Volume 16 — Massachusetts Reports

<p>Trespass for breaking and entering the plaintiff’s close, situate in Lebanon, in the county of York, and carrying away the boards of the plaintiff.</p> <p>The defendant pleads in justification of the supposed trespass, that the close mentioned in the plaintiff’s declaration was the soil and freehold of him, the said Goodwin, and sundry other persons, who hold the same as tenants in common; the same being a sawmill, mill-privilege and yard; and that the locus in quo had been in his separate occupation, as a place for piling his boards and lumber, by the consent of his co-tenants, until the plaintiff, against his consent, and without any license therefor, entered into the said close thus separately occupied by the defendant; and that he, the defendant, thereupon entered and removed the plaintiff’s boards, as he lawfully might, and had a right to do.</p> <p>To this plea the plaintiff replies, that one Jeremiah Wise was one of the tenants in common of the said close, and that j * 2 ] * the locus in quo had been assigned to him, as his separate piling-place for his lumber, by his co-tenants; and traverses that the same was ever allotted to, or occupied by, the defendant, as a separate piling-place; and further avers that he entered into said close by the permission of Wise, and occupied the locus in quo, as tenant at will to him, the said Wise, until the defendant entered and committed the trespass complained of.</p> <p>The defendant admits that Wise was one of the tenants in common, but rejoins that, before the supposed trespass, he, the said Wise, sold and conveyed all his right, title, and interest, in the premises to E. Littlefield and IK Prime.</p> <p>The plaintiff, in his surrejoinder, admits the conveyance to Little-field and Prime, but avers that they never entered under the grant, and that he was suffered to occupy in their right without interruption or disturbance, until the defendant unlawfully entered, and committed the trespass complained of.</p> <p>To this surrejoinder there is a general demurrer and joinder.</p>

<p>Tars was an action of debt on a bond, made by the defendants and one Wood, who died pending the suit, to the plaintiff, sheriff of the county of Washington; the condition of which bond was, that the said Wood, who had been appointed by the plaintiff a deputy-sheriff for the said county, should, among other things, well and truly perform the duties of said office in all respects according to law, and should fully and completely indemnify and save harmless the plaintiff, his executors and administrators, from all suits, damages, and expenses, whatsoever, by reason of the doings, wrong-doitigs, or neglects of the said Wood, in the execution of his said office of deputy-sheriff.</p> <p>The defendants plead in bar, that the said Wood, from the time of making the said writing obligatory, had well and faithfully performed and fulfilled all and every thing in the said condition mentioned, on his part to be performed and fulfilled, according to the form and effect of the said condition.</p> <p>The plaintiff, in his replication, alleges that one Congdon, having purchased a writ of attachment out of the clerk’s office of the said county, against one Kennedy, for a cause of action particularly set forth, delivered the same to the said Wood; that the said Wood, by virtue thereof, attached certain goods and chattels, the property of said Kennedy, of the value of 1000 dollars, and served and returned the said writ; that Congdon recovered judgment against Kennedy in that suit for 503 dollars 86 cents damage, and 60 dollars 96 cents costs; yet the said Wood did not retain and keep said goods and chattels safely, until the expiration of thirty days next after the judgment aforesaid was rendered, to the end that Congdon might take them in execution to satisfy said judgment; but, before the expiration of said thirty days, released the goods, and discharged them from the attachment, against the law in that case provided. * And so the plaintiff says that the said Wood [ * 6 ] has not well and truly performed, &c.</p> <p>The defendants, in their rejoinder, aver that the said Wood was, at all times within thirty days after the rendition of the said judgment, at the place where the attachment of the said goods was made, viz. at, &c., and no notice was given him by the said Congdon, or the plaintiff, or any other person, of the suing out of the execution upon the said judgment, or any demand made upon him for the goods so attached, at any time within the said thirty days.</p> <p>To this rejoinder the plaintiff demurred, and the defendants having joined the demurrer, the same was argued at the November term in Middlesex, by Savage for the plaintiff, and Leland for the defendants ; and at the November term in Suffolk the opinion of the Court was delivered by</p>

<p>This was an action of the case, pending in the county of Kennebeck. The first count in the declaration alleges, “ that, by a law of this commonwealth, passed on the sixth day of March, 1804, a cer tain corporation was established by the name of The President, Directors and Company of the Hallowell and Augusta Bank, and so to continue until the fifth day of October, 1812; that the capital stock of said bank consisted of 200,000 dollars, divided into shares of 100 dollars each ; that the said corporation was bound by law [ *10 1 to pay and redeem all the notes, which from time * to time might be issued by the same, and ' hat all the capital stock actually paid in, as well as the property belonging to said corporation, was by law bound for the payment and redemption of the notes issued by the said corporation; that by law the said corporation had no right to divide among the stockholders or members of the said corporation any portion of the capital stock, until all the notes issued by the said corporation were redeemed and paid; that afterwards, viz. on the first day of January, 1807, the said corporation issued notes, signed by the president and cashier of the same for and in behalf of said corporation, tc a large amount, viz. for the sum of 200,000 dollars; that afterwards, viz. on the first day of January,' 1813, a large amount of the said notes issued as aforesaid, viz. the sum of 93,000 dollars, being outstanding and unpaid, the said corporation, at a meeting for that purpose, voted to divide, and did thereupon proceed to divide, among the several stockholders and members of said corporation, seventy-five per centum of the capital stock of the same, viz. the sum of 150,000 dollars, it being all the property owned and held by the said corporation; and that the said Grant, who then was, and from the time of the incorporation of the said bank had continued to be, a stockholder and member of said bank, he being the owner and holder of fifteen shares in the same, did thereupon receive the sum of 1125 dollars, his dividend of seventy-five per centum, on his said fifteen shares.—And the plaintiff further avers, that he, being the lawful holder and owner of a certain number of the notes issued as aforesaid, viz. the sum of 180 dollars, on the first day of November, 1815, presented the same to the said corporation for payment, which was then and there refused; and afterwards, on the same day, the plaintiff gave notice thereof to the said Grant, who, being one of the members of said corporation, and having received the said sum of 1125 dollars out of the capital stock of said bank in manner aforesaid, and said corporation being insolvent, and having no funds or property wherewith to satisfy the debts'due from * the same, then and there became liable to pay to the [ * 11 ] plaintiff the said sum of 180 dollars, and being so liable, then and there, in consideration thereof, promised the plaintiff to pay him the same sum on demand. Yet, though requested,” &c. There was also a count for money had and received by the defendant to the plaintiff’s use.</p> <p>The action was submitted to the determination of the Court upon a statement of facts, in which it was agreed by the parties, that all the allegations in the plaintiff’s first count were true; excepting that the promise therein alleged to have been made by the defendant was not to be considered as a fact, but as an inference drawn by the plaintiff. It was also agreed that the defendant was not present at either of the meetings of the stockholders, when the dividends were declared; that at those times the stockholders believed that the 25 per cent, of the capital stock which remained undivided, and the debts due to the corporation, together, amounted to more than sufficient to pay all the debts of the corporation then due from them ; that, at that time, Benjamin J. Porter, the president, and Nathaniel Bummer, one of the directors of the bank, were apparently in good circumstances, doing business as merchants in good credit; that some months after, they both failed in business; that at thS time said dividends were voted, the said Porter and Bummer were largely indebted to the bank, and were so at the time of their failure ; that the corporation is now insolvent; that at the time of voting said dividends, there were notes of the bank in circulation to the amount of 93,000 dollars; that in October, 1814, the bank refused, and have ever since neglected and refused to pay their notes when presented for payment; that a part of the debts due from Porter and Bummer were not secured according to the by-laws of the corporation ; that the stockholders were allowed to borrow to the amount of their stock, pledging the same for security, but the defendant never so borrowed; that the defendant did not usually attend the meetings of the stockholders, but did attend 1*12] once or * twice after the first year of the corporation; that the plaintiff had applied to the president and cashier of the bank, and had used due diligence to obtain the records and books of the directors and stockholders, but could not find or obtain either of them ; that before the commencement of this action, he informed the defendant of his being the holder and bearer of the notes mentioned in the declaration, and requested payment thereof, which was refused.</p> <p>Upon these facts, the defendant was to be defaulted or the plaintiff to become nonsuit, as the opinion of the Court should be.</p>

This action, which was assumpsit for money had and received, was submitted to the determination of the Court upon the following facts agreed by the parties. By the terms of the original grant of the township of Bridgeton in the year 1765, one sixty-fourth part of the land granted was required to be appropriated for the support of schools, and a like proportion for the use of the ministry, and they were laid out by the proprietors accordingly.

<p>The heirs of a mortgagee, as such, have not such an interest in the mortgage as entitles them to enter, or to have an action for condition broken.</p>

<p>This was an action of debt, founded on several judgments of this Court, recovered in October, 1809, by the plaintiffs, against one Thomas Webster, and one John Thatcher, the latter of whom is deceased, and the defendant is his administrator; and the plaintiffs aver that they exhibited the said several judgments to i .e commissioners appointed to receive and examine the claims of creditors against the estate of said Thatcher; but they refused to allow the same * or any part thereof; and they having [ * 25 ] made report of their doings to the judge of probate, the plaintiffs gave notice according to the statute, &c.</p> <p>The defendant pleads in bar, that on the 21st of October, 1808, the said Thatcher and Webster, having been before that time joint partners in trade, were indebted to the plaintiffs in divers sums of money; and in consideration' that he, the said Thatcher, then and there paid to the plaintiffs, in part of said debts, the sum of 1,410 dollars out of his own separate property and estate, they, the plaintiffs, by their agreement in writing of that date, agreed with, and promised the said Thatcher, that they would not serve any writ that might be sued out after said date, nor levy any execution that might be issued on any judgment then rendered, or to be rendered after said date, against the said Thatcher and Webster, on their said debts, upon the sole and separate estate and effects of the said Thatcher, which he then had or might have, distinct from the joint stock and effects of the said Thatcher and Webster, or of the proceeds thereof; but would serve and levy the same only on the joint stock, effects, rights and credits of the said copartners, and the proceeds thereof, and on the estate, &c., of the said Webster. And the defendant further avers that the said Webster is still living, wholly insolvent and unable to pay any part of the debts aforesaid; and that the several sums, for the recovery of which this action is brought, are a part of the sums or debts mentioned in the said discharge, and not different.</p> <p>To this plea in bar the plaintiffs demur generally, and the defendant joins in demurrer.</p>

<p>This was an action of assumpsit for money paid for sundry articles of clothing, and for board, furnished the defendant’s minor son in the West Indies.</p> <p>The action was tried upon the general issue, October term, 1818, before Thatcher, J. It ivas in evidence that the defendant’s son had been indicted in this Court for a felony, that a warrant had issued for his apprehension, and that he had absconded to avoid the same, had gone to the West Indies, and that upon his application to the plaintiff, to whom the defendant was known, the plaintiff made the advances, for which the present action was brought. The judge instructed the jury, that if they were satisfied that the articles furnished were necessaries to the son, in the circumstances in which he was found by the plaintiff, and that the plaintiff was ignorant of the circumstances under which the son was absent from his father, and a fugitive from justice, they should find, their verdict for the plaintiff; and a verdict being so returned, the defendant filed his exceptions to the said opinion of the judge.</p>

Trespass for breaking and entering the close of the plaintiffs. The declaration contains two counts. The first alleges that the defendant on, &c., with force and arms, broke and entered the close of the plaintiffs in Waterville, bounded, &c., and with cows ate up, consumed, and depastured the grass and corn then and there growing, of the value, &c. The second count alleges a like trespass in that part of the same close, over which the .public highway runs.

This was a writ of entry, in which the demandant counts generally on his own seisin within thirty years, and upon a disseisin by the tenant.

Assumpsit by one surety against the other for contribution. The case agreed by the parties was thus: One Lane was arrested by a constable of Portland upon mesne process sued out by one Walker, and the plaintiff and defendant became bound with him to the sheriff of Cumberland, in a bond conditioned for his appearance and for his ■ abiding the judgment in that suit. The plaintiff executed the bond at the request of the defendant, whose kinsman Lane was.

<p>A deed executed by an attorney, to be valid, must be made m the name of the principal.</p>

Assumpsit for money expended in the support of one L. Paine, a pauper, alleged by the plaintiffs to have his legal settlement in Mansfield. The declaration contained also a general count for money laid out and expended by the plaintiffs, for the use of the defendants.

Assumpsit for the support of William Cotton, a pauper, whom the plaintiffs alleged to have his legal settlement in Taunton. The pauper’s father was a foreigner; and his mother, previous to her marriage, was settled in Berkley, in the county of Bristol. They were married about the year 1742, and removed to New Jersey, where the pauper was born. His father dying, his mother returned, with her child, then about five years old, to Berkley.

This was a writ of dower, dated January 23d, and served March 8, 1816.

By an act of the commonwealth, passed the 19th of February, 1803, “to divide the town of Harwich, and to incorporate the northerly part thereof into a separate town by the name of Brewster,” it was among other things provided, “ that the remonstrants to this act of incorporation, who live in the north parish, and who shall request it, shall have liberty to remain, with their families and estates, to the town of Harwich, by leaving their names in the secretary’s office at any…

<p>This was a writ of entry sur disseisin, in which the only question was on the construction of a deed, by which one John Miller, in the year 1775, in consideration of 100/. lawful money, conveyed to Mary Miller and Lucy Miller, “jointly and severally,” a certain parcel of land in Middleborough; habendum to them the said Mary and Lucy, their heirs and assigns forever.</p> <p>The demandant claimed a part of the- land as brother and one of the heirs of the said Mary, and the tenant claimed to hold the whole by survivorship. And it was agreed that if, in the opinion of the Court, the said grantees, * at the [ * 60 ] death of said Mary, which happened many years after the passing of the law hereafter mentioned, held the said land as tenants in common, the tenant in this action should suffer judgment by default; and if they were joint tenants, the demandant was to become nonsuit.</p> <p>It was also agreed that in October, 1807, the said Mary recovered a judgment in this Court, for possession of an undivided moiety of the said parcel of land; and in May, 1808, the said Lucy recovered a like judgment, both of the said judgments being against William Porter &/■ Al.</p> <p>By the statute of 1785, c. 62, <§, 4, it is enacted, “ that all gifts, grants, &c., of any lands, tenements, and hereditaments, which have been, or shall be made to two or more persons, whether for years, for life, in tail, or in fee, shall be taken, deemed and adjudged to be estates in common, and not in joint tenancy, unless it has been or shall be therein said, that the grantees, &c., shall have or hold the same lands, &c., jointly, or as joint tenants, or in joint tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties to such gifts, grants, &c., that such lands, &c., should vest and be held as joint estates, and not as estates in common.”</p>

<p>Where money was paid to certain trustees, to be by them appropriated, at their discretion, for the maintenance and support of a son of the donor; and if he should not live to expend the same in his necessary support, then to be paid over to the other children and grandchildren of the donor; it was holden that the trustees were not liable, as such, to the creditors of the son.</p>

<p>A pluries execution, issued after the judgment debtor had been committed on an alias, was void; and an extent upon land of the debtor, he having been first liberated by the creditor, conveyed no title.</p>

<p>Of the application of the statute of limitations to an action by the holder of bank notes, against the directors of the bank, by whose misconduct the bank had failed. [It seems, where the action is brought against the corporation, the statute of limitations cannot be pleaded.—Ed.]</p>

<p>In debt by an administrator upon a judgment recovered by him, he need not de clore as administrator.</p>

Assumpsit for the support of Jjucy Goman and William Hector Goman, jun., paupers, alleged by the plaintiffs to have their legal settlement-in Westfield.

<p>The Court of Sessions are to be considered as the agents and representatives of the county, in all matters touching its finances and general prudential concerns ; and their acts and admissions are binding upon the inhabitants.</p>

<p>This was an indictment against the defendant for compounding a felony; taking as a consideration or reward therefor, a promissory note, signed by the party who was guilty of the felony, for the sum of one hundred dollars.</p> <p>At the trial, which was had before Jackson, J., at the last April term in the county of Hampden, the facts were proved, as alleged in the indictment; but it further appeared in evidence that the promissory note had not been paid, and that the promisor having since died, it had been presented to his executor for payment, by a person to whom the defendant had endorsed it Payment was "efused bv the ecutor, on the ground of its having been given for the illegal con sideration aforesaid, and being therefore void.</p> <p>It was thereupon objected for the defendant, that the in- [ * 92 ] dictment was not maintained; because it appeared that * the defendant had not received any valuable consideration for the supposed compounding of the felony.</p> <p>This objection was overruled by the judge ; and a verdict being returned against the defendant, a new trial was moved for on account of the said opinion and direction of the judge. There was also a motion in arrest of judgment, on the ground that it did not appear in the indictment, that the defendant had received any reward or valuable consideration for the compounding of the felony, as alleged in the indictment.</p>

<p>Certain individuals having associated in writing for the purpose of carrying on a particular manufacture, and being afterwards incorporated for the same pur pose, one, who subscribed the writing after the incorporation, became thereby a member of the and was held to the sum he had subscribed.</p> <p>It being part of such original agreement, that, if a further sum than was subscribed should be needed, the subscribers should be assessed in proportion to their subscriptions, it was holden that the only remedy for such assessments was by a sale of the shares.</p> <p>If such a company refuse to give a certificate to a stockholder entitled thereto, he does not thereby lose his rights.</p> <p>It is not competent to a member of such corporation to object an irregularity in the warning of their first meeting, in an action against him for his subscription money, after they have been in fact organized, and have transacted business for several years.</p> <p>If such corporation set up a store for the sale of merchandise generally, and sell such merchandise on credit, it does not lie in the mouth of a purchaser, in an action for the price of goods sold to him, to object that they were prohibited by law to carry on such trade.</p>

Assumpsit for expenses incurred in the support of the wife and eight children of David, Rich. At the trial in the Court of Common Pleas, at the last August term * in Franklin, [ * 103 J the plaintiffs proved a notice to the overseers of the poor of Oxford, informing them that “ David Rich and his family ” were chargeable to the plaintiffs, and that they had their lawful settlement in Oxford, and requesting their removal.

