Volume 18 — Massachusetts Reports

<p>This was an action of slander brought against the defendant for charging the plaintiff with having committed adultery with one Almira Crossen. The declaration contained several counts. The defendant pleaded the general issue to the whole deulaia^0IL "^e a^so pleaded specially to the first count certain facts and circumstances which he alleged to be a bar, concluding that therefore he spoke the words in the first count mentioned. To this plea there was a demurrer, and at September term 1821, judgment was given upon the demurrer in favor of the plaintiff. At the trial in May term 1822, before Putnam J., upon the general issue, the plaintiff' offered no other evidence than the special plea to prove the first count, and did. not attempt to prove the other counts. The defendant contended that the plaintiff ought to have produced other evidence to prove the speaking of the words, but the judge ruled for the plaintiff as to that point. The defendant then offered to give in evidence, in mitigation of damages, the facts contained in the special plea, but the judge refused to permit him to do it. He then moved to withdraw the special plea and the demurrer, and to plead the truth in justification ; but this motion was overruled. He offered in evidence the deposition of one Curtis, as tending to prove that the words were not spoken maliciously ; but this evidence was rejected, on the ground that the words being actionable imported malice. He then offered to prove, that before he spoke the words there was a general report that the .plaintiff’ had committed adultery with Almira Crossen, but this also the judge refused to permit. The jury found a verdict for the plaintiff, and the defendant moved for a new trial.</p>

<p>Debt on a bond, conditioned, among other things, that John Hall, administrator de bonis non of Ebenezer Hall, deceased, should, on or before the fifth day of April 1819, exhibit an inventory in the registry of the court of probate, and, on or before the fifth day of January 1820, render an account of his administration. The defendants pleaded performance generally. The plaintiff replied, that the administrator did not exhibit an inventory nor render an account, according to the condition of the bond. To this the defendants demurred, and assigned for causes of demurrer, that the plaintiff in his replication had not alleged that any property of the deceased had come into the hands of the administrator, nor that the administrator had been cited to render an account.</p> <p>Sheldon referred to Selectmen of Boston v. Boylston, 4 Mass. Rep. 318 ; Dawes v. Boylston, 9 Mass. Rep. 337 ; Paine v. Fox, 16 Mass. Rep. 129, in support of the last ground of demurrer.</p>

This was a writ of dower. The question in the case was, whether the demandant was entitled to dower in land aliened by her husband during the coverture, while it was wild and uncultivated, but which at the time of the demand of dower had been brought into a state of cultivation by the husband’s grantee and those claiming under him. It was agreed that certain persons should be a committee to assign the dower, in case it should be allowed.

The plaintiff was a state pauper residing in the town of Lee. He was assigned to the defendants by a vote of the town authorizing the putting up of him and his family to auction, to be bid off, for one year, by the individual who should undertake to support them for the least sum, in addition to what might be received by the town for their support from the treasury of the Commonwealth. The defendants bid them off at the sum of five dollars.

<p>This was a writ of entry sur disseisin, in which the demandant counted upon his own seisin within thirty years and a disseisin by the tenants.</p> <p>At the trial, which was upon the general issue, before Putnam J., the demandant gave in evidence a deed from Ephraim Leonard, the father of the tenants, to Ebenezer Hall, the father of the demandant, dated in 1803, conveying all his right in a tract of land in Sheffield containing about fifty-nine acres, “ being the same tract of land which was deeded by Medad Huggins to his (Leonard’s) heirs, so expressed in two deeds from said Huggins to them, as will more fully appear by the records, &c., reference thereto being had.” This was the land demanded in the writ. Before and at the time of making the deed, Ephraim Leonard occupied the land, and about ten or twelve years ago Ebenezer Hall entered into it, claiming title. Ebenezer Hall died in 1820, leaving seven children and heirs, of whom Noah Hall the demandant is one ; and in June of the same year his estate was distributed, and the land in question was assigned to the demandant. The tenants in 1820, after the assignment, occupied part of the land, by the permission of the demandant, upon shares, they allowing the demand-ant part of the crops for the rent. In the spring of 1821, the demandant sued the tenants for the land, and they agreed to give up the possession to him, if he would pay the cost of his writ; but they afterwards refused to do it, and gave the demandant notice, that, if he held the land, he must hold it by the law.</p> <p>The tenants offered in evidence a copy of a deed, dated ir 1797, from Medad Huggins “ to the heirs of Ephraim Leon ard ” ; which was rejected. Also an original deed of Huggins “ to the heirs of Ephraim Leonard,” dated in 1802 ; which was rejected as void for uncertainty.</p> <p>The tenants contended, that the deed of Leonard to Hall could not operate, as it had reference to the deeds of Huggins, . which were to the heirs of Leonard ; and also because it was a release only, and not a deed of bargain and sale ; but the judge ruled, that as Leonard was in possession when he made the deed, all his estate, whatever it might be, passed to the grantee or releasee.</p> <p>The tenants then contended, that, after Ebenezer Hall entered, they" disseised him, and that he was at the time of his death disseised; so that nothing but the right to the land descended to his heirs, and the assignment to the demandant was void. The demandant contended, that Ebenezer Hall died se-ised ; and that if he did not, yet that the demandant having entered before this action was brought, and the tenants having occupied under him after the death of his father, he was entitled to recover the whole, or, at any rate, one undivided seventh part of the demanded premises. The tenants denied that position. Evidence was offered on both sides in relation to Ebenezer Hall’s dying seised, which the parties contended respectively should be considered as conclusive ; but it was held to be evidence only tending to prove the fact of his dying seised or disseised.</p> <p>The jury found a verdict for the demandant.</p> <p>The tenants moved for a new trial, for the misdirections of the judge, and because the verdict, upon the point of Ebenezeir Hall’s being seised at his death, was against the evidence.</p>

<p>A rule of the bar, that a plaintiff may file his declaration on the first day of the term, does not apply where the defendant has no counsel.</p> <p>In a foreign attachment, where the action was dismissed for want of a declaration, the trustee was allowed his costs.</p>

<p>This case came before the Court upon a bill of exceptions to the opinion of Howe, one of the justices of the Court of Common Pleas.</p> <p>The action was brought by the plaintiff upon his bill for services as a physician and for medicine delivered, in September 1820, in his attendance upon a pauper who was chargeable to the town of Alford. It was proved, that the plaintiff finished his medical studies in Pittsfield in December 1818, but that he was not examined for a license to practice, because the Medical Society of Berkshire was not then organized : — that he began at that time to practise in Pittsfield as a physician on his own account, and continued to practise there until October 1819, though he still lived with his instructer, Dr. Childs, on whose patients he occasionally attended, as he had done before he had completed his education; but Dr. Childs charged him nothing or tuition after he was entitled to an examination : — that he then established himself in the State of New York, where he obtained a license to practise in his profession, and where he has continued to reside and practise ever since.</p> <p>The defendants moved for a nonsuit, because the St. 1817, c. 131, and St. 1818, c. 113, require the plaintiff to have been licensed according to the provisions of those statutes, before he can have the benefit of law for the recovery of any debt or fee accruing for his professional services.</p> <p>It was contended, on behalf of the plaintiff, that he having been regularly educated in this Commonwealth, and having commenced and continued his practice here, as before mentioned, and it not being his fault that he was not licensed, there being at the time no regular board of officers organized in Berkshire to examine and license him ; and that he being, at the time of the services rendered, a regular licensed physician in the State of New York, the place of his residence ; he was not, by the spirit of those statutes, to be deprived of the benefit of law for the recovery of his fees for professional ser vices occasionally rendered in Massachusetts.</p> <p>Howe J., who tried the cause, was of opinion that the statutes were intended to operate upon all persons coming into our courts to assert their rights to recover for services perform e-d in this Commonwealth, whether citizens of this or some other State : — that to maintain an action it was necessary for the plaintiff to show that the requirements of the statutes have been regularly complied with : — that the license in New York was not a substitute for an examination and license here : —that the plaintiff having been a student when the St. 1817, c. 131, went into operation, he could not afterwards have entered upon the practice of physic within this Commonwealth, within the meaning of that statute, or of St. 1818, c. 113, without having been examined and licensed according to the provisions of one act or the other : — that his intending to have submitted himself to an examination, and being qualified therefor, and being prevented by the neglect of the Medical Society in making proper provisions for that object, could make no difference :—and that the evidence in favor of his having entered upon the practice of physic within this ‘Commonwealth before July 1819 was equivocal in its nature, without reference to St. 1817, c. 131, but, taken in connection with that statute, the jury could not infer from it that the plaintiff did enter upon the practice of physic before that time.</p> <p>A nonsuit was therefore directed, and the plaintiff excepted to this opinion.</p> <p>And now it was contended by Whiting and Hubbard, that the nonsuit was wrong, because these acts were not intended to affect regular practitioners residing out of the State. But if they were, the plaintiff was exempted from their operation, he being proved to have been a practitioner in this Commonwealth from the 19th of February 1819, when the first act was re pealed as to the time of commencing practice, until the 1st of “ July 1819, when the last act went into operation in that respect. The proof of his being a practitioner was clear, and the fact ought to have been submitted to the jury. The nonsuit was wrong also, because there was a count for goods sold and delivered. The statutes do not extend to a debt for the value of medicines administered ; they relate only to professional services.</p>

In this action, which was assumpsit, a verdict having been found for the plaintiffs, the defendants moved for a new trial, because one of the jurors was chosen and drawn at a meeting of the inhabitants of Enfield holden more than twenty days before the sitting of the court at which the venire facias was returnable, contrary to St. 1807, c. 140, § 4 ; which fact did not come to the knowledge of the defendants, or of their counsel* until after the verdict.

