between the lessor and lessee, the assignment can * make no difference. The assignee can have no rights but what previously existed in the lessee. The rent was, in effect, wholly advanced at the time of executing the lease, by the loan made by the defendant to Swett. The case of Sturdy & Al. vs. Arnaud (2) seems to be decisive of the case at bar</p> <p>The declaration is insufficient. It avers neither the attornment of the tenant to the assignee of the reversion, nor notice to him of the assignment, nor a demand of the rent. If it should be held that attornment is done away b) the English statute of 4 and 5 Anne, c. 16, still notice and demand are necessary of common right. (3)</p> <p>If Swett had leased the premises for five years, and taken the whole rent in advance, and afterwards mortgaged them to Farley, as here, this latter must have taken the conveyance subject to the right -of Thompson to enjoy his term free of rent. The transaction in the present case must have the same effect. The plea does not show a new agreement, but in substance a payment at or before the day. The rent was, by the original agreement, extinguished by the loan, and the interest of the loan was extinguished by the accruing rent.</p>

<p>This was a real action, in which the demandant claimed as son and heir of Thomas Leverett, who died seised of the premises in the year .1778. His estate, being insolvent, was sold by Martha Leverett, his widow and administratrix, in July, 1783, under an order of the Court of Common * Pleas, to pay the debts of the deceased. The land demanded in this action was that part of the estate which had been assigned to the widow as her dower.</p> <p>One Jonathan Harris was the purchaser at the public sale, and a copy of the deed to him came up in the case. It recited the proceedings in the Probate Court, and the order of the Common Pleas authorizing the administratrix to sell the whole of the real estate of her intestate; purported to convey the land described, excepting from said granted premises the widow of the said Thomas’s dower, in and to the real estate of the said. Thomas, which hath been set off to the above-named Martha Leverett, by the aforesaid judge of probate, in the above-described premises, as will more fully appear in said judge’s office, reference thereto being had; and contained a covenant that the granted premises were free and clear of all encumbrances, excepting the widow’s dower as aforesaid.</p> <p>The said Harris entered under the said deed, and occupied the whole of the premises, having also purchased of the widow her right of dower soon after the making of the deed aforesaid; and the tenant, deriving his title from Harris, has since so occupied. The said Martha died before the commencement of this action.</p> <p>The foregoing facts appear from the report of the trial, which was-had before the Chief Justice at' the last November term in this county. The demandant contended, at the trial, that the deed of the administratrix did not in fact convey the reversion of that part of the estate which was assigned to the widow; it being suggested that such was not the true construction of the deed; and also that, by the laws then in force, no authority was given to sell the reversion before the death of the widow. It was likewise objected that there was no evidence of advertisements having been posted up, as •.vas then required by law. But the sale being at a time when it appears that there was a deficiency in the records of the Probate Court, it was left to the jury to determine whether there were not sufficient * grounds to presume that the proceedings, in that respect, had been conformable to law.</p> <p>A verdict was taken for the tenant by direction of the chief mstice; which was to be set aside, and a verdict entered for the demandant, if the said reversion did not pass by the deed aforesaid, or if the fact of notifying was improperly submitted to the jury.</p>

<p>A feme covert, whose husband deserted her in a foreign country, and who had thereafter maintained herself as a single woman, and for five years had lived in this commonwealth, the husband being a foreigner, and having never been within the United States, was holden competent to sue and be sued as a feme sole, and her release would be a valid discharge for any judgment she might recover.</p>

<p>To a policy of insurance of a vessel on “ a voyage from Boston to the port of discharge in Europe,” was annexed a memorandum, that no “ exceptions were to be taken on account of ports interdicted by the laws of the United States; ” and, in an action upon the promissory note given for the premium, the defendant, the assured, was permitted to prove that the voyage was intended and made to a port so interdicted; and this evidence was holden sufficient to avoid the note, as given in consideration of an unlawful contract.</p>

<p>This was an action of assumpsit, founded on two promissory notes, which were made and endorsed in the following manner. The first note was the promise of one Perley Rice to pay to the Neponset Cotton Factory Company 606 dollars 55 cents, in ninety days from the 10th of January, 1814, with grace. This note was endorsed thus: “ For value received, pay the contents of the within note to George Odiorne. For the Neponset Cotton Factory Company,, Levi Maxcy, agent.” The second note was the promise of the said Rice to pay to the order of Levi Maxcy, agent for the Neponset Cotton Factory Company, 514 dollars 59 cents, in ninety days from the 15th of January, 1814, with grace; and it was endorsed in the same manner as the first.</p> <p>The former verdict in the action having been set aside, (vide ante, vol. xiii. p. 178,) the cause was again tried before the Chief-Justice at the last November term in this county. It was then admitted that the defendants had associated to carry on a cotton factory, and that the said Levi Maxcy had been appointed their agent, to manage the affairs of the company. Three of the defendants live in the state of Maryland, and two of them in the town of Attleborough, in this state. The factory was in the town of Walpole, also in Massachusetts.</p> <p>*The defendants objected that the second note did not contain a promise to them ; that the words which follow the name of Levi M. were only a description of him as promisee; and that his endorsement of said note, in manner aforesaid, did not bind the company. This objection was overruled, and the note was permitted to go to the jury.</p> <p>The defendants then proved that the notes were given on a con tract made with the plaintiff by Rice for a quantity of nails and iron ; and that the said endorsements had been obtained by him, on his being requested to give other security than his own name. The plaintiff, having first inquired into the responsibility of the said company, agreed to take their endorsement as security on said notes.</p> <p>The said nails and iron did not go directly to the use of the company ; but it appeared in evidence that, the concerns of the company being embarrassed, the said Levi, as their agent, before and after the making and endorsing of the notes in question, had frequently bought goods, which were exchanged for other goods, or sold to raise money for the use of the company ; and that said Rice had assisted him in such negotiations ; and that the said Levi, as agent of said company, had, by like negotiations with Rice, assisted him to raise money for and on account of him, the said Rtce.</p> <p>It further appeared in evidence that Rice kept a store, and called himself a commission merchant, for the sale of American manufactured goods; and that some of the goods manufactured by the defendants were deposited for sale in his store; and that the said Levi, as agent, and the said Rice, had joined in the purchase of divers quantities of cotton, and of some groceries, and had given notes for such purchases, which notes had been paid.</p> <p>It also appeared that, early in the month of February, 1814, Virgil Maxcy, one of the defendants, was in Boston to examine into the affairs of the company, which were found to be much embarrassed, and the factory was soon afterwards broken up About the same time, the said Rice * became insolvent. There was evidence, also, that the said Virgil was present when one of the notes declared on was made or negotiated; and that he did not object to the same, but said it was correct. The said Virgil was the only partner who appeared to take any active part in the management, direction, or superintendence, of the company’s concerns. He was brother to the said Levi, and was proprietor of the major part of the stock of the company.</p> <p>There was no evidence that the said Virgil had any authority to act in the affairs relating to the factory beyond that which arose from his being one of the company. But it was proved that he had recognized, as obligatory on the company, several notes which were either signed or endorsed by said Levi, and which were given for articles of merchandise which did not go to the use of the company; and which notes had been paid.</p> <p>There was produced in evidence an original agreement between said Rice and said Levi Maxcy, which was proved to be in the hand-writing of the said Virgil, and in which the notes in this case, with sundry other notes, are mentioned ; and it was proved that all the said other notes had been voluntarily paid by the defendants, or judgment had been recovered on them. There was also other evidence, tending to prove that the said Virgil Maxcy knew that the notes in question in this action were received on the credit of the company. The defendants objected to this paper, as not admissible evidence, because it was not the act of the defendants, nor binding on them, if it could be considered as evidence to any purpose against the said Virgil. But the objection was overruled, and the said agreement was permitted to go to the jury.</p> <p>It did not appear that either of the members of the company, except the said Virgil, were conusant of the aforesaid transactions; there having been no evidence offered by either party, tending to inquire into that fact.</p> <p>The jury were instructed that, if the evidence in the case was sufficient to satisfy them that the said Virgil * Maxcy knew that these notes were given in the manner proved by the plaintiff, and that he had paid other notes given under the like circumstances; or that the nails and iron, for which said notes were given, either directly or indirectly went to the benefit of said company ; and especially if he had recognized them in the agreement before mentioned, or otherwise, as being contracts made by the agent of the company — the defendant swere bound by these contracts, without proof, other than had been offered, that the other members of the company had specially authorized and empowered the said Virgil to assent to these contracts.</p> <p>The jury were further instructed that, as it did not appear that any articles of copartnership were entered into between the said Virgil and his associates, and as the said Virgil was admitted to be the managing and active partner, the other associates not appearing to transact any of the business of the company, it might be presumed that his authority was unlimited with respect to the affairs of the company, and that therefore his doings and admissions would bind all the associates equally with him.</p> <p>If the Court should be of opinion that the said notes, or either of them, are not to be considered as the contracts of the defendants, or that the jury were erroneously charged in matter of law, the verdict which was returned for the plaintiff was to be set aside, and a new trial granted; otherwise, judgment was to be rendered upon the verdict.</p>

This was a writ of right, prosecuted by the demandants, to recover seisin of a messuage and tenement, with the land under and adjoining the same, situated in Boston, and described in the writ; and the demandants allege that Gibbs Atkins, their father, was seised thereof within forty years next before the date of their writ, and continued so seised until one Nathaniel Hickman, under whom the tenant claimed to hold, afterwards, on the 31st day of December, 1788, unjustly…

<p>Where the defendant, in an action for slander, pleads the general issue, and also, in justification, that the words spoken were true, the plaintiff need not prove the speaking of the words upon the trial of the general issue.</p> <p>Such plea in justification, if the defendant fails to establish it, is evidence that the words were spoken maliciously.</p>

<p>The facts in this case will appear in the following opinion of the Court, as pronounced by</p>

<p>Upon a bond given “ to prosecute a writ of error to effect, and to answer all damages and costs if he fail to make his plea good,” pursuant to the statute for establishing the judicial courts of the United States, if the Supreme Court of the United States dismiss the writ of error, and award to the defendant in error no damages or costs, the obligee has no remedy on the bond for his travel and expenses in relation to such writ of error.</p>

<p>Where one had endorsed certain promissory notes for the accommodation ot the makers, and before the notes were payable, apprehending the failure of the makers, had taken their note payable immediately for a greater sum than those he had endorsed, (which, in consideration thereof, he had undertaken to pay at maturity,) and commenced an action on the said note, attaching property of the promisors afterwards attached by bona fide creditors of the makers, whose debts were payable before the notes so by him endorsed, he was holden to be entitled to recover on his note, to the amount of the notes so endorsed by him.</p> <p>A check drawn in favor of one who had lent money to the drawer, on a bank where the drawer was known to have no funds, and which was not expected by him to be presented to the bank, was holden good evidence to support an action on the common money counts.</p>

Assumpsit for money had and received, money lent and accommodated, &c. The habits of business of these defendants are stated in the report of the preceding case.

<p>If a sheriff returns on an original writ that he has taken bail, and afterwards refuses to deliver the bond, — in an action of the case by the judgment creditor against the sheriff he shall not show, in mitigation of damages, that the original debtor was poor and unable to pay the debt</p>

<p>The case was thus: There were two tenants in common of a chattel, and the sheriff, upon an execution against one of them, seized the chattel and sold the whole of it, and paid over the whole money to the judgment creditor. The other part-owner of the chattel brought trespass against the sheriff; and it was holden that the action well lay.</p>

<p>Where a deed conveying land contains nothing touching the consideration or Uic payment of the purchase money; although the law will presume that payment was made, yet this presumption, being a species of evidence relating to matter of fact, and not arising from the construction of the deed, may be repelled by oral testimony.</p> <p>A paroi agreement for the conveyance of land is not absolutely void by the statute of frauds; but if any act has been done, in part execution of the agreement, which would not have been done but on account thereof, which was done with a view to the agreement, and which is prejudicial to the party doing it, the parties are not permitted to treat the agreement as a nullity.</p>

<p>A, being indebted to B, on a note void for usury, asks for further credit, which B was willing to give, provided he had other security. A proposes to furnish a new note, to be signed by C, who was endorser of the former note, payable to D, and endorsed by him in blank, — which was received by B, in exchange for the former note. In an action upon the last note, by E, as endorsee, against C, the promisor, there being no evidence tending to show that the plaintiff knew of the origin of tire note in suit, or that he was or was not a bond fide purchaser of it, t was holden that the note was void by the statute of usury.</p>

<p>This was a writ of dower unde nihil habei, wherein the said Susan demands her reasonable dower in certain lands and tenements, of which her husband was seised during the coverture — the said Abraham and others, the tenants, being the heirs at law of the deceased husband.</p> <p>Besides a plea in bar, which terminated in an issue of fact, the .enants set forth the following indenture, relying upon it as an estoppel to the demand made in the action, viz.: “ This indenture tripartite, made, &c., between Abraham Gibson, of, &c., of the first part, Susan Spurr, of, &c., of the second part, and Nathaniel Dana, of, Ac., of the third part, witnesseth: Whereas a marriage is intended to be shortly had and solemnized between the said A. G. and the said /S'. /S’.; and whereas, upon the treaty for the said marriage, it hath been agreed that the said A. G. shall, at his decease, cause to be paid unto the said S. S. the sum of 400 dollars per annum, in .lieu of all dower, or right of thirds, or other claim whatsoever, in and to the estate of the said A. G., either real, personal, or mixed; —■ which sum, or covenant for the same, the said S. S. accepts in lieu of said dower and thirds, or distributive part of the estate of the said A. G.: — Now, therefore, this is to certify what is before declared ; and the said A. G., in consideration of the premises, and of one dollar paid to him by the said N. D., doth hereby, foi him self, his heirs, &c., covenant to and with the said N. D., his heirs, &c., as trustee for the said S. S., that, in case said marriage shall be had and solemnized, as aforesaid, between the said A. G. and the said S. S., and the said S. iS. shall continue to be the lawful wife of the said A. G. during his life, and shall also survive the said A. G., the sum of 400 dollars shall be annually paid to the said iS'. S, in quarter-yearly payments. And the said S. S., for and in consideration of the premises, and of the sum of one dollar paid her by the said A. G., doth hereby covenant to and with the said A. G., his heirs, &c., * that, in case the said intended marriage shall be had and solemnized between the said S'. S', and the said A. G., she will not claim or demand from the estate of the said A. G., his heirs, &c., or either of them, any dower or thirds whatsoever, or any distributive part of, in, or to the same estate of the said A. G., his rights or property what soever, real, personal, or mixed, of which he is or may be seised or possessed, or entitled so to be. And the said S. S', doth hereby agree to accept, and doth accept and receive, the aforesaid covenant made by the said A. G. to the said N. D., for the annuity as afore said, in full satisfaction and recompense, and in lieu of all dowel, thirds, rights, or claims whatsoever, in and over the estate of the said A. G., real, personal, or mixed, as aforesaid, and doth consent and agree that this instrument is, and shall be, used and pleaded as a full bar and discharge to and from all claims of dower or thirds, as aforesaid, and all distributive part thereof, in and to the estate of the said A. G., saving the right to the annuity as aforesaid. And, moreover, the said A. G. doth, for the consideration aforesaid, and in manner as aforesaid, covenant with the said S'. S', that the aforesaid sum of 400 dollars shall be duly paid to her by the heirs or assigns of him, the said A. G., in manner as afore-stated and coy enanted by him with the said N. D., as aforesaid. And the said S. S. doth hereby, in consideration of the premises, covenant with the said N. D., trustee as aforesaid, that she will not make any claim or demand whatsoever on the estate of the said A. G. for dower, or thirds, or distributive part whatsoever, in consequence of said marriage, saving for the covenant of annuity, as aforesaid; and she doth renounce all other claim in and upon the estate of the said A. G., present or future. And the said N. D. doth accept the trust and covenant aforesaid ; and, in consideration of the premises, and of one dollar paid him by the said A. G., he doth, for himself, his heirs, &c., covenant and engage with the said A. G., his heirs, &c., that he will use and improve the aforesaid * covenants made to him by the said S. S. in the best manner that may be in his power, so as to exonerate the estate of the said A. G. from the claim of dower or thirds of the said & X to the estate of the said A. G.; and in like manner, he, the said N. D., doth covenant with the said S. S. that he will use and improve the aforesaid covenants made to him by the said A. G., for the said annuity, to her benefit, so as to secure the same in the best manner to her; provided, however, and it is to be understood and agreed, that the said N. D., his heirs, &c., shall not sustain any personal loss or injury, unless in case of wilful default after due notice and presentation of presents ; and that all costs, charges, and expenses, that shall be incurred by the said N. D., his heirs, &c., in enforcing the covenants aforesaid, shall be paid by the party applying for the same, and security shall be first given, if required. In witness whereof,” &c. And the tenants pray judgment whether the said Susan, against the form and effect of her covenant aforesaid, ought to be received and admitted to demand her dower of the endowment of the said A. G. in the said lands, &c.</p> <p>To this plea the demandant demurs, and the tenants join in demurrer.</p>