<p>The defendant was indicted of arson in the first degree. On the trial the evidence was, that the defendant placed a coal of fire on the sill of the dwelling-house, by which the sill was burnt about six inches in length, and the fire communicating to a board, part of the exterior covering of the house, burnt that board also to the extent of eighteen inches in length and seven inches in width, when, being discovered, it was extinguished. It was contended for the prisoner, that this was not a burning within the meaning and intent of the statute of 1804, c. 131, $ 1, upon which the indictment was framed, and which provides, “ that if any person shall wilfully and maliciously set fire to the dwelling-house of another, or to any outbuilding adjoining to such dwelling-house, or to any other building, and by the kindling of such fire, or by the burning of such other building, such dwelling-house shall be burnt, in the night time,” (fee.</p>

<p>[n an act incorporating the proprietors of a turnpike road, it was provided that the proprietors should have a right to demand toll, when the road should be approved, as sufficiently made, by a committee to be appointed by the Sessions; and that they should be liable to pay all damages happening to passengers fr m want of repairs; it was holden that they were liable for such damages, although the road was in the same state as when approved by such committee.</p>

<p>Assumpsit to recover the expense of supporting Bess Corbett, a negro woman, alleged to have had her legal settlement in Bellingham.</p> <p>At the trial of the cause, which was had before Parker, C. J., at the last April term in this county, nothing Was in controversy bul the settlement of the pauper. It was in evidence that she was born m the family of the late Dr. Corbett, of Bellingham, long before the revolution, and was his slave. The defendants contended that the said Corbett had given her to his granddaughter' Esther Messenger, who, in the year 1778, married a Col. Frost of Milford, and that she was taken into his family, and remained there until some years after she became manumitted by the adoption of the constitution of the commonwealth. It was testified *by a Mr. [ * 199 ] Craggin and his wife, that when Bess was six or seven years old, Dr. Corbett requested them to take her and bring her up, so that she might be useful to his said granddaughter when she should be married, to whom he said he intended to give her. And Mr. Craggin testified that Dr. Corbett also said that he had given each of his daughters one slave, that the one which he had given to Esther’s mother he had taken back upon her death, and that he in tended this negro girl for Esther in lieu of that which he had so given to her mother and taken back. He also testified that Col. Frost, who married Esther, came for Bess soon after the marriage, and took her home with him, saying she had been given to his wife by her grandfather. There was other testimony of the same kind, and also of the declarations of Esther, afterwards Mrs. Frost, that the girl had been given to her by her grandfather. There was some evidence contradictory of the foregoing, particularly the deposition of Col. Frost, who denied that Bess ever belonged to him or his wife as a slave.</p> <p>The evidence being all left to the jury, they returned a verdict for the defendants; the question being reserved, whether the declarations of Dr. Corbett and Mrs. Frost were legally admissible in evidence ; and whether the evidence was sufficient in law, to prove a transfer of property in the slave. The Court were to render judgment on the verdict, order a new trial, or otherwise dispose of the action as to law and justice should appertain.</p>

<p>Assumpsit for the expenses incurred by the plaintiffs in the support of certain paupers alleged to have their legal settlement in Lancaster. The action was tried at the Court of Common Pleas for this county, and was brought to this Court pursuant to the provisions of the statute of 1817, c. 185, § 5.</p> <p>The only question at the trial was, whether the plaintiffs had given the defendants such notice, as the statute requires, to make them liable. On this point the evidence was, that a letter, sealed and directed to the overseers of the poor of Lancaster, signed by the chairman of the overseers of the poor of Groton by order of that board, stating the facts relating to the paupers who had become chargeable, asserting their settlement to be in Lancaster, and requesting their removal, and the payment of the charges for their support, was sent by the mail, (the postage not being [*111 ] paid,) from the post-office in Concord; which letter * was received on the same day by the post-master in Lancaster, and within two days afterwards was by him offered to the chairman of the overseers of the poor of Lancaster, who refused to receive the same, and it was never taken out of the post-office.</p> <p>Upon this evidence the Court below instructed the jury, that legal notice had not been given, and that their verdict ought to be for the defendants ; and a verdict being so returned, the plaintiffs filed their exceptions to the said opinion of the Court.</p>

<p>Assumpsit to recover of the defendants the sum of 29 dollars, 17 cents, expended by the plaintiffs in the support [*118] * of one Sarah Savary. a pauper, whose settlement was alleged to be in Sutton.</p> <p>Upon the trial of the action, upon the general issue, before the Court of Common Pleas, it was proved or admitted that the pauper once had a derivative settlement from her father, John Savary, in Sutton, where she was born in 1750 ; that she lived with her father as a member of his family, until he removed from that part of the country in 1802, when she removed with him; that the said John, at the time of the incorporation of the town of Ward in 1778, lived in that part of Sutton which was included within the limits of Ward; that after said incorporation, and until his removal in 1802, he was taxed for his poll and estate in Sutton, and in all respects acted as an inhabitant thereof, agreeably to a proviso in the act incorporating Ward; that he, with sundry other persons named in the act, should, with their respective estates, be accounted as parts of the several towns which went to constitute the town of Ward, so long as they severally, or their heirs or assigns of .the same lands, should see cause; and upon signifying in writing their intention to the cleric of the town to which they so belonged, the persons so named, or their heirs or assigns of the same lands, should thenceforth become inhabitants .of Ward; that in 1801 the said John S. sold his estate to one Thomas Green ; who, as assignee of the said John S., on the 22d of April, 1802, availed himself of the provision aforesak, signifying his intention to become an inhabitant of Ward. It cid not appear whether the said John S. removed before or after Green had so signified his inter tian; but he resided on the same farm until his actual removal fiom Ward.</p> <p>Upon this evidence the Court below were of opinion, and so instructed the jury, that the settlement of the said John S. and ot consequence that of the pauper, his daughter, was in the town ol Ward. «</p> <p>It was proved by the defendants, that the farm of the said John S. was, before the incorporation of Ward, within *the limits of the north parish in Sutton; and they con- [ * 114 ] tended that, if his settlement was not transferred to Ward by virtue of the proceedings before stated, yet, by the act incorporating the town of Millbury, his settlement, with that of his daughter, was transferred to that town.</p> <p>The town of Millbury was formed, by the act incorporating it (1), of all the lands comprised within the north parish in the town of Sutton ; and it was provided in the said act, that the inhabitants of Millbury should support and maintain all such persons, as theretofore had been, then were, or thereafter might be inhabitants of that part of Sutton thereby incorporated, and were or might become chargeable, according to the laws of the commonwealth, and who had not obtained a settlement elsewhere therein.</p> <p>A verdict having been returned for the defendants under the direction of the Court of Common Pleas, the plaintiffs filed their exceptions by force of the provisions of the late statute, and the action was transferred to this Court.</p>

<p>in a conveyance by administrators, of sundry parcels of land, there was an ex ception from the operation of their, covenant of warranty, of all mortgages made by their intestate in his lifetime and recorded. There were three such mortgages, and also one unconditional conveyance of a parcel of the land, all which were recorded. As to the last-mentioned deed, there was also a bond of defeasance executed by the grantee, but not recorded, nor so required by law to be. The grantee in this last deed having evicted the purchaser of the administrators, who had summoned them to defend his title, he brings bis action against them for a breach of their covenant of warranty. In this last action, the defendants were allowed to prove, by oral testimony, tne knowledge of the plaintiff of the said deed of defeasance, before the sale to him by the administrators ; which being considered as a mortgage within the said exception, the plaintiff failed in his suit</p>

<p>Assumpsit upon a- promissory note, dated March 21st, 1811, for 564 dollars, 54 cents, made by Moses Whitney, * the defendant’s intestate, and payable on demand [*119] with interest to Peter Fox, the plaintiff’s intestate, or his order. Trial upon the general issue before Putnam, J., April term, 1818. The defence was on the ground of usury.</p>

<p>A decree of the judge of prohate, assigning the whole of the real estate ot an intestate to the eldest son, on condition that he pay to the other children the value of their respective shares in money within three years, but without talcing security for the same, may be avoided by the other children, as not authorized by the statute; without appealing from such decree.</p>

<p>In an action against an administrator upon his bond for faithful administration, to charge him on the ground of his having received money for which he has not accounted; it must appear that the money was received by him before the rendering of his account of administration; or if afterwards, that he has been cited to render an account by the judge of probate.</p> <p>It is a settled rule in pleading, that what comes under a videlicet is no averment</p> <p>An administrator is not bound to state the conditions of sale, in an advertisement for the sale of the lands of his intestate, under a license from Court.</p> <p>Nor is it unlawful for him to make immediate payment in money a condition of such sale.</p>

<p>Assumpsit for expenses incurred by the plaintiffs, in the support of-Edmunds. The action was submitted to the determination of the Court, upon the following case agreed by the parties.</p> <p>The pauper mentioned in the plaintiff’s declaration is a legitimate daughter of one Samuel Edmunds, who never had a settlement in Dedham, but had his last legal settlement in Natick, if he could gain a settlement there under the circumstances herein after stated ; if not, then in some other town in the commonwealth.</p> <p>The territory, which is now the town of Natick, before the yeai 1745, was not incorporated, nor a part of any incorporated place. In that year an act was passed by the provincial legislature, providing that the said territory should be erected into a precinct or parish by the name of * Natick; the inhabitants to be [ * 136 ] endowed with all the privileges, and subjected to all the duties, which other precincts or parishes were, by the laws of the province, endowed with, or subjected to. The parish assessors were empowered to assess, and the parish constables or collectors, to collect, all such sums, as, at a parish meeting regularly warned for that purpose, should be voted to be raised for laying out and maintaining their highways, for the support of their poor, and for maintaining a school; and the parish committee were to have the same power, with respect to the privileges aforesaid, as the selectmen of towns had by law in their respective towns. The parish were authorized to choose any other officers; for enforcing and improving the said privileges, as towns might lawfully choose for the like purposes; and the parish, and the officers, and inhabitants thereof, were made liable to the same penalties for any defect in their highways, for neglect of their poor, and for not supporting a school, as they would have been, in case they had been made a township.</p> <p>After the passing of the foregoing act, the inhabitants of Natick annually elected a parish committee and clerk, a constable or constables, surveyors of the highways, &c., until the year 1762; and it appears from the records of the parish, that the parish committee several times issued orders to the constables of the parish, to warn out persons who were alleged to have recently come into Natick. In 1762, Natick was incorporated into a district, and in 1781, into a town.</p> <p>The pauper’s father was born in Needham, removed to Natick before the month of April, 1748, and resided there until his death in 1752, never having been warned to depart therefrom. The pauper was born in Natick in December, 1748. Within a year after her father’s death, her mother removed to the town of Dedham, carrying the pauper with her, where they resided, as inmates in the family of the mother’s father, more than a year without being warned to depart; the mother occasionally going into * other families for a short time in the capacity of a [*137] nurse. Within two or three years after the death of the pauper’s father, her mother married and removed, with the pauper, to the town of Needham, the place of her second husband’s residence, he not having a settlement in Dedham, but in Needham, or in some other town in the commonwealth.</p> <p>Notice was duly given to the defendants before the commence ment of this suit, and was seasonably answered by them.</p> <p>If, on these facts, the Court should be of opinion that the said 1 San uel Edmunds’s last legal settlement was in Natick, and that the pauper had not gained a settlement in any other place, the defendants were to be defaulted, and judgment rendered for the plaintiffs for an agreed sum ; otherwise the plaintiffs were to become nonsuit The cause was argued at the last October term in this county, by Metcalf, for the plaintiffs, and Richardson, for the defendants</p>

<p>No person can be lawfully employed as a town schoolmaster, so as to protect the town from prosecution, unless he first produce the certificates or evidence of his qualifications, required by the statute of 1789, c. 19. '</p> <p>To constitute a grammar school, within the meaning of the statute, it must be duly regulated as to the admission of scholars ; and the master must be engaged to keep a school of that description.</p> <p>A grammar school, required to be maintained by every town having two hundred families or householders, must be kept for the use and benefit of all the inhabitants of the town.</p>

<p>Replevin lies for a wrongful detention of the plaintiff’s goods, although the original taking may have been justifiable.</p>

<p>This was assumpsit for expenses incurred in the support and maintenance of Ishmael Coffee and his wife, paupers, alleged by the plaintiffs to have their legal settlement in Needham.</p> <p>*The only question made on the trial, which was had [ * 158 ] here at the sittings after the last October term, before Wilde, J., and which came under the consideration of the whole Court, respected the validity of the said Coffee’s marriage, which was contested by the defendants. On this point it was proved that he was a mulatto, and his supposed wife a white woman; and they were inhabitants and residents of the province of Massachusetts Bay at the time of the supposed marriage, which was previous to the year 1770. As the laws of the province at that time prohibited all such marriages, they went into the neighboring province of Rhode Island, and were there married according to the laws of that province, such a marriage not being then prohibited by the laws thereof.</p> <p>It was objected by the defendants, that this marriage was void in-law ; as the parties, at the time of the marriage, were inhabitants of this province, and returned thither immediately after. But the judge overruled the objection, and instructed the jury, that the said mar riage, being permitted by the laws of Rhode Island, was good and valid there, and must be so considered in this province, notwithstand ¡ng the laws prohibiting such maniage here.</p> <p>If the said instruction was wrong in the opinion of the Court, the verdict for the plaintiffs was to be set aside, and a new trial had.</p>

<p>The declaration was in case, “ for that the said B. at, &c. on the 8th of August, 1808, by his memorandum in writing of that date, by him subscribed, acknowledged that he had then and there received of the plaintiff a bill of sale of one half of the sloop Union and her apparel, the consideration whereof the said B. then and there acknowledged in writing under his hand to be 200 dollars; which sum the said B. then and there, in said memorandum by him subscribed, promised the plaintiff to account to him for in a transfer of a deed which the said B. then held against one Jackson Field’s estate, as soon as the plaintiff should pay said B. the residue of a debt to him, which should not exceed 100 dollars. And the plaintiff avers that the transfer of a deed against said J. Field’s estate, mentioned in said memorandum, was to be a transfer, assignment and conveyance of the land, described in a certain deed made to said B. by one J. Field, which land the said B. then and there promised to convey to the plaintiff. And the plaintiff further avers that the [ * 162 ] said B. on the * 19th of April, 1810, by his deed of release and quitclaim, by him duly executed, did release and quitclaim to one J. N. Arnold all the right, title and interest, which he the said B. then had to a certain real estate described in said deed, which said real estate was the same of which the said B. then held a deed from said J. Field, and of which the said B. was then in possession, and which he had in and by said memorandum engaged to transfer to the plaintiff; and upon which transfer he had engaged to account for said 200 dollars. And the plaintiff further avers, that the said B. had not before said 19th of April accounted to the plaintiff for said 200 dollars, in a transfer of a deed held by him, the said B., against said J. Field’s estate. And the plaintiff fur ther says, that the said B., by his deed aforesaid, made to said J. N. Arnold, has broken his promise aforesaid, and become unable to perform the same, according to the terms thereof. To the damage, &c.”</p> <p>The defendant demurred to this declaration, and assigned the following causes of demurrer.</p> <p>1. That the plaintiff hath not alleged or shown, that he has ever paid or tendered to the defendant the residue of said.debt, mentioned in the declaration.</p> <p>2. That he has not alleged or shown, that he has paid or offered to pay to the defendant the sum of 100 dollars, mentioned in the declaration.</p> <p>3.. That he has not alleged or shown, that he ever requested the defendant to transfer to him the deed which the defendant held against J. Field’s- estate, or to assign and transfer to him the land mentioned in the declaration.</p>

<p>Where a judge of probate appointed commissioners to make partition of an intestate’s estate among the heirs, pending a petition for partition instituted by some of the heirs, and an action by the widow of the intestate for the recovery of her dower; the decree appointing such commissioners was reversed by this Court.</p>