<p>By St. 1783, c. 37, § 1, all paroi leases have the effect of leases at will only;</p> <p>A tenant at will is not entitled to notice to quit, but he is to be allowed i reasonable time for the purpose of removing his family and property.</p> <p>What is a reasonable time is a question of law.</p>

<p>These were actions on the case. The declaration in each contained three counts : — the first in trover : the second charging the defendants jointly as common carriers, and stating their undertaking to carry for the plaintiffs a package containing bank notes, the property of the plaintiffs, from Northampton to Springfield for hire : the third alleged an undertaking on the part of the defendants to carry the package for a reward, and charging them with negligence in the transportation, whereby the bank notes were lost. The defendants pleaded the general issue.</p> <p>In the first action, it appeared in evidence, on the trial, before Wilde J., that the defendants were the proprietors of a stagecoach running between Northampton and Springfield, and that Brewster, one of the defendants, was under a contract to carry the mail, and that it was carried in the coach : that a sealed package containing the money was given, at Northampton, to Sargent, the other defendant, who was the driver of the coach, and that Brewster was present and knew of his taking it: that there was a post-office between Northampton and Springfield, and that Springfield was off from the route on which Brewster had contracted to carry the mail, though it was on the route on which the coach usually passed</p> <p>The defendants contended, that they were -not liable as com mon carriers, their business being the conveyance of passengers and their luggage : that the taking small packages was an affair of the drivers, who received the compensation, and who were answerable for negligence only, and that the proprietors were not responsible, though it appeared that less wages were paid to the drivers, in consequence' of the opportunity they had of earning small sums of money in this way; whereas large packages were usually entered on the way-bill, and the proprietors received the compensation for the transportation. They contended, also, that they were not liable as common carriers, because they had published an advertisement, of which the plaintiffs had knowledge, containing the following clause, “ All baggage at the risk of the owners and further, that the transportation, by the stagecoach, of packages like the one in question, was prohibited by the laws of the United States, under a heavy penalty, and any contract made by them for the conveyance of such package would be illegal, and therefore void : that if this was not sufficient to excuse them from the exercise of due care and vigilance, it would at least exonerate them from being liable as common carriers : and that, if the contract was illegal, the partnership could not be charged by it, even though the person undertaking for the conveyance of the package might be. liable.</p> <p>The jury were instructed, that the practice, if proved, of carrying small packages, letters, &c. containing money, whenever applied to, for hire, was sufficient to constitute the defendants common carriers: that the word baggage in the advertisement, did not mean property of the description sent in this case : that the defendants were chargeable as partners, there being no evidence of any limitation of the partnership : — and the jury were directed not to consider the law of the United States as affecting one or both of the defendants, upon the first and third counts, that question being reserved for the future consideration of the Court.</p> <p>The jury found a verdict for the defendants upon the first and third counts, and for the plaintiffs upon the second count.</p> <p>In the judge’s report of the case of Partridge against the same defendants, which does not contain some of the foregoing facts and instructions, it is stated, that the agent of Partridge delivered to Sargent a package containing bank notes belonging to Partridge, and other bank notes belonging to Messrs. Dwight, and informed him that the package contained papers as valuable as money ; and the jury were instructed, that the responsibility of the defendants was the same as it would have been, if Sargent had been informed that the package contained money. In this action the jury found a verdict for the plaintiff on the second and third counts.</p> <p>If the instructions to the jury, in either case, were incorrect, the verdict was to be set aside.</p>

The plaintiff declared in assumpit on general counts for goods sold and delivered. At the trial, which was upon tne general issue, before Putnam J., the plaintiff proved, that in June 1816 he agreed to deliver to the defendants some step stones, to be paid for, one half in money, and one half in goods from the defendant’s store. The stones were delivered in the autumn of the same year.

Thi s case came before the Court on the following statement of facts, agreed upon by the parties. The plaintiff, as sheriff of the county of Hampden, by virtue of a writ in the name of one Fowler against one Morgan, on the 27th Decemher 1819, attached four horses, the property of Morgan, who was present at the time of the attachment, but declined procuring them to be receipted for.

<p>This was an action of trespass de bonis asportatis against the defendant as sheriff of the. county of Hampden.</p> <p>The pleas were, first, the general issue ; and, secondly, a special plea in bar, setting forth, in substance, that the taking complained of as the trespass was by William King, a deputy of the defendant, by virtue of an execution, which issued upon a judgment recovered by one Sheldon against the Chester Glass Company ; to satisfy which, King took the goods described in the declaration, belonging to the plaintiff, who was a member of that company : that afterwards the plaintiff brought his action of trespass against King, and recovered judgment for his damages for the taking : that his judgment was still in full force, and that the plaintiff had sued out his execution thereon. To this last plea the plaintiff replied, that King, for want of goods, &c. was, by virtue of that execution, committed to jail, whence he was afterwards duly discharged by order of law ; and that the judgment and execution ha.d not been satisfied. He also averred, that at the time of rendering the judgment, and ever since, King had been insolvent. To this there was a general demurrer.</p>

<p>Julia Palmer, the respondent, brought an action for a breach of promise of marriage against Benjamin Stebbins, who died while the action was pending. Nearly two years after his death, she made application to the judge of probate, repre senting that no person had taken out letters of administration on his estate, that she was a creditor, and that at the time of his death she had an action pending against him, which had been continued from time to time, to enable her to summon in any person who should be appointed administrator ; and praying that letters of administration might be granted to such person as the judge should think proper. It was accordingly decreed that letters of administration should be granted. Marytta Stebbins, the widow of Benjamin, having omitted to appeal from this decree in the ordinary way, now petitioned the Court for leave to enter an appeal, pursuant to St. 1817, c. 190, § 8, alleging that her omission arose from mistake. And whether justice required a revision of the decree, depended on the question, whether the respondent was interested as a creditor in the estate of the deceased.</p> <p>The cause was argued in writing.</p>

<p>This case was determined at October term 1821.</p> <p>The plaintiff demanded a certain piece of land, situated in Petersham, in this county, as assignee of a mortgage, made in the year 1810, by the defendant to one Comstock, of Vermont. The declaration set forth the mortgage deed in the usual form ; from which it appeared, that the mortgage was of the fee-simple. It was then averred, that Comstock died seised of the premises in fee and in mortgage ; and that one A. Cleaveland, his administratrix, assigned and conveyed the same to the plaintiff, to hold in like manner, by force whereof he became seised, and that the defendant has disseised him. The defend ant pleaded in bar, that A. Cleaveland never was administra trix of the goods, &c. of Comstock by virtue of letters of administration granted by any judge or court of probate within . this Commonwealth: to which plea there was a general demurer, and joinder.</p>

<p>A mortgagee cannot recover of the mortgager, or his assignee, the value of Uie rents and profits accruing after the commencement of an action by the mortgager to obtain possession.</p>

Trespass quare clausum fregit for pulling down a meet inghouse, alleged to belong to the plaintiffs, and carrying away the materials of which it was composed. Plea, the general issue. The following facts appeared in the report of Wilde J., who tried the cause. A precinct, in the easterly part of the town of Mention, was incorporated by an act passed on the 23d of December, 1741.

<p>Independently of St. 1817, c. 189, the property in a pew is subject to a right in the parish to pull down and rebuild the meetinghouse.</p> <p>The owner of a pew in a meetinghouse, pulled down and rebuilt without reference to the statute, may have an action on the case for his reasonable damages 5 or perhaps may hold a corresponding property in the new meetinghouse by suomitting to his share of the expense. Semble.</p> <p>A title to a pew may be conveyed by a vote of the parish. Semble.</p>

This was an action of assumpsit for money paid by the plaintiffs for the support of Betsy Branscomb and her two children. The declaration averred, that these persons were in need of relief in the town of Augusta, in Maine, and that the plaintiffs • had been compelled to pay that town the sums which it advanced for the support of the paupers, with costs of suit The declaration contained also the usual money counts.

<p>This was an action of trespass de bonis asportatis. The defendants pleaded the general issue, and filed a brief statement, pursuant to the statute, in which they justified as assessors of the town of Milford for the year 1819. To maintain the issue on their part, they offered in evidence the records of the town, by which it appeared that at the annual March meeting in 1819, which was held on the first day of the month, they were elected by the inhabitants to be assessors for the ensuing year. The plaintiff objected to the admission of this evidence, until it should be shown that the meeting of the inhabitants had been duly warned. The constable’s return of the warrant for the meeting was dated on the same first day of March ;' in which he certified only that he warned the inhabitants by posting up copies, without saying at what time. The defendants then proved, by the testimony of the town clerk, that he had diligently searched among the files of papers in his office for the original warrant, and that it was not to be found, but must have been accidentally lost; and they then offered to prove, by several witnesses, that a paper purporting to be a copy of a warrant from the selectmen of Milford for the town meeting in question, and attested by the constable, was posted up on the meetinghouse in the mannei and for the time required by a vote of the town for warning town meetings. Wilde J., who tried the cause, being of opinion, that it was incumbent on the defendants, to prove that the meeting at which they were elected assessors was duly warned, and that the evidence offered for this purpose was inadmissible, directed a verdict for the plaintiffs, subject to the opinion of the whole Court upon the question of law arising out of the case ; and if the defendants, in order to their justification as assessors, were not bound to prove that the meeting at which they were elected was duly warned, or if the evidence offered to prove the warning was admissible under the circumstances of the case, then the verdict was to be set aside and a new trial granted ; otherwise, judgment was to be rendered for the plaintiff.</p>

<p>A will, of which there has been no probate, is inadmissible as evidence of a title ta land 5 and it is not competent to the person claiming under it, to prove that it was fraudulently destroyed, and to give evidence of its contents.</p> <p>A will may be proved more than twenty years after the death of the testator, in order to establish a title to real estate.</p> <p>If an heir enters, showing by his declarations or acts, that he intends to exclude his co-heirs, he is an abater; but without such declarations or acts, his entry inures to the benefit of ail the co-heirs.</p>

Assumpsit for money paid, laid out, and' expended. The action was brought against James and Thomas Bryant ; but no service was made upon Thomas, he being out of the Commonwealth. At the trial, before Parker C. J., the plaintiff having stated, as the ground of the action, that in 1811 he signed a promissory note with Thomas, payable to one Warner, for money lent by Warner to James and Thomas, and that he afterwards, in May 1812, paid the note, upon the demand of Warner.

The plaintiff declared in trespass, in three distinct counts ; to all of which the defendants pleaded severally the general issue. On two of the counts, a verdict was found in favor of the defendants, and on the other, in favor of the plaintiff.

<p>Notwithstanding the proviso in St. 1793, c. 59, $ 9, an action will lie against a town, after two years, upon a verbal express promise of the overseers to pay the expenses incurred in supporting a pauper legally chargeable to such town: such a promise being barred only by the general statute of limitations.</p> <p>The separation of Maine from Massachusetts was held not to affect the rights of a town in Maine, to which such promise was made before the separation.</p>

<p>To gain a settlement in the sixth mode described in St. 1793, c. 34, $ 2, a terson must dwell in a town the whole year in which he serves as a town officer.</p> <p>In St. 1785, c. 75, § 4, respecting vacancies in town offices, the word removal moans a removal from the town.</p> <p>Town officers must be inhabitants of the town in which they are chosen, and they cease to be officers when they cease to be inhabitants.</p>

John Putnam was indicted at October term 1821, upon the statute of 1784, c. 40, for the crime of adultery. A special verdict was taken, in which the jury found, that on the 14th of June, 1798, the defendant was lawfully married within this Commonwealth to Anna Cox ; that he lived with her until September 1817, when, by a decree of this Court, the bonds of matrimony between them were dissolved for the cause of adultery committed by him ; and that she was still in full life.

