Volume 17 — Massachusetts Reports

<p>Of the liability of an incorporated hanking company, upon notes purporting to be their notes, and which, after the cashier had signed them, had been stolen, and the signature of the president forged. [Such notes are not binding upon the company until they be signed by the president; and if before they be signed by the president, they be stolen, and the name of the president forged and subscribed to them, and they be negotiated, the bank are not in any way responsible to a bondfide holder.—Ed.]</p>

<p>Where a banking company paid notes, on which the name of the president had been forged, and neglected for fifteen days to return them, it was held that they had lost their remedy against the person from whom the notes had been received.</p>

Indictment for falsely making, forging, and counterfeiting a certain order for the delivery of goods purporting to be made and signed by one James Fisher, of the following purport, viz. “ Salem, September 28th, 1819. Mr. Parker. Sir, deliver my son one pair of walking-shoes, and charge the same to me. Yours, James Fisher,” with intent to defraud one Thomas Parker, against the peace and the form of the statute in such case made and provided.

<p>Fishermen engaged in the cod fishery on board a vessel of more than twenty tons, du.y licensed, and having signed an agreement required by the laws of the United States, are not liable to do duty in the militia, notwithstanding the statute of this commonwealth of 1814.</p>

<p>Br the statute of 1808, c. 65, § 6, it is enacted, that whenever any execution shall issue against any manufacturing corporation thereafter created, and such corporation shall not, within fourteen days after demand made upon the president, treasurer, or clerk of such corporation, by the officer holding the execution, show to him sufficient real or personal estate to satisfy and pay the sums due on such execution, the officer shall serve and levy the same upon the body or bodies, and real or personal estate or estates, of any member or members of such corporation.</p> <p>The demandant, Child, in March, 1819, recovered a judgment against the Souihbridge Manufacturing Company, a corporation duly created, and delivered his execution to an officer for service, who demanded satisfaction thereof from the treasurer of the corporation, but without effect. The execution was then [ * 65 ] delivered to another officer, who * levied the same upon the land demanded in this action, as the estate of which one Levi Mills had died seised.</p> <p>The said Mills, in September, 1817, purchased a share in the capital stock of the said, corporation, and retained the same until his death in the following November.</p> <p>The tenants are the heirs at law of the said Mills.</p> <p>Upon these facts appearing at the trial before the chief justice, at the last April term in Ipswich, a nonsuit was directed, subject to the opinion of the whole Court.</p>

<p>The real estate of manufacturing corporations is liable to be assessed in parish taxes.</p>

<p>Assumpsit by the endorsee against the maker of sundry promissory notes, dated at New York, on the 29th day of March, 1811.</p> <p>The defendant pleads the statute of limitations of the state of New York, in bar; and avers that, at the time when the supposed cause of action accrued to the plaintiff, the parties resided in and were citizens of that state, and that the cause of action accrued, if at all, within the said state.</p> <p>To this plea the plaintiff demurs, and the defendant joins in demurrer.</p>

<p>Previous to the marriage of A., his wife held certain shares in the stock of an incorporated banking company, the profits of which he received until the charter expired; at which time the stockholders were entitled to subscribe a proportion of the amount of their shares in a new bank. He subscribed the authorized amount in the name of his wife, and refused to receive the balance in money, saying that it was not his, but his wife’s. After his decease, his executors received the said balance, and the dividends of profits on the shares, and also a sum payable on account of the reduction of the capital of the bank. It was holden that the widow wa§ entitled to recover of the executors all the sums so received by them, with interest.</p>

<p>The right of action against a sheriff, for taking insufficient bail, commence» upon the sheriff’s return of non est inventus upon the execution against the principal; and the statute of limitations begins to run from that time.</p>

Assumpsit for money had and received. The action came before the Court on an agreed statement of facts. [ * 63 ] * William Patterson, the defendant’s intestate, being bound on a voyage from Salem to Cayenne, the plaintiff shipped an adventure of soap and candles in the same vessel, which he consigned to the said William; and it was agreed that the consignee should retain a certain stipulated percentage as freight, and the use of the money which the adventure should produce,…

This was assumpsit for money paid upon a promissory note, which the plaintiff had signed as surety for the defendant. The defendant filed an account, as a set-off, for 132 dollars, money had and received by the plaintiff for the use of the defendant.

<p>Where a will had beén proved twenty years, by the oath of two only of the three subscribing witnesses, without accounting for the absence of the third, and without any record of previous notice to the heirs; it was presumed that suffi cient reasons existed for the absence of the third witness, and that notice was duly given to the heirs.</p> <p>A devise of all the testator’s “ estate, real, personal, and mixed; goods, chattels, and estates whatsoever, or wheresoever they may be found, belonging unto me for any cause whatsoever,” were holden to carry a fee in the real estate of the testator.</p> <p>Of the seisin of a devisee of an estate in common necessary to vest the estate in the devisee. [There must be an actual entry by him, or something equivalent.—Ed.]</p>

This was a complaint by the owner of certain meadow lands in Andover, against the owners of a mill on Cochechowick brook, presented to the Court of Common Pleas for this county, June term, 1819, in which he sets forth that the respondents, in the year 1814, erected a dam across the said brook, whereby the said meadow was flowed, to the annual damage of the complainant the sum of 100 dollars; that he thereupon prosecuted his complaint against the respondents at the Court of…

This was a writ of entry sur disseisin, and was submitted to the decision of the Court upon the following facts, stated and agreed by the parties. Susanna Hathorne, of Salem, on the 30th of May, 1818, died intestate, and seised of sundry parcels of land, and left the demandant, together with one Joseph Hathorne, and eight other persons, her heirs at law, entitled to her estate in equal proportions, viz., in tenths.

Assumpsit against the defendant, as endorser of a promissory note, made by one Benjamin Eaton, jun., payable to the defendant in four months from the date and grace, dated May 20th, 1819.

<p>A merchant being applied to by A., assuming to act m behalf of B., for goods on the credit and for the use of B., refused to deliver them without a written authority from B. A. afterwards produced a writing purporting to be such an authority, and received the goods upon the strength of it The order, however, was forged, and the goods never came to B.’s use. In an action for the price of the goods against B., the plaintiff was permitted to prove A. the general agent of B., and that the latter had frequently paid for goods taken up by A. on the credit and for the use of B., and upon this evidence was held entitled to recover.</p>

<p>Assumpsit on the common money counts. Trial upon the general issue, before tile chief justice.</p> <p>On the 4th of July, 1810, the defendant, a merchant in Halifax, Nova Scotia, consigned a parcel of broadcloths to the plaintiff and his partner, since deceased, merchants in Boston, to dispose of to the best advantage, and to remit the proceeds in good bills of exchange.</p> <p>The goods were received by the plaintiff, and entered at the custom-house, and the duties secured and afterwards paid by the plaintiff, amounting to 220 dollars.</p> <p>On the 21st of July, the plaintiff informed the defendant that on the receipt of the goods, he had applied to persons to purchase them; but not having succeeded, he had sent them to auction, and that they were advertised with other parcels which came at the same time; that an attempt to sell at auction had been made the preceding day, and that one piece only had been sold.</p> <p>On the 14th of August, the letter of the 21st of July was acknowledged by the defendant, who, after expressing his disappointment at the indifferent prospect of sale, and his apprehension that there would be a loss, says, that if he were in Boston, he should be induced to cut a piece of the cloths into coat patterns, and send to auction at a limit of costs and charges.</p> <p>On the 1st of September, the plaintiff acknowledges the pre ceding letter, and says that three pieces had been sold, and that the goods would be sold only by the piece.</p> <p>On the 17th of September, the defendant acknowledges the letter of the 1st, and replies that he perceives the loss will be considerable, but doubts not every exertion would be made, and then says, “ I have taken the liberty to draw on you at thirty days for 1250 dollars, which you will oblige me by answering. The bill being at thirty days will, I trust, prevent you from having to sacrifice the remainder on hand: trust the balance will be in my favor; should it be otherwise, on receiving your account * of [ * 104 ] sales and charges, shall be remitted first opportunity.” This bill the plaintiff accepted in manner following:—“Boston, Sept. 27, 1810. In thirty days we agree to pay Mr. Daniel L. Bishop, or order, on account of Mr. James Hamilton, the proceeds of a parcel of cloths shipped us by said Hamilton, in the schooner Regulator, from Halifax, provided proceeds shall not exceed 1250 dollars, amount of said bill.”</p> <p>It appeared from the evidence of C. Hayward, an auctioneer, that these goods had been placed with him for sale; that they were high charged, and were sold with difficulty, after repeated trials, and that they were not all sold until some time in October.</p> <p>It was in evidence, that it was his usage in the sale of piece goods, to sell at four months’ credit, when the amount exceeded 10G dollars: that all the goods sold at any one time, to any one purchaser, were paid for by a note, or charged in account to the purchaser ; that when the credit expired and the goods were paid for, the proceeds were paid over to the person entitled to receive the same; that when a sale was made to one person, of goods belonging to one owner, and a note taken, the note so taken was sometimes delivered over to the proprietor, and sometimes other arrangements were made, according to convenience and circumstances. It also appeared that the goods of the defendant were sold to divers persons on different days, who were also purchasers at the same times of other goods.</p> <p>It appeared from other witnesses that the usage was to sell for cash under 100 dollars, and at four months’ credit over that sum; and that the auctioneer usually holds the note till maturity, but sometimes gives his own note, to fall due at the time when the notes taken for goods will become due. Sometimes an arrangement is made with the proprietor to take other notes, or to take an average of notes, when the goods of different persons are sold at [ * 105 ] the same auction. Hayward's auction was * considered as the most eligible place of sale for goods of the kind consigned by the defendant; and he was then in good credit, and so continued until the 26th of December following. Other auctioneers kept no accounts with purchasers in the manner practised by Hayward, but invariably took notes from purchasers, which were delivered to the proprietor, in case no special agreement was made. It did not appear that Hayward, had taken notes for the defendant’s goods, having sold and charged in account to purchasers at the usual credit; but that an account was open with those purchasers who had goods on sale at his office, and that the balance on his books was generally in their favor. When he failed, there was nothing due from the purchasers of the defendant’s goods to Hayward.</p> <p>About the 22d of October, Hayward rendered an account of sales of the defendant’s goods, the net amount of which was 1449 dollars. On the 25th of October, the plaintiff wrote to the defendant as follows:—“ Having effected sale of your cloths, we forward herewith our account of sales, net proceeds 1117 dollars, 81 cents, from which we deduct 16 dollars, 75 cents, for interest, the goods having been sold on a credit of four months; the balance we hold to pay in part your draft on us for 1250 dollars, holding you responsible, should any of the purchasers fail to pay.” On the 30th of October, the plaintiff paid the holders of the defendant’s bill of exchange, 1101 dollars, 6 cents. On the 22d of November, the plaintiff took from Hayward, who was then in good credit, and largely in business, a promissory note for the net proceeds of the defendant’s goods, made payable to and endorsed by one Wilkins.</p> <p>The plaintiff did not inform the defendant that such note had been taken ; but on the 28th of December, about which time Hay ward and the endorser of the note became insolvent, he wrote thus to the defendant:—“We are grieved to advise of the failure of Caleb Hayward and * J. Wilkins, whose note [ * 106 ] was received for the proceeds of your shipment of cloths. We have written to Hayward to inquire of him what encouragement as to the payment of his debts he can give us, to communicate to you, but have had no reply. In case of failing to get it of them, we shall be obliged to have recourse to you.” This letter was not acknowledged by the defendant. The note taken as aforesaid proved to be of no value; and although the plaintiff had endeavored, by the usual mode of compelling payment, to obtain the money due thereon, no payment had been obtained.</p> <p>The plaintiff contended that, having advanced money to the defendant on his bill of exchange, as well as the duties and charges arising on the consignment of the merchandise; and not having been reimbursed by money derived from the sale of the goods, or otherwise ; and having disposed of these goods in the usual mode, and with usual discretion and honesty, he was entitled to recover the sums advanced by him, with interest.</p> <p>The defendant contended that the loss of the value of the goods was occasioned by the plaintiff’s own negligence in the performance of the engagement which he assumed; and that he had taken upon himself the risk of payment, by the course of correspondence with his principal, and from having taken the auctioneer’s note, and from not having informed his principal of his having so done.</p> <p>The chief justice instructed the jury that the sending of the goods to auction appeared to be with the assent or knowledge of the defendant, and that therefore the plaintiff was not liable to any loss which might be attached to the usual misfortunes of business, the auctioneer, to whom the goods were sent, being in good credit at the time; that for irregularities of the auctioneer the plaintiff, as factor, was not responsible; unless he knew and might have corrected them, or assented to them and neglected any opportunity of calling upon the auctioneer, and obtaining payment or security from him immediately after*the sale, or any [* 107 ] time before his failure; that the taking of Hayward's note by the plaintiff did not, of itself, amount to an assumption of the debt, although it was evidence, with other circumstances, tending to prove that fact; and that if the jury believed the debt was so assumed, the plaintiff could not recover; so that negligence on the part of the plaintiff, or an implied assumption of Hayward’s debt to himself, would prevent him from recovering; but that, without one or the other of these facts, he would be entitled to recover.</p> <p>A verdict was returned for the defendant, and the plaintiff moved "or a new trial upon the judge’s report.</p>