<p>This was a writ of entry upon disseisin, for land in Charlestown, wherein the demandant declared upon his own seisin within thirty years, and upon a disseisin by the tenants; who claimed to hold the same in fee against the demandant. The cause was submitted to the decision of the Court, upon the following facts stated and agreed by the parties.</p> <p>One John Harris died seised of the demanded premises in October, 1804, having made his last will, by which he gave sundry legacies, ordered all his debts to be paid, and made his brothers Thomas H and Jonathan H. executors and residuary devisees and legatees of his whole estate real and personal. The testator owed large ums at the time of his decease, and he was seised and possessed of a large real and personal estate.</p> <p>[ * 173 ] * On the 25th of October, 1804, the said executors duly proved the will, gave bond with sureties in the sum of 200,000 dollars to pay the debts and legacies of the deceased, and, pursuant to the order of the Probate Court, gave due notice of their appointment and of their acceptance thereof; but they never returned any inventory, nor rendered any account into the probate office</p> <p>The executors took possession of the real and personal estate, and divided the same between them, having paid some of the testator’s debts and legacies. In 1805, they divided the whole of the real estate by mutual conveyances, all which were soon after duly registered. The demanded premises were released by Thomas to Jonathan, who continued seised thereof until February, 1813, when Thompson, the demandant, having obtained a judgment against John Harris, Richard D. Harris, and the said Jonathan, levied his execution upon the demanded premises, in due form, as the property of Jonathan, and in satisfaction of the said judgment; which execution, with the doings thereon, were duly recorded and returned.</p> <p>From the time of the said levy, until ousted by the tenants, as hereafter stated, Thompson, the demandant, continued seised of the demanded premises, receiving the rents and profits. At the time of the levy, the now tenants were the lessees of the demanded premises under Jonathan Harris, and after the levy they continued to occupy thé same under the demandant, paying him rent from time to time ; until they claimed to hold the same in fee, under the sale hereafter mentioned.</p> <p>Thomas H, one of the executors, died in June, 1814, and Jonathan H, the other executor, died in August following. In November of the same year, Thomas H, son of the first-named Thomas, and Richard D. Harris, son of the above-named Jonathan, were appointed administrators de bonis non, with the will annexed, upon John Harris’s estate. They gave bonds according to law, and due notice of their appointment pursuant to the order of the [ * 174 ] judge of probate. *On the 10th of January, 1815, they returned an inventory into the probate office, of real estate only, amounting to 51,987 dollars ; in which they state that no personal estate, not administered upon by the executors, had come to their knowledge. On the 3d of June, 1815, they filed in the probate office a list of claims against the estate of John H. amounting to the sum of 28,703 dollars, 34 cents, the greater part of which was secured by mortgages of lands in Charlestown, belong ing to the said John, and included in the residuary devise ; and all of which were payable before his death, except about 10,000 dollars, payable in five years after that event. Among the said claims were two' annuities of 300 dollars each during the lives of the respective annuitants. No suit was ever commenced by either of the annuitants, nor by any of the said creditors, against the executors or against the administrators de bonis non; except by one of the creditors for about 5000 dollars, whose action was pending at the death of the executors,' and whose demand was afterwards paid by the administrators de bonis non, before final judgment was rendered. But the executors paid interest upon the debts, from time to time, until their deaths.</p> <p>Upon the exhibition and filing of the said list of claims, the judge of probate made his certificate, and the administrators obtained a license from the Court of Common Pleas for this county, to sell the real estate of the testator to the amount of the said claims, and for the payment of the same. Interest was reckoned upon all the said claims, and the annuities were cast to a day posterior to the application, and they were both included in the amount for which the sale was authorized. In pursuance of that authority, the administrators sold the demanded premises to the tenants in November, 1815, at public auction, pursuant to a previous advertisement.</p> <p>When the administrators de bonis non took upon themselves that trust, they well knew of the division of the estate of John H. between the residuary devisees, as above * stated; [*175] they knew that the demanded premises had been assigned to Jonathan in that partition, and that Thompson had levied his execution thereon as Jonathan’s estate; and when they sold the land as aforesaid, they knew that Thompson continued to hold the same under his execution. The present tenants also knew all these facts, when they purchased the land; and before and at the time of the sale, were cautioned by the demandant not to purchase the same, and were informed by him of all the circumstances, which would in his opinion render the sale void. No notice was given to the demandant, nor had he any notice whatever that the administrators had filed or were about to file any list of claims against the testator’s estate; nor that they had or would apply for license to sell the real estate aforesaid, until the said license was granted. Nor did the Court of Common Pleas order notice to be given to any person, before granting said license.</p> <p>If, upon the facts agreed, the Court should be of opinion that the demandant ought to recover, the tenants were to be defaulted; otherwise the demandant was to become nonsuit, and judgment rendered for the prevailing party accordingly with costs.</p> <p>The cause was argued, October term, 1817, by Gorham, for the demandant, and W. Austin, for the tenants.</p> <p>Gorham. More than four years having elapsed after the death of John Harris, the original testator, before the application by the administrators de bonis non for license to sell his real estate, the lien of the creditors upon that estate had ceased. The creditors could, at that time, have maintained no action for their debts. If the Court of Common Pleas had been sufficiently informed of the existing state of things, they would not, and certainly they ought not, to have granted the license which they did (1). If that court had authority to grant the license, it could only be done after notice to all concerned. If notice had been given, the demandant could successfully have resisted the application, under the authority of the L * 176 ] case of * Scott vs. Hancock. If want of notice will not, of itself, avoid these proceedings, it must assuredly have that effect, when it appears that the demandant had a valid objection, of which he could not avail himself, for want of such notice.</p> <p>If the license was otherwise legally granted, it authorized the sale of lands for portions of the annuities not due, and for interest on the debts beyond the time of the application, which could not be legal.</p> <p>But the great point, upon which the demandant principally relies, goes further back. We contend that the executors having given bond, with sufficient sureties, for the payment of all the debts and legacies, there was no authority in the Court to license the sale of the real estate, within the provisions of the statute. No inventory being returned or by law required, the amount of the personal estate could never be known. Of course the judge of probate could never certify that- there was a deficiency of personal assets; nor could the Court of Common Pleas know that fact in any other legal way. If there be a bond in common form, and an inventory returned, and the personal estate is sufficient to meet all the claims, and in such case the executor should waste the personal effects, he could never obtain leave to sell the land, but must answer on his bond for the waste. By giving bond, as in the present case, for the payment of all the debts and legacies, the executors acknowledged assets to the amount, of those claims ; and they could never afterwards deny it, and so procure permission to sell the lands of other devisees. Creditors might still levy upon the lands of the testator; or, if these were all taken ,by other creditors, might upon scire ,facias have execution against the executors personally. If this be not so, executors thus situated might render the estate of their testator insolvent; although they have acknowledged, under their hands and seals, that there was sufficient to pay all lawful claims.</p> <p>* There being an administration de bonis non has no [ * 177 ] effect to prevent the application of this reasoning in the present case. If the estate was once sufficient, it must be always so. If the first executors had given bond in the usual form, or had they been administrators, their wasting the personal estate would never warrant an application, by the administrators de bonis non, for a license to sell the real estate.</p> <p>Austin. The tenants claim under a fair and public sale, authorized by an order of a court having competent authority of the subject matter. If the court had jurisdiction in the case, a title acquired under its order stands on high ground ; and this Court will not lightly disturb a possession so derived. In the case of Perkins vs. Fairfield (2), administrators sold the land in dispute under a license of Court, but'gave no bond, as required by the statute. Yet the Court held the title good under the sale ; and they put it on the ground that the Court had jurisdiction of the subject matter. “ If that jurisdiction,” says the Court, “ was improvidently exercised, or in a manner not warranted by the evidence from the Probate Court, yet it is not to be corrected at the expense of the purchaser, who had a right to rely upon the order of the Court, as an authority emanating from a competent jurisdiction.” Lands of a deceased person are liable to the creditor, in the hands of the alienee of a devisee (3). So a creditor may extend his execution on real estate fraudulently conveyed by his deceased debtor; or the administrator, being licensed to sell the estate of his intestate, may sell estate so conveyed, in whose hands soever it may be (4). In Leverett vs. Harris, which was a question upon a sale by an administratrix under a license of the Court, the Court say, “ The grantee purchased in reliance on the authority of a court of competent jurisdiction. To deprive him of a property he thus acquired would, in our opinion, be to act in opposition * to the most established [ * 178 ] principles, and very much endanger the security of titles ” (5).</p> <p>The demandant is a mere stranger, has no privity with the estate, nor with the testator. He had no more right to levy his execution upon the land of John Harris, the testator, than upon any other lands within the commonwealth. Nor has he a right, being such stranger, to question the validity of the order of Court, or the sale under it (6).</p> <p>The executors continuing to pay interest on the debts was equiv aient to the commencement of an action against them, to protect the claims from the operation of the statute of limitations.</p>

This was an action of the case against the defendant, as sheriff of this county, for the default of himself and his deputy, Isaac Train; and it was tried on the general issue, before Jackson, J., at the sittings here after the last October term.

<p>Of extending an execution on the estate of a tenant by the courtesy.</p> <p>[An execution against such tenant may be extended on the land by metes and bounds, or on the rents and profits. The tenant, in such case, in a writ of entry sur disseisin, cannot, under the plea of mil disseisin, dispute the title of the demandant claiming by virtue of such levy of an execution against him.—Ed '</p>

<p>This was assumpsit for the use and .occupation of certain real estate, for a quarter of a year ending August 2d, 1818. The action was tried in the Common Pleas, at the last December term, upon the general issue, and was brought into this Court upon exceptions taken for the plaintiff to the instructions of the court below to the jury.</p> <p>It appeared on the trial, that the plaintiff, at the March term of this Court, 1818, recovered judgment against one C. Simonds, for her dower in the estate of her late husband, William Hildreth, of which the real estate first mentioned was part; that a writ of seisin issued on said judgment on the 23d of April, 1818; upon which the sheriff returned that he had duly executed the said writ on the 28th of said April, and on the 2d of May following had delivered seisin and possession of the land, so alleged to have been occupied by Thompson, to the plaintiff as her dower in said estate.</p> <p>The plaintiff offered evidence, tending to prove an express promise, on the part of the defendant, to pay the rent demanded to the plaintiff. The defendant produced evidence, tending to prove that his promise was on the condition that it should be void, if the plaintiff’s writ of seisin aforesaid was not duly and legally sued out; or if the plaintiff had no title to the estate alleged to have been leased by the plaintiff to him, by virtue of said writ, and the execution thereof by the sheriff. The said Simonds died on the 11th of April, 1818, after the judgment aforesaid was rendered, but before the writ of seisin issued.</p> <p>The Court instructed the jury, among other things, that as the writ of seisin issued after the death of Simonds, that writ and the sheriff’s doings upon it were wholly inoperative and void, and did not establish the dower of the plaintiff under the said judgment; so that *she could occupy or lease the same [ * 192 ] to any person. Verdict for the defendant.</p>

<p>A private in a volunteer company of militia, removing out of the limits, within which such company was authorized to be'enlisted, is not bound afterwards to do duty in such company, and may be enrolled in the regular militia company, within the limits of which he dwells.</p> <p>A warning to a soldier in the militia to appear at a muster, being left at his workshop, is not a sufficient notice.</p>

The defendant was some years since convicted in this Court of the crime of forgery; and after the verdict, and before sentence was passed upon him, being at large under a recognizance, he avoided, and withdrew into one of the neighboring states.

<p>This was a petition for partition of the real estate of Samuel Steams, deceased, intestate; the petitioners being the daughters, and the respondents the sons, of the deceased ; and it was entered in this Court at this term, being the same process which was referred to in the case of Stearns fy Al. vs. Stearns &f Al. [Ante, page 167.]</p> <p>The respondents, in their plea in bar to the petition, [ *201 ] * allege substantially, that advancements were made by the intestate to the several female heirs, in whose right Ine petition was instituted; and they infer, as matter of law, that there can be no partition, until the amount of those several advancements has been deducted from each share of those who have been thus advanced.</p> <p>The petitioners reply, that the intestate died possessed of personal estate more than sufficient to pay all the debts and charges of administration ; besides leaving enough for a distributive share to each of the heirs, after allowing and satisfying all the advancements, which are averred in the plea in bar to have been made.</p> <p>To this replication there is a special demurrer; and the causes assigned are, 1. That the petitioners do not, in their replication, admit that advancements were made, as alleged in the bar. 2. That they do not show the amount of debts and charges. 3. That they do not state, in the replication, whether the sums advanced were to be taken out of the real or the personal estate of the deceased.</p> <p>The petitioners joined in demurrer.</p>

<p>The estates of the corporation of Harvard College, in the hands of their agents, wheresoever situated within this state, are exempted from public taxes by the annual tax acts.</p>

<p>[f a minister demand money paid by one oí his parishioners, for the support ot public worship to a society of a different denomination, within a year after the money is-paid, it is within reasonable time. -</p> <p>Taxes on non-resident owners of land in a parish, who are of a different sect from such parish, are liable to the demand of the public teacher on whom suck owners attend.</p> <p>By the act of 1811, c. 6, the necessity of the certificate, prescribed in the statute of 1799, c. 87, is superseded</p>

<p>The plaintiffs in error, as assessors of the first parish in Dracut, having assessed the lands of Richardson, an inhabitant of Methuen, which lay within the limits of the said parish, and having caused the tax so assessed to be levied by warrant of distress, Richardson brought his action of trespass against them. They justified as assessors, and Richardson replied that he was a member of a regular Baptist society in Methuen, which was a sect or denomination different from that of the said parish, and showed that he had duly filed the certificate prescribed in the statute of 1811, c. 6. Upon demurrer to the replication, the plaintiff had judgment in the Common Pleas; and the plaintiffs in error brought this writ to reverse the said judgment.</p> <p>The only question made to the Court was, whether a citizen, circumstanced as Richardson was, could claim an exemption from parochial taxes, for lands lying in another town than that of his residence. -This question arose on the facts in the preceding case; but Mie point was not made.</p>

<p>Assumpsit for 500 dollars laid out and expended by the plaintiffs for the use of the defendant, in the support and maintenance of himself, his wife and children, from January, 1812, to September 18th, 1818, the date of the writ.</p> <p>The action was submitted to the decision of the Court, upon the following facts agreed by the parties.</p> <p>The plaintiffs had expended the sum of 500 dollars for the support of the defendant, his wife and one child, within six years next before the date of the writ; of which sum 88 dollars had been expended since the 24th of February, 1818, and 47 dollars had been expended since the first day of June, 1818.</p> <p>[By an act passed on the 24th of February, 1818, it was enacted, “ that the inhabitants of any town or district within this commonwealth, who may have incurred expense for the support of any pauper, &c., may recover the same against such person, his executors or administrators, in an action of assumpsit, for money paid, laid out, and expended for his use.” And the act was limite a to take effect and be in force on and after the first day of June, 1818.]</p> <p>* Upon these facts judgment was to be rendered for the plaintiffs, for such sum as, in the opinion of the Court, they should be entitled to recover.</p>

<p>Scire Facias against the defendants, as bail for one Joseph Dalton. ' The defendants plead in bar, that on, &c., and before the commencement of the present suit, they committed Dalton to the prison in Cambridge, and left a copy of the original writ, &c. with the prison keeper; and afterwards, and within fifteen days from the said commitment, notified the plaintiff thereof, &c. The plaintiff replies that, before judgment was rendered for him in his original suit, and before notice was given him of the said commitment, Dalton had been apprehended and committed to prison for trial on an indictment for felony; and that, before the plaintiff recovered his said judgment, Dalton was convicted of the felony, sentenced to eighteen months’ confinement at hard labor, and was removed ✓ to the state prison, in execution of the sentence; so that when the plaintiff obtained his judgment, the body of Dalton could not be taken in satisfaction of the execution, which issued upon the said judgment. The defendants demurred to this replication, and the plaintiff joined in demurrer.</p>

<p>He was returned as a traverse juror for this term.</p>

<p>This case came before the Court by appeal from the Probate Court of this county, in which a decree had passed, directing Joy, the respondent, to render an account, as executor of the last will of Joseph Barrell, Esq. deceased, father of the complainants, according to certain principles and rules prescribed in the decree. Both parties, being dissatisfied with some of the rules laid down by the judge of probate, claimed an appeal, and filed their reasons, as required bylaw. And it was afterwards agreed by the parties in this Court, that in the hearing and final decree or decrees of the Court, they might consider the whole of the subjects of the complaint and answer, in the same way and manner, and with the same power and jurisdiction upon all matters therein contained, or connected therewith, as they could or might exercise upon the same in any form of proceeding or process whatever, by which the parties might appear in this Court, either in law or equity.</p> <p>In his capacity of executor merely, Joy had charged himself with but a small amount of property; claiming to hold all the residue of the estate and effects-, which were once his testator’s, as his own es fate and property, by virtue of conveyances and assignments, made to him by the testator in his lifetime, for a valuable consideration.</p> <p>The complainants contended that the property was assigned by the testator, and received by Joy, under a confidence and trust between the parties, that after indemnifying Joy for all his lawful claims upon Barrell, on account of debts paid and liabilities assumed for him, the * surplus, if any, should be account- [ * 222 ] ed for to Barrell; and that they, as his heirs, were now entitled to call him to account, in order 'that he might be charged, as executor, for any balance remaining in his hands ; that it might be subject to distribution to creditors, or to those entitled under the will, according to the circumstances of the estate.</p> <p>The conveyances of the property from Barrell to Joy were absolute ; and it did not appear that there was any bond, covenant, or other declaration in writing, made at the time, and tending to show the purposes and intentions of the parties to the transaction.</p> <p>But to prove Joy to have received the conveyances in trust, the complainants relied on an indenture made in the lifetime of the testator and after the said conveyances, between Joy on the one part, and Jones, Jeffrey and Bussell on the other part; in which Joy coy enants to sell sundry of the estates so conveyed to him, and to appropriate a certain part of the proceeds thereof to the discharge of certain claims of the said Jones and others against Harrell. They also produced, with the same intent, a pamphlet printed and circulated by Joy, in answer to one issued by the complainants, in which Joy alludes to the original conveyances as made to him in trust for the testator.</p>

<p>A., a citizen of the colony of Connecticut, in the year 1759 removed to the province of Nova Scotia, carrying with him B., his infant son. In 1797, B. removed from Nova Scotia to Manchester in this state, where he purchased real estate, wliich he occupied for more than ten years, paying all the taxes assessed upon it. It was holden that he was an alien, and therefore acquired no settlement in Manchester.</p>

Assumpsit for money expended in the support of Ephraim Cory and his wife, alleged by the plaintiffs to be legally chargeable to Chelmsford. The action came up from the Common Pleas, upon exceptions by the plaintiffs to the opinion of that court, as delivered to the jury. The said Cory was born in Chelmsford, and had still his legal settlement in that town, unless he had acquired one in Andover.

<p>Covenant broken on a demise by indenture by the plaintiff to the defendant, of a dwelling-house' and barn, with one acre of land, for four years from the 1st of May, 1815. The covenants, of which the breach is alleged, are, that the defendant would keep ip, repair, support and maintain all and singular the fences and buildings, saving and excepting the natural decay of the same, as should be needful, at his own proper cost and charge; and at the end of said term, or other certain determination of said lease, whichever should first happen, would quietly leave, surrender and yield up the premises, in as good condition as the same were in at the date of said indenture, reasonable use and wearing thereof excepted. The breach alleged is, that on the 24th of June, 1816, the said dwelling-house, with the appurtenances, was wholly fallen down and ruinous ; and that, the defendant did not repair, support and maintain the same, &c., as he had covenanted; and that, although the lease was determined on the 15th of December, 1816, the defendant did not surrender and yield up the premises to the plaintiff', in as good condition as the same were at the date of the indenture, &c., as he had covenanted , but the house was wholly destroyed, and the barn greatly injured, &c.</p> <p>The defendant, in his fifth plea, avers that, on the 24th of June, 1816, the house and fences were, by accident, and without the default, and against the will of the defendant, burned and consumed by fire, and the bairn greatly injured thereby, and had not been repaired or rebuilt.</p> <p>To this plea the plaintiff" demurred generally, and the defendant joined in demurrer.</p>

<p>A devise was to A. and his heirs and assigns; but in case A. should leave no male issue, then one moiety to be equally among A's children, and the other among the surviving children of the testator. It was holden that A. took an estate in tail male, and that the surviving children were such as survived A.</p>