The First Massachusetts Turnpike Corporation laid out a turnpike road over or near a part of the county road in the town of Western ; in consequence of which that part of the county road was discontinued by the Court of Sessions.

<p>This was an action of trespass. In March or April, 1820, the Congregational society of the town of Harvard voted the sum of $ 500 for the supply of the pulpit for the year then next ensuing, which wras duly assessed by the assessors ol the town, of whom the defendant was one, and collected. This sum being expended before the 26th of February, 1821, the society on that day voted to raise $ 400 for the supply of the pulpit for the year then ensuing. This last sum was assessed, and a warrant for collecting it made out, on the 27th of February, by the defendant and the other assessors. The plaintiff having refused to pay his proportion of the assessment, his cow was .distrained by virtue of the warrant; and this is the trespass complained of in the declaration.</p> <p>At the trial in the Court of Common Pleas, Howe J. instructed the jury, that the funds of the society being exhausted on the 26th of February, it was lawful for them to raise a reason able sum for the support of the ministry for the year then next ensuing, notwithstanding a sum for the same purpose had been voted in March or April preceding, and to have it assessed upon the valuation of estates of the May preceding, although the sum previously voted had been assessed upon the same valuation ; that the assessment made on the 27th of February was a legal assessment, and that the defendant was justified in making the distress.</p> <p>A verdict was accordingly found for the defendant, and the plaintiff filed his exceptions to the instructions of the judge.-</p>

<p>An illegitimate child acquired a settlement in the town of F., since the St 1793, c. 34, by being born on a farm, upon which its mother lived, within that town The farm was afterwards annexed to the town of W. 5 at which time the mother had removed from F., and the child was living in the part of F. not annexed to W., being then under age and chargeable to the town. Held, that its settlement was not in W.</p>

The facts in these cases, as agreed by the parties, were as follows.

<p>Petition for partition. The respondents plead in bar, that Aaron Brooks, tenant in common with the respondents for three fifth parts of the premises described in the petition, on, &c. executed to the petitioner a deed of the three fifth parts, and that the petitioner at the same time executed to the respondents, “ a certain instrument or writing by him subscribed, of that date, in which it is recited as follows, to wit : — Whereas Aaron Brooks has this day conveyed, &c., in consideration whereof, I promise said Tyler and Davis, their heirs and assigns, that I will hold and improve the same in company with them, during the life of Mary Ruggles, on fair and honorable terms, accounting to them for two fifths of the rent and profits of said estate in case I occupy and improve the whole of the premises;” and the respondents aver that the premises, &c. are the same, &c., and that Mary Ruggles is still in full life. The petitioner demurs generally to this plea.</p>

Assumpsit for expenses incurred in the support of certain paupers. By a statement of facts agreed upon by the parties, it appeared, that the paupers, having a settlement in Bellingham, removed in 1810 to Plantation No. 4, in the District of Maine, where they acquired a new settlement. Afterwards they removed to Mendon, and resided there several years, but without acquiring a settlement.

Assumpsit for expenses incurred in the support of Harriet Robinson, a pauper. It was agreed that her settlement was In Mendon, unless her father, Samuel Robinson, had gained a settlement in Rutland. He had removed from Mendon to Rutland or the 16th of July, 1792, and had continued to live there more than three years from that time, but not three years after the passing of St. 1793, c. 34.

<p>The ad damnum in the writ was increased in the court below, so as to give a right of appeal.2</p> <p>2 The ad damnum in the writ being laid at $ 100 and the judgment being rendered erroneously for a greater sum, this does not give the defendant a right to appeal. Hemmenway v. Hickes, 4 Pick. 497. An appeal lies from the Common Pleas in personal actions, where the ad damnum exceeds, $ 100 although the . demand set out is less than that sum. Chamberlain v. Cochran, 8 Pick. 522.</p>

<p>An administrator may occupy the real estate of his intestate, with the consent of the heirs, accounting for the rent as may be agreed on by the parties, or as shall be determined by commissioners pursuant to St. 1789, c. 11.</p> <p>The widow is entitled to only one third of the personal estate, exclusive of such rent and of advancements to the children.</p> <p>If in an administrator's account there should be any manifest mistake in computing, or in charging or crediting the same sum twice, or any such error, it is competent to the judge of probate, at any time before the final settlement of the estate, to correct it in a subsequent account presented by the administrator.</p>

In an action of assumpsit to recover damages for the breach of a warranty made on the sale of certain machine cards, the declaration alleged, that the defendants warranted them to be good and merchantable, and that in truth they were not so, but were of little or no value.

<p>A creditor, knowing of a conveyance of land made by his debtor for a valuable consideration, which is not registered, cannot, by an attachment and levy upon the land, obtain a title against the grantee.</p>

<p>Where a corporation had built a meetinghouse, and sold the pews to individuals, it was held, that an execution against the corporation could not be extended on the pulpit.</p>

<p>This was an action of debt upon St. 1795, c. 41, brought to recover certain penalties incurred by the defendant as a deputy sheriff, for demanding and receiving illegal fees. The 6th section provides; “that if any person shall wilfully and corruptly demand and receive any greater fee or fees for any of the services aforesaid, than are by this act allowed and provided, he shall forfeit and pay the sum of thirty dollars for every offence.”</p> <p>The declaration contained two counts, each for a distinct forfeiture. Plea, the general issue.</p> <p>At the trial in the Circuit Court of Common Pleas, in June term 1821, before Minot J., the plaintiff, in support of the first count, proved, that a writ of execution for 267 dollars and 68 cents, which issued on a judgment recovered by one Dris- ■ coll against Thomas and James Bennett, was delivered to the defendant for service. The defendant, in his return, certified, that he bad presented the execution to the Bennetts for payment, but that they had declined making any payment, and that he returned it in no part satisfied. The plaintiff proved by James Bennett, that the defendant called on him (Bennett) once, and no more, and requested payment of the execution, and that no part of it was ever paid to him, but that an adjustment in regard to the whole amount was afterwards made by a new security ; that the defendant told Bennett he had a right to his fees, and must have them, and that Bennett signed a note, which was wholly for the fees claimed by the defendant on the execution, in which he promised to pay the defendant, or his order, 8 dollars and 67 cents, either in Indian corn at 75 cents per bushel, or in money, on demand, and the defendant at the same time gave him a receipt for the same sum as his fees on the execution ; and that before the commencement of this action, Bennett paid the amount of the note to one Johnson, to whom it had been negotiated, by allowing Johnson the same sum on account to the full value in money. The plaintiff also produced evidence tending to prove, that, about the time of the payment, Indian corn was worth from 66 to 75 cents per bushel.</p> <p>The defendant offered evidence tending to prove, that he had acted as an agent for procuring the creditor to allow further time for the payment of the execution, and for obtaining a settlement ; and it was admitted, that personal property had been-attached by the defendant upon the original writ to answer the judgment.</p> <p>. Upon these facts, the judge directed the jury, that Bennett had his option to pay the note in Indian corn at 75 cents per bushel, or in money, on demand, and that, if they believed the value of Indian corn was so much less than 75 cents per bush el, that, the amount in value which the defendant could lawfully obtain by force of the note would not exceed the fees to which he was lawfully entitled by force of the execution, then their verdict should be for the defendant; otherwise, for the plaintiff. The judge also stated the percentage to which officers are entitled by law for collecting money on writs of execution.</p> <p>The jury having returned a verdict for the defendant on thajirst count, the plaintiff filed his exceptions to the direction of the judge.</p>

<p>This was a writ of error brought to reverse the judgment of the Circuit Court of Common Pleas in an action carried there by appeal from a judgment rendered by David Townsend, a justice of the peace, in which the President, &c. were original plaintiffs, and Soper original defendant.</p> <p>The action was brought upon St. 1819, c. 37, the first sec tian of which provides, that no livery stable keeper “ shall give credit to any undergraduate of either of the colleges within this Commonwealth, without the consent of such officer or officers of the said colleges respectively as may be authorized to act in such cases, by the government of the same, or in violation of such rules and regulations as shall be, from time to time, established by the authority of said colleges respectively.” The third section gives an action on the case against the person giving credit, to recover a sum equal to the amount which shall be so unlawfully credited.</p> <p>The declaration contained two counts. The first, after reciting the statute in part, averred that Soper, being keeper of a livery stable, did, without the consent of any such officer or officers, at, &c. after the passing, &c. viz. on, &c. give credit to, and trust one Edward T. Tayloe, who during all said time was, and still is, a minor and undergraduate of said college, to the amount of fifteen dollars, for the use of said defendant’s horses and chaises, at the following rates and prices, &c. contrary to the form of the statute, &c. whereby, &c. In the second count, after an averment that Soper was a livery stable keeper, the allegation is, that said Soper, at, &c. since, &c. viz. on, &c. did, as such livery stable keeper, give credit to one Edward T. Tayloe, an undergraduate, &c. to the amount of fifteen dollars, for the hire of horses and carriages so let by said Soper to said Tayloe for hire upon credit, without the consent of the President of said college, or any other officer authorized by the government of the said college to act in relation to the premises, contrary, &c. whereby, &c.</p> <p>Judgment was rendered against the defendant by the justice of the peace, and by the Circuit Court of Common Pleas.</p> <p>Several errors were assigned, among which were :— I. That it did not appear that the government of the college had uithorized any officer thereof “ to act in such case,” for whose consent Soper might have applied : — 2. That it did not appear, that the college had established any rule which had been violated by Soper : — 3. That the act recited was unconstitutional and void.</p>