<p>When the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession, will hold them against the other.</p>

This was a bill in equity, brought to redeem a certain tenement heretofore mortgaged by one Peter Guss to J. T. Austin, conditioned to pay 350 dollars in one year, and 350 dollars in two years from 25th of July, 1806, the date of the mortgage. After the death of Guss, the plaintiff became seised of the equity of redemption by purchase from the administrator, on the 30th of January, 1818.

<p>If excessive bail be required in an action for a tort, this Court will, upon habeas corpus, discharge the defendant, upon his giving bail in a reasonable sum.</p>

<p>One who had signed a negotiable promissory note as agent for the promisors, was holden to be an incompetent witness to prove the note usurious, in an action by an endorsee against the promisors.</p> <p>A promise to pay the debt of another in writing, and signed by the party intending to be bound, is a sufficient compliance with the statute of frauds, without any recital in the writing, of the consideration upon which the promise is founded.</p>

<p>Of the liability of factors and consignees to the action of their principals, and the payment of costs. [The defendants were commission merchants residing in Philadelphia, and the plaintiff, in Boston, sent to them at sundry times merchandise for sale, which they sold and sent an account to the plaintiff, wherein they admit that there was a certain sum arising from the sales due, which they say is subject to the plaintiff’s order, and that they will forward it when directed. The plaintiff commenced a suit against them here in Boston, without any demand having been previously made. Held, that m this view of the case, the suit was maintainable if there was no agreement that the plain, tiff should draw for the proceeds of the sales ; but if it were the understanding that the plaintiff should draw for the proceeds of the sales, and if the defendants, in a reasonable time after the sales, rendered a correct and true account to the plaintiff, then the action would not be maintainable.—Ed.]</p>

<p>This was an action of audita querela, to be relieved and discharged from an execution, which issued on the 3d of March, 18)9, in favor of the defendants, against the plaintiff and one John Peters. Trial was had on the general issue, before Jackson, J., and the following facts were proved or admitted.</p> <p>The present defendants, at the November term of this Court, in 1818, recovered judgment against the plaintiff and the said Peters for 727 dollars, 85 cents, damages, and 22 dollars costs. The original execution, which was issued thereon, was delivered to one Luke Baldwin, a deputy sheriff for this county. The plaintiff lived in the county of Norfolk, and Peters in Suffolk. When the return day of this execution had nearly arrived, viz., in the latter part of February, 1819, Peters was desirous to prevent or delay the service of it, and endeavored to make some arrangement for that purpose with the attorney of the creditors; and particularly [ * 154 ] wished that some measures might be * taken to enforce the payment of one half it by Brackett, who, as he said, ought to pay so much of it. The attorney refused to agree to any delay, alleging his instructions from the creditors to have the execution satisfied by the return day. He and Peters then went together to the office of Baldwin, where it was finally proposed that he should become responsible to pay the amount due on the execution by the 20th of March, 1819, taking security from Peters to his satisfaction for the amount thereof; and that this original execution should be returned, and an alias taken out, which Peters might use, to enforce payment from Brackett. The attorney refused to agree that Baldwin should return the execution unsatisfied, and told Baldwin that he should not exonerate him for neglecting to serve it; but that if he paid the money to the attorney by the said 20th of March, he would accept it; otherwise he should sue him for not serving the execution upon Peters. Baldwin agreeing to pay the money on that day, accordingly the attorney consented that Peters might use the alias execution as he should think proper against Brackett. The attorney also agreed to allow or pay to Baldwin about twenty dollars, upon his performance of this agreement.</p> <p>After this arrangement was made, the original execution was returned unsatisfied, and an alias taken out on the 3d of March, 1819. This was delivered to Peters, who handed it to a deputy sheriff of Norfolk, with directions to commit Brackett upon it, if he did not pay the money. He was accordingly committed to the jail in Norfolk, on the 11th of March, where he remained until he was liberated upon giving bail in this suit according to the statute of 1780, c. 47.</p> <p>On the 22d of March, Baldwin paid to the creditors’ attorney the whole amount due on the execution, having previously received the same from Peters ; and thereupon the attorney gave Baldwin a receipt for the money. This receipt was not produced at the trial, and its precise tenor was not proved, it having been delivered over to Peters by * Baldwin as soon as he received [ * 155 ] it. On the same day the creditors’ attorney paid the money over to the creditors, the present defendants, together with other moneys which he had received for them, and took their receipt of that date and of the following tenor,—“ Received of Z. G. Whitman the following sums of money, collected by him for the late firm of Winslow &f Alger, viz., the sum of seven hundred and twenty-six dollars, and eighty-five cents, collected of J. Brackett &f J. Peters,” and specifying three other sums collected of other per sons; “ the said Whitman having collected the above as attorney to said Winslow &f Alger: Received by me for said Winslow &/• Alger,” and signed John Winslow.</p> <p>The said attorney testified that it was the intention of all the parties in this transaction not to discharge the execution nor the judgment on which it issued, but to leave the business in such a state, that the alias might be lawfully served on Brackett, and to put it into the hands of Peters, to be used by him in any lawful manner, as he should think fit; that the present defendants assented to this, and the alias was accordingly delivered to Peters, as above mentioned; but that he took a receipt from the defendants in the form above written, instead of a receipt for so much to be accounted for, in order to prevent the necessity of any further account or settlement, on this subject, between himself and his said clients.</p> <p>On the 31st of the same March, Brackett paid to the jailer the amount of poundage and other fees on the execution, the receipt of which was endorsed by the jailer on the copy of the execution in his hands. Brackett, after he was committed, and before the writ of habeas corpus hereafter mentioned was sued out, caused notice to be given to the defendants of his intention to take the oath for his discharge as a poor debtor; whereupon Winslow consulted with his said attorney, and was told by him, that if any opposition was made to that discharge, Peters ought to pay the expense of it. Brackett also, after the said 31st of [ *.156 J *March, caused a tender to be made in his behalf to the defendants and to their said attorney, of the sum of fifteen dollars, to pay the costs, if any, incurred by them on the said alias, and demanded of them an order on the jailer, or other proper authority, for his discharge, which they refused.</p> <p>He then sued out a writ of habeas corpus, to obtain his discharge; nut the Court declined to investigate and ascertain the facts in that summary manner; as he had an adequate remedy, if injured, by this process of audita querela, in which any facts in dispute might be settled by a jury. The plaintiff, therefore, sued out this writ on the 13th of April, 1819, and was discharged from his imprisonment on giving bail, as before mentioned.</p> <p>The defendants contended at the trial, that. the transactions on the 22d of March, with the subsequent proceedings, did not amount to a payment of the debt, or a discharge of the execution, on which the plaintiff was committed; and that, if they did, the plaintiff might have departed from the jail, without any legal process; and that he could not, therefore, maintain this suit.</p> <p>The judge was inclined to a different opinion on both these points, and thereupon it was agreed that the defendants should be defaulted, and if the Court should be of opinion that the plaintiff was entitled to prevail, the default was to stand, and judgment to be entered accordingly; with such damages as should be assessed by an assessor, to be appointed by the Court, or agreed on by the parties. If the Court should be of a different opinion, the default was to be set aside, and the plaintiff to become nonsuit.</p>

<p>The credit of a witness, who has testified orally or by giving his deposition, may be impeached by showing that he has made a different statement out of court, either before or after he has given his testimony, and it is not necessary that the impeached witness be first inquired of, as to such different statement, or that he be present when his credit is to be impeached.</p>

<p>All the indemnity which a surety in a bond for the payment of money can claim from the principal, is the amount he has paid on account of the bond, with all such reasonable expenses as he may have been obliged to incur; not such extraordinary and remote expenses as might have been prevented by payment of the bond.</p>

<p>Where bond is given for the liberty of the prison-yard, by one imprisoned on mesne process, the penal sum must be double the sum to the amount of which the officer is directed to attach; and in case of an escape, it is not subject to the equitable powers of this Court, as a bond is, when given by one committed upon execution.</p>

<p>Assumpsit upon two bills of exchange drawn upon and accepted by the plaintiffs. The defendants had filed in set-off a demand against the plaintiffs, for the amount of certain merchandise, sent to the plaintiffs, as commission merchants in Neiv York, to sell and dispose of on account of the defendants; which was received by the plaintiffs, sold, and an account rendered, showing the balance due, as claimed by the defendants, when collected. The merchandise was sold on credit to one TJpham, who had failed, and had been discharged under the insolvent laws of New York. The question of fact, which was tried before the chief justice, was, whether the plaintiffs had acted discreetly, and with due caution, in giving the credit to TJpham, without any collateral security. The jury returned a verdict for the defendants, grounding it [ * 179 ] * upon the negligence of the plaintiffs in selling the goods to TJpham without any security. The plaintiffs objected to the account filed in set-off; and if it ought not to have been received, the verdict was to be set aside, and the defendants defaulted.</p>

Assumpsit on several promises. The plaintiff names himself of London, in the kingdom of Great Britain, merchant, an alien, never resident within the United States, or either of them. The defendant pleads that the cause of action did not accrue within six years, &c. The plaintiff replies, that at the time when the cause of action accrued to him, he was beyond sea, without any of the United States, viz., at London, &c., and hath ever since so continued.