<p>This was a writ of entry, wherein the demandants claim possession -of certain real estate in Boston, of which their grandmother, Mary Lobb, died seised. It was admitted, upon the trial of the general issue, which was had before the chief justice at the last November term in this county, that the demandants were sole heirs at law of the said Mary, and that she died seised of the premises •demanded; unless she had, before her death, alienated the same to the tenant.</p> <p>To show this, the tenant produced in evidence three several .deeds, signed, sealed, delivered, and acknowledged, by the said Mary, and duly recorded, conveying the land demanded in this ■action to the tenant; all made after the will hereinafter mentioned.</p> <p>There being evidence of extreme old age, and habits of intoxication, in the supposed grantor, and of great inadequacy of consideration, the jury were instructed that, if they believed those deeds to have been obtained by imposition, misrepresentation, or by taking advantage of the imbecility of mind of the said Mary Lobb, they must return a verdict for demandants, notwithstanding her supposed conveyances, (a) A verdict was returned for the demandants.</p> <p>There was offered in evidence, by the tenant, an instrument pur porting to be the last will and testament of the said Mary Lobb, and approved and allowed as such, wherein she devises the demanded premises to one Francis Can pbdl Smithwick in fee, then a minor of the age of seven years; provided that the said Francis was not to come into possession, * occupy, or have any advantage of said estates, during his minority, except through his guardian, afterwards appointed. She then appoints the tenant to be guardian of the said Francis, until he shall attain the age of twenty-one years, if he shall so long live; directs the guardian to lease, occupy, and improve, the estates, and, from the rents and profits, to maintain and educate the said Francis; appoints the tenant executor, and provides, in case her personal estate shall be insufficient for the payment of her debts, that the executor shall be repaid all such sums as he may advance for that object, out of the first rents and profits which he may receive as guardian.</p> <p>The said instrument was rejected by the judge, in order that the jury might distinctly settle the question of fact, relative to the above-mentioned conveyances; it being contended, for the demandants, that the will was legally revoked by the said conveyances.</p> <p>If the Court should be of opinion that the tenant had lawful right to defend his possession, under the said will, in this action, the verdict was to be set aside, and the demandants to become nonsuit; otherwise, judgment was to be rendered for them upon the verdict.</p>

<p>The action was assumpsit by the plaintiff, who was the surviving partner of James Harrison, against the defendant, as administrator of the said Harrison; and had, at a former term, been submitted, by a rule of the Court, to certain referees, who, at March term, 1816, made a report of certain facts proved before them, submitting to the decision of the Court the law arising thereon.</p> <p>These facts were, in substance, as follows: The said Harrison, the defendant’s intestate, and the said Wilby, in the year 1807, entered into articles of copartnership under their hands and seals, a copy of which accompanied the report. The said copartnership was to continue 12 years from the 20th of March, 1807, unless sooner determined by the death of one of the parties, or by mutual consent. Harrison advanced 40,000 dollars, which constituted the joint stock. Once in every four years they were to take an account of their stock in trade, and make a division of the profits, which, after allowing H. the interest on the stock advanced by him, was to be divided in certain agreed proportions between the partners. Neither of them * were, without the consent of the other, to withdraw any thing from the stock, except for the necessary support of their families, nor beyond their respective shares of profits actually existing. H. was not bound to perform any part of the labor attending the concern, but might engage in other business at his discretion, and on his own account; and W. was to transact all the business of the company, and was to engage in no other business on his private account.</p> <p>The said parties, under said copartnership, were extensively engaged in trade until the death of Harrison, on the 20th of Jan uary, 1812. On account of the losses and embarrassments of the concern, the plaintiff, in March following, became unable to meet the demands against the company, and stopped payment The affairs of the concern were not wholly settled at the date of the report, there being many outstanding claims, for which the plaintiff, as surviving partner, was liable, and for which, also, the estate of the intestate was by law liable, and most of which had been'presented to the commissioners appointed, by the judge of probate for the county of Middlesex, to examine the claims against the estate of said H., the same having been represented insolvent, and there being debts due to the concern, which remained uncollected.</p> <p>It appeared, from an examination of the books of the concern, that, at the time of H.’s death, had all the debts due to the concern been good and recoverable, (including the sums charged and due from the said H. to the concern, in his individual capacity, and also including sums charged and due from “ Store at Marsh’s Point,” hereafter explained,) the concern would have been solvent, and there would have been a considerable balance in favor of the company. But the referees were of opinion that so large a proportion of the credits of the concern were bad, that the concern, at the death of JET., was and still' remained insolvent. It thus became impossible for the referees to settle and close the whole accounts of the co-partnership, and to ascertain what would, upon such settlement, be the ultimate state of # the concern, and the final proportion of gain or loss to the parties respectively, or for what sum either of them would be indebted to the other upon such final settlement. But there was an ostensible balance of 12,262 dollars 81 cents due from the estate of Harrison to the copartnership, resulting from charges and credits to him on the books of the company—the right of the plaintiff to recover which, as surviving partner, of the defendant, as administrator, the referees submit to the Court.</p> <p>During the existence of the copartnership, the said H. was concerned in trade with one Bennoch, in an establishment at Orono, in the county of Hancock, which establishment was known by the name of the Store at Marsh’s Point, in which the plaintiff had no part. H. &f W. had accounts open with, and made large advances to, said store; and, at the death of Harrison, there was due from said H. B. on account of said store, to said H. &¡- W., the sum ol 23,597 dollars 45 cents; out of which the said Bennoch had since paid the sum of 3713 dollars 51 cents, leaving a balance of 19,883 dollars 94 cents due from said Store at Marsh’s Point to the late firm of H. $f W. And if, in the opinion of the Court, the plaintiff, as surviving partner of II. Sf IV., has a right to recover the said sum asl mentioned of the defendant, in his capacity of administrator, the referees award the same accordingly.</p> <p>At the death of the said H., there was an ostensible balance of 14,197 dollars 25 cents, due from the plaintiff to the late company of H. IV., resulting from charges and credits to him in the partnership books; and if the Court should be of opinion that the said balance ought to be deducted from the sums before awarded to the plaintiff, the referees award accordingly.</p> <p>Although the affairs of said company were not settled and closed at the date of the report, the plaintiff had then collected divers sums of money, amounting to 67,680 dollars 23 cents, and had paid, in discharge of the debts pf the company, the sum of 72,844 dollars 78 cents, and had thus * settled the affairs of the company, as far as had been in his power; whereupon a balance appeared due to him of 5226 dollars 5 cents; and the referees submit to the Court his right to recover that sum of the defendant, administrator, as aforesaid.</p> <p>The referees are of opinion that the plaintiff is reasonably entitled to the sum of 2800 dollars, for his labors in settling the affairs of the company, since the death of his late partner; and if, in the opinion of the Court, he is entitled to recover in this action a compensation for those labors, they award him that sum.</p> <p>The defendant, since his appointment as administrator, had discharged debts due from the late firm to the amount of 9790 dollars, being debts which had been, during the life of his intestate, secured by mortgages upon his separate estate. If the Court should be of opinion that the defendant had a right to set off the sum so paid by him against the sums paid as aforesaid by the plaintiff, and before awarded to him, either to the full extent or any part thereof, the referees award such deduction and set-off to be made accordingly, and that the plaintiff recover the balance only of the sums awarded him, after the said deduction.</p> <p>The cause was argued, upon this report, at the last March term in this county, by Prescott, and Peabody for the plaintiff, and by Ward and Gorham for the defendant; and at this term the opinion of the Court was delivered by</p>

<p>An information in nature of a quo warranta does not lie against the managers of a lottery appointed by a corporation having the grant of such lottery.</p>

<p>How far one summoned as the trustee of an absconding debtor is. holden to disclose respecting the proceeds, or the rents and profits, of the real estate of the debtor in the possession of the supposed trustee.</p>

<p>This action was in case, for interrupting a right of way claimed by the plaintiff over the soil of the defendants ; and it was tried on the general issue, at the last November term in this county, before Jaclcson, J.</p> <p>The messuage, as appurtenant to which the right was demanded, was part of the estate of Thomas Savage, grandfather of the defendants, after whose death it was, on the 7th of March, 1765, divided from the residue, being assigned to his widow as her dower, and in the assignment was thus described ; “ measuring on Ann Street' twenty feet, and measuring in depth one hundred and forty feet, and the privilege of a passage-way for bringing in wood, with the rights, members, privileges, and appurtenances, to the same house belonging.”</p> <p>In July, 1780, partition was made among the heirs of the said Thomas, his widow still living, of such parts of his estate g.s were not assigned in dower ; and the locus in quo was set off to Habijah, father of the defendants. The reversion of all but Habijah’s part of the land held by the widow as her dower came, by several deeds, in 1796, to the * plaintiff’s husband, then tenant for years under the dowager, to which her estate was added in October, 1800.</p> <p>The interruption complained of was by the erection of a wooden shop, in 1792, upon the soil where the way was before used. The dowager died before this action was brought.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the Court whether, upon the foregoing facts, she had any right of action.</p>

<p>Assumpsit lies for the holder of prize tickets against the managers of a lottery although they have given a bond, of which all persons aggrieved by their doings were, by law, to have the benefit</p> <p>Where two persons had purchased tickets in a lottery severally, and had mutually agreed to pay to each other a moiety of tire prizes drawn by each; it was holden, that the purchaser of each ticket could maintain a several action against the managers, for the prize drawn against such ticket</p>

Case against the defendant, sheriff of the county of Middlesex, for the misfeasance of one of his deputies. The plaintiff sued out a writ of attachment against one Turner, endorsing thereon a direction to the officer to attach certain lumber in the ship-yard of the debtor; and the deputy made and returned the attachment accordingly.

Trespass quare clausum fregit, and for cutting timber on a tract of land, in Hiram, in the county of Oxford. On the general issue joined, trial was had at the last October term, before Thatcher, J. The plaintiffs proved the cutting of the trees on the land described, their title to which they derived as follows: In 1771, the government of this then province granted to one Benjamin Prescott a certain tract of land, which he caused to be surveyed, and upon which he entered.

<p>This action was debt on a judgment recovered in the year 1809. The defendant, in his plea in bar, admits a part of the debt to be due; and as to the residue, he sets forth a satisfaction by a levy on land then belonging to the debtor, averring seisin to have been delivered, and the execution with the doings thereon returned; and he makes a copy of *the execution and levy a part of his plea. The proceedings upon the execution appear to have been in all respects conformed to the requirements of the law; except that, although they were all had on the 28th of September, 1809,- they were not returned to the registry of deeds, to be recorded, until the 19th of June, 1810. The plain tiff demurs to this plea in bar, and the defendant joi as in demurrer</p>

<p>This was covenant broken, brought by the plaintiffs, as heirs of George Johnson, deceased, who was the assignee of the grantee of Joseph Libby, the defendant’s intestate. The gravamen alleged was the recovery of dower by the defendant, as the widow of the said Joseph, in the lands conveyed, in breach of the covenant of warranty contained in the grant of the said intestate.</p> <p>In the year 1801, the defendant was appointed administratrix of the estate of her said husband, gave bonds to the judge of probate and published notice thereof according to law. The estate was insolvent, and commissioners were appointed, who reported a list of claims; but the demand of the plaintiffs was not exhibited to the commissioners. In January, 1802, the defendant settled her administration account at the probate office, having before rendered an inventory of the whole personal estate of the deceased; and on that account a small balance was allowed to be due to her, and nothing more has since come to her hands.</p> <p>In the same year, 1801, the defendant sued her writ of dower against the said George, after whose death, viz., in May, 1804, she recovered judgment against the now plaintiffs, and a part of the premises conveyed by her husband was set off to her as her dower.</p> <p>The said Joseph Libby did not die seised or possessed of any real estate, nor had he fraudulently conveyed any, or been colorably or fraudulently disseised of any in his lifetime; nor did the defendant know that he died seised of any right in any real estate. But his heirs, within one year previous to the commencement of the present action, recovered judgment for a small parcel of real estate, of which the said Joseph had been disseised more than twenty years before his death. This estate has not been inventoried, or accounted for by the defendant, and the same was attached in this suit.</p> <p>* Upon these facts agreed by the parties, judgment was to be rendered, by default of the defendant or non-suit of the plaintiffs, as the opinion of the Court should be.</p>

<p>Assessors cannot lawfully add more than five per cent to the amount of any tax they are authorized to assess.</p> <p>To include in such addition the commissions for collecting, if exceeding five per cent., is illegal. '</p> <p>Assessors may not assess a highway tax as a money tax.</p> <p>If assessors issue warrants for several taxes, some of which are legal and others illegal, and deliver them to the same officer, and he seizes and sells divers chattels, when one would be sufficient to pay the legal taxes, they are liable for such seizure and selling, as trespassers.</p>

<p>The discovery of estate, of which one deceased insolvent died seised, or of which he was colorably or fraudulently disseised in his lifetime, with intent to defraud his creditors, and which the administrator does not administer, gives no right of action to the creditor who makes the discovery, and who has filed his clara: with the commissioners of insolvency.</p> <p>If the administrator refuses to administer such estate, the proper remedy for the creditor in such case is, by application to the judge of probate, to procure his removal and the appointment of another.</p>