<p>The defendants were indicted for a nuisance in not repairing two bridges leading from Medford to the Canal bridge. They pleaded not guilty.</p> <p>On the trial, before Putnam J., at November term 1819, it appeared that the road was laid out by the Court of Sessions m 1810, in due form of law ; but the defendants contended, that it was laid out oyer water navigable from the sea, where the sea ebds and flows, and that thev were therefore not bound to repair the bridges, inasmuch as the bridges in themselves were nuisances.</p> <p>The defendants proved that the channel of Miller’s River, over which the larger bridge was built, was 74 feet wide at the bridge, and that the water there was 9| feet deep at high tides; that the bridge was 196 feet long ; and that the river was open to the sea. They produced evidence to show, that for more than fifty years before the road was laid out, vessels of various kinds, of from 15 to 30 tons burden, and upwards, used to go above the place where the bridge is built, carrying up West India goods, woo'd, bark, rails and manure to a range way, on which they were carted across the marshes It appeared that there was a constant stream of fresh water entering the head of Miller’s River, on which there is a mill above the tide water, but that there was no village at the head of Miller’s River; and that the land on each side of the river was owned by individuals, and not by the public.</p> <p>It was testified, that the creek over which the smaller bridge was built, was 7| feet in depth in spring tides, and that the channel was more than a pole wide ; that for many years past gondolas of 14 or 15 tons burden, and other vessels, have passed above where the bridge stands, carrying hay, sand and manure, and that there is water enough for vessels of 40 or 50 tons burden. No evidence was produced on the part of the Commonwealth to contradict this testimony.</p> <p>The jury, by direction of the judge, returned a verdict against the defendants, subject to the opinion of the whole Court upon the law arising out of the case.</p> <p>The cause was argued at a former term, by Webster and Otis, on behalf of the Commonwealth, and A. Ward and Parker, for the defendants.</p> <p>On the part of the Commonwealth, it was contended, that the streams over which these bridges are built are not navigable, according tó the rules of the common law. The great princiole, that where the sea flows and reflows the waters are publici juris, is to be restrained by a reference to public necessity or general utility. It would be absurd to say, that all the little creeks in our salt marshes are navigable waters. A creek is said to , be an inlet of the sea which gives no harbour to ships, nor is endowed with any privileges. Com. Dig. Navigation, C ; Hargr. L. Tr. 47. To be navigable, it must admit of vessels of burden sailing in and out of it in ordinary times, and must be a highway or common passage for the whole community, either from necessity, founded on its local situation, or from long uninterrupted usage. The actual, not the possible, use of it is to be regarded.</p> <p>These streams have none of the distinctive properties of a highway. Hammond’s N. P. 175; 1 Hawk. P. C. c. 76, § 1; Commonwealth v. Coombs, 2 Mass. Rep. 492; Co. Lit. 56 a; Thrower's case, 1 Vent. 208; Austin's case, ibid. 189, 2 Domat, bk. 1, tit. 8, § 2, art. 14; Shaw v. Crawford, 10 Johns. Rep. 237; Hargr. L. Tr. 8, 9, 22; Cr. Circ. Comp. 520.</p> <p>Supposing, however, that the public had a right by the -common law in such waters, the statute of 1641 (Anc. Charters, &c. 148), gave the right to the proprietors of the land adjoining, reserving only a private way for boats or other vessels to other men’s houses or lands ; so that to obstruct these streams would not be a common nuisance.</p> <p>But whether the bridges are nuisances or not, they have not been found so. This is a question of fact for the jury. Rex v. White, 1 Burr. 337; Hargr. L. Tr. 85; Palmer v. Mulligan, 3 Caines’s Rep. 307. If they are nuisances, they ought to be abated ; if not, the town is bound to keep them in repair. The Court of Sessions may have exceeded its authority in laying out the road, and still the town be obliged to re pair it, since a way becomes public simply by use, or by the dedication of an individual. 11 East, 376; Rex v. Lloyd, 1 Campb. 260, 262, in notis.</p> <p>For the defendants, it was contended, that these waters were so far navigable as to be the property of the public ; that the Court of Sessions had no authority to lay out a road over them ; and that the bridges being therefore nuisance's, the town was not obliged to keep them m repair. The counsel cited Commonwealth v. Coombs; Arundel v. McCulloch, 10 Mass. Rep. 70; 1 Bl. Comm. 264; Hargr. L. Tr. 9, 12; Rex v. Smith, Doug. 441; Young v. -, 1 Ld. Raym. 725; Just. Inst. 1. 2, tit. 1, §§ 2, 4, 5; Ball v. Herbert, 3 D. &. E. 253; Bac. Abr. Nuisance, A; Coolidge v. Williams, 4 Mass. Rep. 144; Peck v. Lockwood, 6 Hall’s Law Journ. 278; Carter v. Murcot, 4 Burr. 2164; Dav. 56.</p>

Writ of dower. The tenant pleads actio non, as to part of the land described in the declaration, because he says he assigned to the demandant certain parcels of the land for her dower. As to another part, he pleads a release of dower by the demandant, and as to the remainder, non-tenure.

The defendant, as deputy sheriff, made an attachment of properly on mesne process in an action brought by the plaintiff against one Ernes. That action and all demands between Hill and Ernes were referred to arbitration, under a rule of court, and the officer applied the property to the satisfaction of an execution in favor of a subsequently attaching creditor of Ernes.

This was an appeal from a decree of the judge of probate, by which a certain instrument, made in 1821, was allowed as the last will and testament of Sarah Badger. In this instrument, the principal legacies were given to Sanger, Noyes anu Thayer, the appellees, and they were also named as executors Atkins, the appellant, was the executor and a legatee in a former will, made in 1819.

This was a writ of certiorari to a justice of the peace of this county, who had fined the defendant for not performing duty in the militia. The following facts appeared in the proceedings returned.

This cause was submitted to the Court without argument upon a case stated by the parties. The plaintiffs brought assumpsit for expenses incurred by them in the support of two paupers, the lawful children of Asa and Lucinda Tinlcham. The parents were married in the year 1810. The father never had a settlement in this Commonwealth. He died about eight years ago, and, after his decease, the mother married Benjamin Westgate, who then had, and still has, a settlement in Freetown.

Joshua Stetson, guardian of a person non compos mentis, had been removed by the judge of probate of the county of Plymouth, and the appellant appointed guardian in his place.

This was an action of assumpsit, brought to recover a sum which the plaintiffs claimed as the proportion of expenses due from the defendants on account of repairs made by the plaintiffs, in 1820, on North River Bridge, lying between the towns of Pembroke and Hanover. The defendants pleaded thegeneral issue.

<p>An action upon a promise of the defendant when an infant is not supported by a new promise after he comes of age, which was made while the writ was in the officer's hands, but before it was served.</p> <p>A defendant, in a conversation respecting a promissory note given by him when an infant, said,{i that he owed the plaintiff, but was unable to pay him 5 he would endeavour, however, to get his brother to be bound with him." Held, that this did not amount to a renewal of the promise.</p> <p>So, where he said to an officer who had the writ to serve, “ that his brother ought to have paid the note 5 that the writ should not go to court 5 that it should be settled 3 that he would see his brother, who ought to pay it 3" and after the writ was returned, u that he meant to go to jail on it."</p>

This was an action of trespass quare clausum fregit The defendant pleaded liberum tenementum ; upon which issue was joined. The controversy was between two creditors of the plaintiff’s father, each of whom had attached and levied on the same land, each claiming to have made the first attachment.

<p>A guardian settled in the Supreme Court of Probate an account, which in an action on the guardianship bond was found to be fraudulent and void as against the sure ties. It was held, that he could not be cited anew before the judge of probate to settle a correct account.</p> <p>The jury having found that the account was settled by collusion to charge the sure ties for a larger sum than was actually due, a new trial was granted, because they were instructed that the guardian might be so cited.</p>

This was an action of trespass for an assault, battery and false imprisonment. The defendants pleaded the general issue, and also justified under an execution which issued on a judgment recovered by them against the plaintiff at the term of this Court held in this county by adjournment, m May 1820, The execution was dated the 27th of June, 1820; and was made returnable within six months from the date.

Assumpsit on a promissory note, signed by one Marvel, as agent of The Westport Cotton Manufacturing Company. It appeared in evidence on the trial, before Wilde J., that certain individuals (who will be designated as the voluntary company) were the owners of a cotton mill and machinery, some stock on hand, about an acre of land, on which the buildings of the manufactory stood, and a farm Called the Freelove farm.

<p>This was an action of assumpsit. The declaration contained four counts;—1. On an account annexed. 2. On a promise to pay the plaintiff an annuity of 31 dollars, in consideration of her having released her right of dower in the real estate of her late husband, the father of the defendant. 3. On a like promise, in consideration of her permitting the defendant to enjoy his share of the real estate, being one sixth part, without claiming her dower therein. 4. For use and occupation of the same sixth part.</p> <p>At the trial, before Wilde J., the plaintiff offered in evidence the award of arbitrators between herself and the heirs of her late husband, upon a submission by mutual bonds of the parties, in which it was awarded, that the heirs should pay her an annuity of 186 dollars, each heir according to his proportion of the estate, and that she should release her right of dower. The defendant, at the time of the submission and award, was an infant, but his guardian in his behalf became a party to the submission, and the whole annuity was paid from year to year until the autumn of 1818. In July 1820, the defendant, being then of full age, inclosed 10 dollars, in part payment of the annual sum which was due, according to the award, in November 1819, in a letter addressed to the plaintiff, which was as follows : “You will find inclosed in this letter the sum of 10 dollars, in part towards your right of dower in my father’s estate. The remainder I shall forward you in a few days. It was entirely unexpected to me that it was not paid before, as I had lodged property in my brother’s hands to meet an annual payment.” There was no evidence that the plaintiff had ever released her right of dower, or that she was ever requested so to do; The heirs have continued to occupy the estate, and it has been divided among them, one sixth part having been assigned to the defendant.</p> <p>A verdict was taken for the plaintiff, upon this evidence, • subject to the opinion of the Court, whether it was sufficient to prove a ratification of the award and a promise by the defendant to pay his proportion of the annuity. If the Court should be of opinion that it was sufficient, judgment was to be entered according to the verdict; or if they should be of opinion, that the plaintiff was entitled to recover only a balance of the annual sum which became due in the autumn of 1819, the verdict was to be altered conformably:</p>