<p>Assumpsit for 50,000 dollars had and received by the defendants, to the use of Israel Foster, the plaintiff’s testator.</p> <p>The action was entered at the last April term, and at this term the following suggestion was filed, viz. “ And now William Prescott and Leverett Saltonstall, who were originally retained in this action by the Directors of the Essex Bank, suggest that, since the last term of the Court, the corporation of ‘ the President, Directors and Company of the Essex Bank ’ is dissolved by the expiration of the time limited for its duration, in the act of incorporation; which said act is dated the eighteenth day of June, in the year of our Lord one thousand seven hundred and ninetu-nine. Txr „</p> <p>William Prescott,</p> <p>Leverett Saltonstall.”</p> <p>[By the act incorporating the defendants (1), it was provided that the persons therein named, and their associates, successors and assigns, should be created and made * a corporation, [ * 246 ] by the name of, &c., and should “ so continue from the first day of July,1799, until the expiration of twenty years next following.” By an act passed on the 19th of June, 1819 (2), it is enacted, “ that all bodies corporate and politic, which now are, or hereafter may be established, and whose powers would expire, either by express limitation in their charters of incorporation, or otherwise, shall be, and they hereby are continued bodies corporate and politic, for the term of three years, from and after the day on which their powers would expire, as aforesaid, for the purposes of prosecuting and defending all suits, which now are, or may hereafter be instituted, and of enabling such bodies corporate and politic gradually to settle and close their concerns, and divide their capital stock; but not for the purpose of continuing the business for which such bodies corporate and politic have been, or may be established.”]</p> <p>The question arising out of the above suggestion was argued at Boston, March term, 1820 (the action having been continued nisi for argument and judgment), by Prescott and Saltonstall, for the defendants, and Pickering and Webster, for the plaintiffs.</p> <p>Saltonstall The question before the- Court is this: Does the late statute, for continuing all corporations three years for certain purposes, apply to this bank, and remove the objection, that the original charter has expired ? We contend that it does not.</p> <p>The circumstance of its being a general law, is of no importance to this question. If it is retrospective in its operation, or interferes with vested rights, it is void ; as much so, as if made for the particular case. In the case of Wales vs. Stetson (3), Parsons, C. J., says, that “ rights legally vested, cannot be controlled or destroyed by any subsequent act, unless a power for that purpose be reserved in the act of incorporation.” This was said with reference to a [ * 247 ] general law. The New York bankrupt act * is a general law : but it was decided by the Supreme Court of the United States, in the case of Sturgis vs. Crowninshield (4), that so far as it attempted to discharge the contract, on which that suit was instituted, it is a law impairing the obligation of contracts and void. And the same act was so holden by this Court in the case of Blanchard vs. Russell (5).</p> <p>The act of June, 1819, is void and of no effect on the corporation of the Essex Bank, because it impairs the obligation of contracts. It is also void, as it violates vested rights. So far as it applies to corporations then existing, it is also retrospective, and therefore a void act of legislation. The remarks which apply to one of these principles, are almost equally applicable to the others; for a statute, which changes the nature and effect of an existing contract, violates them all.</p> <p>It is established by the case of Fletcher vs. Peck (6), and the case of Dartmouth College (7), that a grant by the government is a contract ; and that a charter of incorporation is a contract, within the clause of the constitution of the United States. Judge Washington says, “ the parties are the government, and the person for whose benefit the corporation is created.”</p> <p>It is settled by the case last referred to, that a law, which alters or violates any part or provision of a contract contained in an act of incorporation; is of no effect, but as entirely inoperative as it would be in the case of a money contract.</p> <p>Perhaps the true meaning of no part of the constitution was so long uncertain, as this restrictive clause on the state legislatures. So lately as the case of Lock, Adm., vs. Dame (8), this Court say, “ this clause, as we all know, was provided against paper money, installment laws,” &c. If it is more extensive in its operation than was then supposed by many learned men, what is there to fear from a construction, however broad, in support of the inviolability of contracts ?</p> <p>[ * 248 ] * What, then, is the obligation of the contract between the government and the corporation of the Essex Bank ? On the part of the latter it is, to perform all the duties imposed on them by the act of incorporation. On the part of the government, the grantors, it is, that the corporators shall enjoy all the powers and privileges granted in the act, without any alteration, or the imposing of any new provision without their consent. The corporation was established for twenty years. They may not be compelled to continue for a longer or a shorter period ; and a law requiring either must equally impair, as it would equally vary, the original contract. A chai ter, or act of incorporation, being a grant, the party is not bound to accept it; and having accepted it, for the same reason, he is not bound to accept a new or additional grant.</p> <p>When a private corporation is created, it is subject to no other control, than what is expressly or impliedly reserved in the charter itself. Unless power be reserved for this purpose, the crown can not, by the mere power of its prerogative, alter or amend the charter, or divest the corporation of any of its franchises, or add to them (9). It is not the magnitude or nature of the alteration which renders it void. Any alteration, which might subject the corporation to new conditions, is against the original contract, and the privileges therein secured to the grantees. “ Does not any alteration of a contract,” says Judge Washington, “however unimportant, even though it be manifestly for the interest of the party objecting to it, impair its obligation ? If the assent of all the parties to be bound by a contract be of its essence, how is it possible that a new contract, substituted for or ingrafted on another, without such assent, should not violate the old charter?”</p> <p>The act incorporating the defendants then contains an implied obligation on the part of the government, not to make any alteration in the terms of the charter, without the consent of the grantees therein named, or their successors ; * that they [ * 249 ] should not be compelled to contribute towards a greater stock than is limited by the act, ór to continue for a longer term than twenty years.</p> <p>Does, then, the late statute renew the corporation? We say that the legislature cannot continue a corporation, beyond the time limited in its charter, without the consent of the members. The existence of the Essex Bank, as a person known in law, depends essentially upon the assent of its members. The act of the legislature is also essential; but neither can be dispensed with. If these are not combined, the bank is a mere copartnership; and a suit cannot be maintained against them, without naming the partners individually. The General Court can no more make or continue a corporation without the assent of the members, than an inferior tribunal. They are not the supreme power, but derive all their authority from the constitution.</p> <p>“ It is a franchise for a number of persons to be incorporated as a body politic, with a power to maintain perpetual succession, and do other corporate acts, and each individual member of a corporation is said to have a franchise or freedom ” (10). That a charter is a contract with the grantees individually, is fully recognize d in the case of Dartmouth College before referred to. “ In every view of the case, if a consideration was necessary to make the charter a valid contract, a valuable consideration did exist as to the founder, the trustees, and the benefactors; and upon the soundest legal principles, the charter may be properly deemed as a several contract with each of these parties.”</p> <p>In the case of the Portland Bank vs. Apthorp (11), it is said by the Court, that “ the effect of the charter was to give to the individuals who applied for it, and their successors, a right to act as a body corporate and politic in the management of their common funds, under the restrictions and regulations provided in the charter.” The same doctrine is laid down in Rex vs. Pass- [ * 250 ] more (12), * and in Rex vs. Dr. Askew (13) ; and in the case of Ellis vs. Marshall (14), the Court decide, that “ no person can be made a corporator against his consent.” For the same reason we say, he cannot be continued a corporator against his consent, when the charter expires. If a person is not bound to accept an original grant, how can he be obliged to accept an additional grant ? If all the corporators do not assent to the new grant, it follows that the second act, without such assent, is a new contract, and creates a new corporation.</p> <p>The original act of incorporation was a grant to certain individuals : upon their acceptance of which they were bound fo.r a limited time ; and whether they should continue a body politic be- and that time, is a question to which the individuals must again ce parties. The creation of a new corporation, after the death of the old one, makes another body (15). The petition of the corporation, therefore, for a continuance, is not sufficient. • The assent of the corporators should have been obtained; for to them the original grant was made. The renewal of the charter was not a subject upon which the corporation, as such, had a right to act. It was in the nature of a limited power, given by the corporators. The corporation may be considered as a trustee or agent for the individual corporators, for certain purposes and for a certain time. But the agent could hot subject the principals to a longer continuance of the power (16).</p> <p>But the renewal of the charter was not accepted by the corporation, by any act or vote. On the contrary, it was voted to dissolve the corporation, at the time limited in the original act.</p> <p>The necessity of the assent of the stockholders in the bank appears from the effect of this second act upon their property. The members of a corporation part with the absolute control of their property, and subject it to the control of others, viz. a majority of the corporators; and if they have assented thereto on certain terms, or for a * certain time, they cannot be [*251] compelled to assent on other terms, or for a longer time.</p> <p>The act of the stockholders, in placing their funds in the bank, may be considered as a bailment for twenty years. Can the bailment be continued at the pleasure of the bailee, without the consent of the bailor? The late act takes from individuals the control of their own property, longer than they had contracted for.</p> <p>The corporation was also a contract between the several corpora-tors, who agreed with each other to obtain an incorporation, and that the joint fund should be managed by a vote of the major part. By the terms of this agreement, the several partners had a right to withdraw their respective portions of the fund at the end of twenty years. The late act is in violation of this contract. [Mr. Saltonstall enlarged upon this point.]</p> <p>The act is also in violation of contracts between the corporation and strangers. It does not merely give a new remedy, to compel the performance of existing contracts, but gives to contracts a longer duration. It is an implied part of every contract with a corporation, that it must be enforced during the life of the parties, and must otherwise cease to exist. The recovery of debts is as much limited to the life of the corporation, as an action of trespass to the life of the trespasser, or a lease for years to the end of the term. A law therefore extending the liability of persons on such contracts beyond the existence of the corporation, impairs their obligation, by lengthening their duration. In the case of Sturgis vs. Crowninshield, the Court say, “ If, in a state where six years may be pleaded in bar to an action, a law should pass, declaring that contracts already in existence, not barred by the statute, should be within it, there could be little doubt of its unconstitutionality.” If then a law would be void, which restrained the existing rights of a creditor, and deprived him of his action, why should not one be void, which restricts the rights of a debtor, and deprives him of his defence ? The ¡ * 252 ] debtor has as much interest in the * right construction of the contract, as the creditor has. In the case of King vs. The Dedham Bank, it was decided that “ no act of the legislature can alter the nature and effect of an existing contract, to the prejudice of either party,” &c.</p> <p>The act in question is also retrospective as to the Essex Bank. Retrospective laws are repugnant to natural justice, and, strictly speaking, are no laws (17).</p> <p>If the act does not revive the corporation, the plaintiffs’ action must fail. An action cannot be maintained against a corporation, after the expiration of the time limited by the charter for its existence. The contract dies with the corporation, the artificial person. “ The debts of a corporation, either to or from it,” says Judge Blackstone, “are totally extinguished by a dissolution” (18). If a corporation bind themselves in a bond, and are afterwards dissolved, they shall not be bound in their natural capacities (19). The corporators cannot, as individuals, bind the corporation; neither can the corporation bind the individuals.</p> <p>There is no implied condition, that a charter of incorporation shall not expire until the debts are paid. On the contrary, the understanding is, that the remedy will be lost, unless enforced before the expiration of the term. In the case of Vose vs. Grant (20), the Court say, “ a corporation may die, or become insolvent, like any other person. The time of its dissolution is known beforehand ; and this is an advantage to creditors, if they would make use of it.” If they do not make use of it, they must suffer by their loches; there is no hardship. In case of fraud, the Court intimate, that the individuals concerned would be personally liable.</p> <p>Pickering. The question at present before the Court is, whether the charter of the Essex Bank is now at an end to all intents and purposes, or has been continued in force, for certain purposes, by the law of June last, which was enacted before the expi [ * 253 ] ration of the twenty years * mentioned in the charter. And the decision of this question will rest principally, if not altogether, upon the validity of that act. The act is a general one, extending to all corporations, that then were, or thereafter might, be established, and -whose powers would expire, either by express limitation in their charters, or otherwise.</p> <p>The counsel for the defendants contend, that notwithstanding this act, the corporation is dissolved, and the action is at an end; because the act itself is unconstitutional and void ; it having passed without their assent, and being retrospective in its nature, and infringing rights secured to them by their charter.</p> <p>Before considering the questions now raised, we suggest that it is agreed by all our courts, that a law is not to be pronounced unconstitutional, except in a very clear case ; so that the judge (to use the language of the Supreme Court of the United States, in the case of Fletcher vs. Pede, cited for the defendants) “ feels a clear and strong conviction of their incompatibility with each other.” The same caution has been observed by our state courts in various instances ; as in this Court, in the case of Kendall vs. Payson (21). This reserve on the part of our courts is founded, as they have observed, upon the respect always due to the legislative body of a state; who, it is to be presumed, would never intentionally violate the rights of the citizen. If, therefore, in the present case, the Court should merely be left in a state of doubt, they ought to declare the law to be constitutional and binding. Under this view of the duty of the Court, we shall submit our views of the question now raised.</p> <p>It is undoubtedly true, as a general rule, that laws should operate prospectively; but this, like all other general rules, admits of exceptions. And the code of the civil law, from which our law has borrowed the maxim, adds to it, nisi nominatim et de prceterito tempore et adhuc pendentibus negotiis cautum sit; which exception is given in a more extended form by Domat, who says,</p> <p>“ Unless for particular * reasons, the new laws indicate [ * 254 ] expressly that their provisions are to apply to the past; or unless, without such indication, they must serve as a rule to past things,” &c. Such is the language of the civil law, which is the basis of the different codes adopted on the continent of Europe; and it need hardly to be observed, that the same general rule has been incorporated into the English law. But in England, also, exceptions to this rule are recognized; and to such a length has the principle of the exceptions been carried, that, as every lawyer knows, it was not long ago a settled rule of construction in the courts of that country, that an act of parliament, which was to take effect from and after the passing of it, should operate from the first day of the session, let the act have been passed on what day it might during the session. This rule was declared by the Court of King’s Bench, in the case of Latless vs. Holmes (22), to have been “ so long settled, that L could not have been shakenand the court refer to one case, ia which “ the life of a person,was affected” by the operation of it and it could only be abrogated, as Christian observes, by parliament (23). And if it should happen in this commonwealth, either by accident or any other cause, that a statute should be enacted without a date, the Court, as we conceive, must govern themselves by the same rigorous role.</p> <p>In our own state, and indeed through all the states of the Union, the same general principle of law is recognized, either by express constitutional provisions, or as a rule of the common law. In the constitution of this state, the principle is expressly recognized to a certain extent (that is, in regard to persons or personal rights) in the clause prohibiting ex post facto laws. For, as Judge Chase observes, in the case, of Calder & Ux. vs. Bull (24), every ex post facto law is 'retrospective, but every retrospective law is not ex post facto. The reason why our own constitutional provision is limited to f * 255 ] ex post facto laws alone, and not * extended to retro spective ones also, will be presently considered.</p> <p>The eminent judge just mentioned, however, instead of carrying the prohibition against retrospective laws to the extent which will be necessary for the defendants in the present case, uses this quali tied language, when speaking of such laws. “ Every law, that takes away fights vested agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and it is a good general rule, (hat a law should have no retrospect. But there are cases in wn'ch laws may justly, and for the benefit of the community, and a.so of individuals, relate to a time antecedent to their commencement ; as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. Every law, that is to have an operation before the making thereof, as to commence at an antecedent time, or to save from the statute of limitations, or to excuse acts which were unlawful and before committed, and the like, is retrospective. But such laws nay he proper or necessary, as the case may be.” The same view of this subject, as connected with the provision of the federal constitution, has been repeatedly taken by this Court (25).</p> <p>In conformity with the reasoning in the cases referred to, must have been the general understanding of those statesmen who framed our state constitution. The prohibition in that compact against retrospective laws is restricted to that class technically called ex post facto, and bills of attainder. The provision in the federal constitution is restricted in the same manner, and does not extend to all retrospective laws; for Paterson, J., says, in the case of Calder & Ux vs. Bull, before cited, he had an ardent desire to have extended the provision in the United States constitution to retrospective, as well as to ex post facto laws.</p> <p>The convention, which framed the constitution of this commonwealth, were not a collection of mere abstracted * persons, who had no habits of society, and no common [ * 256 ] principles, which were, by tacit consent, to be the fundamental rules of their particular state of society. On the contrary, many things were assumed, as tacitly agreed to by every individual of the society. Each member brought with him the habits and principles derived from the colonial and provincial governments, which were themselves founded upon the common law of England. They well knew that, under the former government, it was the practice to pass laws of the kind in question, conformably to the principles of the common law; and' when they entered into the constitutional compact, they were presumed to do it subject to this right, which was tacitly yielded to the sovereign authority, of passing limitation acts, confirmatory and other laws, to such an extent as the public good might require; notwithstanding such laws might, in some degree, affect the rights of individuals considered in the abstract.</p> <p>So far, indeed, as government may be considered a contract, it must be interpreted as other contracts; and it is a familiar principle, that in all contracts many things are implied or taken for granted, without any express mention of them. The long acquiescence of parties to a contract, in respect to subjects which might originally appear questionable, is also very justly held to be evidence that those subjects were originally intended to be comprehended in the contract. Generally speaking, therefore, retrospective laws do in fact only provide for a class of cases, which must be presumed to be tacitly excepted from the rigorous operation of the general laws of a society.</p> <p>It being then undeniable that the general principle, which forbids the making of retrospective laws, admits of some exceptions, it will always be a question for the discretion of the legislature of a country, (under the restrictions of the express or implied compact of the government) how far it may be expedient to enact laws of that description. This is undoubtedly, in many rases, a question of great difficulty, and one which can never be decided in the * abstract; because different societies of men, where [ * 257 j the written constitution of a state is silent, will have more or fewer implied exceptions to the general principle, according to the habits, laws, and usages, which they may have derived from their ancestors. We may, however, in most cases safely infer that, where retrospective acts of various kinds have been long acquiesced in by á community, it must have been the tacit understanding of such society to permit those laws to be made. We therefore think it important to call to the recollection of the Court various instances of retrospective laws, passed in this state, and either acquiesced in, or expressly questioned and adjudged to be constitutional; and in this way we may arrive at a more satisfactory opinion, as to the extent to which such laws may be considered as permitted by the community composing our own commonwealth. These are of various kinds.</p> <p>1. Limitation acts, which have been already adverted to. The legislature has constantly exercised the right of enacting laws of this class, under the provincial and the state governments; as they have also of suspending limitation acts. This was done, as the Court observe, in the case of Holden vs. James, Adm. (26), with respect to the statute of 1786, c. 52, for the limitation of personal actions; which, by the statute of 1790, c. 20, was suspended as to certain kinds of actions. And the reason given in the preamble of the suspending law is, that the operation of the said act for the limitation of personal actions, &c. may defeat of their just demands many creditors, &c. And by the statute of 1792, c. 82, the limitation act was still further suspended for similar reasons; all which reasons may be comprised in this, that the public good required it. Yet it might have been urged by debtors, whose obligations were thus opened again, that they had certain rights vested under the existing laws, and that the legislature had no authority thus to infringe those rights, by compelling them to pay debts which had been f * 258 ] cancelled by the laws of the * land. Just as, in the case at bar, the defendants contend that, by the terms of their charter, they were not to be held liable for any debts after its expiration, notwithstanding the statute for continuing the charters of corporations; a statute exactly analogous to the suspending acts already mentioned; except that it is, if any thing, less liable than those to the objection of inequality, because it gives both the debtor and creditor the advantage of further time ; whereas by the acts to suspend the statute of limitations, it was the creditor only who was to be benefited, while the debtor was subjected to positive loss. Now, whatever may be thought of statutes of limitation, and the acts for suspending them, theoretically considered, this Court has uniformly held them to be within the authority of the legislature. In the case of Holden vs. James, Adm., just referred to, they observe that “ there is no doubt the legislature may suspend a law, or the operation of a law, whenever they shall think it expedient.” After which the court put, as an example, the suspension of limitation acts. It is true that in that case the court held, that a general law could not be suspended, in favor of an individual, by a particular resolve of the legislature; but the suspending law must be a general one.</p> <p>2. Another instance, in which retrospective laws have been held to be constitutional by this Court, is that of the statute of 1785, c. 52, abolishing joint tenancies, which was considered in the case of Holbrook vs. Finney (27), and was adjudged to have effect upon tnat ;ose, although enacted subsequently to the execution cf the deed hen in question; and Parsons, C. J., expressly says, “This statute has a retrospective effect, and comprehends this conveyance; and there seems to be no constitutional objection to the power of the legislature to alter a tenure, by substituting another tenure more beneficial to all the tenants.” Yet here, according to the principles contended for by the defendants, certain vested rights were infringed by the government, without the consent of the parties interested.</p> <p>* 3. Another well-known case of retrospective laws is [ * 259 ] that of the statute of 1808, c. 92, confirming the boundaries of gaol yards, previously assigned by courts of sessions, which was enacted, as is understood, in consequence of the decision in Bartlet vs. Taber (28), where the court held, that private estates, not under the control of the sheriff, although within the gaol limits, were not to be considered as within the gaol yard, technically speaking. Notwithstanding the manifest retrospective force of this act, it was held in the case of Patterson vs. Philbrook (29) in this Court, that the entry of a prisoner, having the liberty of the yard, upon such private property, although it had happened before the passing of the act, was not to be considered an escape. The plaintiff in that case was accordingly deprived of his right of action, by a law passed while his suit was pending. The same opinion had been before given in the case of Walter vs. Bacon Al. already cited. To this statute may be added that which fixed a limitation of one year to suits upon bonds given for the liberty of the gaol yard; which was adjudged to be constitutional, in Locke vs. Dane & Al. (30).</p> <p>4. Another class of retrospective laws, which have been held to be constitutional, are those respecting personal rights or privileges; such as the laws which have from time to time altered the exemptions from military duty. In the case of the Commonwealth vs. Bird (31), one of the militia laws (32) was expressly objected to, on the ground that it deprived the respondent of an exemption to which he had a right by former laws. But the court overruled the objection. Another case within this principle, is that of graduates of Harvard College, who were originally exempted from militia duty, but have since been subjected to it. This last case has not perhaps come before this Court.</p> <p>5 Another instance is in the statute of 1805, c. 37, respecting divorces, which was brought under the consideration of [ * 260 J the court in West vs. West (33). This act is *made to extend to cases of divorce that should be prosecuted after the passing of it, whether the facts, upon which the divorce should be decreed, were committed before or after that date ; and it was held to be constitutional, although it essentially diminished the rights of the husband, as to the property received by the intermarriage.</p> <p>6. The statutes giving remedies against corporations, by warrant of distress and other process. One of these (34) expressly relates to cases where judgments have been rendered against corporations, as well as to future cases; and the creditor has a right, by it, to seize the franchise and sell it. We are not indeed aware of any adjudication upon this act; but we presume it is as clearly within the power of the legislature, as the instances before mentioned.</p> <p>7. There is a large class of laws of a retrospective nature, respecting corporations of the kind now in question; as the statute prohibiting the banks already incorporated (except in Nantucket) from issuing bank notes under five dollars (35) ; although by their charters they were under no restriction of that kind:—The statute of 1808, c. 99, requiring the existing banks to use the stereotype plate, &c.:—The statute of 1809, c. 37, imposing a penalty of two per cent, a month upon banks that should refuse payment of their notes in specie. In the case of Brown vs. The Penobscot Bank (36), the court held that this act was constitutional, and should take effect m that case, although that bank had its charter granted several years before:—The statute of 1812, c. 57, for continuing the charters of a certain class cf banks, which were about expiring, in order to enable them to close their concerns, &c. And although we are not aware of any express decision upon this act, yet in Vose vs. Grant (37) it was brought into discussion, and no intimation is given by the court of its being unconstitutional, but the contrary is assumed in the reasoning upon it:—The statute of 1812, c. 32, impos- | * 261 ] ing a tax upon banks, whether incorporated before *or subsequently to the act. This was decided to be co?isti-</p> <p>tutional in The Portland Bank vs. Apthorp, Treasurer, &c. In addition to these acts, we will cite but one or two others. By one, the real estate of all banks, now incorporated, or hereafter to be, &c. is made liable to the payment of their debts (38) ; and by another, these corporations are made liable to heavy penalties, if they neglect to make their semi-annual returns to the governor and council; and the act is'to apply to such as then were, or afterwards should be established (39).</p> <p>We may further ask, By what authority does the legislature (upon the defendants’ principles), in the insolvent laws, give a priority to the debts due to the commonwealth, whether contracted before or after those due to individuals, thereby infringing the strict rights of citizens ? If it is said, that parties, in making their contracts, are aware of this restriction, we answer, that the same reasoning w; 1 justify the retrospective limitation acts, suspending laws, &c.</p> <p>The late statute, extending the equity powers of this Court (40), is another example of a law that may operate retrospectively, and perhaps as strong an instance as any we have cited; to which we may add the statute exempting certain articles of property from attachment (41).</p> <p>From the preceding review of the opinions of eminent jurists, and of adjudged cases, it manifestly appears that there are, by the laws of all states, many cases in which the sovereign power may enact laws which theoretically speaking, are retrospective. And whence, it may be asked, does this arise ? From the necessary imperfections of human society. If society were so perfect as never to be in need of occasional remedial and equitable regulations, by means of retrospective laws, it would, perhaps, hardly need any laws.</p> <p>But we shall be asked, perhaps, if there is no limitation to this power of enacting retrospective laws. Unquestionably there is in all communities; by that tacit consent * which [ * 262 ] has before been mentioned; and to what particulars such consent is given, must be learned from the habits and principles of the particular people who compose any such community.</p> <p>A community of Frenchmen, for example, would be presumed, if *heir compact of government was silent, to agree that the age of minority should be twenty-five; and that alf lawsuits should he decided by a judge, instead of a jury; while, on the other hand, a community of Englishmen would be presumed to have agreed to limit the age of minority to twenty-one years; and that the tiial by jury should be a fundamental principle of their state. In like manner, associations of smaller kinds, such as the various learned professions, literary institutions, corporations for all the various and complex purposes of civilized society, presuppose a tacit consent to certain fundamental principles, which will differ according to the different habits of their members. When, therefore, it is once admitted that there are certain limitations of the abstract rights of men, it becomes a mere question of expediency with -the sovereign power of a state, to what extent such limitations shall be carried; subject only to this restriction, that the retrospective provisions of laws sha I be reasonable as respects the whole community.</p> <p>One well-settled distinction, however, in regard to retrospective .aws, appears to have been universally recognized by courts of justice • that the legislature may enact retrospective laws affecting the remedies, but not the rights of parties, as they are usually called. It may indeed be difficult, in many cases, to determine whether a law affects the one or the other; because every remedy is, in a certain sense, a right. But when the court shall have once arrived at the conclusion, that a law does unequivocally belong to the one or the other of these descriptions, they feel no hesitation in the opinion they ought to pronounce, as to its constitutionality.</p> <p>[ * 263 ] * Now, the statute at present under consideration is, as we conceive, a law respecting a remedy, and not the rights of the bank or the public. We say of the public, as well as of the bank; for by what rule of justice shall a bank be allowed to prolong its charter, and thus hold individuals liable (after the expi ration of the original grant) who had made their contracts with it, upon the supposition that the charter was to terminate at a day certain, and that they should have the legal advantage, if any, of such known period of its termination ? By what rule of justice shall this privilege be allowed to the corporation, and withheld from the individuals who have dealings with it? A debtor to the bank might adopt the language of these defendants, and say to the government, that they had no right to prolong this charter, and prevent his having the advantage of the legal bar to suits, which is now claimed by the corporation. The statute in question merely provides, that, all rights of action, both against and in favor of the several corporations in the 'commonwealth, shall remain undisturbed for three years; in other words, that the limitation of actions, for and against them, shall be suspended for that term of time. In the present case, too, it may be observed that the action was commenced long before the act was passed, and before the expiration of the charter took place; but perhaps the principle would have been the same, if it had not been thus commenced.</p> <p>Let us suppose that, instead of this form of remedy, the legislaturc had thought fit to make a law, that upon the expiration of the charter of any corporation, all the liabilities, and all their own rights of action, should be transferred to, and vested in, the last-appointed president and directors, as trustees, in the nature of an administration upon the estate of a deceased person; and that those trustees should, for three years, be liable to the suit of any person having demands against such corporation, and that all the property of the corporation should be held liable * for such [ * 264 ] demands:—can it be doubted that such a law would be constitutional ? Or suppose that the legislature should declare that hereafter actions should be brought against persons deceased by name, instead of their administrators, might not such a provision be constitutionally made ?</p> <p>But it is said, that the government has made a contract with these corporators, who are to enjoy their chartered rights undisturbed ; and that the present statute impairs this supposed contract, and is therefore unconstitutional and void. This leads to a brief consideration of the nature of this supposed contract, which in fact is nothing more than constituting the corporation a legal person, a subject of the state for certain purposes, chiefly of a public nature, or of public utility. That such is the nature of a charter is expressly laid down by this Court in the case of the Portland Bank vs. Apthorp, before cited, where they say, “ The object of the charter is to enable them in a body to conduct their business as an individual, to make contracts and to enforce them as such, avoiding the inconveniences of a copartnership. This is all that is asked for by the company, and all that is given by the charter.” Now, in making this grant, can it be supposed, for a moment, that the government intended to relinquish' ihat control, which it must possess over all its, subjects ? Would the government grant to these defendants an exemption from the gen eral laws, which the public good may require in respect to them, as well as other subjects or legal persons ? On the contrary, it must ever be presumed, that the government intended to reserve the necessary power of compelling corporations, like individuals, to do justice, to perform their engagements. It would be a flagrant breach of duty in the government to relinquish this power. It is very justly observed by the attorney-general in the case of the quo warranta against the city of London (42), that “whenever the law introduces or allows any right upon trust, or for the benefit of the public, it implies a condition, *that the trust be [ * 265 ] discharged, and the ends of its creation complied with.</p> <p>This condition implied by law is of stricter obligation, than candi lions express: it shall bind even infants and femes covert.” And then cites in support of his position, 8 Co. 44, which is a case respecting offices; but, as he observed, so it is of all liberties and franchises, &c. Now, banks are one kind of public institutions, established for the real or supposed benefit of the public; and the government must have the power contended for, of regulating their acts in such a manner as the public good requires.</p> <p>So far, then, as the charter is a contract, it must be held to have been made subject to all those paramount rules of justice which are implied in all contracts; above all, that the bank shall conduct their affairs with honesty and due care; and, as a necessary consequence the bank agree to submit to all just and equitable remedies, for the non-performance of their duties.</p> <p>The nature of the contracts mentioned in the constitution of the United States, and the distinction between the obligation of a contract and the remedy to enforce it, are clearly laid down by the Supreme Court of the United States, in the case of Sturgis vs. Crowninshield, referred to by the counsel for the defendants, where the Court observed that the distinction “ exists in the nature of things. Without impairing the obligation of the contract, the rem edy may certainly be modified, as the wisdom of the nation shall direct,” &c. The same Court, in another case, further illustrate the nature of these chartered rights or contracts (43), and refer to the case of Young vs. The Bank of Alexandria, 4 Cranch, 384.</p> <p>It is said that the corporation have vested rights, as they are called, by force of this contract. What are those rights ? They are neither more nor less, than all such as are expressly mentioned, or tacitly understood, by the parties to such a contract: and when we attempt to ascertain them, we must again have recourse to the [ * 266 ] original * compact of the state with its subjects, agreeably to the view taken in the former part of the argument.</p> <p>It seems to have been taken for granted, that corporations are a kind of privileged subjects, who are not to be liable to the same obligations with the other subjects of the state. But this opinion is wholly unfounded; as appears by the reasoning in our own courts, already referred to, to which we might add also the authority of the civilians. Huber says, Jus quo universitates utuntur, est idem quad habent privati, &c. (44) ; and agreeably to this principle it is laid down, that corporations shall be answerable ex delicto, as well as ex conventione</p> <p>It may a.so be important, in a question of this nature, to consider the consequences of the doctrine, upon which the defendants must rest their case. A corporation may, if so disposed, accumulate the money of individuals in their vaults; their officers and servants may, as in the present instance, embezzle it; and then the corporation may dissolve itself, and leave nothing to satisfy the claims of parties thus defrauded. In short, it is impossible to estimate the mischiefs which will result to the public, if the legislature have not the power to impose such restrictions as we contend for, upon corporate bodies already existing, as well as future ones.</p> <p>Upon this view, therefore, of the question before the Court, the law under consideration, being a general one, and being intended only to continue corporations for the limited object of closing theii concerns, and of suing and being sued, for causes of action already existing, must be held to be merely remedial, and not affecting the rights of parties, technically speaking: consequently, according to the settled principles of our government, it must be adjudged to be within the constitutional powers of the legislature.</p> <p>Webster. To determine whether this act impairs any rights of the parties, it is necessary to ascertain what those rights were independently of the act in question. * The plain- [ * 367 ] tiffs must be taken to be creditors of the corporation.</p> <p>They have a claim with all prima facie evidence in its favor; and are therefore creditors as far as they can be before judgment. As creditors they have a right to payment out of the funds of the corporation. If the corporation should dissolve, leaving their demand unsatisfied, there can be no doubt that they would still have a right in equity, to follow the fund, and charge their debt upon it in the hands of those who should have possession of it.</p> <p>The plaintiffs thus having a right to be paid out of the corporate property, and the persons who have obtained possession of this property having no right to withhold it from them, what right is violated by this law ? It was obviously intended to enforce rights, not to violate them. It gives a remedy, new indeed, but reasonable and practicable, for a manifest existing right. It neither increases the debt, nor varies the contract between the parties. It merely holds the corporation answerable for its obligations, until it fulfils them ; and gives a new remedy to enforce their fulfilment. It is intended to enable the plaintiffs, and others in similar circumstances, to recover their money. Have they not a right to it? It is intended to compel those who hold the funds to pay the debts. Ought they not to be thus compelled ? It is therefore a law giving a new remedy for an existing right; against which there can be no objection.</p> <p>The statute is general, and governs other cases as well as the plaintiffs’. If it were a private act, applicable to a particular case only it might be thought a more questionable exercise of legislative power; because the true notion of law is, that it is a general and permanent rule of conduct. It has been the practice of the legislature of this commonwealth, for many years, to create corporations for a great variety of purposes, for limited periods. Many of these corporations are about expiring; and the single question, as far as the present case is concerned, is, whether the legislature [ * 268 ] may not, before they expire", * provide a mode, in which their concerns may be settled (equally for the benefit oi themselves and others), by the collection and payment of their debts</p> <p>There could be no objection to a provision by law, for the ap pointment of an administrator, eo nomine, of the effects of an expired corporation; or for making the president, or the president and directors last in office, trustees to collect and pay debts, for the benefit of all concerned. Instead of either of these modes, the legis lature has enacted that the corporate existence shall continue, so far only as shall be necessary to accomplish these purposes. It has in effect declared, that there shall still be a president and directors, with powers only to administer the remaining funds, and to collect and pay the debts, which were of the corporation.</p> <p>It is not easy to conceive what contract this violates. The government has never stipulated that this corporation should have, at any time, an exemption from its debts. There is no contract, in its charter or elsewhere, that if it expires leaving debts unpaid, the funds shall not be followed for the benefit of creditors, in any mode or form of remedy which the law may prescribe.</p> <p>All the cases cited by the counsel for the defendants are such, in which some vested right has been affected, or some new contract made, or attempted to be made, between the parties. The general principle of those cases is, most unquestionably, a sound one, and of great importance to be observed. But a distinction must be made between acts which affect existing rights, or impose new obligations,—and acts which give new remedies for existing rights, and enforce the performance of previous obligations.</p> <p>This statute is as strictly remedial, as the late statute giving further relief in equity (45) ; and yet no one doubts the propriety of applying the provisions of that statute, as a remedy to enforce the performance of contracts previously made. Perhaps it [ * 269 ] might have afforded a remedy in this * case; but it wou.d be liable to all the objections which have been urged against the present act; the whole amount of which objections is no more, than that a new remedy is given by law to enforce existing contracts.</p> <p>This statute is not retrospective in any just sense of that term. A retrospective law has been defined to be a law which takes away or impairs vested rights. But if it be the object and operation of this law to confirm and enforce rights, and to provide adequate and suitable remedies for the violation of them, it cannot be within the definition.</p> <p>The cases, which have been cited for the defendants, are not like this. In the Dartmouth College case, the legislature of New Hampshire, by a special act, undertook to abolish, in effect, a private corporation, and to give its property to others. The corporators were deprived of their own property, without forfeiture, without trial, without even the imputation of a fault. Fletcher vs. Peck was a case, in which the legislature of a state undertook to resume its own grant, and that after third persons had obtained an interest in the land granted. In the case of King vs. Dedham Bank, this Court held that an act of the legislature could not have the effect of altering a private contract, subsisting and unbroken between the parties at the passage of the law, by varying the terms, or imposing new duties on either party, in regard to the sum to be paid, or the place or time of payment. Or in other words, it could not enact that the parties had made a contract, which they never had made. The present case is like none of these. It is but a general provision, giving new remedies prospectively, for cases in which corporations might expire by the limitation of their charters, leaving their affairs unsettled.</p> <p>It is of no importance, whether the inducement of the legislature to pass the law grew out of an expected difficulty in regard to this particular corporation or riot. Inconvenience, felt or apprehended, is the ordinary occasion * of legislation. The [ * 270 ] statute is general, and its provisions seem to be beneficial to all parties, and to be within the proper exercise of legislative power.</p> <p>Prescott enforced the arguments of Saltonstall, and replied to those of the counsel for the plaintiffs. The opinion of the Court (46) upon this preliminary question was delivered at the same term, by</p>