<p>This was trespass quare clausum fregit. The soil and freehold of the defendant being traversed, a trial was had, at the last October term in this county, before Thatcher, J. The plaintiff and defendant were owners of adjoining tracts of land, and a dispute existed as to the dividing line between them. The plaintiff having produced in evidence an agreement, subscribed by him and the defendant, the object of which was that the line should be surveyed and run by three persons, whom they had selected for the purpose; and in which both agreed that the survey to be so made should be decisive; and having proved that the line was run accordingly, and that the locus in quo was within his close as determined by that line ; he claimed a verdict, upon the ground that this agreement, thus executed, was conclusive evidence that the close was his soil and freehold. The defendant, contending against the effect of the agreement, offered to prove facts which, if true, would show conclusively that the line, thus run, was improperly settled. This evidence being rejected by the judge, and a verdict found for the plaintiff, a new trial was moved for, on account of the said rejection.</p>

<p>Debt on a replevin bond, in the penalty of 50 dollars. The now plaintiff, who was defendant in the original suit, had judgment for a return of the goods replevied, which had been valued at 25 dollars, and for his damages, assessed at 7 dollars 49 cents, with costs taxed at 72 dollars 29 cents. The goods had not been returned, having been converted by Thurlo to his own use. The question was, for what sum judgment should be rendered in the present action ; the plaintiff claiming the value of his goods, the amount of his damages and costs, and interest on the whole from the rendition of the judgment ; and the defendant resisting so much of the claim as extended beyond the penalty of the bond and interest thereon.</p> <p>Fessenden, for the plaintiff, cited 1 Mass. Rep. 308, Harris vs. Clap 8f Al. — 2 Mass. Rep. 118, Pitts vs. Tilden &/■ Al. — 2 D. fy E. 388, Lonsdale &f Al. vs. Church. — 1 East, 436, M’ Clure vs. Dunkin. — 1 Powell on Contracts, 315. — 8 Mass. Rep. 145, Arnold vs. Bailey &f Al. —12 Mass. Rep. 409, Mattoon vs. Pearce &f Al.</p>

<p>This was a petition for partition. On a trial before Thatcher, J., it appeared that the petitioner’s title to the moiety of the premises described in his petition was under a lease for 900 years, and that the respondent was seised in fee of the other moiety. A verdict was returned for the petitioner, subject to the opinion of the Court, upon the right of his to maintain this process under the statute.</p>

<p>Merchandise was purchased upon a credit, through the false representations of the vendee; and after the delivery to him the same was attached by his creditors. It was held, that 111" vendor had not so parted with his property in the merchandise but that he ought reclaim it in the hands of the officer who had attached it.</p>

<p>Trover for a copper kettle. One Kellogg, in the year 1800, being seised in fee of a parcel of land in Bridgton, on which was a fulling-mill, mortgaged the same, without mentioning the appurtenances, to the plaintiffs in fee; and in 1815 the plaintiffs, by their agent, entered upon the mortgaged premises, in presence of two witnesses, of whom the defendant was one. The kettle in question was fixed in brick-work in the mill at the time of executing the mortgage, and was then, and for a long time after, used as a dye-kettle for dyeing cloth. When the plaintiffs took possession under their mortgage, the mill was in a dilapidated state, not having been used for some years previous; and the brick-work, in which the kettle was set, had in part fallen down. Soon afterwards Kellogg took the kettle out of the mill, and sold it to the defendant, he knowing it to be the same.</p>

The defendant was indicted, under the statute of 1784, c. 40, for an act of open and- gross lewdness; and was tried and convicted, at the last May term, in this county.

<p>Where a mariner engaged for a voyage, and it was stipulated that no officer or seaman should be entitled to any part of his wages until the arrival of the ship at her port of discharge in the United States, and her cargo delivered, —• the ship was lost on her passage to the United States: the mariner was hoi den entitled to his wages up to the last port of lading, and during half the time of her lying in such port</p>

<p>This was an indictment against the defendants for lewdly and lasciviously associating and cohabiting together, the said Margery being alleged to be the wife of Thomas Barbarick. At the trial, the Solicitor-General offered to prove the marriage by the testimony of a sister of the said Thomas. She testified that, about twelve years since, the said Thomas and Margery left the witness’s house for the declared purpose of going to the house of a clergyman, about two miles distant, in order to be by him joined in marriage ; that, after an absence sufficient for the purpose, they returned, declaring that they were married ; and that they lived together as man and wife, having several children, until a year since, when the husband was committed to the state prison. The jury having found the defendants guilty, a new trial was moved for, on account of the admission of the said evidence. And it was resolved by the whole Court, that the evidence was insufficient. It was not the best which the case admitted. If these persons were married, there must be better evidence of the fact. It could be proved by the record of the clergyman, or, at any rate, by the testimony of persons actually present. The verdict was accordingly set aside, (a)</p>

<p>This was a writ of dower, in which it was agreed that the demandant’s husband was seised, during the coverture, of the premises described in her writ, in fee, and in the year 1802 conveyed the same to the tenant; that, after the death of her said husband, viz., in May, 1816, she duly demanded her dower to be assigned to her, which the tenant refused to do; that the premises consist of two hundred acres of land, which were, at the time of'the said conveyance, wholly uncultivated, and covered with wood and timber, in which state they still remain, and the land is valuable only for the purpose of being cleared and cultivated.</p> <p>The cause was argued at the last June term in this county.</p>

Debt on a bond, dated the 25th of January, 1808, conditioned that the defendant should convey to the plaintiff a certain piece of land, on the plaintiff’s paying to the defendant a promissory note, of the same date with the bond, whereby the plaintiff promised to pay the defendant 216 dollars, in three years from the date, with interest. The defendant pleads in bar that the plaintiff has never paid the said described note.

This was a writ of entry, in which the said Nason demanded a certain pew in the meeting-house in the south parish of Augusta. His title was by virtue of an execution duly levied on the pew on the 22d of March, 1817. The tenant also claimed by virtue of another execution, levied on the 2d of January preceding.

This was a writ of entry sur disseisin, and was tried on the general issue at the last September term, in this county, before Wilde, J. The demandant claimed to hold the demanded premises under a conveyance from the administrators * of one John Woodman, dated June 18,1810.

This was an appeal from the Common Pleas, where an action had been pending three terms between these parties, and, the writ neing lost, that court had directed the clerk to record the action as a misentry. Gilbreth, who was defendant in the action, filed a motion for costs, which being overruled, he appealed to this Court, and now prayed to be allowed his costs.

This was a writ of entry, wherein the demandant declared on his own seisin within thirty years, and on a disseisin done to him by the tenant. It was agreed that the demandant was seised, as set forth in his writ, unless his estate had been lawfully transferred to the tenant, who claimed to hold the demanded premises by virtue of a judgment, and an execution issued thereon, against the demandant.

<p>The judge of probate may allow to the widow of an intestate the wno.e of the personal estate, unless the amount be so great as to make the allowance extravagant</p> <p>And, m such case, the charges of administration may be deducted from the proceeds of the real estate sold, by order of court, for the payment of the intestate’s debts.</p>

Assumpsit for money had and received. The action was submitted to the opinion of the Court on the following facts agreed bt the parties • — In September, 1812, the plaintiff, with Robert Foster and William Godfrey, were justly indebted to the defendant and one Howe in a large sum of money, which was secured by the promissory note of the plaintiff and the said Robert and William; and, on the 15th of that month, the defendant received from the plaintiff 120 dollars, to be…

The defendant was indicted for a rape. After the cause was committed to the jury, they remained together through the night • and, in the morning, being sent for into Court, stated to the Court that one of their number was of opinion that, if suitable resistance had been used, the crime could not have been committed; and that, on this ground, he was fully resolved never to join his brethren in a verdict of guilty.

<p>This was an indictment, founded on the statute of 1813, c. 144, made “ for the preservation of fish in Penobscot River and Bay, and the several streams emptying into the same,” and was found at the Circuit Court of Common Pleas for the county of Penobscot. It charges the defendants, all being named as inhabitants of Orrington, in the said county, that, on the 2d of June, 1817, before sunrise of the same day, at said Orrington, in and by a certain net or wear, between the banks of Penobscot River, they unlawfully caught thirty alewives; whereby a forfeiture has accrued, one half to a fishwarden af Bangor, appointed by the selectmen of that town, he being the complainant, and the other to the town of Orrington.</p> <p>The cause came up by appeal, and was submitted to the deter mination of this Court on a statement of facts; by which it was agreed that, if the said statute should be construed to regulate the taking of fish in the town of Orrington, and if the fishwardens of the town of Bangor have thereby an authority to enforce the provisions of the said act in Orrington, in this prosecution the defendants should be called on their recognizance. But if, in the opinion of the Court, the fishery in Orrington was to be considered as exclusively regulated by the statute of 1806, c. 33, the attorney for the commonwealth agreed to enter a nol. pros.</p>

<p>Assumpsit on a promissory note, dated February 16, 1810, payable on demand. The action was commenced on the 1st day of November, 1817. The defendant pleaded the statute of limitations, on which issue was joined. Upon the trial of this issue, before the Circuit Court of Common Pleas for this circuit, it appeared that, on the 1st of November, 1811, a payment was made and endorsed on the note; and the plaintiffs relied on this, as sufficient to maintain the issue on their part.</p> <p>The cause was entered in this Court, according to the provisions of the statute of 1817, c. 185, with a bill of exceptions containing the facts stated above.</p>

The plaintiff was formerly the wife of the defendant, and was divorced, a vinculo, in 1814, for the cause of adultery committed by the husband.

The original action, to reverse the judgment in which this writ of error was brought, was trespass against the said Kingman and others, assessors of the north parish of Bridgewater, for assessing a parish tax on the plaintiff Cobh, who was an inhabitant of Abington. The assessors having succeeded in their defence in the Court of Common Pleas, the plaintiff brings this writ of error to reverse the judgment of the court below.

This was an action of the case against the defendant, sheriff of the county of Bristol, for the neglect of William Gordon, one of his deputies; and it was submitted to the determination of the Court upon certain facts agreed by the parties.

Assumpsit for the support of Susannah Tisdale, a pauper, deriving her settlement from her father, Abraham Tisdale. The said Abraham was bom in Taunton, in June, 1745, and, when seventeen or eighteen years of age, he went to Plymouth to work. On the 7th of November, 1765, he was married in Plymouth, having been duly published, his father consenting to the marriage, and he being then twenty years and four months old.

Trover for 30 bushels of corn and 500 lbs. of corn-stalks. At the trial on the general issue, in the Circuit Court of Common Pleas, the evidence was, that the corn and stalks were standing and growing on the plaintiff’s land, and that the defendant cut and carried them away at one and the same time; and a verdict being returned for the plaintiff, under the direction of the court, exceptions were filed by the defendant, and the cause came up to this Court under the provisions…

<p>A swine, when killed, is protected from attachment and execution by the statute of 1805, c. 100.</p>

Assumpsit for money had and received. The action was submitted to the determination of the Court, on certain facts agreed by the parties. The plaintiff, in the year 1808, recovered a judgment against James Thacher and Nathan Hayward, for 8383 dollars, and levied his execution, on the 27th of October, in the same year, upon an individual moiety of a furnace and its appurtenances, that being the share or purparty of the said judgment debtors therein.

This was a writ of entry, in which the demandant counted upon his own seisin, and upon a disseisin by the tenants, of a certain piece of land in Pittsfield, in this county. The cause was tried on the general.issue, before Jackson, J. It appeared on the trial that, in the year 1807, one Joseph Goodtoin, senior, the father of the demandant, caused the demanded premises to be purchased by one Elkanah Watson.

<p>Where an infant made a mortgage of hie land, and, after coming of age, conveyed the same land subject to the mortgage, this second deed was holden to confirm and make good the mortgage.</p>

Assumpsit by the endorsee of two promissory notes against the maker. One dated June 28, 1809, for 150 dollars, payable to Marvin Jewell, or order, in sixty-one days, with grace, at the Northampton Bank, endorsed to John Stevenson, or order, and by him to the plaintiff on the 15th of March, 1813. The other note was for 210 dollars, dated May 10, 1810, by Damon to the said Stevenson, or order, payable in one year, and on the 15th of March, 1813, endorsed to the plaintiff.

<p>Where the thirty days, during which property attached on mesne process is held subject to execution, expire on Sunday, the lien created by the attachmer' does not continue through the next day.</p>

The defendant was indicted, at the last May term of this Court, at Greenfield, in the county of Franklin, as a common barrator.

'This was a writ of scire facias against the defendant, as bail of one .Joel’ Clark. The plaintiff, in his writ, makes all the necessary allegations; reciting the return, upon the execution, of a deputy sheriff of the county of Hampden, of which Clark was an inhabitant, that he had made diligent search, and could find neither the body, nor any property, of Clark, the judgment debtor.

This was a writ of entry by the said Warden, as assignee of a mortgage made by the said Adams to one John Earle.

<p>One who is non compos mentis, not having estate sufficient to give him a settlement in virtue thereof, follows the settlement of his father, as well after he comes to age as before.</p>

Thf defendants were indicted for that they, on the 18th of November, 1816, with force and arms, at Sutton, in the county of Worcester, “in and upon the public road and common highway there, unlawfully and injuriously did erect, build, and put up, a number of wooden sheds and buildings, one hundred feet in length and sixteen feet in breadth; and the same sheds and buildings, so as aforesaid erected, built, and put up, in the public road and common highway there, as aforesaid,…

Trover for eighty yards of cotton cloth. The case was mus. Messrs. Slater 8f Co. had delivered a quantity of yarn to the plaintiffs, upon an agreement that they should procure it to be woven into cloth, for which Slater &f Co. were to allow the plaintiffs a commission. One Benson had received the yarn of the plaintiffs to weave it for an agreed price, which the plaintiffs were to pay him in goods from their store.