<p>This was a writ of entry, in which the demandants claimed as tenants in common. It appeared from records produced ai the trial, that in the year 1641, the General Court of Plymouth colony granted to the inhabitants of Seekonk (afterwards Rehoboth) liberty to take up a tract of land for their comfortable subsistence, eight miles square. A tract of land was accordingly taken up, and, in 1643, an agreement was made by the inhabitants of Seekonk, that the land granted “be divided according to person and estate as is expressed in the following list.” In 1689, the General Court approved of the boundaries of tne town, and confirmed the lands within the boundaries unto the several proprietors, according to each one’s just right, title and interest, and unto their heirs and assigns for ever. There were at first no separate meetings of the town and of the proprieto":, and no separate records. In 1697, at a town meeting, w=3 voted that three acres for clay, (the premises demand-;d m the writ,) should be left common perpetually. In 1712, the proprietors met, and chose as proprietors’ clerk the same person that was the town clerk, and the records of the town and of the proprietors were kept in one book until 1730; at which time the town passed a vote, that the proprietors might copy from the town records all votes and acts of the town as a proprietary, and also the votes of the proprietary as distinct from the town, into a book to be kept for the use of tbe proprietors. In 1731, the proprietors completed this work, and afterwards no business relating to the lands was transacted in town meeting. In 1735, at a meeting of the proprietors of the common and undivided land in Rehoboth, a committee was chosen to devise a mode of dividing the land. This committee reported, among other things, that about three acres, commonly called the clay pits, (the premises demanded,) should not be divided, “ but lay in common for every proprietor to use for the digging of clay for their own use only, and the herbage or feeding thereof, viz. the income that should thereafter arise from such land, be devoted by said proprietors towards the upholding of a school in said town, and be let or leased out by the selectmen of the said town, from time to time, for ever thereafter.” The proprietors accepted this part of the report. It appeared by the testimony of witnesses, that the demanded premises had been, by the authority of the town, leased or let annually, from the year 1785 until 1801, and divers years after that time; but that for some of the years they were not leased, because the rent was so low, that the selectmen concluded that it would be more for the interest ol me town to suffei the young trees to grow up, than to cultivate the land. But no one ever questioned the right and title of the demandants until 1817, when certain proprietors claimed a title, and reconsidered the vote of 1735, and afterwards conveyed th® land to the tenant.</p> <p>The present town of Seekonk was incorporated m 1812. having been before a part of Rehoboth. The act of in corporation contains no provision respecting the land in dis pute. *</p> <p>A verdict was taken by consent, subject to the opinion of the whole Court.</p>

Debt on a bond, brought by the plaintiff in his capacity of judge of probate.

Trespass for taking and carrying away nineteen sheep and one swine, the property of the plaintiff. Plea, the general issue. The plaintiff, a deputy sheriff of the county of Bristol, attached the sheep and swine on the 9th of January, 1821, on a writ in favor of Jonathan Peckham against Lawton Case, and removed them into the State of Rhode Island, where he delivered them to Jonathan and John Peckham, taking their receipt for them.

This was an indictment for adultery. The defendant was married to her present husband in the year 1801, in the town of Dartmouth, where they both resided; but she denied the validity of this marriage, on the ground that the Rev. Daniel Hicks, by whom it was solemnized, was not “ a stated and ordained minister of the gospel ” (St. 1786, c. 3, § 1) in Dartmouth, at the time of the marriage.

<p>in an action, brought originally before the Court of Common Pleas, where judg* ment is given against the plaintiff, and, by appeal, before this Court, where judg ment is given in his favor for less than twenty dollars, he is entitled to costs to the amount of one quarter part of the damages recovered, this Court having certified that he had reasonable cause for the appeal.</p>

This was an appeal from a decree of the judge of probate of this county disallowing the will of one Cyrus Everett, who was an infant over the age of fifteen years, (and this fact was mentioned in the will,) wherein the testator gave to his mother all his ££ estate and property of every description whatsoever.” The will was signed by the testator, and attested and subscribed, in his presence by three credible witnesses.

Assumpsit for expenses incurred by the plaintiffs in support of Mary Lovis and her two children, paupers, whose settlement was alleged to be in Hingham. It was admitted, at the trial, that the paupers had a deriva tive settlement from Thomas Lovis, the great-grandfather of the children, and that he removed, in the year 1751, from Marblehead to Hingham, and resided there many years until he died.

This was an action of trespass de bonis asportatis, brought originally before Samuel J. Gardner, a justice of the peace for this county. The cause was tried upon the general issue before the justice, and judgment rendered in favor of the plaintiff. The defendants appealed, and on a trial upon the same issue in the. Circuit Court of Common Pleas, in 1821, a special verdict was returned.

Hall was an ensign in a militia company; and while he was in commission, one Bacon, a private soldier in the same company, was chosen and commissioned to fill a vacancy in the office of captain. Hall then resigned and was honorably discharged. After this he was warned to do duty as a private, and was sentenced by a justice of the peace to pay a fine for non-appearance. Upon which he brought his petition for a certiorari to the justice.

Assumpsit on four promissory notes, which were respectively payable on the 15th of July, 1st and 15th of August, and 1st of September, 1811. The defendant pleaded the statute of limitations. (Si. 1786, c. 52, § 4.) The following facts appeared in a case stated by the parties. The plaintiff was a citizen of the State of New York when he action accrued, and continued so until the commencement of this suit.

<p>In assumpsit upon a promissory note, one plea that the plaintiff had received, and another that he had taken and received, unlawful interest, with a tender of the defendant’s oath, were held good upon demurrer.</p>

The parties on the 22d of June, 1821, entered into an agreement of reference before a justice of the peace, pursuant to St. 1786, c. 21. The referees returned their report to the Court of Common Pleas on the second day of the term held in September following, and the report bore date on the same day.

<p>A deputy sheriff was ordered to attach certain real estate, which he did. He after wards told the debtor, who was ignorant that the writ had been served, that he was going to attach personal property. The debtor asked him if money would not answer, and he replied that it would. Upon which he received of the debtor a sum of money and made return that he considered it as personal property attached. The deputy embezzled the money, and the sheriff was held responsible to the debtor, who had been compelled to satisfy an execution issued in favor of the creditor.</p> <p>Whether money or bank bills may be attached, quaere.</p>

In an action of trespass for an assault and battery orougff by Smith, then an infant, by his next friend, against Floyd judgment was rendered in favor of Smith for damages and costs. The original writ was indorsed by the prochein amy. Floyd afterwards sued out his writ of review, and obtained a judgment against Smith for the costs of the review and of the original suit.

<p>This action, which was assumpsit, came before the Court upon a case stated. The material facts were as follows. On the 29th of December, 1820, the plaintiff, who lived at Kennebunk, in Maine, wrote to the defendants requesting to know on what terms they would insure 2500 dollars on his brig Hes per and cargo from Martinico to the United States. The de fendants, on the 1st of January, 1821, sent an answer, saying they would take the risk at two and a half per cent. This letter was received by the plaintiff on the 3d of January, on which day he wrote a reply, requesting the defendants to fill a policy on the terms proposed by them. The defendants on the 2d of January wrote again to the plaintiff, declining to take the risk, but the plaintiff had sent his letter of the 3d before he received the last letter of the defendants. All the letters were sent by mail, and were duly received by the parties respectively. The vessel was afterwards lost on the voyage.</p> <p>The only question in the cause was, whether the correspondence of the parties constituted a contract by which the defendants were bound.</p>

<p>A condition in a replevin bond, that the obligor shall prosecute his action of replevin to final judgment, is saved by his prosecuting it until the writ is abated by the death of the defendant.</p>

This was an action of replevin for a brigantine, called the Nancy, with the appurtenances. The defendant pleaded in bar, that the property was in one Long, and not in the plaintiff ; and issue was tendered on that traverse and joined. On the trial, before Jackson J., it appeared that the vessel had been owned by Long, and that he gave a bill of sale of it to the plaintiff on the 27th of October, 1819, but made no formal delivery of the vessel.

This was an action to recover toll for passing on the Canal Bridge, leading from Boston to Lechmere Point, in Cambridge. At the trial, before Parker C. J., the plaintiffs produced two acts of incorporation, one passed February 27th, 1807, the other, February 2Gth, 1808. They also produced their book of records to show their organization.

<p>This was an action of assumpsit. On the trial, at the last November term, the plaintiff produced the deposition of one Tite, which had been regularly opened in court and filed at the sittings after the law term in March 1820. This deposition was read without objection. The defendants afterwards offered in evidence seven depositions, which had been regularly opened and filed at the same sittings, and which had been taken solely for the purpose of impeaching Tile’s credit as a witness. The plaintiff objected to the admission of them, because they had not remained on the files of the clerk since they were opened, according to the tenth rule of the Court, (16 Mass. Rep. 373,) made in March term 1820, which was to take effect from the first day of July following. The cause had been formerly tried at the beforetnentioned sittings, in May 1820, on which trial the plaintiff did not produce, in evidence the deposition of Tite, and the defendants did not produce any of the seven depositions. It did not appear that these last had been on the files at any time after the sittings at which they were opened, and it did appear that they had been off the files and in the hands of the defendants’ counsel at some time during the vacation. Soon after the new trial was ordered, which was at March term 1821, the plaintiff’s counsel told Peabody, the counsel for the defendants, that he should object to the admission of these depositions, because they had not been kept on the files ; to which Peabody replied, that the same objection would apply to the deposition of Tite, which, it appeared, had been kept by the plaintiff’s counsel from the time of the first trial until after the order for a new trial. The deposition of Tite having been read under the circumstances before mentioned, the defendants were permitted to read the other depositions. '</p> <p>The defendants also offered the deposition of one Hill, which had been taken in Philadelphia on a commission from this Court. The plaintiff objected to one of the answers, on the ground that the interrogatory was a leading question. It appeared that the interrogatories had been shown to the plaintiff’s counsel, and that he had added cross-interrogatories, one of which related to the same subject as the interrogatory in question, and it did not appear that any objection was then made to this interrogatory. The plaintiff’s objection was overruled, and the answer was read.</p> <p>The plaintiff now moved for a new trial on account cr the admission of the same depositions and the answer above men tioned.</p>

<p>A guardian may assign dower.</p> <p>Bv an agreement under seal between the widow and the guardians of the heirs, the whole of one parcel of the husband’s land was assigned to her for her life, to be holden in full satisfaction of her dower, and subject to all the conditions and liabilities, and with all the privileges and incidents of dower. The land assigned proved'to be under mortgage. Held, that this was an assignment against common right, and that the widow was barred by it, as against an innocent purchaser of other land of the husband.</p>

This was a writ of entry, in which the demandants counted upon their own seisin, m right of the. wife, of seven sixty-fourth parts of a messuage, and a disseisin by the tenants. ' On the trial, which was upon the general issue, before Jackson J., it appeared, that in January 1769, Samuel Simpson was seised in fee of seven eighth parts of the whole messuage, and his wife Alice Simpson, of the other eighth part. On the 17th of January, Samuel Simpson made his last will.