<p>The plaintiffs declare in case, for that the said Gurney 8f Packard, previous to the 11th of June, 1818, had sold certain goods and merchandise to one Abel Upton, who, having afterwards become insolvent, applied to them to be credited with certain other goods and merchandise, which they, because of Upton’s inability to pay his debts, refused to sell and deliver to him at fair and usual prices, pretending that they did not wish to sell any more goods on credit, as they expected soon to dissolve the connection in trade existing between them, advised him to get the goods in their line, which he might want, elsewhere, saying they would recommend the plaintiffs to him as good and fair men to deal with, and would recommend him to the plaintiffs, as of good credit and responsibility to be trusted; that thereupon Upton applied to the plaintiffs to purchase certain goods and merchandise, of the value of 189 dollars, on a credit of sixty days; but the plaintiffs refused to credit him therefor, until they could be well assured of his ability to pay them, and that his property and circumstances were such that he could safely be trusted for that amount and for the term proposed; that Upton thereupon referred the plaintiffs to the defendants, to be informed of his circumstances, and his credit and ability to pay said sum ; that the plaintiffs, on the 16th of June, 1818, applied to the defendants for such information, and the defendants, well knowing that Upton was insolvent and unable to pay that sum, with intent thereby to procure the plaintiffs to deliver and intrust their said goods and merchandise to him, and that they might then immediately attach the same by legal process, to satisfy their own demands against him, and with intent to injure and defraud the plaintiffs, falsely and fraudulently affirmed to the plaintiffs * that [ * 183 J Upton was a person of good credit and property, and of sufficient ability to pay said sum ; that they, the defendants, would trust him to any amount he might want; that he might be safely trusted, and that the plaintiffs need, not fear to give him the credit he had applied for : that the plaintiffs, believing and confiding in the said false and fraudulent affirmation of the defendants, delivered to and credited Upton with goods to the amount and for the time aforesaid; that he was then insolvent, as the defendants well knew; that the defendants, in pursuance of the said fraudulent intent, on or about the 18th of the same June, attached all the propert) of Upton, including the goods sold to him as aforesaid by the plaintiffs; and that the plaintiffs have expended much time and money in attempting to obtain payment from Upton, without being able to get any satisfaction or security, and have thus totally lost their money, time, &c. There were two other counts for the same cause of action.</p> <p>After a general verdict for the plaintiffs, returned before the chief justice, the defendants moved in arrest of judgment, on the ground that the defendants could not be joined, and that the plaintiffs could not join in the action.</p>

Assumpsit on a written promise to pay the plaintiff 5198 dollars, 87 cents, with the following condition annexed, viz., “ on the condition that if a greater quantity of sperm oil should arrive in whaling vessels at Nantucket and New Bedford, on or between the first day of April and the first day of October of the present year, both inclusive, than arrived at said places, in whaling vessels, on or within the same term of time the last year, then this obligation tr be void.”…

This was an action on the case, in which the plaintiff declares that the defendant, on the 1st of January, 1819, commenced an action against him in this county, to recover the amount of seven promissory notes ; that in that suit Larned caused four several parcels of timber, the property of Lindsay, to be attached, and in March, 1820, recovered judgment in the suit for the sum of 7853 dollars; that in May, 1819, Larned, well knowing of the suit then pending in this county,…

This was trespass against the defendant, sheriff of the county of Middlesex, for taking 1650 feet of live oak timber, alleged to be the property of the plaintiff.

<p>This was an action of trespass, alleged to have been committed by the defendant' on the plaintiffs’ tenement in Boston. Trial upon the general issue.</p> <p>The defendant set up a title to the land, upon which that part of the tenement stood where the trespass was committed. It being admitted that the plaintiffs were in possession of the piece of land in dispute, the defendant read in evidence two deeds; one from the plaintiff Davis, bearing date February 17th, 1813, and the other from John Wells, of the same date, to one Caleb Hiorns; each deed conveying an undivided moiety of a certain parcel of land, which included the piece in dispute. It was admitted that Hiorns died seised of the premises, which he gave by will to his widow, Sarah H., whom the defendant afterwards married.</p> <p>* The plaintiffs, to rebut this evidence, read a deed [ # 208 J from the said Sarah H. to them, bearing date the 11th of July, 1817, in which she purported to convey to them a certain piece of land, “ containing between 19 and 20 square feet, or thereabout, lying between my estate in Marlborough street, the estate of Davis &f Brown at the corner of Marlborough and Milk streets, and the estate of said Davis, Brown, fy Williams, and bounded as follows, viz., northwestwardly on the line of the estate of Davis 8f Brown, beginning at the southeastwardly corner of their store, and running on the wall of the store northeastwardly one foot and three inches; thence running southeastwardly on the line of the estate of Davis, Brown, 8f Williams, where they are now building a store, six feet, ten inches; thence running southwestwardly, on the line last mentioned, f< ir feet, four inches; thence northwardly and westwardly seven feet eight inches, to the corner of Davis Brown’s store, the place of beginning. It is understood that the wall of the store, which said Davis, Brown, Sf Williams, are now building on their lot herein mentioned, is to be placed exactly on the line last described herein ; and I give them the liberty of placing and maintaining a coving on said piece of wall over my land, and of opening and forever keeping windows in the same wall. In the sketch on the back of this deed, the piece of land hereby conveyed is represented and marked A.” The plaintiffs also read in evidence a deed from themselves to Sarah Hiorns, bearing the same date with the preceding one, of a piece of land given in exchange for the piece above described.</p> <p>The defendant then offered to prove that the line of the estate of the said Davis, Brown, If Williams, was a well-known line fixed by monuments ; and that the same was three feet, six inches, northeastwardly from the point of beginning, instead of one foot, three inches; and he further offered to prove that, taking the lines of their estate, mentioned in the said deed, as two of the [ * 209 ] boundaries of the * piece of land intended to be conveyed by the deed, then the place where the trespass was committed was the soil and freehold of the defendant. But the judge did not permit the testimony to be given; considering, at the time, that the defendant was concluded by the measures mentioned in the deed, and by the sketch on the back of it, without regard to the actual lines of the estate of Davis, Brown, If Williams,</p> <p>The defendant also offered to prove that the sketch on the back of the deed was incorrect and defective, and not properly describing the premises marked out. But the judge did not permit him to go into the evidence.</p> <p>The defendant also, to avoid the deed on account of fraud, offered to prove that the bargain, actually made with Mrs. Hiorns, by the plaintiffs, was for a piece of land to be bounded on two sides by the lines of the estate of Davis, Brown, 8f Williams; that no windows were to be opened in the building about to be erected by them; that a sketch was made of the piece of land intended to be conveyed, according to the true lines and measure thereof; and that Mrs. H. being a person wholly unskilled in business, one Lewis, a friend of hers, who was conversant with the actual bargain, was to examine the deed, approve of it, and be present when she should be called upon to execute it; and he offered further to prove that the deed, as it was executed, was prepared contrary to the contract, both as to the piece of land intended to be conveyed, and the privileges ; that the same was not exhibited to Lewis, nor was he called in to explain it to Mrs. H., and to be present at the execution thereof. But as it was not suggested that the deed was falsely read to her, or that she was improperly urged to execute it, the judge did not permit the defendant to introduce the evidence; and the jury, under the direction of the judge, gave their verdict for the plaintiffs.</p> <p>If the judge’s construction of the deed was incorrect, or if the evidence offered, or any part of it, was improperly * rejected, a new trial was to be had; otherwise judgment [ * 210 ] was to be rendered on the verdict.</p>