<p>In an action for a malicious prosecution for an offence, a conviction of the plaintiff, of such offence, before a justice of the peace having jurisdiction, is conclu sive evidence of probable cause; although, upon appeal from the justice, the plaintiff was acquitted.</p>

<p>In the trial of an action, upon a promise to a feme sole, brought by her husband and herself after marriage, it is not competent for the defendant to prove the illegality of the marriage; such matter being wholly in abatement</p>

<p>Replevin of a pair of oxen, and other cattle, attached by the defendant, a constable, on an original writ against one Stephen Witt. The defendant pleaded property in Witt, traversed the property of Brooks, and avowed for a return. The plaintiff replied property in himself, upon which issue was joined.</p> <p>Upon the trial of this issue before Putnam, J., it appeared in evidence that Witt, during the years 1816 and 1817, lived on a farm owned by the plaintiff, who had leased the same to Witt for those years, making a distinct lease for each year, commencing on the 1st of April. A few days before the attachment by the defendant, viz., on the 14th of April, 1817, Witt gave to the plaintiff a bill of sale of the cattle, and made a delivery of them on the farm, in payment of a part of the rent for the preceding year, and of the whole for the year then ensuing, except the sum of three dollars, for which Witt gave his note to the plaintiff. Witt and the plaintiff then agreed that Witt should have the oxen, to carry on the work of the farm that year, for which he was to support them free of expense to the plaintiff; and it was further agreed that the plaintiff might work the oxen when Witt had no occasion to work them on the farm himself. It was further agreed that Witt should pasture the other cattle for the plaintiff, for which he was to pay the customary price. The cattle were in the possession of Witt, after the sale, in pursuance of said agreement, until they were attached as aforesaid.</p> <p>It was likewise proved that Witt, at the time of the sale to the plaintiff, was the owner, and in actual possession, of the cattle, of a part of which he had been the owner, and in the continued possession, for a long time before the sale, and that the plaintiff had never had the property or possession thereof before the sale.</p> <p>The judge charged the jury that, if they were satisfied that the cattle were sold and delivered in the manner and * for the consideration stated, the circumstance of Witt’s retaining the possession of them, for the purpose of pasturing them,, and of the plaintiff’s permitting him to use the oxen, would not be conclusive evidence of fraud, so as to avoid the sale as to creditors, but was one of the circumstances which was proper to be submitted to the jury, as tending to prove the sale fraudulent as to them; and that if, upon considering the whole evidence, they should believe the sale to have been bona fide, and for a good con sideration, and not made with a view to defraud creditors, their verdict should be for the plaintiff. And a verdict being so returned, the defendant filed his exceptions to the said opinion of the judge.</p>

<p>Where a new town was created of parts of several towns, and it was provided that the new town should support all such persons as before had been, then were, or thereafter might be, inhabitants of those parts of the former towns then incorporated into such new town, and were or might become chargeable, and who had not a settlement elsewhere, — it was holden that the new town was not chargeable with the support of paupers who, at the time of the incorporation, were supported by one of the old towns upon the territory forming part of the new town, but whose settlement was derived from owning and occupying real estate in another part of the old town.</p> <p>Towns furnishing supplies to paupers belonging to other towns may generally recover what they have bond fide paid; but if the charges are extravagant or exorbitant, they are bound to attempt to remove the paupers, or to give notice of the expense to the town eventually chargeable.</p>

Assumpsit for the support of Thomas Cook, a pauper said by the plaintiffs to be legally settled in Franklin. At the trial before Putnam, J., it was in evidence that Cornelius Cook, the father of the pauper, resided in that part of Wrentham which is now Franklin more than a year before April, 1767, having removed thither in the year 1755.

Assumpsit for the expense of supporting certain paupers, alleged by the plaintiffs to have their legal settlement in Sterling.

Assumpsit for the support of Abigail Glazier, and her six children.

The original action was assumpsit for the support of the minor children of one Daniel Stone, alleged by the plaintiffs to have their legal settlement in Boylston.

This was a writ of entry, in which the said Sarah counted upon a mortgage in fee of the demanded premises, lying in the town of Dana, made on the 11th of July, 1804, by one Aaron Haven to her husband, Manasseh Wilder, whom she had survived, and to herself, as joint-tenants, and upon a disseisin by the said Whittemore.

Debt on a bond, conditioned for the faithful administration of the estate of Israel Turner, who had executed a former bond to the plaintiff, in his said capacity, as surety for an executor who had proved the will of his testator and received testamentary letters from the plaintiff.

<p>This was an action of covenant broken, upon an indenture made by and between the plaintiffs and the defendants on the 10th of June, 1816, by which the plaintiffs demised to the defendants certain buildings and mill privileges, with tools and machinery in the buildings, for the manufacture of woollen cloths, for the term of three years from the date of the indenture, “ yielding and paying therefor the rent of 275 dollars annually during the term aforesaid.” The breach was alleged in the non-payment of one year’s rent, due on the 10th of June, 1817.</p> <p>The defendants pleaded, in bar, that, before the making of the indenture, the plaintiffs had mortgaged all the demised premises, excepting the tools and machinery, to one Edmund * Cushing, to secure the payment of their promissory note to him; and that on the 2d of November, 1816, the said note being then due and unpaid, Cushing entered for the condition broken, and evicted the defendants. The same facts were pleaded in a second plea, in bar of damages, except for a ratable and meet sum for the rent of the tools and machinery ; and in a third plea, in bar of damages for the rent of that part of the demised premises which had been mortgaged, for any time after the 2d of November, 1816. The plaintiffs demurred to each of these pleas ; and the defendants joined in demurrer.</p>

<p>Assumpsit on a promissory note made by the defendant, payable to Robert Vose or order, and by him endorsed to the plaintiff.</p> <p>The action was submitted to the determination of the Court, upon the following facts agreed by the parties. The defendant made the note declared on, in consideration of the labor and services of the said Robert Vose, who then was, and yet continues, under the age of twenty-one years. He endorsed the same in blank, for a valúa ble consideration, to one Jacob Bacon; and this latter, for a like consideration, transferred it by delivery to the plaintiff, who, as well as the said Bacon, then knew the said Fose to be under age. The defendant, since the said endorsement, and after notice of it, paid the amount due by the note to Reuben Vose, father of the said Robert, taking from him the following * receipt or discharge, viz.: “ Received of A. M. Withington fifty-one dollars, in full payment for a note and interest given to my son Robert by him, Feb. 22, 1817.—Reuben Vose. — Milton, Feb. 28, 1818.”</p> <p>The parties agreed that judgment should be rendered, upon the default of the defendant, or the nonsuit of the plaintiff, as the opinion of the Court should be upon the foregoing facts.</p>

This was an action against the defendant, as sheriff of the county of Plymouth, for the escape of one Jotham Dunfey, a prisoner on execution, at the suit of the plaintiff; and it was referred to the decision of the Court, on the following facts: — The said Jotham, being committed, on execution in favor of the plaintiff, for 15 dollars debt, 3 dollars 53 cents costs, 25 cents for the execution, and 3 dollars for the fees of commitment, gave a bond, with a surety approved by…

<p>When one is imprisoned for dangerously wounding another, so that his life is m danger, he is to be kept in prison, without bail, until it shall probably appear that the danger is over.</p>

<p>A widow of one having an equity of redemption may have dower, in the lands mortgaged, against any except the mortgagee and those claiming under him.</p>

The original action.was trespass on the case, against the said Finegan, for suffering the spouts of a house, owned by him in Boston, in the county of Suffolk, to be so leaky and out of repair, from April, 1810, to June, 1816, that the rain-water, from one declivity of the roof, during that space of * time, fell upon an adjoining curtilage possessed by the said Sumner.

<p>Assumpsit for the support of one Venus Whittemore, ninety-eight weeks, at one dollar fifty cents per week.</p> <p>At the trial, which was had upon the general issue, at the sittings here, after the last October term, before Putnam, J., the plaintiff proved that the said Venus was ninety years old, and that she was formerly the slave of Samuel * Whittemore, deceased, who was an inhabitant of Cambridge; that her settlement was in Cambridge, and that she liad been supported by the plaintiff.</p> <p>The plaintiff also proved, by two of the overseers of the town of Cambridge, that she had applied to them to take care of and support the said Venus, about two years and a half before this action was commenced ; and that they refused to do so, after conferring upon the matter at their board.</p> <p>The defendants contended that a written notice ought to have been given by the plaintiff to the inhabitants, and that paroi testimony of such notice should not have been admitted.</p> <p>The defendants proved that the administrator of the said Whittemore, in the year 1793, disposed of the said Venus at auction, to William Watson, of Cambridge, now deceased ; who gave to the said administrator a bond, in the penal sum of £200, conditioned to provide for the support and maintenance of the said Venus, in raiment and diet, and both.in sickness and health, in a comfortable manner, and at her death, to cause her to be decently buried, free of expense to the heirs of the said Whittemore; and to save them harmless from all costs, charges, and expenses, to arise on account thereof. They also proved that the said Venus was present at the said auction, and refused to go into the family of one of the bidders ; that, in consequence of said refusal, the auction was suspended for some time; that said Watson, after the auction, said he had undertaken to support said Venus during her life ; and that he did support her during his life. And the defendants contended that this evidence was sufficient to prove that the said Watson had undertaken to support the said Venus; that she had a right to recover the money, necessary for that purpose, of the administrator of the estate of said Watson; and so, that the said Venus was not a pauper.</p> <p>The plaintiff objected to the admission of the testimony produced by the defendants. And the judge instructed the *jury, that the paroi evidence, given as aforesaid, was admissible ; and that the evidence adduced by the defendants was not admissible to prove that the said Venus had any estate ; and that they were to consider her as a pauper, and to inquire as to the amount which the plaintiff ought to recover.</p> <p>The jury gave a verdict for the plaintiff, for 147 dollars. But if, in the opinion of the whole Court, the direction of the judge was wrong, the verdict was to be set aside, and the plaintiff to become nonsuit. Otherwise, judgment was to be rendered on the verdict.</p>

<p>The provision of the provincial act of 4 Will Sf Mar., for the settlement and dis tribution of the estates of intestates, that “if any of the children happen to die before he or she come of age, or be married, the portion of such child deceased shall be equally divided among the survivors,” extends to estates descended from the mother, as well as to those derived from the father.</p> <p>Where, on the death of an intestate, a portion of his estate was assigned to a married daughter, she paying a sum of money, for owelty of partition, to the other heirs, and such sum was paid by her husband, such payment created no resulting trust to him, in the estate so assigned to his wife.</p> <p>If te nant by courtesy make improvements on the lands held by him, he is not entitled, under the statute of 1807, c. 74, to an allowance for the increased value of the premises, by virtue of the buildings and improvements made by him.</p>

<p>When a town has settled a minister, an action will lie for his salary against the town, notwithstanding there may be several unincorporated religious societies or associations within the town, the members of which may be exempted by law from contributing to the support of such minister.</p> <p>Of ecclesiastical councils, their authority, and the persons by whom they may be convened.</p>

This was a writ of entry, in which the demandants counted upon their seisin in fee, in right of said Elizabeth, and upon a disseisin by the tenant within thirty years. Trial was had upon the general issue by writ of review, before Putnam, J., at the last March term, at Concord, in this county.

This was an appeal from a decree of the judge of probate for this county, disallowing the second account of the appellant, of his administration of the estate of Martha Skinner, deceased, whose executor he is. The account consisted, besides one principal charge hereafter mentioned, of a number of charges, in support of which no evidence was offered to the judge below, nor to this Court upon the appeal.

<p>A chattel was attached on mesne process instituted for a demand justly due; but, by means of the defendant’s filing his demands as a set-off in the action, he recovered a balance due him, with costs. A third person, claiming under a sale from the original defendant, replevied the chattel from the attaching officer, pending the suit It was holden that the officer might avoid the sale as fraudulent, in the replevin suit; although, after the judgment in the original action, the purchaser might have a right to the chattel as against him, he having no execution to levy upon the property.</p>

Assumpsit. The writ was tested the 18th of November, i816, and a partial service was made upon it on the 20th of the same month.

<p>This was a special action of the case, wherein the plaintiffs declared that they were owners of certain mills in Natick, on the north side of Charles River, and had a right to all the water of that river, except so much thereof as they had granted to the defendants for twenty-one years from the 8th of June, 1814, by a lease of that date; and complaining that the defendants had diverted more water than they had a right to take, by virtue of that lease, for a time stated.</p> <p>The privilege granted to the defendants was that of “ drawing water from the plaintiffs’ dam, to turn water-wheels for their works, as they want, and as will run through gateways amounting to five square feet of surface; except when the quantity of water is so small as not to be sufficient to carry the (plaintiffs’) grist-mill, and a cotton factory which may be erected with not more than 5000 spindles.”</p> <p>Trial was had upon the general issue, before Putnam, J.t at the sittings here after the last October term. It was proved that, at the date of the lease, the plaintiffs had a grist-mill with two run of stories, a saw-mill, and a mill for carrying one carding machine ; and they afterwards built a paper-mill. But no cotton factory had been built.</p> <p>Upon the whole evidence in the case, the judge instructed the jury that, if they believed that the defendants had, at any time, taken more water than would run through gateways equal to five square feet of surface, they should find their verdict for the plaintiffs ; that, however, their verdict must be for nominal damages only, if there was more water at such time in the river than the plaintiffs wanted to use; but for the real damage, if there was a deficiency of water. The jury were also directed to find a verdict for the plaintiffs if, from the whole evidence, they believed that the * defendants had drawn even five feet of water, or any part of it, when there was a deficiency of water for the grist-mill, and of a water-power sufficient to drive 5000 spindles; unless such deficiency was occasioned by the plaintiffs’ having taken a greater quantity of water to drive their mills (other than their gristmill) than would have been sufficient to drive 5000 spindles.</p> <p>The jury found a verdict for the plaintiffs, for real damages. But if the direction was wrong, 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 a special action of the case, brought to recover damages against the defendant, fat negligence, as an attorney, with respect to a demand of the plaintiff against one Thom,as Peck, placed in the defendant’s hands by the plaintiff for collection.

<p>Where a purchaser would rescind the contract, and entitle himself to recover back the consideration paid by him, he must place the vendor in the same situation he was in before the sale.</p>

<p>The plaintiff having, November term, 1816, of this Court, recov ered judgment against the defendant as executor of Francis Wyman, deceased, brings this writ of scire facias, to have execution of the said judgment against the defendant de bonis propriis, upon a suggestion of waste, &c.</p> <p>The defendant pleads, in bar of execution, that, before the suing out of the scire facias, viz., on, &c., he was duly appointed administrator of the goods and estate of the said Francis; that the said estate was insolvent; and sets forth the proceedings thereupon, to the decree of insolvency and distribution; averring that he has conformed to the directions of the statute, and has fully administered the estate of the deceased, so far as the same had come to his hands or knowledge ; and traversing the waste.</p> <p>The plaintiff replies that the said Nehemiah, as executor of his own wrong,after the death of the said Francis, *and before the commencement of the original action, viz., on, &c., by fraud and covin intermeddled with, carried out of the said county of Essex, embezzled, and converted to his own use, the goods and chattels of the said Francis, to the value of the sums for which the plaintiff’s-judgment was rendered, and that the said original action against the defendant, as executor, was commenced long before he was appointed administrator, &c., viz., on, &c.</p> <p>To this replication the defendant demurs, and the plaintiff joins in demurrer.</p>

This was a writ of entry sur disseisin, and was submitted to the decision of the Court upon the following statement of facts agreed by the parties: — Some time previous to the year 1801, Adam Wellman died seised of an undivided moiety of a parcel of land, as tenant in common with his mother Mercy Wellman, and the same lawfully descended to Rebecca PVood,, his only heir at law.