<p>The question in this action was whether, upon the disclosure of Burroughs, he was to be holden as the trustee of the principal de* fendant. The following are the facts stated in that disclosure.</p> <p>The defendant had deposited in the Union Bank, of which Burroughs was the cashier, the sum of 2451 dollars, 65 cents, which the directors of the bank had ordered to be retained for the security' of the bank, until all the notes in the bank, on which the defendant was promiser or endorser, amounting to a much larger sum, should be paid; and Burroughs considered himself as having no control over the said deposit, more than any officer of the bank. The defendant had also assigned to Burroughs, as cashier of [ * 276 ] * the said hank, fifty shares of the stock of the Neiu England Marine Insurance Company, by a writing of the following tenor: “ For value received, I hereby assign and transfer to George Burroughs, cashier of the Union Bank, fifty shares of the capital stock of the New England Marine Insurance Company, now standing in the name of Gardner L. Chandler. Witness my hand, this 4th day of August, 1818. Signed, G. L. Chandler.” Atthe same time the defendant also assigned to Burroughs ten shares of the stock of the Union Bank, by putting his name on the certificate of the said stock, and placing the same in the hands of Burroughs, which assignments were made as collateral security in the hands of Burroughs, for the benefit of the bank, to secure the payment of the defendant’s note to the bank for 6000 dollars, payable on demand with interest. Burroughs had also received a dividend of profits on each of the said stocks, the amount of which was carried to the defendant’s credit in his account with the bank. The agreement by Burroughs to hold said shares, as collateral security, as aforesaid, was understood between him and the defendant, no writing being given; but the business was done in the usual course of taking collateral security of that kind for the bank; a verbal agreement being made, that if the note, for which the stock was intended as collateral security should not be paid, the assignment was to be considered as completed by the delivery of the certificates endorsed by the debtor. And it was understood that Burroughs was authorized, when ordered by the directors of the bank, if the note was not paid, to sell the stocks, and with the proceeds of such sale, the dividends and the deposit, at the will of the directors to pay the note ; and the surplus, if any, to pay to the defendant, or to hold for his account. The value of the said stocks, dividends and deposit, greatly exceeded the amount of all the demands which the bank held against him.</p> <p>The cause was aigued at the last March term in this county, by Gorham for the plaintiffs, and Bigeloiv for the [ * 277 ] * defendant; and the action being continued nisi for advisement, the opinion of the Court was delivered at the last July term in Plymouth, by</p>