Assumpsit. The plaintiff in his 3d count set forth, that on tbe 16th of February, 1821, it was agreed between the parties, that the defendant should let to the plaintiff a certain messuage, except one half of the lower floor, for the space of five years from the 1st of March then next ensuing, and that the plaintiff should pay a yearly rent of 350 dollars, and should within a reasonable time, at his own cost, make two shops on the lower floor, &c. ; that in pursuance of the…

This was an action of debt for rent. The plaintiff declared on an indenture, by which he leased to S. L. Knapp, A. Davis and J. N. Knapp, the defendants, jointly and severally, the first as principal, and the others» as sureties, a house in Boston, for the term of one year from the 30lh of September, 1818, for the rent of 400 dollars; and “ the said lessee” promised to pay the rent in quarter-yearly payments, and to quit and deliver up the premises at the end of the term,…

The trial of this action, which was assumpsit, was had before Jackson J., and lasted three days. After the jury had been out six hours, the foreman wrote to the judge at chambers, that they could not agree, and that they waited for his directions.

Assumpsit. At the trial, before Parker C. J., it appeared, that on the 22d of May, 1819, the plaintiff sent several boxes of lemons and oranges from Boston to the defendants at New York, with directions to sell them for cash.

This was an action of trespass, originally brought before a justice of the peace, to recover a compensation for an injury to the plaintiff’s hackney-coach, occasioned by the defendant in negligently driving against it with his chaise.

This was an action of debt on a bond in the penalty of 260 dollars and 22 cents, given by Gamage, with the other defendant as his surety, for the liberty of the jail-yard. The declaration contained two counts ; the first was in common form, stating only the penal part of the bond ; the second set forth the judgment and execution against Gamage, his commitment, and the bond with the condition, and alleged an escape on the 1st of January, 1821.

<p>A. judgment entered against the defendant as administrator, instead of against the goods and estate of the intestate, ma) be amended by another part of the record, . upon motion.</p> <p>*n the sale of an equity of redemption on execution, notice (as required by St. 1789, c. 77) to the administrator only of the mortgagor seems to be sufficient, without notice to the heirs.</p> <p>A mortgagee cannot cause a sale to be made of the equity of redemption for the purpose of paying or extinguishing the debt secured by the mortgage.</p>

<p>William A. Quincy replevied goods which had been taken by a deputy of the defendant, sheriff of this county, by virtue of writs of attachment in favor of one Williams and others against A. H. Quincy.</p> <p>The defendant pleaded in bar, that the property was in A. H. Qumcv, without that, that the property was in the plaintiff; and upon this traverse issue was joined</p> <p>On the trial, before Parker C. J., the plaintiff produced in evidence bills of sale of the goods from A. H. Quincy, dated on the 24th of June, 1822, which were receipted as paid, and for which the plaintiff gave his promissory notes, payable on demand, without any indorser or other security. The Chief Justice having expressed an opinion that the sale would be found fraudulent as against creditors, it was admitted that the intention was to constitute the plaintiff trustee for the creditors of A. H. Quincy, for the purpose of making an equitable adjustment among all the creditors. It was proved that there had been several meetings of the creditors, at which it was known that the goods were disposed of in the manner and for the purpose above mentioned, and it was proposed to them that the plaintiff should give security and proceed to sell the goods and pay the creditors the amount of his notes, but he was willing to give up the goods and take back his notes, upon receiving 200 dollars for his trouble. A committee of the creditors was chosen, on the 26th of June, to look into the affairs of A. H. Quincy, and they made a report on the 27th, which was shown to the principal creditors and was approved of, or acquiesced in, by all but those who attached. It did not ap pear that either Downer or Baldwin, who were attaching creditors’ were present at any of the meetings of the creditors. The plaintiff was in possession of the property, under the bill of sale, from the 24th of June till the 2d of August, when it was attached.</p> <p>The Chief Justice directed a nonsuit, with liberty to move to have it taken off and to have a new trial, if an assignment for the purpose and in the form above stated, is good in law.</p>

<p>An execution was altered by fraudulently inserting a direction to a constable, held, - that payment to such officer does not discharge the debt.</p> <p>Parol evidence is admissible to prove such alteration.</p>

Assumpsit. The defendant pleaded, 1. The general ssue ; 2. Actio non accrevit infra sex annos. To the second plea the plaintiff replied, that the defendant promised within six years ; and upon this, issue was joined. The action was brought to recover the price of about seven tons of pine timber, sold and delivered by the plaintiff to the defendant in the year 1808.

The plaintiffs brought an action against John Hubbard as maker, and another against the defendant as indorser, of a promissory note, and in the last action were nonsuited, at November term 1817 of this Court, with liberty to move the whole Court that the nonsuit be taken off. Such motion was made accordingly, and overruled for the reasons given in the case of Bridge et al. v. Hubbard, 15 Mass. Rep. 96.

<p>This cause was argued at March term 1822, by Sohier, for the plaintiffs, and Prescott, for the defendants ; and the opinion of the Court was delivered at the same term by</p>

An indictment was found in this case as follows: — Com monwealth of Massachusetts, City of Boston, to wit : At the Municipal Court for the Toion of Boston, now, by an act of the legislature passed on the twenty-third day of February, in the year of our Lord eighteen hundred and twenty-two, incorporated into a city, by the name of the City of Boston, begun and holden in and for said city and county of Suffolk, on the first JWonday of April in the year of our Lord one thousand…

This was an indictment against the defendant for keeping, and suffering to be kept, in a certain yard by him “ actually occupied,” a ninepins alley, for his own proper gain, contrary to Si. 1798, c. 20, § 2. The evidence was, that there was a shed kept for the purpose of playing at ninepins, contiguous to a passageway between the shed and the defendant’s store.

The defendant, being indicted by the name of Thoma? Perkins, junior, for a nuisance, under the statute against gaming, pleaded in abatement., at April term 1822 of the Municipal Court, that his name was Thomas Hopkins Perkins. The county attorney demurred generally, and there was a judgment of respondías ouster, a trial upon the general issue, and an appeal to this Court.

<p>This was an action of trover for a brig, called the Frances, and her appurtenances.</p> <p>At the trial, before Parker C. J., it was proved, or admitted, that Bell, the plaintiff’s testator, on the 1st of April, 1818, as a deputy of Bradford, at that time sheriff of the county of Suffolk, attached seven eighths of the vessel, which was then lying in the port of Boston, as the property of Ward, Ripley & Co of Wilmington, North Carolina, at the suit of Messrs. Salters of the same place, and took her into his custody and possession. On the 30th of the same April, Bell attached fifteer sixteenths of the vessel, which was still in his possession, a the property of Ward, Ripley & Co. and of Samuel Delano, at the suit of Winslow, Lewis & Co. of Boston.</p> <p>The action brought by the Salters was entered, and after-wards discontinued. In the action brought by Lewis and Co. judgment was rendered upon a verdict in their favor, at the October term 1822 of the Court of Common Pleas, and an execution was issued on the judgment, and was delivered to Hall, the successor of Bradford. Hall made return, that he demanded the brig and appurtenances, which were attached on the original writ, of the administratrix of the former sheriff, and of the executor of Bell, but did not obtain them ; and that the execution was in no part satisfied.</p> <p>On the 10th of August, 1818, Kelly & Draughan of Wilmington, Caleb Dexter and Samuel Delano replevied the vessel from Bell, claiming her as their own property. The present defendants, as the agents of the plaintiffs in replevin, received the vessel, and on the 30th of September sold her, and they now retain the proceeds in their hands. The writ of replevin was entered and prosecuted in the Court of Common Pleas, until it was abated by the death of Bell.</p> <p>An action was then brought by the present plaintiff against one of the parties to the replevin bond, to recover back the value of the property replevied, but judgment was rendered in this Court, at March term 1821, in favor of the defendant in that action, on the ground that the plaintiffs in replevin had performed the conditions of the bond, until they were prevented by the act of God in the death of Bell.</p> <p>After the attachment in favor of Lewis & Co. divers other writs were delivered to Bell, which are still pending, on which he returned that he had attached the vessel. The aggregate amount of damages claimed in those suits exceeds the value of the vessel.</p> <p>On the 13th of March, 1822, a formal demand was made on the present defendants, to deliver the vessel up to the plaintiff, which was refused ; and on the same day this action was commenced.</p> <p>It was proved, by a copy of the enrolment of the vessel, that on the 1st of January, 1818, she was the property of Ward, Ripley & Co., Delano and Dexter, and that when she was attached she was in the possession of their agents. The value of the vessel was agreed to be 5500 dollars. • On these facts the plaintiff rested his case.</p> <p>The defendants objected, that if any cause of action existed, it was vested in the representative of the deceased sheriff.</p> <p>They also objected that the original writ of Lewis & Co, against Ward, Ripley & Co. and Delano was void, and that consequently no act of the deputy sheriff by color of it could be the foundation of any right of action. It appeared that the blank form of a trustee writ had been used to effect the attachment, but no trustee’s name had been inserted in it; and an attested copy was left with the agent of Ward, Ripley & Co. and with Delano Ward, Ripley & Co. and Delano appeared and pleaded to the action. A motion was made in the Court of Common Pleas, at the first term, for leave to amend by inserting the name of a trustee, and a cross motion was made to have the action dismissed ; but upon argument both motions were overruled.</p> <p>The defendants further objected, that they acted in relation to the vessel only as the agents of Kelly & Draughan, who were mortgagees of the vessel, and they offered to prove Kelly & Draughan’s title ; to which the plaintiff' objected, but the chief justice overruled this objection. The defendants then proved, that .on the 11th of March, 1818, Ward, Ripley & Co. conveyed seven eighths of the vessel, with other property, to Kelly & Draughan, in mortgage, in order to secure Kelly individually, and the firm of Kelly & Draughan, from any loss in consequence of their indorsing notes of hand which had been, or within a year from the date of the mortgage should be, made by J. H. Ward, or Ward, Ripley & Co. It was stipulated in the deed, that Ward, Ripley & Co. should remain in possession of the property, until default should be made in the payment of any such note. Evidence was produced showing that the sum of 2397 dollars was due to Kelly & Draughan, in consequence of their paying notes of the kind mentioned in the deed.</p> <p>It was then proved, that the vessel sailed from Wilmington on the 10th of March, 1818, the day before the execution of the deed of mortgage, and arrived at Boston on the 29th. Tha course of the mail between Wilmington and Boston is about eight days. A note dated the 22d of January, 1818, signed by Ward, Ripley & Co., and indorsed by Kelly & Draughan, payable in 90 days and grace, being unpaid, Ward, Ripley & Co., on the 22d of April, addressed a letter to Kelly & Draughan, informing them that the vessel was then in Boston, and requesting them to take possession of her ; and on the 1st of May notice of Kelly & Draughan’s title was given at the custom-house by Tucker, by a memorandum on the certificate of enrolment, and subsequently the vessel was replevied in the mhnner before mentioned.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the whole Court.</p>

Assumpsit on a promissory note made by W. and C. Brett to the defendant, and by him indorsed to the plaintiff, dated the 14th of February, 1822, payable in four months with grace. • At the trial, before Parker C. J., Stephen Codman, a notary public, testified, that at the request of the plaintiff he went with the note, on the last day of grace, to the place of business of the promisors, and demanded payment of one of them ; that on the same day he put a written notice into…

This was an action against the defendant, as indorser of another note, made by the same promisors as in the foregoing case. One point in which the present case differed from that, related to the demand on the promisors.