<p>Assumpsit against the said Gore and Joseph D. Grafton, upon a promissory note purporting to be made by the said Gore 8f Grafton, payable to Thomas Cushing, or order, in four months from the date, with grace, dated the 18th of November, 1816, for the sum of 1085 dollars 78 cents, and to have been endorsed by said Cushing in blank. The declaration contained several counts on the note, ana also the general money counts.</p> <p>It was agreed by the parties that the said Gore fy Grafton were the» partners in trade as shopkeepers, doing business in Boston under the firm of Gore 8f Grafton, and that Thomas Cushing was a merchant in trade in said Boston, of good credit, who had often before endorsed negotiable paper for the firm of Bacons 8f Grafton, which company * was dissolved shortly before the commencement of said copartnership of Gore fy Grafton, and of which the said Grafton was, but the said Gore was not, a member.</p> <p>The note declared on was made by the said Grafton, and signed by him in the name of the firm ; and he, without the leave or knowledge of Cushing, and with the intent to defraud any person who should become the holder of said note, by giving to the same the credit of the said Cushing’s name, put the name of the said Cushing upon the back thereof, in imitation of his signature, and handed the same to one Sumner, a broker, for the purpose of getting it discounted as the note of Gore &f Grafton, endorsed by Cushing, with out disclosing to Sumner that the note was not endorsed by Cushing himself.</p> <p>Sumner sold the note to the plaintiff as the note of Gore fy Grafton, endorsed by Cushing, believing it to be such ; without stating to the plaintiff who gave .him the note, or making any particular explanation in regard to it; nor did the plaintiff know how, for what purpose, or for whose account, the note was in the hands of Sumner; but only that he acted as a broker in the business. And the plaintiff purchased the same, upon the credit of the names of the promisors and supposed endorser, at a discount of one per cent, per month, being the rate at which good commercial paper was then passed on the exchange. The money received therefor by the broker was by him paid over to said Grafton. Many notes of the said Bacons 8f Grafton had been in the market, some months previous to this time, with the real endorsement of Cushing.</p> <p>Many other notes of the like description were made by said Grafton, about the same time, and delivered to brokers to be discounted, of which the plaintiff was wholly ignorant. The said Grafton absconded on the 18th of January, 1817, and has since remained out of the commonwealth, or has concealed himself.</p> <p>There was no evidence, but the note itself, that the defendant Gore had knowledge of the making, or of the * fraudulent endorsement thereof; and he does not admit that the note is evidence to this purpose.</p> <p>If in any form of declaring upon the note, or any of the money counts, the plaintiff was entitled to recover upon the foregoing facts, the defendants were to be defaulted, and judgment entered accordingly ; if not, the plaintiff was to become nonsuit.</p> <p>The cause was argued at the last March term by Gorham and Peabody for the plaintiff, and by Prescott and Gallison for the defendant Gore, the other defendant having never entered an appearance. in England, where a survey was had, the cargo unladen and warehoused, and the ship taken into dock to be repaired. She was again ready for sea on the 15th of March, 1817, and on the next day sailed from Plymouth for Philadelphia ; where she arrived on the 30th of April following, and delivered her cargo in good order The net freight earned was 1028 dollars; being the same amount which would have been earned if the ship had not met with any disaster, — and the defendants do not admit that the valuation in the policy is conclusive on them, as to the amount, if any, to be recovered in this action.</p>

<p>This was assumpsit on a policy of insurance, whereby the defendants became assurers for 2000 dollars on the ship General Knox and appurtenances, and 3000 dollars on her freight, “ at and from Amsterdam to Philadelphia,” valuing the freight at 3000 dollars, and the ship at 7000 dollars.</p> <p>The parties agreed to submit the action to the opinion of the Court, upon the following facts ; to be considered as a case stated by the judge who sat in the trial, a verdict having been returned for the plaintiffs. The defendants made the policy declared on, and the plaintiffs were sole owners of the ship and freight. The ship, with goods on board belonging to the plaintiffs and others, sailed from Amsterdam for Philadelphia on the 3d day of November, 1816, and from the Texel on the 22d day of the same month. She prosecuted her voyage until the 17th of December following, when the damage she had sustained from tempestuous weather made it necessary to seek a port to refit. Accordingly on that day the master bore away, and on the 27th of the same month arrived at Plymouth,</p> <p>*On the 12th of March, 1817, the plaintiffs offered an abandonment of ship and freight, so far as insured by the defendants. The abandonment, as to the freight, was refused by the defendants; but they accepted that as to the ship, and paid to the plaintiffs 2000 dollars for a total loss thereon; for which a receipt was given by the plaintiffs, in the following words : — “ Boston, May 12, 1817. Received of the Gloucester Marine Insurance Company 2000 dollars, in full for a total loss on two sevenths of the ship General Knox and appurtenances, insured at their office by policy No. 607; which sum is admitted to be received without prejudice to our claim for a total loss on the freight, insured by the said company in the same policy, abandoned at the same time; which abandonment they did not accept.”</p> <p>The expenses of repairing said ship in Plymouth, not including therein any charges which were settled in the general average, amounted to £825 9s. 6d. sterling; and the value of the said ship, on her arrival at Philadelphia, did not exceed 3500 dollars.</p> <p>On the 28th of April, 1817, the defendants authorized the plaintiffs, in writing, as the agents of all concerned, to act and direct in the unlading of the cargo, receiving the freight money, paying wages and provisions, assessing and collecting general average, &c., the same as if no abandonment had been made ; and they agreed that it should not operate, either for or against the abandonment.</p> <p>The plaintiffs, acting under this authority, received the above-mentioned amount of freight, and adjusted the general average arising from the putting into Plymouth.</p> <p>If, upon the above facts, the Court should be of opinion that the plaintiffs have not a right to recover, the verdict was to be set aside, and the plaintiffs to become nonsuit; otherwise, judgment was to be rendered on the verdict, for such sum as the Court should find to be due to the plaintiff.</p>

<p>trespass for an assault and battery: the defendant justifies that, as master of a ship, he moderately chastised tire plaintiff, who was a mariner on board the same ship, for disobedience of orders, and avers it to be the same beating, &e. The plaintiff replies de injuria sua proprio, &c., on which issue is joined. It was liolden that it was competent for the plaintiff under this issue, to prove that the beating was excessive, and out of all proportion to the oflence coinmitteu and that it was not necessary to reply such matter specially.</p>

This was an action of assumpsit; and while on trial before the jury, the question arose whether this Court had jurisdiction of the suit. In order to have this question settled by the whole Court, the parties agreed on the following statement of facts: —

This was an action of replevin, in which the plaintiff declares upon a taking by the defendant on the 20th of August, 1818, and on a detainer at the time of suing out the writ, which is tested and was executed on that day.

<p>Trespass for an assault and battery. The declaration describes a most aggravated beating, wounding, and imprisonment. The defendant pleads the general issue, which is joined; and also, in justification, that he, at the time when, &c., was master of a ship, and as such master, had the inspection and management of the ship, and the government, direction, and superintendence, of the mariners on board ; that the plaintiff was a mariner on board the ship ; and that, just before the time when, &c., he, in violation of his duty, unfaithfully, disobediently, insolently, and riotously, behaved himself, and assaulted, beat, bruised, and wounded, the defendant; whereupon he, the defendant, as well to compel the plaintiff to perform his duty, as for his said disobedient and riotous behavior, gave him moderate and due correction, as he lawfully might, &c. The plaintiff replies de injuria suá proprio, &c., on which issue is also joined</p> <p>These issues were tried before the Chief Justice, at the last No vember term in this county; when it appeared that the act complained of was done on board a ship then lying in Norfolk Sound, on the north-west coast of America. The circumstances were detailed in several depositions which came up in the case, and were referred to in the judge’s report of the trial. The evidence tended to show that, on the day before the punishment was inflicted, which was the beating complained of in the present action, there was a tumult on board the vessel, the defendant being on shore ; that he, being informed of it., came on board the vessel and proceeded to quell the tumult by force; in doing which he was resisted by some of the seamen, among whom was the * plaintiff; and that the defendant received a blow on the face, •vhich he supposed was given by the plaintiff. The evidence on the part of the defendant also tended to show that he had a tooth knocked out in the affray; and a witness swore that he saw the plaintiff in the act of striking the defendant.</p> <p>It was, however, denied by the plaintiff that he struck or otherwise abused the defendant; and the testimony on his side went to prove that he did not interfere except to prevent the defendant from striking one of the seamen with a heavy club, which he was in the act of doing.</p> <p>The beating complained of in this action took place on the next morning. Two witnesses testified that the defendant then caused the plaintiff to be stripped to his naked back, and tied up to the shrouds by his hands, and in that position gave him eighty-four lashes with his utmost power, by which his back was much lacerated ; and the witnesses related other circumstances of cruelty and severity.</p> <p>The jury were instructed that the master of a ship had a lawful right to quell any disturbance by force, and that he had also a right to punish for disobedience; but that he could not justify or be excused for any unnecessary cruelty or barbarity in the punishment; and that, if they believed the punishment in this case was cruel and vindictive, they ought to find a verdict for the plaintiff although it was proved that he had rendered himself liable to punishment. It was observed to them, also, that, if they believed that the plaintiff had struck the defendant, and beat out his tooth, the punishment might be more severe than ordinary misconduct would justify ; and in the course of the charge, it was observed that it might be doubted whether the kind of punishment inflicted in this case was justifiable, it having been inflicted the day after the offence took place, and when no disorder or insubordination existed on board the vessel In the opinion of the judge, the jury were probably influenced by this remark in the assessment of damages.</p> <p>* The jury having returned a verdict for the plaintiff, and assessed his damages at 700 dollars, the defendant moved for a new trial, on account of excessive damages, and of misdirection by the judge.</p>

Case against the defendant, as owner of the schooner Margaret, for not delivering to the plaintiff one hundred barrels of flour received on board the said schooner by the defendant, at Philadelphia, and which he undertook to deliver to the plaintiff at New York, the dangers of the seas only excepted.

This was assumpsit by the plaintiff, as administrator de bonis non of Thomas Russell, deceased, intestate. The declaration contained several counts. 1. Insimul computassent between the defendant and the said Russell, on 16th of February, 1790, and a promise to pay the balance found due ; 2.

Assumpsit on the warranty of a horse, which died soon after it was purchased. The question, at the trial before Parker, C. J., was, whether the disease of which the horse died existed before the sale, or was acquired afterwards; and the Chief Justice stated that the fact was rendered very doubtful by the testimony.

Case against the defendant, for having taken insufficient bail, in an action instituted by the plaintiff against one Clark. At the triai before Parker, C. J., it was in evidence that Bell had arrested Clark, and taken one surety only on the bail bond. He returned on the original writ that he had taken bail, and on the execution, which issued on the judgment, he returned non est inventus.

<p>This was assumpsit by the plaintiff as endorsee, against the defendant as endorser, of a promissory note dated the 26th of November, 1814, payable in sixty days with grace. Trial upon the general issue at the last November term.</p> <p>The note was lodged in the State Bank for collection. The plaintiff, being called upon to prove a demand upon Peter Dicker-man, the maker of the note, and reasonable notice to the defendant as endorser, stated that the messenger of the bank, who had delivered the usual printed notice, was dead, and proved his death.</p> <p>He then proved by the cashier of said bank that, pursuant to the regulations of the bank, the said messenger had kept a book, in which he entered his doings with respect to notices to promisors and endorsers of notes belonging to the bank, or left there for collection. The by-laws of the bank made it part of his duty to keep such a book, and to take an oath faithfully to perform his duty, which was administered. A book was produced at the trial, which the cashier testified was the book kept, for the purpose aforesaid, by the deceased messenger. In (hat book were entries of the names of promisors and endorsers on promissory notes, and certain figures and memoranda, which the cashier testified were in the hand-writing of the deceased messenger, and were the minutes made by him of his doings with respect to such notes. Objection was made to the admission of the book' in evidence, which objection was overruled; and the jury were instructed, if they were satisfied, from the entries and memoranda, that demand had *been made and notice given, in the present case, on the day when the note became due, they might find their verdict for the plaintiff. There was a further objection to the admission of the messenger’s book, founded upon the evidence that the messenger was under obligation to the bank, by a stipulation that he would faithfully perform his duty. It was suggested that, for this cause, he was interested, and could not be a witness, if alive ; and that, for the same reason, his book could not be admitted. A verdict was returned for the plaintiff; and if the said evidence ought not to have been admitted, the verdict was to be set aside, and the plaintiff to be nonsuit; otherwise,judgment was to be rendered on the verdict.</p>

Assumpsit on the following writing, viz.: — “ Boston, October 1, 1812. “ For value received, I promise to pay the bearer hereof, six months after date, nine hundred and eighty dollars, provided the ship Mary arrives at a European port of discharge, free from capture and condemnation by the British. “ Samuel Ruggles.” At the trial before Jackson, J.., at the sittings here, after the last March term, it appeared that the said promise was made to one W. S. Skinner, the…

This was an action of assumpsit on a bill of exchange, accepted by the defendant. The facts in the case, as agreed by the parties, were as follows •.

<p>A constable is not competent to serve a summons, issuing upon a libel filed for a divorce.</p>