<p>Case against the defendants, as bailiffs and receivers of the plaintiffs, and assumpsit for money had and received.</p> <p>At the trial, which was had upon the general issue, before the chiel justice, November term, 1819, it was proved or admitted that the plaintiffs were the children, and five out of nine of the heirs at law of Abraham, Gibson, late of Boston, deceased, intestate ; that the defendants were * administrators of the [ * 281 ] estate of the said deceased, appointed on the 15th of July, 1816 ; and that J. P. Cooke, Esq. was duly appointed the guardian of the plaintiffs, on the 29th of the same July.</p> <p>The said Abraham died seised of real estate, to a considerable amount, in Boston and elsewhere. A greater part of that situated .n Boston, and some in Cambridge, was under mortgage ; but the mortgagees did not enter for condition broken. At the time of the decease of the intestate, and when the letters of administration were granted, it was supposed that his estate was sufficient for the payment of all his debts. It was then deemed inexpedient to make partition of the real estate among the heirs, as part thereof would be wanted for the paymentof the debts; and before letters of guardianship had been issued, the defendants began to collect the rents of the estate, with the intention of accounting therefor according to law. They collected the rents of the mortgaged estates, until the sale of the equities of redemption thereof; and of those unencumbered, from the decease of the intestate in July, 1816, until March, 1818, when they ceased receiving the same, and the guardians of the heirs from that time received the rents, until the sale of the estates by the administrators for the payment of the debts of the deceased. A part of these sums was received from tenants, who were such at the time of the intestate’s decease, and who continued their occupation; and a part was from tenants who entered under contract with the administrators. A part of these, sums had been paid to the guardian of the plaintiffs for their use, under an express reservation that it should not prejudice the rights of either party ; and he might have received the whole proportion thereof, to which he supposed his wards entitled, on his giving the administrators a sufficient indemnity.</p> <p>The widow of the deceased had recovered her dower in that por tian of her husband’s estate which was situate in Boston, [ * 282 J in an action against the plaintiffs and the other * heirs, with damages for the detention, and costs, amounting to 1964 dollars.</p> <p>The defendants had settled two accounts as administrators, in the probate office, after the receipt of the said rents; in neither of which they charged themselves therewith ; nor had they'been required so to do by the judge of probate. But they had awaited the decision of the proper tribunal thereon.</p> <p>The estate of the deceased finally proved insolvent; and these rents, if credited to the estate, would not render it sufficient to pay all the claims proved and allowed against it by the commissioners of insolvency.</p> <p>The judge directed a nonsuit, in order to bring before the whole Court the question as to the right of the plaintiffs to recover the moneys so received as rents by the defendants. If the action was maintainable, the nonsuit was to be set aside, the defendants defaulted, and judgment rendered for the plaintiffs, for their proportion of the rents so received.</p>

<p>Where the defendant pleads that by the contract sued there is reserved more than lawful interest, and tenders his oath, it is sufficient for the plaintiff to reply that such interest is not reserved, and to swear to the same without averring that unlawful interest has not been taken or received.</p>

<p>The name of a person subscribed to a promissory note, with intent to attest the signing thereof by the maker, is a sufficient witnessing within the statute of limitations, although there are no words over the. name, indicating the intent of his subscription.</p>

Debt on a bond given to the plaintiff, judge of probate for this county, by the said Winship, as principal, and the other defendants as his sureties, conditioned for the faithful administration of the estate of Edward Tyler, deceased, of whose last will the said Win-ship was appointed executor. After oyer had of the bond and its condition, which were in usual form, the defendants plead that Winship- omnia performavit.

<p>Case against the defendant, a deputy sheriff of this county, to recover damages for his not keeping goods, attached at the suit of 'the plaintiffs against one John Gulliver, until final judgment, so that they might have been taken in execution.</p> <p>It was agreed by the parties that, on the 11th of May, 1818, Calvin Washburn and twelve others were either creditors of Gulliver, in consequence of loans of money made to him before that time, or were responsible as endorsers or sureties on his promissory notes, which had not become payable. Some of the said persons, apprehensive of sustaining a loss by reason of the failing circumstances of Gulliver, required security from him; and in order to obtain this object, it was agreed that he should make his promissory note, payable jointly to those persons, for the sum of 5500 dollars, the exact amount of their loans or liabilities not being then ascertained ; and that a suit should be instituted on said note, and an attachment laid on his stock in trade; and on recovering judgment a distribution of the proceeds arising from the sale of said stock should be made among them, so far as should be necessary for their indemnity. Such an attachment was made, and' the action entered at the Court of Common Pleas, July term, 1818. Afterwards, on the same day, but not until after other attachments had been made, an agreement was made between Gulliver and Washburn, and the other twelve creditors, by which certain sums were to be received by the latter from the proceeds of the goods, if sufficient therefor, and the surplus, if any, to be paid over to Gulliver.</p> <p>Immediately after the attachment aforesaid, several other creditors of Gulliver sued writs, which they delivered to the defendant, with directions to attach the same * stock. Of these [ * 295 ] second attaching creditors, the present plaintiffs were the last in order. Washburn and the other first attaching creditors, having ascertained the sums due to them respectively, it was agreed that judgment should be rendered in their suit for the amount of those sums only. Afterwards, and before the sitting of the court at which the writs of attachment were returnable, the said first and second attaching creditors, believing that the goods attached would lessen in value, and that the proper season for selling them would be lost, if they should be kept until final judgment could be obtained, addressed a letter to the defendant, directing him, for the purpose of preventing waste and expense, to cause the goods he had attached to be sold at public auction, and to hold the proceeds thereof to satisfy the judgments to be recovered, in the order of the respective attachments. The plaintiffs refused to sign the letter, or to assent to the sale.</p> <p>Gulliver having given his consent to the sale, the defendant, in conformity to the said directions, and having first advertised the sale in the manner prescribed for sales upon execution, proceeded to sell the goods attached, under the management of duly licensed auctioneers</p> <p>Before the said sale it was ascertained, and was known to the defendant’, that the said goods were not worth, and would not produce upon a sale thereof, a sum sufficient for the payment of the first attaching creditors, and of those of the second attaching creditors who were prior in order to the plaintiffs. The sa’je was fairly conducted, and a greater sum was produced, than would have been, if the goods had been kept and sold upon execution.</p> <p>Judgment was rendered in all the suits at the same term ; and after satisfying the executions in favor of the first attaching creditors, there did not remain in the defendant’s hands, of the proceeds of the goods sold as aforesaid, a sufficient amount to satisfy the executions of such of the second attaching creditors as were prior in their attachments to the plaintiffs. But without satis- [ * 296 ] fying * these last executions, the defendant retained sufficient to satisfy the debt and costs recovered by the plaintiffs in their said suit.</p> <p>Within thirty days from recovering their judgment, the plaintiffs delivered their execution to a coroner (the sheriff’s office then being vacant), who demanded of the defendant to expose to him the goods attached on the original writ, that they might be taken by him upon the said execution. This demand the defendant was unable to comply with, from the circumstances before recited.</p> <p>It was agreed by the parties, that such judgment should be rendered upon the facts stated, as to the Court should appear legal and fit.</p>

<p>Among other persons named in this process, as trustees of Dan-forth, were Samuel Child, Elizur Williams, Edmund Andrews, Ephraim Snow, and Larkin Snow. These five constituted a mercantile house or firm, transacting business under the name of Samuel Child 8f Co., at Plymouth, in the state of North Carolina, where the three first named have their domicil. The two last reside in Boston, and service was made on them only. Larkin Snow came in, and, by agreement, answered for himself and Ephraim Snow.. In his answers he stated that in September, 1816, the said Samuel Child purchased of Danforth, on -the credit of the said house, goods to the amount of 1492 dollars, 40 cents, payable on or before the 24th of June, 1817. He also suggested that, before service of the process' upon him and Ephraim Snow, Danforth had drawn a bill of exchange o.n the house of Samuel Child 8f Co. at Plymouth, in favor of Gilmore Of Aiken, for the amount of the said credit, payable in four months from sight; that the house had accepted the same before receiving notice of the commencement of this suit; whereby the * demand of Danforth upon the [ * 300 ] house had been virtually assigned to Gilmore Aiken.</p> <p>It being objected by the plaintiffs that the assignment suggested ought not to have any effect to defeat their attachment; and the supposed assignees being made a party to the suit, an issue was formed to the country, which was tried before the chief justice, al the last November term in this county, under the provisions of the statute of 1817, c. 147, <§> 1, for the trial of the assignment.</p> <p>At the trial it was proved, on the part of Gilmore &f Aiken, the assignees, that at the time of drawing the bill by Danforth, and for a long time before, he was largely indebted to them, as well for notes endorsed and bonds executed for him, as for goods sold and delivered. It appeared also that the note of hand mentioned in the verdict, being negotiable, was transferred in the autumn of 1818, by Gilmore f Aiken, to a person acting as attorney for these creditors, they having failed, without any notice at the time that Gilmore f Aiken had undertaken to indemnify Child &f Co. against this trustee process; but that Snow, one of the trustees summoned, soon after informed the attorney, who has not enforced the collection of the note, because of the question of the liability of the trustees.</p> <p>The jury returned a special verdict to the following effect:—That at the time when the bill was drawn by Danforth, it was known to Aiken, one of the payees, that a trustee process had issued in favor of the plaintiffs against Danforth as principal, and E. &f L. Snow and others as trustees, who were partners in the house of Samuel Child 8f Co., established at Plymouth in North Carolina; and that the same process had been served upon the said Snows, at the time the bill aforesaid was drawn by said Danforth; that a copy of that process was sent to the house in Plymouth, with a letter from said Snows, informing the members of the house there of the service thereof upon them; which copy and letter were put into [ * 301 ] the mail on the * 29th of March, 1817; and the said bill was sent by the same mail, by Gilmore &f Aiken, to S. Child Co., and were received by the acting partner of said house by the same mail; that when the bill was accepted in Plymouth, the partner who accepted the same knew of the service of the said process on the partners in Boston; and whether, upon these facts, the drawing and accepting of the said bill were bond, fide or not, the jury refer to the decision of the Court. They also find that, .when the bill became due, it was presented for payment at Plymouth, when a note was given by said Child 8f Co. to said Gilmore &/• Aiken, for the amount payable on demand; which note has not yet been paid, there having been an agreement on the part of the payees thereof, to indemnify said Child fy Co. against the effect of the trustee process aforesaid.</p>

<p>Assumpsit on the common money counts. The cause was opened for trial before the chief justice at the last November term, when the evidence to support the action was a receipt of the defendant’s, for fifty dollars by the hands of D. Wild. It was agreed that, when this money was received, the defendant held the promissory note of the plaintiff for 400 dollars; on which he commenced a suit, after the receipt of the above sum, and recovered judgment for the whole sum appearing to be due on the note; without deduction of the above sum, which was agreed to have been paid on account of the note. Execution of that judgment had been satisfied in part only; there being a balance due thereon, much larger than the above payment. At the Common Pleas the defendant offered to discharge fifty dollars upon his execution, which the plaintiff refused; and at this trial he was still willing to do it. No verdict was taken", it being agreed that, if the action could be maintained under these circumstances, the defendant should be defaulted, and judgment be rendered for fifty dollars; otherwise the plaintiff was to become nonsuit.</p>

<p>Assumpsit upon a promissory note, made by Uriah Cotting, the defendant’s intestate, to the plaintiff.</p> <p>It was agreed, in a case stated by the parties, that Cotting, for securing the payment of the note, executed a * mort- [ * 309 ] gage of certain real estate, of less value than the amount due on the notf. The estate of the intestate was duly represented insolvent, com nissioners appointed, and regular notice given for creditors to prove their debts. The plaintiff presented the note declared on as a claim, and required that the commissioners should allow the whole amount thereof, so that upon the sum so allowed, he might share in the distribution pro rata with the other creditors, whose claims should be allowed, still retaining his right upon the mortgage, to indemnify himself for any deficiency. To this the administrator objected, and the commissioners rejected the claim by consent of parties, in order to try the question, and they made return of their doings in this behalf into the probate office ; but the commission was still open. The plaintiff, after due notice at the probate office, instituted this suit; in which it was agreed that the court might exercise its powers as a court of equity, as well as of law; and might adjudge, order and decree in the premises accordingly, in the same manner as if the matter was pending before them on any bill in equity.</p>

<p>Declaration,—“ In a plea of the case, for that, at said Boston, on the 7th of July, 1798, the said Swan executed and delivered to the said Joseph Bussell, the plaintiff’s testator, then in full life, and one Patrick Jeffrey, then a copartner with said Joseph, but since deceased, doing business under the name and style of Jeffrey f Russell, a certain promissory note of that date, by which, for value received, he, the said Swan, promised the said Jeffrey &f Russell, to pay them or their order on demand 6506 dollars, 3 cents, with interest. And afterwards, at said Boston, on the 23d day of April, 1810, the said Jeffrey, then in full life, for a valuable consideration, assigned, transferred, and set over to said Joseph, the plaintiff’s testator, then in full life, all his the said Jeffrey’s right, title, and interest of, in, and to the note aforesaid, and the contents thereof; of which the said Swan had notice. And the said Joseph thereby became and was entitled in law to demand and receive the contents of said note according to its tenor and effect. And also for that, at said Boston,” &c. [reciting the making of the same note]—“ And thereafterwards on the same day of the date of said note, at said Boston, the said Jeffrey 8f Russell, by their endorsement in writing on the back of said note, by them subscribed in the name of their said firm of that date, ordered the contents of said note to be paid to the plaintiff’s said testator, then in full life ; and then and there, for value received, delivered the same, being then due and unpaid, to the plaintiff’s testator; of which the said Swan then and there had notice. By reason of all which the * said Swan [*315] became liable in law to the plaintiff’s testator to pay him the contents of said note, according to its tenor and effect; and being so liable, then and there, in consideration thereof, the said Swan undertook and faithfully promised the plaintiff’s said testator, then in full life, to pay him said sum, according to the- tenor and effect of said note. Yet, though often requested, &c.”</p> <p>To each count the defendant pleads actio non accredit infra sex annos. The plaintiff replies to the pleas severally, that the defendant made and signed the note declared on, in presence of one witness who then and there attested the same. The defendant demurs generally to these replications, and the demurrer is joined.</p>

<p>This was an action of the case against the defendant, a deputy sheriff of this county, for not taking in execution certain goods, alleged to have been exposed to him by one Nutting, a trustée of John Williams; which execution had been issued on a judgment in favor of the present plaintiff against the said Williams: There was another count in the declaration, for not demanding of the trustee the goods, effects, &c., of Williams, to be exposed on the said execution.</p> <p>The action was tried on the general issue, before the chief justice, November term, 1818, when the following facts were in evidence. On the 6th of May, 1817, the plaintiff caused a summons to be served on Nutting, as trustee of his debtor, Williams; Nutting bovins in his possession certain carriages, which had been conveyed by Williams to him. On the 28th of June following, the defendant, not Knowing of the service of the aforesaid process, attached the same carriages at the suit of one Bonner, another creditor of Williams, and took them into his custody. The plaintiff recovered judgment against Williams, and Nutting having, upon his answers in the Court of Common Pleas, been adjudged the trustee of Williams on account of the said carriages, the plaintiff took execution against Williams, and against his goods, effects and credits in the hands of Nutting, the trustee, and delivered it to the defendant, directing him to levy upon the carriages, and also to demand of Nutting to expose the goods, &c. of Williams, *that they might [ * 319 ] be taken in execution. The defendant refused to levy the execution upon the carriages, because he held them on the attachment in favor of Bonner; and the trustee, when called upon to expose the goods of Williams, declared that he had none, except those which were in the custody of the defendant, they having been taken out of his possession by virtue of the attachment at Bonner’s suit. These facts were stated in the return made by the defendant upon the execution in favor of the plaintiff. The defendant after-wards sold the carriages on Bonner’s execution, and paid the proceeds over to him. A nonsuit was entered by consent of the parties, which was to be set aside, and the defendant defaulted, if it should be the opinion of the Court that the plaintiff was entitled to recover; the damages to be assessed by the Court.</p>

<p>This was a writ of entry, in which the demandants allege that Asaph Rice, their father, and Thankful Rice, their mother, on the 15th of September, 1790, were seised in fee of the demanded premises in right of said Thankful, that she, the said Thankful, died on that day, leaving, her said husband tenant by the courtesy; and the demandants became seised in fee of the remainder expectant on the death of their father; who died on the — day of-1815—“ and so the premises, on the determination of his freehold by his death, of right vested in, and came to the demandants, to hold the same in fee; and the demandants ought now to be in possession of the premises accordingly. Yet the said Parkman hath illegally entered into the premises, and unjustly holds the demandants out.”</p> <p>The tenant pleads in bar, that after the death of the said Thankful, the said Asaph, on the 27th of February, 1792, by a certain resolve of the General Court of the commonwealth, in due form of law passed by the two houses and approved by the governor, was authorized to sell and convey the demanded premises for the most money that could be obtained therefor, and to put the proceeds thereof on interest with good security, for the use of the children of his said late wife; he first giving bond, &c.; *that on the 15th day of June, 1792, before the said [ *327 ] sale, the said Asaph gave bond, with sufficient sureties, to the judge of probate, &c., which bond is lost by time and accident; that afterwards, on the same 15th of June, by virtue of the said resolve, he bargained and sold the premises to one E. Homer, for 300 dollars, that being the most that could be obtained ; which sum the said Homer paid to the said Asaph, who thereupon by his deed, &c., conveyed the same to said Homer; that Homer entered and was seised in fee, and that the present tenant now has his estate.</p> <p>The demandants reply, protesting that there was no such resolve or sale, and traversing the giving of the bond. Issue was joined upon the traverse, and a verdict returned, that the bond was given according to the directions of the resolve.</p> <p>The demandants objected at the trial, that no authority to sell the estate could be legally derived from the said resolve; but that the same was wholly void, as respected them ; especially as it did not appear that any notice was given before the license was granted. This objection was overruled by the chief justice, before whom the trial was had, November term, 1818. A new trial was to be granted, if, in the opinion of the Court, the said resolve did not give authority to sell as aforesaid.</p>