<p>This was an action of covenant broken, brought upon a deed dated May 24th, 1815, whereby, for the consideration of 2000 dollars, the defendant conveyed to the plaintiff in fee, with warranty, 684 acres of land in the Connecticut Western Reserve, in the state of Ohio, being a tenancy in common with Joshua Stowe and others in the 4000 acres reservation in the Salt Spring Township, in the county of Trumbull. The first count in the declaration alleges a breach, as follows, viz., that the whole of the said 4000 acres, including the premises conveyed, were then upon a petition for partition of said Joshua Stowe, the defendant, and one Benjamin Tappan, to the Court of Common Pleas for said county of [ * 214 ] Trumbull, and it was adjudged * and ordered by said court, being of competent jurisdiction, that the sheriff of the county should make sale of the land described in the petition, according to a statute in such case made and provided; and after-wards a writ issued from the same court, and was delivered to the sheriff, commanding him to make sale thereof, agreeably to law, to one Turhand Kirkland, he being the highest bidder for the same; and that said Kirkland has since, by force of said sale to him, entered into possession thereof, and legally holds the same in fee.— The second count alleges that the defendant, at the time of making the deed containing the covenants declared on, was not well seised of the land therein described, as of a good and indefeasible estate in fee simple; that he had not good right to bargain and sell the same as aforesaid ; that the same were not free of all encumbrances ; and that he had not warranted and defended the same against all claims, &c.—The third count states that, at the November term of the Court of Common Pleas for the said county of Trumbull, in the year 1811, the said Stowe, Tappan, and Bull, presented their petition, stating that they were tenants in common of said tract of 4000 acres, and praying that a committee might be appointed to set off and divide to each of them their proportion of the tract, if in the opinion of the committee it ought to be divided; that at the following February term, the court appointed a committee for the purpose; that the court then issued a writ to the sheriff of the county, commanding him, by the oaths of said committee, to set off to each of the petitioners in severalty, their just proportions of the said tract, and to make return forthwith to the court then in session; that the said committee having reported that the land could not be divided with out prejudice to the whole property, and appraised the same at three dollars the acre; and the report being accepted, and no one agreeing to take the land at the appraisal, the sheriff, pursuant to a writ to that effect, sold the same on the 21st day of June, [ * 215 ] 1815, to the said Turhand Kirkland * for 3000 dollars, he being the highest bidder, and having paid the money into court; that the sheriff thereupon, in open court, executed and acknowledged a deed of the land, which the court ordered to be sealed and certified by the clerk of the court, and delivered to Kirkland, who, by force thereof, entered into the premises, and legally holds the same in fee.</p> <p>The defendant pleaded performance generally, upon which issue being joined, a trial was had before Wilde, J., at the last September term in this county. The evidence went to support all the allegations in the declaration, except the entry and actual seisin of Kirkland, by force of the sheriff’s deed, and the delivery of that deed to him.</p> <p>It was objected by the defendant, that it did not appear that the proceedings upon the petition for partition were a legal encumbrance upon the estate, at the date of the defendant’s deed to the plaintiff; that it did not appear that the sheriff’s deed to Kirkland was ever delivered to him, or that he had ever been in possession of the estate by virtue of that deed, so as to entitle the plaintiff to recover in the action. But the judge was of a different opinion, and so instructed the jury. On the subject of damages the judge instructed the jury, that they might take as a rule the value of the land at the date of the defendant’s deed. The defendant excepted to this direction of the judge, insisting that the plaintiff was in no event entitled to recover more than the land was sold for by the sheriff, or at furthest the price that the plaintiff paid for it.</p> <p>The judge certified that the evidence, produced by the plaintiff, was applicable to a breach of the covenant relative to encumbrances. The jury returned a verdict, conformable to the instructions of the judge, for 2667 dollars; which was to be altered, agreeably to such rule of damages as the Court should decide to be proper; or to be set aside, and a new trial to be had, or the plaintiff to become nonsuit, as the opinion of the Court should be.</p>

<p>A, being in failing circumstances, conveyed his estate to B and C, taking their promissory note for the value ; with intent to prevent the estate from attachment by his creditors, and to save it for the benefit of his family At the same time he transferred to them sundry securities for the payment of money with which they were to purchase in a previous encumbrance upon the estate; and gave them also his promise in writing, that the said note should never be collected. A died insolvent; and his administrator recovered judgment upon the note; although it was more than sufficient to discharge all claims upon his estate, and the surplus would go to the benefit of his family.</p>

<p>The declaration was in a plea of the case, for that the said Root, in consideration that the plaintiff would deposit with one Merrick a certain promissory note, which he held against the Housatonic Manufacturing Company, whereof the said Root was a member, and for the debts whereof he was liable, which note was payable to one Weller or order, and by him endorsed to the plaintiff, whereon was due to the plaintiff 160 dollars, and that the plaintiff would suffer said note to remain with Merrick until Root should take up from one Janes another promissory note made by the plaintiff to Janes, and with the last-mentioned note, so to be taken up, pay the note first mentioned;—promised the plaintiff to save him harmless from his note to Janes, and all costs arising thereon. And the plaintiff, in consideration of the premises, did deposit with Merrick the first-mentioned note, to remain with him according to Roofs wish; but the said Root has not saved the plaintiff harmless according to his promise; but the plaintiff has been sued by Janes, and subjected to great costs, viz., 50 dollars, and an execution has been issued against him for 181 dollars, on which a carding-machine, the property of the plaintiff, of the value of 1000 dollars, has been seized and sold, &c. f * 230 ] *The cause was tried upon non assumpsit pleaded, before Wilde, J., at the last May term in this county. It appeared in evidence, that, in July, 1818, the plaintiff held a note against the Housatonic Manufacturing Company, to which corporation the defendant belonged; that the plaintiff was about going out of the commonwealth, and was desirous to obtain the money on this note, to enable him to discharge one he had given to Janes; that it was agreed by the plaintiff, that he would not sue the note he held against the company, but would leave it in the hands of a third person, until he should return, which was not until the February following; that, in consideration of this, the defendant promised the plaintiff, that, if Janes should sue him upon the note he held against the plaintiff, he, the defendant, would indemnify the plaintiff from all cost and harm ; that the plaintiff did leave the note against the company with the person agreed upon, until the February following, when he took it away, and sued it in his own name, and at the last May term recovered a judgment thereon against the company; that the plaintiff was sued by Janes immediately after the above arrangement, and the defendant, as well as the plaintiff, had notice of the suit; that a judgment was recovered by Janes upon the note, and an execution issued thereon, the costs of the suit, including the execution, being 8 dollars, 75 cents; that, in February, 1819, after the execution was issued, and before it was levied, the plaintiff returned and took the note against the corporation out of the hands of the third person, with whom it was deposited, and then knew that the execution against him had issued; that in May, 1819, the execution was levied upon a carding-machine, belonging to the plaintiff, he being then absent from the commonwealth; that notice of the levy was given to the defendant; but he neglecting to raise the money to satisfy the execution, the machine was sold for much less than its value; that, notice of this being given to the plaintiff by his agent, he came from * Riga, [ * 231 ] in the state of New York, a distance of 300 miles, to redeem this property, and was compelled to pay 50 dollars, in addition to the sum for which it was sold at auction, to have it restored to him; and that the cost of levying the execution was 8 dollars, 35 cents, which sum, with the costs of court, and the 50 dollars, was paid by the plaintiff in June, 1819.</p> <p>The plaintiff contended that he was entitled to recover, as damages in this action, the above three sums, and also the expenses of his journey from Riga, with a compensation for his time.</p> <p>The defendant contended that the plaintiff was not entitled to recover any thing, the contract declared on being void, because not in writing; and the contract proved being different from that stated in the declaration, and he having objected to the proof of the contract by parole. He also insisted that the contract was void fat want of consideration; but that, if the plaintiff was entitled to re cover any thing, it was only the costs of court and of the execution.</p> <p>The judge overruled the objection to the evidence, and told the jury that there was a sufficient consideration for the promise; and he instructed them to find their verdict for the costs of court and of the execution, and the 50 dollars paid by the plaintiff to redeem his property, with interest from the time the money was paid; and that they might also inquire what sum the plaintiff would be entitled to recover for the time and expense of his journey from Riga, in case the Court should be of opinion that any damage could be recovered by the plaintiff, on that account, in this suit.</p> <p>The jury found a verdict for the plaintiff for the sum of seventy four dollars and eighty-one cents; and that the time and expense of the journey from Riga were worth thirty dollars.</p> <p>If the evidence was incompetent or insufficient to support the action, the verdict was to be set aside, and a new [ * 232 ] * trial had; if the rule of damages, as prescribed by the judge, was wrong, the verdict was to be so altered in its amount, as to conform to the opinion of the whole Court.</p>

This was an action of assumpsit for goods sold and delivered, and came uo t« this Court, uppn exceptions offered by the plaintiff to the opinion o the Court of Common Pleas, under the provisions of the statute of 1817, c. 185.

Assumpsit against the defendant, as treasurer of the Third Massachusetts Turnpike Corporation, for the amount of several dividends of the toll, accruing upon certain shares in the turnpike, of which the plaintiff claims to be the owner. By the act establishing the said corporation (1), it is provided that the shares in the turnpike shall be taken, deemed and considered as uersonal estate to all intents and purposes.

<p>Trespass is the proper action against the sheriff, for an injury done by his deputy to the person or property of another.</p> <p>Where trespass is the proper action, case does not lie</p>

<p>The holdei of a promissory note, being about to leave his home, left the note in the care of his son, whom he directed not to receive payment in his absence from the promisor.</p> <p>But the promisor coming and insisting upon paying the sum due, although informed of the directions given as aforesaid, the son received the money, and delivered the note to the promisor, which was not then payable. The promisee afterwards maintained trover for the note against the promisor.</p>

This was case for the sum of 200 dollars, had and received by the defendant for the plaintiff’s use.

Assumpsit upon a promissory note, dated 13th June, 1816, foi 381 dollars, 6 cents, payable by the defendant to the plaintiff on demand; and a count for money had and received. Trial on the general issue, before Putnam, J., May term, 1820. It was in evidence that the consideration of the note was a quantity of shingles sold by the plaintiff to the defendant, which were not of the quality required by the statute of 1783, c. 15.

This was an action of trespass, guare clausum fregit. There were two counts in the declaration. The first alleged the trespass to have been committed on the 21st of December, 1818 ; and the second, on the 1st of November, in the same year, and at divers days and times between that day and the day first mentioned, being the day of the purchase of the writ.