<p>This was an action of trover, by the plaintiff, as administrator of the goods and estate of Leonard Jarvis, for. the value of one hundred and fifty thousand acres of Mississippi scrip; and it was tried before the Chief Jus tice, November term, 1817 ; and a verdict being returned for the plaintiff, the defendant moved for a new trial, under the following circumstances : —</p> <p>It appeared in evidence that Joseph Russell, some time previous to his decease, which was in November, 1810, delivered to one Marston, a broker, a note of hand, for the sum of 1000 dollars, signed by the name of Jeffrey &f Russell, as a firm, of which the said Russell was a copartner; which note was payable to the said Marston, or order, and was endorsed by him, without recourse to him as endorser. The said Russell also delivered to said Marston fifteen Georgia scrip or certificates for a trust estate of one hundred and fifty thousand acres of land in the New England Mississippi Land Company; which certificates were signed by certain trustees, of whom the said Leonard Jarvis was one, purporting that the said Jarvis was entitled to the trust or benefit as proprietor of said quantity of land, and that his interest therein was transferable by endorsement of his name thereon; and the said certificates were so endorsed.</p> <p>* Marston, at the request of Russell, sold the said note to the defendant, Rogers, and delivered him the said certificates, as collateral security, for which Rogers gave Marston his receipt.</p> <p>After the death of Russell, Marston informed Joseph Otis, agent of Sarah Russell, executrix of the last will of the said Joseph Russell, of the said deposit or pledge ; and Otis, at the request of the said executrix, redeemed the said pledge, by giving to Rogers a promissory note, payable in six months with interest, signed by said Otis, and Patrick Jeffrey, the surviving partner of said Russell; at which time, Rogers delivered to Otis the former note of Jeffrey Russell, and gave Otis his receipt, February 8, 1811, purporting that if the said new note was not paid when due, the said certificates should be sold, and any surplus from the sale, beyond the sum due on the note, should be paid to Otis. At the same time, Rogers’s receipt to Marston was cancelled.</p> <p>In November, 1811, the said note being unpaid, and the certificates not sold by Rogers, Otis tendered to him the amount due on the note, and demanded the certificates; which Rogers refused to deliver, in consequence of a suit by Jarvis then pending against him for the recovery of the said certificates; which suit was, at the March term of this Court, A. D. 1816, decided against said Jarvis, for this reason, among others, that Jarvis had not tendered to Rogers the sum due on said note. [Vide 13 Mass. Rep. 105.]</p> <p>Immediately after the said suit was terminated, a tender was made by said Jarvis to Rogers of the sum due on the note, and the certificates were demanded, which Rogers refused to deliver, in consequence of the suit of Otis against him, founded on the said receipt, and still pending in this Court; whereupon the plaintiff commenced this action.</p> <p>At the trial, the plaintiff represented to the jury, and proved by the testimony of Benjamin Jarvis, that said certificates were never the property of Russell, and were delivered to him only for safe keeping; and that they were redeemed in April, 1802, or shortly before, by Russell, at the * request of Leonard Jarvis, the plaintiff’s intestate, and with funds belonging to him, from the hands of one Murdoch, to whom they had been pledged by said Jarvis ; whereupon the jury gave their verdict for the plaintiff, for the full value of said scrip, without any deduction for the sum due on said note ; because it appeared that the estates of said Jeffrey Russeñ, although duly represented insolvent, had become able to pay the debts due from them.</p> <p>It also appeared in evidence that the said Leonard Jarvis, deceased, in the year 1800, was indebted by sundry negotiable notes to one James Greenleaf, or order, and by him endorsed in blank, which were in the possession of Russell, for account of the said firm of Jeffrey &f Russell, and John Coffin Jones, who were indebted to the Union Bank in Boston. And the said Jarvis, by an absolute deed, dated in December, 1800, conveyed to the said Union Bank, in fee, at the request of the said Jeffrey, Russell, and Jones, a township of land in the District of Maine. And the said Jeffrey, Russell, and Jones, by their bond dated in the month of April following, engaged to said Jarvis that, if he paid the sum of 22,000 dollars, and all interest, to said bank in four years, the said bank should release to him the said lands.</p> <p>It was also in evidence, by the deposition of the said Jones, produced by the plaintiff, that the above sum was the amount of said notes, and that said deed was intended as security for the payment thereof. No part of said notes was ever paid by Jarvis, and the land, which was held by said bank for the use of said Jeffrey, Russell, and Jones, and for their security, is not now, though supposed at the time to be, equal in value to the amount due on said notes which were in the hands of Russell at his decease. The land has since been sold for the benefit and by the order of the said Jeffrey, Russell, and Jones.</p> <p>After the trial of the present action, and at the same term, the above action of Joseph Otis against Rogers was tried, and the said Otis produced to'the jury a paper, signed * by the said Leonard Jarvis, purporting that he had borrowed and received of said Russell the sum of 500 dollars, to be repaid on receiving from Russell his Georgia scrip, without mentioning the quantity thereof. This was dated October 23, 1802. Otis also produced a letter from said Jarvis, dated December 15, 1801, purporting that his scrip in the hands of said Murdoch was for one hundred and thirty thousand acres, which is the same scrip mentioned, in the deposition of Benjamin Jarvis, as having been redeemed by Russell. He also produced another letter from said Jarvis to Russell, dated July 5, 1804, which referred to said deed as security for the said notes endorsed by Greenleaf, as aforesaid, for account of said Jeffrey, Russell, and Jones; all which papers were not discovered by Otis until after the trial of the action of trover by Jarvis against Rogers.</p> <p>Upon all which facts the said Rogers contended that, as said scrip was certainly pledged to Russell by Leonard Jarvis, and was by law a security to him, not only for the said sum of 500 dollars, but. also for the said notes of said Jarvis, neither of which had been paid, — the said Sarah, as executrix, had a lawful right to redeem said scrip from said Rogers in manner aforesaid ; and that the property therein was, by means of said transaction, invested in the said Sarah, or in the said Otis, so as to enable him to maintain his said action ; and he had accordingly recovered a verdict against said Rogers for the value of the scrip; thus exposing him, who is only a stakeholder, to pay twice for the same thing.</p> <p>In Jarvis’s action, the said Otis assisted Rogers in means of defence, but was not a party on record. The estate of Leonard Jarvis is deeply insolvent, and so represented in the probate office.</p> <p>In the action of Otis vs. Rogers, the jury were instructed that the plaintiff had no right in law to recover; because, the said Russell having no right to pledge the scrip for a debt of his own, the estate of Jarvis had a right to the value of the same from Rogers, there having been tendered to * him the amount of his demand against the said Jeffrey 8f Russell, for which the scrip was pledged to him; and that the said Otis, as representative of said Russell, could not recover of Rogers, for the purpose, of setting off any demand that Russell’s estate might have against the estate of Jarvis. The verdict was, therefore, contrary to the direction of the judge in matter of law. And in the action of Jarvis, Adm., vs. Rogers, the judge instructed the jury, upon the evidence before stated, that the plaintiff had a right to recover the full value of the scrip, without any deduction on account of the money due on the note of said Jeffrey &f Russell; it being admitted that the estate of said Jeffrey was fully sufficient to pay said debt.</p> <p>The cause was argued at the last March term in this county, by G. Sullivan for the plaintiff, and by Hubbard and Ritchie for the defendant; and now, at this term, the justices delivered their opinions seriatim.</p>

<p>The declaration was in assumpsit, and contained three counts. The first charged the defendants, merchants of Baltimore, in the state of Maryland, as acceptors of a bill of exchange for 2250 dollars, drawn on them by the plaintiff, a merchant of Boston. The second was on another bill for 2119 dollars 19 cents, drawn and accepted as the first. Both bills were alleged to be drawn on the 10th of July, 1816, and accepted on the same day. The third count was for 5000 dollars, had and received by the defendants for the use of the plaintiffs. The action was commenced on the 21st of December, 1816.</p> <p>The defendants, besides the general issue, which is joined, plead, in discharge of their persons, estate, and effects, save and except any property, if any there be, acquired or to be acquired by them, after the 1st day of March, 1817, by gift or descent, or, in their own right respectively, by bequest, devise, or in any course of distribution, actio non; — because, for more than two years before the day last mentioned, they have been, and still are, inhabitants of the state of Maryland, residing in Baltimore. The plea then recites the contents of sundry laws of said state for the relief of insolvent debtors; by which it is provided that, on the application of any person, having resided in the state two years, to the County Court, offering to deliver up to the use of his creditors, respectively, all his property, (necessary wearing apparel and bedding excepted,) and accompanying such application with a schedule of his property, and a list of his creditors, and certain proceedings had thereon, * amongst which is the execution and acknowledgment of a deed to a trustee, appointed by the court, conveying to him all his property, real, personal, and mixed, and all debts, rights, and claims, — it should be lawful for the said court to discharge such person from all debts, covenants, contracts, promises, &c., due from him in his individual capacity, as well as in copartnership, at the time of his application; provided that any property which he should acquire thereafter, “ by gift, descent, or, in his own right, by bequest, devise, or in any course of distribution, should be liable to the payment of said debts.” The plea then sets forth an application by the defendants to the Baltimore County Court, on the said 1st day of March, 1817, for the benefit of the said laws, certain proceedings had thereon, and a judgment of the said court, that they should be discharged from all debts, &c., due or contracted before the said day, with the exception above mentioned as to property afterwards acquired by them ; and the plea concludes with an averment, that the causes of action mentioned in the plaintiffs declaration, if any, accrued, and the promises therein mentioned were made, if at all, before the said 1st day of March, 1817, within the state of Maryland, and were, by the terms thereof, to be performed within that state, and not in this commonwealth or elsewhere. This plea begins and ends with praying judgment, if the plaintiff ought to have and maintain his action, to recover against the persons of the defendants, or against any of their estate or effects; save and except such as may come to them after the said 1st day of March, 1817, by devise, descent, or in course of distribution, &c. (a)</p> <p>The plaintiff replies precludi non from having execution against the persons, estates, and effects, of the defendants, averring that, on the 21st of December, 1816, and ever since, the said Moses Poor, and Charlotte, his wife, were and still are seised in fee, in right of said Charlotte, of two certain messuages, and land, in Boston, describing them, which came to them by the devise of one Mary White, and * that they had issue, to whom the right of the same would descend in the event of the said Charlotte’s decease; and that he, the plaintiff, on the said 21st of December, 1816, caused the same to be attached on the original writ in this action, to satisfy the judgment which he may obtain therein, which attachment is still in force; and that, by one of the laws referred to in the plea of the defendants, it is provided that no person should have any benefit of said act, who should not, within one month from the appointment of a trustee, execute a deed for all his estate; and that the said Moses did not, within the month, &c., by any deed duly executed and recorded, in the manner directed by the laws of this commonwealth, convey the said messuages, &c., to the trustee, &c.</p> <p>To this replication the defendants demur generally, and the demurrer is joined by the plaintiff.</p> <p>There is also a third plea in bar, like that aforecited, with the additional averment that, since the said 1st of March, 1817, the defendants have not, nor has either of them, acquired any property by gift or descent, or in his own right by bequest, devise, or in any course of distribution, &c.; and it begins and ends, in the common form of a plea in bar, by praying judgment of the action generally.</p> <p>To this last plea the plaintiff demurs, and shows, for cause, that it begins and concludes in bar of the said action, but the matters therein pleaded and set forth are not in bar of the action, but only in discharge of the persons and effects of the defendants, save only any effects acquired or to be acquired by them by gift, &c.</p> <p>The defendants join the demurrer.</p>

Assumpsit by the master against the owners of a vessel, for his wages and port pay during a voyage from the United States to the Cape of Good Hope, and elsewhere.

This was assumpsit, to recover the balance of the plaintiff’s account for moneys advanced and paid by him for the use of the defendants; who pleaded certain laws of the state of Maryland, for the relief of insolvent debtors, in bar of the action; and the issue was, whether the cause of action accrued in Baltimore, in that state.

Case for a total loss upon a policy of insurance, underwritten by the defendant for 200 dollars, upon the schooner Trinidad, and cargo, from Newport to Havana, with Spanish consular papers.

<p>Assumpsit on a policy of insurance, “ on property on board the Swedish brig Sophia, from Hayti to her port of discharge in the United States; ” the plaintiffs declaring for a total loss, by capture and condemnation by the British.</p> <p>At the trial of the action before the Chief Justice, the jury found specially, “ that the brig Sophia, mentioned in the policy declared on, was, at the time the policy was made, and at the time of the capture alleged, regularly documented as a Swedish vessel"; but that she was, in point of fact, at the said time, the property of American citizens, and was so documented to avoid capture by the British; that it was generally understood by underwriters, and particularly by the defendants in this case, that American vessels were frequently documented as Swedish, and that such vessels were insured as Swedish vessels; and it was known to the defendants, when they subscribed the policy, that the vessel mentioned in the declaration was so circumstanced.” Upon these facts, the jury returned a verdict for the plaintiff.</p> <p>The Chief Justice stated that it was proved, at the trial, that property belonging to the plaintiff was on board a brig Sophia, owned and documented as appears in the verdict; and that the vessel, as well as the said property, was condemned in a British court of vice-admiralty, as enemies’ property, or otherwise liable to capture and condemnation.</p> <p>The defendant contended that no proof could be received, to con tradict the decree of condemnation ; which being overruled, evidence was given, tending to show that the brig belonged to subjects of the king of Sweden, and that she had papers suitable for a vessel of that nation. To this the defendant opposed testimony that the brig, in fact, belonged to merchants of Boston, citizens of the United States. This evidence was objected to by the plaintiff, on * the ground that paroi evidence ought not to be received to contradict the written documentary title. This also was overruled ; and the verdict was returned upon all the evidence offered. If, in the opinion of the whole Court, the evidence was rightfully received, and the action was well maintained upon the facts found in the verdict, respecting the property in the vessel, and the knowledge of the parties, judgment was to be entered thereon ; but if, for any cause, the verdict ought to be set aside, a new trial was to be granted, or a nonsuit entered, according to the direction of the Court.</p>

<p>Assumpsit on a writing in the following words and figures, viz..</p> <p> </p> <p>The said paper was a common printed check on the Union Bank; the word Union being cancelled.</p> <p>*The declaration contained a special count, as upon a promissory note, subscribed by the defendant, for 100 dollars, payable to No. 100 or bearer, and averring that the plaintiff, for a valuable consideration, became the bearer, that the defendant had notice, and in consideration thereof promised, &c. The common money counts were also added.</p> <p>It was agreed by the parties, that the defendant subscribed the said paper; and that, if the plaintiff could legally offer it in evidence to the jury, on the trial of the general issue, on any one count in his declaration ; and if he would be entitled to a verdict and judgment thereon, without proving that he gave a valuable consideration for the same, or that he had any title to it, excepting that he had the same in his possession, it not having been presented to an.y one, — the defendant should be defaulted, and the plaintiff have judgment for 100 dollars, and interest from the purchase of his writ; otherwise, the plaintiff should be nonsuit, with costs for the defendant.</p>