<p>Assumpsit to recover the amount of sundry disbursements and expenses on the brig Julian, of which the defendants were owners. Trial on the general issue before the chief justice.</p> <p>The plaintiffs were merchants in the island of Bermudas, within the dominions, and subjects of the king of Great Britain. [ * 333 ] The defendants were citizens of the United * States. The brig Julian was provided with papers to give to her the appearance of Spanish property, and was under the care of Eustace Malony, who professed himself a Spanish subject. The vessel having left the United States in June, 1813, in her return from Porto Rico to the United, States, arrived at Bermudas on the 25th of December following, at which time war existed between these states and Great Britain. The brig needed repairs, having been much injured by winds and weather.</p>

<p>Where one hired a vessel for six months, rendering to the owners a moiety of her earnings, and sailed in her himself as master; it was holden that he was so far the owner of the vessel, that he could not be charged with barratry. Such a hiring may be by parole.</p>

<p>The defendant was summoned on the 5th of April, 1816, as the trustee of Ridgioay if Balch, merchants in Philadelphia; and not appearing in the original, action, the plaintiffs sued this writ of scire facias, to have judgment against him', as for his own debt.</p> <p>The defendant appeared upon the scire facias, and submitted to examination ; upon which the following facts appeared. On the 20th of March, 1816, Ridgioay If Balch *drew [ * 343 ] a bill of exchange on the defendant for 2000 dollars, payable' to «S'. if T. Nevins If Co. or order, at three days’ sight; which being presented by Gilbert if Bean, to whom it was endorsed, was refused acceptance on the 25th of March, and was protested for non-payment at its maturity. The bill was drawn on the strength of a shipment of goods, which Ridgioay if Balch were about making to the defendant, and which were actually shipped on the 29th of March, and the bills of lading and invoices thereof came to the defendant’s hands on the first of April. Immediately on the receipt of these, the defendant called on Gilbert if Bean, and offered to. pay the bill; but was informed that it was returned to Philadelphia. He then told them, if they would send for the-bill, he would pay it out of the funds in his hands. Gilbert if Bean accordingly sent for the bill, and again presented it; but the defendant having been, in the mean time, summoned as trustee of Ridgioay if Balch by the plaintiffs and others, he declined paying it, until those suits should be determined, and he be discharged therefrom. The goods arrived and were received by the defendant on the 9th of April; after which he was served with divers processes as the trustee of Ridgioay if Balch. The plaintiffs caused the defendant to be again summoned after the arrival of the goods, but not until after other creditors had also served him with processes.</p>

<p>Lands mortgaged cannot be levied upon, for the debt of the mortgagee, unless he shall first have entered upon the same.</p>

<p>Entry sur Disseisin, in which the demandant counts upon his own seisin of sundry parcels of land, and upon a disseisin by the tenant. At the trial upon the general issue, before the chief justice at the last November term, the title of the demandant in the several parcels of land demanded was admitted, the tenant claiming to hold under a title derived from him.</p> <p>One of the parcels demanded had been conveyed to the demand-ant by one Samuel Dillaway in mortgage, and there had been no entry for foreclosure. The tenant objected, that as the count was general, without setting forth the nature of the estate, but only de daring upon the demandant’s seisin, the tenant having [ * 349 ] the equity of redemption, * he could not recover for that parcel. But the objection was overruled by the judge. Another parcel had been conveyed in mortgage by the present tenant to a former guardian of the demandant during his minority, in trust for the demandant; and it was objected, that no action could be maintained by the representative of the demandant, who ivas cestui que trust. But as the tenant defended under a deed from the demandant, and as the action was not against any one who held the legal estate, or claimed to hold it under the trustee, this objection was also overruled.</p> <p>The tenant, then, being put upon his defence, produced several deeds executed by the demandant, bearing date the 25th of November, 1815, assigning to the tenant the said mortgaged estates, and conveying to him the others, purporting to be for a valuable and adequate consideration. Minot Thayer, a subscribing witness, testified to the execution and delivery of these deeds by the demandant; whose acknowledgment of them he took as a magistrate. He also testified that the consideration was paid in four promissory negotiable notes, payable in four successive years, of 10,000 dollars each, signed by the tenant, without p.ny surety or endorser; and that no security, by way of mortgage or otherwise, was given. The same witness also testified that the demandant took the notes, and expressed himself satisfied with the bargain; and that before this transaction, other deeds had been made by the demandant to the tenant, which had been cancelled.</p> <p>The title of the tenant, under these deeds, was resisted on the ground that the demandant had been prevailed upon, by the arts and persuasions of the tenant, to convey these estates to him, he having acquired an influence over his mind by flatteries, and indulgence in immoderate expense, while a ward of the tenant; who, it was alleged, took advantage of the imbecility of the demandant’s mind, and his intemperate habits, to cozen him out of his estate without any substantial consideration ; the tenant being * possessed of no property, and having before this time [ * 350 J failed in business, and having no credit.</p> <p>Much testimony was gone into, to establish these points; and the jury were instructed upon the whole matter, that considering the connection between the parties as guardian and ward, the transaction was to be looked upon with a suspicious eye; that if the demandant was of sound mind, and acted freely, without any undue influence on the part of the tenant, he had parted with his estate by his deeds; but if advantage was taken of the control which the tenant had over him as guardian, or of his weak powers of mind and little knowledge, to induce him to pass away his estate without a full and valuable consideration, that his deeds might be avoided by any person legally representing him. They were further instructed to consider all the circumstances proved, as well those which took place relative to these estates before, as after the conveyances; and to consider the improbability of a man of competent understanding, conveying the whole of a valuable estate to a man without property for no consideration but his promissory notes, and those payable at distant days, so that the estates might be sold, without any power to commence a suit until a year after the transaction ; and if, upon the whole, they were satisfied that the tenant had, while guardian of the demandant, acquired an influence over his mind, which was used for the purpose of getting the demandant’s estate into his hands; then, although the demandant was not actually non compos. so as to be liable to guardianship on that account, nevertheless his deeds were voidable by himself, or by any person legally acting for him.</p> <p>The jury returned their verdict, “ that the said John Somes was not competent to bargain for, sell, convey, or part with his estates, at the time of the sale to said Skinner; and for which said Skinner’s notes were given, to the amount of 40,000 dollars; and [ * 351 J they further *find, that the said notes were not a valuable nor adequate consideration for the estates in question.”</p> <p>[Note. The chief justice said that this verdict was merely an answer to certain specific questions, and not intended as the whole ground of the verdict, or the whole facts found;—a general verdict having been afterwards taken and entered for the demandant.]</p> <p>After the verdict, a new trial was moved for by the tenant, on the following grounds. 1. Because the tenant having proved the execution and delivery of the deeds of the demandant, under which the tenant claims to hold the demanded premises, the judge permitted the demandant to go into evidence to impeach the' consideration expressed in the deeds. 2. Because in so far as the verdict was founded upon want of consideration, it was against evidence; as it was proved that the tenant, at the time of the conveyance, and as a consideration therefor, made and delivered his four negotiable promissory notes for 10,000 dollars each, with interest. 3. Because the judge permitted the demandant to go into evidence of the pecuniary situation of the tenant, to impeach the value of the notes as a onsideration; and directed the jury, that they might infer from that evidence, that the said notes were not a good consideration. 4. Because, in so far as the verdict was founded upon want of value in the notes, it was against evidence, as there was no proof that the tenant was in debt to any person at the time of the conveyance; and the estates conveyed to him and in his, possession were equal in value to the amount of the notes. 5. Because, to support the allegation of the demandant of fraud to avoid the conveyance, he was permitted to show in evidence the settlement of the tenant’s guardianship account, which had no relation to the conveyances intended to be impeached ; and because the judge admitted, as evidence to impeach the deeds on the ground of fraud, a transaction fifteen months subsequent to the conveyances, viz. a release made by the demandant to the tenant in March, 1817, and the facts * connected with it; which transaction arose from [ * 352 ] circumstances subsequent to the delivery of the deeds, having no connection with the contract or conveyances intended to be impeached. 6. Because, in so far as the verdict was founded upon the supposition of fraud, it was against evidence; there having been no proof that any fraud was practised by the tenant, to obtain the conveyance. 7. Because, in so far as the verdict was founded upon a supposed legal incapacity of the demandant to convey, it was against law, if founded upon what is stated in the verdict; for the fact so stated does not show that he was non compos mentis, and by law incapable from that cause of conveying his estates; or if such finding is tantamount to finding him non compos, it was against evidence ; there having been no proof that he was non compos, but the contrary; nor would the demandant, nor his counsel, consider that fact as in issue. 8. Because, as the guardian of the demandant, who prosecutes in his behalf, is such, not because he is non compos ■mentis, but a spendthrift; and as he was not proved to be non compos, either now or at the time of making the conveyances; and as he always, before and since the appointment of the present guardian, expressed his satisfaction with the conveyances, and his unwillingness to disturb them, the judge ought not to have permitted the guardian to proceed, but should have directed a nonsuit, or have instructed the jury that the evidence was sufficient to find a verdict for the tenant. 9. Because, with respect to one part of the de manded premises, it appears that the demandant never had but an estate in mortgage, and that the tenant had the equity of redemption ; and therefore the declaration should have been special on the mortgage ; and being general on a seisin by the demandant, and a disseisin by the tenant, it was not supported by the evidence. 10. Because, with respect to another parcel of the land, the same objection was -made; and also that the demandant never had any legal estate whatever therein, but a trust estate only; all his estate in which parcel of land was derived originally * from the tenant, who mortgaged it to a former guar- [ * 353 ] dian of the demandant, his heirs and assigns, to their use forever, for the benefit of the demandant.</p>

<p>. ohí Gray, late of Boston, deceased, by his last will, made on the 19th oí April, 1805, bequeathed to the said John Winslow, 30,000 dollars, in trust for the sole use of his wife Mary, now the wife of the said Benjamin; and directed the trustee to invest the same in real estate or public stocks, or both, as to the trustee should seem most fit, convenient, and secure, and promise the greatest benefit and advantage to the said Mary, for whose use the trust was created; and' to pay to her all the income thereof, during her widowhood and life (1), and the principal sum to his son John Gray, jun., one of the now plaintiffs, at her decease.</p> <p>The present action is a suit in equity. The plaintiffs, in their bill, which was filed at the last March term,, in this county, after setting forth the bequest, the probate of the will, the acceptance of the trust by the defendant, and his receipt of the fund, allege that he has neglected to invest * the same in pub- [ * 362 ] lie stocks, or real estate, as directed, and has mixed and involved it with his own estate, in trade and commerce for his own private advantage ; whereby the plaintiffs apprehend that he has lost and wasted the fund. Wherefore they pray that he' may bo compelled to answer to the said charges, to invest the said fund according to the directions of the testator, and to give bond with sureties for the faithful execution of the trust in future, or that he be removed, &c.</p> <p>The defendant, in his answer, acknowledges the receipt of the principal sum, and alleges that, with a view to máke it most productive, he commenced business and negotiations therewith, and made investments thereof, in connection with Messrs. Barker Bridge, merchants then in good credit in Boston; he believing that this was the most fit and secure way of investing the fund, and promised the greatest income; that he had accordingly realized and paid over to the said Mary an interest of seven and eight per cent for several of the first years ; that the plaintiffs well knew the manner in which he had invested and was investing the fund, and did not, until the year 1818, request him to invest the same in real estate or public stocks ; and that he invested in the same manner several thousand dollars of his own money. He then states that the said Barker &f Bridge failed and became insolvent on the 25th of December, 1810, having in their hands the sum of 26,600 dollars, 75 cents, of the said principal sum of 30,000 dollars; of which he was able to recover only the sum of 618 dollars; and he offers to assign the balance of the judgment recovered against them, foi the use of the plaintiffs, as the Court shall order, in execution of the trust. Finally, he avers that, notwithstanding, the said loss, he has every year paid to the said Benjamin and Mary the amount of six per cent, upon the said 30,000 dollars, and that, at the commencement of this suit, there was not due to them a year’s income upon the said sum. Wherefore he prays to be discharged from any further * accountability respecting the trust, [ * 363 ] and that .the plaintiffs’ bill may be dismissed. •</p> <p>It was ordered by the Court, by the consent of the parties, that it be referred to William C. Aylwin, Esq., to take and state an account between the parties complainants and the defendant concerning the said trust; to inquire and state in his report, what estate the de'endant was possessed of, and ascertain the value thereof.</p> <p>Mr. Aylwin made his report at the July term, in Plymouth, which contained a schedule of sundry parcels of real estate, the property of the defendant, which, by an appraisement afterwards taade, were valued at 26,120 dollars. The report also stated that the defendant had not paid to the said Benjamin and Mary any part of the interest or income which had accrued from the said principal fund, from and after the 26th of August, 1818.</p> <p>Afterwards, at the October term, in Norfolk, by agreement of the parties, it was ordered that the defendant should resign the trust, and that he should convey the said real estate, by good and sufficient deed or deeds to be approved by the Court, to the trustee who should be appointed by the Court, in satisfaction of the sum due from the defendant, and that the trustee so appointed should accept such conveyance in payment of the sum due, so far as the same should go towards the said payment.</p> <p>At the November term, in Middlesex, William P. Green, Esq., was substituted in the place of the defendant, who was directed to pay him the principal sum, and the interest thereof, from the said 26th of August, amounting together to the sum of 32,155 dollars and costs; the said estates to be received, at the said appraised value, in part thereof; and for the balance the new trustee was to have an execution against the defendant. And, as it was uncertain whether said money would be received, and until it was ascertained whether any part, and how much thereof was received, it could not be determined what part thereof, or of the said real estate [ * 364 ] or its proceeds, should be paid * over to the said Benjamin and Mary, as income or interest, and what part the trustee should retain as principal; the trustee was ordered, as soon as might be, after the receipt of the money or any part of it by him, and the conveyance of the said estates by the defendant to him, to make report to the Court, of the money or other effects and estate, which might have come to his hands and possession, of the then present situation thereof, and the income that might be derived from it; and all further proceedings were stayed, until such report should be made.</p> <p>At the last November term, in this county, Mr. Greene reported .hat he had received from the defendant the conveyances ordered )y the Court, with other property of the value of 800 dollars; gave a detailed account of the nature and condition of the several parcels of estate so conveyed, stated that, the said Benjamin had demanded of him payment of the whole of the interest or income in arrear, out of the funds so conveyed; and being unadvised whether the said Benjamin was entitled to receive any sum from the fund, and if any, whether he was entitled to receive the whole amount of interest in arrear, or what proportion thereof, prayed the advice and direction of the Court in relation thereto; and should they be of opinion that he was entitled to receive any sum from the fund, in what manner the same should be paid, whether by a sale of part of the estate, or whether a portion thereof should be set off to him and his wife at thé appraised value. He also stated that the counsel for the complainants in this action had requested payment of their fees, and of the bill of costs in the suit, from the estate received by the trustee; and he prayed direction, whether he was to pay the same, and if so, in what manner it should be provided for.</p> <p>He also stated that several parts of the estate conveyed to him needed immediate repairs, before they could be made productive : and he prayed advice whether the expense of such repairs should be deducted from the income of the whole trust property, or in what manner the same should * be provided for ; [ * 365 ] and whether the expenses generally were not to be deducted from the rents.</p> <p>By a supplementary report made afterwards at the same term, the trustee suggested that the defendant had deceased, and that his widow had a right to dower, in all the estates so conveyed by her late husband.</p> <p>And now, at this term, the opinion of the Court was pronounced by</p>

<p>The penalty imposed by the statute of 1785, c. 75, § 6, for disorderly behavior in town meetings, does not attach, unless the offender persists in such beha vior after notice from the moderator, and does not withdraw from the meeting after being directed so to do by the moderator.</p> <p>An indictment lies at the common law for disorderly behavior in town meetings.</p> <p>An indictment, concluding contra formarn statuti, may be maintained, if the facts charged amount to an offence at common law, and are not within the purview of any statute.</p>

This was trespass, for assaulting, beating and wounding the plaintiff, and imprisoning him for the space of ninety days, viz., from the 18th of September to the 18th of December, 1816. The writ was dated the 29th of May, 1818. The defendant pleaded, first, a recovery before a justice of the peace, for the same trespass. The plaintiff replied, * and newly assigned for other trespasses, at other times, [ * 390 ] and on other occasions, than are mentioned in the plea in bar.

<p>Femes covert and minors are chargeable in trespass, for having procured another to commit an assault and battery.</p>

<p>This was an action of debt for a penalty of twenty pounds, for bringing one John Rowland, a pauper, into Greenfield, and leaving him there, contrary to the provision of the statute of 1793, c. 59, <§> 15.</p> <p>The cause was tried upon the general issue, before Putnam, J., at the last May term in the county of Franklin. The plaintiffs offered the deposition of the said Rowland, which was taken in perpetuam rel memoriam after the commencement of this action; Rowlana being then sick, and dying soon after. The caption was in the form required by the statute. The deposition was objected to on the part of the defendant, because the action was pending at the time of taking it, and it ought therefore to have been taken and [ * 394 ] certified for the case. The defendant had notice * and attended the taking. The judge rejected the deposition.</p> <p>It was in evidence that Rowland came to the house of the defendant, who kept a tavern in Bernardston, a town adjoining to Greenfield, with an avowed design of going to the latter place, to obtain the medical aid of a Dr. Washburn, who had formerly administered to him ; and that he was then in feeble health. There was some discrepancy in the evidence touching the degree of the defendant’s agency in causing him to be carried from Bernardston to Greenfield; the, whole of which was left to the jury, with instructions to this effect: That it was incumbent on the plaintiffs to prove that the defendant knew that Rowland was poor and indigent; and that he carried him, or caused him to be carried,, to Greenfield-, with intent to impose a charge upon that town ; and that if, from the evidence, they believed that the defendant carried him, Or caused h .m to be carried, not with such intent, but with the intent to enable him to consult his former physician, and to be in a family in Greenfield,, where he had formerly resided, in such case the defendant would not be guilty of any offence.</p> <p>If the deposition rejected ought to have been received ; or if the direction in matter of law was wrong; the verdict, which was for the defendant, was to be set aside, and a new trial was to be granted. Otherwise judgment was to be rendered on the verdict.</p>

<p>This was a pauper cause pending in Franklin county, in which the question was, whether an estate in Comoay, which had been owned by the pauper, and of which he had taken the rents and profits three years successively, was of the clear yearly income ol three pounds; so that he had thereby acquired a settlement in Conway.</p> <p>The action was, at the May term, 1819, submitted by rule ot Court to certain referees, who made their report at the last May term in Franklin, that the defendants should recover against the plaintiffs the costs of the reference and the costs of Court.</p> <p>The plaintiffs opposed the acceptance of this report, alleging that the submission had been entered into without authority from them, and against their will. It appeared that the town had appointed agents to prosecute the action, without any particular instructions as to the conduct of it; and that the agents thus appointed had employed an attorney of this Court to commence and prosecute the action, by whose assent on behalf of the plaintiffs the rule of submission had been made. They also objected that the report was insufficient, in that it contained no opinion, judgment or determination upon the merits of the cause; that it was not conclusive upon the subject matter, nor final between the parties.</p>

The parties in these actions agreed that judgment should be entered in both of them upon the default of the defendants respectively, the damages in each to be assessed by the Court, upon the following facts agreed.