<p>The plaintiff, an attorney and counsellor of this Court, after rendering some sen ices in a suit brought by the defendant in another State, where champerty is prohibited, entered into a written agreement here, by which he was to receive for all his services ten per cent, upon the sum which should be recovered. Heldt that ¿its agreement was void, but that the plaintiff might recover upon a quantum mtrvfo for his services up to the time of making the agreement.</p> <p>Champerty, being an offence at common law, is to be presumed to be against the law of another State, the contrary not appearing.</p>

<p>A certificate of the clerk of the city of Boston was received without objection, as evidence that A. B. was duly chosen and sworn as a surveyor of highways. Heldy that it was too late, after a verdict, to object that no record was produced."</p> <p>The St. 1786, c. 81, § % as to selectmen’s assigning limits to the surveyors respectively, is only directory 5 but if no assignment is made, perhaps the surveyors must act together, or by the voice of the major part of the whole.</p> <p>A surveyor has authority by the statute to dig down or raise a street; and if no does it with discretion, and not wantonly, a party injured cannot maintain an action against him, nor it seems against any other persons.</p> <p>Such digging down or raising is not an alte)'aiiont within the meaning of the statute.</p> <p>Amending, as there used, comprehends making better.</p> <p>The statute is not contrary to the 10th article in the Declaration of Rights; which has never been construed to give a right to compensation for an indirector conse quential damage or expense resulting from the right use of property already belonging to the public.</p>

<p>To a plea of the statute of limitations in an action of the case for fraud, it is sulli cient for the plaintiff to reply generally, that he did not discover the fraud till within six years.</p> <p>The defendants caused the plaintiff to insure a vessel for them, upon which there was a loss. They sued him, and recovered judgment for the amount of the loss, and obtained satisfaction upon execution. He afterwards commenced an action against them to recover back the money, upon the ground that they knew of the loss at the time when the insurance was made, but concealed the knowledge of it from him, and that the fraud was not discovered until after the execution was satisfied. Held, that the former judgment was a bar to this action.</p>

<p>This was an action of covenant broken. The declaration averred, that the plaintiff and defendant were the joint invents ors of two machines for dying and drying silks, the one called a reel and the other a lap-frame ; and that they mutuálly covenanted so to cooperate as to secure to themselves the benefit of the same, and that for this purpose they covenanted that the defendant should have secured to him the exclusive use and sale of the machines in Massachusetts and Rhode Island, and the plaintiff in every other part of the United States ; and that neither should use or sell the machines within the district of the other, under the forfeiture of 1000 dollars for each machine so used or sold ; yet that the defendant made fifteen machines to be used at Staten Island in the State of New York, and used and employed the same in that place, by which he forfeited and covenanted to pay 15,000 dollars.</p> <p>appeared, that the defendant was authorized to set up one es* agreement, which was made in 1817, it lablisbment in the State of New York, and to use therein any number of said machines, for which he was to pay the plaintiff in three years 500 dollars if the establishment should be fixed within one hundred miles from the city of New York, or 300 dollars if in any other part of the State ; and he was to give the plaintiff notice in thirty days from the date of the agreement in what part of New York he was to fix the establishment. It appeared by a memorandum on the back of the deed, that he accordingly gave notice that he elected to fix his establishment in the district including the city.</p> <p>The defendant pleaded six several pleas. In the first two he alleged, that neither Stearns nor himself was the inventor of either of the machines. The plaintiff replied, that they were the joint inventors, and tendered an issue to the country ; to which the defendant demurred specially.</p> <p>In the third plea it was alleged, that separate letters patent had been granted in 1809 to each of the parties as the inventor of both machines, and that each patent was for two distinct machines and inventions.</p> <p>In the fourth plea it was alleged, that previous to the agreement, letters patent had been granted to each of the parties for the machines, and that afterwards, in 1818, letters patent were granted to them jointly for the same.</p> <p>In the fifth plea it was alleged, that after the agreement a joint patent was granted, including both machines.</p> <p>To these last three pleas there was a general demurrer-</p> <p>In the sixth plea the defendant alleged, that each, supposing himself to be the true inventor of the machines, procured a patent therefor, and under such supposition entered into the agreement. The defendant then averred, that neither of them was entitled to tne patent, but that the same was wholly void.</p> <p>To this plea the plaintiff replied, that they' entered into the covenants on the supposition and belief that they were the joint inventors, and traversed that each supposed himself to be the sole inventor. To this replication there was a special demurrer.</p>

<p>A declaration containing counts upon St. 1788, c. 16, §3, charging A., one of the defendants, with spending and using his property while imprisoned on execution, and the other defendants, with aiding him in spending, using and secreting it, cannot be amended by adding a count at common law, charging the defendants with a conspiracy to enable A. to transfer and conceal his property, in order to deprive the creditor of the benefit of his execution.</p> <p>Whether the counts might have been joined originally, quaere.</p> <p>Where the defendants in tort sever in their pleas, and some or all are acquitted, those acquitted are entitled to several costs for travel, attendance, and attorney’s fee 5 but the costs for witnesses, depositions, clerk’s fees, &c., must be single, and may be distributed according to the advances made by the defendants respectively, or the whole may be put into either bill of costs.</p> <p>The St. 8 & 9 Will. 3, c. 11, of costs, if ever adopted here, is superseded by St 1784, c. 28, § 9.</p>

Trespass de bonis asportatis. The defendant pleaded the general issue, and filed a brief statement, pursuant to the stat ute, in which he set forth that he was a deputy sheriff; that one Langdon recovered a judgment in the Boston Court of Common Pleas against Haskell, and against his goods, effects and credits in the hands of Vandyne, Dickenson & Low ; that pursuant to an execution issued from the same court, he, the defendant, demanded of Vandyne, Dickenson & Low the goods,…

This case was argued in writing, in the vacation after March term 1823, by Harrington, for the plaintiffs, and Bassett, for the principal defendants and the trustee ; and judgment was entered up at November term following.

<p>This was a petition for a writ of certiorari to a justice of the peace, who had sentenced the petitioner to pay a fine for neglecting to appear on the 24th of September, 1821, as a private in a company of artillery. The petitioner, in his defence before the justice, offered to prove that he was living within the bounds of a standing company, of which one Marsh was captain, and which consisted of a less number than sixty-four privates at the time when the petitioner was enlisted m the company of artillery ; and he offered in evidence a brigade order of the 14th of August, 1821, directed to Marsh, discharging the petitioner from the company of artillery, and requiring Marsh to enrol him in his company ; and he offered to prove that the brigade order was duly notified to him, and that he had in consequence of it done military duty afterwards in Marsh’s company. The justice decided that these facts were insufficient in law to excuse the petitioner, because the captain of the company of artillery had never been served with a cop} of the brigade order.</p>

<p>This was an action of debt upon the St. 1793, c. 59, § 15, which provides, that if any person shall bring and leave any poor and indigent person in any town or district, wherein such pauper is not lawfully settled, knowing him to be poor and indigent, he shall forfeit twenty pounds, to be sued for, and recovered by, and to the use of such town or district</p> <p>A man and woman, mentioned in the declaration, had been travelling from the State of Pennsylvania on their way to Chesterfield, in New Hampshire, where one of them had relations, and they had for some weeks immediately before the time when the penalty was said to have been incurred been supported as paupers by the town of Northampton. After leaving Northampton and travelling about three miles on foot, they had been supported by charity, and transported from place to place, until they arrived in Sunderland. They here applied to the defendant, as an overseer of the poor, for assistance. The defendant endeavoured to induce them to leave the town, and told them that he had no accommodations for them, but that there was a poorhouse at Deerfield, and that Deerfield was on the road to Chesterfield, and that if they would go there, he would pay their toll across Sunderland bridge. They declined on account of the inclemency of the weather and their feeble health. The defendant went to the store of another overseer and said, “ that he must see him on this business ; that these people had been tucked on to them, and that they must get rid of them.”</p> <p>The defendant then engaged one Saunderson to take them to Montague, which is on the direct road to Chesterfield, and there leave them. After they had got into the sleigh, which they at first declined doing, the woman cried, and complained of the cold, and Saunderson being induced by the consideration that Deerfield was nearer than Montague, carried them into that town, and, arriving opposite to a tavern, directed them to go in while he turned his horse under the shed, and said that he would himself come in and speak a good word for them. He did not, however, go in, but immediately returned to Sunderland. Deerfield was not on the direct road to Chesterfield.</p> <p>Saunderson testified that he had no instruction from the defendant to take the paupers to any other place than Montague ; and that, some time after he had left them in Deerfield, and after the plaintiffs had threatened to bring this action, he informed the defendant of what he had done, and that the defendant did not approve of it, and said he would not pay him for removing the paupers ; and that he never had been paid for it.</p> <p>Wilde J., before whom the cause was tried, instructed 'the jury that the defendant had not incurred the penalty, unless he had caused the paupers to be removed for the purpose of charging Deerfield, or some other town, with the expense of supporting them ; and that if he intended only to help them on their journey, and had good reason to suppose that they would find other help on the way, so as to enable them to reach their friends in Chesterfield, he would not incur the penalty bj directing Saunderson to remove them to Montague ;. and further, that if the defendant directed Saunderson to carry them to Montague because it was on the direct road to Ches terfield, and because he thought he had a right to help them on their journey, though not to carry them to any town out of the direct road, and that for this reason he never consented to their removal to Deerfield, and never approved of it afterwards, in such case Saunderson could not be considered as his agent in removing them to Deerfield ; but that if the defendant employed Saunderson to transport the paupers out of Sunderland, and'leave them in another town, without designating the particular town, but with the intent generally to charge some other town with their support, in such case he would be liable in this action.</p> <p>The jury found a verdict for the defendant. If the foregoing instructions were incorrect, a new trial was to be granted</p>