<p>This was an action of ejectment, to recover the possession of certain real estate in Boston; and it was submitted to the decision of the Court upon the following facts agreed by the parties: —</p> <p>The demanded premises were a part of the real estate of which John Gray died seised; being the mansion-house, and land adjoining, in Summer Street, Boston, and the whole of his real estate in the county of Suffolk. By his last will he devised his real estate as follows: “ I give, bequeath, and devise, to my dear and beloved wife, Mary, one third part of all my real estate, for and during her natural life ; she keeping and maintaining the same in good repair.” And afterwards: “ It is my will, also, that my said wife occupy and enjoy, free of rent and charge, the dwelling-house fronting on Summer Street, in said Boston, being the same I now live in, during the minority of my son herein named, if she so long remain unmarried.”</p> <p>The widow of the said Gray, being in possession of the premises, although her dower in the estate of her said husband was never assigned to her, afterwards married Benjamin Parsons, Esq., who thereupon entered into the premises in her right. On the 7th of January, 1812, the said Parsons and his wife, by an indenture of that date, leased the premises to Israel Thorndike, Esq., for a gross sum then or before paid, except the payment of the rent of one cent annually, to hold for the term of four years and nine months from the 1st day of the same January. On the 21st day of the same January, the said Parsons, by indenture, leased the said premises to the plaintiff Chapman, for a consideration then or before wholly paid in the manner stated in the lease, to hold, from the determination of the said lease to Thorndike, * until John H. Gray, the son of the said John Gray, deceased, should be twenty-one years of age; which will be on the 17th of August, 1823.</p> <p>On the 26th of December, 1813, the defendant Gray, having a demand against the said Parsons, attached the premises, the following being the return of the officer, viz.: “ I attached all the right, title, and interest, and right to the rents and profits, of the within-named Benjamin Parsons, in and to all that real estate, situate in Boston, and bounded,” &c., describing the said premises.</p> <p>On the 8th of March, 1816, the lease from Parsons to the plaintiff was recorded.</p> <p>The action of Gray against Parsons was entered at the Court ol Common Pleas, and at the first term thereof the said Parsons was defaulted, and the action, on motion of said Gray. was continued from term to term, until the October term of said Court, in the year 1816, at which term judgment was rendered in the said action.</p> <p>The lease to Thorndike expiring on the 1st of October, 1816, the plaintiff Chapman then entered into possession of the premises, and the said Thorndike took a lease of them from him.</p> <p>On the 29th of October, 1816, the said Gray levied his execution against the said Parsons upon the premises; on which execution the officer, after stating the appointment of the appraisers, sets out at large, that “certain real estate, consisting of lands and tenements situate on Summer Street in said Boston, having been shown to the appraisers, by said Gray, as the property of said Parsons, and which said Parsons is entitled to hold and enjoy as the property of his wife, Mao-y, as follows, viz., one third part thereof as tenant in common with one John H. Gray, and his heirs, from and after the 17th day of August, 1823, during the joint lives of the said Parsons and his wife, and the whole of said estate until the said 17th of August, 1823, provided the said Parsons and his wife should so long live ;</p> <p>and which said lands and tenements are described as follows, *viz.,” (then describing them by metes and bounds correctly,) “ and they, the said appraisers, have set out o'ie undivided moiety of all the right, title, and interest, of said. Benjamin Parsons to the real estate above described, to the said B illiam Gray, his heirs and assigns; which they have appraised at the sum of 3524 dollars, in full satisfaction of this execution and all fees; — wherefore I have, on this 29th day of October, A. D. 1816, levied and extended the said judgment and execution on the land and premises appraised and set out as aforesaid, and have delivered seisin and possession of the same to the said William Gray, in full satisfaction and discharge of said execution and all fees; to have and to hold all the said lands and premises, appraised and set off as aforesaid, to him, the said William Gray, his heirs and assigns, to his and their use and behoof, so long, and in as full and ample manner, as the said Parsons would have been entitled thereto and I do return this execution fully satisfied.” And there was a receipt of the same date, on said execution, by the said Gray, of seisin, &c.; which said return has been duly recorded according to law.</p> <p>During the terms of the aforesaid leases, no annual rents or profits were receivable by said Parsons from the lessees, except in manner aforesaid.</p> <p>If, upon this statement of facts, the Court should be of opinion that the plaintiff is entitled to recover in this action, the defendant was to be defaulted, and judgment was to be rendered for the plaintiff, for possession of the demanded premises, and costs. But if the Court should be of opinion that the title of the defendant to said moiety is good against the plaintiff, then the plaintiff was to become nonsuit, and the defendant to recover his costs. And if the Court should be of opinion that the said levy is in part void, a nonsuit or default was to be entered, and such judgment rendered thereon as the law requires; the defendant not waiving any objection to the form of action.</p>

<p>No act of the legislature can alter the nature and legal effect of an existing contract, to the prejudice of either party ; nor give to such a contract a judicial construction which shall be binding on the parties or the courts of law.</p>

<p>Assumpsit on a negotiable promissory note, dated the 25th of July, 1811, made by Thomas Huse, the defendant’s testator, payable, in three months from the date, to Obadiah Huse, and by him endorsed to the plaintiffs.</p> <p>The estate of the said testator had been represented insolvent, and the commissioners appointed by the judge of probate had allowed the claim of the plaintiffs on the note upon which this action. was brought. The defendant objected to the allowance, and gave notice, on the 3d of June, 1818, of his dissatisfaction, according to the directions of the statute for the Distribution of Insolvent Estates. (1) The then next Court of Common Pleas, in the county of Suffolk, where the parties dwelt, was held on the 7th of July, 1818 and the writ in this action was sued out on the 27th of June, 1818, and returnable at the September term following. These facts were pleaded, in bar, by the defendant; and the plaintiffs replied that, after the notice was given to them, they commenced this action “ as speedily as the same could be done.” The defendant demurred to the replication, and the plaintiffs joined in demurrer.</p> <p>The defendant also pleaded the statute of limitations (2) in bar. The plaintiffs replied that the defendant’s testator died within six years after the cause of action accrued, viz., on the 1st of October, 1816 ; and then set forth the representation of insolvency of his estate, the proceedings before the commissioners, the objection and notice by the defendant on the 3d of June, 1818 ; and averred that they commenced this action as speedily as it could be done aftei the notice. The defendant rejoined, that letters testamentary were granted to him on the 4th of June, 1816; that he gave public notice, &.c.; that the plaintiffs exhibited their said * claim to the commissioners on the 28th of February, 1818, and not before, which was after the expiration of the six years; that the defendant gave notice to the plaintiffs of his objection to their said claim on the 18th of May, and on the 3d of June, 1818, which was within two years after he had so undertaken the trust of executor; and after the expiration of the two years, viz., on the 27th of June, 1818, the plaintiffs commenced this action. The plaintiffs demurred to this rejoinder of the de fendant, who joined in the demurrer.</p> <p>There was much argument on the form of pleading; but the main question, that was argued on the demurrer to the replication to the first plea in bar, was on the construction of the statute of 1784, c. 2, for the distribution of insolvent estates; whether the action must be brought, at all events, at the next court to which a writ could be made returnable, or whether any circumstances, which could exist, would excuse the delay of the creditor beyond that term.</p>

<p>This was an action to recover the penalty prescribed, by law, (1) for taking usurious interest.</p> <p>Trial upon the general issue before the Chief Justice at the last November term.</p> <p>. The evidence in support of the action came principally from the testimony of one Kettell, a broker, who testified that a note, made by W. B. Simpson, January 15, 1817, for 800 dollars, payable in 60 days, and grace, to Daniel Pomeroy, and endorsed by him and Thomas Holt, was put into his hands by the said Simpson to sell in the market; that he sold it to the defendant at a discount of two per cent, per month; that when the note became due, viz., on the 19th of March, another note was made and endorsed by the same parties, for 600 dollars ; another, May 21st, for 500 dollars ; another, July 24 th, for 450 dollars; that all these notes were given to him by the said W. B. Simpson, to sell as before stated, and were all successively sold to the defendant Warren at the same rate of discount ; and that when the last-described note became due, a new note for 400 dollars, with the same promisor and endorsers, was made and delivered to him in the same manner, and for the same purpose; that he offered this last note to several persons, who were in the practice of buying notes, the defendant beingvthen absent from home; but not being able to sell it, he pledged this, with another note, for 1200 dollars, to a broker of whom he borrowed 450 dollars, to take up the said note for that sum, which was theui due; and that upon the defendant’s return he sold to him the said note for 400 dollars, at the same rate of discount as before men tioned.</p> <p>The several notes before described were lodged in one of the banks for collection; and it appeared, from the testimony of an officer of the bank, that they were paid as they became due, except the last-mentioned one.</p> <p>The said Kettell further testified that no funds were furnished by said Simpson, the promisor, to pay the notes as they became due, except the difference between the note * that had become due and the note given him to sell; but that he, the broker, knowing, from the defendant’s course of business, that he would not buy the new notes until the preceding one was paid, advanced the money to pay the notes, borrowing it for that purpose, without any request or knowledge of the said W B. Simpson; the said Kettell having heard the defendant, on other like occasions, state that he wished to break the chain of communication between notes. He also testified that he was directed to offer the said notes to the defendant, but was not restricted to him in the sale; and that, with respect to the last-mentioned note, it was given him by Simpson for the purpose of paying, with the proceeds, the preceding note for 450 dollars; that he was directed to apply to the defendant, but was at liberty to sell it to any one else; and that he offered it to the defendant, after his return, who took it at the rate of discount before mentioned. The witness had never communicated to the defendant for whose use the note was sold, or who was to receive the money; nor was there any intercourse, to his knowledge, between the said Simpson and the defendant, or between the witness and the defendant, relative to the renewal of the notes.</p> <p>Thomas Molt, the second endorser upon the note, testified that, on the day the note for 450 dollars became due, it lying over in the bank, the defendant called on him to inquire why it was not paid. The witness told him that the money was due from Simpson, and that he, Simpson, would pay it by renewing the note, and paying a part of the sum due. The defendant said he should like to have it paid; but the witness told him it could not be paid except in the manner he had stated. He had called upon the witness once or twice before, and the witness understood him to agree that the note should be renewed ; although he said that he should rather not renew it, as it had been renewed long enough.</p> <p>The defendant Warren brought his action against Pomeroy, as endorser of the last-mentioned note for 400 dollars; * and he failed of recovering, on the ground that the note was given on a usurious contract, the foregoing testimony of Kettell being all the evidence given at the trial of that action.</p> <p>The jury were instructed that, as the action was upon a statute which created a great penalty for the offence of usury, they ought to be fully satisfied that the offence was proved, before they charged the defendant with the penalty ; that, taking the testimony of Kettell alone, no usury was proved, because he did not testify of any corrupt bargain, as set forth in the declaration, nor of any loan, but of the purchase of the note; and although there might be grounds to suspect the transaction was different from the representation of .,e witness, yet that they could not supply any defect in testimony by conjecture. They were further told that, if they were satisfied that the appearance of a sale was resorted to for the purpose of covering a usurious loan, they were to disregard the appearance ; and they were referred to the testimony of Holt, and were directed that, if they believed that the defendant, when he took the last note, did in fact reloan the money before lent to Simpson, it might be considered as a usurious loan.</p> <p>The verdict was returned for the defendant; and a new trial was moved for, on the ground that the verdict was against the evidence in the case.</p>

<p>Where, in a new town, a Congregational minister was settled as the minister of the town, and, after his death, another minister of the same denomination was settled, this latter was held to succeed to all the rights of the former minister, and to be entitled to possession of the ministerial lands of the town; although a majority of the town were then of other denominations or persuasions.</p>

<p>This was a writ of entry sur disseisin, in which the said Walling-ford demands seisin and possession of three thirteenth parts, and one third and one fourth of a thirteenth part, of a certain tract of land described in his writ, and counts upon his own seisin, and a disseisin by the said Hearl, within thirty years before the date of the writ.</p> <p>At the trial, which was had at Alfred, October term, 1817, before Wilde, J., the demandant proved that his grandfather, in the year 1770, was seised of the demanded premises in his demesne as of fee, and died so seised. Whereupon his estate was divided among his heirs, and on such division the demanded premises were assigned to his widow, as her dower; and she entered and took possession, and- the demandant became entitled, partly by descent and partly by purchase, to the reversion of the same. The said dowager died in the year 1810; and the demandant, in 1811, entered into the demanded premises, and took possession of the same.</p> <p>The tenant proved that his grandfather entered into the demanded premises nearly forty years since; and that, for more than thirty years' before the entry by the demandant, the tenant’s said grandfather, his father, and he, the said tenant, had been in the quiet possession of the same, claiming to hold it in their own right; and that the same, during the whole time aforesaid, had been enclosed within fences.</p> <p>On this evidence, the tenant contended that such possession was sufficient to bar the present action, and that the demandant, in the •year 1811, had no right of entry. But the judge instructed the jury that the said possession, by the tenant and his ancestors, did not bar the right of entry by the reversioner, after the termination .of the life estate; and they accordingly returned a verdict for the demandant. If the said direction to the jury was substantially correct, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside, and a new trial had.</p>

<p>Scire facias lies against one adjudged trustee, or his executor or administrator, notwithstanding the death of the principal after j'udgment against him; unless his estate be represented insolvent</p> <p>But it does not lie, in any case, until an execution has issued, and has been returned unsatisfied.</p>

The defendant was summoned, by the name of “ John Lowe, of, &c., trader, and surviving administrator of the goods and estate which were of Simeon Fernald, late of, &c., deceased,” to answer to the plaintiff, judge of probate for the county of York, in a plea of debt, for that the said John Lowe, with other persons named, and who have since deceased, on, &c., at, &c., by their bond of tho date, sealed with their seals, and in Court to be produced, bounc themselves to Edward…

<p>Assumpsit for labor in repairing the sails of the sloop Messenger. Trial on the general issue, before Thatcher, J. The following facts were in evidence: —</p> <p>On the 7th of June, 1815, the defendants advanced about 10,000 dollars to Samuel &f Seward Porter, who gave their promissory note therefor, and, as collateral security, gave a bill of sale of a ship then at sea, and also of the said sloop, then lying at Boston. On the same day the defendants gave said Porters a writing not under seal, acknowledging the receipt of said bills of sale, as collateral security for the debt aforesaid, and promising to reconvey said vessels on payment of the sum advanced, and interest. On the same * day the defendants took out a new certíficate of enrolment in their own names, and marked her of Boston, their place of residence, instead of Portland, where the Porters had their home. But they never took possession of the vessel, nor received any of her earnings, nor had any care or manage ment of her, or any concern in manning, victualling, or employing her— the said sloop remaining in the possession and under the entire control of said Porters, and of the master appointed by them, who received the whole earnings of the vessel, without accounting to the defendants for any part thereof. On the 7th of November, 1815, the said Porters paid the defendants the whole money they had advanced, with the interest; but as Seioard Porter, who paid the money, was then on a journey to New York, the vessels were not reconveyed until his return, viz., on the 14th of February, 1816. No account of the earnings of the vessel were rendered to the defendants, nor were they informed that any charges for repairs existed against her. On the 20th of February, the certificate of enrolment was exchanged at the custom-house in Portland.</p> <p>While the vessel stood enrolled as the property of the defendants, the master of the sloop, who had been appointed by the Porters after the conveyance to the defendants, by their direction requested the plaintiff, who then had an account open with them, to make the repairs in question, which he did, charging them to the “ sloop Messenger,” the materials used in the repairs being furnished by the Porters. The plaintiff presented his account to the clerk of the Porters, who referred him to the master, as the person who kept the books and accounts of the vessel, and who then paid him 10 dollars, which is credited by the plaintiff. The defendants knew nothing of the existence of such an account, until after July, 1816, when the Porters had failed in business.</p> <p>Soon after the reconveyance to the Porters, they conveyed the vessel to one Hall, who did not take possession of her until the time of said failure; to which time the *Porters received all her earnings. Hall afterwards paid the plaintiff for such repairs as were made after the conveyance to him, deducting the amount out of the credit he gave the Porters for the proceeds of the sale of the vessel; but he refused to pay that part of the account which arose prior to the conveyance to him.</p> <p>The jury returned a verdict for the plaintiff, against the opinion of the judge; and the defendants moved for a new trial on that ground, and also because the verdict was against the evidence in the case.</p>

<p>Ul the equitable assignment of a judgment, and its effects, as relating to the judgment creditor and debtor, and the assignee.</p> <p>[An equitable assignment of a judgment may be by paroi; and if the judgment debtor, after notice of such assignment, receive a release of the debt from the judgment creditor, he cannot successfully plead it in bar to an action brought by the bona JuLe assignee of the judgment creditor, for a valuable consideration, upon the judgment to recover the amount thereof.]</p>

<p>This was a writ of entry, in which the said Nathaniel and Susanna demand possession of a certain saw-mill, with its privileges, and of several other tracts of land, all lying in Westbrook, in this county; counting upon the seisin of one Joshua Webb, and a conveyance from him to the said Susanna, when sole, and they make a jirofert of the deed.</p> <p>In a statement agreed by the parties, the deed is recited, and it appears to have been a mortgage, with a condition that the grantor should save the grantee harmless and free from certain damages, tc which she 'might be exposed by his negligence or malconduct; and it was agreed that the condition of the mortgage had been broken before the commencement of this action.</p> <p>The tenant claimed under certain judgment creditors of the said Joshua Webb, who had attached the premises prior to the execution of the said deed, in the actions wherein their judgments were rendered; and afterwards extended their executions thereon within thirty days from the rendition of their respective judgments.</p> <p>* The demandants’ counsel made sundry exceptions to the extents upon said executions; all of w.hich were overruled by the Court, except as to one which was made upon the saw-mill. The Court, considering that extent void, were about to render judgment, at the last May term, for the demandants, for their possession of the saw-mill with its privileges and appurtenances,— when the counsel for the tenant moved the Court to enter the conditional judgment, as upon' mortgage. This being opposed by the counsel for the demandants, the cause was continued for the consideration of this motion; and at this term the opinion of the Court was delivered by</p>

<p>A promissory note was made for a given sum on demand; with condition to L/ void, if the maker should permit the promisee the use of a certain building, so long as it should stand. In an action upon the note, it was holden that the sum mentioned was to be considered as a penalty, and that the promisee should recover but his actual damages.</p>

Israel Smith, the person summoned as trustee of the defendant, disclosed that, at the time of the service of the process upon him, he was possessed of sundry articles of personal property belonging to the defendant, which he was ready to give up, whenever the balance due him on account, which he stated to be 82 dollars 24 cents, should be paid him.