<p>Lands wMch have been mortgaged by a judgment debtor, may be taken in exe cution by appraisement, as if unencumbered, provided no deduction is made by the appraisers on account of the mortgage; and the judgment creditor will have a right to his bill in equity to redeem.</p>

The plaintiff, a deputy of the sheriff of this county, declares in case against the defendant, also, a deputy sheriff, alleging that one Stevens was indebted to him; for the recovery of which .debt he sued a writ of attachment directed to any coroner of the county, which he delivered to W. Eaton, then such coroner, who, on the 12th day of * November, 1819, attached [*403] the said Stevens’s right in equity to redeem certain land before that time conveyed in mortgage upon the…

<p>A., for a valuable consideration, conveys land to B. Before BJ’s deed is registeied, A. fraudulently conveys the same land to C., who knows of the prior con veyance, and immediately puts his deed on record before B. C. conveys to D., who is ignorant of the fraud; and BJ’s title was holden good, against that of the grantee of B.</p>

<p>This was an action of trover, to recover the value of certain goods mentioned in the declaration; and was tried upon the general issue, at the last April term in this county, before Wilde, J.</p> <p>On the part of the plaintiff, a deputy sheriff of this county, it was n evidence, that on Saturday the 28th of November, 1818, there was delivered to him a writ of attachment in favor of one Samuel Kettle against one Aaron Morse, with directions to secure the denand declared on in the writ: that he went to the store of Morse, .vho was a trader in Worcester, about two o’clock in the afternoon of said day; that he continued there until sunset, Morse being absent, and a number of people being collected. The business of the store was conducted by one Whiting, clerk to Morse. In the course of the afternoon the plaintiff informed a person, who was a witness at the trial, that he had a writ against Morse, and had attached, or was about attaching, all the goods in the store. The witness observed to him that it would be a pity to remove the goods, and that, as he was going to the place whither Morse was gone, he should probably meet him, and would inform him of the plaintiff’s business; adding that Morse might procure a receipter for the goods. The plaintiff remained at the store until after sunset, the said Whiting continuing to sell goods, as they were called for, through the afternoon; the plaintiff observing to him about sunset, that if he sold much more, there would not be enough left for him. Whiting locked the store before it was dark, * and delivered the key to the plaintiff, who [ *421 ] immediately left the place; Morse returning about fifteen minutes after.</p> <p>The defendant was also a deputy sheriff, and claimed the goods in virtue of an attachment of them upon a writ in favor of one Barber against the said Morse. On the defendant’s part, it was proved that, early in the morning of Monday, the 30th of November, he went to Morse’s house, and made known his business, an agent of Barber being with him, and that Morse showed the defendant the goods in question, who attached and removed them, a part of them having been removed into another building than the store. The defendant knew nothing of the plaintiff’s doings, but Barber’s agent was knowing thereto.</p> <p>The defendant objected that the attachment made by the plaintiff was not valid, because he did not remove the goods from the store; and that he had sufficient opportunity to have done it on the 28th, if he had not waited for Morse’s return, as before stated.</p> <p>The jury were however instructed, that the attachment made by the plaintiff must be considered valid in law, if they believed his return thereof upon the writ to be true; and that the delivery of the key of the store, under the circumstances of the case, was equivalent to a removal of the goods, and vested a special property in them in the plaintiff. The defendant objected to this instruction, and if the objection was well founded, in the opinion of the Court, the verdict for the plaintiff was to be set aside, and a new trial granted, or the plaintiff become nonsuit, as the Court should direct. Otherwise judgment was to be entered upon the verdict.</p>

<p>Indictment at the last March term in this county, charging one Thomas Daniels as principal, and the defendant as accessory before the fact, in burglary. The death of Daniels was alleged in the indictment: and the question was, whether the prisoner Phillips could lawfully be put upon his trial.</p>

<p>This was assumpsit for the support of one George Fiench, a pauper, from March 27th, 1817, to November 7th, 1818, and for the expense of removing him from Newton to Randolph; and the action was submitted to the determination of the Court upon the following facts agreed.</p> <p>The plaintiffs, on the 20th of February, 1816, duly notified the defendants that French had become chargeable to them, and requested his removal, and payment of the expenses then already incurred. To this notice the defendants returned an answer in due season, denying the pauper’s settlement with them, and refusing payment of the expenses charged.</p> <p>In March, 1817, the plaintiffs commenced an action against the defendants for the said expenses, which was decided in favor of the plaintiffs, upon the question of the pauper’s settlement, in this Court in the county of Norfolk, February term, 1818.</p> <p>On the 25th of February, 1818, the plaintiffs again notified the defendants, to which notice no reply was made.</p> <p>On the 2d of November, 1818, the overseers of the poor of New ton made their order of removal, by virtue of which the pauper was removed to Randolph.</p> <p>On the 19th of January, 1819, the defendants sued out their writ of review of the action above mentioned, which was served upon the plaintiffs on the 25th of March, 1819.</p> <p>If the Court, upon these facts, were of opinion that the defendants were estopped to deny that the settlement of * the pauper was in their town, or to contest the ques- [ * 427 ] tian of settlement with the plaintiffs, judgment was to be rendered against them upon their default; otherwise the plaintiffs were to become nonsuit.</p>

<p>Entry sur Disseizin. The demandant counts on his own seisin within twenty years, and on a disseisin by the tenants ; who plead the general issue, which is joined.</p> <p>At the trial of this issue, before Putnam, J., at the sittings here after the last November term, the demandant claimed title in virtue of the extent of an execution upon the demanded premises on the 30th of March, 1818, as the estate whereof John Harris died seised. The judgment, upon which the said execution issued, was recovered by the demandant against Richard D. Harris and Thomas Harris, administrators of the goods and estate of the said John, not administered by Thomas and Jonathan Harris, both deceased, who were executors of the last will of the said John.</p> <p>The tenants claimed title in virtue of the levy of an execution against the said Jonathan Harris, in February, 1813, the premises having been attached in the same suit on the 11th of March, 1812.</p> <p>The said Thomas and Jonathan, executors as aforesaid, were also devisees of the residuum of the estate of their testator, and gave bond in the sum of 200,000 dollars, for the payment of his debts and legacies. The said testator died on the 17th, and his will was proved on the 25th of October, 1804. On the 2d of October, 1805, the said residuary devisees divided the real estate of their testator, and the demanded premises were conveyed by Thomas to Jonathan Harris._</p> <p>[ * 430 ] * The demandant was required by the tenants to prove the consideration of his judgment against the administrators de bonis non, upon which his execution issued. The demandant objected; but the judge ruled that he was bound to prove it. It consisted of two promissory notes signed by John Harris, and of labor performed. Judgment was rendered in this Court, in the year 1817. The administrators, defendants in that suit, pleaded, 1st, That the testator never promised. 2dly, That he never promised within six years. 3dly, That the executors of John Harris gave due notice of their appointment within three months from the time it was made, and that the plaintiff did not present his claim within four years. Issue was joined on all the pleas</p> <p>The demandant proved, at the trial of the present action, that the testator made the promises; and that the executors acknowledged the debt, and promised to pay the same, within six years next before the suit was brought against the administrators de bonis non; which was in February, 1816.</p> <p>The tenants objected that the acknowledgment of the executors did not revive the promise of the testator, or take the case out of the statute of limitations. But the judge was of a different opinion, and so instructed the jury.</p> <p>The third issue was found for the demandant, viz. That the executors did not give notice of their appointment, &c. These issues were found in the same way, on the trial between the demandant and the administrators de bonis non.</p> <p>The tenants also contended that the demandant ought not to prevail, by reason of the delay in commencing his suit against the administrators, which was for several years after the said Thomas and Jonathan were appointed executors, and after the tenants had taken the land, as the estate of Jonathan, in execution. But the judge was of a different opinion, and so instructed the jury. A verdict being returned for the demandant, the tenants moved [*431 ] for a *new trial, on account of the opinions and instructions of the judge, expressed as aforesaid.</p> <p>The cause was argued at this term by Ward and Parker, for the demandant, and by Stearns, for the tenants; and at the following March term at Concord,</p>

<p>The probate of a will is conclusive with regard to lands devised, as it is with -egard to chattels.</p> <p>So is the filing and recording of a will made in another state or country by stat. 1785, c. 12.</p> <p>hi no case can the due execution of a will, the sanity of the testator, the attestation of the witnesses, or any question of that kind, be tried in the courts of common law, in this commonwealth.</p>

<p>A license by a guardian to enter upon and occupy the land of his ward, expires at the death of the guardian.</p> <p>If one plead a license in an action of trespass guare clausum, and issue is joined thereon, evidence which goes to prove a lease will not support such plea.</p>

<p>Scire facias upon a recognizance, entered into before a justice of the peace for Duke’s'county, the only condition whereof was, that the defendant should personally appear before this Court, September term, 1818, then and there to answer to such matters and tilings as should be objected against him on behalf of the commonwealth, and should do and receive that which, by the said Court, should be then and there enjoined upon him, and not depart without license. The breach alleged is that the defendant did not appear, pursuant to the said condition.</p> <p>The defendant demurred to the writ, and the demurrer being joined on behalf of the commonwealth,</p>

This was an action upon the case for the obstruction of a private way. Damages laid at fifty dollars. At the trial in the Common Pleas, upon the general issue, the plaintiff’s right to use the way was in question. The jury returned a verdict for the plaintiff, and assessed his damages at eleven dollars. The plaintiff moved for the allowance of full costs ; but the Court adjudged him entitled to one fourth part of the damages, as costs.

<p>LeonapvD Sproat, the respondent’s intestate (whose estate was deeply insolvent), in his lifetime erected a dwelling-house and a joiner’s shop on certain land, the fee of which was then, and at the time of his decease, in his wife. On the final settlement of the respondent’s administration account in the probate office, the appellants, being creditors to the estate of the intestate, insisted that he should be held to account for the value of those buildings. The judge of probate, being of opinion that the said buildings were not liable to the debts of the deceased, decreed accordingly; and the appellants, dissatisfied with the said decree, appealed to this Court!</p>

Trespass for an assault and battery, and false imprisonment. Trial on the general issue in the Common Pleas. The defendant brought an action against the plaintiff, for a certain demand of three dollars, before a justice of the peace, and caused him to be arrested and held to bail.

<p>- This action, while pending in the Court of Common Pleas, had been submitted, by a rule of that Court, to certain referees. Their report was rejected; and the plaintiff, afterwards obtaining judgment, had taxed in his bill of costs the amount of the costs arising before the referees, and also the costs of the travel and attendance of witnesses, who had been summoned by him to induce the acceptance of the report. The defendant moved the Court below to strike those items out of the bill. The Court overruled the motion ; and the defendant brought the cause into this Court, upon exceptions filed by him to their decision.</p>

This was assumpsit upon a promissory note, said to have been made by the defendant in the year 1807, payable to Judah Allen, the plaintiff’s testator, or his order. The note was endorsed by the said Judah in his lifetime, and delivered to one B. Allen, Jun., who brought this action thereon, in the name of the said executor.

<p>Assumpsit for the value of certain articles mentioned in the declaration. Trial in the Common Pleas upon the general issue, and a verdict for the defendant. The plaintiff brought the action up to this Court, under the provision of the late statute, upon exceptions to the opinion and direction of the Court below.</p> <p>The plaintiff, a coroner of the county of Bristol, had attached the several articles, at the suit of one Slade, and delivered them to the defendant, taking his receipt in writing, with a promise to deliver them to the plaintiff, or any proper officer legally authorized to call for them, when called for. Slade, having recovered judgment in his suit, delivered his execution to the plaintiff, who, within thirty days of the judgment., demanded the articles at the defendant’s dwelling-house, and of his wife, without success, the defendant being then, and for two months preceding, out of the commonwealth. This demand the Court below ruled to be insufficient to entitle the plaintiff to his action.</p>

Assumpsit for expenses incurred by the plaintiffs in the support of one James Marvel, alleged to have his settlement in Somerset. It was agreed that Thomas M., grandfather of the pauper, removed from Boston to that part of Swansey which is now Somerset, in the year 1733, and was duly warned with his family to depart, according to the law then in force.

Case against the defendant, a deputy of the sheriff of Plymouth, for misfeasance in not duly serving and returning an original writ against Thatcher &f Al. The present action was commenced the 30th of October, 1819. The misfeasance complained of was, that the defendant, in returning the said writ, certified an attachment of certain real estate, and a summons to one as trustee, but made no return of any summons to the principal defendants.

This was an action on the case, brought against the defendant as moderator of a parish meeting in the town of Middleborough, for refusing to receive the plaintiff’s vote, he being, as he alleged, duly qualified to vote at said meeting.

The declaration was “in a plea of the case, for that the said Talbot, at, &c., on, &c., by his note of that date, by him subscribed for value received, promised the plaintiff to pay him, or his order, 380 dollars on demand with interest,” &c. Trial on the general issue, in May last, before Jackson, J., at Taunton.

This action was brought upon a contract made by the defendant with the plaintiff, a deputy sheriff, the object and effect of which was the safe keeping, and return upon demand, of certain chattels attached by the plaintiff, on a writ in favor of James Wing against Stephen Buffinton. The declaration avers a judgment against Buffinton, an execution issued within thirty days, a demand upon the defendant, and a refusal on his part to deliver the chattels which he had received.

<p>Where an officer enters a store, wherein there are goods helor gmg to one against whom he has a sufficient writ of attachment, declares his intention to attach them, and afterwards locks the store, retaining the key, the attachment is good against an attachment by another officer, he, or the creditor employing him, knowing of the prior attachment.</p> <p>One deputy sheriff may have replevin against another deputy of the same sheriff, for goods which he claims in virtue of a prior attachment made by him.</p> <p>A plaintiff" in replevin, retaining the articles replevied, until judgment in the suit, cannot claim damages for any depreciation in their value, during that period ; because he may sell them immediately, in such a manner as will ascertam their value, for which alone he is answerable on his bond.</p> <p>Where an officer had attached certain articles, and afterwards mixed them with other articles of the same kind, attached before, by another officer, upon a writ against the same person, he' lost the lien upon those articles, which he acquired by his attachment; and the other officer rightfully retained them.</p>

<p>In trespass quare clausum, alleged to have been committed diversis diebus et vidbus, if the plaintiff give evidence of one or more acts of trespass within the days specified, he shall not be permitted to prove an act done at any other time ; but if he so elect, he may waive his right to prove any act within the days, and may prove one done at any other time, allowed by the statute of limitations.</p>

The plaintiff brought his action of assumpsit against Messrs. Warrall Williamson, merchants of Liverpool, in Great Britain, and summoned the present defendant, and four others, as trustees of the principal debtors.

This was an action of trover, to recover damages for the alleged conversion of a promissory note and mortgage deed, described in the declaration; and it was submitted to the determina ion of the Court, upon the following facts agreed by the parties. On the 13th of June, 1810, one Caleb Wheaton died intestate, seised and possessed of real and personal estate, leaving the said Polly, then the wife of Samuel Davis, the plaintiff’s intestate, his sister and only heir at law.

<p>Where a majority of the members of a Congregational church separate from the majority of the parish, the members who remain, although a minority, constitute the church in such parish, and retain the rights and property belonging thereto.</p>

The question in this action was, whether Boylston was the trus tee of the principal defendants.

, clerk of a company of militia in the town of Braintree, commanded by Lewis French, complained against the said Allen, for neglecting to appear at a muster of the company on the 16th of June, 1819 ; upon which the said justice had found Allen guilty, and had adjudged him to pay a fine of two dollars. [ * 524 ] *It appeared that Allen had, previous to the 8th of June, 1819, belonged to the militia company in Brain-tree, commanded by Captain French, of which Hobart was the…

<p>Debt by the plaintiff, in his capacity of judge of probate for this county, against the defendant, upon a bond given by him and another now deceased, conditioned for * the faithful [ * 525 ] administration of the estate of--, deceased. intestate.</p> <p>The defendant pleads, in abatement, that the action is not bought at the promotion of any creditor of the deceased, but for the use of certain of his heirs, and there is no decree ascertaining the quantum; and that the action' is brought in the name of the judge of probate, without any authority or permission from him.</p> <p>Replication—admitting that the action is brought without any decree ascertaining the quantum, and alleging that the defendant, as administrator, received divers sums of money, and property s ■< - cified in a certain complaint and petition to the judge of probate, afterwards set forth, and had neglected to return an inventory thereof upon oath—then sets out at length the petition, interrogatories ; answers of the defendant denying any effects unaccounted for; further interrogatories, and a protest of the defendant, declining to answer further; and admitting that, since his former answers, he has discovered a probable error made by the person who was intrusted to draw out his accounts, and offering to correct that error, but claiming to retain the amount (in case further proceedings are had for opening the accounts) to meet a charge for his time and services. The replication, after setting out these proceedings, concludes with averring that so the defendant has refused to account, &c.</p> <p>Rejoinder,—protesting that the money, &c., was not received; setting out that the defendant and his co-administrator, now deceased, returned an inventory of all effects by them received, and rendered sundry accounts on oath, which were examined and approved by the judge of probate ; the third being a final account, allowed on the 14th of February, 1809, the defendant then being surviving administrator.</p> <p>Surrejoinder—repeats the averment of the receipt of the money and effects specified in the complaint, and that they are not accounted for in the accounts rendered.</p> <p>[ * 526 ] * To this the defendant demurs specially, assigning for cause, that the plaintiff, by his pleading, attempts to put in issue, whether the defendant has accounted for all the property and effects received ; and that, by law, he ought not to be put to this inquiry, without the permission of the judge of probate The plaintiff joins the demurrer.</p>

<p>Scire facias on a judgment recovered in the Circuit Court ot Common Pleas, for costs against Call, in his capacity of administrator of the goods and estate of George Palmer, deceased. In that capacity Call brought his action against Hardy, which was referred by rule of court in the Common Pleas to one referee ; and he reported that Hardy should recover against Call, “ in his said capacity of administrator,” costs of court and of reference; and judgment was entered up in the same language. Execution issued against the goods and estate of Palmer, the intestate, in the hands of Call, which was returned with the officer’s certificate of nulla bona thereon ; upon which there was a suggestion of waste, by Hardy, in the Common Pleas, and the present writ of scire facias was granted on that suggestion. The judgment was recited in the writ, as “ against the goods and estate of the intestate in the hands of Call.” Plea nul tiel record.</p>