<p>A letter from the overseers of the poor of one town to those of another, to obtain a .reimbursement of the expenses of supporting a pauper, was received and answered. A mistake in this letter was corrected in a second letter, which was received hut not answered, referring to the first. Held, that the second, which by itself was an insufficient notice, might be taken in connection with the first, so as to constitute a sufficient notice from the time when the second was received.</p> <p>A notice respecting a pauper whose Christian name was Sally, calling her Sarah or Sally was held tobe sufficient.</p>

<p>Usder a contract of sale which was void by the statute of frauds the defendant was >o have of the plaintiff 12,000 bricks at 4 dollars a thousand, to be received by the •lefendant at the plaintiff's kiln within one month. After the month had expired, the defendant took away 800, and told the plaintiff's agent who delivered them, that he would take away the rest of the 12,000 the next week 5 to which the agent assented. The defendant, however, never called for them, nor did the plaintiff separate them from the rest of the kiln. Held, that an action lay for the price of the 12,000, on the ground that here was a new contract which was sufficiently certain as to quantity and price by reference to the former one, and not within the statute.</p>

<p>By St. 1786, c. 50,1 the State, county and town taxes are required to be assessed separately and put into separate lists or assessments. But it seems that a separate warrant for collecting each of them is not necessary.</p> <p>The valuation (or a copy of it) which is the basis of any assessment must be lodged in the town-clerk’s office, or in an assessors’ office, before the assessment can be valid.</p> <p>The papers belonging to a board of assessors were kept in a small trunk under a lock and key, and the trunk and key were usually kept by the principal assessor, but sometimes the other assessors took them$ and the assessors had no particular building appropriated as an office, but transacted their business at each other’s houses. Held, that here was no assessors’ office within the meaning of the statute.</p> <p>But see St. 1823, c. 138, passed since this decision was made.</p> <p>There were in any other facts in the case, but tnose above stated present the points upon which it was determined.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the whole Court.</p>

<p>Writ of entry. The parties submitted the action to the determination of the Court upon a case stated. The material facts are the following.</p> <p>On the 22d of January, 1816, one Wyman mortgaged the demanded premises to J. and L. Pond. On the 28th of December, 1819, Wyman’s right in equity of redeeming the land was attached on mesne process, at the suit of one Prescott, and on the 6th of November, 1820, the lien created by the attachment still continuing, was sold on the execution in that suit to the tenant; to whom the officer gave a deed of it after sunset on the day of the sale.</p> <p>On the 21st of August, 1820, Wyman mortgaged to the same mortgagees all his remaining interest in the demanded premises. Afterwards, on the 2d of September, 1820, his right in equity of redeeming this second mortgage was attached in sundry actions against him, and on the 21st of May, 1821, was sold by virtue of the executions in those actions to the demandant, to whom the officer gave a deed the next day.</p> <p>On the 5th of November, 1821, before sunset, the demand-ant tendered to the mortgagees the amount secured by the second mortgage, and requested an assignment of the mortgage, claiming the right to redeem by reason of the sale and deed to him before mentioned ; but the mortgagees refused to accept the money tendered. Afterwards, on the' same day, before sunset, the demandant tendered to the tenant such sum, with interest, as the tenant had paid for the right in equity of redeeming the first mortgage ; but the tenant refused to accept it.</p> <p>On the 6th of the same November, the mortgagees assigned to the demandant the second mortgage ; and he afterwards, on the same day, before sunset, made another tender to the tenant, similar to the one previously made to him, and requested him to release to the demandant the right in equity of redeeming the first mortgage, the demandant claiming the right to make the tender by reason of the assignment of the second mortgage ; which money so tendered the tenant refused to accept.</p> <p>On the 15th of August, 1822, the demandant offered to pay, and tendered to the tenant such sums of money, with the interest, as the tenant had paid to the mortgagees on the first mortgage, deducting the excess of rents and profits received by the tenant above the repairs, &c. made by him ; the demandant claiming the right of redeeming the right- purchased by the tenant, by reason of the sale and deed before mentioned to the demandant, the tender to the mortgagees, and the assignment of the second mortgage.</p> <p>If the Court should be of opinion that the demandant was entitled to recover, the tenant was to be defaulted; if otherwise, the demandant was to become nonsuit.</p> <p>The parties further agreed that the demandant, if it should be deemed necessary, might so amend as to change his writ and declaration into a bill in equity ; or otherwise, that the Court might decree in the same manner as if the matter were pending on any bill in equity, if such should be considered as a proper and legal remedy.</p> <p>The arguments were transmitted to the justices in the vacation, in-writing.</p>

Debt upon a judgment. The defendant pleads in abatement of the writ, that it was served only by the arrest of his body ; and avers that he had been committed to jail by virtue of the writ of execution which had issued upon the judgment, and that he had been admitted to, and had taken the oath prescribed by, the statute (1816, c. 55) for the relief of poor prisoners committed on execution for debt, and had thereupon been discharged from his imprisonment according to law.

<p>In an action on a joint contract, where one of two defendants pleads infancy, tin plaintiff may enter a nolle prosequi against him and proceed against the other de fendant. ,</p>

This was an action of trover for a promissory note wade by one Kilburn, payable to the plaintiff or his order, as part of the consideration of a deed of land given by the plaintiff to Kilburn. The note had been deposited with the defendant, to be delivered to the plaintiff in case no deed of mortgage incumbering the land should be found on the records of this county, and none was found.

<p>Error to reverse a judgment rendered upon the report of referees upon a demand submitted to them under the statute of 1786, c. 21, § 1. The error assigned was, that no demand signed by Wheeler was annexed to the rule of submission.</p>

<p>After a divorce a tnnculo in this State for adultery, a marriage contracted here by the guilty party, living the innocent party, is unlawful and void.</p> <p>A husband, having a settlement in this State, after such a divorce for adultery committed by him, removed to another State, where he married, living his former wife and children. It was held, that, such marriage being permitted by the l^ws of that State, the children were legitimate, and that they had their father's settlement.</p> <p>Whether a person so marrying and returning into this State to live with his second wife, his former wife still living, would be liable to the penalties against polygamy, qucera*1</p>

<p>This was a case in equity, under St. 1817, c. 87,»against Belknap and others, selectmen of the town of Framingham.</p> <p>The bill alleges, that one Micah Stone, in August 1813, made his will, by which, after providing for the payment of his debts, &c., he gave and bequeathed1 the principal of all the vemain¿er 0f his estate to the inhabitants of the town of Framingham, and vested all the income and interest of the same in the selectmen of the town, legally chosen, at the time of his decease, and in their successors forever, in trust for the support of any of his children, grandchildren and great-grandchii dren, if any of them should stand in need of support; or, otherwise, the trustees were ordered to apply the same to the support of the poor of the town ; and that afterwards, on the 26th of September of the same year, the testator died, and on the 13th of October following the will was proved and allowed.</p> <p>The bill further states, that Edward Goodenow, a minor, is a great-grandchild of the testator, and that, on the 10th of August, 1819, he, having his lawful settlement in East Sud-bury, was in indigent circumstances and stood in need of sup port; that the plaintiffs furnished him with necessary support from that time until April 1820, at the expense of 36 dollars, 52 cents ; and on the 9th of September, 1819, they by their overseers of the poor gave notice to the respondents, then, and at the time of the filing of the bill, being selectmen of Framingham, and requested them to reimburse the expenses, and provide for the future support of Goodenow, which the respondents refused. They also allege that they had, on a suit against Goodenow, recovered judgment against him for the amount of the expenses and costs, but that the judgment had never been satisfied ; of which they allege due notice to the respondents, and a request to them to pay the judgment. They then allege that the respondents became trustees of the fund provided in the will, and that they accepted the trust. The bill concludes with interrogatories to the respondents, and a prayer for such relief as is suitable to the case.</p> <p>At a former term the respondents demurred to the bill, but the demurrer being overruled, an answer was put in, which ad-mils the will as stated in the bill, and that the respondents viere selectmen of Framingham ; but they deny that they have accepted the trust under the will, unless certain facts which they state amount to an acceptance ; and they set forth that the town- of Framingham had chosen agents to settle with the ex ecutor of the will and receive of him all the money and proceeds of the estate of the testator, which, pursuant to the will, belonged to the town, and that the agents had, pursuant to their authority from the town, taken possession of the real and personal estate devised and bequeathed, and had delivered over all the money and securities and proceeds of the estate, which had come to their hands, to the treasurer of the town; and that nothing thereof had come to the hands of the respondents. They state, also, that they have frequently drawn orders on the town treasurer in favor of the creditors of the town; but not upon any particular fund, excepting a certain fund called pew money, which has no relation to the subject of this bill; and that the town has annually chosen a committee to audit the treasurer’s accounts, and that the committee have annually settled the accounts ; which sums have been credited as accruing from the testator’s legacy, and been charged by the treasurer as paid towards the support of the poor. They admit that the pauper is a great-grandchild of the testator, and that his settlement is in East Sudbury, but deny any knowledge of his circumstances,, except from the information of the plaintiffs or of the overseers of the poor of that town.</p> <p>The cause was argued in the vacation in writing.</p>

This was an action on the case against a constable for neg-1 lecting to seize and sell on execution the right in equity of re- ^ deeming certain real estate.

This was a special action on the case, for a false and malicious accusation laid before the board of health of the town of Boston by the defendant, in which that board was informed that the plaintiffs were about to expose for sale, in the market of Boston, a quantity of damaged and unwholesome meal; by means of which accusation the board of health was induced to seize, and to detain for examination for a long time, a large quantity of good and wholesome meal belonging to the…

This was an action on a probate bond brought for the benefit of a spendthrift against one of the sureties of his former guardian.

In June 1820, the appellants, in settling their second ac - count of administration, were charged by the decree of th' judge of probate with a certain balance.

This was an appeal from a decree of the judge of probate approving and allowing an instrument, bearing date the 19th of June 1819, as the last will and testament of Sarah Badger, in which the appellee was constituted executor and residuary devisee and legatee. The appellant was an heir at law. Several reasons of appeal were filed in the probate office.