This was an action of trespass, under the statute of 1795, c. 75, 3, which gives treble damages to the party aggrieved, against persons who cut down trees, &c., pending an action for recovering possession of lands on which such trees,. &c., are standing. After a verdict for the plaintiff, the defendants moved in arrest of judgment, on the ground that the action should have been debt, instead of trespass.

The action was assumpsit upon a promissory note made by William Patterson, the defendant’s intestate. The defendant pleads the insolvency of her intestate’s estate, and avers that the plaintiff filed his claim with the commissioners of insolvency, that the same was allowed, that she has always been ready to pay him his dividend, and that she has, in all things touching the said administration, conformed to the directions of the law, and has fully administered the estate.

<p>A deposition cannot be used, in the trial of an action, unless the name of the deponent is contained in the notification of the magistrate to the opposite party. The certificate of the magistrate is not conclusive as to the notice.</p>

Thf. plaintiff declared in trespass, for that the said Coy, at, &c., on, &c., broke and entered the plaintiff’s close, cut down and carried away ten tons of his grass then and there growing, and broke and entered his dwelling-house, and took and carried away sundry articles of household furniture, of the value, &,c., and other enormities then and there did, &c. The general issue was pleaded and joined ; and also soil and freehold in the defendant, which was traversed.

<p>A forcible entry, or actual ouster by violence or fraud, are not necessary to constitute a disseisin; for, in cases of vacant possessions, a simple tortious entry, and open exclusive possession, under claim of adverse title, are equivalent to such entry and ouster.</p> <p>Where a disseisor employed an agent to procure a deed from the owner of the land, to confirm his possession, and the agent took the deed in his own name, the disseisin was not thereby purged; and nothing passed by the deed.</p>

<p>This action, which was covenant, upon an indenture hereafter recited, for the ran-payment of the money therein stipulated to be paid by the defendant, was originally commenced by Robert Hallo-well, the plaintiff’s intestate; after whose decease the now plaintiff was admitted to prosecute.</p> <p>The defendant had oyer of the indenture declared on, as follows, viz. : — “ This indenture, made this 29th day of October, 1809, by and between Isaac Corson, of the one part, and Robert Hallowell, executor to Benjamin Hallowell, deceased, of the other part, witnessed, that the said Corson hath this day agreed, and, in consideration of the * covenants and agreements of the said R. H., hereafter named, doth agree with the said R. II., his executors and administrators, to purchase of him a certain tract of land situate in, &c., and bounded, &c., the same land being now in the said Corson’s possession, but the fee of the same being in him, the said R. II. And the said Corson doth further covenant and agree with the said R. H., his executors and administrators, to make payment for the same in manner following, viz., the sum of 920 dollars, payable in four years, with interest annually. And the said R. H., in consideration of the said Corson’s covenants and agreements aforesaid, doth on his part covenant and agree with the said Corson, his executors, &c., to cause to be made, executed, and delivered to him, the said Corson, his heirs, &c., a good and sufficient warrantee deed from the heirs of the said Benjamin Hallowell, of the above-described premises, upon his or their paying the above mentioned sums, at the timé or times above named,” &c.</p> <p>Upon oyer had as aforesaid, the defendant demurred generally to the plaintiff’s declaration, and the plaintiff having joined in the demurrer, the cause was argued at the last May term, here, by Bond for the plaintiff, and Boutelle for the defendant.</p> <p>Boutelle contended that the two acts in this case, the payment of the money and the conveyance of the land, being to be done at the same time, the plaintiff ca.n maintain no action without showing performance, or an offer to perform, on his part. So is the law laid down by Sergeant Williams ; and he says it particularly applies to the case of sales. (1) The covenants are dependent, and neither party has a claim to demand performance by the other, until he is ready to perform his own part. (2) The subject was much canvassed by this Court in tile case of Johnson vs. Read 8f Al., (3) and the result will be found to support the defence now assumed.</p>

<p>The stockholders of an incorporated bank, after the expiration of their charter made dividends of their capital stock amongst themselves, so that there were not corporate funds left sufficient to redeem their outstanding notes or bills. It was holden that the possessor of their bills could not maintain an action as for a •tort against an individual stockholder, who had received his proportion of such dividends.</p>

<p>Assumpsit for expenses incurred by the plaintiffs in the support of one Lavinia Savage, a pauper, alleged to have her settlement in Sidney. .</p> <p>The cause was tried, upon the general issue, in the Court of Common Pleas; and it was admitted that the settlement of the pauper, if she had any, was derived from her grandfather, Joseph Savage. It was proved that the said Joseph, in the year 1795, was chosen by the town of Sidney a collector of taxes for a certain school district; that he had a regular warrant, and bills committed to him to collect; and that he remained in Sidney more than one municipal year after he was authorized to collect, and had * his warrant and bills committed to him, capable of discharging the duties of his office.</p> <p>The Court of Common Pleas instructed the jury that, upon these facts, the plaintiffs were entitled to recover; and a verdict being returned accordingly, the counsel for the defendants filed exceptions to the said directions, and brought the action to this Court, undei the statute of 1817, c. 185.</p>

<p>This was an action of debt on the statute of 1795, c. 44, § 6, to recover of the defendant, a deputy sheriff of the county of Kennebeclc, the sum of 30 dollars, for wilfully and corruptly demanding and receiving of the plaintiff a greater fee than by the said statute is allowed, for the service of an execution against him, in favor of one Edward Swan, for the sum of 20 dollars 16 cents.</p> <p>On trial, before Thatcher, J., it appeared that the sum of 9 dollars 59 cents was received by the defendant, in addition to the amount of the execution — which exceeded the legal fees thereon by the sum of 8 dollars 11 cents.</p> <p>At the time of the settlement of the said execution, the defendant had also another execution against the plaintiff, in favor of J. Getchell; and his fees on both were calculated to be 3 dollars 59 cents. But he demanded another sum of 6 dollars, for extra trouble he had suffered in relation to the first-mentioned execution. The plaintiff objected to this demand, as too much ; but on Fletcher’s refusing to settle upon other terms, the plaintiff paid him a part in money, and gave his note for the balance — which note had been paid before the commencement of the present action.</p> <p>The trouble for which the defendant claimed indemnity, was what he had suffered by jhe resistance of Runnells, in a former attempt to serve the execution ; and for which he had been indicted and convicted.</p> <p>A verdict was returned for the plaintiff, under instructions from the judge, that if the jury were satisfied that the defendant made use of the execution, in any manner, to create an apprehension and fear in the mind of Runnells that, if he did not pay the said sum, he would be committed to jail, it was extortion, and the plaintiff would be entitled to a verdict.</p>

<p>In an indictment for the forging of an acquittance, it is no, necessary to allege that any goods were delivered in consideration of such acquittance: the false making, with intent to defraud, is the gist of the offence.</p> <p>To a bill of parcels of the following tenor, viz., “ Mr. J.-Bought ofE.fyC.-- - The above charged to G. C.,” the purchaser, J. L., added these words, “ By order E. Sf C.,” — and it was held that this addition amounted to an acquittance of J. L., and was a forgery within the statute of 1804, c. 120, § 1.</p>

<p>Replevin of the brig Sophronia, and her cargo, consisting of 220 tons of salt and 15 tons of coal, alleged to be the property of the plaintiffs. The defendants plead, in bar, that the property of the chattels replevied, at the time of the taking thereof by them, was in one Joseph T. Wood, and not in the plaintiffs; and issue being joined on the traverse, the same was tried before Wilde, J., September term, 1817.</p> <p>The plaintiffs read in evidence a bill of sale of three quarters of the said brig, from the said Wood to themselves, and dated the 16th of July, 1816; also, a bill of lading of the salt, with an assignment thereof by the said Wood to the plaintiffs, which assignment was also dated on the same 16th of July; also, a bill of sale of the coals, of the same date. They also produced an agreement made by the said Wood with them, dated February 26, 1816, in which he * engages to consign the said brig and her cargo, which she was to take on board at Liverpool, to the plaintiffs; and that the consignment shall amount to 20,000 dollars ; and authorizes them to insure 11,000 dollars on the cargo and freight. On their part, the plaintiffs were to accept his draft to the amount of 10,000 dollars, payable in four months from the 1st of March then next; and Wood agrees not to draw for any thing on account of the shipment by the Sophronia. The plaintiffs were to charge a commission on the said advance, and for effecting the insurance, and also interest from the maturity of their acceptance until remunerated by the sales of the cargo. In case the said cargo should not amount to 10,000 dollars, and the said commissions and interest, at the current prices at the time of the arrival of the brig from Liverpool at Boston, Wood agrees to make up the deficiency on demand; and he also engages to renew a part of the said draft for a further term of sixty days, in case it should be inconvenient to the plaintiffs to pay the whole when it should fall due.</p> <p>The plaintiffs proved, by the said Wood, that the said agreement was made at the time it bears date; that they advanced to him the said 10,000 dollars, in compliance with his proposal; that it was understood by the parties at that time, though not expressly so agreed, that if the said cargo, on its arrival in a port of the United Stales, should be insufficient to repay the plaintiffs the said sum advanced, and their commissions, they were to be secured by a transfer of the said brig; that, some time in July, 1816, the plaintiffs applied to him, then in Boston, for a bill of sale of the said three quarters of the brig, in conformity to the understanding of the parties before stated; that he then declined giving such bill of sale, saying that he had not a copy of the register necessary to be inserted therein, and that he had not come to a resolution to make such bill of sale; but that if, on his return to Wiscasset, where his home was, he should conclude to comply with their request, he would make the bill of sale, and deliver it to the collector of the * customs for the port of Wiscasset for their use and benefit; to which conditional proposal the plaintiffs made no reply, but seemed to be satisfied ; that, on the 16th of said July, the day after the brig’s arrival at Wiscasset, he made such a bill of sale, and on the same day delivered it to the said collector ; and at the same time made the assignment of the salt by a regular endorsement of the bill of lading, and on the same day gave the plaintiffs information of these transactions by letter; that, a few days after, the plaintiff Buffington arrived at Wiscasset, which, from other testimony, appeared to have been on the 19th of July, when it was discovered that the coals were not included in the bill of lading; whereupon Wood immediately made, and delivered to Buffington, the said bill of the coals, it having been his intention to assign to the plaintiffs the whole cargo, according to his agreement. The said Wood did not recollect die transmitting the said bill of lading to the plaintiffs, and could not say that it was delivered before Buffington’s arrival at Wiscasset; at which time he went on board the brig, and demanded possession of the same, and of the cargo, from the master.</p> <p>The defendants, being deputy sheriffs of this county, proved that they attached the chattels replevied, on the 18th of said July, by virtue of sundry writs against the said Wood; and they introduced evidence with the view to show that said sales of the brig and cargo were void, being fraudulent as against creditors; and it was contended on their part, upon the whole evidence, that the said sales were not valid at the time of taking aforesaid; 1st. Because the said bill of sale, and the said bill of lading and assignment, had never been delivered to the plaintiffs, or their authorized agent, before the attachment made by the defendants — the said collector having had no authority, from the plaintiffs, to receive in their behalf the said bill of sale of the brig; 2dly. That, said sales were not made bona fid.e, but were fraudulent as against creditors.</p> <p>* With a view to reserve, for the consideration of the whole Court, all questions in relation to the sales of said brig and cargo to the plaintiffs, excepting such as related to the supposed fraudulent character of the transactions, the judge instructed the jury to find for the plaintiffs, if they should be of opinion that the said sales were made bona fide ; and they accordingly returned a verdict for the plaintiffs.</p> <p>If the Court should be of opinion, on the facts above stated, that the sales aforesaid were not valid in law, and that the plaintiffs had no lien on the chattels replevied, the verdict was to be set aside, and the plaintiffs to become nonsuit; if the Court should be of opinion that the same were valid in law as to part of the chattels, and not valid as to the residue, the Verdict was tobe altered, in conformity to such opinion ; but if the opinion of the Court should be that all the said sales were valid, judgment was to be entered agreeably to.the verdict. v</p> <p>The cause was argued, at the last June term in this county, by Mellen for the plaintiffs, and by Bailey and Longfellow for the defendants.</p> <p>It was argued for the defendants, that there was no evidence of an agreement or assent on the part of the plaintiffs to receive the conveyance of the vessel. The collector of the port, to whom the bill of sale of the vessel was delivered, was wholly a stranger, hay ing no agency or authority from the plaintiffs to receive or assent to the sale. If the sale is to be considered an absolute one, it was void for want of consideration. No money was paid, nor any debt discharged. It was in Wood’s power, at any time before the bill of sale came to Buffington’s hands, to have reclaimed and cancelled it. If the vessel had been lost in that interim, the loss could not have been thrown upon the plaintiffs. 'If the transfer is to be considered as a pledge, to secure the plaintiffs, possession was necessary.</p> <p>The agreement in February was merely to consign the cargo, not to sell it to the plaintiffs. The actual sale was not completed until Buffington attempted to obtain * possession, which was the day after the attachment by the defendants ; and then nothing was paid for it. (1) As to the coals, the plaintiffs have made no title.</p>

Assumpsit by the endorsee against the maker of a negotiable promissory note. The plaintiff, a deputy sheriff, having an execution against one Hodge, received from him the note in question as a pledge, or collateral security, for the discharge of the execution, the note being signed by the defendant, and endorsed in blank by Hodge.

Scire Facias against the defendant, as bail for one Sargent in an action brought against him by the plaintiff before a justice of the peace. A deputy sheriff happened to be present at the time of the trial before the justice; and, soon after the trial was over, Harding said he wished to surrender the principal, and afterwards said to the justice that he tendered the body of the principal to the court, and * wished to be discharged from his suretiship.