<p>This was an action of trespass on the case for a nuisance. The plaintiff alleges that she was seised of a corn-mill, called the upper mills, on Mill River, so called, in Northampton; and that the defendants erected, continued, and kept up a dam below, and caused the water to flow back upon the plaintiff’s mill and mill site; whereby the same became useless. The defendants severally pleaded the general issue, and those issues were joined.</p> <p>At the trial, which was had here before Putnam, J., May term,' 1820, the plaintiff produced a deed of William Edwards, dated June 16th, 1807, conveying to her “a certain mill seat and mill, situate in Northampton, on Mill River, so called, known by the name of the upper mills, with all and singular the appurtenances belonging to the same,” in mortgage to secure the payment of 1000 dollars, which he had borrowed of her. The plaintiff recovered judgment upon that mortgage in May, 1817, and took actual possession of the mortgaged premises on the 29th of the following August. This mill site, or privilege, extended on the west side of the river, from a place a little above the mill, down to the bridge, which is below the new dam ; but the land appurtenant to the mill site, or privilege, was not particularly described by metes and bounds, bu only as in the mortgage aforesaid.</p> <p>It was proved that, in the year 1807, the defendant Burnell built the new dam about five rods below the plaintiff’s mill site, and thereby caused the water to flow back, so as to render the plaintiff’s mill site wholly useless. Edwards purchased the upper mills of Aaron Coole, Abner Hunt, and Benjamin Ciarle, in the year 1803 or 1804, for 1350 dollars. The grist-mill was then very old and much decayed, and the saw-mill (in the language of a * witness) had then entirely done. After the execu- [ * 290 ] tian of the mortgage to the plaintiff, viz., on the 17th of October, 1807, Edwards conveyed to the defendant Burnell two third parts of the upper mills situate in Northampton, with the privileges, as formerly owned by the said Coole, Hunt, and Ciarle, the other third being owned by Edwards; also two thirds of a piece of land in common on the west side of Mill River, near said mills, containing in the whole about twenty acres, which Edwards purchased of the said Ciarle; also two thirds of about three fourths of an acre of land on the east side of the river, also purchased of Ciarle; also two thirds of one acre adjoining the easterly end of the dam of the present mill, purchased by Edwards of the said Coole; the whole of the above-described premises being conveyed, subject, however, to the said mortgage to the plaintiff, which Edwards covenanted to discharge in one year.</p> <p>At the time of this conveyance, the old mills, which were on the west side of the river, had been taken down, and the mill mentioned in Edwards’s deed to Burnell was placed on the east side of the river, upon the land which Edwards purchased of Coole; and the dam, of which the plaintiff complains as a nuisance, is that which is mentioned in that deed to Burnell.</p> <p>It was in evidence that Edwards, wanting a small piece of land on the west side of the river, included in his mortgage to the plaintiff, whereon he might build a hide-mill and some lime-vats, obtained from her, for the consideration of five dollars, a release of a small parcel of land thus described—“ Beginning at the west end of the dam on Mill River at the upper mills, so called, and running up said river two rods, thence westwardly, &c. &c., and thence to the bank of the river,” for those purposes, dated the 1st of September, 1810; having previously conveyed the same land to the Hampshire Leather Manufacturing Company, by a deed dated the 24th of the preceding August. On the 30th of August, 1815, Edwards conveyed * to the defendant Dwight the remaining [ * 291 ] third of the upper mills and the lands, of which he had before conveyed the two thirds to Burnell, describing them as in that deed, recognizing the encumbrance of the mortgage thereof to the plaintiff, and excepting out of the granted premises the small piece of land above mentioned, which the plaintiff had released to him. This was the first time that the defendant Dwight had an) concern in this matter.</p> <p>It was discovered that the land on which the new mill had been built, was not included in the description of the premises mortgaged by Edwards to the plaintiff; and that she had no land conveyed to ier near the mills on the east side of the river. But she had a right to rest the east end of the dam upon the land on that side; and her land on the west side extended much below the new mill-dam.</p> <p>It was in evidence for the defendants, that the place where the old dam stood, was not so convenient a site as that where the new one had been built; also, that the town of Northampton have a claim upon the owner of the upper mills, to keep a corn-mill there for the use of the inhabitants; and that another mill has been built below those mills, where the inhabitants can and do more conveniently procure their corn to be ground. And it was insisted that the plaintiff had sustained no damage, but had, in [ * 292 ] * truth, been prevented from wasting her property in building upon the mill site; and especially as there was no evidence that she would have occupied it, or could have disposed of it.</p> <p>It was proved that the value of the property, when Edwards purchased it, consisted mainly in the water-course or mill site; the buildings being at that time worth little or nothing. One witness testified that the upper mill privilege would be worth 500 dollars, if there were no obstruction from the mill below. Another witness thought it worth nothing, by reason of the inconveniences of building at the place, but that the privilege of the lower dam, if free from any claim of the plaintiff, would be worth 1000 dollars; and it was proved that this privilege could not be enjoyed without entirely destroying that of the plaintiff.</p> <p> </p> <p>A. The small piece of land released by the plaintiff to Edwards.</p> <p>B. The new mill erected by the defendant Burnell.</p> <p>It was contended by the plaintiff that the defendants, by continuing their dam, did, in fact, take possession of the plaintiff’s mill site, and ought, therefore, to pay a yearly sum in damages, equal, at least, to the interest of the value of her property.</p> <p>The defendants contended that, it being proved that, at the time of the plaintiff’s deed of release to Edwards, he and Burnell had a grist-mill on the east side of the river, connected with a mill-dam; and that Edwards had a hide-mill on the west end of the dam ; the release would convey the right to maintain the dam, and also convey the privilege of the water, so far eastward as she owned the same against the land particularly described in the same deed; and that in consequence of having a right to erect or maintain and keep the said dam, the plaintiff could sustain no damage therefrom; although all parties supposed that she owned the land whereon the mill stood; and that if the plaintiff was entitled to any damages, she could not recover for any thing done before she took actual possession, which was only one year prior to the commencement of this action.</p> <p>* The plaintiff contended that she had a right to recov- [ * 293 ] er from the time that Dwight became interested with Burnell.</p> <p>The judge was of opinion that the plaintiff could recover only from the time she had actual possession, but directed the jury to find the damages from the time Dwight became interested ; which was to be added to the verdict, if such should be the opinion of the Court. The judge also instructed the jury, that the deed of release from the plaintiff to Edwards, of the small piece of land for the hide-mill, did not in law operate as a release of her mill site, or bar her claim for damages for the injury complained of in this action.</p> <p>All the evidence touching the question of damages was submitted to the jury, and they returned a verdict for the plaintiff for thirty-six dollars for one year, being from the time that she took actual possession ; and they expressed an opinion that, if the plaintiff was by law entitled to recover damages from the time that Dwight became interested, or before, that the same should be after the rate of thirty-six dollars a year; and the judge was satisfied with the verdict.</p> <p>The defendants moved for a new trial, because the damages were excessive; because no action could be maintained upon the evidence in the case, and because of the misdirection of the judge, as to the effect of the deed of release ; and the whole Court were to do what should appear right in the premises.</p>

This was an action of assumpsit for the rents and profits of certain lands in Williamsburgh in the county of Hampshire; and was submitted to the determination of the Court upon the following facts agreed by the parties:— Previous to the 12th of October, 1813, the plaintiff was the owner of two certain tracts of land in Williamsburgh, * containing 59 and 26 acres respectively.

<p>This was a bill in equity, in which the plaintiff alleges that William Edwards, on the 8th of November, 1813, was indebted to him in the sum of 7500 dollars, to secure which the said W. E. had made an assignment of so much of his share of the profits of the Hampshire Leather Manufactory, as would amount to the sum of 10,000 dollars, to be paid out of the first dividends, and authorizing the plaintiff to give proper receipts, &c.;—that the said W. E., on the 25th of October, 1815, being indebted to the said Pomeroy in the sum of 18,400 dollars, to John Tappan 6400 dollars, to the said N. Edwards and R. Smith 4000 dollars, and to the said Lloyd 4000 dollars; for securing their said debts made to them respectively assignments of his claims upon the said Hampshire Leather Manufactory, and disputes having arisen between the plaintiff and the said other creditors respecting their several claims, and then priority therein, for preventing whereof, for obtaining satisfaction, and for ascertaining the amount of the said W. E.’s claim on the said manufactory, and the several proportions due to said assignees ; it was on the day last aforesaid agreed by and between the plaintiff and the said assignees, that the said W. E. should make and execute a deed of trust to the defendants Pomeroy, Lyman, and Whiting, assigning to them all his claims and demands upon the said manufactory, and also the said original contract; in trust, after paying all costs and charges, that the plaintiff should receive and be paid, absolutely and unconditionally, in full satisfaction of his claim of 7500 dollars, the sum of 5500, and no more ; the residue to be paid to the said other creditors in proportion to their respective debts, computing the said Pomeroy’s claim at 18,400 dollars; [ * 304 ] and in case said Tappan and Lloyd should * not agree to "said trust, the said residue, after payment of the charges, and also the said 5500 dollars to the plaintiff and the said other creditors the amount of their claims, to be paid to the said W. E.;—that the said Pomeroy being in urgent want of money, and it being uncertain what sum was to be received, it was agreed that the trustees might pay over lo him 9120 dollars out of the first moneys received, upon condition, however, that the plaintiff should receive 5500 dollars out of the net proceeds, and that the residue, including the said 9120 dollars, should be divided ratably among the creditors other than the plaintiff; and all former assignments were to be can-celled ; that on the same day the said W. E. made and executed a deed of assignment to the said Pomeroy, Lyman, and Whiting, upon the several trusts before mentioned ;—that the said Tappan and Lloyd not being present, it was provided that, if they neglected for twenty days after notice to accede to the said deed of trust, the sums due to them respectively should be paid to the other creditors, &e.; that the said Pomeroy, Lyman, and Whiting, re ceived said deed, and that the plaintiff, relying upon their faithful performance of the said trust, gave up to be cancelled his said first-mentioned assignment; the said Lloyd signifying his assent within the twenty days, and the said Tappan neglecting so to do; that said trustees have received divers large sums of money, amounting to 10,000 dollars, by the conveyance to them of certain tan-works in Chester and Cummington, purporting to be for the consideration of 16,111 dollars, 12 cents; that they have converted the same into money, have discharged all claims and demands of the said W. E. against the said H. L. Manufactory, and from the proceeds, after paying costs and charges, have received more than sufficient to pay the plaintiff 5500 dollars, although he is ignorant of the precise amount so received by them; that the plaintiff has often requested the said trustees to account for the said proceeds, and to pay the said sum to him ; and he is advised and humbly insists that by the * said deed of trust, he is equitably entitled [ * 305 ] to receive that sum, if so much has been by them received, &c.; and that, in case said deed, as it was executed, cannot be so construed, which he does not admit, it was not made in conformity to said agreement, but is so made by accident and mistake, and ought to be made and carried into effect according to the said agreement, and not otherwise; that the said Lyman and Whiting, combining with the said Pomeroy, N. Edwards, Smith, and Lloyd, and others unknown, to defraud the plaintiff, refuse to render him any account of what they have received, &c., and to pay over to him said sum of 5500 dollars, or any part thereof; sometimes alleging that they have not received more than 9120 dollars, and that the whole ought to be paid to said Pomeroy, and by him accounted for to the others; and at other times pretending that they are willing to do what is right, but are holden to pay the same to said Pomeroy; whereas in truth they have received more than sufficient to pay the plaintiff 5500 dollars, and he agreed to give up his whole claim to receive that sum, and the said other creditors agreed to his receiving that sum absolutely, and to run their risk, &c., all which was well known to the said W. E. and to the defendants, at the time of máking said deed of trust, and was so understood by the defendants long afterwards; who, after finding what was due., urged the plaintiff to give up part of his claim, alleging that he would receive by far the greater part of what should be realized; all which is contrary to right, equity, &c.</p> <p>The plaintiff, therefore, having no adequate, plain, and complete remedy at law, to the end that the defendants may make true and perfect answer, &c., and particularly that they may fully set forth the said agreement, &c., and whether it was not agreed and understood by the parties and the said trustees, that the plaintiff should give up his claim against the said W. E. and receive a certain fixed sum, and the other creditors to receive in proportion to their respective debts; and that the said Pomeroy, Lyman, * and Whiting, may set out the said deed of assign- [ * 306 ] ment, &c., and may also declare what sums they have received, &c.; also that the said trustees may declare on oath whether, in a conversation held with the plaintiff at Boston, in December, 1817, to induce him to give up a part of the said 5500 dollars, they did not state to him that, unless he did so, there would be little or nothing left for the other creditors, and may set out the import of such conversation ; that in case it should appear that the deed of trust aforesaid was not made pursuant to the said agree ment, &c., the Court here would cause such mistake to be rectified; and that in case, as he confidently trusts, it shall be found that the deed was made in conformity with the agreement, the trustees may pay over to him, &c., and that he may have such other relief as shall be agreeable to equity, &c.</p> <p>The defendants made several answers, from some of which it appeared that W. E., previously to making the deed of trust of the date of October 25th, 1815, mentioned in the plaintiff’s bill, had made a conveyance to the plaintiff, and another to Pomeroy, of his claims upon the Hampshire Leather Manufactory, for securing to them their respective debts; and some question existed between the two creditors, as to which had the legal priority. When, however, the said deed of trust was executed, those prior conveyances were cancelled. The defendants disclaimed all knowledge of the agreement stated by the plaintiff, that he was to be first paid 5500 dollars absolutely, and without deduction, out of the first proceeds of the property conveyed. The plaintiff, however, produced evidence tending to establish that fact, and to show that the provision was omitted by mistake of the scrivener who drew the deed. It seemed, however, that the question, whether the plaintiff should be first paid the sum above-mentioned, or the defendant Pomeroy should first receive his 9120 dollars, was not at the time of the negotiation considered as of great weight, it being then the opinion of all the parties, that the proceeds of the property conveyed in trust would greatly exceed the aggregate of the two sums. [ * 307 ] *The said deed of trust, which is set forth in the answer of one of the defendants, after reciting that the defendant Pomeroy had endorsed sundry promissory notes made by W. Edwards payable at several banks, amounting in the whole to the sum of 27,100 dollars; that the said W. E. was indebted to John Tappan in the sum of 6400 dollars, and to the defendant Lloyd in the sum of 4000 dollars; and that the defendants Edwards and Smith were sureties for the said W. E. on a note made to David Hinckley, the amount of which is not mentioned; also reciting that it was proposed, for the security of the said Pomeroy, Dwight, Tappan, N. Edwards &f Smith, and Lloyd, that an assignment of the contract of the said W. E. with the Hampshire Leather Manufactory, and all the rights, benefits, and advantages, accruing to the said W. E., under and by virtue thereof, should be made to the defendants Pomeroy, Lyman, and Whiting, for the benefit of the said Pomeroy and others, in the manner thereafter expressed and provided. After these recitals, the deed purports a conveyance to the said three defendants of all the said W. Edwards’s right and interest in the Hampshire Leather Manufactory, and in his contract with the same:—“ To have and to hold the same to them, the said Asahel, Joseph, and Spencer, the survivors or survivor of them, and their respective heirs, executors, administrators, and assigns, and to their use forever; upon the trusts nevertheless, and for the purposes hereinafter expressed ; that is to say, in trust as soon as conveniently may be, by all legal means to demand, recover, and receive of the Hampshire Leather Manufactory, all the lands, chattels, profits, benefits, and advantages, of every name and nature, which the said William may be entitled to claim under his contract with said corporation; and to pay and apply the same, after first converting the same into money in such manner as they shall think fit; First, to discharge all costs and expenses touching the recovery, disposal and distribution of said property ; and after the payment of said costs and * expenses, then, secondly, in [ * 308 ] trust, as to all the said William is entitled to claim under his said contract as his share of the profits, to pay to the said Asahei, Pomeroy, out of the first moneys received, the sum of 9120 dollars, under the terms hereinafter mentioned; and after the payments aforesaid, then in trust, thirdly, to pay to the said Josiah Dwight, absolutely, and without, condition, and in full of his share of the proceeds of this assignment, the sum of 5500 dollars; and after the payments aforesaid, then in trust, fourthly, to apply the residue of said profits to the payment of the claims of the said John Tap pan, Nathaniel Edwards, Rufus Smith, and James Lloyd, according to their ratable share thereof, estimating the claim of the said Pomeroy at the sum of 18,400 dollars; it being understood that if, upon the final settlement of the concern, it shall be found that the said Pomeroy, or the said Tappan, Edwards, Smith, or Lloyd, or either of them, shall have received from the proceeds of the assignment more than his or their ratable proportion thereof, estimating the said Pomeroy’s claim at the sum of 18,400 dollars, then the said party or parties so receiving shall refund to the said Pomeroy, Lyman, and Whiting, so much of the sum or sums so as aforesaid by him or them received, as shall leave him or them, his or their ratable proportion only of said profits. And if any balance shall be due from said corporation to said William, upon said William’s tanning account, after first paying thereout to William Hubbard of Cummington the balance due him from said William Edwards for tanning, supposed to be about the sum of 2600 dollars; then in trust, fifthly, to pay the said balance, together with the residue of said profits, after having first paid out of the said balance and residue the said sum of 5500 dollars, to said Dwight, and having also first fully satisfied the said claims of the said Pomeroy, Tappan, Edwards &/• Smith, and Lloyd, to the said William Edwards, his executors, administrators, or assigns.” The next article gives to the trustees power to ask, [ * 309 ] * demand, &c., to appoint attorneys under them, to execute discharges, &c. &c. Then provision is made for the said Tappan and Lloyd to accede to the said assignment within twenty days after notice; otherwise the sum or sums, to which they would be entitled, to be paid to the said Pomeroy, Smith Sf Edwards, Tappan, or Lloyd, as the case may be, according to their respective claims aforesaid. The concluding article provides that all former assignments, to such as accede to this assignment, shall be rendered null and void.</p> <p>The plaintiff made a general replication to the several answers of the defendants.</p> <p>Written arguments were furnished the Court by the counsel for the plaintiff, and also by the counsel for the defendant Pomeroy; a brief abstract of which is all that can here be given.</p>

<p>Members of a manufacturing corporation are liable, by force of the statute of 1808, c. 65, in certain cases, for the debts of the corporation; and a fraudulent transfer of their shares, with a view to avoid such liability, leaves them still liable.</p>

The defendant was indicted at the Circuit Court of Common Pleas sitting in this county, for publishing a lewd and obscene print, contained in a certain book entitled “Memoirs of a Woman of Pleasure,” and also for publishing the same book. The indictment contained three counts, charging the publishing and delivering of the print to three several persons, and three counts alleging the publishing and delivering of the book to the same three persons.

This was an action brought to recover seisin and possession of certain lands which had been set off to the plaintiffs, in satisfaction of a judgment recovered by them in their capacity of administrators, and was entered in this Court at the last April term, upon an appeal from the Common Pleas.

This was action of debt, brought by the plaintiff as a field-driver in the town of Dudley in this county, to recover of the defendant the penalty of forty shillings, upon the statute of 1788, c. 65, entitled “an act declaring the causes for which cattle may be impounded, the manner how they shall be proceeded with in such cases, and for preventing rescue and pound breach; ” the sixth section of which imposes a fine of forty shillings upon any person who shall rescue any…

Trespass guare clausum fregit, the close being described in the declaration. The defendant pleaded, 1. The general issue. 2. That the soil and freehold of the close described was in Addingtm Davenport, a minor, and others, as tenants in common; and that he entered, and did the several acts complained of, as the servant, and by the command of the guardian of the said Addington.

<p>An inhabitant of a parish, joining himself to another religious society pursuant to the provisions of the statute of 1811, c. 6, is not liable to be assessed in a tax granted by the parish, for the payment of a debt incurred under a vote of the parish before such inhabitant availed himself of the privilege of the statute</p>

After the default in this case [Vide ante, vol. 16, page 122] the tenant claimed the benefit of the “ Act for the limitation of certain real actions, and for the equitable settlement of certain… Held: if he had chosen to perform the candi tians on which that title depended.

<p>This was a petition for a writ of certiorari, to issue to a justice if the peace for this county, requiring him to certify the record of certain proceedings had before him, upon the complaint of the respondent, Childs, clerk of a company of militia, against the petitioner, for neglecting to attend a muster of the company, having been duly warned; and upon which the petitioner had been sentenced to pay a fine. A copy of the proceedings accompanying the petition, the cause was heard upon its merits, as upon the •eturn of a certiorari.</p> <p>The petitioner claimed an exemption from military duty as belonging to the religious sect called Quakers, concerning whom it is provided, by the statute of 1809, c. 108, § 2, that every person of that religious denomination, who shall, on or before the first Tuesday of May, annually, produce a certificate to the commanding officer of the company, within whose bounds such Quaker resides, signed by two or more of the elders or overseers, and countersigned by the clerk of the society, with which such Quaker meets for religious worship, in substance as follows, viz., “We the subscribers, of the society of the people called-, in the town of -, in the county of-, do hereby certify that-is a member of our society, and that he frequently and usually attends with said society for religious worship, and we believe is conscientiously scrupulous of bearing arms,” shall be exempted from militia duty. [ * 352 ] * The petitioner had removed from the town of Bolton into the town of Worcester after the first Tuesday of May, and in the September following, being warned to muster with the company of militia within whose limits he dwelt, produced to the commanding officer a certificate of the tenor prescribed, except that it did not contain the part above printed in Italics.</p>

The - said Osgood, being joint administrator with Ebenezer Breed, of the goods and estate of Mary White, deceased, made a petition to the judge of probate for this county, setting forth that the said Mary died intestate, leaving only two heirs at law, viz., Hannah Osgood, late wife of the petitioner, and Ebenezer Breed, father of his co-administrator; that by the death of his said wife, the petitioner, in her right, was by law entitled to a moiety of the personal estate of…

<p>To make robbery a capital offence, within the first section of the statute of 1818, c. 124, it is sufficient that the party be armed with a dangerous weapon, with intent to kill or maim the party assaulted by him, in case such killing or maiming be necessary to his purpose of robbing, and that he have the power of executing such intent</p>

<p>This was a writ of entry swr disseisin, brought to recover certain lands in Charlestown, the demandant counting upon his own seisin and upon a disseisin by the tenant. On the trial, which was ha.d on the general issue, before Wilde, J., at the sittings here after the last October term, the following facts were disclosed :—</p> <p>The tenant Barnes, on the 7th of May, 1817, lent to one David, S. Ingersoll 2000 dollars, on a mortgage of the demanded premises. On the 3d of August, 1818, a suit was brought by Barnes for the recovery of the possession * of the mort- [ * 366 J gaged premises. In that suit Ingersoll appeared, and put in a plea of usury, offering to support the plea by his own oath, according to the statute. But Barnes, on the Court’s inquiring of him whether he was prepared to negative the said plea, and to swear that he had not, directly or indirectly, taken or received more than after the rate of six per cent, on the loan, did swear to that effect; whereupon the Court awarded him the usual judgment for possession. As soon afterwards as his judgment entitled him, Barnes received from the sheriff seisin and possession of the mortgaged premises.</p> <p>Afterwards, on the 9th of December, Ingersoll, for the considera tian of 50 dollars, quitclaimed, sold and conveyed by deed all his ~ight, title, and interest, in the premises, to the present demandant Adams, who was well acquainted with all the preceding facts, and on the 13th of December, 1819, brought the present action, for the recovery of the premises.</p> <p>The demandant offered evidence to prove usury on the original contract between Ingersoll and Barnes, which was objected to by the tenant. Ingersoll, also, was offered as a witness to prove the usury, and was objected to; but both the objections were overruled.</p> <p>The tenant then contended that the former judgment was an estoppel to the demandant, and that no evidence ought to be admitted, to try the question of usury in the present action.</p> <p>The judge overruled this objection, reserving the question for the Court. The trial proceeded, and the jury found a verdict for the demandant; which was taken, subject to the opinion of the Court upon the facts and objections above stated; the tenant moving for a new trial.</p>

<p>The defendant then pleads, that he paid the said 800 dollars and interest, according to the tenor of the said condition and note, viz., on the 22d of February, 1811, he, the defendant, then being in possession of the said mortgaged premises, and the said testator having never entered thereon.</p> <p>The plaintiff then offered to prove that the defendant never gave a note for 800 dollars, as described in the deed; but that, at the time when the deed was made, it was intended and expected by the testator and the defendant (who was the testator’s son), that the former should lend to the defendant 800 dollars, the payment of which should be secured by the said mortgage deed, and by a note to be made in conformity therewith ; that the testator then advanced and lent to the defendant 214 dollars, 38 cents, in part of the said 800 dollars, and the defendant gave- his receipt therefor, dated on the same 22d of February, 1810, expressing that it was in part for a deed, which he had delivered to his father; and that the testator died in January, 1811, without having lent the residue of the money, and without having received from the defendant any [ * 372 ] other *note or paper, excepting the said receipt and deed; and the plaintiff produced the receipt, and claimed damages to the amount therein expressed, with interest from that date.</p>

The declaration in the original action contained three counts. The first was on a promissory note, given by the defendant to David Parker, the plaintiff’s testator, for 1739 dollars, 50 cents. The second was for 214 dollars, 38 cents, had and received by the defendant to the use of the testator; and the third was for a like sum lent by the testator to the defendant. The original action was tried in this Court, and the plaintiff had a verdict on the first count.

<p>An administrator, before the expiration of a year, believing the estate of his intestate to be solvent, pays sundry creditors the amount of their demands. Afterwards, and before four years had expired, other demands came in, by which, in addition to those paid by the administrator, the estate appeared insolvent. A commission of insolvency having been issued, the administrator presented and procured the allowance of the demands he had paid, in the names of the creditors. The estate proving actually insolvent, it was holden that the administrator was entitled to recover of those creditors the difference between the sums they had received, and the amount awarded them by the judge of probate, on the final settlement of the administration.</p>

<p>The plaintiff declares in assumpsit, “ For that the said TV. V., at, &c., on the 5th of November, 1810, by his note of hand of that date, by him subscribed, for value received, promised the plaintiff to pay him, at Mr. E. L.’s counting-room in Cross Street, Boston, 150 dollars with interest, on or before the last day of June then next; yet though often requested since the said last day of June, the said TV. V. hath never paid,” &c.</p> <p>The defendant pleads that before the note declared on became due, viz., on the day of its date, he placed in the hands of the said E. L. funds sufficient to pay the same; and then and there fully authorized and empowered the said E. L. to pay and discharge the said note. And the said E. L., on the day the said note became due, viz., on the last day of June of 1811, was ready at all times during said day at his counting-room in Cross Street, in Boston, with money sufficient, viz., the sum of 161 dollars, to pay said note; but the plaintiff was not there ready to receive it. And the said E. L. has always been ready, since the date of said note, both before and since the said last day of June, at his said counting-room, to pay the money due upon said note; but the plaintiff has never been there to receive it. And this, &c., Wherefore, &c.</p> <p>The plaintiff demurs generally to this plea, and the defendant joins in demurrer.</p>

<p>This was an action of assumpsit, for 100 dollars had and received by the defendant, to the use of the plaintiff. Trial upon the general issue, before Jackson, J., at the last March term, at Concord.</p> <p>The case, as stated by the plaintiff’s counsel at the trial, was thus. The plaintiff had given to the defendant a promissory note for about 166 dollars. He had made two several payments, which were endorsed on the note. The present defendant, Mansfield, after-wards brought an action upon that note, against the present plaintiff, Loring. In that action Loring pleaded that the contract was usuri pus, and offered to prove it by his oath, as provided by the statute (1) Mansfield denied that it was usurious, and tendered his oath, which was admitted, and he was sworn accordingly; and thereupon he recovered judgment * against Loring, for the [ * 395 ] amount appearing to be due on the note, after deducting the amount of the said two endorsements. All these facts were admitted.</p> <p>The plaintiff’s counsel further stated, and offered to prove, that he had made certain other payments on account of the note, besides those which were so endorsed; and the present action was brought to recover the amount of those other payments; the same not having been allowed and deducted, in mailing up the said former judgment.</p> <p>The judge was of opinion that, upon these facts, the plaintiff was not entitled to recover in this action ; and he ordered a nonsuit, subject to the opinion of the whole Court on the case thus stated.</p>

Assumpsit for money expended by the plaintiffs, in the support of one Malachi Nickerson and his wife and children, whose legal settlement the plaintiffs aver to be in Harwich.

This was an action of assumpsit, founded upon the following agreement, subscribed by the defendant, viz., “ Whereas Hezekiah Hutchins hath this day assigned, transferred, made over and sold to me, certain notes, accounts, demands, goods, wares, and merchandise, as per invoice and schedule annexed; with full authority to collect, receive and make sale of them to my own use; now therefore, in consideration of the premises, I do hereby promise and engage to assume and pay the…

Trespass for taking and carrying away a boat, a cable, and an anchor. The defendant pleaded the general issue, and filed a brief statement of facts in his justification, viz., that he was a constable of Freetown, and took the chattels on a writ in favor of one John H. Pierce, a deputy sheriff of the county of Bristol, against the said Briggs.

<p>In debt on the fee bill for extortion, the declaration alleged that the defendant had received the unlawful fees from A. The evidence was, that they were paid by B, who received the money from the father of A for the purpose ; A being a minor, for whose use the services were performed; and it was held not to maintain the declaration.</p> <p>In such action, it is no defence that many other officers of the same county habitually receive greater fees than those which the defendant had received.</p>

This was an action of trespass upon the case for obstructing a way which the plaintiffs declared they had, appurtenant to their store, and land under and adjoining the same in New Bedford. The obstruction complained of was occasioned by a building or store, which the defendants had erected upon the ground over which the plaintiffs say their way runs, so near that they could not open their doors or windows.

This was a suit to foreclose a mortgage. The only question in the case was on the mode of computing the interest due on the note, to secure the payment of which the mortgage was made; and it was agreed by the parties, that if the Court should be of opinion that the amount due was not greater than a certain sum mentioned in the agreement, the plaintiff should discontinue his suit; but if a greater amount was due, the conditional judgment prescribed by the statute, should be…

<p>The only remedy for a mortgagor, or his assignee, after payment of the debt, if the mortgagee, having entered for condition broken, refuses to relinquish the possession of the mortgaged premises, is by bill in equity.</p>

This was a writ of entry in the post, wherein the demandants claim an undivided moiety of several parcels of land in Roxbury, and count on the seisin of Benjamin Baker, their ancestor, and upon a disseisin by one John Baker. Trial upon the general issue, before Wilde, J., at the last February term in this county.

Assumpsit for the expense of supporting Mary Lovis and her two children, paupers, alleged by the plaintiffs to have their lawful settlement in Hingham.

<p>This was an action of debt on judgment, and was submitted to the determination of the Court, upon the following facts stated and agreed by the parties.</p> <p>The plaintiff recovered the judgment declared on, and in Octo ber, 1819, caused her execution, issued thereon, to be extended upon the defendant’s real estate. The execution was seasonably returned into the office of the register of deeds, and was there recorded ; but the plaintiff took it from that office, before it had been returned into the clerk’s office, and has ever since retained it in her possession.</p> <p>Benajah Pond, the appraiser chosen by the defendant at the time the said execution was extended, had been before that time convicted, in the Supreme Court of the state of Rhode Island, of the crime of passing counterfeit bank notes, knowing them to be counterfeit; and the sentence of the Court had been executed upon him.</p> <p>Judgment was to be entered, as the opinion of the Court should be upon these facts, upon the nonsuit of the plaintiff or the default of the defendant.</p>

<p>Trespass for taking down a pew belonging to the plaintiff in the meeting-house in the first parish in Dedham.</p> <p>The action was submitted to the opinion of the Court upon an agreed statement of facts, from which it appeared that the plaintiff was owner of pew No. 70, on the floor of the meeting-house, and had been in quiet possession thereof for nearly thirty years; but for nine years past had ceased to be a member of the parish, or to pay taxes therein. In August, 1819, the parish voted to enlarge, alter and repair the meeting-house, and appointed the defendant and others a committee for that purpose. In pursuance of this authority, the defendant, with the concurrence of the other members of the committee, directed the taking down of all the pews in the meetinghouse, including that belonging to the plaintiff, and they were taken down accordingly. Prior to this transaction, a committee, chosen for that purpose, appraised all the pews in the meeting-house. The parish have always been ready to pay each pew-holder the value of his pew, according to the appraisement so made.</p> <p>If the Court should be of opinion, upon the facts agreed, that the plaintiff was entitled to recover, his damages were to be assessed by a jury; otherwise he was to become nonsuit, and the defendant to recover costs.</p>

<p>Rent for a certain part of a long term of years was set off upon execution against the reversioner, by appraisement, as in cases of extents upon land; and it was holden that nothing passed by such levy or extent</p>

<p>What easements will pass by a grant of land, “with all the privileges and appurtenances thereto belonging.” [The conveyance of a specific piece of ground carved out of a larger piece held by the grantor and described by metes and bounds, carries nothing which is not included within the boundaries; and a right of way through the premises of the grantor does not pass under those words.—Ed.]</p>

Assumpsit on a promissory note made by E. &f M. Top-pan, on the 11th of October, 1819, for 300 dollars, 21 cents, payable to the defendant or order, by him endorsed to Jacob Gerrish, and by said Gerrish to the plaintiffs; payable in four months, with grace. The action was tried on the general issue, before the chief justice, April term, 1820, at Ipswich.

<p>A debtor, in failing circumstances, assigns all his property, except his household furniture, to certain trustees, for the payment of all his debts pro rata. The assignment purported to be a tripartite indenture between the debtor, the trustees, and the creditors who should execute it. It was executed by the debtor and the trustees ; and then taken by the debtor, to procure its execution by his creditors; no counterpart having been made. After some of the cred itors had executed, and before it was delivered to the trustees, the goods were attached by another creditor; and the attachment was held good against the title of the trustees.</p>

This was a special action of the case, for not performing an award of certain referees. The defendants pleaded the general issue, which was joined; and it was agreed that the defendants should be entitled to all evidence, of which they could have availed themselves under any special plea.

<p>Assumpsit to recover back certain sums paid by the plaintiffs, as state, county, and town taxes, in Amesbury.</p> <p>It was agreed that the plaintiffs are a corporation established in Amesbury, and were taxed by the assessors of that town, for their real and personal estate, for the year 1814, and the five following years; the said taxes upon the said real estate for the said six years, amounting to 179 dollars, 45 cents, and upon their personal estate to 130 dollars, 62 cents ; that the plaintiffs’ property was taken by distress for the taxes of the year 1818, for the costs of which distress the plaintiffs paid, in addition to their taxes, 6 dollars, 45 cents; the taxes for the other years having been paid volunta- * 462 ] rily; and that some of * the stockholders in the said company are inhabitants of Amesbury, and some of ol her towns. It was also agreed that no exception should be taken, as to the taxes upon the said personal estate having been assessed upon the corporation, instead of all the stockholders, or members of the corporation personally.</p> <p>If the Court should be of opinion that the plaintiffs were entitled to recover for any part of the said taxes, the defendants were to be defaulted, and judgment entered for damages, in a sum before agreed upon by the parties; otherwise the plaintiffs were to become nonsuit.</p>

<p>issumpsit lies on an implied promise by one surety, to contribute towards in demnifying another.</p> <p>And where the money is paid after the death of the co-surety, the action lies against his executors, upon the implied promise of the testator.</p> <p>It is no objection to such action, that the plaintiff has received a partial indemnity from the principal, by an assignment of property; but the property so assigned enures to the benefit of both the sureties; and the defendant is liable for his proportion of the balance, paid by the plaintiff, beyond the indemnity.</p>

<p>The underwriters on a cargo are liable, whenever the assured is compelled to pay an increased freight, as an unavoidable consequence of the perils inn'"-nd against.</p> <p>Of the subjects of general average and partial loss.</p>

<p>A mere depositary, without any special undertaking, and without reward, is not answerable for the loss of the goods deposited, but in case of gross negligence, which is equivalent to fraud in its effect upon contracts.</p> <p>A bailee for hire or reward will not be liable if the goods are stolen, if he shows that he used due care in the keeping of them.</p> <p>Where special deposits are made in a bank, the corporation is the bailee, and not its office's.</p> <p>The privilege commonly given to banking corporations, in their charters, to discount upon the amount of moneys deposited for safe-keeping, applies to general deposits only.</p> <p>Where a cask, containing a quantity of gold coin, was deposited in a bank for safe-keeping, and the gold was fraudulently taken out by the cashier of the bank, it was holden that the bank was not liable to the depositor, for the value of the gold so taken.</p>

<p>This was a motion for a new trial. The prisoner, Green, and one Howard TrasJc, convicts in the state prison, were indicted at the last November term in this county (1), for the murder of Billy Williams, a negro, and a fellow-convict with them in that prison. Trial was had on the indictment at the same term; when Green was convicted of the crime of murder, and Trash was found not guilty, by reason of insanity. On the trial several witnesses were produced and sworn on the part of the government; [*516] among * whom was one Sylvester Stoddard, who had been convicted of larceny, and was under sentence for the same in the state prison at the time the murder of Williams was committed; but had been pardoned, previously to the trial, by the executive of. the commonwealth, and was admitted by the Court as a competent witness.</p> <p>After the verdict, and before sentence was pronounced, informa tian was received by the counsel for Green, that Stoddard had been formerly convicted of a felony in the state of New York, and had been punished by confinement to hard labor in the penitentiary in that state. Upon the suggestion of this information to the Court, judgment was respited, to give opportunity for the verification of the facts suggested. Afterwards a record of the conviction in a court in New York was obtained, by which it appeared that Stoddard had been convicted of the crime of larceny. Whereupon the following motion was submitted to the Court.</p> <p>“ Now after verdict and before judgment, the said Samuel Green moves the Court for a new trial, for the following cause, viz. Because one Sylvester Stoddard was produced, sworn and examined in behalf of the commonwealth, and was a material witness in support of the prosecution ; and it has been discovered since the trial, that said Stoddard was convicted, in the year 1816, of larceny, committed in the city of New York, and sentenced, according to the laws of the state of New York, to imprisonment for a term of time, in the state prison or penitentiary of that state; whereby he was rendered infamous, and incompetent to be sworn as a witness.”</p> <p>The cause was argued upon this motion, at the last term, by Bassett and Curtis, for the prisoner; and by the Attorney and Solicitor-General, for the commonwealth.</p>

<p>An indenture, purporting to be an assignment by A, of his whole stock in trade to B, a creditor, in trust for himself and such other creditors of A, as should execute the same within a limited time, was held to be a valid assignment; although there was no evidence of its execution by any other creditor oí A; the value of the property assigned not exceeding the amount of S.’s demand, so much as to furnish a presumption of fraud.</p>

<p>A delivers bank notes, put up in a parcel, to a carrier, who paid them to B, for a loss at a Faro table; and it was held that A might recover the amount of B, with interest, m an action for money had and received.</p>

This was a writ of dower, and the question, whether the demand-ant was entitled to her dower in the lands and tenements described in the writ, was submitted to the determination of the Court, upon the following facts agreed by the parties.

<p>One having a right of action against the representative of a deceased sheriff, whose estate is represented insolvent, for the misfeasance of the sheriff or bis deputy, must prosecute his claim before the commissioners, and obtain a decree of the judge of probate in his favor, in order to entitle him to a remedy upon the bond given by the sheriff, for the faithful performance of his office, &c.; and he cannot maintain an action at law, except in the cases provided by the laws respecting insolvent estates.</p>

<p>Assumpsit on divers promises set forth in the declaration. Trial on the general issue, before the chief justice, at the last November term in this county.</p> <p>On the 26th of December, 1818, the defendant demised to the plaintiff a certain tenement in Boston, by lease under seal for the term of three years, and for a certain rent reserved.</p> <p>The plaintiff offered to show by oral testimony, that before the lease was executed, the defendant being about to repair the said tenement, and the plaintiff thinking of hiring the same, on a suggestion that the water was of a bad quality, and deficient in quantity for the uses of a stable, as which the tenement was intended to be occupied; the defendant declared that he expected to finish the repairs by the 1st of January then next, that he would [ * 572 ] repair the * pump, and that the water would be good, and that there would be enough of it.</p> <p>The plaintiff offered further to prove that afterwards, at the time of executing the lease, he, being still apprehensive that the water would not answer his purpose, stated this to the defendant, who said that the water would be good, and that there would be enough of it; and if not, he would make it so.</p> <p>The plaintiff stated further that he should prove that, although the pump was put in repair before he took possession, there was a great deficiency of water, and that it was not good ; so that he had been put to great trouble and expense in bringing water from a well in other premises, where he had no right, for the use of the horses which were put up at his stable; and that on account of this difficulty his custom and business were impaired.</p> <p>The chief justice, having doubts whether the plaintiff’s action could be maintained by this evidence, and thinking it best to have the question of law first settled, directed a nonsuit; which was to 6e set aside, and a new trial granted, if the declaration could be supported by parole evidence.</p>

<p>A being the debtor of B, in the sum of 1300 dollars, and also of C, in the sum of 400 dollars, and being abroad, remitted to B a bill of exchange for 1000 dollars, with directions, when the amount should be received, to pay to C 300 dollars. ' B received payment of the bill at its maturity, but neglected to pay C as directed, and gave him no notice of the remittance. It was holden that B was liable to C for the 200 dollars, in an action for money had and received.</p>

Assumpsit on a promissory note of the following tenor, viz., “ Boston, Dec. 23, 1818. Value received, we, Joel and Isaac New-hall as principals, and Cheever Newhall as surety, jointly and severally promise to pay Tuckerman, Rogers, and Cushing, or order, two hundred and fifty dollars. ^ in fifteen months. (Signed) J. I. Newhall, Cheever Newhall.” The defendant, besides the general issue which was joined, pleaded two special pleas in bar.

This was an action of covenant broken, upon a deed conveying lands, and containing the usual covenants against encumbrances, of warranty, &c., and was submitted to the opinion of the Court upon the following facts agreed by the parties.

<p>Upon a Scire Facias against bail, they shall not be permitted to deny the arrest of the principal.</p> <p>Nor is it any defence in such suit, to deny that there is any record of the defendants’ having become bail.</p> <p>A submission, by a rule of court, of the original action, and of all demands between the parties, to referees, operates the discharge of the bail; although judgment may in fact be rendered against the defendant for a less sum, than if no such submission had been had.</p> <p>Bail are not liable, unless the bail bond be executed by the principal.</p>

<p>Replevin lies for goods unlawfully detained, although there may have been no tortious taking.</p> <p>The actual delivery of goods under a contract of sale, does not, of itself, trans fer the ownership in them: to perfect the title of the vendee, there must be a consummation of the contracts of sale.</p> <p>In case of a conditional sale of goods, where the condition is not performed by the vendee, the vendor may establish his property in the goods, without showing the contract rescinded, and without returning a partial payment made by the vendee.</p>

This was assumpsit on a policy of insurance, made by the defendants on the 13th of November, 1811, whereby they insured for “ Paul Gardner, jun.” (the plaintiff) “ for himself and others concerned,” 12,000 dollars, on the cargo of the ship Rose, at and from Canton to Nantucket.

<p>When a negotiable promissory note has been taken up by the last endorser, it still retains its negotiable quality, and an action may be maintained upon it by the endorser of such last endorser, against any prior party liable.</p>

<p>In assumpsit by the promisee against A and B, the makers of a joint and several promissory note, A not appearing, B pleads in bar, that A being indebted to the plaintiff in a certain sum, and B being indebted to A in a sum not then liquidated, it was agreed between the plaintiff and A that the latter should assume to pay the plaintiff whatever should afterwards be found due from B to A, and that if B would sign the note declared on, he should be held to pay thereon only the sum which should be so ascertained to be due from him to A; that he signed the note accordingly, and had paid to the plaintiff the sum ascertained. Upon demurrer the plea was held bad.</p>